FEDERAL COURT OF AUSTRALIA
Quirk v Construction, Forestry, Mining and Energy Union [2017] FCA 1576
File number: NSD 1344 of 2017 Judge: PERRAM J Date of judgment: 22 December 2017 Catchwords: PRACTICE AND PROCEDURE – application for summary dismissal by Respondents in response to application for rule to show cause by Applicants – where Federal Circuit Court proceedings commenced by the Applicants remain on foot – whether Court precluded from dealing with application for rule to show cause due to operation of sections 725 and 732 of Fair Work Act 2009 (Cth)
INDUSTRIAL LAW – where Applicants were former officers of CFMEU – where Divisional Executive of the Construction and General Division of the CFMEU found Applicants guilty of gross misbehaviour – consideration of proper construction of Rule 11 of Construction and General Division Rules and interrelationship with Fair Work (Registered Organisations) Act 2009 (Cth)
CONSTITUTIONAL LAW – whether Rule 11 of Construction and General Division Rules incompatible with implied freedom of political communication
ADMINISTRATIVE LAW – actual or invincible bias – whether Divisional Executive of the Construction and General Division of the CFMEU actually or invincibly biased against Applicants
ADMINISTRATIVE LAW – procedural fairness –whether denial of procedural fairness in refusing to adjourn Special Divisional Executive Meeting despite production of medical certificates by Applicants
Legislation: Constitution ss 7, 24
Fair Work Act 2009 (Cth) Part 3-1, ss 351, 351(1), 351(2), 351(2)(a), 351(3), 725, 728, 732, 772(1), 772(1)(f)
Fair Work (Registered Organisations) Act 2009 (Cth) ss 19(1)(f), 140, 141(1)(c)(iii), 142(1)(a), 142(1)(d), 156, 164(1)
Federal Court of Australia Act 1976 (Cth) ss 31A, 31A(2), 37M
Federal Court Rules 1979 (Cth) (repealed) O 48 rr 8, 9, 10, 11, 12
Federal Court Rules 2011 (Cth) rr 26.01, 34.06
Anti-Discrimination Act 1977 (NSW)
Cases cited: Australian Capital Television Pty Ltd v Commonwealth of Australia [1992] HCA 45; (1992) 177 CLR 106
Australian Workers’ Union v Bowen (No 2) [1948] HCA 35; (1948) 77 CLR 601
C v Commonwealth of Australia [2015] FCAFC 113; (2015) 234 FCR 81
Chief of Defence Force v Gaynor [2017] FCAFC 41; (2017) 246 FCR 298
Johnston v Cameron [2002] FCA 948
Sayed v Construction, Forestry, Mining and Energy Union [2015] FCA 27; (2015) 327 ALR 460
Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118
Date of hearing: 7 December 2017 Registry: New South Wales Division: General Division National Practice Area: Employment and Industrial Relations Category: Catchwords Number of paragraphs: 39 Counsel for the Applicants: Mr M Seck with Ms B Byrnes Solicitor for the Applicants: McArdle Legal Counsel for the Respondents: Mr B Docking Solicitor for the Respondents: Taylor & Scott Lawyers ORDERS
NSD 1344 of 2017 BETWEEN: ANDREW QUIRK
First Applicant
BRIAN MILLER
Second Applicant
AND: CONSTRUCTION FORESTRY, MINING AND ENERGY UNION
First Respondent
DAVID NOONAN
Second Respondent
FRANK O'GRADY (and others named in the Schedule)
Third Respondent
JUDGE:
PERRAM J
DATE OF ORDER:
22 DECEMBER 2017
THE COURT ORDERS THAT:
1.The proceeding be dismissed as against…
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- Case
- [2017] FCA 1576
- Decision Date
CaseChat Overview and Summary
The court concluded that the operation of sections 725 and 732 of the Fair Work Act did not preclude it from considering the application. It also considered the compatibility of Rule 11 of the Construction and General Division Rules with the implied freedom of political communication, and whether the Divisional Executive had been actually or invincibly biased against the applicants. Finally, it considered whether the executive had denied the applicants procedural fairness. The court found that the application had no reasonable prospect of success on the ground that the executive had acted with actual or invincible bias. The court also found that the executive had not denied the applicants procedural fairness by refusing to adjourn a meeting despite the production of medical certificates. Accordingly, the application was dismissed.
The court ordered that the proceeding be dismissed as against the 15th and 16th respondents, and that judgment be entered for the respondents on the applicants' bias case. Paragraph 3(b) of the originating application for a rule to show cause was struck out. The matter was stood over for a case management hearing, and the union's amended interlocutory application was otherwise dismissed. Entry of orders was dealt with in Rule 39.32 of the Federal Court Rules 2011.
Orders
Orders of the court
1. The proceeding be dismissed as against the 15th and 16th Respondents.
2. Judgment be entered for the Respondents on the Applicants’ bias case.
3. paragraph 3(b) of the originating application for a rule to show cause be struck out.
4. The matter be stood over for a case management hearing on 7 February 2018 at 9.30 am.
5. The Respondents’ amended interlocutory application be otherwise dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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