Office of the Australian Building and Construction Commissioner

Background facts

• On 24 January 2006, a solicitor, Ms Joanne Boots, of Boots & Co lawyers, attended with her client, Mr Michael Bonan, at an examination to be conducted pursuant to section 52 of the Building and Construction Industry Improvement Act 2005 (BCII Act).
• At the outset of the examination, Ms Boots made application to appear for her client. This was opposed by counsel for the ABCC on the basis that:
• Ms Boots had already appeared to represent a previous witness in the same investigation, and
• to permit her to appear for this witness would prejudice the investigation.
• After hearing detailed submissions from both parties, Deputy ABC Commissioner Nigel Hadgkiss made a ruling excluding Ms Boots from representing the witness at and in respect of the examination.
• The ruling relied upon previous decisions of the Federal Court concerning the exclusion of a legal representative. In particular, the ABCC relied on the following cases:
• NCA v A, B and D (1988) 18 FCR 439
• ASIC v Bell (1991) 32 FCR 517
• On 30 January 2006, Mr Hadgkiss published his written ruling which was served on Ms Boots.

Federal Court challenge

• On 17 February 2006, the ABCC was served with an application to the Federal Court (Perth registry) challenging the ruling of Mr Hadgkiss.
• On 12 October 2006, the Federal Court ruled that Mr Hadgkiss had the power to exclude a solicitor from representing a witness at an examination and there was a proper basis for him to use his discretion to exclude in this case.
• Mr Bonan filed an appeal against the judgement in the Federal Court on 4 December 2006.
• Mr Bonan’s examination has since taken place.
• On 16 May 2007 a Full Court of the Federal Court, made up of Tamberlin CJ, Stone J and Siopis, heard the argument on the issue of whether the appeal was moot. The Court reserved its decision.
• Today, the Full Court ruled that Bonan’s appeal was moot and should be permanently stayed, and the appellant pay the ABCC’s legal costs.

Details of the investigation

• On 1 October 2005, the ABC Commissioner commenced an investigation into alleged unlawful industrial action that occurred on the commercial travellers association building site located at the corner of Sherwood Court and the Esplanade, Perth CBD.