B.M.D. Constructions Pty Ltd v Construction, Forestry and Maritime Employees Union (No 3)

B.M.D. Constructions Pty Ltd v Construction, Forestry and Maritime Employees Union (No 3) [2026] FCA 169 is a Federal Court interlocutory decision about pleadings and abuse of process. It is not the final trial decision on whether the underlying workplace, competition and tort allegations were proved.

B.M.D. sought to strike out parts of the CFMEU's amended defence. The impugned paragraphs were non-admissions where the union said it did not know whether certain factual allegations were true. B.M.D. argued that the union had enough material available to plead more directly, including body-worn camera footage, CCTV, handwritten notices of entry and other information. The Court granted the interlocutory application and struck out the identified paragraphs as an abuse of process.

The dispute arose out of the Centenary Bridge Upgrade Project in Queensland. The judgment says the project was awarded to B.M.D. and Georgiou Group Pty Ltd in an unincorporated joint venture, and that B.M.D. was the principal contractor under the Work Health and Safety Regulation 2011 (Qld). The project included worksites on both sides of the Brisbane River, including the Southern Abutment Site at Jindalee and the Northern Abutment Site at Kenmore. The main entrance to the Southern Abutment Site was off Sinnamon Road.

B.M.D. said that visitors to the worksites had to undertake an induction process, sign a visitor register and comply with site requirements under its visitor entry policy. It claimed that this policy constituted an occupational health and safety requirement for the purposes of s 499 of the Fair Work Act. B.M.D. also said it had authorised particular personnel on the project to require visitors to comply with that policy.

In the primary proceeding, B.M.D. alleged that between at least 23 April 2024 and 14 May 2024 the CFMEU had a policy that its officials would not undertake site inductions or sign site registers when exercising rights of entry under the Fair Work Act or the Work Health and Safety Act 2011 (Qld). It alleged that various union officials attended the project site on different occasions and failed to comply with the visitor entry policy. It also alleged that on 14 May 2024 various officials participated in a blockade at the Southern Abutment Site.

The relief sought in the main proceeding included declarations, pecuniary penalties, an injunction, compensation, damages and costs. The judgment also records that interlocutory orders made by Logan J on 23 May 2024 remained in place, including restraints on certain conduct with respect to the project and points of entry.

The decision at [2026] FCA 169 did not determine whether the CFMEU or the individual respondents had actually contravened the Fair Work Act, the Competition and Consumer Act, or committed the alleged torts. Instead, it dealt with a narrower but important procedural question: whether the CFMEU's amended defence properly responded to B.M.D.'s allegations.

The challenged paragraphs of the defence were non-admissions. In practical terms, the union was saying that it did not admit the allegations because it did not know whether they were true. B.M.D. said that was not good enough in the circumstances. It argued that the union had access to enough information to plead more responsively and that the vague pleading made it impossible to identify the real issues in dispute.

The Court's orders identify the paragraphs struck out: [17], [18](c), [19], [20], [26], [27], [28](b), [29], [30], [38], [39], [45] to [47], [49] to [51], [61] and [73] of the first respondent's amended defence. The orders state that they were struck out under rule 16.21(1)(f) of the Federal Court Rules 2011 (Cth) on the basis that they were otherwise an abuse of process, and alternatively under the Court's inherent jurisdiction.

A major feature of the application was B.M.D.'s argument that the CFMEU had access to substantial material and should have engaged with it before pleading. The judgment records that B.M.D. relied on an amended statement of claim, the amended defence, several affidavits from Mr Damian Hegarty, an affidavit from Mr Gary Grant, and written submissions.

According to the reasons, Mr Hegarty deposed to having watched body-worn camera footage of individuals attending the project site on 23 and 29 April 2024, and CCTV footage from 29 April 2024. Copies of that footage had been annexed in other proceedings and were before the Court through the affidavit material. Mr Hegarty also deposed to having seen and annexed handwritten notices of entry provided on 23 and 29 April 2024 by various respondents when attending the site.

Mr Grant deposed to having watched body-worn camera footage from 23 April 2024 and CCTV footage of CFMEU officials attending the project site on 14 May 2024. Mr Hegarty's later affidavits also dealt with CCTV footage from 14 May 2024 and correspondence with the respondents' solicitors about the alleged failure to plead responsively.

B.M.D. said the union also had its own footage of the incidents and report-back materials from officials. There was a dispute about what exactly counted as report-back materials. The reasons say it was unnecessary to determine the full extent of those materials for the purpose of the hearing, but that they could at least be accepted as including photographs and video footage.

The CFMEU responded that the footage was difficult to understand without commentary and might not be comprehensive, that a handwritten notice of entry did not conclusively prove that the right of entry was exercised in the way alleged, and that the officers themselves denied the conduct allegations. It also argued that those with first-hand knowledge were entitled to claim penalty privilege.

The legal issue was whether the CFMEU could maintain non-admissions based on lack of knowledge, or whether those responses should be struck out as an abuse of process. The Court had to consider the proper standard for responsive pleading by a corporate party in civil proceedings, including whether first-hand knowledge was necessary and whether the party was required to make inquiries and evaluate material already available to it.

The reasons reproduced here show that the Court approached the issue against the broader procedural framework in the Federal Court. The parties accepted that the Court had power to strike out pleadings as an abuse of process under rule 16.21(1)(f) and in its inherent jurisdiction. The reasons also refer to the overarching purpose in ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth), namely the quick, inexpensive and efficient resolution of disputes.

B.M.D. relied on the proposition that pleadings should identify both what is in issue and what is not in issue. It argued that the union's non-admissions created forensic unfairness by obscuring the real disputes. The CFMEU argued that it did not have adequate knowledge, that it was not required to record factual findings based on untested evidence at an interlocutory stage, and that some allegations were too rolled-up to answer properly.

The Court granted B.M.D.'s interlocutory application. Meagher J ordered that the identified paragraphs of the CFMEU's amended defence be struck out as an abuse of process under rule 16.21(1)(f), and alternatively under the Court's inherent jurisdiction. The question of costs was left to written submissions to be determined on the papers.

The catchwords and the reproduced reasons make the result clear. The Court considered that other information available to the first respondent would allow it to plead responsively, and that the issues included whether the first respondent was required to have first-hand knowledge and whether it was required to make inquiries to inform itself in order to plead responsively. The application was granted.

The reproduced reasons also show the Court accepted the general principles that abuse of process is not confined to closed categories and that proper pleadings are important to the efficient resolution of disputes. The text available here does not include the full end of the reasons, so it does not set out every detailed step in the Court's analysis of each impugned paragraph. But the orders and the reasoning that is reproduced are enough to show that the Court rejected the CFMEU's attempt to rely on broad non-admissions in the circumstances of this case.

For businesses, especially in construction and other controlled-site environments, this case is a reminder that site access disputes are often evidence-heavy. A written policy matters, but the surrounding records matter just as much. If your business expects visitors to complete inductions, sign in, follow safety directions or use designated entry points, you should be able to show what the rule was, how it was communicated, who enforced it and what happened on each relevant occasion.

The case also shows that litigation strategy starts early. B.M.D. did not just rely on its policy in the abstract. It pointed to footage, notices of entry, correspondence and other materials to argue that the other side should plead more clearly. That can be commercially important. If the issues are narrowed early, a business may reduce uncertainty, focus witness preparation and avoid some of the cost that comes from vague or shifting allegations.

There is also an important caution. The judgment refers to rights of entry under workplace and safety legislation. Businesses should not read this case as authority that any internal site rule can displace statutory rights. The practical lesson is narrower: make sure your site-entry policy is legally sound, tied to genuine safety or operational requirements, and applied consistently.

Finally, if your business becomes involved in litigation, do not treat pleadings as a box-ticking exercise. Courts expect parties to help identify what is genuinely disputed. That means gathering records early, preserving footage, checking what internal materials exist, and making sensible inquiries before filing or responding to a claim.

The judgment is dated 26 February 2026. The hearing date recorded in the reasons is 19 February 2025. The orders also note a timetable for written costs submissions in March 2026. The decision is an interlocutory ruling in an ongoing proceeding, not the final determination of the substantive claims.

Because the reproduced reasons appear to end part-way through the Court's analysis, this page focuses on what can be stated confidently from the orders, catchwords, background and the reasoning that is available.