Federal Court of Australia

Kent Projects Pty Ltd v Communications Electrical Electronics Energy Information Postal Plumbing and Allied Services Union of Australia [2026] FCAFC 74

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

COLLIER AND BROMBERG JJ:

1    We have had the benefit of reading in draft the reasons and proposed Orders of O’Sullivan J. We agree with those reasons and Orders.

Associate:

Dated:    27 May 2026

REASONS FOR JUDGMENT

O’SULLIVAN J:

2    On 23 June 2022, the appellants, Kent Projects Pty Ltd and Kent Energy Solutions Pty Ltd (together ‘Kent’), applied to the Fair Work Commission for approval of an Enterprise Agreement within the meaning of the Fair Work Act 2009 (Cth) (KPPL Agreement): [2022] FWCA 2657. The FWC invited the respondent, CEPU, to make submissions and adduce evidence before it, but it elected not to do so.

3    On 5 August 2022, the FWC approved the KPPL Agreement under s 186 of the Fair Work Act.

4    The CEPU did not appeal from the decision of the FWC. Instead, by its amended originating application dated 25 June 2024, the CEPU seeks a writ of certiorari quashing the FWC’s decision to approve the KPPL Agreement and a writ of mandamus requiring that the FWC determine Kents’ application for approval of the KPPL Agreement according to law.

5    On 16 April 2025, the primary judge dismissed an interlocutory application by Kent seeking an order that certain paragraphs of the respondent’s Further Amended Statement of Claim be struck out on the ground that it failed to disclose a reasonable cause of action: Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Kent Projects Pty Ltd [2025] FCA 362 (J).

6    Before the primary judge, the CEPU contended that the FWC’s decision to approve the KPPL Agreement was attended by what it described as “fraud” as a consequence of which the decision is one which the Fair Work Act did not authorise.

7    On 6 October 2025, leave to appeal from the primary judge’s decision was granted: Kent Projects Pty Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2025] FCA 1221.

8    The issue on this appeal is whether the primary judge erred in dismissing the appellant’s application to strike out various pleas on the basis that the impugned pleadings disclosed a reasonable cause of action with some chance of success.

9    It is for the reasons which follow that the appeal is dismissed.

The primary judge’s reasons

10    Kent made its interlocutory application on 15 March 2024 pursuant to r 16.21 of the Federal Court Rules 2011 (Cth) to strike out certain paragraphs of the CEPU’s FASoC on the ground that the impugned paragraphs failed to disclose a reasonable cause of action. That application was amended on 9 July 2024 and further amended on 26 August 2024.

11    The paragraphs in question appear under the heading “Approval of KPPL Agreement Vitiated by Fraud on the Tribunal by Misrepresentation or Concealment” (Fraud Plea).

The pleaded case

12    The FASoC passed through a number of iterations leading to the most recent Second Further Amended Statement of Claim dated 7 May 2025. However, the Fraud Plea placed before the primary judge was, at the time, set out in the earlier FASoC. The primary judge summarised the Fraud Plea: J [4]:

•    The second respondent (Kent Energy) employed some 240 maintenance employees, who were covered by an enterprise agreement known as the “SNCL Agreement”.

•    Kent Energy decided that it no longer wished to employ the employees. Kent Projects decided that it would make a new enterprise agreement and then offer the employees employment under the terms of the new enterprise agreement.

•    Four persons asserted to be employees of Kent Projects voted to approve the KPPL Agreement.

•    Three of them were not “genuinely employed” by Kent Projects to perform work and were instead employed for the purposes of voting to approve the KPPL agreement, or did not perform any work other than voting. Two of them were temporary employees.

•    Kent Projects did not disclose and/or concealed the matters described in the second and fourth dot points above (the Disclosable Information) from the Commission.

•    On the proper construction of the Fair Work Act 2009 (Cth) (the FWA), Kent Projects was obliged to inform the Commission of the Disclosable Information.

•    Kent Projects knew, or ought reasonably to have known, that it was obliged to inform the Commission of the Disclosable Information.

•    By reason of Kent Project’s misrepresentation (by its failure to disclose the Disclosable Information) and/or concealment of the Disclosable Information, the Commission failed to exercise its jurisdiction, and its purported approval of the KPPL Agreement is of no force or effect.

13    Central to Kent Project’s strike out application was that the CEPU’s allegations of non-disclosure of the Disclosable Information in the FASoC was not sufficient to constitute fraud upon the FWC and thereby could not found a basis for a finding of jurisdictional error that might attract prerogative writ relief.

14    Before the primary judge, Kent submitted that for the alleged fraud to be capable of vitiating the FWC’s decision, the CEPU must demonstrate three essential features of the misrepresentation and/or concealment, which were lacking. That is:

(i)    there must have been a legal obligation on Kent to disclose the Disclosable Information to the FWC;

(ii)    there must have been some element of dishonesty involved in the alleged concealment; and

(iii)    the concealment must have resulted in a decision which is seriously defective or irregular.

The first essential feature

15    The CEPU’s response to the first of the three asserted essential features was that, notwithstanding the absence of an express duty in the Fair Work Act to disclose all relevant material as a party appearing before the FWC, which included the Disclosable Information, nonetheless a duty of disclosure arises by implication from the statutory scheme. In particular, it submitted that:

(a)    ss 577 and 578 of the Fair Work Act require the FWC to act fairly, according to equity and good conscience, and to take into account all relevant matters; and

(b)    those duties cannot be discharged if the FWC is misinformed or deliberately left uninformed on matters bearing on its statutory satisfaction, including whether an enterprise agreement has been genuinely agreed to under s 186(2) of the Fair Work Act: see J [12]-[16] referring to Municipal Officers Association of Australia v The Mayor, Alderman, Councillors and Citizens of the City of Greater Brisbane (1927) 25 CAR 932 (Lukin J); Re Rubber, Plastic and Cable Making Industry Award 1972 (1975) 167 CAR 929 at 930 (Gaudron J as a Member of the Conciliation and Arbitration Commission); Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Energy Developments Limited & Anor [1996] AIRC 2167; One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union [2018] FCAFC 77; (2018) 262 FCR 527 at [155]-[163] (Bromberg, Katzmann and O’Callaghan JJ).

16    Kent sought to distinguish the authorities upon which the CEPU relied. However, the primary judge held that it was at least arguable that those authorities are not distinguishable: J [17]. On that basis, the primary judge was satisfied for the purposes of the application that the CEPU demonstrated a reasonable argument that Kent was obliged to disclose the Disclosable Information.

The second essential feature

17    In response to the second of the alleged essential features, that is that there must be some element of dishonesty, the CEPU submitted that what constitutes fraud is not settled, and that the notion of fraud on an administrative tribunal is a concept that goes beyond the type of fraud known to the common law (or ‘red-blooded fraud’) without necessarily requiring actual dishonesty: J [24].

18    The primary judge noted the difficulty in that submission with the combination of the CEPU’s allegation of “active concealment” by Kent of the Disclosable Information and its steadfast position that that it did not allege any dishonest concealment of the Disclosable Information in the FASoC. His Honour observed that it was difficult to see how there could have been an “active concealment” which was honest: J [18]-[23].

19    The primary judge then embarked on a review of several Australian and English authorities.

20    First, the primary judge referred to the CEPU’s reliance on Leung v Minister for Immigration and Multicultural Affairs (1997) 79 FCR 400 at 416, where the Full Court accepted that a non-fraudulent misrepresentation had the consequence that the decisions in question were not decisions made in the execution of power: J [25].

21    In Leung, Finkelstein J at 414 observed that if a decision is invalid it is ignored. However, to ignore an invalid decision is not to revoke it. Rather, it recognises that the decision in question does not have the character of a decision and if the matter said to be the subject of the decision is decided again, it is not a reconsideration but is the original exercise of the power to make the decision.

22    I pause to observe at this point that whereas Finkelstein J’s observations may be accepted in the abstract, they must be seen against the background of the High Court’s decision in Minister for Home Affairs v DUA16 [2020] HCA 46; (2020) 271 CLR 550 to which I refer later in these reasons.

23    Next, the primary judge noted the observations of French J (in dissent and when a member of this Court) in Minister for Immigration & Multicultural Affairs v SZFDE [2006] FCAFC 142; (2006) 154 FCR 365 at [121]-[122] and further noted his Honour’s reference to the English authorities of R v Leyland Justices; Ex parte Hawthorn [1979] QB 283 and R v Secretary of State for the Home Department; Ex parte Al-Mehdawi [1990] 1 AC 876: J [27]-[30].

24    The facts in SZFDE involved a person who falsely held themselves out as a Migration Agent and solicitor. On that person’s advice, the visa applicant did not appear before the Tribunal. The Full Court by a majority (Allsop and Graham JJ) held that the Tribunal’s decision was not corrupted by fraud.

25    The primary judge observed that in dissent, French J at [121]-[122], said that the common law proposition that an administrative decision may be vitiated by fraud applies as part of the common law in both Australia and England, but that it had not been formulated with precision. French J continued that the extension of the common law to circumstances “analogous to fraud” covers a range of situations which are not clearly delineated, but which appeared to cover reckless conduct. French J continued that a decision made in the purported execution of statutory power may be quashed where the decision had been induced or affected either by fraud or conduct analogous to fraud. That will be justified if the statutory process is “distorted” or “vitiated” to an extent that “… it can be said that the decision was induced or effected by that fraud or those circumstances”: J [27].

26    Whereas Ex parte Hawthorne involved a denial of natural justice arising out of a breach of prosecutorial duties, Ex parte Al-Mehdawi concerned the failure of an applicant to appear before a tribunal because of the negligence of his own solicitors: J [29].

27    The primary judge noted: J [30] that Ex parte Hawthorn was distinguished by the House of Lords in Ex parte Al-Mehdawi per Lord Bridge at 896 when reversing the Court of Appeal on the basis that a failure, without dishonesty, to comply with the prosecutorial duties to disclose information favourable to the defence, was a case of “suppression of the truth” which had the same effect as a false statement “in distorting and vitiating the process leading to conviction”.

28    Next, the primary judge turned to French J’s observations: [83] of SZFDE that certain Australian authorities including Barrett v Minister for Immigration, Local Government & Ethnic Affairs [1989] FCA 388; (1989) 18 ALD 129, a decision of the Full Court of this Court, had considered Ex parte Al-Mehdawi prior to its reversal in the House of Lords: J [31].

29    The primary judge referred to the Full Court’s observation in Barrett at p 133, that where a decision maker acts upon a departmental submission which is not communicated to the other side, that decision is vitiated if the submission is seriously misleading as to the facts, on the basis it is a fundamental flaw in the decision making process: J [31]. In making that observation, the Full Court referred to the Court of Appeal’s decision in Ex parte Al-Mehdawi.

30    The primary judge noted that French J in SZFDE considered the decision in Barrett to be in step with the principles underlying Ex parte Hawthorn: J [32].

Justice French at [86] considered that Barrett was consistent with the principle subsequently identified by the House of Lords in Al-Mehdawi as underlying Ex parte Hawthorne, and had not been undercut by the House of Lords’ reversal of the judgment of the Court of Appeal. His Honour also cited other Australian authorities that had considered Al-Mehdawi, including the Victorian Court of Appeal’s judgment in Transport Accident Commission (Vic) v Bausch [1998] 4 VR 249 (Bausch), where the Victorian Administrative Appeals Tribunal’s decision was set aside on the basis of a failure by the Transport Accident Commission to disclose a police investigation report that would have been helpful to the claimant.

31    The High Court reversed the Full Court’s decision in SZFDE: SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 232 CLR 189. The primary judge observed that the High Court said that the matter needed to be “… resolved after close attention to the nature, scope and purpose of the particular system of review”: J [33].

Conduct analogous to fraud

32    Next, the primary judge dealt with the concept of “conduct analogous to fraud” to which French J had referred to in SZFDE: J [34]-[37].

33    In so doing, the primary judge referred to the decision of Reeves J in Burragubba v Queensland [2016] FCA 984 which dealt with a question of whether “conduct analogous to fraud” was “fraud” for the purposes of s 5(1)(g) of the Administrative Decisions (Judicial Review) Act 1977 (Cth): J [34].

34    Referring to [195]-[196] of Burragubba, the primary judge noted Reeves J’s observations that the judgments of French J and, later, the High Court in SZFDE showed that “… there are rare circumstances where dishonesty has not been regarded as a necessary prerequisite for a court to intervene and order certiorari” and that there have been occasions where courts have set aside administrative decisions where the process has been rendered “seriously defective or irregular” in circumstances where the decision-maker has not been at fault but rather where relevant material has been withheld from the decision-maker.

35    The primary judge highlighted Reeves J’s observations at [196] of Burragubba that “conduct analogous to fraud” reflected no more than that “fraud” encompasses an infinite variety of conduct and that ultimately the question of whether conduct is of the kind such that a court will characterise it as fraud is sufficient to vitiate an administrative decision, is fact dependent.

36    Having considered the passage from Reeves J’s judgment in Burragubba, the primary judge concluded that dishonesty is not always required and that depending on the particular facts and circumstances, an administrative decision may be seriously defective or irregular as a result of a departure from the required standards of disclosure and should be quashed on that basis: J [35].

37    An appeal from Reeves J’s decision in Burragubba (which dismissed the applicants originating application) was unsuccessful on the basis that the term “fraud” in s 5(1)(g) of the AD(JR) Act did not extend to “conduct or circumstances analogous to fraud”: Burragubba v State of Queensland [2017] FCAFC 133; (2017) 254 FCR 175 at [26]. Nonetheless, the Full Court referred to the House of Lord’s decision in Ex parte Al Mehdawi and Lord Bridges’ statement that, even without dishonesty, a prosecutor’s failure in their duty to the court and the accused had the same effect as dishonesty in “distorting and vitiating the process leading to conviction”.

38    Having dealt with the authorities upon which the CEPU relied, the primary judge dealt with the submission by Kent that in DUA16 at [15], the High Court had not followed the English authorities, including Ex parte Al-Mehdawi.

39    It may be observed at this point that Ex parte Hawthorne involved a failure by the prosecution to comply with its prosecutorial duties. Care should be taken when considering principles arising out of a failure to comply with prosecutorial duties in matters involving civil administrative functions because of the particular circumstances applying to criminal matters. That said, the consequences of a failure to comply with a prosecutorial duty reflects, at least in part, the particular system in question, being the criminal legal system, and is consistent with the underlying principle that depending on the statutory scheme in question, actions which distort or vitiate the administrative process may be susceptible to certiorari.

40    The primary judge did not accept Kent Project’s submissions that the High Court in DUA16, had overruled ([sic] not followed) the English authorities by reason of this single paragraph nor did the primary judge consider DUA16 was authority for the blanket proposition that actual fraud or dishonesty was required before a decision of a Tribunal can be quashed for fraud or “conduct analogous to fraud”. The primary judge noted that the High Court’s ruling to that effect was made in the context of the “particular system of review” it was considering: J [39].

41    I consider DUA16 later in these reasons.

42    Next, the primary judge dealt with Kent Project’s reliance on Mid West Port Authority v Construction, Forestry, Maritime, Mining and Energy Union [2022] FCAFC 53; (2022) 289 FCR 88.

43    The primary judge observed that Mid West Port Authority was a case which was dependent entirely upon the proposition that the FWC lacked jurisdiction unless the enterprise agreement in question had been made in compliance with the pre-approval steps required by the Fair Work Act: J [40].

44    The primary judge concluded that the Full Court in Mid West Port Authority did not decide that the FWC’s decision can only be vitiated for dishonesty. The primary judge noted that there was no argument in Mid West Port Authority directed to a jurisdictional error and there was no argument advanced that there had been a “fraud” or “conduct analogous to fraud” such that the primary judge declined to accept Kent’s submission that the only circumstances which might vitiate an administrative approval is where information is “obviously concealed”: J [41]. I consider Mid West Port Authority later in these reasons.

45    The primary judge summarised the position as being that in Ex parte Al-Mehdawi, when there is an honest failure by a party to disclose relevant material, it may nonetheless have the same effect as dishonesty such that the process is distorted and vitiated with the consequence that the decision may be quashed. The primary judge observed further that Ex parte Al-Mehdawi had not been expressly overruled ([sic] not followed) in Australia and that there are decisions of Australian intermediate appellate courts which were consistent with it – Leung, Barrett and Bausch: J [42].

46    It was for those reasons that the primary judge concluded that the CEPU had not failed to demonstrate a reasonable argument that in the circumstances alleged, there was a “fraud” on the FWC, with the consequence that the FWC’s decision ought to be quashed: J [43]. It should be remembered that the primary judge was not referring to “fraud” in its common law sense, such that actual dishonesty was not necessarily required.

The third essential feature

47    The third essential feature advanced by Kent was that the concealing of the Disclosable Information must have resulted in a decision which is seriously defective or irregular.

48    The primary judge considered that the CEPU had demonstrated a reasonably arguable case that the alleged misrepresentation or concealment from the FWC had the consequence that the decision was “seriously defective or irregular”: J [44].

Appeal

49    The “effective” dismissal of Kent’s strike out application was perfected on 23 May 2025, when the Court made formal orders dismissing it. The delay arose from CEPU being permitted to address some other concerns expressed by the primary judge and was granted leave to file a further amended statement of claim, which it did on 7 May 2025 in the form of the SFASoC.

50    Within the SFASoC, the CEPU took the opportunity to remove the pleading that Kent “knew” it was obliged to inform the FWC of Disclosable Information.

51    An immediate point which arises is that the primary judge based his decision on the FASoC and not the SFASoC which was filed after the argument before the primary judge and with the primary judge’s leave.

52    Nonetheless, the appeal proceeded on the basis of the SFASoC because Kent contended that the amendments which resulted in the SFASoC gave effect to the case advanced by the CEPU before the primary judge. As amended, the paragraphs in question plead.

44A.    The three persons listed at [44](c)(ii) to (iv) were not genuinely employed for the purpose of performing work in the first respondent’s business and were instead employed for the purposes of voting to approve the KPPL Agreement.

44B.    Further and/or alternatively to the matters pleaded at [44AB], the three persons listed at [44](c)(ii) to (iv) did not perform any work for the first respondent other than voting on the KPPL Agreement.

44BB.    Further and/or alternatively, the business records of the first respondent recorded Mr Hudston and Mr Di Bartolomeo as temporary employees.

Particulars

The payslips for Mr Hudston and Mr Di Bartolomeo recorded their employee numbers as Temp71 and Temp72, respectively.

44BBB.     The matters alleged at [44A] to [44BB] were known by officers and/or employees of the first respondent including Mr Nick MacDougall, Human Resources Manager, in respect of [44A] to [44BB] and Mr Thomas Cairns, Project Manager, in respect of [44B] to [44BB] prior to the application for approval being made 23 June 2022.

Particulars

Further particulars of the identity of the officers, employees and agents who had the requisite knowledge and when they acquired the knowledge will be provided after disclosure.

44C.    The first respondent did not disclose and/or concealed the matters pleaded at [44A], [44B], [44BB] and/or [44BBB] above from the FWC.

…

THE APPROVAL OF THE KPPL AGREEMENT WAS AFFECTED BY JURISDICTIONAL ERROR

Approval of KPPL Agreement Vitiated by Fraud on the Tribunal by Misrepresentation or Concealment

66A.    The matters pleaded at [33], [33A] and [44A] to [44BB] were relevant to the FWC’s consideration of whether it was satisfied that the requirements of ss. 186(2)(a) and 188(c) of the Act were met in respect of the KPPL Agreement because the matters pleaded at [33], [33A] and [44A] to [44BB] went to the questions of whether:

(a)    the four persons pleaded [44](c)(ii) to (iv) were capable of providing the higher quality of consent required by ss. ss. 186(2)(a) and 188(c) of the FW Act;

(b)    further and/or alternatively, the four persons pleaded [44](c)(ii) to (iv) had a sufficient stake in the KPPL Agreement; and/or

(c)    further and/or alternatively, whether there had been a manipulation of the bargaining process.

67.    Upon the proper construction of ss. 186-188 and 577 of the Act and by reason of the matters pleaded at 66A, the first respondent was obliged to inform the FWC of the matters pleaded at [33], [33A] and [44A] to [44BB] 44A to 44D when the application for approval of the KPPL Agreement was made on 23 June 2022 or at any time prior to the application being determined by the FWC.

67A.     The first respondent, its officers and its employees knew, or ought to have reasonably known, that the first respondent was obliged to inform the FWC of those matters because:

(a)    by reason of the matters pleaded at [44BBB] and [44CC], the first respondent knew of those matters prior to the application for approval being made; and

(b)     the first respondent, its officers and its employees is taken to know the law, including the obligation pleaded at [67] above

(c)    the first respondent:

i.    was part of a corporate group that was an experienced participant in matters arising under the Act;

ii.     had a sophisticated and experienced internal human resources department, which included Mr Nick MacDougall;

iii.     retained the assistance of highly experienced industrial consultants Mapien and Mr Mark Hudston, the then Executive Director of Mappien and the uncle of the person pleaded at [44](c)(iv), to assist in the application to the FWC for the KPPL Agreement.

67AA.     By reason of the matters alleged at [44C], [44D], [66A] to [67A], the Agreement Approval Decision was seriously defective or irregular.

…

53    The impugned paragraphs of the SFASoC do not allege fraud, given that the word only appears in the heading to [67] of the SFASoC. However, the gravamen of Kent’s complaint on appeal is that a pleading of fraud is essential to set aside a decision of an administrative tribunal on the basis that the process was vitiated, yet there is no pleading of fraud, nor is there a pleading of any of the integers of fraud – dishonesty, recklessness or wilful blindness. As such, Kent contends there is no reasonable cause of action.

54    It is no longer pressed by the CEPU that Kent subjectively “knew” that it was obliged to disclose to the FWC the Disclosable Information; nor is it said that its decision not to disclose the Disclosable Information was made dishonestly in breach of any such obligation.

Grounds of appeal

55    Kent was granted leave to amend its notice of appeal at the hearing of the appeal on 24 March 2026 in order to regularise the notice so that it included an appeal from the 23 May 2025 order formally dismissing the strike out application.

56    The amended notice of appeal comprises three grounds of appeal:

1.    The primary judge erred in concluding (at PJ[43]) that the Respondent had demonstrated "a reasonable argument... that there was a "fraud" on the Commission" constituted by an allegation that the First Appellant "knew that it had an obligation to disclose the Disclosable Material but, without dishonesty, made a misrepresentation to the Commission by nondisclosure or concealment of that material from the Commission", in circumstances where the Respondent did not allege that the First Appellant actually knew that it had that particular disclosure obligation.

2.    The primary judge erred in concluding (at PJ[45]) that the Respondent had "demonstrated a reasonable case for certiorari", in circumstances where the species of alleged 'fraud' underpinning the Respondent's claim for certiorari was not known to Australian law.

3.    The primary judge erred in distinguishing each of DUA16 HCA (at PJ[39]) and Mid West Port Authority (at PJ[40]), in circumstances where those authorities were not relevantly distinguishable, were binding on the primary judge, and were fatal to the Respondent establishing a reasonable cause of action.

(particulars omitted)

Principles – FCR 16.21

57    FCR 16.21(1)(e) provides:

(1)    A party may apply to the Court for an order that all or part of a pleading be struck out on the ground that the pleading:

…

(e)    fails to disclose a reasonable cause of action or defence or other case appropriate to the nature of the pleading.

58    The principles in relation to striking out pleadings or parts of pleadings are well-settled.

59    A “reasonable cause of action” is one that has some chance of success having regard only to the allegations pleaded: Allstate Life Insurance Company v Australia & New Zealand Banking Group Ltd (1994) 217 ALR 226 at 236; National Mutual Property Services (Aust) Pty Ltd v Citibank Savings Ltd (No 1) (1995) 132 ALR 514 at 529 (Lindgren J); Polar Aviation Pty Ltd v Civil Aviation Safety Authority (No 4) (2011) 203 FCR 293 at [8]-[17] (Kenny J); Polar Aviation Pty Ltd v Civil Aviation Safety Authority (2012) 203 FCR 325 at [42]-[43].

60    In the case of an assertion that there is no reasonable cause of action, the applicable test imposes a high standard with an applicant required to establish that the claim is “so obviously untenable that it cannot possibly succeed”: General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129-130 (Barwick CJ).

61    FCR 16.21(1)(e) contemplates that the Court may be asked to strike out all or part of a pleading on the ground (amongst others) that it fails to disclose a reasonable cause of action. In answering that question, the court addresses a question of law: McColley v Commonwealth [2014] ACTCA 21 at [28] (Murrel CJ, Refshauge and Penfold JJ).

62    However, a judge may decide a point of law on an application to strike out if satisfied that it is appropriate to do so: Johnson Tiles Pty Ltd v Esso Australia Ltd [2000] FCA 1572; (2000) 104 FCR 564 (Beaumont, French and Finkelstein JJ); Wreford v Castleyheard Pty Ltd (No 3) [2024] WASCA 2 at [89] (Quinlan CJ, Mitchell and Vaughan JJA).

63    Nonetheless, because existing authority may be overruled, further explained or qualified, summary processes must not be used to stultify the law’s development: Spencer v The Commonwealth (2010) 241 CLR 118 at [25] (French CJ and Gummow J).

64    That said, where the success of proceedings depends critically on a proposition of law which would contradict a decision binding on the court, the court hearing the application could justifiably conclude that the proceeding had no reasonable prospect of success: Spencer at [25].

Ground one – the parties’ submissions and consideration

65    Whereas Kent agreed that the word “fraud” was not used in any of the impugned paragraphs and that it only appeared in the heading to [67] of the SFASoC, nonetheless, the primary judge noted that the CEPU’s written submissions proceeded on the basis that Kent engaged in misrepresentation and concealment of the Disposable Information and that the CEPU was alleging fraud: J [5].

66    Kent submits that the plea at [67] of the SFASoC that “upon the proper construction of ss 186-188 and 577 of the [Fair Work] Act, [Kent] was obliged to inform the FWC of the matters pleaded in [33], [33A] and [44A] to [44BB] when the application for approval of the KPPL Agreement was made on 23 June 2022 or at any time prior to the application being determined by the FWC” is a pleading of fraud but without the essential integers.

67    Next, Kent observes that the CEPU pleads: at SFASoC [44C] or [44D] that:

44C.    The first respondent did not disclose and/or concealed the matters pleaded at [44A], [44B], [44BB] and/or [44BBB] above from the FWC.

…

44D.    Further and/or alternatively, the first respondent did not disclose and/or concealed the matters pleaded at [33] above and [33A] from the FWC when the application for approval of the KPPL Agreement was made, heard and/or determined.

68    Kent submits that notwithstanding the pleading of concealment, the CEPU does not allege that the appellants knew they had an obligation to disclose the Disclosable Information. It is on that basis that Kent contends there is no “fraud” pleaded in the required sense and hence no reasonable cause of action.

69    So stated, Kent contends that insofar as a reasonable cause of action is concerned, an essential integer in a cause of action to set aside a decision of an administrative tribunal for fraud is actual fraud, which entails the essential integers of dishonesty, recklessness or wilful blindness and that such a plea is missing.

70    To understand that submission, it is necessary to go back to the contention by Kent that it is only in the case of actual fraud involving dishonesty and not mere negligence that an administrative decision may be affected by jurisdictional error. Since that is the case, Kent submits:

(a)    an allegation of fraud without dishonesty has no reasonable prospect of success; or

(b)    in the alternative, without an allegation of fraud, there is no reasonable cause of action.

71    In support of that submission, Kent relies upon DUA16 (Kiefel CJ, Bell, Keane, Gordon and Edelman JJ) in which the High Court said at [15]:

The insistence by this Court in SZFDE that a ground of review for fraud requires a focus upon the manner in which the fraud adversely affected the operation of the particular system of review, and therefore the statutory functions and powers of the Tribunal, was appropriate because grounds of judicial review arise by implication from the statute which provides the jurisdiction to make the decision . Just as it is usually implied that a decision will be invalid if a decision-maker exercises their powers fraudulently , so too it will usually be implied that a decision will be invalid if a decision-maker is defrauded in the exercise of statutory powers. The implication requires that some aspect of the operation of the legislative scheme be affected by actual fraud or dishonesty, not merely negligence. As this Court said in SZFDE , "there are sound reasons of policy" why an administrative decision is not vitiated merely by bad or negligent advice or some other mishap that leads to detriment to an applicant.

(citations omitted, emphasis added)

72    Kent submits the primary judge erred in two respects in distinguishing DUA16 on the basis that “… The High Court’s ruling that ‘actual fraud or dishonesty was required’ was made in the context of the ‘particular system review’ it was considering”: J [39].

73    First, because “… Grounds of judicial review arise by implication from the statute which provide the jurisdiction to make the decision”: DUA16 at [15]. Second, because the High Court’s observation was not confined to a “particular system of review”.

74    Consequent upon those submissions, Kent submits that it is necessary to have regard to the particular system of review.

75    As to that inquiry, Kent supports its submissions about the particular system of review in this matter by referring to Mid West Port Authority. The primary judge noted that Kent contended that “… the Full Court held that the only circumstance in which information discovered after an approval might vitiate that approval is where the information is ‘actively concealed’”: J [41].

76    On appeal, Kent advanced, in effect, the same argument that nothing in the Enterprise Approval Scheme in Pt 2-4 of the Fair Work Act gives rise to a basis that anything other than actual fraud or dishonesty is required for the FWC’s approval to be vitiated.

77    It follows that to accept Kent’s submissions is necessarily to accept that to set aside the approval of an enterprise agreement approved under the Enterprise Agreement Scheme in Pt 2-4 of the Fair Work Act requires only cases of actual fraud or dishonesty.

78    Kent’s reliance on Mid West Port Authority as authority for the proposition that only in cases of fraud or actual dishonesty can the approval of an enterprise agreement under the scheme in Pt 2-4 of the Fair Work Act is misplaced.

79    The facts in Mid West Port Authority were that the FWC approved an Enterprise Agreement (2017 Enterprise Agreement) that was intended to cover a number of employees of Mid West Port Authority. After the approval, it was discovered by both the Construction, Forestry, Maritime, Mining and Energy Union and Mid West Port Authority that some 40% of the employees were not given an opportunity to vote on whether to approve the agreement. Section 182 of the Fair Work Act provides that an enterprise agreement is made when the majority of employees cast a vote to approve the agreement.

80    When Mid West Port Authority and the Union became aware of the issue, they applied for a new Enterprise Agreement which was approved by the FWC in 2018. The 2017 Enterprise Agreement was not terminated in accordance with the Fair Work Act.

81    Subsequently, the Union pursued claims for over-time under the terms of the 2017 Enterprise Agreement and sought payment of civil penalties in the Western Australian Industrial Magistrates Court.

82    In response, Mid West Port Authority maintained the 2017 Enterprise Agreement was not valid, because amongst other things, the 2017 Enterprise Agreement had not been genuinely agreed such that the FWC could not have formed the required state of satisfaction required for approving the agreement.

83    An Industrial Magistrate decided that the FWC was entitled to rely upon the information put before it is as part of the application for approval of the Enterprise Agreement in arriving at the required state of satisfaction. The Industrial Magistrate concluded that the 2017 Enterprise Agreement was validly approved.

84    Mid West Port Authority appealed to the Full Court which observed that the real point on appeal was, that having found that the 2017 Enterprise Agreement was not validly “made” within the meaning of s 182(1) of the Fair Work Act, whether the Industrial Magistrate err in concluding that a valid application for approval of the 2017 Enterprise Agreement was not dependent on the enterprise agreement having been made in accordance with the provisions of the Fair Work Act with the consequence that the 2017 Enterprise Agreement continued to apply.

85    The Full Court at [14]-[15] observed that Mid West Port Authority’s case on appeal depended on it establishing that the FWC had no jurisdiction unless there existed an enterprise agreement which had been validly made in accordance with the pre-approval steps required by the Fair Work Act. In turn, that depended on whether the making of a valid enterprise agreement was a jurisdictional fact upon which the exercise of the statutory power or discretion in question by the FWC depended. That also, in turn, was a question of statutory construction and in particular the question of whether the statutory power that arises is entrusted to the particular repository of the power or whether it is a pre-condition that requires satisfaction before the jurisdiction is enlivened.

86    The primary judge set out passages at [40] and [43] of the Full Court judgment in Mid West Port Authority: J [40]:

40    It was submitted that the fact that a substantial cohort of employees had been left out of the voting process meant that the approval decision was outside the jurisdiction conferred upon the FWC… However, for reasons that have been given, the authority of the FWC to approve depended only upon the making of the application (which was required to be made once the vote was taken in fact) and the formation of the required state of satisfaction on the evidence and material before the FWC. It would undermine the scheme of the Act if it might be said that the extent of the authority to validly approve depended upon what might be discovered at a later date about the matters about which the FWC was required to be satisfied. Putting to one side issues of active concealment from the FWC which would give rise to different questions, the scheme for approval would be undermined if the extent of the authority conferred upon the FWC was qualified in the manner submitted by MWP.

…

43    It follows that in order to demonstrate jurisdictional error in the decision of the FWC it would be necessary to demonstrate some respect in which the formation of the required state of satisfaction did not conform to the statutory requirement (such as proceeding on a misunderstanding of the meaning of the statutory provisions about which it was forming the required state of satisfaction concerning compliance or legal unreasonableness) …

87    As is apparent from the extract above, the Full Court decided that the pre-approval process was not a matter about which the FWC needed to be satisfied in order for an enterprise agreement to be approved. It did not require satisfaction that the making of the enterprise agreement had, in fact, occurred, only that the FWC had to be satisfied that it had occurred. The Full Court said that the authority of the FWC to approve an enterprise agreement depended only upon the making of the application and the formation of the required state of satisfaction based on the evidence and the material before it: at [40].

88    As is apparent in Mid West Port Authority, the Court was considering whether a defect in the pre-approval process that was the pre-cursor to an application was such as to give rise to a basis upon which the issue of a writ of certiorari may be entered. That is an entirely different consideration from that pleaded by the CEPU in this matter.

89    Further, in Mid West Port Authority, there was no misrepresentation at the approval hearing. That is the point the Full Court made at [40] when it put to one side “issues of active concealment from the FWC which would give rise to different questions”. In that passage, the Full Court is differentiating between a pre-approval process and conduct which has the effect of misleading the FWC at the approval hearing although it may be accepted that the Full Court may have been referring to an element of dishonesty when referring to “active concealment”.

90    Paragraph [67] of the SFASoC pleads clearly that Kent was obliged to inform the FWC of the matters pleaded in relation to the four employees “… when the application for approval of the KPPL Agreement was made … or at any time prior to the application being determined by the FWC …”.

91    Further, Kent accepted on appeal that it is arguable that a duty to disclose arises when this particular legislative scheme is considered. Of course, that is a matter which falls to be determined at trial and not on an interlocutory application to strike out.

92    Still further, there is nothing in the Full Court’s judgment in Mid West Port Authority that rises to the point of saying that only in cases of actual fraud involving dishonesty can the approval of an enterprise agreement be set aside. That is in no doubt because the Full Court was not considering such a case.

93    Finally, in both DUA16 and SZFDE, the High Court was dealing with dishonesty. In neither case did the High Court say it was only in cases of fraud, necessarily involving dishonesty, that jurisdictional error arises.

94    It is evident from the matters set out above that the case put forward by the CEPU before the primary judge involves a different factual scenario to that in Mid West Port Authority such that the primary judge was correct to distinguish it.

95    To the extent the appellants contend that the scheme under the Fair Work Act contains no basis to depart from the “usual implication” that actual fraud or dishonesty is required, that is not only a matter for the substantive hearing and the factual finding to be made, it also broadens significantly, and with respect impermissibly, what the High Court said in DUA16 and misapplies Mid West Port Authority.

96    Next, Kent contends that CEPU’s case would represent a destabilising incursion into the enterprise agreement process, have a negative impact on employers and employees alike, and gives three examples of why that would be so. Whether or not that is the case is a matter for the substantive hearing and may or may not be taken into account in the process of construing the relevant provision. It is not a matter for this Full Court when entertaining an appeal from a refusal to strike out a pleading.

97    There is nothing in any of the authorities to say that a failure to disclose and/or concealment, albeit innocent, cannot lead to jurisdictional error, depending of course on the legislative scheme under consideration.

98    This is not a case where it may be said that the cause of action is not one known to law and so cannot amount to a reasonable cause of action. To take that approach in this matter entails the risk of stultifying the development of the law.

99    It follows that ground one fails.

Ground two – parties submissions and consideration

100    Ground two is that the primary judge erred in concluding: J [45] that the respondent had demonstrated a reasonable case for certiorari in circumstances where a species of alleged “fraud” underpinning the respondent’s claim for certiorari was not known to Australian law.

101    I have dealt with that matter when dealing with ground one. It is for the same reasons that I do not accept the contention that jurisdictional error cannot arise in circumstances where there is a failure to disclose and/or conceal information from the FWC, albeit innocently and without dishonesty. Whether the CEPU’s claims for writs of certiorari and mandamus under the circumstances is made out or not is a matter for the substantive hearing. However, what cannot be said is that the cause of action alleged by the CEPU is such that there is no room for the consideration of such a cause of action because of established principles.

102    It is for the reasons that I have set out above in relation to ground one, that ground two fails.

Ground three – parties’ submissions and consideration

103    Ground three asserts that the primary judge erred in distinguishing each of DUA16 and Mid West Port Authority in circumstances where the authorities were not relevantly distinguishable but were binding on the primary judge and were fatal to the respondent establishing a reasonable cause of action.

104    I have dealt with this issue when dealing with ground one.

105    It is for those reasons that ground three also fails.

Conclusion

106    The appeal should be dismissed.

Associate:

Dated:    27 May 2026