National Road Transport Association Ltd v Road Safety Remuneration Tribunal

Counsel for the Road Safety Remuneration Tribunal: The Road Safety Remuneration Tribunal filed a submitting notice

Solicitor for the Road Safety Remuneration Tribunal: Australian Government Solicitor

Solicitor for the Transport Workers' Union: Ms R Smith of Maurice Blackburn Lawyers

Solicitor for the Applicants in QUD 228 of 2016: Mr D Miller of Australian Industry Group

Solicitor for the Commonwealth of Australia (Department of Employment) (Intervener): Ms V Hepburn of Minter Ellison

BETWEEN: NATIONAL ROAD TRANSPORT ASSOCIATION LTD Applicant

AND: ROAD SAFETY REMUNERATION TRIBUNAL First Respondent

TRANSPORT WORKERS' UNION OF AUSTRALIA Second Respondent

COMMONWEALTH OF AUSTRALIA (DEPARTMENT OF EMPLOYMENT) Intervener

JUDGES: JESSUP, BUCHANAN AND RANGIAH JJ DATE OF ORDER: 7 April 2016

1. The National Road Transport Association's application for a temporary stay of the operation of the order of the Tribunal pending the making of an application for special leave to appeal to the High Court of Australia be rejected. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

BETWEEN: AUSTRALIAN INDUSTRY GROUP First Applicant

AUSTRALIAN CHAMBER OF COMMERCE AND INDUSTRY Second Applicant

LINFOX AUSTRALIA PTY LTD Third Applicant TOLL TRANSPORT PTY LTD Fourth Applicant

AND: ROAD SAFETY REMUNERATION TRIBUNAL First Respondent

TRANSPORT WORKERS' UNION OF AUSTRALIA Second Respondent

COMMONWEALTH OF AUSTRALIA (DEPARTMENT OF EMPLOYMENT) Intervener

JESSUP J: 1 I agree with Buchanan J. I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup.

BUCHANAN J: 2 Immediately upon delivery of judgment in National Road Transport Association Ltd v Road Safety Remuneration Tribunal [2016] FCAFC 56, counsel for the applicant in QUD226/2016 made an oral application for a stay of the order of the Road Safety Remuneration Tribunal given on 18 December 2015 and of its decision handed down on 1 April 2016. The stay was sought until 4.15 pm Monday, 11 April 2016 for the stated purpose of enabling that applicant to seek special leave to appeal to the High Court from the orders pronounced with the judgment. 3 The second respondent in QUD226/2016 ("TWU") opposed the further oral application for a stay. The applicant in QUD228/2016 and the intervener in both matters remained silent. 4 When a stay of an order is sought so that a party affected by the order may seek special leave to appeal to the High Court before the order applies in a practical way, it is well-established that the principles distilled by Brennan J in Jennings Construction Limited v Burgundy Royale Investments Proprietary Limited (No. 1) (1986) 161 CLR 681 ("Burgundy Royale") are engaged. That is the approach taken in this Court (see Petrotimor Companhia de Petroleos S.A.R.L. v Commonwealth of Australia [2003] FCAFC 82 ("Petrotimor")) and is the approach taken uniformly in other intermediate Courts of Appeal (see Rinehart v Welker (2012) 83 NSWLR 347 at [32] to [37] and [42] to [48]). 5 In Burgundy Royale, Brennan J said at 683: The jurisdiction to grant a stay in the present case depends on whether a stay is necessary to preserve the subject-matter of the litigation. If an application for special leave to appeal would be futile unless a stay is granted, the jurisdiction arises. … and at 684: A stay to preserve the subject-matter of litigation pending an application for special leave to appeal is an extraordinary jurisdiction and exceptional circumstances must be shown before its exercise is warranted. … 6 In Petrotimor, Black CJ and Hill J in their joint judgment also framed the principal question (at [5]) as being whether a stay pending an application for special leave was "necessary to preserve the subject matter of the litigation". 7 In the present case, we have decided that a stay is not necessary, and not warranted, pending a final hearing in this Court. In my view, it has not been shown that a stay of any act, order or decision of the Road Safety Remuneration Tribunal would be necessary to preserve the subject matter of litigation, whether in this Court or in the High Court. 8 In Burgundy Royale, Brennan J also said at 685: In exercising the extraordinary jurisdiction to stay, the following factors are material to the exercise of this Court's discretion. In each case when the Court is satisfied a stay is required to preserve the subject-matter of the litigation, it is relevant to consider: first, whether there is a substantial prospect that special leave to appeal will be granted; secondly, whether the applicant has failed to take whatever steps are necessary to seek a stay from the court in which the matter is pending; thirdly, whether the grant of a stay will cause loss to the respondent; and fourthly, where the balance of convenience lies. 9 In Obeid v The Queen [2016] HCA 9, Gageler J observed that the additional considerations arise when the requirement of necessity has first been established saying (at [14]): 14 Since Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd [No 1], judicial exposition of the conditions under which a stay will be granted in the context of an application for special leave to appeal has uniformly emphasised the need for the existence of "exceptional circumstances". The standard exposition has gone on to emphasise the relevance, even where the Court or a Justice is satisfied that a stay is required to preserve the subject matter of litigation, of consideration of whether there is a substantial prospect that special leave to appeal will be granted, of whether the grant of a stay would occasion prejudice to a respondent, and of where the balance of convenience might lie in the circumstances of the case. Those factors, however, do not always arise for consideration and collectively they do not exhaust the considerations that may be relevant in every case. (Citation omitted.) 10 On the view which I take (that a stay is not necessary to preserve the subject matter of litigation), it is not necessary to consider these additional questions but if it was, I would assess the prospect of obtaining special leave to appeal against our interlocutory order in QUD226/2016, where a final expedited hearing has been fixed, as slight. I would not consider, for the reasons already pronounced by Jessup J, that a sufficient case of prejudice had been established or that the balance of convenience favoured a stay. 11 Of course, no stay of our own order has been sought. Rather, what is proposed is that the Court should be persuaded, contrary to its stated reasons in the judgment just delivered, to nevertheless make an order which it has found is unwarranted and declined to make. However, it is not necessary to give further attention to the significance of this potential complexity. 12 I would dismiss the application made orally for a stay of the order and decision of the Road Safety Remuneration Tribunal, pending an application for special leave to appeal to the High Court from the interlocutory order made by the Court today in QUD226/2016. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan.

RANGIAH J: 13 I agree with Buchanan J. I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Rangiah.