Director, Fair Work Building Industry Inspectorate v Ingham [2016] FCA 328

Director, Fair Work Building Industry Inspectorate v Ingham [2016] FCA 328

Section 73(2) of the FWBI Act 2012 does not, on its terms, prevent the Director from commencing fresh proceedings concerning settled matters; it only prevents continued participation in the original proceedings. However, to the extent the new proceedings against respondents replicate matters already settled and discontinued, the proceedings are an abuse of process and unjustifiably vexatious and oppressive to those respondents, and should be stayed to that extent. Determination of the exact overlap between the previous and current proceedings requires further submissions and hearing.

Parties
Applicant: Director, Fair Work Building Industry Inspectorate; First Respondent: Jade Ingham; Second Respondent: Kane Pearson; Third Respondent: Anthony Kong; Fourth Respondent: Kevin Griffin; Fifth Respondent: Michael Myles; Sixth Respondent: Andrew Sutherlands; Seventh Respondent: Mark O'Brien; Eighth Respondent: Dennis Mitchell; Ninth Respondent: Chad Bragdon; Tenth Respondent: Edward Bland; Eleventh Respondent: Michael Ravbar; Twelfth Respondent: Duncan McAllister; Thirteenth Respondent: Benjamin Sheeran; Fourteenth Respondent: Wayne Scobie; Fifteenth Respondent: Mace Griffin; Sixteenth Respondent: John Cummins; Seventeenth Respondent: Ryan Whakaruru; Eighteenth Respondent: Lindsay Stohr; Nineteenth Respondent: Aaron Kelly; Twentieth Respondent: Antonio Floro; Twenty First Respondent: Dylan Stevens; Twenty Second Respondent: Construction, Forestry, Mining and Energy Union
Jurisdiction
Australia
Judgment Date
07 April 2016
Procedural Posture
Civil / Interlocutory Application – Summary Judgment and Abuse of Process Arguments
Outcome
Interlocutory application adjourned for further hearing; directions made for further submissions and identification of overlap between proceedings.
Legal Topics
Statutory Interpretation, Summary Dismissal, Abuse of Process, Settlement and Discontinuance, Public Interest Powers
Employment Law Industrial Law Statutory Interpretation Summary Dismissal Abuse of Process Settlement and Discontinuance Public Interest Powers

Case Brief

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Parties

Director, Fair Work Building Industry Inspectorate

Applicant

Jade Ingham

First Respondent

Kane Pearson

Second Respondent

Anthony Kong

Third Respondent

Kevin Griffin

Fourth Respondent

Michael Myles

Fifth Respondent

Andrew Sutherlands

Sixth Respondent

Mark O'Brien

Seventh Respondent

Dennis Mitchell

Eighth Respondent

Chad Bragdon

Ninth Respondent

Edward Bland

Tenth Respondent

Michael Ravbar

Eleventh Respondent

Duncan McAllister

Twelfth Respondent

Benjamin Sheeran

Thirteenth Respondent

Wayne Scobie

Fourteenth Respondent

Mace Griffin

Fifteenth Respondent

John Cummins

Sixteenth Respondent

Ryan Whakaruru

Seventeenth Respondent

Lindsay Stohr

Eighteenth Respondent

Aaron Kelly

Nineteenth Respondent

Antonio Floro

Twentieth Respondent

Dylan Stevens

Twenty First Respondent

Construction, Forestry, Mining and Energy Union

Twenty Second Respondent

Procedural Posture

Civil / Interlocutory Application – Summary Judgment and Abuse of Process Arguments

Legal Issues

  1. 1 Whether s 73(2) of the Fair Work (Building Industry) Act 2012 (Cth) prevents the Director from commencing a new proceeding on settled matters
  2. 2 Whether there is an existing 'matter' for the purposes of jurisdiction
  3. 3 Whether the current proceeding is an abuse of process

Ratio Decidendi

Section 73(2) of the FWBI Act 2012 does not, on its terms, prevent the Director from commencing fresh proceedings concerning settled matters; it only prevents continued participation in the original proceedings. However, to the extent the new proceedings against respondents replicate matters already settled and discontinued, the proceedings are an abuse of process and unjustifiably vexatious and oppressive to those respondents, and should be stayed to that extent. Determination of the exact overlap between the previous and current proceedings requires further submissions and hearing.

Court Disposition

Interlocutory application adjourned for further hearing; directions made for further submissions and identification of overlap between proceedings.

Orders

  • The respondents' interlocutory application be listed for further hearing on 4 May 2016 at 10.15 am.
  • The parties are to further consider which matters the subject of this proceeding were also the subject of proceeding QUD 729/2013 and are to attempt to reach an agreed position by 4 pm on 18 April 2016.