Construction Forestry Mining and Energy Union v Director of the Fair Work Building Industry Inspectorate

The Construction Forestry Mining and Energy Union (CFMEU) sought constitutional writs in the High Court of Australia, specifically prohibition, mandamus, and certiorari, against the Director of the Fair Work Building Industry Inspectorate. The dispute arose from proceedings in the Federal Court where the CFMEU had made admissions that, due to the operation of s 793 of the Fair Work Act 2009 (Cth), it could be taken to have contravened s 500 of the Act through the conduct of its officers. After judgment was reserved in the Federal Court, the CFMEU applied for leave to withdraw these admissions and amend its pleadings, which was refused.

The High Court was required to determine whether the Federal Court's decision to refuse leave to withdraw admissions and amend pleadings was amenable to appeal. Further, it had to consider whether this refusal constituted jurisdictional error, either because the judge failed to reach a concluded view on the operation of s 793, or because the CFMEU was denied procedural fairness. The Court also had to assess whether the final judgment imposing penalties on the basis of the admissions was vitiated by jurisdictional error. Finally, the Court considered the appropriateness of dismissing the CFMEU's application for constitutional writs, particularly in light of the availability of statutory rights of appeal and the exercise of the Court's original jurisdiction.

Nettle J found that the CFMEU's complaint of jurisdictional error was untenable. While acknowledging that the application for certiorari for error of law on the face of the record was not unarguable, the Court ultimately concluded that the most appropriate order was to dismiss the CFMEU's application for an order to show cause. The Court exercised its discretion under r 25.03.3(a) of the High Court Rules 2004 (Cth) to dismiss the application.

The application for an order to show cause was dismissed, with no order as to costs.