Australian Building and Construction Commissioner v Ingham [2017] FCAFC 3

Australian Building and Construction Commissioner v Ingham [2017] FCAFC 3

Section 73(2) of the Fair Work (Building Industry) Act 2012 (Cth) does not prohibit the Director from commencing a new proceeding after settlement and discontinuance of a previous proceeding. The new proceeding is not an abuse of process as the Director was not a party to the settlement and is not bound to the terms thereof by the statute.

Jurisdiction
Australia
Judgment Date
19 January 2017
Procedural Posture
Appeal / Judgment
Outcome
appeal allowed; cross-appeal dismissed
Legal Topics
['statutory Interpretation' 'abuse of Process' 'settlement in Legal Proceedings' 'regulator Action Post Settlement']
['employment Law' 'industrial Relations'] ['statutory Interpretation' 'abuse of Process' 'settlement in Legal Proceedings' 'regulator Action Post Settlement']

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Procedural Posture

Appeal / Judgment

Legal Issues

  1. 1 ['Whether s 73(2) of the Fair Work (Building Industry) Act 2012 (Cth) prohibits the Director from commencing a new proceeding after settlement and discontinuance of a previous proceeding' "Whether the court's jurisdiction continues after settlement between the parties to the original proceeding" 'Whether the new proceeding is an abuse of process given the prior settlement']

Ratio Decidendi

Section 73(2) of the Fair Work (Building Industry) Act 2012 (Cth) does not prohibit the Director from commencing a new proceeding after settlement and discontinuance of a previous proceeding. The new proceeding is not an abuse of process as the Director was not a party to the settlement and is not bound to the terms thereof by the statute.

Court Disposition

appeal allowed; cross-appeal dismissed

Orders

  • ['The appeal be allowed.' 'Orders 1 – 7 made by the primary Judge on 2 June 2016 be set aside.' "The respondents' Interlocutory Application filed on 3 August 2015 be dismissed." 'The cross-appeal be dismissed.']