Australian Workers' Union v BHP Iron-Ore Pty Ltd

REASONS FOR JUDGMENT 1 At some time after 5.00 pm this afternoon Ryan J made the following orders: "1. Upon the Respondent by its Counsel giving the usual undertaking as to damages, the First to Fifth Applicants be restrained until 4.15 pm eastern standard time on 8 June 2000 or further order from taking industrial action pursuant to the notices under Section 170MO of the [Workplace Relations Act 1996 (Cth)] Act which are compromised in Exhibit 'MAT1' to the affidavit of Mark Anthony Troiani sworn this day. 2. The First to Fifth Applicants take all practical steps to bring the terms of this order as soon as possible to the notice of those employees of the Respondent who may have intended to participate in the industrial action defined in paragraph 1 of this order. 3. The motion on notice dated 6 June 2000 be adjourned to 10.15 am eastern standard time on 8 June 2000. 4. The Applicants file and serve by 5.00 pm on 7 June 2000 any affidavit or affidavits on which they intend to rely in opposition to the said motion on notice." The motion referred to was filed today in the early afternoon. The notice stated that: "The Respondent will at 4.30 pm on 6 June 2000, at 305 William Street, Melbourne, move the Court for Orders: (1) that Order 1 of the Orders made by Justice Gray herein on 31 January 2000, as varied by the Full Court by Orders made on 7 April 2000, be set aside …" Consequential orders were made for abridgment of time to enable service and to enable the hearing of the motion. 2 Order 1 of the order of Gray J made on 31 January 2000, in very general terms, restrains the respondent from offering particular workplace agreements to employees pending the hearing and determination of the final hearing which is scheduled to be heard before Kenny J on 27 June next. Orders were made by the Full Court varying Gray J's orders on 7 April 2000 but they did not in substance touch upon that restraint. Ryan J made the orders to which I have referred upon the application of the respondent as a result of the service of notices under s 170MO of the Act on or about 2 June 2000 which proposed that the industrial action specified in the notices would commence at 6.00 am western standard time on 7 June 2000. 3 The applicants were given short notice of the application but through their counsel Mr Borenstein they were able to make submissions before his Honour. After his Honour either proposed the orders or made the orders to which I have referred, his Honour was asked to grant a stay of that order pending the opportunity which the applicants wish to take to appeal against his order. I have been informed by counsel that his Honour refused to order such a stay. 4 I should point out that I do not have any judgment or other notes of what his Honour ordered because the matter came on some hours ago before Ryan J, nor do I have a transcript of what occurred before him, but I have been informed by counsel on both sides as to what transpired. 5 Consequent upon Ryan J refusing to stay his order, the applicants applied orally to me, commencing at around 7.00pm, for an order staying that order. The basis of the application, as I understand it, is either pursuant to O 52 r17 of the Federal Court Rules or on the basis of the jurisdiction of the Court to regulate its own proceedings by staying proceedings, albeit that an appeal has not been filed, by exercising the dispensing power given under O 1 r8 of the rules to dispense with compliance with any of the requirements of the rules. That rule is relied upon to enable an application to be made to stay Ryan J's order, notwithstanding the fact that an appeal to the Court has not been lodged due to the time constraints. 6 Mr Borenstein, who appeared for the applicants, has submitted that Ryan J erred in making the orders he did and that the applicants are seriously prejudiced by the orders he has made and will suffer irreparable harm if the orders are not stayed pending appeal. Mr Borenstein has submitted that in the absence of a stay, the appeal will be rendered nugatory and that is how the irreparable harm arises, not so much because anything physical will occur which cannot be rectified, but because the appeal will be rendered nugatory. The reason for that is that the restraint upon the first to fifth applicants is only until 4.15 pm on Thursday, 8 June 2000. 7 Mr Borenstein outlined in some detail how it was that he said Ryan J erred in reaching his decision to make the orders which he did. In short, it was put that he acted without evidence of a proper basis for the interim order because it had not been established by the respondent that it would suffer irreparable harm if the order was not made. 8 I do not propose to undertake any analysis of the basis upon which his Honour granted the orders he made, other than to note that, although his Honour did not grant the orders that were sought in the notice of motion filed this day, it is apparent from the form of order that he made that what his Honour was seeking to do was, in practical terms, to preserve the status quo which existed at this period of time in relation to the taking of industrial action until the matter could be dealt with on 8 June 2000. 9 I think it is clear that at the present time I do not have power under O 52 r17, in any event, to grant the relief which is sought, because an appeal to the Court has not been filed and O 52 r17 is conditional upon that fact having occurred. However, I also approach the matter on the basis that there is either an inherent jurisdiction in the Court to grant a stay of its orders in the interests of justice, or I have the power under O 1 r8 to dispense with compliance with the filing of an appeal in order to exercise the jurisdiction under O 52 r17. I am not sure that this is an appropriate power to exercise in these circumstances but I approach the matter in any event on the basis of the jurisdiction to regulate the procedure of the Court and to grant a stay if the interests of justice require it. 10 The difficulty with which I am faced is that I am, in effect, being asked to sit as a single judge on appeal from an order of another judge, or rather from the refusal of another judge of this Court to grant an order, that is to stay the order which he made earlier today. As a matter of comity and discretion, it seems to me that in the circumstances prevailing in this case it is not an appropriate matter to assume the jurisdiction to sit on appeal from another judge of this Court. 11 Mr Borenstein, who appeared for the applicants, submitted that if I did not do so, any appeal from Ryan J's order would be rendered nugatory. He submitted that that was the basis upon which I should exercise such discretion as I have to grant a stay of Ryan J's order. 12 This is a curious matter which is before the Court because, according to Mr Borenstein, if no stay is granted the appeal is rendered nugatory but if a stay is granted, although the appeal may not be rendered nugatory, the result is that, in effect, the appeal is allowed. The reason why the appeal would be allowed by me granting a stay is that the order of Ryan J is only to run until 4.15 pm Eastern Standard Time on 8 June next and the effect of the stay is to eliminate or revoke that order. 13 For these reasons as well, I do not consider it appropriate to grant such a stay, even if I were of the view that it was appropriate for me as a single judge to reconsider the application for a stay already made to Ryan J and refused. In my view the appropriate order to seek would be for the applicants to take such steps as might be open to them to try and convene a Full Court of this Court at very short notice. 14 I should also point out that in my view the principles which apply in relation to staying orders in order to ensure that an appeal is not rendered nugatory is aimed at the situation where some irreparable harm will be done. Although in this case the effect of Ryan J's refusing to grant the stay and my refusal to reconsider that matter because it is inappropriate to do so may mean that by Thursday afternoon there is no point in seeking to appeal against Ryan J's order, the fact is that the industrial action which the first to fifth applicants are seeking to undertake, depending on what further orders are made in this matter, may be open to them at a later period of time. 15 Although that industrial action at the moment is prohibited by Ryan J's order, between now and 4.15 pm eastern standard time on 8 June 2000, depending upon what further orders are made thereafter, it may be open to the first to fifth applicants to reconsider such action, unless of course further injunctions are granted either on 8 June 2000 or thereafter restraining the first to fifth applicants from taking the relevant industrial action. 16 My conclusion is therefore that even if I have the power to entertain an application to stay the order of Ryan J, notwithstanding the circumstances that his Honour has already refused such an application, I would in any event, as an exercise of discretion, refuse to grant such a stay for the reasons to which I have already referred. The application by the first to fifth applicants before me this evening, that I stay the order of Ryan J made earlier this evening, will be refused, and I so order. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Goldberg.