FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Arend v Construction Forestry Maritime Employees Union [2025] FedCFamC2G 1646
Keep reading for free
Create a free CaseChat account to read Arend v Construction Forestry Maritime Employees Union and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2025] FedCFamC2G 1646
- Decision Date
CaseChat Overview and Summary
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
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.