Arend v Construction Forestry Maritime Employees Union

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Arend v Construction Forestry Maritime Employees Union [2025] FedCFamC2G 1646

File number(s): MLG 564 of 2025
Judgment of: JUDGE FARY
Date of judgment: 15 October 2025
Catchwords: FAIR WORK – interlocutory application – review of registrar’s decision not to enter default judgment against respondent – review dismissed - respondent sought orders striking out various parts of the statement of claim – respondent sought orders to summarily dismiss one of the claims in the statement of claim – some paragraphs in the statement of claim to be struck out.
Legislation:

Fair Work Act 2009 (Cth) ss 340, 341(1), 360(1), 361, 539(2), 557A, 793, Pt 3-1

Fair Work (Registered Organisations) Act 2009 (Cth) ss 323C, 323K

Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 143, 190

Federal Court of Australia Act 1976 (Cth) ss 31A, 37M

Workplace Injury Rehabilitation and Compensation Act 2013 (Vic)

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) rr 13.01(1), 13.15, 23.08

Federal Court Rules 2021 (Cth) r 16.21

Cases cited:

Alam v National Australia Bank Limited (2021) 393 ALR 629

Allstate Life Insurance Co v Australia & NZ Banking Group Ltd [1994] FCA 636; 217 ALR 226

Australian Building and Construction Commissioner v Hall (2018) 261 FCR 347

Australian Securities and Investments Commission v Cassimatis (2013) 220 FCR 256

Board of Bendigo Regional Institute of Technical and Further Education v Barclay & Anor (2012) 248 CLR 500

Cigarette & Gift Warehouse Pty Ltd v Whelan (2019) 268 FCR 46

Dey v Victorian Railways Commissioners (1949) 78 CLR 62

Elisha v Vision Australia Ltd [2024] HCA 50

Esso Australia Pty Ltd v Australian Workers’ Union (2017) 263 CLR 551

Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186

Gunawardena v Boeing Aerostructures Australia Pty Ltd (Strike out Application) [2024] FCA 1206

Imobilari Pty Ltd v Opes Prime Stockbroking Ltd (2008) 252 ALR 41

Kernel Holdings Pty Ltd v Rothmans of Pall Mall (Australia) Pty Ltd (1991) 217 ALR 171

KTC v David [2022] FCAFC 60

Leach v Burston [2022] FCA 87

Messenger v Commonwealth of Australia (Represented by the Department of Finance) [2022] FCA 677

Murdock v Virgin Australia Airlines Pty Ltd (No 2) [2023] FCA 569

Polar Aviation Pty Ltd v Civil Aviation Safety Authority and Ors [2012] FCAFC 97; 203 FCR 325

Qantas Airways Ltd v Transport Workers’ Union of Australia (2022) 402 ALR 1

Quach v Commissioner of Taxation [2019] FCA 1729

Sabapathy v Jetstar Airways (2021) 283 FCR 348

Serpanos v Commonwealth of Australia [2022] FCA 1226

Shea v TRUenergy Services Pty Ltd (No 6) (2014) 314 ALR 346

Spencer v Commonwealth of Australia (2010) 241 CLR 118

Trade Practices Commission v Australian Iron & Steel Pty Ltd (1990) 22 FCR 305

Trade Practices Commission v Pioneer Concrete (Qld) Pty Limited (1994) 52 FCR 164

Division: Division 2 General Federal Law
Number of paragraphs: 71
Date of last submission/s: 22 September 2025
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Details
Case
[2025] FedCFamC2G 1646
Decision Date

CaseChat Overview and Summary

The case of Arend v Construction Forestry Maritime Employees Union involved an interlocutory application to review a registrar’s decision not to enter a default judgment against the respondent. The applicant sought orders to strike out various parts of the statement of claim and to summarily dismiss one of the claims. The legal issues before the court included whether the applicant had a reasonable prospect of successfully prosecuting the proceeding or part of the proceeding, and whether certain claims should be struck out or summarily dismissed.

The court examined the sufficiency of the statement of claim and the merits of the claims. It determined that some parts of the statement of claim were objectionable, and that striking out certain paragraphs was necessary to avoid confusion and incompleteness. The court held that while some of the loss and damage sought to be recovered might be barred by the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), this could be more efficiently addressed through evidence and submissions rather than in pleadings. The court also noted that the issue of whether the applicant’s claims should be summarily dismissed was premature, as it depended on the outcome of factual and legal disputes.

Ultimately, the court decided to strike out critical parts of the two causes of action pleaded by the applicant, namely the claims under Part 3-1 (General Protection) and the claims for breach of contract. The court found that the applicant had a right to replead and address the deficiencies identified in the statement of claim. The court did not dismiss the claims summarily, as it was not satisfied that the applicant had no reasonable prospect of success. The court also noted that the contention that the applicant’s claims ought to be summarily dismissed because she had had three opportunities to frame those claims did not properly consider the separate roles of the initiating process, statement of claim, and particulars.

The court will hear the parties in respect of costs.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Having determined to strike out paragraph 36 of the SOC, it is unnecessary for me to consider the further point that some of the loss and damage sought to be recovered is barred by the Workplace Injury Rehabilitation and Compensation Act2013 (Vic), because a serious injury certificate is required. Until the question of the terms of contract and breach are addressed, it would be speculative to attempt to address the complaint in relation to the pleading of the claim for non-economic loss.[43] To the extent that there is merit in this ground, it is a matter that can be pleaded by way of defence. It strikes me that the issue is likely to be more efficiently addressed by way of evidence and submissions, rather than in a pleading fight.[43] Compare Elisha v Vision Australia Ltd [2024] HCA 50.CONCLUSION As set out above, I have decided to strike out critical parts of the two causes of action pleaded by the Applicant in the SOC, namely the Applicant’s claims under Part 3-1 (General Protection) and the Applicant’s claims for breach of contract. While not all of the constituent paragraphs of the two causes of action are objectionable (for example, most of paragraphs 1 to 25), the “residue would be confusing” and leave incomplete causes of action.[44][44] Trade Practices Commission v Australian Iron & Steel Pty Ltd (1990) 22 FCR 305 at 323. I am not satisfied that the Applicant “has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding”. Accordingly, I shall strike parts of the SOC out on the basis that the Applicant have a right to replead and to address the deficiencies identified above. The contention that the Applicant’s claims ought to be summarily dismissed because she has had “three opportunities to frame those claims”, elides the separate nature and roles of the initiating process, statement of claim and particulars. I will hear the parties in respect of costs.

Ratio Decidendi

Legal Principle Established

In Spencer v Commonwealth of Australia,[23] French CJ and Gummow J said in relation to 31A of the Federal Court Act (which is expressed in similar terms to s 143 of the FCFCOA Act):[24]The exercise of powers to summarily terminate proceedings must always be attended with caution. That is so whether such disposition is sought on the basis that the pleadings fail to disclose a reasonable cause of action or on the basis that the action is frivolous or vexatious or an abuse of process. …Section 31A(2) requires a practical judgment by the Federal Court as to whether the applicant has more than a ‘fanciful’ prospect of success. That may be a judgment of law or of fact, or of mixed law and fact. Where there are factual issues capable of being disputed and in dispute, summary dismissal should not be awarded to the respondent simply because the Court has formed the view that the applicant is unlikely to succeed on the factual issue. Where the success of a proceeding depends upon propositions of law apparently precluded by existing authority, that may not always be the end of the matter. Existing authority may be overruled, qualified or further explained. Summary processes must not be used to stultify the development of the law. But where the success of proceedings is critically dependent upon a proposition of law which would contradict a binding decision of this Court, the court hearing the application under s 31A could justifiably conclude that the proceedings had no reasonable prospect of success.Where an application under s 31A requires consideration of apparently complex questions of fact, then the caution uttered by Lord Hope is relevant. The importance of those considerations is amplified if the case involves resolution of issues of law and fact, or mixed law and fact.(Footnotes omitted)CONSIDERATION[23] (2010) 241 CLR 118.[24] At [24]-[26].Claims under Part 3-1 (General Protection) The Applicant’s claims under Part 3-1 of the FW Act are said to be founded upon the exercise by the Applicant of a workplace right (the “Irving Complaint and/or Inquiry”). The Applicant’s claims under Part 3-1 of the FW Act alleged two instances of adverse action (the “Irving Unfair Conduct” and the “Summary Dismissal Adverse Action”). The Applicant alleges that:(a)the “Summary Dismissal Adverse Action” was taken by the CFMEU because of the exercise by the Applicant of making the “Irving Complaint and/or Inquiry” in contravention of s 340(1)(a) of the FW Act; and(b)the “Irving Unfair Conduct” was taken by the CFMEU because of the exercise by the Applicant of the making of the “Irving Complaint and/or Inquiry” in contravention of s 340(1)(a) of the FW Act. Section 340(1) of the FW Act provides that a person must not take adverse action against another person for various reasons relating to a workplace right. Section 340(1) of the FW Act is a civil remedy provision.Exercise of a workplace right General protections contained in the FW Act are designed to safeguard employees from being subject to adverse action for exercising a workplace right or because of a protected attribute.