On Thursday 2 November 2006, Le Miere J of the WA Supreme Court accepted a proposed settlement between Leighton Contractors Pty Ltd, Kumagai Gumi Co Ltd, Joseph McDonald and the CFMEU. The terms of the settlement are that the respondents will pay agreed penalties of $150,000 plus their legal costs and discontinue any further strike action on the Perth to Mandurah railway project.
The ABC Commissioner made submissions to the Supreme Court that $150,000 was not a sufficient penalty to deter Joseph McDonald and the CFMEU from future contraventions and, having regard to the circumstances of this case, and the number of contraventions involved, a penalty in the range of $250,000 - $500,000 was appropriate. Le Miere J ruled that he placed considerable weight on the opinions of the parties and also took account of the short duration of the stoppages. His Honour affirmed the total penalties of $150,000 were appropriate.
The Court ordered that the CFMEU pay a penalty of $90,000, the CFMEU (WA) pay a penalty of $30,000 and that Joseph McDonald pay a penalty of $30,000. All penalties are payable to the plaintiffs under s.49(5) of the Building and Construction Industry Improvement Act 2005.
Le Miere J. ruled:
"Penalties in the agreed amounts are proportionate to the culpability and seriousness of the defendants' contravening conduct and are sufficiently large to mark the seriousness of the offending conduct. The penalties should be sufficiently high to deter repetition by the contravener and by others who might be tempted to engage in contravening conduct."
The damages claim by Leighton was settled on 7 May 2009 following private mediation. The Supreme Court proceedings have now been discontinued.
On 24 February 2006, Leighton Contractors Pty Ltd and Kumagai Gumi Co Ltd (LKJV) applied to the Supreme Court of Western Australia for an urgent interlocutory injunction to prevent further industrial action on the Perth-Mandurah railway project.
The ABCC intervened in this proceeding under s.71 of the BCII Act in the public interest. An interim injunction was granted on 24 February which restrained the CFMEU, the CFMEU W and Joseph McDonald from participating as a principal in, or an accessory to, unlawful industrial action.
On 3 March 2006, Le Miere J heard an application to extend the interlocutory injunction. On 16 March 2006, His Honour decided to continue the injunction to restrain the defendants from participating in unlawful industrial action. His Honour found that there was a history of unlawful industrial action on the Perth – Mandurah project and that such action had caused or exposed the plaintiffs LKJV to the risk of , substantial financial loss and had interfered with, or had the potential to interfere with, the expeditious carrying out of an important public project.
His Honour noted that the injunctions which were sought did no more than restrain the defendants from engaging in unlawful conduct. Le Miere J ordered that the injunction will remain in force until trial or further order, in the same terms as the interim injunction granted on 24 February 2006. Le Miere J ruled that the question of damages or compensation could not be determined until the final hearing.
On 26 September, 2006 Le Miere J heard an application by the CFMEU and CFMEU W for a stay of proceedings on the grounds that they might wish to call to give evidence some of the 107 respondents in the matter brought in the Federal Court by an officer of the ABCC (Hadgkiss v Aldin & Ors). His Honour was not satisfied that a stay should be granted of the Supreme Court proceedings pending the outcome of the Federal Court proceedings. He dismissed the application.