Relevant principles regarding expedition
10 The principles concerning the Court's discretion to grant an order expediting a proceeding were recently summarised in Ford, In the matter of Zhong Ao Zhi Hong Investment Holding Pty Ltd (Receivers and Managers Appointed) [2021] FCA 1373. At [13], O'Bryan J made the following observations:
The Court has broad discretion to order expedition of a proceeding. The relevant factors depend on the particular case, but they include whether a party would suffer some significant practical disadvantage, or irreparable loss, if the proceeding were not expedited: Hird v Chief Executive Officer of the Australian Sports Anti-Doping Authority [2014] FCA 1090 at [18]-[19] per Kenny J (referring to appeals but stating principles that are of general application). The factors also include whether witness evidence is needed, and if so the availability of witnesses, or whether the questions in the proceeding can be determined on the documentary materials: see Awan v Minister for Immigration, Multicultural and Indigenous Affairs (2002) 120 FCR 1 at [42] per North J; Meadow Springs Fairway Resort Ltd (in liq) v Balanced Securities Ltd [2007] FCA 1443 (Meadow Springs) at [52] per French J. In an insolvency context, mounting costs and liabilities are particularly relevant: Meadow Springs at [38].
11 In Hird v Chief Executive Officer of the Australian Sports Anti-Doping Authority [2014] FCA 1090, Kenny J noted (at [18]-[19]):
18. There is no dispute as to the relevant principles governing an application for expedition. The court has a broad discretion. An order for expedition will not, however, be granted unless the court is satisfied that it is in the interests of justice to make an order for an expedited hearing.
19. The factors falling for consideration in the exercise of the court's discretion will depend, at least in part, on the particular case. Such factors may include whether, if the hearing did not take place at the earliest convenient time or prior to a particular date, the appellant would suffer some significant practical disadvantage, or a party would suffer some irreparable loss or especially significant hardship, such as the loss of livelihood, business or home. Other factors include a serious detriment to good public administration or to the interests of others not party to the appeal. Hence, an appeal from a judgment on judicial review challenging the lawfulness of the conduct of public bodies or officials, especially where that conduct has implications for others or for the proper administration of the law, may well attract an order for an expedited hearing: see Elders Rural Finance Ltd v Smith (1995) 38 NSWLR 395 (Elders) at 400-402.
12 The abovementioned principles have been cited with approval by this Court as recently as 17 October 2022, where Feutrill J in Frigger v Trenfield (No 6) [2022] FCA 1233 opined (at [30]-[32]):
30. As to expedition, in accordance with s 37M of the Federal Court of Australia Act 1976 (Cth), the overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. Amongst other things, the overarching purpose includes the just determination of all proceedings before the Court, the efficient disposal of the Court's overall caseload and the disposal of all proceedings in a timely manner.
31. Nonetheless, the Court has a broad discretion to order expedition of a proceeding. There are many factors that may be taken into account having regard to the overarching purpose referred to above. However, an order will not be made unless the Court is satisfied that it is in the interests of justice to make an order for an expedited hearing: Hird v Chief Executive Officer of the Australian Sports Anti-Doping Authority [2014] FCA 1090 at [19]-[22]. (Although Hird concerned an appeal, the principles are of general application: Ford, In the matter of Zhong Ao Zhi Hong Investment Holding Pty Ltd (Receivers and Managers Appointed) [2021] FCA 1375 at [13]).
32. The factors may include the extent to which a party to the proceedings will suffer some significant practical difficulty or irreparable loss or especially significant hardship (e.g., loss of livelihood, business or home) if a hearing does not take place at the earliest convenient time or by a particular date. Other factors include serious detriment to good public administration or to the interests of non-parties. The parties' own conduct (i.e., the extent to which it has caused or contributed to delay) is also a factor: Hird at [19]-[22].
(Emphasis in original.)
13 For the following reasons, I am not persuaded that I should grant expedition in the short timeframe suggested by the parties. However, I note, as set out at [21], that the Court will accommodate the parties early in 2023. The Court is required, when exercising its broad discretion to grant expedition, to take into account the rights and interests of all litigants current and prospective. The Court has finite resources. The granting of expedition in one proceeding, deprives others and gives priority to that party over the many other parties who have commenced actions and complied with the timetables dictated by the Court.
14 The Union made a number of submissions as to why the Union and its members would suffer some significant practical disadvantage if the determination of whether its proposed 20 October 2022 action was "industrial action" within the meaning of s 19 of the FW Act for which it has protections at law. The asserted disadvantage was supported by the evidence of Mr Warnes which included: First, the determination of the question would give union members considerable comfort in knowing that they cannot be the subject of legal sanction and disciplinary action if they engage in the action. Secondly, if not determined in an expedited manner, the members may choose nonetheless to engage in the action for which they will suffer significant stress without knowing whether the action is unlawful and could have legal and disciplinary consequences. Thirdly, if the Court determines the question early, and in the Union's favour (namely that the proposed 20 October 2022 action is lawful) then the members "will not need to revert to forms of action that are disruptive to the public". Fourthly, the proposed 20 October 2022 action is described as being "potent" - it is directed solely at Sydney Trains and impacts on its revenue - such that it has potential to assist the Union in achieving its industrial outcomes, and the Union otherwise "could forego taking industrial action that is likely to be effective". Fifthly, the capacity to undertake protected industrial action is a "workplace right" that is recognised and protected by the FW Act. Sixthly, and related to the third, there is a distinct public interest, if the question is resolved in the Union's favour, as the members will not need to revert to forms of action that are disruptive to the public.
15 I do not accept that these grounds are sufficient for expedition in the circumstances by reason of the following.
16 First, the determination of whether the particular forms of industrial action (identified by the parties in their questions) are "industrial action", within the meaning of s 19 of the FW Act, will not lead to a resolution of the ultimate dispute between the parties. No evidence was led by either party that the resolution of the separate questions quickly would or could lead to a timely resolution of the entirety of the dispute. The determination of the questions will only arm either or both parties in particular ways with respect to the past action and the proposed action.
17 Secondly, neither party is saying that the forms of "industrial action", which are the subject of the questions, comprise the entire field of extant action being taken nor which could be prospectively undertaken. The Union is not saying that it will only take the less disruptive, proposed 20 October 2022 action in the future if successful in the determination of this question. I make no criticism of it for taking this position. The history of this matter reveals that the parties have taken a myriad of different forms of industrial action. The Union currently has forms of balloted protected action which it may take. The resolution of these questions will not curtail either party from bringing further, different disruptive or non-disruptive actions.
18 By reason of these two matters, there is no certainty created for the citizens of New South Wales by the questions' speedy resolution.
19 Thirdly, to the extent that Union members are suffering distress or disquiet (which I accept) as a result of Sydney Trains taking the position it has and the statements made in the media, I accept that they are faced with the quandary as to whether to engage in the proposed, historical or new, forms of action. However, in large part, their position is no different from any person, organisation or corporation wanting to embark on industrial action to further their industrial interests. They are only able to lawfully do so to the extent that it falls within those forms of action that are protected under the FW Act. Accordingly, they must work out for themselves whether it is protected, including taking advice before embarking on a particular course. I accept that the Union and its members are now on notice as to Sydney Trains' views in this regard and of the potentially heavy price that may result if the action is not lawful. This potentially heavy price is unordinary but not extraordinary. In this case, the members have the benefit of a sophisticated, well-resourced union, to assist them in working out what their options are and the best course of action. These considerations equally apply with respect to the Union's submission regarding the potential effect, taking or not taking the proposed 20 October action, on its ability to bargain an industrial outcome.
20 Accordingly, I am of the view that expedition, namely that this matter be heard in November 2022 as proposed by the parties, is not warranted in the circumstances.
21 However, the Court will deviate from the Court's usual processes and hear this matter in February 2023 (which is ordinarily only available for Full Court matters) or March 2023 subject to the parties conferring on mutual dates, convenient to the Court in that period.
22 I ask that the parties prepare short minutes readying the matter for trial and inform the Court as to their preferences on availability by Friday 28 October 2022. The matter will be listed for case management next Wednesday 2 November 2022 at 11:00am.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Raper.