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

The matter before the court was an appeal from a decision of the Federal Circuit Court, where the Director, Office of the Fair Work Building Industry Inspectorate, sought to appeal the determination made by his Honour Judge Lee. The central issue was whether the Director had correctly rejected the evidence presented by the Construction, Forestry, Mining and Energy Union (CFMEU), which was intended to establish a case of unlawful industrial action by the CFMEU. The appeal centred on the trial judge's handling of the cumulative effect of the evidence and whether the trial judge had correctly assessed the standard of proof and applied the rules in Jones v Dunkel and Browne v Dunn.

The court found that the trial judge had failed to adequately consider the cumulative effect of the evidence from three witnesses. The appellant argued that the trial judge had rejected the evidence without proper consideration of its combined weight. The court agreed that the trial judge had not fully appreciated the cumulative effect of the evidence, particularly from the three witnesses. Additionally, the court examined whether the trial judge had correctly assessed the standard of proof required under s 140 of the Evidence Act 1995 (Cth), considering both the gravity of the allegations and the likelihood of their occurrence. The court determined that the trial judge had not properly applied the necessary standard of proof and had not adequately applied the rules in Jones v Dunkel and Browne v Dunn.

As a result of these findings, the court allowed the appeal, set aside the orders made by the trial judge, and ordered a new trial before a differently constituted court. The respondents were directed to pay the appellant's costs of the appeal, and the costs of the proceedings before the trial judge were to abide the outcome of the new trial. The parties were given a timeframe to file submissions on the reserved costs issues. This decision underscores the importance of correctly assessing the cumulative effect of evidence and the appropriate standard of proof in cases involving allegations of unlawful industrial action.