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Key decisions

  • Victoria International Container Terminal Limited v Lunt [2021] HCA 11
  • Namoa v The Queen [2021] HCA 13


Abuse of process – where Fair Work Commission approved enterprise agreement – unions

In Victoria International Container Terminal Limited v Lunt [2021] HCA 11 (7 April 2021) the High Court had to consider whether an applicant’s motive for commencing proceedings (and concealment of that motive) amounted to an abuse of process that necessitated a permanent stay of the proceeding.

The first respondent, Mr Lunt, was a member of the Maritime Union of Australia (‘MUA’) for more than two decades before it merged with the Construction, Forestry, Mining and Energy Union to form the CFMMEU. While a member of the MUA, Mr Lunt was employed by the appellant until his dismissal. Mr Lunt commenced proceedings (‘the First Proceeding’) in the Federal Court against the appellant claiming that the appellant had breached the Fair Work Act 2009 (Cth) by, among other things, breaching the Victoria International Container Operations Agreement 2016 (‘Enterprise Agreement’). Mr Lunt later sought leave to amend the First Proceeding to seek an order quashing the Fair Work Commission’s (‘FWC’) approval of the Enterprise Agreement on the grounds that the approval was beyond the jurisdiction of the FWC. Leave was refused and so Mr Lunt commenced a fresh proceeding (‘the Second Proceeding’) seeking this relief.

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