BETWEEN : SEALANES (1985) PTY LTD (ACN 009 121 331)

THE WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION CONSTITUTED BY COMMISSIONER J L HARRISON

THE SHOP, DISTRIBUTIVE AND ALLIED EMPLOYEES' ASSOCIATION OF WESTERN AUSTRALIA

UNION OF WORKERS AND TRANSPORT WORKERS UNION OF AUSTRALIA

INDUSTRIAL UNION OF WORKERS, WESTERN AUSTRALIAN BRANCH

Western Australian Industrial Relations Commission - Superior court of record - Vested with statutory jurisdiction - Acting within power - Not exceeding its jurisdiction or otherwise acting unlawfully - Cannot attract operation of prerogative writs - Supreme Court - Inherent jurisdiction - Hardship or other rights lost rendered nugatory through strict adherence to law - Ability to intervene in courts below - Interim or interlocutory injunction

Industrial Relations Act 1979 (WA), s 49(2), s 49(11), s 49(12)

Supreme Court Act 1935 (WA), s 16

Associated Newspaper Group plc v Insertmedia Ltd [1988] 2 All ER 420

Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199

Beddow v Beddow [1878] 9 Ch D 89

Bond Brewing Holdings Ltd v Crawford (1999) 1 WAR 517

Cummins v Perkins [1899] 1 Ch 16

Duchess of Argyll v Duke of Argyll [1967] Ch 302

Dye v The Queen (1991) 7 WAR 147

National Australia Bank Ltd v Bond Brewing Holdings Ltd [1991] VicRp 31; [1991] 1 VR 386

R v Coldham; Ex parte Australian Workers Union [1983] HCA 35; (1983) 153 CLR 415

R v Coleman & Ors; Ex parte Confederation of Western Australian Industry Inc (1992) 6 WAR 555

R v Murray; Ex parte Proctor [1949] HCA 10; (1949) 77 CLR 387

Re Australian Nursing Federation; Ex parte Victoria (1993) 112 ALR 177; (1993) 67 ALJR 377; (1993) 47 IR 25; [1993] HCA 8

Re Halliwell; Ex Parte Australian Workers Union and Re Halliwell; ex parte Australian Builders Labourers Federation (1990) AILR 124

Re Sharkey; Ex parte Burswood Resort (Management) Ltd (1994) 55 IR 276

Re Sharkey; Ex parte Food Preservers Union of Western Australia (2000) 101 IR 455; [2000] WASC 259

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

Siskina, Owners of the Cargo on board the v Distos Compania Naviera SA [1979] AC 210

South Carolina Insurance Co v Assurantie Maatschappij de Zeven Provincien NV [1987] AC 24

Waterside Workers Federation of Australia v J W Alexander Ltd [1918] HCA 56; (1918) 25 CLR 434

Soiland Pty Ltd v Ridge Point Corporation Pty Ltd [2005] WASC 124

1 This is an application by notice of originating motion dated 23 June 2005 brought by the applicant Sealanes (1985) Pty Ltd, which seeks an order restraining the Western Australian Industrial Relations Commission ("the Commission") constituted by Commissioner J L Harrison ("Commissioner Harrison"), the first respondent, from further hearing and determining the second respondent's application in application number 1228 of 2003 filed in the Commission.

2 The second respondent is the Shop Distributive and Allied Employees Association of Western Australia, the Food Preservers Union of Western Australia, the Union of Workers and the Transport Workers Union of Australia, Industrial Union of Workers (Western Australian branch).

3 The applicant and second respondent are both represented by counsel. The first respondent is unrepresented and has indicated to the Court that it will be content to abide the decision of the Court.

4 It is proposed by the applicant that the stay order this Court is invited to make should operate until the hearing and determination of an application by the applicant for a stay of the operation of the first respondent's decision dated 20 June 2005, dismissing the applicant's application that the Commission has no jurisdiction to hear and determine the second respondent's application for an enterprise order to bind the applicant ("20 June 2005 decision").

5 On 21 June 2005, the applicant appealed the 20 June 2005 decision to the Full Bench of the Commission pursuant to s 49(2) of the Industrial Relations Act 1979 ("the Act"). On 23 June 2005, the applicant filed with the Commission an application for a stay of the 20 June 2005 decision pending the hearing and determination of the appeal ("stay application"). Pursuant to the provisions of s 49(12) of the Act, an application for a stay under s 49(11) shall be heard and determined by the President of the Commission and by par 49(2)(a), an appeal does not lie from any decision of the Commission unless, in the opinion of the Full Bench, the matter is of such importance that in the public interest an appeal should lie.

6 The applicant contends that it is unlikely that the stay application will be heard and determined prior to 27 June 2005; that being the first of two consecutive days listed for further hearing by the first respondent of the second respondent's application which was remitted to the first respondent for that purpose by the Full Bench pursuant to orders made by it on 16 September 2004. The applicant also contends that it is unlikely that the Full Bench will hear and determine the public interest issue prior to 27 June 2005 and the first respondent has refused the applicant's application for an adjournment of the proceedings before the first respondent pending determination of the stay application. It therefore follows it is said that unless restrained by order of this Court, the first respondent will continue with the proceedings before it on Monday, 27 June 2005. The applicant contends that in these circumstances, its statutory right to make a stay application will be effectively rendered nugatory and the applicant will suffer inconvenience, costs and expenses in participating in proceedings before the first respondent. It is submitted that the orders sought are necessary to prevent injustice in the circumstances.

7 The Commission is a body continued and constituted under the Act. A Commissioner is defined in s 7(1) as:

"[The] 'Commissioner' appointed under the Act and includes the Chief Commissioner, the Senior Commissioner and an Acting Commissioner.

...

[The] 'President' means the President of the Commission and includes an Acting President.

...

[The] 'Court' means the Western Australia Industrial Appeal Court continued and constituted under this Act."

8 The Constitution of the Commission is governed by the provisions of s 8 of the Act and s 12(1) provides that:

"The Commission is a Court of Record and shall have an official seal."

9 The exercise of powers and jurisdiction of the President and the Commission are contained in s 14 of the Act; the constitution of the Full Bench and of the Commission is provided for in s 15 of the Act; the powers and duties of the President and Chief Commissioner are in s 16 of the Act; and the jurisdiction of the Commission is found in Pt 2, Div 2 of the Act. Section 23(1) provides that:

"Subject to this Act, the Commission has cognisance of and authority to enquire into and deal with any industrial matter."

10 The powers of the Commission are contained in s 27 of the Act and they are expansive. Included is a power to make such orders as may be just with respect to any interlocutory proceeding to be taken before the hearing of any matter (par 27(1)(o)) and generally, to give all such directions and do all such things as are necessary or expedient for the expeditious and just hearing and determination of the matter (par 27(1)(v)).

11 Section 34(4) of the Act is a privative provision. It is in the following terms:

"Except as provided by this Act, no award, order, declaration, finding or proceeding of the President, the Full Bench or the Commission shall be liable to be challenged, appealed against, reviewed, quashed or called in question by any court -

(a) on any ground relating to jurisdiction; or

(b) on any other ground."

12 The constitution of the Western Australian Industrial Appeal Court is set out in Pt 4 of the Act. The Western Australian Industrial Appeal Court is a court of record and shall have an official seal. Subject to the Act, the Western Australian Industrial Appeal Court has jurisdiction to hear and determine appeals under s 90 and s 90K of the Act.

13 The Supreme Court of Western Australia is a superior court of record of unlimited jurisdiction vested by s 16 of the Supreme Court Act 1935 with the jurisdiction, including the inherent jurisdiction, of the superior courts of England and Wales as at 1861. The term "inherent jurisdiction" refers not only to the authority of the Court to decide matters before it, but also to describe the power it has independent of statutory authority, whether express or implied.

14 The right of the Commission to hear and determine actions subsisting in that body is unquestionable. The present application, if granted, would involve a direct intervention on the part of this Court in a matter which is properly justiciable before the Commission. It is important to appreciate that there are no pending proceedings in this Court which relate to the matter which is the subject of the controversy in the Commission, apart from this application. No legal or equitable rights are to be determined at trial in this Court in these proceedings.

15 This is not an instance where the jurisdiction in the subject matter of the dispute in the Commission is, or may be vested, in this Court. To the contrary, it is the Commission which is vested with the jurisdiction to inquire into and deal with any industrial matter: see s 23 of the Act.

16 The applicant is seeking orders by way of interim or interlocutory injunctive relief against the first respondent which is constituted as a court of record exercising a statutory jurisdiction in Western Australia in circumstances in which no application is made for the grant of a prerogative writ; no suggestion is made that the Commission is acting beyond power or exceeding its jurisdiction or otherwise acting unlawfully such as to invoke the jurisdiction of this Court to grant prerogative relief; proceedings are presently on foot in the Commission and the applicant is pursuing its claims and entitlements in the ordinary manner within the confines of the Commission's applicable rules of procedure and there is a pending application for a stay of the relevant proceedings in the Commission before the President.

17 The first question which arises is whether, in the particular facts and circumstances of this case, this Court has the power to entertain the application for a stay of proceedings before the Commission. If the answer to that question is in the affirmative, the further question arises whether, in the particular facts and circumstances of this case, the Court should exercise its discretionary power to grant the relief sought.

18 The applicant's claim for what in effect is injunctive relief rests on the broad proposition that the relief is required to avoid an injustice. The applicant was compelled to argue the case on this basis as it was unable to point to any wrongdoing or any unlawful act on the part of the Commission.

19 Section 25(9) of the Supreme Court Act gives the Court or a Judge express power to grant an injunction in all cases in which it shall appear to be "just or convenient that such order should be made". Although the power is "unfettered by statute", nevertheless as was said by Isaacs and Rich JJ in Waterside Workers Federation of Australia v J W Alexander Ltd [1918] HCA 56; (1918) 25 CLR 434 at 464: "A Court of law has no power to give effect to any but rights recognized by law".

20 In Re Sharkey; Ex parte Food Preservers Union of Western Australia (2000) 101 IR 455; [2000] WASC 259, an application was made to this Court to stay the proceedings before the Full Bench of the Commission to put a stop to the perfecting of the orders that had been made by the Full Bench in the proceedings in the Commission. Anderson J said at 5:

"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.

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 ...

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.

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."

21 The general effect of the introduction of the judicature system was to fuse the administration of law and equity by creating one court with the power to grant all remedies formerly granted by either. How this fusion has affected the injunction has not been entirely clear. Some judges have opined that s 25(8) of the Judicature Act 1873 of the Imperial Parliament (later s 45 of the Judicature Consolidation Act 1925 of the Imperial Parliament) which was to the effect that an injunction may be granted by an interlocutory order of the court in all cases which it shall appear to the court to be "just or convenient that such order should be made", amounted to a grant of "unlimited power to grant an injunction": see Beddow v Beddow [1878] 9 Ch D 89 at 93 per Sir George Jessel MR; see also Cummins v Perkins [1899] 1 Ch 16; National Australia Bank Ltd v Bond Brewing Holdings Ltd [1991] VicRp 31; [1991] 1 VR 386 and Duchess of Argyll v Duke of Argyll [1967] Ch 302.

22 However, the House of Lords in Siskina, Owners of the Cargo on board the v Distos Compania Naviera SA [1979] AC 210 said that the High Court's jurisdiction to grant injunctions, whether interlocutory or final, was confined to injunctions granted for the enforcement or protection of some legal or equitable right. This view as endorsed by Hoffman J in Associated Newspaper Group plc v Insertmedia Ltd [1988] 2 All ER 420 and by the House of Lords in South Carolina Insurance Co v Assurantie Maatschappij de Zeven Provincien NV [1987] AC 24.

23 In Dye v The Queen (1991) 7 WAR 147, Anderson J referred to a number of these cases and said:

"How this principle affects the wide wording of s 24(9) of the Supreme Court Act is by no means clear and is not settled. Further, as I have attempted to demonstrate, there is an absence of unanimity amongst the members of the House of Lords as to the circumstances under which injunctive relief should be granted."

24 In Bond Brewing Holdings Ltd v Crawford (1999) 1 WAR 517 Anderson J had expressed the view that this Court, by its inherent powers, could grant injunctive relief to prevent injustice in appropriate cases (at 522) and he again expressed this same view in Dye v The Queen. More recently however, in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 Gleeson CJ, Gaudron, Gummow and Hayne JJ each held that Lenah Game Meats Pty Ltd was not entitled to any equitable or legal remedy, including by way of injunction, where it could not point to an equitable or legal right which is or will be infringed by, nor to any equitable or legal wrong involved in, the publication of certain material by the Australian Broadcasting Corporation.

25 In their Honour's opinion, where interlocutory injunctive relief is sought in a Judicature system court, it is necessary to identify the legal or equitable rights which are to be determined at trial and in respect of which there is sought final relief which may or may not be injunctive in nature.

26 Kirby J accepted the need for care in providing injunctive relief but his Honour did not accept the proposition that establishment of a cause of action was as a matter of law a universal fixed requirement for the grant of an interlocutory injunction at the time such injunction issued and Callinan J found that the Court did have the power to order an injunction and should have ordered the injunction.

27 In the light of these authorities, I accept the submission from Mr Fiocco, counsel for the second respondents, that this Court ought not to exercise jurisdiction to grant injunctive relief in the absence of evidence of a breach of the applicant's equitable or legal rights. The applicant cannot point to an equitable or legal right which is or will be infringed which falls for determination at trial and in respect of which final relief is sought. There is also the question of the effect of the privative provisions in s 34(4) of the Act.

28 Similar privative clauses appear in industrial statutes in most jurisdictions. The effect of the Western Australian Clause, in its pre-2002 form, was considered in Re Halliwell; Ex Parte Australian Workers Union and Re Halliwell; ex parte Australian Builders Labourers Federation (1990) AILR 124, where this Court was asked to issue writs of certiorari to quash an Industrial Commissioner's decision. The question before the Court was whether s 34(4) excluded the Court's power to issue such writs. Similar provisions had not prevented the High Court from quashing decisions of Federal tribunals where they had exceeded jurisdiction. In R v Coldham; Ex parte Australian Workers Union [1983] HCA 35; (1983) 153 CLR 415, the High Court held that it has constitutional power, irrespective of statutory provisions, to prevent an excess of jurisdiction.

29 In R v Murray; Ex parte Proctor [1949] HCA 10; (1949) 77 CLR 387, Dixon J said that such clauses meant:

"Where the tribunal has made a bona fide attempt to exercise its authority in a matter relating to the subject with which the legislation deals and capable reasonably of being referred to the power possessed by the tribunal, the acts of the tribunal shall not be invalidated ...".

30 In Re Halliwell, O'Connor C held that if the Commission had exceeded jurisdiction, a writ of certiorari could issue. The availability of certiorari in cases of jurisdictional error even where a privative clause exists was reiterated in R v Coleman & Ors; Ex parte Confederation of Western Australian Industry Inc (1992) 6 WAR 555 and Re Sharkey; Ex parte Robe River Mining Company Pty Ltd (1992) 46 IR 72. That view was confirmed in Re Sharkey; Ex parte Burswood Resort (Management) Ltd (1994) 55 IR 276 by Ipp J. There Burswood had made applications for a stay of an order of the Full Bench and for a stay of proceedings before the Commissioner in two related but separate matters. The applications were brought under the inherent jurisdiction of the Court. The application for the stay of proceedings was also brought under O 56, r 5(2). Ipp J stated that although the Court had the power to make the orders sought such power "should be exercised sparingly and with caution". The strength of the applicant's case was the most important consideration in this type of case. He agreed with McHugh J in Re Australian Nursing Federation; Ex parte Victoria (1993) 112 ALR 177; (1993) 67 ALJR 377; (1993) 47 IR 25; [1993] HCA 8 and stated that:

"It is not sufficient for an applicant to demonstrate that it has an arguable case. For the applicant to succeed it must show that its arguments are sufficiently strong for the court to take exceptional step of interfering in orders or proceedings concerning industrial issues."

31 In my opinion, it is not appropriate in the circumstances of this case that the Court becomes involved in the matter by acceding to the application to grant a stay or otherwise.

32 As I have already noted, there is presently an application for a stay of the decision appealed against before the President of the Commission pursuant to s 49(11) of the Act and an appeal pending before the Full Bench from the decision. It is for the applicant now to pursue its application before the President and its appeal before the Full Bench in the ordinary course. If, in the events which transpire, a stay application before the President cannot be heard and determined prior to the recommencement of proceedings on 27 June, the only consequence will be that the applicant will be required to further participate in the proceedings before the Commission for a period of up to two days.

33 The applicant's application for a stay in this Court is said to be necessary because without an injunction issuing the applicant will bear the inconvenience, costs and expenses in so participating in the proceedings in a no-cost jurisdiction. This submission assumes that if it were possible for the stay application to be heard by the President prior to the commencement of the proceedings on 27 June 2005, such application would likely be successful. If such application were heard and dismissed however, the applicant would not incur unnecessary costs and expenses in participating in the proceedings in the Commission. They would have to participate and the expenses incurred would be necessarily incurred.

34 I am in no position today to determine whether or not the stay application before the President is likely to be heard expeditiously, or whether it is likely to succeed and in my judgment it is not appropriate for me to undertake the task of assessing the likely prospects of success of such an application in any event. This is a matter within the statutory jurisdiction of the President of the Commission alone.

35 I accept that there will doubtless be some costs and expenses incurred by the applicant in participating in next week's proceedings but in my opinion the incurring of such costs and expenses is not a sufficient reason for this Court to intervene in the proceedings in the Commission and grant the order sought in this application - even assuming, without deciding, that this Court is empowered in the particular circumstances of this case to make such orders.

36 Mr Fiocco contends that the applicant's submission with respect to the Commission's jurisdiction to grant an enterprise order in the circumstances of this case is fanciful and does not satisfy the criterion of a serious question to be tried. I propose to make no finding on that submission and I am prepared to assume for the purposes of this application that a serious question to be tried with respect to that issue does exist before the Commission.

37 I do however accept Mr Fiocco's submission that the balance of convenience clearly favours the second respondents for the reasons he has advanced today and I accept Mr Fiocco's submission that the appropriate course of action is to permit the Commissioner to hear and determine the application and allow the applicant to have its ordinary recourse to its rights of appeal and to continue to press its application for a stay under the provisions of the Act.

38 The intention of the privative clause in s 34(4) is to direct appeals, where appeals lie, to the relevant superior industrial tribunal. Where there is jurisdictional error and no such appeal lies however, the privative clause cannot exclude the prerogative writ. In this case the Commission has made a bona fide attempt to exercise its authority in the matter relating to the subject with which the legislation deals and capable reasonably of being referred to the power possessed by the Commission. In these circumstances the acts of the Commission are not invalid and the applicant's application is prohibited by s 34(4) of the Act.

39 The Court's jurisdiction to grant injunctive relief to prevent "injustice" ought not to be exercised where the applicant cannot point to any equitable or legal right which is or may be infringed and in respect of which there is sought final relief. In this matter no equitable or legal rights are to be determined as and by way of final relief in this Court. The applicant's statutory rights to make a stay application, if the decision of Commissioner Harrison is not favourable, will not result in the applicant's rights being rendered nugatory if the hearing is to proceed on 27 June 2005. The applicant continues to have rights under the Act.

40 There is no evidence of injustice in any event. Presently the original order of Commissioner Harrison is suspended; there is no guarantee that Commissioner Harrison will rule in favour of the first-named second respondent's members; if the decision of Commission Harrison is favourable to the first-named second respondent's members the applicant still has rights pursuant to s 49(2), par 49(2)(a) and s 49(11) of the Act; and if the decision of Commissioner Harrison is not favourable to the first-named second respondent's members, the applicant will have no complaint.

41 The workers employed by the applicant affected by this decision are not being paid the additional $100 per week as the Full Bench of the Commission suspended the original order of Commissioner Harrison. The applicant is not prejudiced in these circumstances.

42 The applicant was refused an adjournment before the Commission. To grant or refuse an adjournment was a matter for the discretion of the Commission. The appropriate course of action is to permit the Commissioner to hear and determine the application and the applicant can have recourse to its rights of appeal and to apply for a stay under the provisions of the Act.

43 There is no denial of procedural fairness as the applicant will continue to have a right of appearance and a right to participate in the proceedings before Commissioner Harrison, present evidence, cross-examine witnesses and present submissions. All that has occurred is that the applicant has been refused an adjournment, an exercise of discretion by the Commission.

44 There is no prejudice to the applicant. The applicant has failed to provide clear particulars of injustice and in the circumstances of this matter there is no injustice to the applicant as it can pursue its rights under the Act.

45 Even if I am wrong in holding that the applicant's application is prohibited by s 34(4) of the Act, I am nevertheless satisfied on the materials before me that this Court ought not to grant a stay in any event because there are no special or exceptional circumstances that would justify the intervention of this Court (assuming that the Court is empowered to intervene in the particular circumstances of this case). I would propose to dismiss the applicant's application and hear counsel on the issue of costs.