13 In Environmental Group Ltd and Anor v Croudace and Anor (unreported, Supreme Court, NSW, Santow J, No. 1468/98, 7 August 1998), Santow J considered a number of factors to be weighed in the balance, relevant to the granting of a stay of Supreme Court proceedings pending determination of related Industrial Relations Commission proceedings. These included:
· The impact of the Supreme Court and Commisssion proceedings on each other.
· The relative progress of each proceedings.
· Conduct of the parties with respect to the relative progress of each proceedings.
· The fact that the Supreme Court proceedings were commenced first in time.
· Not all parties to the Supreme Court proceedings were parties to the Commission proceedings.
· Possible jurisdictional problems in relation to the Commission proceedings and how they bore on the stay application.
· Financial disadvantage.
14 Lockhart J in Sterling Pharmaceuticals Pty Limited v The Boots Company (Australia) Pty Limited (1992) 34 FCR 287 (at 290-291) dealt with a similar application to stay proceedings in the Federal Court pending determination of related proceedings in another jurisdiction. In doing so, his Honour made a number of observations concerning the powers of the Federal Court to order a temporary stay of proceedings and proceeded to formulate a number of factors which his Honour found were relevant to the application. His Honour said (at 290-291):
The court has a general power to control its own proceedings, and that power extends to enable it to order a temporary stay of proceedings in various circumstances including the case where proceedings are pending in another court and it is desirable that those proceedings should proceed to their conclusion first. ... The court is a superior court of record and obviously may control its own proceedings including, where appropriate, the exercise of a power to grant a stay. ...
In my opinion relevant considerations to be taken into account in the present case include the following:
· Which proceeding was commenced first.
· Whether the termination of one proceeding is likely to have a material effect on the other.
· The public interest.
· The undesirability of two courts competing to see which of them determines common facts first.
· Consideration of circumstances relating to witnesses.
· Whether work done on pleadings, particulars, discovery, interrogatories and preparation might be wasted.
· The undesirability of substantial waste of time and effort if it becomes a common practice to bring actions in two courts involving substantially the same issues.
· How far advanced the proceedings are in each court.
· The law should strive against permitting multiplicity of proceedings in relation to similar issues.
· Generally balancing the advantages and disadvantages to each party.
15 The formulations derived by Santow J in Environmental Group Ltd and by Lockhart J in Sterling Pharmaceuticals were cited and approved in L & W Developments Pty Ltd v Della (2003) 135 IR 118 where the Court of Appeal considered the principles governing a temporary stay of proceedings in one jurisdiction pending the determination of proceedings in another jurisdiction. In L &W Developments, both sets of proceedings involved consideration of the same contracts at first instance. Gzell J, in the Equity Division, Commercial List of the Supreme Court had conditionally stayed proceedings in that Court for damages pending the determination of proceedings, earlier commenced, in the Industrial Relations Commission in Court Session under s 106 of the Industrial Relations Act 1996. Mason P, with whom Giles and Santow JA agreed, found that any orders made by the Commission avoiding or varying the contracts, the subject of the application under s 106 of the Act, had the capacity to affect the rights of parties seeking to litigate related claims in the Supreme Court: at [16]. There was no dispute that the two sets of proceedings arose out of the same factual matrix: at [31].
16 In Software Engineers Australia (NSW) Pty Ltd v Bonket Pty Ltd (2002) 140 IR 112, Goldberg J considered an application to stay proceedings in the Federal Court until the Commission had made final orders in proceedings before it. His Honour granted orders seeking a stay of the Federal Court proceedings. One basis for granting the orders was that, "the determination of the proceedings before the IRC may well have a material effect on the [Federal Court] proceedings": at [30]. In Software Engineers both proceedings involved a consideration of different causes of action. In relation to that aspect, his Honour said (at [31]):
The applicants submitted that the causes of action relied upon in this Court were different causes of action from those in the IRC in Court Session and the relief sought in that Court. That may be so, but I am satisfied that the avoidance and variation of the various agreements and documents to which I have referred which has been sought in the IRC, if ordered by that Court, will alter the contractual basis upon which the applicant's causes of action are based in this Court. Although those contractual causes of action are separate from the causes of action based on ss 52 and 53 of the Trade Practices Act , the representations relied upon as constituting the breaches of those sections are contained in the various agreements and contractual documents. This may well have an impact on the extent to which the representations can be relied upon if the contractual basis for them is either removed or varied in a significant respect. This matter was not canvassed in any detail in argument before me but I am satisfied that it is desirable that the contractual basis which is said to exist between the parties be finally determined before any causes of action based on representations to be found in those agreements and the documents constituting them is litigated.
17 Goldberg J found it significant that four of the agreements upon which the Federal Court proceedings were based were also the subject of relief before the Commission. In that regard, his Honour said (at [19]):
Until the proceeding in the IRC in Court Session is determined and the decision of that Court is announced in relation to the claims that the agreements and documents to which I have referred are void or to be varied in the manner to which reference has been made, it is not possible to ascertain with any certainty what is the content of the agreements and documents upon which SEA and Mr Arundell rely in this proceeding and what is the content of the substantive provisions in respect of which allegations of contravention are made.
18 I propose to apply the principles formulated in the various decisions extracted above in my consideration of the respondent's applications for the grant of a temporary stay of the proceedings in this Court.
19 First, the proceedings in this Court were commenced almost 19 months after the Federal Court proceedings. They are still at a preliminary stage with the hearings of the substantive applications set down to commence later this month. In contrast, the FMC proceedings have advanced to the stage where findings of unfairness have been made with regard to the Riteway - TWU Agreement and the issues remaining are the form of the orders seeking variation of that agreement (to be heard on 31 March 2009) and any outstanding claims for relief. These matters, in my view, make it less likely, contrary to the applicants' contentions, that the Commission proceedings will be completed before the FMC proceedings.
20 Secondly, if, as the Court is presently advised, the evidence to be relied upon in these proceedings is, in large measure, the same as the evidence relied upon in the FMC proceedings, then a temporary stay of the proceedings could avoid the unnecessary duplication of some , if not all, of the evidence.
21 Thirdly, the applicants' contention that they will suffer prejudice (for other reasons associated with delay) if these proceedings are the subject of a stay is not borne out. The evidence relied upon by the applicants to make good the contention was in hearsay form led through the applicants' solicitor by way of affidavit evidence which was the subject of cross-examination during the hearing of the applications. In cross-examination, the applicants' solicitor confirmed that the assertion of prejudice on the ground of delay of these proceedings was based on what he was told by the applicants and not the subject of any independent enquiries. In oral submissions, counsel for the applicants informed the Court that underlying the contention was that the applicants would suffer prejudice if the respondent's application was granted because two of the applicants would be prevented from restructuring their finances without the benefit of compensation awarded by way of redundancy payments under the Contract Determination. There was little, if any, evidence adduced as to how the two applicants might have to restructure their finances, and if so, how an inability to accomplish this at some future stage might impact adversely on them if a temporary stay was granted.
22 Fourthly, the respondent contended that the applicants' positions were not made redundant by it because Clause 5 of the Riteway - TWU Agreement permitted it to require the applicants to obtain new vehicles without any form of additional compensation payable by the respondent. The applicants, in response, contended that Clause 6 of the Contract Determination does not require the termination to be effected by the principal contractor, but only that a termination has taken place.
23 I do not propose, at this stage of the proceedings, to undertake an inquiry into the proper construction of Clause 6 in accordance with the principles of award interpretation. I would observe, however, that a quick reading of the Clause does not, necessarily, lend support to the applicants' construction that the meaning of "termination" appearing in the clause is capable of applying to a termination of engagement either at the instigation of the principal contractor or at the instigation of the carrier. The opening words of the Clause, "Where a carrier is to be terminated ..." are suggestive of a construction consistent with a termination which is effected by the principal contractor. Clause 5 of the Contract Determination adds some force to this suggested construction. Without the benefit of further submissions, I am not prepared to consider the issue further at this stage.
24 Fifthly, according to the respondent, there has been delay in the commencement of these proceedings by the applicants who foreshadowed, in the FMC on 8 May 2008, that the proceedings would be commenced. The proceedings did not in fact commence until 20 August 2008. I consider, however, that given this relatively short period of time, namely some three months, there has been no appreciable delay.
25 Sixthly, and notwithstanding the submissions of the applicants to the contrary, in order for the Court to properly consider whether Clause 6 of the Contract Determination applies to the applications for recovery of money, it will be necessary for the Court to look at a number of issues, including whether the contractual relationships between the parties were terminated for the reasons set out in that clause. Clause 3 of the Contract Determination provides, subject to some exceptions, that it applies to "all contracts of carriage and shall bind all carriers and principal contractors party to such contracts of carriage". Based on the information supplied to the Court by the parties at this preliminary stage, the issue of termination may well require consideration of whether the applicants' positions were made redundant on 23 August 2007, which may require in turn an analysis of Clause 5 of the Riteway - TWU Agreement. It will be necessary for the Court therefore to know the final shape and form of the contractual relationships between the parties, yet to be determined by the FMC, so that it can properly consider the issues arising in the proceedings before it: see Idameneo (No 123) v Ko Ko Swe [2003] NSWSC 384 at [12] per Barrett J.
26 When all these circumstances are considered, the present proceedings in my view should be stayed until the final determination of proceedings in the FMC. Accordingly, the matters will be stood over for a directions hearing at 9.30am on 19 May 2009.
Orders