Construction, Forestry, Mining and Energy Union v Australian Building and Construction Commissioner

The Construction, Forestry, Mining and Energy Union was before the Federal Court of Australia in a dispute against the Australian Building and Construction Commissioner. The Union sought to challenge the Commissioner's imposition of a penalty and the appropriateness of the penalty amount. Additionally, the Union challenged the court's application of natural justice in the proceedings.

The primary legal issues were whether the court had the power to order a third party not to indemnify the Commissioner against his liability for the penalty, and whether the primary judge's discretion in determining the penalty was misapplied. The Union also argued that the Commissioner was denied natural justice by the extended use of a financial report without warning and that the primary judge was entitled to infer a litigation strategy from previous proceedings.

The Court held that the primary judge had the power to order a third party not to indemnify the Commissioner, but the penalty was set aside as the primary judge's discretion was misapplied. The Court also found that the Union was not denied natural justice by the extended use of the financial report and that the primary judge was entitled to infer a litigation strategy from previous proceedings.

The appeal was allowed in part. Order 13 made by the Court on 13 May 2016 was set aside, and the appeal was otherwise dismissed. The entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.