In September 2003, a paving contractor, WM Loud Pty Ltd (“Loud”), was threatened by its head contractor, SJ Higgins Pty Ltd (“Higgins”):
• with intent to coerce it to make a certified agreement with the CFMEU (coercion in breach of s 170NC of the WR Act); and
• with prejudice to its position as a paving contractor for a prohibited reason, namely because it had a certified agreement with the AWU (in breach of s 298K(2) of the WR Act).
In October 2003, the ABCC commenced proceedings in the Federal Court against the CFMEU, its president Mr. Cummins, Higgins, and its manager, Mr. Sheedy (“the respondents”). At a hearing before Ryan J on 3 December 2004, the respondents challenged parts of the application and statement of claim. On 10 June 2005, Ryan J. handed down his decision on the first challenge. At a second hearing before Ryan J on 11 August 2005, the respondents challenged parts of the further amended application and further amended statement of claim submitted by the applicant on 8 July 2005.
Challenge to further amended application and statement of claim:
Ryan J. determined that some aspects of the second challenge were made out. “Embarrassing features” existed in some paragraphs which were sometimes contrary to his Honour’s decision in the first challenge. The pleadings failed to show how Sheedy had incurred personal liability for the breaches of his corporate employer, leading his Honour to have the “strong impression” that no cause of action lay against Sheedy.
His Honour ordered the removal of the embarrassing features and amendment of the pleadings to make them more intelligible by:
• striking out the cause of action against Sheedy personally;
• granting leave to file and serve further amended application and statement of claim in conformity with these orders and reasons:
• amendments to the s 170NC and s 298K(2) claims against Higgins;
• granting leave to respondents to file and serve defences to further amended statement of claim by 28 July 2006; and
• adjourning the directions hearing to 11 August 2006.