MATTER : Application for a Writ of Certiorari against Peter John Sharkey, Stephen John Kenner and Stephen Wood as Members of the Full Bench of the Western Australian Industrial Relations Commission constituted under the Industrial Relations Act 1979

THE FOOD PRESERVERS UNION OF WESTERN AUSTRALIA, UNION OF WORKERS

BETWEEN : THE FOOD PRESERVERS UNION OF WESTERN AUSTRALIA, UNION OF WORKERS

THE AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION OF WORKERS, WESTERN AUSTRALIA BRANCH

Industrial law - Western Australia - Application for stay of proceedings before the Full Bench of Industrial Relations Commission - Discretionary order - Principles to be applied - Order only to be made in special or exceptional circumstances - Right of appeal rendered nugatory without stay is a special or exceptional circumstance - Test is not whether refusal of stay would disturb the status quo - Should not be granted unless strong appeal case can be shown

Industrial law - Western Australia - Application for order nisi - Discretionary order - Principles to be applied - Generally granted if arguable case can be shown

Industrial Relations Act 1979 (WA), s 90

First Respondent : Mr R D Farrell & Mr D H Schapper

Burswood Resort (Management) Limited v The Australian Liquor Hospitality and Miscellaneous Workers Union, Miscellaneous Workers Division, Western Australian Branch & Anor (1996) 76 WAIG 1655

Burswood Resort (Management) Ltd v Australian Liquor Hospitality & Miscellaneous Workers' Union, Miscellaneous Workers' Division & Anor, unreported; FCt SCt of WA; Library No 940280; 2 June 1994

Re Griffin & Ors; Ex parte Professional Radio and Electronics Institute of Australia [1988] HCA 72; (1988) 167 CLR 37

Re Sharkey & Ors; Ex parte Burswood Resort (Management) Ltd; Federated Liquor and Allied Industries Employees' Union of Australia, Western Australian Branch, Union of Workers (Intervening) (1994) 55 IR 276

Re Sharkey & Ors; Ex parte Robe River Mining Company Pty Ltd (1992) 46 IR 72

Re the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Workers - Western Australian Branch [2000] WASCA 233

Re Western Australian Industrial Relations Commission; Ex parte Confederation of Western Australian Industry (Inc) (1992) 6 WAR 555

Stampalia v The Stewards of the Western Australian Trotting Association & Anor [1999] WASC 7

Stollery v The Greyhound Racing Control Board [1972] HCA 53; (1972) 128 CLR 509

West Australian Locomotive Engine Drivers' Firemen's and Cleaners' Union of Workers v David Kimberley Hathaway (1995) 75 WAIG 1785

Western Australian Mint & Ors v The Australian Liquor Hospitality and Miscellaneous Workers Union, Miscellaneous Workers Division, Western Australian Branch (1999) 79 WAIG 643

1 ANDERSON J: In my opinion, the application for the stay of proceedings before the Full Bench fails at the first hurdle. The effect of the orders made by the Full Bench is that the first respondent in the appeal, the Automotive, Food, Metals, Engineering, Printing, and Kindred Industries Union of Workers, has or will shortly obtain coverage of process workers employed by a poultry processing company, the second respondent Ingham Enterprises Pty Ltd, and the appellant The Food Preservers Union will lose that coverage.

2 That is perhaps an oversimplification, but that is what I understand to be the effect of the orders that have been made by the Full Bench or are about to be perfected by the making of orders by the President of the Commission.

3 What is sought from me is an order that the proceedings before the Full Bench be stayed. It perhaps does not matter very much whether, on a strict interpretation of the application before me, a stay of orders is sought or a stay of proceedings is sought. It has been made quite clear by counsel for the appellant, Mr Viner QC, that it is the proceedings themselves which are sought to be stayed so as to put a stop to the perfecting of the orders that have been made by the Full Bench thus far. I will take that to be an application to stay proceedings rather than an application to stay the effect of orders.

4 In my opinion, an order for a stay of proceedings should only be made in special or exceptional circumstances. It is a power which this Court undoubtedly has, but it is a power which should be sparingly and cautiously used. This is essentially because the party in whose favour the proceedings have gone below, the party in whose favour the orders have been made by the tribunal authorised to make them, is entitled to the fruits of the proceedings and the fruits of the orders. The judgment below, the determination below, cannot be treated as a provisional determination; it is a final determination.

5 If the failure to order a stay pending appeal will or may result in the right of appeal itself being rendered nugatory, that will usually be regarded as a special or exceptional circumstance sufficient to sustain an order for stay. It will be a powerful factor in support of the exercise of the discretion to stay the proceedings pending the appeal, but I am not persuaded that those circumstances exist in this case. It is true that, as Mr Viner has pointed out, the grant of a stay would maintain the status quo pending appeal but that cannot be the test. If the test was whether or not the refusal to grant a stay would disturb the status quo, then I think a stay must always be granted.

6 In this case, if the appeal is successful presumably the appellant, that is, The Food Preservers Union, will regain the coverage that it has lost by reason of the decision below, everything will be back to where it was and no irremediable loss or harm will have occurred. It certainly is not a case, therefore, in which, without a stay, the right of appeal will be rendered illusory or nugatory.

7 I am also of the view that a stay pending appeal should not be granted in industrial matters unless there is a strong appeal case. I put it no higher than that, recognising as I do that there may be controversy as to exactly how far that test goes. In my view, there must at least be a strong appeal case before the Court will entertain an application to exercise its discretion to order a stay. Now, this will be so whether the appeal is an appeal under s 90 of the Industrial Relations Act or whether it is an appeal by way of prerogative writ. In this case I do not say that the appellant in the appeal or the applicant in the prerogative writ proceedings has no arguable case, I do not say that at all, but I am not persuaded that the case is strong.

8 As to the appeal, it is, in my opinion, prima facie, incompetent. The appellant is not a party to the proceedings below, nor does it have, so far as I can tell from the papers, intervener status. On the face of it, the appellant is not a person or a body that is comprehended by s 90(2). That being so, it is not a person or body that is entitled to institute an appeal. That is the prima facie position. I state no concluded view about it, but it is sufficient to prevent me from reaching the state of satisfaction which I must reach before I would order a stay, that there is a strong appeal case.

9 As to the prerogative writ, I really cannot get to the stage of considering making an order that the order nisi operate as a stay of proceedings before granting the order nisi. So, before I could go on to decide whether or not the order nisi should operate as a stay, I would have to come to the conclusion that the circumstances are appropriate for an order nisi to be granted.

10 It is not difficult to get an order nisi. I do not go into the niceties of the test. Suffice it to say that one would ordinarily succeed in obtaining an order nisi by showing that there was an arguable case, and I will say no more than that. However, the granting of an order nisi is discretionary and I, for one, would not exercise a discretion to grant an order nisi while there was on foot an appeal covering the same matters, and that is the position in this case. Whilst I am of the opinion that the appeal, prima facie, is incompetent, there it is; the appeal is on foot, and that being so I could not consider actually granting an order nisi and therefore put those proceedings to one side.

11 The position in summary, therefore, is that I am not persuaded that the appellant has a strong appeal case because I am not persuaded that the appellant has a strong case to argue that its appeal is competent. On the contrary, my opinion is that there is a strong case to argue that the appeal is not competent. In any event, I would decline to exercise my discretion to order a stay because there are no special or exceptional circumstances warranting the making of the order. I do not go over the reasons I have already given for that.

12 For those inelegantly expressed reasons, the application for a stay in appeal IAC number 7 of 2000 must be refused. Concerning the application for the grant of an order nisi, I think that the proper course is to accede to Mr Viner's request and adjourn that application sine die.