After rejecting all written applications this session, the High Court granted seven applications in Friday’s twin oral hearings in Canberra. The grants include a direct sequel to a 2015 decision by the Court concerning an industrial dispute in Melbourne. As discussed in this post, the incident was a 2013 blockade of concrete trucks in Footscray at a site connected to the Regional Rail Link, seemingly led by Joe Myles, a CFMEU employee. Two years ago, the High Court ruled that the CFMEU, facing contempt proceedings for allegedly breaching an order barring such action, could be required to divulge telephone details that could link it to Myles. The contempt matter has since been settled and the CFMEU and Myles have admitted breaching the Fair Work Act in a parallel proceeding in the Federal Court. The new issue before the High Court concerns an unusual civil penalty that the Federal Court imposed on Joe Myles for his role in the Footscray incident.
The seven matters where leave has been granted this session are:
- Construction, Forestry, Mining and Energy Union v Australian Building and Construction Commissioner  FCAFC 184, which concerns the powers of the Federal Court to make additional orders when it imposes civil penalties. Justice Mortimer, citing four previous penalties imposed on the CFMEU’s Joe Myles for industrial relations matters, his willingness to tell jokes during a fifth incident and his knowledge ‘that any pecuniary penalties a court may impose could be satisfied from funds received both from the public purse’, barred the CFMEU from paying Myles’s $18,000 in fines or encouraging anyone else to do so. The Full Court of the Federal Court unanimously held that there was no power to make such an order and also that Mortimer J denied procedural fairness when she used the CFMEU’s accounts to infer that the penalties she imposed would be partially met through public funds.
- Kalbasi v the State of Western Australia  WASCA 144, which was an appeal against conviction and sentence for attempted possession of 5kg of methylamphetamine. After the police detected drugs inside two tool cases freighted to Australia in 2010, they substituted salt, watched a Perth man take the cases home and then listened in on a surveillance device as the cases were allegedly unpacked in the presence of the defendant The Western Australian Court of Appeal rejected multiple grounds of appeal, including holding that, although the trial judge wrongly directed the jury on a statutory presumption that the defendant intended to supply the drugs (contrary to a High Court ruling from 1998), the judge’s error did not cause a substantial miscarriage of justice.
- Maxcon Constructions Pty Ltd v Vadasz (No 2)  SASCFC 2 and Shade Systems Pty Ltd v Probuild Constructions (Aust) Pty Ltd (No 2)  NSWCA 379, which both concern the question of when a court can review an arbitration decision relating to security of payments legislation. In each case, an arbitrator was found to have made an error of law in adjudicating a dispute about progress payments (in South Australia by wrongly holding that a ‘retention sum’ was withheld by the developer pursuant to an invalid ‘pay when paid’ provision, and in NSW by wrongly treating the developer as bearing an onus to show that a delay in payment was the fault of a builder.) A five-judge bench of the NSW Court of Appeal (which the South Australian court ruled it was bound to follow) held that the security of payment legislation removed any power of a court to quash a decision for such an error of law. The South Australian court also held that the builder’s undisclosed bankruptcy did not render the payment contract void or unenforceable.
- Regional Express Holdings Ltd v Australian Federation of Air Pilots  FCAFC 147, which addresses which employee organisations have standing to allege breaches of the Fair Work Act. In this case, an airline allegedly breached the statute by requiring cadet pilots to make a ‘solemn promise’ that they would agree to stay at accomodation supplied by the Australian Airline Pilot Academy, rather than a motel as allegedly required by an enterprise bargain. The Full Court of the Federal Court held that the pilots federation had standing to allege this breach, even though none of the cadet pilots were members of the federation, because they all were eligible for membership.
- State of New South Wales v Briggs  NSWCA 344, which considers the recurrent question of negligence claims over post-traumatic stress disorder, this time in the context of policing. The NSW Court of Appeal unanimously overturned a ruling that NSW was liable negligence to compensate a detective for his psychological exposure to horrific crimes, holding that the plaintiff had not established any steps the state could have taken that would have caused him to avoid or seek timely treatment for the trauma. One reason the High Court may have taken on this highly fact-specific ruling was a testy exchange between Leeming JA and McColl JA over the balance to be struck between employee privacy and proactive therapeutic intervention.
- Woollahra Municipal Council v Minister for Local Government  NSWCA 380, one of multiple court actions concerning proposed amalgamations of local councils in Sydney. Here, the NSW Court of Appeal unanimously ruled that a proposal to amalgamate three eastern suburbs councils complied with a statutory requirement for independent examination and public consultation, despite the examiner’s reliance on a non-public report by KPMG. By contrast, in a later case involving a proposal to partially amalgamate two northern suburbs councils, a different bench of the same court held that reliance on such a report breached both the statutory independence requirement and common law procedural fairness.
The transcript in Maxcon and Probuild is now up: http://www.austlii.edu.au/au/cases/cth/HCATrans/2017/112.html. Some interesting things: (a) it was a joint hearing of applications from two different jurisdictions; (b) the transcriber seemed to have trouble hearing what Maxcon’s counsel (presumably on video-link from Adelaide) was saying; (c) both grants were made subject to a condition that the developers meet all of the builders’ costs in the High Court, regardless of the outcome, due to the relatively puny amounts in issue and the wealth of the developers.
Both counsel were in Canberra. Mr Doyle was just down the end of the bar table, apparently.
The application is also noteworthy for the fact that Mr Walker SC “tendered” Mr Doyle. I am told that, although it does not appear on the official transcript, Nettle J at that point said: “Received.”
The transcript of ABCC v CFMEU is up: http://www.austlii.edu.au/au/cases/cth/HCATrans/2017/106.html. The HCA called on the respondent first (Kiefel CJ: ‘It is a rather novel question, I think’) but then called on the applicant. Leave was granted on condition that the ABCC not seek costs (but the Court declined to order the ABCC to meet the CFMEU’s costs, after the ABCC argued that it was a ‘well-heeled’ union.)