Two Victorian union officials accused of blackmailing construction company executives may never face trial if they succeed in getting the charges dismissed.
CFMEU state secretary John Setka and assistant secretary Shaun Reardon appeared in Melbourne Magistrates Court on Tuesday alongside their lawyers.
Barrister Robert Richter QC said the men have taken their case to the Victorian Court of Appeal after losing a Supreme Court bid in August to overturn the charges.
A hearing on their application to appeal the decision has been scheduled for February 26.
“The matter is both novel and complex,” Mr Richter told the court.
The men will take the case to the High Court if the Court of Appeal does not rule in their favour, the lawyer added.
Prosecutor Raymond Gibson said he does not know if the Crown will take the case to the High Court if they lose in the Court of Appeal.
He said the case has already been delayed because of legal challenges in the Magistrates Court and the Supreme Court.
“If the committal date gets put back further, it causes delay upon delay,” Mr Gibson said.
Setka and Reardon were charged in December 2015 after the Royal Commission into Trade Union Governance and Corruption.
It’s alleged the pair urged CFMEU members to stop using Boral products after the concrete supplier failed to meet union demands during an industrial dispute.
Setka and Reardon argue the alleged offences were not criminal acts, but permissible in the context of an industrial dispute.
A pre-trial committal hearing to determine if Setka and Reardon should stand trial was originally scheduled for November 2016.
But on what was to be the first day of the hearing, counsel for the men told Magistrate Kay Robertson the charges were not valid.
Ms Robertson later ordered the matter proceed, prompting Setka and Reardon to take the matter to the Supreme Court.
A hearing was held before Justice James Elliott in February.
While his decision was still pending, a 13-day committal hearing was set down for May 7, 2018 contingent on the Supreme Court case.
Justice Elliott upheld Ms Robertson’s decision and sent the case back for committal.
But if the Court of Appeal hasn’t made a decision by May, the committal will instead be held in September.
Setka and Reardon’s case will return to court on March 1 for an update on its progress.