Federal Court of Australia

CFMEU v Qube Ports Pty Ltd [2026] FCA 1286

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 17(2) of the Federal Court of Australia Act 1976 (Cth) and r 1.36 of the Federal Court Rules 2011 (Cth), these orders and reasons for judgment are made and published from Chambers.

2.    Pursuant to r 15.05 of the Federal Court Rules 2011 (Cth), the first respondent has leave to file a notice of cross-claim and accompanying statement of cross-claim in the form that appears at pages 23 to 49 in Exhibit SM-1 to the affidavit of Sonia Millen affirmed on 7 July 2026.

3.    The leave granted in paragraph 2 operates nunc pro tunc at and from 7.40 am AWST on 7 July 2026, being the time at which the notice of cross-claim and statement of cross-claim were lodged with the Court.

4.    By 4.00 pm AWST on 16 September 2026, the cross-respondent must file a defence to the statement of cross-claim.

5.    By 4.00 pm AWST on 23 September 2026, the cross-claimant must file any reply to the cross-respondent’s defence.

6.    The proceeding is listed for a case management hearing at 10.00 am AWST on 30 September 2026.

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

REASONS FOR JUDGMENT

JACKSON J:

1    The first respondent, Qube Ports Pty Ltd, seeks leave to file a cross-claim out of time. The applicant, CFMEU, opposes leave. With the consent of the parties, Qube’s interlocutory application has been programmed to be determined on the papers.

2    The application calls for the exercise of a routine case management discretion and raises no point of principle. In order that these reasons are not longer than the subject matter demands, they will not go through the background of the matter or of the present issue, or the contents of the present and proposed pleadings, all of which is familiar to the parties.

3    For the following reasons, leave to file the cross-claim and accompanying statement of cross-claim will be given, with effect from the time at which each was filed (without leave) on 7 July 2026.

4    I respectfully adopt the summary of the factors that will usually guide the exercise of the discretion to give leave to file a cross-claim provided by Wigney J in Rush v Nationwide News Pty Ltd (No 2) [2018] FCA 550 at [87]. It is not necessary to list those factors out, as the parties only invoked a few of them, as will be reflected in the discussion that follows.

Why Qube seeks to pursue the cross-claim

5    The reason why Qube wishes to pursue the cross-claim in this proceeding is self-evident. The company and its employee, the second respondent Michael Sousa, have each filed a defence. In the defences it is alleged that CFMEU made a number of representations about CFMEU’s understanding of the pay calculation provisions in dispute, which, in broad terms, indicated that CFMEU agreed with Qube’s asserted understanding of how the provisions worked. Essentially, the respondents allege in their defences that these representations are inconsistent with the case that CFMEU now puts, that the respondents relied on the representations, and that it is now an abuse of process for CFMEU to seek to depart from the representations by pursuing its claim and it is estopped from relying on them.

6    The proposed cross-claim relies on the very same representations, albeit it also adds to them by combining them into four propositions about compliance with certain specified enterprise agreements. It also adds to them by identifying the omission to retract the earlier representations as a further representation that the four propositions were true (this is defined by the statement of cross-claim as the ‘Ninth Representation’). But the underlying facts alleged in the relevant parts of the defences on the one hand, and the proposed cross-claim on the other, are the same. There is an obvious benefit in the two matters (claim and cross-claim) being addressed in the same proceeding.

7    The reason why Qube wishes to pursue the cross-claim at all also appears on its face. Qube seeks compensation and penalties from CFMEU. It needs to put a claim of its own to obtain those remedies.

8    On the face of the pleadings (present and proposed) Qube therefore has reason to pursue the cross-claim, and to do it in this proceeding. That directs attention to CFMEU’s reasons as to why the Court should not give leave for this to occur.

Delay and explanation for delay

9    CFMEU submits that the delay in filing the cross-claim is significant. It says that under r 15.04 of the Federal Court Rules 2011 (Cth) the cross-claim was due by 26 August 2022. It is not readily apparent where this date comes from. The earliest orders in this matter, made by consent on 26 August 2022, required the respondents file a ‘Concise Statement in Reply’ to CFMEU’s concise statement on 7 September 2022. Qube complied with that order on that date.

10    In any event, I do not accept that the delay is that long, and even if it were that long, for all but the last two months there are obviously adequate explanations for it.

11    The delay is not to be dated from 26 August 2022 or 7 September 2022, because the Court has made orders extending the period for filing any cross-claim, most recently to 8 May 2026. Those orders having been made, it is not open to CFMEU to complain of any delay up to the latter date.

12    Even were that not so, the obviously adequate explanations are:

(a)    for most of the period, to the Court’s own knowledge, the proceeding was in abeyance, by consent, so that Qube could pursue separate proceedings for the amendment of relevant enterprise agreements which, had they been successful, would have caused this proceeding to fall away;

(b)    after it became clear that Qube would be unsuccessful in that pursuit (when an application for special leave to appeal to the High Court was refused in March 2025), the parties engaged in mediations and other forms of alternative dispute resolution to try to resolve the dispute – the evidence of Luke Edmonds, an officer of CFMEU, is that settlement discussions were exhausted by November 2025; and

(c)    thereafter the Court made orders, again, by consent, for the matter to proceed on pleadings, and the timetable for these was varied by consent, so that Qube and Mr Sousa were required to file their defences, and Qube was required, as has been said, to file any cross-claim, by 8 May 2026.

13    The only delay that does not have reasons obvious on the face of the Court’s own knowledge is the delay between 8 May 2026 and the filing of the cross-claim on 7 July 2026.

14    The explanation for that delay appears from correspondence between the respondents’ solicitors, Allens, and CFMEU, as follows:

(1)    On 24 March 2026, Allens emailed CFMEU raising the possibility of bringing a cross-claim.

(2)    On 20 April 2026 (which was at that time the date by which the defences and any cross-claim were due), Allens wrote to CFMEU asserting that this proceeding, and a related proceeding WAD390/2025, are an abuse of process, essentially for the reasons now put in the defences and the proposed cross-claim, and inviting CFMEU to withdraw both proceedings.

(3)    On 28 April 2026 CFMEU replied, in intemperate terms, rejecting the suggestion that the proceedings were an abuse.

(4)    On 15 June 2026, Allens wrote to CFMEU noting that the time for filing replies to the defences, 5 June 2026, had passed with no reply being filed. Allens noted that this meant that CFMEU put a bare denial of all the positive allegations in the defences, where it was hard to see how several of them could be denied – for example allegations that certain emails had been sent. Allens thus said that their clients and the Court did not know the scope of the factual controversy.

(5)    On 19 June 2026 CFMEU responded, effectively denying that it had any obligation to file replies.

(6)    On 1 July 2026 Allens responded, saying that in light of that response, they would seek an extension of time until 7 July 2026 for the filing of a cross-claim.

15    The explanation for the two-month delay which emerges from the correspondence is this. Qube did not know the extent to which the allegations going to abuse of process raised in the defences were disputed, and held some hope that they might lead to the proceedings being withdrawn. It expected that CFMEU would file replies that would at least narrow the potential scope of the factual dispute about those allegations. That would have impacted on the pleading of any cross-claim.

16    The explanation is not a compelling one. Certainly, Allens and Qube could have moved faster. But it is enough to dispel any suggestion that the delay was the result of contumacious disregard of the timetable ordered by the Court, or that it was the result of neglect.

17    I do not accept that the delay resulted from a ‘forensic calculation’ or a ‘forensic choice’, as CFMEU submits, as though it was a decision to which Qube must irrevocably be held. Qube foreshadowed a cross-claim and also proposed that the proceedings as a whole would be withdrawn. It then waited to see what would be in dispute concerning the abuse of process allegations, and then, when it appeared that everything was going to be in dispute, proceeded to file the cross-claim.

18    CFMEU submits that the suggestion that Qube thought that the proceeding might be withdrawn ‘fails to take into account the weakness and manifest untenability of the estoppel and abuse of process pleas’ (para 14). But the reasons given (in footnotes) as to why those pleas are weak and manifestly untenable are not reflected in Qube’s actual arguments as to why the cross-claim lacks merit, which are about to be addressed. I therefore put no weight on this point as negativing the explanation for the delay.

19    That explanation is to be assessed against the delay in the context of the conduct of the proceeding overall. By consent, the proceeding was in abeyance for nearly four years. The first substantive step taken to revive it was the filing of a statement of claim in February of this year. The delay of two months in filing the cross-claim, while requiring some explanation, is hardly significant in all the circumstances.

20    That conclusion makes it unnecessary to consider other explanations for the delay advanced by Qube.

Merits of the proposed cross-claim

21    The other matter raised by CFMEU against leave to file the cross-claim is that it lacks merit. The assessment of the merits for the purposes of an application like this one must be approached in a summary way: Aspect Safety Group Pty Limited v Swift [2022] FCA 904 at [36] (Cheeseman J). On that basis I briefly set out CFMEU’s arguments and my view about each.

Representations about a workplace right

22    The proposed cross-claim alleges a breach of the obligation in s 345(1) of the Fair Work Act 2009 (Cth) not to knowingly or recklessly make a false or misleading representation about a workplace right or the exercise, or the effect of the exercise, of a workplace right. CFMEU submits that to be about a workplace right, a representation must have a degree of connection to the workplace right or its exercise.

23    It is difficult to understand where that submission goes in this case. For example, one of the alleged representations is about the correctness of an interpretation which Qube had maintained of relevant provisions in enterprise agreements fixing the pay of the affected employees. On its face, this representation was about the content of the provisions, and so capable of being connected with, and about, the rights conferred by under the provisions.

24    More importantly, what any alleged representation is ‘about’ is a matter best judged after trial, when the evidence of what was actually said, written or otherwise conveyed has been adduced and considered. It is not appropriate to reach any view on it now.

Silence

25    CFMEU submits that the omission to retract earlier representations, as alleged in the statement of cross-claim, does not itself constitute a representation.

26    It is also difficult to understand where this point goes. The statement of cross-claim makes allegations of eight positive statements as representations, for example that an officer of CFMEU ‘told Sousa that the CFMEU agreed that [certain wording] accurately reflected the manner in which the Remuneration Terms had historically been interpreted and applied by both Qube and the CFMEU’ (para 24(b)). Only the ‘Ninth Representation’ is said to have arisen from an omission to correct previous statements. It may or may not prove to be superfluous: see Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Limited [2010] HCA 31; (2010) 241 CLR 357 at [7] and [12] (French CJ and Kiefel J). But one superfluous allegation out of many (if that is what it is) hardly qualifies as a reason to deny leave to make the cross-claim.

The mental element

27    As has been mentioned, the prohibition in s 345(1) of the Fair Work Act operates on representations made with knowledge of their falsity, or made recklessly. CFMEU submits that since Qube’s own case is that the meaning of the relevant provisions is genuinely contested, CFMEU could not have acted recklessly as alleged in not alerting Qube to its preferred construction of the provisions.

28    But the recklessness alleged by Qube is essentially about knowledge of CFMEU’s own state of mind. That is, Qube claims that CFMEU knew that there was at least a substantial prospect that it did not accept the position allegedly conveyed by the representations and so by conveying that it did, it acted recklessly. That allegation seems open to be made. And again and more importantly, its merit, or lack thereof, is properly determined after full evidence is received at trial, and not on an interlocutory application such as this one.

29    CFMEU also complains that particulars to paragraph 59 of the statement of cross-claim rely on Qube’s own defence, including its denial of contravening, as evidence of the recklessness of the relevant union officer, and says that this is ‘an exercise in circularity’. But the particulars in question merely cross-refer to certain positive allegations of fact in paragraph 25 of the defence, and are careful to avoid cross-referring to the denial also contained in that paragraph.

Inconsistency with the defence

30    CFMEU submits that the cross-claim is inconsistent with Qube’s defence, because the defence pleads estoppel and that ‘requires those representations to have been reasonable and credible statements of the CFMEU’s genuine position’ (para 23), while the cross-claim requires the representations to have been made with reckless disregard for their truth or falsity. No authority is cited for this proposition about estoppel, which ordinarily is to be assessed objectively: see e.g. Freeman v Cooke (1848) 2 Exch 654 at 663 cited with approval in Air Tahiti Nui Pty Ltd v McKenzie [2009] NSWCA 429; (2009) 77 NSWLR 299 at [64] and [95] (Allsop P and Handley AJA, Hodgson JA agreeing); Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd [2016] HCA 26; (2016) 260 CLR 1 at [35] (French CJ, Kiefel and Bell JJ).

Knowing involvement

31    The statement of cross-claim alleges that if Qube contravened the Fair Work Act in the way that CFMEU alleges (which is denied), CFMEU was involved (for the purposes of s 550 of the Act) in the contraventions by reason of its officer having represented to Qube, broadly speaking, that the interpretation of the enterprise agreements on which Qube was acting was correct.

32    CFMEU submits that the conduct asserted to constitute participation in the contraventions is a failure to alert Qube to the fact that its practice was inconsistent with the enterprise agreements. It submits that this conduct does not implicate CFMEU in Qube’s contraventions or establish any practical connection between the union and the contraventions.

33    I do not accept the characterisation of Qube’s case on which this submission rests, that is, that the allegation is confined to a failure to warn. As has been said, Qube also alleges a number of positive representations by CFMEU, to the effect that Qube’s practice in calculating the pay for relevant employees was consistent with the enterprise agreements. It is those representations, as well as omissions to alert Qube to the contrary, that are relied on to give rise to the allegations of being knowingly concerned in Qube’s contraventions. Again, whether CFMEU’s actual conduct (including acts and omissions) is sufficient to make those allegations good is a matter for trial.

Issues already raised by the defences

34    Many of the issues that have just been canvassed will need to be addressed at trial anyway, because they are raised by the defences that are already pleaded. So even if aspects of the cross-claim do prove to lack merit, that is not a strong discretionary reason against granting leave to advance them.

Other submissions

35    CFMEU complains: ‘But for Qube’s application for leave to file a cross-claim, the proceedings could have taken a hearing date at the case management hearing on 8 July 2026’ (para 1). That is so, but CFMEU’s opposition to such leave was equally to blame. If the leave application had been unopposed, it would have been possible to program a defence to the cross-claim and any reply, and subsequent steps leading to trial. Of course, CFMEU had the right to oppose leave, but it should only have done so for good reason. The discussion above shows that none of its reasons were good ones. That misjudgement has contributed to any delay.

36    CFMEU also submits that Qube’s conduct is incongruent with the requirements of s 37M and s 37N of the Federal Court of Australia Act 1976 (Cth), concerning the overarching purpose of the civil practice and procedure provisions. Once again, so too is CFMEU’s opposition to leave without good reason.

37    CFMEU goes further to submit that if Qube is ‘rewarded by a grant of leave’, that ‘has the potential to cause a loss of public confidence in the legal system’. That is hyperbole. In granting leave, the Court is conferring no reward. It is simply taking a pragmatic approach to ensure that all issues that should properly be ventilated at trial will be ventilated. In the circumstances described above, a delay of two months in filing the cross-claim hardly has potential to destroy the confidence of the public in the administration of justice in this country.

38    CFMEU also submits that the further delay resulting from a grant of leave, requiring pleadings to be reopened, will prejudice it and its members. But the defence to the statement of cross-claim could have been, and will be, programmed to occur in short order. That is especially so since CFMEU has now filed replies to the defences, which will presumably be similar to its defence to the cross-claim. The reality is that CFMEU’s opposition to the application for leave has caused more delay than the requirement for further pleadings has.

Conclusion

39    Leave to advance the cross-claim will permit all issues arising between the parties to be determined in the proceeding, without adding substantially to its duration or cost. None of the reasons raised by CFMEU for why leave should not be granted are good reasons.

40    Qube explains that it filed the cross-claim without leave to ensure that a limitation argument could not be made in relation to one particular representation, and so seeks that the leave granted is retrospective to cover that filing on 7 July 2026. CFMEU does not oppose that particular aspect of the application. The leave will be retrospective as Qube seeks.

Costs

41    CFMEU submits that Qube’s conduct in filing the cross-claim constitutes unreasonable conduct for the purposes of s 570(2)(b) of the Fair Work Act, and has caused the CFMEU to incur costs. CFMEU seeks those costs, even in the event that Qube is successful on its application. But for reasons given above, I do not accept that Qube’s conduct has been unreasonable. There will be no order as to costs.

Associate:

Dated:    1 September 2026