Upon the applicant giving the usual undertaking as to damages, the injunction in Order 3 of the orders made on 12 April 2024 (the 12 April Orders) and extended on 16 April and 13 May remains in force pending the determination of these proceedings or further order of the Court.
The interlocutory application is refused insofar as the applicant seeks an extension of Order 4 of the 12 April Orders pending the determination of the proceedings.
Upon the applicant giving the usual undertaking as to damages, the injunction in Order 4 of the 12 April Orders remains in force until 6pm on Tuesday 21 May 2024 or further order of the Court.
On or before 3pm on Tuesday 21 May 2024, the parties are to file draft minutes of order otherwise to give effect these reasons.
The interlocutory application is relisted for Tuesday 21 May 2024 at 4.30pm.
Costs are reserved.
Liberty to apply on short notice.
[2]
The parties are to confer in an endeavour to reach agreement as to the terms of an appropriate order or undertaking for the provision of notice to the applicant by the respondent pending the final determination of these proceedings of any intention by the respondent to resume publication of advertisements to similar effect as those the subject of the present proceedings.
The listing on 21 May 2024 may be vacated in the event that the parties are able to reach agreement as to the terms of an appropriate order or undertaking.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
[3]
INTRODUCTION
1 These proceedings were commenced by the applicant, Ramsey Health Care Australia Pty Ltd, by originating application on 11 April 2024. By an amended originating application, filed on 16 April 2024 (the Application), Ramsay seeks declarations that the respondent, the Australian Nursing Federation Industrial Union of Workers Perth (the Nursing Union or ANF):
(a) engaged in conduct in trade or commerce that was misleading or deceptive or likely to mislead or deceive in contravention of s 18 of the Australian Consumer Law [the ACL] being Schedule 2 to the Competition and Consumer Act 2010 (Cth) (the CCA) and relevantly applying to the Respondent as a law of Western Australia by reason of s 24 of the Fair Trading Act 2010 (WA);
(b) engaged in conduct in trade or commerce that was liable to mislead the public as to the nature, characteristics and suitability for their purpose of services provided to patients at the Applicant's hospitals in Western Australia in contravention of s 34 of the ACL;
(c) engaged in conduct that is liable to mislead persons seeking employment with the Applicant as to the nature of that employment or any other matter relating to that employment in contravention of s 31 of the ACL; and
(d) maliciously published false or misleading statements concerning the services provided to patients at the Applicant's hospitals in Western Australia which induced (at least some) members of the public not to deal with the Applicant and thereby caused actual damage to the Applicant.
(Emphasis omitted.)
2 By an interlocutory application, Ramsey seeks a further extension of interim injunctions against the Nursing Union, pending the determination of these proceedings or until further order of the Court. The injunctions were originally made on 12 April 2024, following an ex parte hearing before the Duty Judge, and read:
Upon the applicant giving the usual undertaking as to damages, the respondent by itself, its servants, agents and employees be restrained, until 5.00pm on 16 April 2024 or until further order of the Court from further publishing or broadcasting of any advertisements in the following form:
(a) the advertisement published in The West Australian on Monday, 8 April 2024 headed "Patient Ratios";
(b) the advertisement published in The West Australian on Wednesday, 10 April 2024 headed "What are your patient ratios, Ramsay?"; and
(c) the advertisements published on radio stations broadcasting in and around Perth being 6PR Perth, 96FM Perth, Nova Perth 93.7 and 92.9 Triple M Perth on Monday, 8 April 2024, Tuesday, 9 April 2024 and Wednesday 10 April 2024.
Upon the applicant giving the usual undertaking as to damages, the respondent by itself, its servants, agents and employees be restrained, until 5.00pm on 16 April 2024 or further order of the Court from making any further representations to the public (including by way of print, broadcast or online advertisements) containing the following messages:
(a) that members of the public who use the applicant's hospitals in Western Australia would be endangering their health and lives to a greater degree than if they used a public hospital;
(b) that the applicant's hospitals in Western Australia do not provide quality of care;
(c) that the applicant and its hospitals in Western Australia do not take the health of its patients or staff seriously;
(d) that the applicant's hospitals in Western Australia always have double the number of patients to a nurse than public hospitals in Western Australia;
(e) that members of the public who use the Applicant's hospitals in Western Australia are putting their health at risk;
(f) that the applicant shows a "lack of care" in the operation of its hospitals in Western Australia;
(g) that the applicant was and is putting the public at risk in the provision of midwives in its hospitals in Western Australia.
(Orders 3 and 4.)
3 These orders were extended by orders made on 16 April 2024 by the Duty Judge, until 5.00pm on the day of the inter partes hearing of the interlocutory application before me as the Docket Judge. At the hearing of the interlocutory application on 13 May 2024, I made orders further extending the current injunctions pending the determination of the interlocutory application.
4 I note that the respondent also seeks orders transferring the proceedings to the Perth Registry of the Federal Court. As argument on this issue was not concluded on 13 May 2024, that issue remains to be determined following the completion of oral argument.
5 Ramsay submits that the injunctions should remain in place until the final determination of the proceedings on the following grounds:
(1) Ramsay has a prima facie case that the Nursing Union has engaged in conduct contravening the ACL.
(2) The balance of convenience weighs in favour of making the orders sought by Ramsay in circumstances given the following considerations.
(a) The extension of the orders sought is only for a further relatively short period, until an expedited final hearing.
(b) The Nursing Union has agreed only to a "pause" of the advertising campaign which may recommence without notice to Ramsay.
(c) The orders are an important protection for Ramsay from the further harm that would be caused by the Nursing Union if it was to "unpause" the conduct that is the subject of these proceedings.
(d) Advertising to the effect of the impugned advertisements poses a risk of significant harm to Ramsay and the integrity of the private health system in Western Australia and more broadly in Australia.
(e) The Nursing Union will suffer no real prejudice as a result of the extension of the orders in circumstances where the Union has indicated a present intention to "pause" the campaign, such that the only conceivable harm that could arise to the Nursing Union's interests from the extension of the orders is the prevention of it continuing to make the very statements that Ramsay contends are false or misleading.
6 The Nursing Union does not oppose an extension of Order 3 pending the final determination of the proceedings. I am satisfied that it is appropriate to make an order in these terms. However, the Nursing Union does oppose extending Order 4 until the determination of the proceedings on the following grounds:
(1) There is a legitimate public interest in robust debate about the health care system and its participants. The proposed orders may prevent the Nursing Union from communicating messages concerning Ramsay and the care at its hospitals, including the number of nurses, their terms and conditions, their workload, and nursing/patient ratios.
(2) Debate on such topics is more likely to be stifled by extending Order 4 because the orders do not distinguish between opinion, fact and comment, or implied and express representations or imputations.
(3) The uncertainty about precisely what is and is not caught by Order 4 may not only have a freezing effect on the Union's capacity to engage in otherwise legitimate debate, but is of itself a decisive reason not to extend the order.
(4) The significance of the potential impact of stifling debate by extending Order 4 is heightened given that the parties are in the middle of negotiations regarding a proposed enterprise agreement;
(5) This is not a case where the usual undertaking as to damages affords any real comfort to the respondent. While not specifically developed in the respondent's submissions, I understand the point to be that the loss of an opportunity to engage in debate in the context of negotiations for a new enterprise agreement is unlikely to be something for which compensation could be an adequate remedy, even if it could be assessed.
(6) The Nursing Union has stated that it has no intention to place further advertisements (at this stage) and, in any event, Ramsay has the capacity to respond strongly and publicly to representations with which it disagrees made by the Union, as it has in fact done in response to the advertisements referred to in Order 3.
7 For the reasons set out below, I do not consider that Order 4 should be extended pending the final determination of the proceedings. Rather, in my view, either by way of orders or an undertaking, pending the final determination of the proceedings the Nursing Union should be required to give advance notice of 72 hours to Ramsay in the event that it intends to publish representations to essentially the same effect as those which are the subject of these proceedings.
8 I emphasise that, as this judgment determines an interlocutory application only, my findings are necessarily preliminary in nature and should not be understood as indicating a final view on the substantive issues for determination in the proceeding.
9 I also acknowledge the helpful and considered assistance of counsel for both parties.
[4]
EVIDENCE
10 Ramsay relied upon the following affidavits, which were read without objection on the interlocutory application:
(1) the affidavit of Shane Kelly, State Manager for Western Australia, Ramsay, affirmed on 11 April 2024; (the Kelly affidavit)
(2) the affidavits of Emma Lee-Anne Iles, solicitor, affirmed on 11 April 2024, 12 April 2024, 16 April 2024 and 19 April 2024 (the Iles first, second, third and fourth affidavit respectively).
11 The Nursing Union relied on the affidavit of Simon David Hubbard, solicitor, affirmed on 9 May 2024, which was also read without objection on the interlocutory application.
[5]
CONDUCT
12 Ramsay is a private healthcare company with operations in Australia, the United Kingdom and Europe. In Australia, Ramsay operates 74 hospitals and day surgery units. In Western Australia it operates five hospitals: Hollywood Private Hospital, Joondalup Health Campus, Glengarry Private Hospital, Attadale Rehabilitation Hospital and Peel Health Campus. Hollywood Hospital is Australia's largest private hospital.
13 On 21 January 2024, Ramsay received a letter from Janet Reah, Secretary of the Nursing Union, advising that the negotiations between the Union and the Western Australian Government in relation to a public sector Enterprise Agreement had recently concluded. In the letter, Secretary Reah requested that Ramsay match certain terms in its proposed enterprise agreement with those included in the public sector enterprise agreement.
14 Between July 2022 and 9 April 2024, Ramsay and the Nursing Union have continued to negotiate in relation to the proposed enterprise agreement. A bargaining meeting to continue negotiations was scheduled for 10 April 2024 but was cancelled on 8 April 2024 due to the advertisements published by the Nursing Union, as outlined below.
15 Ramsay contends that the Nursing Union did not raise any claim in relation to minimum nurse/midwife to patient ratio with Ramsay as part of the bargaining discussions with it before the first of the advertisements was published.
16 The content and placement of the advertisements the subject of these proceedings was not the subject of dispute (at least at this stage of the proceeding) and were summarised by the applicant (Applicant's Submissions at [10]-[16]) as follows.
On 8 April 2024, the ANF published an advertisement in The West Australian newspaper (the First Print Advertisement) making the following representations:
(a) "Public Hospitals 1:4 (enforced)";
(b) "Ramsay Hospitals 1:8";
(c) "Under Ramsay Health Care, it's double the ratio and double the danger.";
(d) "Don't waste your money with Ramsay when they waste your quality of care."; and
(e) "It's time Ramsay took the health of their patients and staff seriously."
(collectively, the First Print Representations).
Also on 8 April 2024, ANF published radio advertisements on at least 4 radio stations (being, 6PR Perth; 96FM Perth; Nova Perth 93.7 and 92.9 Triple M Perth). These advertisements contained representations of a similar nature.
On 8 April 2024 at 7:53pm, ANF published on its Facebook page at https://www.facebook.com/AustralianNursingFederation a link to an article written by Claire Sadler and published in by The West Australian which included a photograph which reproduced the First Print Advertisement (the West Australian Article).
On 8 April 2024 at 9:18pm ANF published a further post on its Facebook page containing a photograph reproducing the First Print Advertisement announcing "the first phase of our ad campaign against Ramsay has started today … This is only the beginning, with plans to escalate the intensity of our campaign if Ramsay don't give our nurses and midwives what they deserve."
On 9 April 2024, ANF published two radio advertisements:
(a) The first radio advertisement says, among other things, that:
"Ask where the best nurse to patient ratios in Western Australia are because it won't be at Ramsay";
(b) The second radio advertisement says, among other things, that:
"…After successfully negotiating historic nurse to patient ratios for the public sector, private health provider Ramsay Healthcare does not have them, This means nurses at Ramsey are juggling eight to ten patients at a time…"
On 10 April 2024, ANF published an advertisement in The West Australian newspaper (Second Print Advertisement). The Second Print Advertisement states:
(a) "What are your patient ratios, Ramsay?";
(b) "Ramsay Health Care claim their hospitals don't need enforceable ratios, while their nurses and midwives are struggling"; and
(c) "Don't let your health be put at-risk by Ramsay's lack of care"
(collectively, the Second Print Representations).
(Emphasis added.)
17 Relying in particular on the passages emphasised in the above quotations, Ramsay submitted that the advertisements were intended to form part of a campaign, were directed to members of the public, and were in their terms an attempt to dissuade members of the public from accessing treatment at Ramsay hospitals. Ramsay also submits that prior to 8 April 2024, the issues raised in the advertisements (at least the question of nursing staff/patient ratios) had not formed part of the negotiations with respect to the enterprise agreement.
18 On 8 April 2024 shortly before 9.00pm AEST, Ramsay sent a letter to the Nursing Union in which it alleged that the representations made in the First Print Advertisement were false and misleading in breach of the ACL and the Nursing Union's Good Faith Bargaining obligations under the Fair Work Act 2009 (Cth). In the letter, Ramsay requested that the Nursing Union "immediately withdraw the advertisement from further publications", publish a retraction, and refrain from publishing any further material containing any of the representations (or further representations that are false or misleading) (together, the Remedial Action).
19 On 8 April 2024, Ramsay also published a media release refuting the First Print Representations in the following terms:
Ramsay Health Care has an established record of delivering high quality, safe health care to patients and we are extremely disappointed in the misleading and alarmist advertising that has been initiated by the Australian Nursing Federation (ANF).
It is particularly disappointing that the ANF has initiated this advertising in the context where Ramsay is engaged in good faith negotiations for an Enterprise Bargaining Agreement (EBA) for our nurses and midwives with the ANF, which was delayed at the ANFs request while it finalised public sector negotiations.
We emphatically refute the misleading claims made by the ANF regarding nurse-patient ratios. Our hospitals are part of a world class healthcare network with rigorous governance processes in place to manage key performance indicators including patient safety and clinical quality.
Ramsay Health Care operates in more than 500 locations in eight countries around the world and we do not use ratios in any of them. Rostering and allocations of staff with the right skills are aligned to patient activity and acuity, which is closely monitored at all times, and staffing can be adjusted to patient care needs on an hourly or shift by shift basis, as required. We have highly skilled nurses and midwives and strong escalation processes in place. Senior nursing staff are on shift during the day or night and staff can request back up at any time."
20 An article was published in The West Australian that evening which, in addition to reproducing the First Print Advertisement, quoted from Ramsay's media release.
21 On 9 April 2024, Ramsay also published an advertisement in The Western Australian responding to and seeking to correct statements made in the First Print Advertisement.
22 The parties subsequently corresponded. It is necessary only to summarise certain significant aspects of that correspondence.
23 First, Ramsay sought written undertakings from the Nursing Union that it would take the Remedial Action sought, in the absence of which Ramsay reserved its right to commence legal action in respect of the advertisements and seek injunctive relief without further notice.
24 Secondly, in correspondence dated 12 April 2024, the Nursing Union initially communicated that it was not willing to give the undertakings absent legal advice but that it had no plan to repeat the advertisements or messages contained in them.
25 Thirdly, on 15 April 2024, Ramsay received a letter from Belinda Burke Legal on behalf of the Nursing Union stating that the Union considered that "[a]dvocacy of an industrial cause is not 'in trade or commerce'" but that, despite that view, the Union had "for the time being paused its advertisements" (Iles third affidavit at p 36). The letter also stated that, at Ramsay's request, the Union had removed the posts published on its Facebook page, which reproduced the First Print Advertisement, notwithstanding the Union's position that the Facebook posts were "not in any way... restrained by the [ex parte] orders of Markovic J dated 12 April 2024."
[6]
DISPOSITION OF THE APPLICATION
26 The Nursing Union submitted that the representations in question were made in the context of an industrial campaign concerning Union members' conditions of employment. It therefore submitted that the representations fell outside conduct that is "in trade or commerce" for the purposes of the ACL, citing National Roads and Motorists' Association Limited v Construction, Forestry, Maritime, Mining and Energy Union [2019] FCA 1491; 291 IR 28 (NRMA) and ALDI Foods Pty Limited v Transport Workers' Union of Australia [2020] FCAFC 231; (2020) 282 FCR 274 at [53].
27 In NRMA, Griffith J accepted representations made in such a context will "generally" fall outside conduct in trade or commence: at [135]. However, his Honour considered that whether conduct fell within trade or commerce for the purposes of the ACL would turn upon the facts and circumstances of the particular case: at [150]. Thus, while rejecting the NRMA's position which would have brought the whole field of industrial relations within the operation of consumer regulation (at [152]), his Honour held that he was "not suggesting that there is a global carve out from the ACL of all conduct and activities of a trade union. … each case necessarily turns upon its own facts and circumstances. The expression 'in trade or commerce' is somewhat chameleonic and does not lend itself to dogmatic prescription" (at [153]).
28 The Full Court in ALDI agreed with Griffiths J in NRMA and for similar reasons to his Honour, held that the misleading conduct engaged in by the Transport Workers' Union was not conduct in trade or commerce: at [57]. In this regard, the Full Court had earlier emphasised that the assessment of whether conduct is undertaken in trade or commerce "is necessarily fact specific": at [36].
29 Ramsay submits that there are a number of features which distinguish the circumstances in which the Nursing Union's representations were made from those considered in NRMA and ALDI, including, among other things:
(a) the advertising goes further than garnering support for the ANF's bargaining position and seeks to attack the quality and safety of the services provided at Ramsay's hospitals (cf NRMA at [150(d) and (f)] and ALDI at [50]);
(b) the advertising is clearly speaking to Ramsay's patients and seeking to deter them from attending a Ramsay hospital and rather to seek health care in the public sector (cf NRMA at [150(d) and (f)] and ALDI at [50]);
(c) the issue of "nurse to patient" ratios has not been a claim made by the ANF in bargaining and therefore cannot be characterised as connected to the industrial dispute (cf NRMA at [150(b)] and ALDI at [49]); and
(d) the misleading advertisements should be objectively viewed as an attempt to increase interest in the ANF and drive its current member recruitment drive, and therefore has a direct commercial benefit to the ANF (cf NRMA at [150(c)]).
30 As the Nursing Union accepted, the interlocutory application is not the place for a final determination of these issues. That determination will turn upon close consideration of the specific facts and circumstances in which the representations in question were made following a final hearing. It suffices for present purposes to hold that Ramsay has established that there are arguable grounds for distinguishing NRMA and ALDI and for finding that the representations could be characterised as having been made in trade or commence.
31 Having regard to the Kelly affidavit, especially at [45]-[60], I also accept that Ramsay has established that there is a prima facie case that the representations made by the Nursing Union in the print and radio advertisements were false or misleading. In particular, Mr Kelly deposes that insofar as the statements by the Nursing Union suggest (among other things) that:
(1) a 1:4 ratio is the norm, and/or enforced in public hospitals, whereas Ramsay has a ratio of 1:8;
(2) Ramsay hospitals are not providing quality of care to patients and do not take patient and nurse health seriously;
(3) patients at Ramsay hospitals face double the risk compared to other hospitals, and they should choose an alternative provider;
they are arguably inaccurate and misleading, given the laws and regulations governing patient care and nurse workload in private hospitals, including Ramsay hospitals.
32 I further accept that the evidence establishes that there is a serious risk of damage to Ramsay's reputation if the statements are false or misleading. I further accept that, if the statements are false or misleading, there is a serious risk to public health, particularly if the statements dissuade (as in terms they apparently seek to do) persons from seeking treatment at Ramsay hospitals. The latter risk can reasonably be inferred from statements such as "double the risk", which have the capacity to frighten patients about the quality of care that they will receive at Ramsay hospitals. It follows that, notwithstanding the difficulties to which Mr Kelly averts in assessing the actual extent of cancellations by patients attributable to the advertisements (if any), I accept Mr Kelly's evidence that:
…the continued publication of the Advertisements carries a real risk that patients who would otherwise attend a Ramsay hospital or clinic will boycott Ramsay. This in turn may result in a number of potential serious consequences such as:
(a) Patients unnecessarily travelling further to seek medical attention at an alternative hospital or clinic. This could potentially lead to a patient unnecessarily delaying treatment which may lead to adverse health outcomes.
(b) Patients cancelling appointments for treatments, including those which may have long waiting lists.
I consider the above risk to be a real risk in circumstances where I am informed by Karol Edge, Director of Clinical Services, Hollywood Private Hospital and believe that there have been a number of calls to Ramsay hospitals in WA this week from patient with upcoming appointments who have been asking questions and seeking assurances related to the nurse staffing levels, and the level of patient care and safety provided by the hospitals. In my experience, calls of this kind are unusual and are likely related to the advertisements by the ANF.
…
… the continued publication of the advertisements carries a real risk that patients will receive and act on misinformation and make decisions concerning their (or a love ones') health or medical treatment on the basis of that misinformation, which can lead to adverse consequences similar to those outlined above.
(Kelly affidavit at [63]-[64] and [66].)
33 While the publication by Ramsay of information in response to advertisements by the Union may reduce that risk, it may reasonably be inferred that a real risk nonetheless remains particularly given that the advertisements emanate from a union representing a profession with obviously relevant experience and expertise.
34 I also accept Mr Kelly's evidence that it can be inferred that ongoing advertising in like terms and the concerns which it might raise in patients, might influence choices by medical professionals as to whether or not they operate in Ramsay hospitals.
35 Nonetheless, Order 4, in my view: (1) is too wide, particularly having regard to freedom of speech; and (2) is vague and uncertain in its operation. With respect to the (1), I agree with the observations of Gray J in Telstra Corporation Ltd v SingTel Optus Pty Ltd [2007] FCA 824 at [17] that:
Another powerful consideration, in my view, is that it is undesirable for the Court to enter upon the process of censoring advertisements. The underlying principle of freedom of speech must be capable of being invoked for good or for ill. Those who wish to sell their products are entitled to exercise the right of free speech, just as much as those who wish to spread their ideas or opinions. Commercial invocation of the right of free speech may be irksome, but attempts to trespass too far on those rights, in the case of commercial people, give rise to the risk that free speech will be a right wound back in the case of those who seek to spread their ideas and opinions. For this reason, in my view, the Court should be very slow to grant an injunction, on the basis of a serious question to be tried, that restrains people from advertising, especially where it can be seen that the remedy of damages after the event is available….
36 I accept the Nursing Union's submission as to the legitimate public interest in robust debate about the health care system and its participants, including as to their working conditions. That concern is heightened where the order sought may have the effect of stifling debate between two significant players in the health care system including the ability of one player to be critical about the other.
37 With respect to (2) above, I also agree with Gray J's observations with respect to the vital need for injunctive relief to be expressed with complete clarity. Specifically, his Honour in Telstra said (at [19]):
It is a fundamental principle of the law relating to injunctions that they should be expressed with precision. A person against whom an injunction is made should be told precisely what can or cannot be done, so that that person can conduct their affairs in full knowledge of what they can do, or what they must not do, in order to avoid contravening the injunction and risking punishment for contempt of court. As I see it, it would be extraordinarily difficult to frame an injunction in a case such as the present.
38 The terms of Order 4, while endeavouring to extrapolate the relevant messages said to be misleading from the advertisements the subject of the proceedings, are uncertain. For example, what is meant by representations "containing the following messages" (emphasis added)? Is it intended to include implied messages or imputations to the effect set out in paragraphs (a) to (g) of the order on which minds might reasonably differ? Would, for example, a restraint on representations containing messages that Ramsay hospitals do not provide quality of care stifle the Nursing Unions capacity to contribute to what may be fair and informed debate on aspects of the care provided by Ramsay's hospitals? The orders do not, with respect, provide clear answers to such questions.
39 Finally, I accept for the reason earlier explained that the giving of an undertaking as to damages by the applicant is unlikely to afford any real comfort to the respondent. That said, no party suggested that the undertaking should not be given with respect to the order extending Order 3 or, if it is extended, Order 4.
40 These factors lead me to the view that, on the balance of convenience, Order 4 ought not to be extended pending the final determination of the matter.
41 In the alternative, Ramsay argued that a possible injunction could restrain the Nursing Union from making representations containing messages in terms of those statements extracted from the radio and print advertisements by Mr Kelly and identified by him as being of particular concern to Ramsay (see at [44] of the Kelly affidavit). However, an injunction to that effect would suffer from the same uncertainty and difficulties as faced by Order 4.
42 Finally, at the hearing, I raised the possibility of requiring notice to be given by the Nursing Union of any intention to recommence an advertising campaign along the lines of the previous campaign. The Nursing Union submitted that the imposition of an obligation to give advance notice would be unnecessary. However, the concerns about Ramsay's reputation, the reputation of the private health system and the potential risks to patients and employment of medical staff if false or misleading representations are made along the lines of those already made (assuming, without deciding, that they are false or misleading) would not be sufficiently addressed by simply extending Order 3 until final resolution of the proceedings.
43 I consider that a requirement for notice on 72 hours by the Nursing Union of any intention to publish representations to like effect to those the subject of these proceedings would suffice to meet these concerns, while not unduly stifling potentially legitimate and important public debate on subjects of public importance.
44 The parties requested that I afford them the opportunity to consider the precise terms of any order to this effect, should I reach the view that this was appropriate. The parties may also wish to consider whether an order to this effect is necessary, or whether it could be dealt with instead by way of an undertaking to the Court. Accordingly, provision has been made in the orders to this effect.
45 For these reasons, the interlocutory application is granted insofar as Ramsay seeks to extend the operation of Order 3 made on 12 April 2024 to the delivery of judgment at first instance in the proceeding. The application is refused insofar as a like order is sought with respect to Order 4. In the circumstances, however, it is appropriate to maintain the status quo by leaving Order 4 in effect for a short time pending the parties having the opportunity to confer as to the terms of appropriate alternative orders to give effect to these reasons.
I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Perry.
Parties
Applicant/Plaintiff:
Ramsay Health Care Australia
Respondent/Defendant:
Australian Nursing Federation Industrial Union of Workers Perth