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

1. With respect to the orders made by the Court on 19 July 2016 in SAD 59 of 2015, the time within which the applicant may file and serve a notice of appeal be extended to on or before Friday, 9 December 2016 at 4.00 pm.
2. With respect to the orders made by the Court on 19 July 2016 in SAD 60 of 2015, the time within which the applicant may file and serve a notice of appeal be extended to on or before Friday, 9 December 2016 at 4.00 pm.
3. With respect to the orders made by the Court on 19 July 2016 in SAD 61 of 2015, the time within which the applicant may file and serve a notice of appeal be extended to on or before Friday, 9 December 2016 at 4.00 pm. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

BESANKO J: 1 In this proceeding, which is SAD 300 of 2016, the Construction, Forestry, Mining and Energy Union ("CFMEU") seeks an extension of time within which to appeal against orders made by a judge of this Court in three proceedings in the original jurisdiction of the Court (SAD 59 of 2015, SAD 60 of 2015 and SAD 61 of 2015). The respondent to the application is the Director of the Fair Work Building Industry Inspectorate ("the Director"). 2 The Director brought the three proceedings under the Fair Work Act 2009 (Cth) ("the Act") against individual respondents who he claimed were officials of the CFMEU within s 793 of the Act and against the CFMEU. He claimed declarations of contraventions by the individual respondents and by the CFMEU and pecuniary penalties in relation to the contraventions. The contraventions were admitted and an agreed statement of facts was filed. The acts constituting the contraventions were admitted and the liability of the CFMEU for those acts by reason of s 793 of the Act was admitted. 3 After the primary judge had reserved her judgment, an argument came to the attention of the CFMEU which it contended meant that it was not liable under s 793 of the Act for the contraventions by its officials. Briefly put, that argument is that whilst s 793(1) of the Act attributes the conduct of the officials to the CFMEU, it does not and cannot attribute the status of a permit holder to the CFMEU. An essential element of a contravention of s 500 of the Act is that the conduct identified in the section be carried out by a permit holder and as that status could not be attributed to the CFMEU by virtue of s 793 of the Act, the CFMEU could not be guilty of a contravention of s 500 of the Act. 4 The CFMEU sought to issue an interlocutory application in the three proceedings in which it sought leave to withdraw its admissions that it was liable by reason of s 793 of the Act for the contraventions of s 500 of the Act by its officials. The primary judge refused to allow the interlocutory application to be issued without leave and, ultimately, on 19 July 2016 her Honour ruled that leave to issue the interlocutory application should be refused (Director, Fair Work Building Industry Inspectorate v Bolton (No 1) [2016] FCA 816). On the same day, her Honour delivered judgment in the substantive proceedings and she made declarations of contraventions against, among others, the CFMEU and imposed pecuniary penalties in relation to those contraventions (Director, Fair Work Building Industry Inspectorate v Bolton (No 2) [2016] FCA 817). The CFMEU seeks to appeal against the declarations of contraventions against it and the pecuniary penalties imposed on it. Its grounds of appeal seek to agitate the argument I have summarised and the grounds include a challenge to her Honour's decision that leave to issue the interlocutory application be refused. 5 The orders were made on 19 July 2016 and if they were to be the subject of an appeal, the appeal should have been filed and served on 9 August 2016 (r 36.03 of the Federal Court Rules 2011 (Cth) "Rules of Court"). This application for an extension of time was filed and served on 1 November 2016, a delay of almost three months. 6 The Court has a discretion to extend the time for the filing and service of a notice of appeal and the factors the Court considers in exercising that discretion are well-known. They include the length of the delay, the explanation for the delay, the prejudice to the applicant if an extension of time is not granted, the prejudice to the respondent if an extension of time is granted, the merits of the proposed appeal if relevant and where raised on the facts, any consideration relevant to the public interest. 7 The Director opposed the application for an extension of time and his opposition concentrated on two of the relevant factors. First, he submitted that the CFMEU had not provided an explanation of its failure to file and serve the appeals within time. This was contrary to the Rules of Court. He submits, correctly, that the Rules of Court provide that an explanation as to why the notice of appeal was not filed within time should be provided (r 36.05(3)(c)(ii)). Secondly, he submitted that the proposed appeals were doomed to fail. The primary judge had exercised a discretion to refuse leave to file the interlocutory application and there was nothing to suggest that the exercise of the discretion had miscarried. 8 Mr Michael Ats is a solicitor in the firm of solicitors which acts for the CFMEU. He has sworn an affidavit in support of the application for an extension of time. The purport of his affidavit is that the CFMEU sought prerogative writs in the High Court challenging the decisions made by the primary judge. The proceedings which the CFMEU issued in the High Court and the orders which the CFMEU sought were described by Nettle J in his reasons dealing with the CFMEU's application in the following way: In this proceeding, the plaintiff ("the CFMEU") seeks an order to show cause why a writ of prohibition should not be granted to prohibit the first defendant ("the Director") giving effect to a decision made on 19 July 2016 by a judge of the Federal Court of Australia (Collier J) that, by reason of the actions of five CFMEU officials (Messrs Bolton, Huddy, Pitt, Cartledge and McDermott), and perforce of s 793 of the Fair Work Act 2009 (Cth) ("the Act"), the CFMEU contravened s 500 of the Act. The CFMEU also seeks an order to show cause why a writ of mandamus should not be granted directing Collier J to hear and determine according to law an application by the CFMEU for leave to withdraw admissions that the CFMEU made in the proceedings that the actions of the five CFMEU officials were to be attributed to the CFMEU by reason of s 793 of the Act, such that the CFMEU was to be taken to have contravened s 500 of the Act. The Director seeks an order pursuant to r 25.03.3(a) of the High Court Rules 2004 (Cth) that the CFMEU's application for an order to show cause be dismissed. (Construction Forestry Mining and Energy Union v Director of the Fair Work Building Industry Inspectorate and Anor [2016] HCA 41 at [1]). Counsel for the applicant told me the applicant took this course because counsel for the applicant formed the view that the decision of the primary judge was an "administrative" decision and, therefore, "subject to the prerogative writs process". 9 The proceedings were issued in the High Court on 12 August 2016. Justice Nettle made an order on 28 October 2016 that the CFMEU application for an order to show cause be dismissed. His Honour did so on two independent grounds as follows. First, in the exercise of the discretion, prerogative writs should be refused where a person has not exhausted all available rights of appeal. Secondly, the CFMEU had not established an arguable case of jurisdictional error on the part of the primary judge in her decision to refuse leave to issue the interlocutory application. 10 I should say that there are two other matters involving the CFMEU and the Director (SAD 128 of 2016 and SAD 129 of 2016) in which the CFMEU seeks to raise the argument concerning the operation of s 793 of the Act in the case of an alleged contravention of s 500 of the Act. Those matters are appeals which are listed before the Full Court in February 2017. I have been managing those appeals and on 5 August 2016, counsel for the CFMEU told me about these proceedings and of the proposed application to the High Court. In response to a question from me, counsel for the CFMEU said that he expected to receive instructions to appeal if the High Court held that judicial review was not available. 11 The Director is correct when he submits that Mr Ats has not set out the reasons why the CFMEU did not file and serve an appeal within time. To identify the reasons, it is necessary to draw two inferences. First, the CFMEU acting on advice considered that the appropriate procedure was an application for judicial review. Secondly, it was sufficiently confident of that advice that it did not consider it necessary to file and serve a notice of appeal as an alternative procedure in which it could agitate the point it seeks to raise. I am prepared to draw those inferences. It seems to me that on the one hand, it can be said that the CFMEU has proceeded in a particular way having had the benefit of legal advice. On the other hand, it can be said that the CFMEU relied on its legal advice in circumstances in which there is no prejudice to the Director if an extension of time is granted and the Director has known from an early stage that the CFMEU wishes to challenge the orders and the basis on which it seeks to do so. 12 As to the merits of the proposed appeals, if the issue resolves itself into a question only of whether the discretion has miscarried, then there is force in the Director's submission because of the well-known difficulties in challenging the exercise of a discretion (House v The King (1936) 55 CLR 499). However, there may be more than one way of characterising the issue and I think the arguments are sufficiently complex that the apparent merits or otherwise of the proposed appeals should not play a part in the determination of this application for an extension of time. 13 In the end, I have decided that an extension of time should be granted. The matters which have tipped the balance in the CFMEU's favour are that the Director has known from early August 2016 that the CFMEU wished to challenge the orders, not only from what it said, but also from what it did, the orders involve pecuniary penalties and there is no apparent prejudice to the Director. 14 I will grant an extension of time in relation to each proceeding. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.