John Holland Pty Ltd v Construction, Forestry, Mining and Energy Union [2009] FCA 1128

John Holland Pty Ltd v Construction, Forestry, Mining and Energy Union [2009] FCA 1128

The Union's pleaded collateral challenge to the Minister's declaration under s 100 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) was not clearly untenable or unarguable. It had not been clearly and authoritatively established in Australia that a collateral challenge of this kind, particularly in civil proceedings and where the challenge goes to an essential pre-condition to statutory power, is limited to patent defects on the face of the declaration. The pleading therefore should not be struck out.

Jurisdiction
Australia
Judgment Date
02 October 2009
Procedural Posture
Strike Out Application in Fair Work Division Proceedings Seeking Injunctions, Pecuniary Penalties and Damages for Trespass / Notice of Motion by the Applicant to Strike Out Part of the Respondents' Defence and Cross Claim
Outcome
The applicant's notice of motion was dismissed.
Legal Topics
['strike Out Application' 'collateral Challenge' 'ministerial Declaration Under S 100 of the Safety, Rehabilitation and Compensation Act 1988 (cth)' 'non Commonwealth Licensee' 'right of Entry']
['practice and Procedure' 'workplace Relations' 'occupational Health and Safety' 'administrative Law'] ['strike Out Application' 'collateral Challenge' 'ministerial Declaration Under S 100 of the Safety, Rehabilitation and Compensation Act 1988 (cth)' 'non Commonwealth Licensee' 'right of Entry']

Case Brief

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Procedural Posture

Strike Out Application in Fair Work Division Proceedings Seeking Injunctions, Pecuniary Penalties and Damages for Trespass / Notice of Motion by the Applicant to Strike Out Part of the Respondents' Defence and Cross Claim

Legal Issues

  1. 1 ["Whether the respondents' pleading challenging the validity of the Minister's declaration under s 100 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) should be struck out as an impermissible collateral challenge." "Whether a collateral challenge in these proceedings is limited to patent defects appearing on the face of the Minister's declaration." "Whether the respondents' pleaded challenge was clearly untenable or unarguable for the purposes of a strike out application."]

Ratio Decidendi

The Union's pleaded collateral challenge to the Minister's declaration under s 100 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) was not clearly untenable or unarguable. It had not been clearly and authoritatively established in Australia that a collateral challenge of this kind, particularly in civil proceedings and where the challenge goes to an essential pre-condition to statutory power, is limited to patent defects on the face of the declaration. The pleading therefore should not be struck out.

Court Disposition

The applicant's notice of motion was dismissed.

Orders

  • ['The notice of motion filed by John Holland on 18 September 2009 be dismissed.']