Construction, Forestry, Maritime, Mining and Energy Union v One Key Workforce Pty Ltd [2020] FCAFC 27

Construction, Forestry, Maritime, Mining and Energy Union v One Key Workforce Pty Ltd [2020] FCAFC 27

The primary judge's discretion did not miscarry. Once the Full Court set aside the December 2017 order dealing with the trust monies and remitted the question, the issue was to be determined afresh in light of OKW's liquidation, the interests of all affected employees and creditors, the public law nature of the proceeding, and the unresolved concerns about preferring CFMMEU members and the possible operation of s 596AB of the Corporations Act 2001 (Cth). Those were relevant considerations, and no House v The King error was shown. Leave to appeal was granted because the order was practically final and sufficiently doubtful, but the appeal was dismissed.

Jurisdiction
Australia
Judgment Date
28 February 2020
Procedural Posture
Application for Leave to Appeal and Appeal / Full Court Appeal From Orders on Remitter Concerning Disbursement of Trust Monies
Outcome
Leave to appeal granted; applications to adduce further evidence granted; appeal dismissed; appellant ordered to pay the first respondent's costs.
Legal Topics
['distribution of Trust Monies After Enterprise Agreement Approval Quashed' 'liquidation and Employee Entitlements' 'discretionary Appellate Review' 'further Evidence on Appeal' 'potential Application of S 596 AB of the Corporations Act 2001 (cth)']
['corporations' 'practice and Procedure' 'employment and Industrial Relations'] ['distribution of Trust Monies After Enterprise Agreement Approval Quashed' 'liquidation and Employee Entitlements' 'discretionary Appellate Review' 'further Evidence on Appeal' 'potential Application of S 596 AB of the Corporations Act 2001 (cth)']

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Procedural Posture

Application for Leave to Appeal and Appeal / Full Court Appeal From Orders on Remitter Concerning Disbursement of Trust Monies

Legal Issues

  1. 1 ["Whether leave to appeal should be granted from the primary judge's order disbursing trust monies to OKW to be dealt with by its liquidators." "Whether the primary judge's exercise of discretion miscarried by having regard to the concerns expressed by the Full Court." 'Whether the primary judge erred by considering that the proceeding was not a recovery proceeding limited to CFMMEU members.' 'Whether the primary judge erred by having regard to a potential contravention of s 596AB of the Corporations Act 2001 (Cth).' 'Whether the parties should be granted leave to adduce further evidence on appeal.']

Ratio Decidendi

The primary judge's discretion did not miscarry. Once the Full Court set aside the December 2017 order dealing with the trust monies and remitted the question, the issue was to be determined afresh in light of OKW's liquidation, the interests of all affected employees and creditors, the public law nature of the proceeding, and the unresolved concerns about preferring CFMMEU members and the possible operation of s 596AB of the Corporations Act 2001 (Cth). Those were relevant considerations, and no House v The King error was shown. Leave to appeal was granted because the order was practically final and sufficiently doubtful, but the appeal was dismissed.

Court Disposition

Leave to appeal granted; applications to adduce further evidence granted; appeal dismissed; appellant ordered to pay the first respondent's costs.

Orders

  • ['Leave be granted to the applicant to appeal from the orders made on 28 February 2019 in proceeding NSD 2058/2016 and to file its notice of appeal in the form of annexure PJP4 to the affidavit of Phillip John Pasfield sworn on 14 March 2019.' 'Leave be granted to the applicant to adduce further evidence in the...