Industrial law and practice and procedure – challenge to a report of a referee regarding causation under s545 of the Fair Work Act 2009

In Patrick Stevedores Holdings Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union (No.3) [2021] FCA 348 (1 April 2021) the court rejected a report of a referee pursuant to s54A(3)(c) of the Federal Court of Australia Act 1976 (Cth) (FCA Act).

In a previous judgment the court found the union contravened the Fair Work Act 2009 (Cth) (FW Act): [2019] FCA 451; (2019) 286 IR 52. The remaining issues in the litigation were (1) the identification and quantification of any entitlement to statutory compensation, and(2) whether the court should impose any pecuniary penalty.

The court referred some aspects of the issues as to the entitlement to statutory compensation to a referee for inquiry and report: see (No.2) [2020] FCA 1093. The referee prepared a report and the parties were in dispute as to whether the report should be adopted or rejected.

The power of the court to determine how to proceed with a referee report after it has been “provided to the Court” is in s54A of the FCA Act and rule 28.67 of the Federal Court Rules. Lee J relied on the principles in Chocolate Factory Apartments Ltd v Westpoint Finance Pty Ltd [2005] NSWSC 784 at [7] as setting out the considerations relevant to the court’s discretion as to whether or not to adopt a referee report (at [15]).

Lee J held that the referee’s report should be rejected in whole. In summary, this was because the referee had gone beyond the questions and concepts that the court asked him to address, being those related to factual causation.

Further, the referee misunderstood the legal principles applicable to causation in the context of s546(2)(b) of the FW Act, the scope of the questions and, more specifically, blurred the line between factual and legal causation and that misunderstanding coloured the referee’s report on the evidence before him (at [9]). Rather than referring the matter back to the referee, the court would in due course determine all remaining issues (at [53]).


Lee J observed at [47]: “For reasons I have already explained, the line was blurred between the task of the Court and the specific questions put to the Referee for resolution, in this case the line between factual and legal causation. I mean this with no disrespect to the Referee. I thought it was clear, given the nature of my Reference Judgment, but perhaps in future in matters such as this it may be useful for there to be a case management hearing where a non-subject matter referee is apprised directly by the Judge of the precise nature of the task the referee is being asked to undertake.”

Dan Star QC is a Senior Counsel at the Victorian Bar, 03 9225 8757 or email The full version of these judgments can be found at

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