Sutton v Sharp (No 3)

In the case of Sutton v Sharp (No 3), the dispute revolves around the legality of the Custodian's exercise of power in relation to the property and funds of the Australian Building Construction Employees’ and Builders Labourers’ Federation (BLF). The case was heard by a Full Court, which had to address several critical legal issues stemming from earlier proceedings in this Court and the High Court. These issues primarily concerned the validity of the Custodian's actions under the Conciliation and Arbitration Act 1904 (Cth) and subsequent legislative changes, including the Builders Labourers’ Federation (Cancellation of Registration) Act 1986, the Builders Labourers’ Federation (Cancellation of Registration – Consequential Provisions) Act 1986, and the BLF (De-recognition) Act 1985 (Vic). The Full Court was tasked with determining whether the Custodian's exercise of power was based on a mistake of law or a miscarriage of discretion, a question that had significant implications for the respondents, Mr Sutton and the CFMEU.

The Full Court meticulously analyzed the legislative framework and the High Court's previous judgments to resolve the legal issues. It found that the Custodian's actions were not based on a mistake of law or a miscarriage of discretion, as mandated by the joint judgment of the High Court. This conclusion was critical in understanding the extent to which the respondents could challenge the Custodian's decisions. The Full Court also addressed the respondents' attempt to introduce new issues, finding that such attempts were not permissible under the circumstances. By examining the legislative provisions and their application, the Court concluded that the Custodian's exercise of power was valid and that the respondents' contentions were without merit.

As a result, the Full Court allowed the appeals in part and set aside specific paragraphs of the declarations and orders made by Wilcox CJ. This outcome reinforced the legal position that the Custodian's actions were lawful and that the respondents' challenges were unfounded. The Court reserved the liberty to make further orders if any party wished to contend that additional orders were necessary to fully dispose of the appeals. This decision underscores the importance of adhering to legislative frameworks and the limitations on challenging administrative actions based on perceived mistakes of law or discretion.