Maersk Crewing Australia Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union

Maersk Crewing Australia Pty Ltd, the applicant, sought to set aside an originating application brought by the Construction, Forestry, Maritime, Mining and Energy Union, the respondent. The dispute concerns the jurisdiction of the Federal Court to hear the claim and whether the proceedings amount to an abuse of process. The Full Bench of the Fair Work Commission had previously determined that permission was required to appeal a primary decision, and this permission was refused. The applicant now sought to appeal this decision to the Federal Court.

The central legal issues before the court were whether the Federal Court lacked jurisdiction to hear the claim, and whether the proceedings constituted an abuse of process. The court had to consider whether the Full Bench of the Fair Work Commission had made a final determination as to the jurisdictional questions. The applicant argued that the Full Bench had not made a final determination, and therefore the Federal Court had jurisdiction to hear the matter. The respondent contended that the Full Bench had made a final determination, and that the proceedings amounted to an abuse of process.

The court held that there was no abuse of process and that the Full Bench of the Fair Work Commission had indeed made a final determination as to the jurisdictional questions. Consequently, the Federal Court did not have jurisdiction to hear the matter, and the application to set aside the originating application was dismissed. The court ordered that the parties bring in an agreed minute, or competing minutes if agreement could not be reached, as to the orders to be made on the interlocutory application and orders programming the matter for hearing.

The court made orders for the parties to bring in an agreed minute, or competing minutes if agreement could not be reached, as to the orders to be made on the interlocutory application and orders programming the matter for hearing. The parties were required to bring in these minutes by 17 May 2020. The entry of orders was dealt with in Rule 39.32 of the Federal Court Rules 2011.