Transport Workers Union of Australia v Qantas Airways Ltd

Introduction 17 This appeal concerns a relatively narrow question about the construction of the principal piece of federal industrial legislation which, at the relevant time, was the Workplace Relations Act 1996 (Cth) ("the WR Act") (which has since been replaced by the Fair Work Act 2009 (Cth)). The practical implications are not narrow. 18 By orders made on 22 July 2011, Moore J ordered the appellant ("TWU") to pay to the respondent ("Qantas") $707,345 with interest on and from 30 March 2009. His Honour also ordered that the TWU and a number of its officials pay pecuniary penalties. The conduct in respect of which those orders were made occurred on 30 March 2009 at the airport terminals in Sydney, Brisbane, Adelaide and Perth. His Honour found that on that day the TWU, and its officials who were parties to the proceedings, engaged in conduct which was in breach of s 494(1) of the WR Act. The conduct concerned the organisation of stop work meetings of employees at each of the airport terminals on the morning of 30 March 2009. The conduct had the result of substantially hindering the baggage operations and certain other operations of Qantas. Directly and indirectly, apart from the disruption to its services and flight schedule and the inconvenience caused to its passengers and those of some other airlines, Qantas became liable for extra costs as a result. Those amounts, as assessed by his Honour, formed the basis for the calculation of the order for the payment of $707,345. That amount was ordered to be paid to "remedy… [the] effects" of the conduct found proved. 19 His Honour's reasons for finding the TWU and its officials liable were set out in some detail in Qantas Airways Ltd v Transport Workers' Union of Australia [2011] FCA 470 ("the principal judgment). His Honour's reasons for ordering the amount of $707,345 were set out in Qantas Airways Ltd v Transport Workers' Union of Australia (No 2) [2011] FCA 816 ("the orders judgment"). 20 The TWU appealed from the principal judgment and the orders judgment to the extent that it was ordered to pay $707,345. The grounds of appeal are stated concisely in the following terms: 1. The learned trial judge erred in finding that the power conferred by s 494(5)(a) of the Workplace Relations Act 1996 to make orders "remedying the effects" of a contravention encompassed a power to make orders for the payment of compensation or monetary damages. 2. The learned trial judge had no jurisdiction to make orders that the appellant pay an amount of money to the respondent as compensation or monetary damages by reference to the contravention of s 494(1) of the Workplace Relations Act 1996 found by his Honour. 21 The effect of these contentions is that whatever orders may have been made remedying the effects of a contravention of s 494(1) of the WR Act, they did not extend to monetary orders for compensation or damages, but were confined to orders of a different kind (such as certain forms of injunctive or declaratory relief). Moore J considered, but rejected, this argument. 22 Although finding that Qantas was entitled to compensation by reason of the breach by the TWU of s 494(1) of the WR Act, in the principal judgment Moore J rejected contentions by Qantas that the TWU was also liable to it at common law by reason of commission of the torts of inducing breach of contract and interference with trade or business by unlawful means. It has not been suggested on the present appeal that the damages recoverable, if either tort was established, would have differed from the order for compensation which was made for contravention of s 494(1) of the WR Act. 23 Moore J referred to the fact that in Sanders v Snell (1998) 196 CLR 329 at [36] the High Court characterised the tort of interference with trade or business as "embryonic or emerging" in Australia. His Honour referred also to the fact that in Deepcliff Pty Ltd v Council of the City of Gold Coast [2001] QCA 342 the Queensland Court of Appeal declined to accept that the tort had been sufficiently recognised in Australia to hold that it exists under Australian law. In those circumstances his Honour said (at [430] of the principal judgment): It seems to me it would be inappropriate for me to take the step of deciding the tort exists in the face of the decision of the Court of Appeal of Queensland. I decline to do so. 24 In relation to Qantas' pleaded case of inducing breach of contract his Honour found that Qantas' case was insufficiently established on the evidence. 25 Qantas brought a cross-appeal against the principal judgment and the orders judgment insofar as they dismissed its claim for damages for the torts of inducing breach of contract and of interference with trade or business by unlawful means. The cross-appeal sought an order which would support the sum of $707,345 as common law damages. 26 The intent of the cross-appeal was, therefore, to provide an alternative foundation at common law for the amount which the TWU was ordered to pay Qantas. 27 The TWU subsequently filed a notice of contention seeking to support the conclusions reached in the principal judgment that the claims in tort for inducing breach of contract and for interference with trade or business by unlawful means should be dismissed. In the case of the tort of inducing breach of contract the contentions were various but included the propositions that Qantas failed to prove the terms of the contract of employment of the Qantas employees so as to prove that they had breached their contracts of employment and also that the TWU was entitled to rely upon the defence of "justification". In connection with the tort of interference with trade or business by unlawful means the TWU contended (in addition to its argument that the tort is not recognised under Australian law) that necessary elements of the tort were not established and/or that the TWU was entitled to rely upon the defence of "justification". 28 Amongst the issues which were raised by the appeal and cross-appeal were the following: (1) Under s 494(5) the WR Act, did the power to make an order to remedy the effects of a contravention of s 494(1) of the Act extend to a power to order compensation? (2) Was a case of inducing breach of contract made out against the TWU? (3) Is the tort of interference with trade or business by unlawful means recognised in Australia? (4) If the tort is recognised in Australia, was a case of commission of the tort made out against the TWU? 29 The second, third and fourth issues would only arise for consideration if the appeal succeeded. Those issues are complex. If the appeal is dismissed it is unnecessary to express an opinion about them and, in our view, inappropriate to do so. There is no overlap between those issues and the issues which fall for consideration in the TWU appeal, which are separate and discrete issues of statutory construction. Any opinion we offered about the issues in the cross-appeal and notice of contention may be quite academic and moot. 30 On 14 February 2012, the Court announced that the TWU appeal would be dismissed and made orders to that effect. 31 It is not necessary at present (and may never be) to deal with the cross-appeal filed by Qantas, nor with the notice of contention filed by the TWU in connection with the cross-appeal. It will only be necessary to consider the issues raised by the cross-appeal and the notice of contention if the TWU seeks and obtains special leave from the High Court to appeal from the order dismissing its appeal, and succeeds in any such appeal. For that reason, the Court also made orders for the disposition or, if necessary, future hearing of the cross-appeal and notice of contention which will accommodate future developments, if any.