Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (Bruce Highway Separate Question Case) [2018] FCA 771

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (Bruce Highway Separate Question Case) [2018] FCA 771

Although all parties supported separate determination and the proposed questions were short, agreed facts had been identified, and a negative answer would dispose of the proceeding, the order was refused because it risked fragmentation of the trial process into three stages and protraction of the proceedings. The parties could attempt to agree the remaining liability issues before a liability trial on a contingent basis, reducing the need for a separate question. On balance, it was not appropriate to depart from the ordinary course.

Jurisdiction
Australia
Judgment Date
28 May 2018
Procedural Posture
Civil Penalty Proceeding Alleging Contraventions of the Fair Work Act 2009 (cth) / Interlocutory Application for Separate Determination of Questions of Law Under R 30.01 of the Federal Court Rules 2011 (cth)
Outcome
Interlocutory application refused.
Legal Topics
['separate Question' 'state or Territory OHS Right' 'right of Entry' 'civil Penalties' 'interlocutory Injunctions']
['practice and Procedure' 'employment and Industrial Relations' 'work Health and Safety'] ['separate Question' 'state or Territory OHS Right' 'right of Entry' 'civil Penalties' 'interlocutory Injunctions']

Case Brief

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Procedural Posture

Civil Penalty Proceeding Alleging Contraventions of the Fair Work Act 2009 (cth) / Interlocutory Application for Separate Determination of Questions of Law Under R 30.01 of the Federal Court Rules 2011 (cth)

Legal Issues

  1. 1 ['Whether the proposed questions of law concerning entries under s 81(3) of the Work Health and Safety Act 2011 (Qld) should be heard and determined separately under r 30.01 of the Federal Court Rules 2011 (Cth).' 'Whether entry under s 81(3) of the Work Health and Safety Act 2011 (Qld) was the exercise of a "State or Territory OHS right" within the meaning of s 494(2) of the Fair Work Act 2009 (Cth).']

Ratio Decidendi

Although all parties supported separate determination and the proposed questions were short, agreed facts had been identified, and a negative answer would dispose of the proceeding, the order was refused because it risked fragmentation of the trial process into three stages and protraction of the proceedings. The parties could attempt to agree the remaining liability issues before a liability trial on a contingent basis, reducing the need for a separate question. On balance, it was not appropriate to depart from the ordinary course.

Court Disposition

Interlocutory application refused.

Orders

  • ['The interlocutory application filed on 2 May 2018 is refused.']