CFMEU v Honourable Senior Deputy President Harrison a member of the AIRC & Ors

The applicant, the Construction, Forestry, Mining and Energy Union (CFMEU), sought judicial review of a decision made by the Honourable Senior Deputy President Harrison of the Australian Industrial Relations Commission (AIRC). The dispute concerned the AIRC's refusal to grant the CFMEU leave to appeal against a decision of a single Commissioner, which had dismissed an application by the CFMEU for an order to stop work. The CFMEU contended that the Senior Deputy President had erred in law by failing to consider relevant factors when determining whether to grant leave to appeal.

The central legal issue before the court was whether the Senior Deputy President had exercised her discretion to refuse leave to appeal according to law. Specifically, the court had to determine if the Senior Deputy President had failed to take into account relevant considerations or had taken into account irrelevant considerations when assessing the prospects of success of the proposed appeal and the overall merits of the case. The CFMEU argued that the Senior Deputy President had placed undue emphasis on the fact that the appeal would involve a review of factual findings, to the exclusion of other relevant factors.

Kiefel J found that the Senior Deputy President had not erred in law. Her Honour held that the Senior Deputy President had properly considered the relevant factors in exercising her discretion, including the nature of the appeal, the prospects of success, and the overall merits of the case. The fact that the appeal involved a review of factual findings was a relevant consideration, and the Senior Deputy President was entitled to give it weight. The court concluded that the Senior Deputy President's decision to refuse leave to appeal was a valid exercise of her discretion.