Construction, Forestry, Mining and Energy Union v Bechtel Construction (Australia) Pty Ltd

[2013] FCA 1466

FEDERAL COURT OF AUSTRALIA

Construction, Forestry, Mining and Energy Union v Bechtel Construction (Australia) Pty Ltd [2013] FCA 1466

Citation:	Construction, Forestry, Mining and Energy Union v Bechtel Construction (Australia) Pty Ltd [2013] FCA 1466
Parties:	CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION v BECHTEL CONSTRUCTION (AUSTRALIA) PTY LTD
File number:	QUD 401 of 2013
Judge:	DOWSETT J
Date of judgment:	16 August 2013

Date of hearing:					16 August 2013
Place:				Brisbane
Division:				FAIR WORK DIVISION
Category:				No catchwords
Number of paragraphs:				5
Solicitor for the Applicant:			Hall Payne Lawyers
Solicitor for the Respondent:			Norton Rose Fulbright Australia

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
FAIR WORK DIVISION	QUD 401 of 2013

BETWEEN:	CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION Applicant
AND:	BECHTEL CONSTRUCTION (AUSTRALIA) PTY LTD Respondent

JUDGE:	DOWSETT J
DATE OF ORDER:	16 AUGUST 2013
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.the matter be remitted to the Federal Circuit Court of Australia.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
FAIR WORK DIVISION	QUD 401 of 2013

BETWEEN:	CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION Applicant
AND:	BECHTEL CONSTRUCTION (AUSTRALIA) PTY LTD Respondent

JUDGE:	DOWSETT J
DATE:	16 AUGUST 2013
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. The hierarchy of courts reflects the fact that cases have varying degrees of factual and legal complexity and have varying levels of importance for the parties involved in them.  Such a hierarchy is generally structured upon the basis that where issues are less complex, whether they be factual or legal, and/or where the consequences for the parties are less, rather than more significant, the case will generally be heard in a lower court, designed to facilitate the rapid disposition of substantial numbers of smaller cases.  On the other hand, cases in which the legal or factual issues are more complex and/or the consequences for the parties are greater will generally be conducted in a superior court, the processes of which will be designed and adapted to meet the individual characteristics of the case in question. 

2. When the Federal Magistrates Court was set up, the decision to establish it as a magistrates court presumably reflected the State model where such courts have long disposed of the vast bulk of civil and criminal work.  However the jurisdiction of the Federal Magistrates Court involved areas of law in which the work was rather more complex than that normally found in the State magistrates’ courts.  That is not in any way to denigrate the work of the State magistrates, or to suggest that none of their work is difficult.  Much of the Federal Magistrates Court work was work which had long been performed in this Court.

3. The change of name to “Federal Circuit Court” reflected the significance of the work which the Federal Magistrates Court had been performing.  The purpose of a hierarchy of courts is to foster the economic and efficient dispensation of cases.  It follows that where a case can be remitted to a lower court, it ought be so remitted, unless there is some reason for not doing so.  In this registry we have not, as far as I am aware, reached the stage at which the Federal Circuit Court is unduly burdened with work, although it is very busy in both the family and general jurisdictions. 

4. The question, then, is whether this case is appropriate for remitter, having regard to the matters to which I have referred.  There is no reason to assume that the factual issues are likely to be beyond proper resolution in the Federal Circuit Court.  I understand the question to be one of characterization of conduct, but that is an issue regularly undertaken by tribunals of fact.  As to the legal question, I accept that there may be a degree of novelty about it, but it does not seem to me to be a particularly complex question.  In any event, the applicant may, if dissatisfied with the result in the Federal Circuit Court, appeal to this Court, thereby obtaining a determination of the question by a superior court.  That approach will mean that this Court does not have to spend time in fact‑finding. 

5. In those circumstances I consider it appropriate that the matter be remitted to the Federal Circuit Court.  I so order.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Associate:

Dated:       21 March 2014