Commonwealth Bank of Australia v Finance Sector Union of Australia

WILCOX J: 1 There are before the Court two applications for leave to appeal from interlocutory orders made by Moore J. The applications arise in a proceeding pending in his Honour's list involving a claim by the Finance Sector Union of Australia ('the Union') and Joseph Adams for relief in respect of the alleged non-compliance with an industrial award by the Commonwealth Bank of Australia ('the Bank'). The Bank is the applicant for leave to appeal. 2 In my view, the applications must be dismissed for quite pragmatic reasons. I bear in mind that each of the decisions made by his Honour was a matter of practice and procedure, and a discretionary judgment. It seems to me, and with respect to his Honour, that not only was the view that he took open to him, but also it would have been extremely difficult for him to have reached any other view having regard to the circumstances with which he was confronted. 3 In order to justify that statement I should refer briefly to the history of the matter. I am assisted by a chronology of events which has been prepared by counsel for the applicant. 4 On 5 October 2000, the proceeding was instituted in this Court, being N1068 of 2000. On 3 April 2001 and, admittedly, in response to the proceeding in this Court, the Bank made an application to the Australian Industrial Relations Commission ('the Commission') pursuant to section 113(2) of the Workplace Relations Act 1996 (Cth) to vary the award provision that was the subject of the application in this Court. The Commissioner assigned to that application the number C2001/1820. 5 One week later, the Bank made an application by way of notice of motion in this Court that proceeding N1068 of 2000 be stayed pending final determination of application C2001/1820 by the Commission. Before that motion could be considered by the Court, a decision was made by Senior Deputy President Duncan in the Commission that proceeding C2001/1820 should be adjourned generally. 6 Proceeding N1068 of 2000 happened to have been allocated to my docket, but I became aware that there was pending in the docket of Moore J a proceeding which has been generally referred to as the 'Macey proceeding' involving the same parties and requiring construction of at least some of the same provisions of the relevant award. Taking the view that it was undesirable that there be two separate proceedings dealt with by different judges at the one time, and with the concurrence of the parties and Moore J, I transferred N1068 of 2000 to his Honour's list. That was done on 9 July 2001. 7 On 1 August 2001, Moore J decided to adjourn N1068 of 2000 pending the outcome of the Macey proceeding. As that case went to a Full Court, there was some delay in that outcome. In the meantime, on 4 April 2002, Senior Deputy President Duncan had been asked to proceed with proceeding C2001/1820. However, on 4 April 2002, and for reasons which he gave, he declined to take that course. 8 On 27 August 2002, the Union and Mr Adams decided to proceed with proceeding N1068 of 2000 having regard to the decision of the Full Court in the Macey proceeding. There was an application by the Bank for a trial of a separate question in that proceeding. On 20 November 2002, Moore J dealt with two issues. First, whether there should be a stay of proceedings in N1068 of 2000 and, second, whether there should be any separate question and, if so, its form. On 7 February 2003, his Honour handed down a judgment in which he refused the Bank's application for an order staying the proceedings. 9 After a later hearing on 23 April 2003, his Honour made a decision about the separate question. His judgment was given on 27 May 2003. It was after that date, namely on 11 June 2003, that Senior Deputy President Duncan decided to 'un-adjourn' proceeding C2001/1820. The Senior Deputy President has subsequently set down that matter for hearing before him over six days in September; that is to say, in a few weeks time. In the meantime, Moore J has fixed the hearing of N1068 of 2000 to commence upon 8 March 2004. 10 It seems to me that the situation with which Moore J was confronted when he dealt with each of the matters, the subject of the current applications for leave to appeal, was that although an application had been made to the Commission as long ago as April 2001, by the deliberate decision made on two separate occasions of Senior Deputy President Duncan, the Commission was not proceeding with the hearing of that application. The reason, apparently, was that Senior Deputy President Duncan took the view - rightly, or wrongly - that it was better for the proceeding in this Court to be heard first. 11 Moore J, of course, had no control over the actions of the Commission. He was confronted with a situation that there was no immediate prospect of the Commission dealing with the variation application, on the one hand and, on the other, that he had before him applicants who were entitled to come to the Court to take action to enforce the award and were anxious to press on with the matter and obtain a hearing. It seems to me that it was not only open to Moore J to take the view that under those circumstances it would be wrong to stay the matter before him; but also, as I have said before, that I think he could not responsibly have come to any other conclusion. 12 The separate matter concerning the form of the separate question is conceded by Mr Walker, senior counsel for the Bank, to involve, really, the same point. It is unnecessary to go into the details of the form of the question propounded by his client, as compared with the form of the question propounded by the Union and Mr Adams and which was favoured by his Honour. Mr Walker's concession that this really comes down to the same point about a stay, relieves me from going into that area. 13 It is worth emphasising that even as recently as the time when his Honour dealt with the separate question, the matter in the Commission had yet to be un-adjourned. In my view this is not a case for the Court to give leave to appeal. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.

MARSHALL J: 14 The two applications before the Court for leave to appeal from two interlocutory judgments of Moore J may be described as follows. 15 The first application concerns his Honour's refusal to stay a proceeding in his docket ("the substantive proceeding") pending the determination of an application to vary the industrial award, which is being sought to be enforced in the substantive proceeding. 16 The second application concerns his Honour's decision pursuant to O29 r2 of the rules of Court to order the trial of a separate question, in a form proposed by the respondents and opposed by the applicant. 17 The current question for determination is whether leave to appeal should be given in respect of the two interlocutory judgments of his Honour refusing to stay the substantive proceeding and framing a separate question in accordance with the proposal by the respondents. 18 The substantive proceeding is an application made under s178 of the Workplace Relations Act 1996 (Cth) ("the Act") to enforce a consent award ("the award") made by the Australian Industrial Relations Commission ("the Commission"). The substantive proceeding is also a representative proceeding which is brought by the respondents as representative parties on behalf of a class of persons alleged to have been affected by the asserted breach of the award ("the group members"). In addition, the application alleges breach of contract in reliance upon the accrued jurisdiction of the Court. 19 The respondents filed the substantive proceeding on 5 October 2000. They claim that the applicant was in breach of its obligation to make redundancy payments to the group members. 20 On 3 April 2001, the applicant filed in the Commission an application to vary the award pursuant to s113 of the Act. The application sought to relieve the applicant from any liability to make redundancy payments to the group members. 21 On 10 April 2001, the applicant filed a notice of motion in the Court seeking that the substantive proceeding be stayed pending determination by the Commission of the award variation application. That motion was not heard until 20 November 2002. 22 In the meantime, on 20 June 2001, the Commission granted an application by the first respondent to adjourn generally the award variation application. 23 On 1 August 2001, the substantive proceeding was adjourned generally pending the outcome of a related proceeding. 24 On 26 September 2002, the applicant filed a motion seeking a hearing of a separate question under O29 r2 of the rules of Court. The separate question posed by the applicant, in summary, sought a determination of whether the applicant was obliged to treat the group members as being in a redundancy situation for the purposes of the award. Subsequently on 13 March 2003, the respondents sought the hearing of a differently framed separate question. That question, in summary, sought a determination of whether on a true construction of the award the group members are entitled to severance pay from the applicant. 25 On 20 November 2002, Moore J heard the applicant's stay application. His Honour published his reasons for rejecting that application on 7 February 2003. At [9] of his reasons for judgment, Moore J said: "In my view, the appropriate approach is not to stay the principal application. Whatever rights are presently conferred and liabilities imposed by the Award will be determined in the principal application. The Court has a duty to determine that application: see the judgment of Gray J inMcGarry v Boonah Clothing Pty Ltd (supra) and the authorities referred to and Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [19]. It is not appropriate to refrain from exercising that duty simply because one party wishes to take steps, potentially, to alter the rights and liabilities of the parties to the litigation in the Court. If, as the applicants contend, Mr Adams and group members were entitled to redundancy pay under the Award (as it was framed at the relevant time) when they left the employment of the Bank, that is a legally enforceable right the applicants are entitled to vindicate by proceedings in the Court. Assuming the existence of such a right and that the Commission can and would wish to alter those rights on the application of the Bank, that is a matter for the Commission. There is no reason why the Commission cannot, in the course of dealing with any application to vary the Award and for the purpose of determining such an application, interpret the Award. However even if the Commission took the view that it should hear the Bank´s variation application (notwithstanding its earlier decision to adjourn the variation application generally though made apparently by reference to a position then adopted by the Union which has altered) the Court´s duty would continue to be to hear and determine the principal application. If the Award was varied before judgment was given then the legal effect of the variation would, if raised as an issue which was relevant, have to be determined in the principal application."

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