Federal Court of Australia

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Kent Projects Pty Ltd [2025] FCA 362

ORDERS

THE COURT ORDERS THAT:

1.    The applicant has leave to file a Second Further Amended Statement of Claim by 4.30 pm (AEST) on 7 May 2025.

2.    In respect of the Second Further Amended Statement of Claim, compliance with r 16.59(2) of the Federal Court Rules 2011 (Cth) be dispensed with to the extent that it requires the retention of the existing marking-up of amendments.

3.    The first respondent’s amended interlocutory application to strike out the applicant’s pleading be adjourned to a date to be fixed.

4.    The first respondent notify the Court by 4.30 pm (AEST) on 21 May 2025 as to whether it intends to further pursue its interlocutory application.

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

REASONS FOR JUDGMENT

RANGIAH J:

1    In the principal proceeding, the applicant (the Union) applies for relief under s 39B of the Judiciary Act 1903 (Cth), including a writ of certiorari directed to the Fair Work Commission (the Commission) quashing its decision to approve the “KPPL Agreement” (see [2022] FWCA 2657).

2    The first respondent (Kent Projects) is the employer covered by the KPPL Agreement. The Union alleges, relevantly, that Kent Projects engaged in a fraud on the Commission by failing to disclose to, or concealing from, the Commission, information that it was obliged to disclose.

3    In the interlocutory application presently before the Court, Kent Projects seeks an order that the paragraphs of the Union’s Further Amended Statement of Claim (FASOC) pleading the allegation of fraud be struck out for failure to disclose any reasonable cause of action.

4    The FASOC alleges, relevantly for present purposes, that:

    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; and 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; and two of them were temporary employees.

    Kent Projects did not disclose and/or concealed the matters described in the second and fourth dot points (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.

5    It may be observed that the only mention of the word “fraud” in the FASOC is in the heading of paragraph 67, “Approval of KPPL Agreement Vitiated by Fraud on the Tribunal, by Misrepresentation or Concealment”. However, the Union’s written submissions proceed on the basis that by alleging that Kent Projects engaged in misrepresentation and concealment of the Disclosable Information, it is alleging fraud.

6    Rule 16.21(1)(e) of the Federal Court Rules 2011 (Cth) (the Rules) provides that:

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: … fails to disclose a reasonable cause of action or defence or other case appropriate to the nature of the pleading.

7    A “reasonable cause of action” is one that has some chance of success having regard to the allegations pleaded: Polar Aviation Pty Ltd v Civil Aviation Safety Authority (2012) 203 FCR 325 at [42]-[43].

8    By its Further Amended Interlocutory Application, Kent Projects seeks an order pursuant to s 16.21(e) of the Rules striking out paragraphs 44A to 44D, 67 to 69, 75 to 77 and 79 of the FASOC. Kent Projects alleges, in substance, that those paragraphs allege misrepresentations which are incapable of amounting to fraud that is capable of resulting in the quashing of the Commission’s decision.

9    Kent Projects submits that for the alleged fraud to be capable of vitiating the Commission’s decision, the “misrepresentation and/or concealment” must have three essential features, which are lacking in this case, namely:

(a)    there must have been a legal obligation on Kent Projects to disclose the Disclosable Matters to the Commission;

(b)    there must have been “some dishonest element” involved in the alleged concealment; and

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

10    In addition, Kent Projects submits that the three matters are not adequately pleaded or particularised in accordance with r 16.42 and 16.43 of the Rules. Rule 16.42 requires, relevantly, that a party who pleads fraud or misrepresentation, “must state in the pleading particulars of the facts on which the party relies”. Rule 16.43(1) requires that, “a party who pleads a condition of mind must state in the pleading particulars of the facts on which the party relies”.

11    The Union’s response to the first of the three asserted “essential features” is that s 577 of the FWA requires the Commission to have regard to all relevant matters, with the corollary that the parties are required to make full and frank disclosure to the Commission of all matters relevant to the proper determination of the matter. Under s 577 of the FWA, the Commission must perform its functions and exercise its powers in a manner that is fair, just, quick, informal, open and transparent, that avoids unnecessary technicalities and that promotes harmonious and co-operative workplace relations. The Union submits that the Commission is thereby required to take into account all relevant matters in considering whether to approve an enterprise agreement. Section 576(2)(ab), which provides one function of the Commission to be promoting good faith bargaining and the making of enterprise agreements also appears to be relevant. So too, may s 578(b), which provides that the Commission must take into account, “the equity, good conscience and the merits of the matter”.

12    The Union relies on Municipal Officers Association of Australia v The Mayor, Alderman, Councillors, and Citizens of the City of Greater Brisbane (1927) 25 CAR 932 at 935, where, in the context of an application for a certification of an agreement under s 24 of the Commonwealth Conciliation and Arbitration Act 1904 (Cth), Lukin J held that the parties were, “duty bound to act in the utmost good faith with the Court, and to disclose every relevant matter bearing on the propriety of certifying a document which by force of the Statute is made a judgment and award of the Court.”

13    In Re Rubber, Plastic and Cable Making Industry Award 1972 (1975) 167 CAR 929, Gaudron J, as a member of the Conciliation and Arbitration Commission, held at 930:

Although there is no provision in the [Commonwealth Conciliation and Arbitration Act] specifically requiring parties to disclose any matters contrary to their interests, it is clear from the Act, that the Commission is bound to have regard to all relevant matters in determining the disputes before it. This duty is cast upon the Commission by section 39(1) and section 40(1)(c).

Section 40(1)(c) provides –

‘The Commission shall act according to equity, good conscience and the substantial merits of the case, without regard to technicalities and legal forms.’

Section 39(1) provides –

‘In relation to an industrial dispute with which the Commission is dealing, the Commission shall, in such manner as it thinks fit, carefully and expeditiously hear, inquire into and investigate the dispute and all matters affecting the merits of the dispute and the right settlement of the dispute.’

The duties imposed by the above provisions cannot be adequately discharged if the Commission is either misinformed or deliberately left uninformed on any relevant matters. It follows therefore, that there is a duty on persons appearing before the Commission to ensure that there is frank and full disclosure of all matters which are relevant to the proper settlement of the dispute before the Commission.”

14    Justice Gaudron’s decision was upheld on appeal, the Full Bench holding at 932:

In these circumstances, we consider the parties had a duty to inform the Commissioner of the competing claims for industrial coverage so that opportunity could have been given for The Federated Miscellaneous Workers Union of Australia to be heard. The test we apply is whether the outcome of the proceedings before the Commissioner might conceivably have been different if disclosure had taken place.

15    In Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Energy Developments Limited & Anor [1996] AIRC 2167, the Full Bench of the Commission stated:

In our view the decisions to which we have referred are authority for the following propositions:

(i)    Persons appearing before the Commission have a duty to ensure that there is full and frank disclosure of all matters which are relevant to the proper determination of the matter before the Commission.

(ii)    If the outcome of the proceedings in question might conceivably have been different if disclosure had taken place the Commission may act to set aside the act or decision in question.

(iii)    Where the failure to make a full and frank disclosure has resulted in a denial of natural justice or where legislative or jurisdictional requirements have not been complied with the Commission may be obliged to set aside the act or decision in question.

16    As to the relevance of the Disclosable Material, the Union submits that it was relevant to the question of the Tribunal’s satisfaction under s 186(2) of the FWA that the agreement had been “genuinely agreed to by the employees covered by the agreement”. The Union relies upon the analysis of the Full Court in One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union (2018) 262 FCR 527, especially at [155]-[163].

17    These authorities are sought to be distinguished by Kent Projects, but it is at least arguable that they are not distinguishable. For present purposes, I am satisfied that the Union has demonstrated a reasonable argument that Kent Projects was obliged to disclose the Disclosable Information to the Commission.

18    The second of the “essential features” which Kent Projects asserts must be pleaded and proved is an element of dishonesty in the alleged “misrepresentation and/or concealment” of the Disclosable Information. The Union accepts that it has not pleaded that Kent Projects’ failure to disclose the relevant matter to the Commission was dishonest. In fact, in its oral submissions, the Union adamantly asserted that it had not alleged dishonest intent on the part of Kent Projects, drawing a distinction between “active concealment” and “dishonesty”.

19    The Union gave no clear explanation of the distinction it seeks to draw and did not refer to any authority dealing with the distinction. The Union pleads that Kent Projects “knew” that it was required to disclose the Disclosable Information to the Commission and proceeded to “conceal” that information from the Commission. The ordinary meaning of “conceal” is “to hide”, implying an intentional act.

20    In Anderson v Daniels (1983) NSW Conv R 55 at 57,044, the New South Wales Court of Appeal approved the following passage from Salmond on Torts 17th ed (1977) at 388:

Active concealment of a fact is equivalent to a positive statement that the fact does not exist. By active concealment is meant any act done with intent to prevent a fact from being discovered; for example, to cover over the defects of an article sold with intent that they shall not be discovered by the buyer has the same effect in law as the statement in words that those defects do not exist.

21    The Union’s allegation of “active concealment” the Disclosable Information seems to emphasise the intentional or deliberate nature of the alleged concealment. The assertion of deliberateness is also borne out by the Union’s submissions during the hearing that the Commission, was “left misinformed” or “deliberately left uninformed”.

22    In circumstances where it alleged that Kent Projects knew that it was required to disclose the Disclosable Information but intentionally concealed or hid that material from the Commission, presumably because it knew that disclosure would be contrary to its interests, it is difficult to understand why the Union’s allegation of “active concealment” does not involve an allegation of “dishonesty”. It is also difficult to see how there could have been an honest “active concealment” in the circumstances.

23    However, it is necessary to assess the FASOC by reference to the Union’s steadfast position that it has not pleaded any dishonest concealment of the Disclosable Material.

24    The Union submits that what constitutes a fraud is not settled. It also submits that the notion of fraud on an administrative tribunal is a broader concept than fraud as it is known to the common law (sometimes referred to as “red-blooded fraud”), where it does not necessarily require actual dishonesty.

25    The Union relies upon Leung v Minister for Immigration and Multicultural Affairs (1997) 79 FCR 400 (Leung), where Finkelstein J (Beaumont J agreeing) observed at 411 that an administrative decision could be impugned for jurisdictional error on the basis of misrepresentation or fraud. Then his Honour held at 416:

Each appellant obtained a certificate from the Minister having misrepresented the nature of the activities that were being undertaken by the appellants whilst outside Australia. The Minister has now discovered the true position and whilst not wishing to allege that the appellants were guilty of fraud, has “revoked” the certificates granted to them and treated that revocation as a refusal of their applications for certificates under s 13(1). There is no doubt that the Minister was entitled to take these steps. No statutory power was required. The original decisions, having been obtained by a misrepresentation, were not decisions made in the true exercise of the power conferred by s 13(1) and can be treated as having no effect.

(Emphasis added.)

26    In Leung, the Full Court accepted that the misrepresentation, which was not fraudulent, allowed the original decision to be treated as having no legal effect.

27    In Minister for Immigration & Multicultural Affairs v SZFDE (2006) 154 FCR 365, a person falsely held himself out as a migration agent and solicitor, charged a visa applicant substantial fees and then advised her not to appear before the Tribunal, telling her that the application would be refused if she appeared. A majority of the Full Court of the Federal Court held that the decision of the Tribunal was not induced or affected by the fraud. Justice French in dissent at [74] identified the agent’s fraud as the provision of advice not to attend before the Tribunal, which was dishonest in that the agent did not honestly hold the belief that if the applicant attended, she would be refused the protection visa she was seeking. His Honour then observed:

121    The common law proposition that fraud may vitiate an administrative decision made in the exercise of a statutory power applies as part of the common law of Australia as it does as part of the common law of England. It has not been formulated with precision. Its extension to circumstances “analogous to fraud” covers a range of situations which are not clearly delineated. It appears to cover “reckless” conduct. As Aronson, Dyer and Groves observed, after referring to the acceptance in Al-Mehdawi that decisions of inferior courts and tribunals could be reviewed at the instance of one party for the fraud, perjury, duress or even simply improper behaviour of another party:

The principle underlying these cases however is still unclear.

It is sufficient to say that a decision made in the purported exercise of statutory powers may be quashed by certiorari where the decision has been induced or affected by fraud or by circumstances analogous to fraud.

122    Fraud and “analogous circumstances” will justify the grant of certiorari if they “distort” or “vitiate” the statutory process leading to the impugned decision to such an extent that it can be said that the decision was induced or affected by that fraud or those circumstances. There was support for that approach in Barrett. The distortion can occur in more than one way. A decision-maker may be misled by false material dishonestly put before it. Relevant material favourable to a person to be affected by the decision may be deliberately and dishonestly withheld by a third party who would reasonably be expected to disclose it either in the discharge of a statutory duty or by reason of that party’s official responsibilities in the administration of the decision-making process. In either case the decision-making process can be said to have been distorted by fraud in a way that induced or affected the decision. The English authorities would support an extension of that proposition to a class of case involving the tender of misleading material or the non-disclosure of favourable material even though no dishonesty was involved.

(Emphasis added.)

28    It may be observed that the concluding sentence to [122] indicates that English authorities support the proposition that if deliberate non-disclosure of relevant material produces a distortion of an administrative decision-making process to such an extent that it induced or affected the decision, then certiorari may be justified, even if no dishonesty was involved.

29    The English authorities cited by French J include R v Leyland Justices; Ex parte Hawthorn [1979] QB 283 (Ex parte Hawthorn) at 286. In that case, the prosecutor in criminal proceedings in the Magistrates Court had failed to disclose certain witness statements, resulting in the conviction of the defendant. Certiorari was issued to quash the conviction for denial of natural justice, even though there was no fault on the part of the Magistrates Court.

30    Justice French also considered R v Secretary of State for the Home Department; Ex parte Al-Mehdawi [1990] 1 AC 876 (Al-Mehdawi). The Court of Appeal had held that in circumstances where a party had failed to appear before an administrative tribunal because of the neglect of their advisers, there was a denial of natural justice. The House of Lords reversed that judgment. Lord Bridge delivering the judgment of the House of Lords distinguished Ex parte Hawthorn on the basis that the case, involving a failure (without dishonesty) to disclose material favourable to the defence, was a case of, “suppression of the truth”, and had the same effect as a false statement, “in distorting and vitiating the process leading to conviction”: at 896.

31    Justice French referred to the judgment of the Full Court in Barrett v Minister for Immigration, Local Government & Ethnic Affairs (1989) 18 ALD 129 (Barrett) which had considered the judgment of the Court of Appeal in Al-Mehdawi, before its reversal by the House of Lords. In Barrett, the Full Court observed that if a decision-maker acts upon a misleading submission from their department, not shown to the person affected, the decision may be vitiated. Their Honours held at 133:

We would add that it may be that where the decision-maker acts substantially upon a departmental submission which is not communicated to the other side, the decision is vitiated if that submission is seriously misleading as to the facts. That may be argued to be such a fundamental flaw in the decision making process” (R v Secretary of State; Ex parte Al-Mehdawi [1989] 2 WLR 603 at 611) as to make the decision bad on the ground that the decision making process was, even if through no fault of the decision-maker himself, “seriously defective or irregular”, to use an expression adopted by the Court of Appeal in the case just mentioned.

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.

33    In SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189, the judgment of the Full Court of the Federal Court was reversed by the High Court. The High Court emphasised at [29] that the appeal required, “close attention to the nature, scope and purpose of the particular system of review”. As the High Court decided the case on the basis that there was dishonesty, there was no occasion to consider the effect of the English authorities described at [122] of French J’s judgment. The High Court emphasised at [28] that it was unnecessary for the purpose of resolving the case, “to determine at large and in generally applicable terms the scope for judicial review for ‘third party fraud’ of an earlier administrative decision…”. The High Court also observed at [53] that, “there are sound reasons of policy why a person whose conduct before an administrative tribunal has been affected, to the detriment of that person, by bad or negligent advice or some other mishap should not be heard to complain that the detriment vitiates the decision made”.

34    The issue of whether “conduct analogous to fraud” was “fraud” for the purposes of s 5(1)(g) of the Administrative Decision (Judicial Review) Act 1977 (Cth) (the ADJR Act) was considered by Reeves J in Burragubba v Queensland [2016] FCA 984. His Honour ultimately determined that the applicant had in fact alleged fraud involving dishonesty. His Honour observed:

[195]    The English and Australian authorities reviewed by French J in SZFDE and by the High Court demonstrate that fraud extends to include dishonesty, perjury, collusion and other seriously improper behaviour. That is, to use the words of French J: “Fraud involves dishonesty.” However, as both judgments in SZFDE show, there are rare circumstances where dishonesty has not been regarded as a necessary prerequisite for a court to intervene and order certiorari. In the criminal courts where a serious injustice has been inflicted on a person, usually by wrongfully recording a conviction against him or her, decisions have been set aside that do not involve the degree of wrongdoing that is commonly characterised as dishonesty. Furthermore, in public law, fraud has been held to extend to “bad faith” and “abuse of power” by a decision-maker which does not involve intentional dishonesty or moral obliquity, but instead involves acting on unreasonable or improper grounds. Further still, administrative decisions have been set aside where the decision-maker was not at fault, but the process had been rendered “seriously defective or irregular”. This has occurred where relevant material has been withheld from a decision-maker and that has rendered the decision-making process of that character. On the other hand, in proceedings to set aside search warrants, the Full Court of the Federal Court in Lego held that there was no general or abstract duty of disclosure to be imposed on an officer applying for a search warrant. Nonetheless, while “a statement which was a half-truth and thus misleading” may be treated as a misrepresentation, for present purposes, it has to be in the nature of a fraudulent misrepresentation, because an innocent misrepresentation will not suffice.

[196]    Taking account of all these matters, I consider the expression “analogous to fraud” does little more than reflect the infinite variety of conduct that falls within the meaning of the word “fraud”. In other words, that expression neither adds to, nor subtracts from, the wide and variable meaning that the law may give to the word “fraud”, ranging from the common law’s “red blooded” species to the public law’s unreasonable or improper grounds. Whether conduct is of such a character that a court is justified in characterising it as fraud such that it will vitiate an administrative decision will depend entirely on the particular facts and circumstances relevant to each individual case. Nonetheless, aside from the exceptional categories of cases mentioned above, the authorities show that the conduct in contention will generally involve some form of dishonesty, or involve some serious misconduct such as perjury or collusion, or be shown to have resulted in a decision which is “seriously defective or irregular”, none of which need be connected with fault on the part of the decision-maker.

(Emphasis added. Citations omitted.)

35    These passages make it clear that, on Reeves J’s review of the authorities, dishonesty is not always required. His Honour considered that there may be cases where, depending on the particular facts and circumstances, departure from required standards of disclosure means that the administrative decision was seriously defective or irregular and should be quashed on that basis.

36    In Burragubba v State of Queensland [2017] FCAFC 133, the Full Court upheld Reeves J’s judgment. It may be noted that their Honours observed at [24] that the appellant’s case concerning fraud was “difficult to understand” in circumstances where the appellant had in fact alleged that the respondent dishonestly misled the Tribunal by not disclosing certain material, but, “spent much time, at first instance and on appeal, in trying to establish that for the purpose of s 5(1)(g), “fraud” includes “conduct analogous to fraud”, and that the term, “conduct analogous to fraud” may include conduct which involves no dishonesty”. The passage may have some resonance with the present case.

37    The Full Court observed at [25] that to the ordinary person the word “fraud” necessarily carries the connotation of dishonesty, while the expression, “conduct analogous to fraud” has no precise meaning. The Full Court at [25] and [49] rejected the submission that in s 5(1)(g) of the ADJR Act the word “fraud” encompasses “conduct or circumstances analogous to fraud”. However, the Full Court also noted at [25], apparently without criticism, the view expressed in Al-Mehdawi at 896 by Lord Bridge.

38    Kent Projects submits that the effect of the High Court’s judgment in Minister for Home Affairs v DUA16 (2020) 271 CLR 550 (DUA16) was to overrule the English authorities, including Al-Mehdawi, in the following passage:

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.

39    As is plain from the passage, the High Court’s ruling that “actual fraud or dishonesty” was required was made in the context of the “particular system of review” it was considering. That ruling was also made in the context of considering whether a fraud perpetrated on a party by their agent amounted to a fraud on the tribunal, and not whether misleading conduct directly engaged in by a party could amount to fraud on a tribunal. The High Court made no reference to the English authorities. I do not think that DUA16 is authority for a blanket proposition that dishonesty is always required before a decision of a tribunal can be quashed for fraud or “conduct analogous to fraud”. Nor do I consider that the High Court purported to overrule the English authorities without mentioning them. It seems most unlikely that the High Court could have intended to make such sweeping rulings in a single paragraph, particularly in circumstances where that issue does not seem to have been the subject of argument and did not have to be determined.

40    Kent Projects also relies on Mid West Port Authority v Construction, Forestry, Maritime, Mining, and Energy Union (2022) 289 FCR 88 (Mid West Port Authority). In that case, after an enterprise agreement had been approved, it was discovered that some 40% of the employees proposed to be covered had not been given an opportunity to vote on whether to approve the agreement. The Full Court noted that the case that was run depended entirely upon the proposition that the Commission has no jurisdiction unless there exists objectively an enterprise agreement that has been “made” in conformity with the relevant pre-approval steps provided for in the FWA. The Full Court held:

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)…

(Emphasis added.)

41    Kent Projects’ argument seems to be that the Full Court held that the only circumstance in which information discovered after an approval might vitiate the approval is where the information was “actively concealed”. However, the Union argues that “active concealment” was used to mean “deliberately not disclose” and does not necessarily require dishonesty. It does not seem to me that the Full Court purported to give any absolute ruling that the Commission’s decision cannot be vitiated where relevant material was withheld from the Commission unless there is dishonest conduct. If that is what the Full Court intended to do, it could have been expected to have at least considered Al-Mehdawi and the Full Court judgments which seemed to cite that case with approval. Since the only ground argued in Mid West Port Authority concerned the existence of a jurisdictional fact and no argument of fraud or “conduct analogous to fraud” was raised, it seems unlikely that the Full Court intended to state a principle of the width contended for by Kent Projects.

42    In summary, in Al-Mehdawi, the House of Lords at 896 considered that, even without dishonesty, a failure by a party to disclose relevant material may have the same effect as dishonesty “in distorting and vitiating the process” and may lead to a decision of an inferior court or administrative body being quashed. That authority has not been expressly overruled in Australia. In fact, the judgments of intermediate appellate courts in Leung, Barrett and Bausch are consistent with Al-Mehdawi.

43    The Union alleges that Kent Projects knew that it had an obligation to disclose the Disclosable Material but, without dishonesty, made a misrepresentation to the Commission by non-disclosure or concealment of that material from the Commission. In light of the authorities just mentioned, I am unable to conclude that the Union has failed to demonstrate a reasonable argument that in such circumstances there was a “fraud” on the Commission, with the consequence that the Commission’s decision ought to be quashed.

44    The third “essential feature” pointed to by Kent Projects is that the concealment must have resulted in a decision which is “seriously defective or irregular”. Interestingly, that phrase seems to be drawn from Barrett, a case which seems to be contrary to Kent Projects’ argument concerning its second “essential feature”. There are also other formulations of what is required in the authorities I have referred to. In any event, I am satisfied that the Union has demonstrated a reasonably arguable case that the alleged misrepresentation to or concealment from the Commission resulted in a decision which was “seriously defective or irregular”.

45    I am satisfied that the Union has demonstrated a reasonable case for certiorari and the other relief it claims.

46    Kent Projects also submits that the Union has not adequately pleaded or particularised its allegation of fraud and misrepresentation in accordance with r 16.42 of the Rules, or adequately stated particulars of the facts on which it relies to plead a condition of mind in accordance with r 16.43. That submission was not fully developed as it was overshadowed by the argument that no reasonable cause of action was disclosed.

47    At the commencement of the hearing, the Union indicated that it may wish to make further amendments to its FASOC. The respondent opposes any further opportunity for the Union to amend, but I consider that the matter has not yet reached the stage where that opportunity should be denied.

48    In these circumstances, I propose to give the Union leave to make further amendments to the FASOC and, rather than dismissing Kent Projects’ amended interlocutory application, adjourn the application to allow Kent Projects the opportunity to develop its argument based on rr 16.42 and 16.43 of the Rules if it should choose to do so. I also note that some of the factual matters that the Union submitted its case was based on are not pleaded or are not clearly pleaded. One example, is that there is no pleading of the basis upon which it is alleged that Kent Projects was obliged to disclose the Disclosable Information to the Commission. Some aspects of the pleading also suggest a negligent misrepresentation, when that does not seem to be intended. It is to be hoped that Kent Projects’ concerns might be alleviated by the further amendments so that the parties can get on with progressing the matter towards a final hearing.

49    In view of the difficulty that the large number of amendments to date has created in reading the FASOC, I propose to dispense with r 16.59(2) of the Rules to the extent that it requires retention of the existing marking-up of amendments. In other words, I intend that only the latest amendments should be interlineated or underlined in the next version of the Union’s pleading.

50    I will also order that Kent Projects notify the Court in due course as to whether it intends to further pursue its interlocutory application.

Associate:    

Dated:    16 April 2025