No-show Setka too sick to deal with lawyers over push to oust AFL umpiring boss

A mystery illness has left former CFMEU boss John Setka too unwell to appear in court or even instruct lawyers over allegations he tried to force the AFL into sacking its umpiring head.

Setka, or lawyers on his behalf, have now failed to show up for two preliminary Federal Court hearings to respond to accusations from the Fair Work Ombudsman, instead providing a medical certificate that he is too unwell to attend meetings.

Former CFMEU boss John Setka.Credit: Chris Hopkins

The court heard that while the certificate provided few details of the nature of the union hardman’s ailment, it also indicated he had a WorkCover claim in progress.

The ombudsman alleges the disgraced former CFMEU boss breached workplace laws by trying to pressure the AFL into dumping its umpiring chief, Steve McBurney, due to his previous job at the Australian Building and Construction Commission (ABCC).

A case management hearing on Friday was unable to proceed after Setka’s second no-show in a month, leaving Justice John Snaden and lawyers representing the ombudsman to discuss options to move forward with the matter.

Representing the ombudsman, lawyer Marc Felman, KC, said he had received correspondence including a medical certificate that stated that Setka was not currently in a state of mind to attend meetings, make decisions or instruct legal representation – though there was no indication of how long it would take him to recover.

Felman said the letter indicated Setka would be receiving treatment for several months and had a WorkCover claim that was being assessed, but the nature of his illness was not disclosed because Setka was concerned about releasing personal and private information to government organisations.

Felman told the court Setka needed to file a defence or a report from a qualified specialist medical practitioner.

“I think it’s important for there to be some sort of explanation or justification for a quite serious conclusion that he is not able to participate,” Felman said.

“You can have a mental illness or you can have a state of mind that does cause you grief, but which still means you can understand the issue to provide instructions.

“We are not asking at this time to cross-examine them or turn up [to court] himself, so I think we’re entitled to an explanation of why he can’t even do that.”

Snaden said the “open-ended” medical certificate made it difficult for the court to know if it would be a matter of days, weeks or years before Setka could instruct legal representation or attend hearings.

He ordered that the hearing recommence on June 2 so that the parties could get a better idea of the timeframe of Setka’s condition.

“I know it is not ideal to keep coming back, but I don’t think there is any other option,” Snaden said.

Setka faces penalties of up to $18,780 per alleged contravention, with the ombudsman alleging that in May and June last year, Setka threatened the CFMEU would disrupt or delay AFL building projects if the AFL did not dismiss McBurney.

The ombudsman alleges Setka took action against McBurney because he participated in more than 50 court actions against the CFMEU while at the ABCC.

McBurney led the powerful construction watchdog from 2018 to 2023 before it was stripped of its powers shortly after the Albanese government was voted into power in 2022. It was officially closed in 2023, with McBurney joining the AFL in March last year.

Setka stood down from his position as CFMEU chief after this masthead launched the Building Bad investigation into the union’s links to organised crime and its culture of intimidation.

The union was subsequently placed in administration over the concerns raised in the investigation.

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