Construction Forestry Mining and Energy Union v Director of the Fair Work Building Industry Inspectorate [2016] HCA 41

HIGH COURT OF AUSTRALIA

NETTLE J

CONSTRUCTION FORESTRY MINING AND ENERGY UNION PLAINTIFF

AND

DIRECTOR OF THE FAIR WORK BUILDING INDUSTRY INSPECTORATE & ANOR DEFENDANTS

Construction Forestry Mining and Energy Union v Director of the Fair Work Building Industry Inspectorate [2016] HCA 41 28 October 2016 A37/2016

ORDER

The plaintiff's application for an order to show cause, filed on 12 August 2016, be dismissed, pursuant to r 25.03.3(a) of the High Court Rules 2004 (Cth).

Representation

M L Abbott QC with R F Gray for the plaintiff (instructed by Lieschke & Weatherill Lawyers)

N J Williams SC with B K Lim for the first defendant (instructed by Australian Government Solicitor)

Submitting appearance for the second defendant

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Construction Forestry Mining and Energy Union v Director of the Fair Work Building Industry Inspectorate

Administrative law – Constitutional writs – Where plaintiff made admissions in proceedings in Federal Court of Australia that, because of operation of s 793 of Fair Work Act 2009 (Cth), it could be taken to have contravened s 500 of Act by conduct of its officers – Where, after judgment reserved in proceedings in Federal Court, plaintiff applied for leave to file application for leave to withdraw admissions and amend pleadings – Where leave refused – Whether decision to refuse leave amenable to appeal – Whether decision to refuse leave vitiated by jurisdictional error because of judge's failure to reach concluded view as to operation of s 793 – Whether final judgment imposing penalties for contraventions of s 500 on basis of admissions vitiated by jurisdictional error – Whether plaintiff denied procedural fairness.

Practice and procedure – High Court of Australia – Original jurisdiction – Constitutional writs – Where plaintiff applied for order to show cause why relief in the nature of prohibition, mandamus and certiorari should not be granted – Where first defendant moved on summons seeking order pursuant to r 25.03.3(a) of High Court Rules 2004 (Cth) that application be dismissed – Considerations relevant to exercise of discretion to dismiss application – Availability of constitutional writs where Court's original jurisdiction invoked before exhaustion of statutory rights of appeal.