FEDERAL COURT OF AUSTRALIA

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (Bruce Highway Separate Question Case) [2018] FCA 771

ORDERS

THE COURT ORDERS THAT:

1.    The interlocutory application filed on 2 May 2018 is refused.

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

REASONS FOR JUDGMENT

WHITE J:

1    This judgment concerns an application for an order under r 30.01 of the Federal Court Rules 2011 (Cth) (the FCR) that a question of law arising in the proceedings be heard and determined separately from the other issues in the proceedings.

2    The action was commenced on 18 April 2018. The Australian Building and Construction Commissioner (the Commissioner) alleges contraventions by the Third to Eighth Respondents of ss 497 and 500 of the Fair Work Act 2009 (Cth) (the FW Act) on various dates in March and/or the first half of April 2018. The conduct which is the subject of the allegations rises from the entries of these Respondents on to a construction site on the Bruce Highway between Caloundra Road and the Sunshine Motorway in Queensland (the Site). The Second Respondent, Mr Pauls, is an official of the Construction, Forestry, Maritime, Mining and Energy Union (the CFMMEU). The Commissioner alleges that his conduct in entering and remaining on the Site was a contravention of s 494(1) of the FW Act.

3    In relation to the CFMMEU, the Commissioner asserts that it has contravened ss 497 and 500. In this respect, the Commissioner relies, in the alternative, on ss 793 and 550 of the FW Act.

4    It is common ground that the entries were made pursuant to s 81 of the Work Health and Safety Act 2011 (Qld) (the WHS Act).

5    The principal relief sought by the Commissioner is the making of declarations, the imposition of civil penalties and the issue of injunctions.

6    The Respondents contend that an entry onto a site under s 81 of the WHS Act is not the exercise of “a State or Territory OHS right” to which Div 3 of Pt 3-4 of the FW Act applies, with the consequence that they could not have contravened any of ss 494, 497 or 500.

7    On 20 April 2018, Collier J issued, on the application of the Commissioner, two interlocutory injunctions. The first injunction restrained the CFMMEU from causing, requesting, advising, encouraging or inciting any of its officials to exercise a right pursuant to s 81 of the WHS Act at the Site unless that official is a permit holder within the meaning of the FW Act and the official produces the entry permit for inspection when requested to do so by employees, agents or representatives of the occupiers of the Site.

8    The second injunction restrained each of the individual Respondents from exercising a right pursuant to s 81 of the WHS Act at the Site unless he is a permit holder within the meaning of the FW Act and produces his permit for inspection when requested to do so by employees, agents or representatives of the occupiers of the Site.

9    The Minister for Education and the Minister for Industrial Relations of Queensland has intervened in the proceedings, pursuant to s 569A of the FW Act.

The Separate question application

10    By an interlocutory application filed on 2 May 2018, the Commissioner applied for a question of law to be determined separately from other questions in the proceedings. During the course of the hearing of the application, the Commissioner revised the proposed question so that there are now two proposed questions, but both raising the same issue. The two questions, which arise from entries on different days, are:

1.    When the second, third, fifth and sixth respondents entered [the Site] on 11 April 2018 pursuant to s 81(3) of [the WHS Act], were they exercising a “State or Territory OHS right” within the meaning of s 494(2) of [the FW Act]?

2.    When the second and third respondents entered [the Site] on 16 April 2018 pursuant to s 81(3) of [the WHS Act], were they exercising a “State or Territory OHS right” within the meaning of s 494(2) of [the FW Act]?

11    Each of the Respondents and the Minister supported the Commissioner’s application for the order under r 30.01.

12    The parties have agreed, for the purpose of the proceedings, including the Court’s determination of the separate questions, a number of facts relating to the entries onto the Site on 11 April and 16 April 2018. It was common ground that the facts agreed are all the facts necessary for the determination of the questions of law, but not those necessary for the determination of all matters bearing on the alleged contraventions.

13    The principles which inform the exercise of the Court’s discretion under r 30.01 are settled and were summarised recently by Gilmour J in State of Western Australia v Galati [2017] FCA 236 at [9]-[14]. They include:

(a)    the usual position is that all issues of fact and law should be determined at the one time in the one proceeding, and an order for the trial of a separate question under r 30.01 involves a departure from the norm;

(b)    the judicial determination of a separate question must involve a conclusive or final decision based on established or agreed fact for the purpose of quelling a controversy between the parties;

(c)    when the question is one of mixed fact and law, it is necessary that the question be precisely formulated and that all of the facts which are, on any arguable view, relevant to the determination of the question have been identified as agreed facts or facts which are to be determined in the hearing;

(d)    a factor supporting an order for the trial of a separate question is that its determination may contribute to the saving of time and cost by substantially narrowing the issues for trial, or even to disposal of the action;

(e)    the prospect of there being significant overlap between the evidence adduced on the hearing of the separate question and at a later trial, especially if it involves the calling of the same witnesses, is a factor counting against separate trials; and

(f)    it is for the party seeking to have a question determined separately to demonstrate that there should be a departure from the ordinary course.

14    It is also appropriate to keep in mind the caution sounded by Kirby and Callinan JJ (with whom Gaudron J agreed) in Tepko Pty Ltd v Water Board [2001] HCA 19; (2001) 206 CLR 1 at [168] and [170]:

(a)    the attractions of trials of issues rather than of cases in their totality are often more chimerical than real;

(b)    the additional potential for further appeals to which the course of the trial on separate issues may give rise is factor militating against a split trial; and

(c)    single-issue trial should only be embarked upon when the utility, economy and fairness to the parties are beyond question.

Consideration

15    The submissions of the parties proceeded on the basis that, in the event that the Court did not make the present order sought by the parties, the usual course in penalty proceedings of the present kind may follow: the Court would order that the liability issues be heard and determined separately from the issues concerning the forms of relief sought by the Commissioner. In that course of events, the determination of these proceedings would involve two trials: a liability trial and a penalty hearing trial.

16    A number of matters point in favour of the order sought by the parties in this case. The Commissioner accepts that, if the questions of law are resolved in the negative, that will be fatal to the allegations he makes in the proceedings with the consequence that they will be dismissed. However, the converse is not true. That is because there would be further issues which would be appropriate to be resolved in a liability trial. The parties held out the prospect, however, that they may be able to come to some agreement on those remaining issues, perhaps through participation in a mediation. Thus, they submitted that, even if the questions of law are resolved in the affirmative, there is likely to be some shortening of the time needed for a trial.

17    The parties’ estimate of a trial limited to the separate questions is less than one day. A full liability trial may take up to one week.

18    The parties also emphasised the appropriateness of the framing of the questions of law and that all the facts necessary for their determination have been agreed. I accept that the fact that all parties joined in the application for the ordering of a trial of the separate questions of law is a factor favouring the making of the order.

19    Having regard to the potential for fragmentation resulting from multiple appeals, counsel for the Respondents gave a commitment on behalf of his clients that they would not seek leave to appeal against the determination of the separate questions, in the event that they are resolved adversely to them.

20    Another factor pointing in favour of the separate determination of the questions of law is that the hearing is likely to be short and able to be heard sooner than a full liability trial. The parties said that they could be ready for such a trial in the near future. These are relevant considerations not only for the reasons already mentioned, but because the Respondents are presently subject to the interlocutory injunctions issued by Collier J.

21    Against these considerations, however, is the fragmentation of the trial process. The position for which the parties contend has the prospect of the trial in these proceedings involving three stages: the hearing and determination of the questions of law; if that is resolved adversely to the Respondents, the hearing and determination of the remaining liability issues; and if they are resolved adversely to the Respondents, the hearing and determination of the Commissioner’s claim for relief. The consequence is that the ultimate resolution of these proceedings could be protracted and involve the allocation of judicial (and therefore public) resources to a greater extent than would be the case if the proceedings are determined in the conventional manner. The Court should be concerned about the fragmentation of the trial process. A three stage trial is not desirable.

22    The parties sought to assuage the Court’s concerns in this respect by emphasising the possibility of agreement being reached with respect to the further liability issues once the questions of law have been answered. Naturally, one would encourage that to occur and I accept that there have been instances in the past in which liability issues have been resolved by agreement.

23    However, if agreement of that kind can be reached after the questions of law have been resolved, it should also be able to be reached before that resolution, on the basis of the contingency that they will be resolved adversely to the Respondents. That is to say, there does not seem any good reason why the foreshadowed efforts by the parties to resolve the remaining liability issues should not occur before the hearing, with the consequence that the liability stage of the trial may still involve one hearing only.

24    I note in this respect that the parties have shown some willingness to attempt to agree some, if not all, of the facts bearing on the remaining issues in the trial.

25    In Australian Building and Construction Commissioner v Powell [2017] FCAFC 89; (2017) 251 FCR 470, the Full Court considered an issue similar to that raised by the proposed questions. Powell concerned provisions in the Occupational Health and Safety Act 2004 (Vic). The WHS Act in Queensland is expressed differently so that the decision in Powell will not be decisive in the present case. Nevertheless, I consider it appropriate to take into account that the Full Court of this Court has already considered some of the issues which can arise under Div 3 of Pt 3-4 of the FW Act concerning State or Territory OHS rights. As I understand it, the Respondents accept that the decision in Powell may, unless it is able to be distinguished, be influential in the resolution of the questions of law.

26    All these matters lead me to conclude, on balance, that it is not appropriate to make the order sought by the parties. Instead, the Court will endeavour to provide a liability trial as soon as the parties are ready. The parties should be encouraged to agree as many of the facts for the resolution of the liability issues in the trial as are possible, and thereby to reduce the time which will be necessary for the liability trial. Obviously enough, the greater the degree of agreement, the shorter the trial is likely to be and the sooner it may occur.

27    The formal order of the Court is that the interlocutory application of the Commissioner made on 2 May 2018 is refused. I will hear from the parties with respect to case management.

Associate:

Dated:    28 May 2018

SCHEDULE OF PARTIES