Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (Bruce Highway Separate Question Case)

The case involves an application to the Federal Court of Australia by the Australian Building and Construction Commissioner against the Construction, Forestry, Maritime, Mining and Energy Union, along with several other respondents, concerning separate questions of law arising from penalty proceedings. The Commissioner sought an order for these questions of law to be heard and determined separately from the other issues in the case, a request supported by all parties. The primary concern of the court was whether it should grant the application to bifurcate the trial into separate hearings for questions of law and liability.

The court had to weigh the potential benefits of a separate trial against the risks of further fragmentation of the proceedings and the possibility of additional appeals. The Commissioner argued that if the questions of law were resolved negatively, the proceedings would be dismissed, potentially saving time. However, the court needed to consider the broader implications, including the risk of extended litigation and appeals. The court also considered the parties' agreement that they might resolve remaining issues through mediation, potentially shortening the trial.

The court ultimately decided against the application for a separate trial. It referenced the cautionary stance taken by Kirby, Callinan, and Gaudron JJ in Tepko Pty Ltd v Water Board, emphasizing the often illusory benefits of trials of issues and the additional appeals a split trial might provoke. The court found that the utility, economy, and fairness of a separate trial were not beyond question. The court also noted the respondents' commitment not to appeal the decision on the separate questions, but this did not sway the decision. The court concluded that the potential for fragmentation and additional appeals outweighed the benefits of a separate trial.

The court refused the interlocutory application filed on 2 May 2018, with the refusal being noted in accordance with Rule 39.32 of the Federal Court Rules 2011.