George Anthony Calvert Murrell v South Eastern Sydney Area Health Service

DECISION : Upon the plaintiff giving to the court the usual undertaking as to damages, orders restraining the South Eastern Sydney Area Health Service from taking any steps to reduce the allocation of floor space of the Research and Education Building at the St. George Hospital Campus to the Department of Orthopaedic Surgery, the Orthopaedic Research Institute and the plaintiffs private practice

CATCHWORDS : Practice and procedure - Interlocutory injunctive relief - Contract - Construction - Suite of claims for relief including claims pursuant to s106 of Industrial Relations Act 1996 (NSW) - Serious case - Balance of convenience - Specific performance - There is no absolute rule that in no circumstances will an equity court refused to grant specific performance or injunctive relief when there is an element of personal service in a contract

Civil Procedure Act 2005 (NSW) Health Services Act 1997 (NSW) LEGISLATION CITED : Industrial Relations Act 1996 (NSW) Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) Trade Practices Act 1974 (Cth)

American Cyanamid Co v Ethicon Ltd [1975] AC 396 Appleton Papers Inc v Tomasetti Paper Pty Ltd [1983] 3 NSWLR 208; (1983) 50 ALR 428; 1 IPR 569 Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 Byrne & Frew v Australian Airlines Limited (1995) 185 CLR 410 CH Giles & Co Ltd v Morris [1972] 1 WLR 307 Eng Mee Yong v Letchumanan [1980] AC 331 CASES CITED : Evans Marshall & Co Ltd v Bertola SA [1973] 1 WLR 349 Fortescue v Lostwithiel and Fowey Railway Company [1894] 3 Ch 621 Gregory v Philip Morris Ltd (1988) 80 ALR 455 Hill v CA Parsons & Co Ltd [1972] Ch 305 Liristis Holdings Pty Limited v Q-Corp Marine Pty Limited [2001] NSWSC 418 Patrick Stevedores Operations No. 2 Pty Limited v Maritime Union of Australia (No 3) (1998) 195 CLR 1 Turner v Australasian Coal & Shale Employees' Federation (1984) 6 FCR 177

PARTIES : George Anthony Calvert Murrell (Plaintiff) South Eastern Sydney Area Health Service (Defendant)

COUNSEL : Mr S A Wells (Plaintiff) Mr R Goot SC, Mr S Prince (Defendant)

SOLICITORS : The Hargreaves Practice (Plaintiff) Bartier Perry (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION COMMERCIAL LIST

Wednesday 12 April 2006 ex tempore Revised 20 April 2006

50028/06 George Anthony Calvert Murrell v South Eastern Sydney Area Health Service JUDGMENT

The notice of motion 1 There is before the Court a notice of motion filed by the plaintiff seeking orders that:

(a) the defendant, South Eastern Sydney Area Health Service be restrained from taking any steps to reduce the allocation of funds stipulated in the contract of employment between the plaintiff and the defendant.

(b) the defendant be restrained from taking any steps to reduce the allocation of floor space of the Research & Education Building at the St George Hospital Campus to the Department of Orthopaedic Surgery, the Orthopaedic Research Institute and the plaintiff's private practice. Relief under Paragraph 1 of notice of motion not sought 2 Due to a present arrangement between the plaintiff and the defendant, the plaintiff does not at this stage move the Court for the relief sought in relation to the allocation of funds.

The proceedings 3 The proceedings were commenced by the plaintiff in the Industrial Relations Commission of New South Wales on 21 February 2003 seeking relief under s 106 of the Industrial Relations Act 1996 (NSW). An Amended Summons for Relief was filed on 26 July 2004 and a Further Amended Summons for Relief was filed on 2 September 2005. 4 The plaintiff commenced a separate proceeding in the Industrial Relations Commission in connection with the defendant's reduction of the plaintiff's salary on 30 September 2003, contending that this was without the consent of the plaintiff. 5 On 6 December 2005, the plaintiff commenced proceedings in the Federal Court seeking relief under the Trade Practices Act and damages for breach of the contract of employment. 6 On 6 December 2005, the plaintiff also made applications under the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) to: (a) Remove the proceedings in the IRC to the Supreme Court of NSW by way of Summons in the Supreme Court of NSW - pursuant to s 8(1); and

(b) Transfer the Federal Court proceedings to the Supreme Court of NSW by way of Notice of Motion filed in the Federal Court - pursuant to s 5(4). 7 Orders pursuant to the applications under the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) were made and the proceedings were removed and transferred to this Court and consolidated.

The facts 8 The facts of this case cover a period from 1992 to 2006. Whilst many events have transpired in that period, the following overview, limited to a chronology relating essentially to the contract of employment and another chronology relating to the floor space on level 2 of the Research & Education Building, is sufficient for the present purposes. Contract of employment 9 The defendant, now known as South Eastern Sydney & Illawarra Area Health Service, is the authority, which until 1 January 2005, was responsible for the St George Hospital. 10 The plaintiff was appointed as Director of the Department of Orthopaedic Surgery, a major department of the Division of Surgery and Critical Care at St George Hospital, and also the St George Hospital Orthopaedic Research Institute ["ORI"] from 1 September 1995.

11 The defendant entered into a contract of employment with the plaintiff on 4 August 1997. The contract contains, inter alia, the following clauses:

2.2 SESAHS appoints Dr Murrell and Dr Murrell accepts the appointment as an employee of SESAHS on the terms and conditions set out in this Agreement, with effect from the Commencement Date.

2.3 Dr Murrell is employed with all the rights and privileges and obligations of a Professor. This Agreement will continue, subject to the termination provisions of this Agreement, until the earlier of: (a) such time as Dr Murrell is employed by the University of New South Wales as Professor of Orthopaedic Surgery; or

(b) 1 September 2002. … 3.3 Dr Murrell and SESAHS agree to the arrangements with respect to the Department of Orthopaedic Surgery as set out in Schedule A to this Agreement.

3.4 SESAHS, in consultation with the University of New South Wales, will create and continue to fund the position of Professor in Orthopaedic Surgery, such position to be commensurate in status and remuneration to other full professional positions within the Faculty of Medicine of the University of New South Wales.

3.5 The SESAHS will use its best endeavours to secure Dr Murrell an appointment to this position as soon as practicable. … 4.1 SESAHS will as soon as practicable establish an Orthopaedic Research Institute to attract funding for and to provide research activities for advancing the knowledge and treatment of orthopaedic conditions.

… Schedule A - Department of Orthopaedics

… 12. SESAHS will allocate an entire floor of the Education Building at the St George Hospital campus to the Department of Orthopaedic Surgery, Orthopaedic Research Institute and Dr Murrell's private practice following the commissioning of the Education Building. It is anticipated that Education Building will be opened in or about November 1998. 12 In August 2002 the position contemplated by clauses 3.4 and 3.5 of the contract of employment was advertised in the Sydney Morning Herald. 13 The defendant stated in a letter to the plaintiff dated 18 February 2003 that it "is unable to determine whether to fund the University of New South Wales Professor of Orthopaedic Surgery Chair whilst it is in dispute with you" and "The Area will not commit to funding the Chair of Orthopaedic Surgery except upon you accepting these principles and agreeing not to make any contrary claims." Floor space on level 2 of the Research & Education Building 14 In January 2000 the Department of Orthopaedic Surgery, the ORI and the plaintiff's clinical practice moved into the second floor of the new Research and Education Building, which is located on the grounds of St George Hospital. 15 In 2004, the defendant advised the plaintiff that "…research laboratory space has become a critical issue for St George Hospital" 16 In December 2005, the plaintiff requested the defendant to provide an undertaking that it would not reduce the plaintiff's budget or take away space on level 2 of the Research & Education Building. The defendant refused to give such undertakings. 17 On 30 January 2006, the parties reached an accommodation where under the defendant undertook to give to the plaintiff 14 days' written notice of any intention to: (a) implement any changes to the present use and allocation of the second floor of the Research & Education Building;

(b) implement any further changes to the budget of the Orthopaedic Research Institute. 18 On 22 February 2006, the defendant gave notice to the plaintiff's solicitor that it would be making arrangements for a researcher on level 3 to use a room and bench space on level 2 of the Research & Education Building from 9 March 2006. 19 On 10 March 2006 the defendant agreed to extend undertaking (a) until after the notice of motion hearing. The principles 20 In approaching such an application, it is clear that the principles which govern the court's approach are those generally dealt with and set out in Appleton Papers Inc v Tomasetti Paper Pty Ltd [1983] 3 NSWLR 208; (1983) 50 ALR 428; 1 IPR 569. 21 In Appleton, McLelland J cited the full High Court decision in Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 at 622-3; [1968] ALR 469 where the court had said that in dealing with applications for interlocutory injunctions: The Court addresses itself in all cases, patent as well as other, to two main inquiries. The first is whether the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is, there is a probability that at the trial of the action the plaintiff will be held entitled to relief … The second enquiry … is whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused, outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted. 22 McLelland J also cited from the Privy Council decision in Eng Mee Yong v Letchumanan [1980] AC 331 at 337 where the Privy Council had expressed the relevant principle in terms derived from the American Cyanamid Co v Ethicon Ltd [1975] AC 396 case as follows:

"The court's power to grant an interlocutory injunction … is discretionary. It may be granted in all cases in which it appears to the court to be just and convenient to do so … the guiding principle in granting an interlocutory injunction is the balance of convenience; there is no requirement that before an interlocutory injunction is granted the plaintiff should satisfy the court that there is a "probability", a "prima facie case" or a "strong prima facie case" that if the action goes to trial he will succeed; but before any question of balance of convenience can arise the party seeking the injunction must satisfy the court that his claim is neither frivolous nor vexatious; in other words that the evidence before the court discloses that there is a serious question to be tried …" Serious question to be tried The plaintiff's contentions 23 The plaintiff contends that there is a serious question to be tried in relation to alleged breaches of the contract of employment by the defendant. The plaintiff contends that:

(a) the defendant's failure to create and fund the position of Professor in Orthopaedic Surgery at UNSW constituted a breach of clause 3.4;

(b) by reason of such breach the defendant was not entitled to rely upon clause 2.2(b) of the contract to bring it to an end on 1 September 2002;

(c) hence the contract of employment remains on foot;

(d) the defendant is estopped from relying upon clause 2.2(b)

(e) the defendant breached s 52 of the Trade Practices Act and its duty of good faith;

(f) the contract of employment is unfair within the meaning of s 105 of the Industrial Relations Act . The defendant's contentions 24 The defendant contends that the Contract was terminated in accordance with its terms because as at 1 September 2002, the condition referred to in paragraph 2.2 of the Contract, namely employment of the plaintiff by the University of New South Wales as Professor of Orthopaedic Surgery, had not occurred. 25 The proposition is that if the defendant's construction of the Contract is correct, then that is the end of the matter. 26 Alternatively, the contention is that if the Contract was not terminated on 1 September 2002 but continued, then no injunction as sought by the plaintiff would go for the reasons set out in the defendant's contentions, namely:

i. Even taking the plaintiff's case at its highest and assuming that the Contract is on foot, the plaintiff would not succeed on a simple point of construction of clause 12 of Schedule A.

ii. That is because: (a) The obligation on SESAHS (even assuming the transfers to the defendant) is to allocate an entire floor of the Education Building to the ORI, Department, and the plaintiff's private practice. That obligation was discharged when the Education Building was commissioned. There is no dispute, so it is contended, that the allocation occurred;

(b) No term of the Contract express or implied has been alleged by the plaintiff which would oblige SESAHS or the defendant to continue to ensure that the allocation of space would never change;

(c) There is no fixed ratio or other measure of floor space specified as to the proportion of space available to each of the ORI, Department and the plaintiff;

(d) The defendant has exclusive power over the operation of the Department and effective control of the ORI and is free to use the space of either of those entities in such a manner as it sees fit and in accordance with its authority under the Health Services Ac t;

(e) There is no contractual fetter on the use to which either the ORI or the Department may use the space to which they are entitled under clause 12 Schedule A of the Contract. 27 The defendant further contends that the focus of "serious question" goes beyond whether the Contract was terminated on 1 September 2002 or alternatively remains on foot thereafter. 28 The proposition is that even assuming the Contract continued after 1 September 2002 (which is contrary to the defendant's submissions), the plaintiff has to overcome the following matters to establish a serious question:

(a) whether the Court would order specific performance of the Contract; and

(b) whether on its true construction Clause 12 of Schedule A supports the exclusion of Dr Clarke from the second floor of the Education Building. 29 The contention is that the plaintiff proceeds on the basis that the defendant has breached Clause 3.4 and 3.5 of the Contract. The submission is that there is no evidence that Clause 3.4 has been breached, but, on the contrary, the evidence is that the position of Professor in Orthopaedic Surgery at, and commensurate in status and remuneration to other full professorial positions within the Faculty of Medicine of the University of New South Wales, was established prior to 2 September 2002. 30 The defendant contends that the plaintiff's reliance on certain authorities proceeds on the misconception that Clause 2.2 of the Contract is a clause relating to termination, or cancellation, or recision of the Contract for breach of a condition, whereas it is not concerned with termination but is a clause that fixes the duration for the operation of the Contract. 31 The defendant further contends that even if it be wrong in its characterisation of Clause 2.2 of the Contract, then the Contract was void on 2 September 2002 and not merely voidable because the defendant had no control over the event in clause 2.2(a). The contention is that there is no causative link between the failure of the defendant to use its best endeavours under Clause 3.5 and the fact that as at 2 September 2002 the plaintiff had not been appointed to the Position. 32 The defendant further contends that contrary to the plaintiff's Outline of Submissions the employment of the plaintiff by the University of New South Wales in the Position was not in the control or gift of the defendant, nor was it something which the defendant could bring about, even if it could influence that fact. 33 Alternatively, the defendant submits that the plaintiff's remedy for the defendant's breach is damages and not specific performance of the Employment Contract. This is said to be so, inter alia, because: (a) the plaintiff seeks to have the whole Contract remain on foot after 2 September 2002. He seeks thereby to have the whole Contract including the service components specifically performed;

(b) an order for the specific performance of an employment contract is not granted save in exceptional circumstances see Byrne & Frew v Australian Airlines Limited (1995) 185 CLR 410 at 427-428. The plaintiff does not fall within any of the exceptional circumstance categories.

(c) Specific performance would involve enforcing rights relating to the Department of Orthopaedic Surgery and the ORI, in the absence of any evidence of their desire to have those rights enforced. Indeed in so far as the Department is concerned it is opposed to the continuation of the Contract;

(d) specific performance would involve an interference in the administration of public monies and the exercise of the executive functions pursuant to the Health Services Act ;

(e) there has been a significant delay by the plaintiff in seeking the remedy of specific performance;

(f) specific performance of the Contract would involve much more than simply supervising and monitoring the plaintiff's employment but would, on the plaintiff's construction of the Contract, extend to supervising space allocation, budgets and the particular way in which money was spent by the ORI and the Department;

(g) specific performance would require the Contract to continue operating on an entirely artificial basis namely: that the Contract would continue with the plaintiff occupying the position of Professor of Orthopaedic Surgery at the University of New South Wales. However, the Court could never order the University to appoint the plaintiff to the Position. 34 The defendant's contention is that because there can be no specific performance of the Contract, no injunction can go where to restrain the defendant as sought, would be effectively to order specific performance of the Contract. Balance of convenience The plaintiff's submissions 35 The plaintiff submits that the balance of convenience weighs strongly in favour of the granting of relief sought pending the hearing. The contention is that this is so for the following reasons: (a) first, the plaintiff seeks a final hearing date as soon as possible. In February 2006, prior to the proceedings being transferred into the Commercial List the plaintiff contends that the defendant indicated that it consented to the proceedings being expedited. It is said that this consent was noted by James J. Once the present discovery process is completed, the plaintiff expects that he will be able to file all of his evidence in support of proceedings within three weeks. It is hoped that the proceedings can be heard as soon as possible;

(b) secondly, the defendant suggested that " space is very tight " on 20 February 2004. Over 2 years have passed since this time yet the defendant has been able to manage and meet its space requirements without utilizing office and bench space on level 2 of the Research and Education Building; (c) thirdly, Dr Clarke has indicated that his preference is to stay on level 3: [2] Deirdre Murrell - 10.03.06;

(d) fourthly, Dr Clarke's supervisor, Prof Kearsley, has indicated that he would not like Dr Clarke to move to level 2 and that Dr Clarke is happy where he is: [4] Deirdre Murrell - 10.03.06;

(e) fifthly, the defendant first gave notice of its intention to utilize space on level 2 by letter dated 4 August 2006 and since that time has extended the period of its undertaking to 12 April 2006, which is a period in excess of 3 months. Delaying the defendant further until the proceedings are heard is unlikely to prejudice the defendant; (f) sixthly, for reasons which are set out in the plaintiff's submissions and below, the Department of Orthopaedic Surgery and the ORI will potentially suffer irreparable harm which will not be adequately compensated by damages nor unraveled by simply moving persons back out from level 2 following determination of the proceedings. 36 The plaintiff further contends that if the defendant is not restrained from taking steps to reduce the allocation of floor space or implementing any changes to the present use and allocation of the second floor, the plaintiff, the Department of Orthopaedic Surgery and the ORI will suffer the following consequences:

(b) reduced morale of persons working within the ORI;

(c) a recent research grant requires space on level 2 for the seven additional researchers which would be impaired by persons moving from level 3 to level 2;

(d) extensive and complicated equipment housed on level 2 would be put at risk;

(e) the design on the entire second floor is such that separate areas on the floor cannot be easily secured, which is said to raise security concerns;

(f) adverse impact on administration and problems with supervision;

(g) possible equipment misplacement and disruption to the activities to the ORI;

(h) disruption to the system in connection with the delivery of supplies;

(k) significant risk of contamination of cell culture material;

(l) disruption to the ORI and consequent impairment of the ability to raise funds; and

(m) possible breaches of ORI occupational health and safety policies. The defendant's submissions 37 The defendant submits that the balance of convenience is clearly support of the proper exercise of the discretion being to refuse the interlocutory relief. It relies inter alia upon the following matters:

(a) the need for Dr Clarke to move from the third floor to the second floor;

(b) the availability of space for Dr Clarke on the second floor;

(c) the absence of any substantive or meritorious basis to prevent Dr Clarke occupying the minimal space sought;

(d) the public interest requirement. 38 The defendant further contends that it cannot be asserted by the plaintiff that Dr Clarke's move into the space occupied by the ORI or the Department, is merely the "thin end of the wedge", because the defendant has already given an undertaking not to implement any changes to the present use and allocation of the second floor of the Education Building occupied by the ORI and the Department, without giving 14 days' notice. Decision 39 In my view the plaintiff has clearly established that there is a serious question to be tried. The plaintiff's Claim cannot be characterised as frivolous or vexatious. The above-described plaintiff's contentions raise close questions as to the proper construction of the contract and close questions as to breach. Whether or not the statutory counts, alleged breaches of duties of good faith and claims that the contract of employment will be held unfair within the meaning of s106 of the Industrial Relations Act must obviously await the matter being fully litigated. 40 It is pertinent to observe that there is no absolute bar to the granting of an injunction which involves supervision by the Court - rather it is a matter of degree: Patrick Stevedores Operations No. 2 Pty Limited v Maritime Union of Australia (No 3) (1998) 195 CLR 1 at paragraphs 79-80: see also Liristis Holdings Pty Limited v Q-Corp Marine Pty Limited [2001] NSWSC 418. 41 There is no absolute rule that in no circumstances will equity refuse to grant specific performance or injunctive relief when there is an element of personal service in a contract: cf Fortescue v Lostwithiel & Fowey Railway Company [1894] 3 Ch 621 at 639.3-640.2; CH Giles & Co Ltd v Morris [1972] 1 WLR 307 at 317.8-319.2; Hill v CA Parsons & Co Ltd [1972] Ch 305, Evans Marshall & Co Ltd v Bertola SA [1973] 1 WLR 349 at (the first instance decision which was reversed), and 379-380; Turner v Australasian Coal & Shale Employees' Federation (1984) 6 FCR 177 at 192-193; and Gregory v Philip Morris Ltd (1988) 80 ALR 455 at 481-2. 42 The issue of the propriety of particular equitable relief whether by way of specific performance or injunctive relief is always instant specific.

Balance of convenience 43 As has already been noted from the written submissions, this parameter of the issues for present decision was vigorously contested. 44 Standing back from all of the detail, it is critical to recall that on an application for interlocutory injunctive relief it is not the role of the Court to make findings as to disputed facts. In a number of instances the evidence has disclosed that the parties are at issue as to the facts. One only example may be seen in terms of the affidavit of Dr Evans of 9 May 2006 in which Dr Evans [taking into account the apparent mistake in the paragraph] deposed that prior to building the Research and Education Building at the hospital, the hospital had another building where research was undertaken but that that building was subsequently deemed unusable. 45 In contradistinction to this evidence, Professor Murrell deposed in his affidavit of 10 March 2006 that this building was then used by particular research groups concerned with cancer care and gynaecology. 46 Then there is the question of the competing contentions as to the extent to which the second floor of the Research and Education Building is presently the subject of underuse. The evidence before the court is that Dr Diwan has recently attracted significant additional funding which is to involve the employment of at least seven new researchers. Apparently two such new researchers have already been accepted as such. The evidence is that the new researchers will require bench space and office space to conduct their program and that the addition of external research groups would impair the space available to Dr Diwan's Group and the existing researchers in the ORI. 47 The defendant has by its counsel characterised the concerns put forward by the plaintiff as unfounded in the extreme. The submission was that effectively the plaintiff is simply about "protecting his own patch". The contention was that the anxieties expressed by the plaintiff as to a reduction of the allocation of floor space with the implementation of changes to present use and allocation of the second floor being likely to have consequences for the plaintiff, the Department of Orthopaedic Surgery and the ORI by way of adverse impact of management, reduced morale of persons working within the ORI, the placing at risk of expensive and complicated equipment; the security concerns; problems of supervision and adverse impact on administration; possible equipment misplacement and disruption to the activities of the ORI; a risk of contamination of cell culture material; were simply effectively specious, unfounded and/or grossly over exaggerated. 48 The simple fact is that each of these matters is the subject of the sworn evidence of the plaintiff. 49 Whilst the Court must of course take into account the sworn evidence of the executive director of St George Hospital on a number of matters concerning the shortage of research space, this is not a situation in which the court is able to decide which of the contentions by either party has clear substance and which are insubstantial. Likely in a number of the categories of matters litigated, there is simply no bright-line distinction so that one is in grey areas. 50 During the hearing the Court made plain to both parties the vital relevance of the particular stage to which this litigation had advanced in terms of the balance of convenience. The Court may approach an application for interlocutory relief where it is clear that the trial is reasonably imminent in an entirely different fashion to the approach the court would take, or likely take, where it seems tolerably clear that the proceedings could not come on for trial say, for example, for nine months or longer. Neither party has seen fit to place before the Court any sworn evidence as to these matters and such investigation as the Court has been able to make today by questioning of counsel has suggested that discovery may take some real time and that the usual stately approach to following completion of discovery, directions being given and hopefully complied with, in terms of the filing of evidence, may be expected. 51 In my view this is a case which justifies curial intervention in terms of the interlocutory processes. The overriding purpose of the Civil Procedure Act 2005 and of the Rules of Court, now enshrined in that Act in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. Parties to civil proceedings are under a duty to assist the Court to further that overriding purpose and, to that effect, to participate in the processes of the Court and to comply with directions and orders of the Court. The objects of case management include proceedings being managed so as to achieve inter alia :

i. the efficient disposal of the business of the Court;

ii. the efficient use of available judicial resources; iii. the timely disposal of the proceedings at a cost affordable by the respective parties. 52 The Civil Procedure Act provides that for the purpose of determining what are the dictates of justice in a particular case, the Court may have regard to particular to the extent to which it considers them relevant including:

"The degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities." 53 S 59 provides that in any proceedings, the practice and procedure of the Court should be implemented with the object of eliminating any lapse of time between the commencement of the proceedings and their final determination beyond that reasonably required for the interlocutory activities necessary for the fair and just determination of the issues in dispute between the parties and the preparation of the case for trial. 54 Reference was made earlier in the judgment to the history of these proceedings commencing following the commencement of the proceedings before the Industrial Relations Commission and the proceedings before the Federal Court and the sundry cross-vesting exercises which then took place. Clearly, a great deal of time has passed during the course of which the witnesses' internecine disputation continuing at a litigious level, has continued unabated, leading to today's interlocutory injunction application some months after the matter was first before this Court. 55 I have come to the clear view that the appropriate exercise of the Court's discretion in this particular case is to immediately fix these proceedings for hearing during the week of 3 July 2006. 56 In my view the balance of convenience is clearly in favour of the granting of an injunction in terms of the orders sought by the plaintiff up to and including the delivery of judgement following that final hearing at first instance. 57 It will obviously be necessary for the Court to oversee a regime whereunder interlocutory steps will be completed in fashion such as to permit that hearing to go forward. The appropriate course is to give the parties an opportunity to put forward an agreed timetable. The proceedings will be before the list judge on the first Friday after Easter for directions, on which occasion if the parties have not been in a position to agree upon a timetable, the Court will dictate that timetable. 58 It is appropriate to make plain that the urgent expedited fixture of these proceedings to the week of 3 July 2006 is not negotiable. This is not a circumstance in which counsel, counsel's convenience, solicitors or solicitors' convenience can be taken into account. The time has come when these proceedings have to be heard and when the legal rights of the parties have to be, finally, once and for all ascertained. That time will be, as I have said, on and after 3 July 2006. 59 It only remains then to return to the notice of motion in order to make appropriate orders of an injunctive nature in so far as the plaintiff presses for such relief as is appropriate.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.