Brown v Health Services Union

Federal Court of Australia|2012-11-07|Before: Mr P, Flick J

Number of paragraphs: 6

Solicitor for the Honourable Michael Francis Moore in his capacity as Administrator of HSUeast and the HSU East Branch: Mr P Punch of Carroll & O'Dea Lawyers

Solicitor for the Commonwealth Minister for Employment and Workplace Relations: Mr V Gostencnik of Corrs Chambers Westgarth

Solicitor for the Applicants in NSD 621 of 2012: Holding Redlich

Counsel for the Health Services Union: Ms M Irving

Solicitor for the Health Services Union: Holding Redlich

Counsel for HSUeast: HSUeast did not appear

Counsel for Michael Williamson: Mr Williamson did not appear

Counsel for Katherine Jackson: Ms Jackson did not appear

Counsel for Peter James Mylan: Mr Mylan did not appear

Counsel for the 5th - 76th and 78th - 87th Respondents in NSD 621 of 2012: These Respondents did not appear

Counsel for the New South Wales Minister for Industrial Relations: Mr M Easton

Solicitor for the New South Wales Minister for Industrial Relations: Crown Solicitor for the State of New South Wales

Counsel for Unions NSW: Unions NSW did not appear

IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY FAIR WORK DIVISION NSD 621 of 2012

BETWEEN: CHRISTOPHER PAUL BROWN AND OTHERS NAMED IN THE SCHEDULE

AND: HEALTH SERVICE UNION AND OTHERS NAMED IN THE SCHEDULE

JUDGE: FLICK J DATE OF ORDER: 7 NOVEMBER 2012 WHERE MADE: SYDNEY (VIA VIDEO LINK TO MELBOURNE)

The time for compliance with paragraph 18 of the Scheme of Administration approved on 21 June 2012 (as varied) is extended to 23 November 2012.
The Administrator is to file and serve all such Affidavits and an Outline of Submissions upon which he wishes to rely in support of any application to vary the Scheme of Administration in respect to the NSW Branch and the Victoria No 3 Branch of the Health Services Union on or before 14 November 2012.
Any such further Affidavits or Outlines of Submissions upon which any interested party wishes to rely is to be filed and served on or before midday on 20 November 2012.
The proceeding in respect to any variation of the Scheme of Administration in respect to the NSW Branch and the Victoria No 3 Branch is fixed for hearing at 9.30am on Thursday 22 November 2012. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY FAIR WORK DIVISION NSD 735 of 2012

AND: NSW MINISTER FOR INDUSTRIAL RELATIONS AND OTHERS NAMED IN THE SCHEDULE

JUDGE: FLICK J DATE OF ORDER: 7 NOVEMBER 2012 WHERE MADE: SYDNEY (VIA VIDEO LINK TO MELBOURNE)

The time for compliance with paragraph 18 of the Scheme of Administration approved on 21 June 2012 (as varied) is extended to 23 November 2012.
The Administrator is to file and serve all such Affidavits and an Outline of Submissions upon which he wishes to rely in support of any application to vary the Scheme of Administration in respect to the NSW Branch and the Victoria No 3 Branch of the Health Services Union on or before 14 November 2012.
Any such further Affidavits or Outlines of Submissions upon which any interested party wishes to rely is to be filed and served on or before midday on 20 November 2012.
The proceeding in respect to any variation of the Scheme of Administration in respect to the NSW Branch and the Victoria No 3 Branch is fixed for hearing at 9.30am on Thursday 22 November 2012. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY FAIR WORK DIVISION NSD 621 of 2012

BETWEEN: CHRISTOPHER PAUL BROWN AND OTHERS NAMED IN THE SCHEDULE

AND: HEALTH SERVICE UNION AND OTHERS NAMED IN THE SCHEDULE

IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY FAIR WORK DIVISION NSD 735 of 2012

AND: NSW MINISTER FOR INDUSTRIAL RELATIONS AND OTHERS NAMED IN THE SCHEDULE

JUDGE: FLICK J DATE: 7 NOVEMBER 2012 PLACE: SYDNEY (VIA VIDEO LINK TO MELBOURNE)

REASONS FOR JUDGMENT 1 This is yet a further application to extend the time for compliance with paragraph 18 of the Scheme of Administration as approved on 12 June 2012. The circumstances giving rise to the approval of the Scheme have previously been recounted: Brown v Health Services Union [2012] FCA 644, 291 ALR 497. They need not again be recounted. Prior applications to vary the scheme and to extend the time for compliance have also been previously recounted in the decision published in September 2012: Brown v Health Services Union (No 2) [2012] FCA 1014. Again, those previous applications need not be recounted. 2 Two events have transpired since September 2012, namely: the steps necessary to be taken in respect to what was previously described as the "Melbourne property" have taken longer than was anticipated; and on 26 October 2012 a Judge of this Court, made orders for the conduct of an inquiry in relation to the elections for all officers in the Health Services Union Victoria No 1 Branch. An order was also then made restraining the Returning Officer from taking any further step in the conduct of the elections for those offices in the Victoria No 1 Branch. 3 The events of immediate relevance to the present application, it should be noted, are substantially beyond the control of the Administrator. Due to what has been described as a "backlog" in the State Revenue Office in Victoria, an application seeking exemption from ad volerum stamp duty in respect of the Melbourne property has not as yet been processed. It is not anticipated that the application will be considered by the State Revenue Office prior to 31 October 2012. Moreover, negotiations in respect to amended proposed security arrangements with the Commonwealth Bank of Australia are taking longer than expected. 4 In such circumstances it is appropriate to extend the time for compliance with paragraph 18 of the Scheme of Administration until 23 November 2012, being the date sought by the solicitor acting on behalf of the Administrator. 5 The inquiry ordered by his Honour Justice Tracey gives rise to different considerations. That inquiry in respect to the Victoria No 1 Branch is fixed for hearing for two days commencing on 15 November 2012. It can readily be accepted that a judgment in respect to the inquiry relating to the Victoria No 1 Branch elections will be forthcoming as soon as is reasonably practicable to his Honour. But it may not be sufficient, as proposed in the Affidavit of the solicitor for the Administrator, to simply "monitor the progress of the said inquiry". If the balance of the Scheme in respect to the two other Branches has been completed by the date for compliance as extended in September 2012, namely by mid-December 2012, consideration should be given sooner rather than later to whether any variation to the terms of the existing scheme are warranted to ensure that the administrator's involvement in those two branches comes to an end as soon as possible. 6 Consideration should also be given to whether any order or direction pursuant to s 323 of the Fair Work (Registered Organisations) Act 2009 should now be made to regularise the timetable for elections as previously contemplated: see [2012] FCA 1014 at [14].

the Orders of the Court Are:

The time for compliance with paragraph 18 of the Scheme of Administration approved on 21 June 2012 (as varied) is extended to 23 November 2012.
The Administrator is to file and serve all such Affidavits and an Outline of Submissions upon which he wishes to rely in support of any application to vary the Scheme of Administration in respect to the NSW Branch and the Victoria No 3 Branch of the Health Services Union on or before 14 November 2012.
Any such further Affidavits or Outlines of Submissions upon which any interested party wishes to rely is to be filed and served on or before midday on 20 November 2012.
The proceeding in respect to any variation of the Scheme of Administration in respect to the NSW Branch and the Victoria No 3 Branch is fixed for hearing at 9.30am on Thursday 22 November 2012. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick.

Associate: Dated: 12 November 2012 Schedule No: (P)NSD 621 of 2012 Federal Court of Australia District Registry: New South Wales Division: Fair Work Applicants Second Applicant: LLOYD ALBERT WILLIAMS Third Applicant: DANIEL PATRICK HILL Fourth Applicant: ROSEMARY LOUISE KELLY Fifth Applicant: JORGE NAVAS Sixth Applicant: ZITA DARLENE MITCHELL Respondents Second Respondent: HSU EAST Third Respondent: MICHAEL WILLIAMSON Fourth Respondent: KATHERINE JACKSON Fifth Respondent: GERARD HAYES Sixth Respondent: PETER BEATON Seventh Respondent: LEANNE BURNS Eighth Respondent: LEIGH BUSH Ninth Respondent: RAY DUNN Tenth Respondent: GRAHAME EDWARDS Eleventh Respondent: JOHN FITZROY Twelfth Respondent: HELEN GOODLUCK Thirteenth Respondent: BARBARA GRAY Fourteenth Respondent: LYNETTE GUYMER Fifteenth Respondent: SHARALYN HAYNES Sixteenth Respondent: SHARON JONES Seventeenth Respondent: LINDEN MARTIN Eighteenth Respondent: SHARON MCCULLOUGH Nineteenth Respondent: DEBORAH NEUMANN Twentieth Respondent: PAULINE O'NEILL Twenty First Respondent: VICKI RILEY Twenty Second Respondent: BRUCE ROWLING Twenty Third Respondent: LYNNE RUSSELL Twenty Fourth Respondent: ZI ZHENG SHAO Twenty Fifth Respondent: CLARRIE SMITH Twenty Sixth Respondent: MARK STERREY Twenty Seventh Respondent: LYNETTE THOMPSON Twenty Eighth Respondent: DAVE VEALEY Twenty Ninth Respondent: GRAHAM CONROY Thirtieth Respondent: JODIE COWDREY Thirty First Respondent: RODNEY FELTHAM Thirty Second Respondent: LACHLAN GILCHRIST Thirty Third Respondent: CHRISTINE GILCHRIST Thirty Fourth Respondent: CHRISTINE GILKINSON Thirty Fifth Respondent: ZELDA GISLETT Thirty Sixth Respondent: ADAM HALL Thirty Seventh Respondent: ROBERT HULL Thirty Eighth Respondent: ANGELA HUMPHRIES Thirty Ninth Respondent: MONIQUE IRVINE Fortieth Respondent: IRIS KNIGHT Forty First Respondent: KEN MCINTOSH Forty Second Respondent: KIM MULLER Forty Third Respondent: SEAN O'CONNOR Forty Fourth Respondent: MICHAEL O'DONNELL Forty Fifth Respondent: STEPHEN POLLARD Forty Sixth Respondent: JOHN SANTANGELO Forty Seventh Respondent: TIM THORBURN Forty Eighth Respondent: BEV TURELLO Forty Ninth Respondent: MARCO BOLANO Fiftieth Respondent: BRYAN YEATES Fifty First Respondent: TED HINGE Fifty Second Respondent: TERRY AGIUS Fifty Third Respondent: LIA AUGOUSTAKIS Fifty Fourth Respondent: STUART BOWLES Fifty Fifth Respondent: SHANE BRASIER Fifty Sixth Respondent: GINO CATHERINE Fifty Seventh Respondent: BRETT DAVIDSON Fifty Eighth Respondent: REUBEN DIXON Fifty Ninth Respondent: JENNY DUNLOP Sixtieth Respondent: LEONIE FLYNN Sixty First Respondent: JULIE GRAHAM Sixty Second Respondent: JOE GRECH Sixty Third Respondent: MARK HINDSON Sixty Fourth Respondent: PHILIP ADRIAN KERR Sixty Fifth Respondent: LISA MAGNUSSON Sixty Sixth Respondent: MELISSA NENADOVIC Sixty Seventh Respondent: PATRICK O'BRIEN Sixty Eighth Respondent: JIM PAPARAS Sixty Ninth Respondent: LORI SCIDONE Seventieth Respondent: LYN SHEPHERD Seventy First Respondent: STEPHEN SIGISMONDI Seventy Second Respondent: JIMMY VILLANUEVA Seventy Third Respondent: TAMMIE WHEELHOUSE Seventy Fourth Respondent: KATE WILKINSON Seventy Fifth Respondent: STUART MILLER Seventy Sixth Respondent: KERRIE SEYMOUR Seventy Seventh Respondent: PETER JAMES MYLAN Seventy Eighth Respondent: KIM HAZELWOOD Seventy Ninth Respondent: KIM GOODLOCK Eightieth Respondent: SHARON JOSEPH Eighty First Respondent: ALICIA ANSET Eighty Second Respondent: ROBERT BRADLEY Eighty Third Respondent: PETER BRAVIS Eighty Fourth Respondent: MELISSA BUTLER Eighty Fifth Respondent: ANDREW HEWAT Eighty Sixth Respondent: DEIDRE MCINTOSH Eighty Seventh Respondent: ADRIANA VESPUCCI Schedule No: (P)NSD 735 of 2012 Federal Court of Australia District Registry: New South Wales Division: Fair Work Second Respondent: MINISTER FOR EMPLOYMENT AND WORKPLACE RELATIONS Third Respondent: HEALTH SERVICES UNION Fourth Respondent: CHRISTOPHER PAUL BROWN Fifth Respondent: LLOYD ALBERT WILLIAMS Sixth Respondent: DANIEL PATRICK HILL Seventh Respondent: ROSEMARY LOUISE KELLY Eighth Respondent: JORGE NAVAS Ninth Respondent: ZITA DARLENE MITCHELL Tenth Respondent: KATHERINE JACKSON Other: UNIONS NSW Second Other: MICHAEL FRANCIS MOORE

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Judgment (33 paragraphs)

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