Lendlease Project Management and Construction (Australia) Pty Ltd v Construction, Forestry Mining and Energy Union (No 3)

The Construction, Forestry, Mining and Energy Union (CFMEU) filed an application for an extension of time to file a cross-claim against Lendlease Project Management and Construction (Australia) Pty Ltd and nine third parties. The application was heard in the Federal Court of Australia. The primary dispute in this case involves the alleged contraventions of orders by Fair Work Australia, breaches of the Fair Work Act 2009, and the Building and Construction Industry Improvement Act 2005, as well as the assertion of sham contracting practices by the sub-contractors engaged by Lendlease.

The court was tasked with determining whether the CFMEU was entitled to file a cross-claim against Lendlease and the nine third parties, despite the fact that the third parties were not currently parties to the substantive proceedings. The court also needed to consider the principles relevant to the exercise of its discretion to extend the time for filing the cross-claim. Furthermore, the court examined whether there was any prejudice to Lendlease from the delay in filing the cross-claim, the merits of the cross-claim, and the applicability of different rules to Lendlease and the other potential cross-respondents. Additionally, the court assessed whether the cross-claim against Lendlease and the third parties needed to be related to or connected with the subject of the substantive proceedings, and if the failure of the CFMEU to serve the application on the third parties was a discretionary issue in considering the extension of time.

The court found that the CFMEU was not entitled to file a cross-claim against Lendlease and the nine third parties. The court ruled that Order 5 rule 1(1) and 1(2) of the Federal Court Rules applied to this case, and the CFMEU had not demonstrated a sufficient reason for the delay in filing the cross-claim. The court also determined that there was no prejudice to Lendlease from the delay in filing the cross-claim, but the merits of the cross-claim were not relevant to the decision. The court further held that the failure of the CFMEU to serve the application on the third parties was a discretionary issue to be considered in the context of the extension of time. Finally, the court ruled that the substantive proceedings should be heard separately from the cross-claim.

The court ordered that the CFMEU file and serve a cross-claim in the terms annexed to the affidavit of Mr Charles Massy sworn on 1 July 2011 by 4:00 pm on 19 August 2011.