Australian Building and Construction Commissioner v O'Halloran [2021] FCAFC 185

Federal Court of Australia

Australian Building and Construction Commissioner v O'Halloran [2021] FCAFC 185 Appeal from: Application for leave to appeal: Australian Building and Construction Commissioner v O'Halloran [2020] FCA 1291

File number: QUD 294 of 2020

Judgment of: LOGAN, KERR AND WIGNEY JJ

Date of judgment: 22 October 2021

Catchwords: PRACTICE AND PROCEDURE – application for leave to appeal – civil penalty proceedings – where decision of primary judge is interlocutory in nature – where grant of leave would result in delay of the proceedings – where applicant Commissioner could have raised issue in respect of which leave to appeal was sought at earlier case management hearing – where issue raised by Commissioner only at commencement of trail Held: application for leave to appeal dismissed PRACTICE AND PROCEDURE – application for leave to appeal – civil penalty proceedings – whether the appeal has merit – where individual respondents claimed and reserved in defence right to claim privilege against self-exposure to civil penalties and denied each allegation in the Commissioner's statement of claim – where primary judge ordered that individual respondents electing to waive the privilege were at liberty to file and serve amended defence at close of the Commissioner's case – consideration of Australian Securities and Investments Commission v Mining Projects Group Limited (2007) 164 FCR 32 – consideration of Inland Revenue Commissioners v Jackson [1960] 2 WLR 873