Director, Fair Work Building Industry Inspectorate v Bolton (No 1)

In the Federal Circuit Court of Australia, the Director of the Fair Work Building Industry Inspectorate brought proceedings against Bolton and others, including the Construction, Forestry, Mining and Energy Union (CFMEU). The proceedings were brought under sections 500 and 793 of the Fair Work Act 2009, and the matter involved allegations of contraventions by the CFMEU under section 500 of the Act. The court was required to determine whether the CFMEU could be held liable for contraventions of section 500 and, additionally, to consider an interlocutory application by the CFMEU to withdraw admissions and amend pleadings in the principal proceedings.

The court addressed the issue of whether the CFMEU should be permitted to file an interlocutory application to withdraw admissions and amend pleadings after judgment had been reserved in the principal proceedings. The court considered the principles established in Featherby v Commissioner of Taxation [2016] FCA 454 and Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175. It concluded that the CFMEU had not demonstrated that the application was in the interests of justice, as the matter involved seeking to try a separate question from the principal proceedings, despite the parties having agreed on key issues and arguments on penalty already being heard. The court emphasised the importance of the finality of litigation and the burden on the applicant to show that they had not been heard. Accordingly, the court determined that the application did not meet the stringent requirements for leave to be granted.

The court refused leave to the CFMEU to file its interlocutory application. The decision was based on the court's view that the application did not serve the interests of justice and did not meet the exceptional circumstances required for a party to supplement submissions after a hearing had concluded and judgment had been reserved.