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[2012] FCAFC 10
Federal Court of Australia (Full Court)
2012-02-22
McKerracher JJ
Original judgment source is linked above.
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legislation which, at the relevant time, was the Workplace Relations Act 1996 (Cth) ("the WR Act") (which has since been replaced by the Fair Work Act 2009 (Cth)).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.
The TWU appeal 32 Section 494(1), (3) and (5) of the WR Act provided: (1) From the day when: (a) a collective agreement; or (b) a workplace determination; comes into operation until its nominal expiry date has passed, an employee, organisation or officer covered by subsection (2) must not organise or engage in industrial action (whether or not that action relates to a matter dealt with in the agreement or determination). … (3) From the time when: (a) a collective agreement; or (b) a workplace determination; is made until its nominal expiry date has passed, the employer must not engage in industrial action against an employee whose employment is subject to the agreement or determination (whether or not that industrial action relates to a matter dealt with in the agreement or determination). … (5) The Court may make one or more of the following orders in relation to a person who has contravened subsection (1) or (3): (a) an order imposing a pecuniary penalty on the person; (b) injunctions, and any other orders, that the Court considers necessary to stop the contravention or remedy its effects. 33 Section 495(1), (2) and (4) contained similar provisions in relation to "individual transitional employment agreements". 34 At the trial, and on the present appeal, the TWU argued that, for two reasons, the Court's power to make orders under s 494(5)(b) did not include a power to make orders for compensation or monetary damages. The first reason was that an order to "remedy" the effects of a contravention of s 494(1) was bound to be something that dealt with ongoing, rather than past, effects of a contravention. The argument relied heavily on a small number of cases dealing with what was necessary and appropriate to remedy a breach (not the effects of such breach) in contractual, and other, disputes. The cases involved breach of contract, breach of a covenant in a lease and failure to follow union rules. The issue involved in those cases was what was necessary, at the time, to remedy the breach or defect in question. The cases did not deal (directly or indirectly) with the characteristics of a judicial order appropriate to remedy the effects of a contravention of a statutory obligation. 35 The cases relied on by the TWU turned essentially on their own circumstances and contexts, which are quite different from the circumstances and context of the present case. Subject to the matter next to be discussed, in our view it was certainly legitimate for an order made under s 494(5) of the WR Act, intended to remedy the effects of an established contravention of s 494(1), to extend to dealing with financial consequences of the contravention which had become evident at the time the orders were made, whether or not those effects may be said to have been ongoing. In our view, the order made by the trial judge is properly characterised as an order to remedy the effects of the contravention of s 494(1) of the WR Act by the TWU which his Honour found to have been proved. We would therefore not uphold the TWU's first argument. 36 The second (and more substantial) question is whether an order to remedy the effects of a contravention, as contemplated by s 494(5), was confined by the statutory context in which the grant of power to make the order appeared in a way that excluded any order for compensation. The contention that it was so confined depended on the argument that Parliament intended that an order for compensation might only be made where the availability of such an order was explicitly stated in the WR Act. The argument drew attention to a number of provisions of the WR Act where, in addition to a grant of power to make an order to remedy the effects of particular contraventions of the Act, there was also granted a further, explicit, power to award compensation (ss 320, 346ZK, 508, 616, 632, 769 and 807). This feature of the drafting was said to show that where Parliament intended the Court to have a power to award compensation, it explicitly provided for such power in the WR Act. 37 The sections of the WR Act relied upon did explicitly authorise orders for compensation. They did so separately from authorising orders to remedy the effects of the contraventions of the WR Act addressed in those sections. They did not, however, uniformly follow a single structure. 38 Section 320 is the sole example of one approach which was found in the WR Act. It provided: 320 The Court may, on application by a person in accordance with section 319, make one or more of the following orders in relation to an employer who has contravened a relevant term of the Australian Fair Pay and Conditions Standard: (a) an order requiring the employer to pay a specified amount to another person as compensation for damage suffered by the other person as a result of the contravention; (b) any other orders (including injunctions) that the Court considers necessary to stop the contravention or rectify its effects. 39 Section 508(5) of the WR Act is the sole example of another approach. It provided: (5) The Court may make one or more of the following orders in relation to a person who has contravened subsection (1): (a) an order imposing a pecuniary penalty on the person; (b) an order requiring the person to pay to the employer concerned compensation of such amount as the Court thinks appropriate; (c) injunctions, and any other orders, that the Court considers necessary to stop the contravention or remedy its effects; (d) any other consequential orders. 40 Sections 616, 632, 769 and 807 provide a third example of provisions relied upon by the TWU. In each case they referred to an identified statutory obligation or obligations (in ss 615, 631, Part 15 and Part 16 respectively) and permitted the following orders to be made: (1) … (a) an order imposing a pecuniary penalty on the employer; (b) an order requiring the employer to pay a specified amount to the employee as compensation for damage suffered by the employee as a result of the contravention; (c) any other order that the court considers appropriate. … (3) The orders that may be made under paragraph (1)(c) include: (a) injunctions; and (b) any other orders that the court considers necessary to stop the conduct or remedy its effects. 41 Section 346ZK contained a variant of this approach, as it largely mirrored the language found in ss 616, 632, 769 and 807, but did not contain any reference to an order for a pecuniary penalty. 42 The TWU relied on all these examples to illustrate that a power to order compensation was separately identified from a power to make an order to remedy the effects of a contravention. It pointed out that an explicit power to order compensation was not stated in s 494(5). Neither, it might be observed, did s 494(5) (nor s 495(4)) contain an explicit power to make "consequential orders" (cf. s 508(5)(d)) or "any other order that the court considers appropriate" (cf. ss 346ZK(1)(c), 616(1)(c), 632(1)(c), 769(1)(c) and 807(1)(c)). It was not suggested that the Court would not have had a power to make consequential or further orders under s 494(5) despite that omission. 43 The examples relied upon by the TWU provide some support for its argument. However, even those examples do not reveal a particularly uniform approach to the specification by the WR Act of the Court's powers to deal with contraventions of that Act. Upon further examination of the WR Act it becomes clear that there was no consistent approach to the issue of the kind for which the TWU contends. 44 Sections 448 and 904 provided powers to make orders to remedy the effects of contraventions of the Act (in terms closely resembling s 494(5) and s 495(4)) and went on to explicitly include, within that same class of orders, an order for compensation. Taking s 448 as an example, it provided, by subsection (4) and (6): (4) The Court may make one or more of the following orders in relation to a person who has contravened subsection (1): (a) an order imposing a pecuniary penalty on the person; (b) injunctions, and any other orders, that the Court considers necessary to stop the contravention or remedy its effects. … (6) Other orders the Court may make under paragraph (4)(b) include (but are not limited to): (a) if the contravention was constituted by dismissing an employee - an order to reinstate the person dismissed to the position that the person occupied immediately before the dismissal or to a position no less favourable than that position; and (b) in any case - to pay, to the person dismissed, injured or prejudiced, compensation for loss suffered as a result of the dismissal, injury or prejudice. 45 That was an approach which explicitly acknowledged that an order to remedy the effects of a contravention might include an order for compensation. The TWU argued that the legislative technique used in ss 448 and 904, of explicitly prescribing that an order for compensation was included in the class of orders to remedy the effects of a contravention, suggested that it would otherwise be excluded from the class. The same proposition would need to be advanced about orders for reinstatement. Section 448 responded, in part, to actual dismissals (as well as threatened dismissal). An order for reinstatement in employment is a natural order to address the effects of dismissal from employment in contravention of s 448. It does not represent an example of an order which would be excluded from that class of orders unless the class was extended legislatively by its inclusion. The same may be said for an order for compensation in the case of unlawful dismissal. The TWU's efforts to reconcile s 448 (and s 904) with its thesis should not (as the trial judge also found) be accepted. 46 Section 665 of the WR Act provides a further clear exception to the legislative pattern suggested by the TWU's arguments. Section 665(1), (2) and (5) provided: (1) If the Court is satisfied that an employer has contravened section 659 in relation to the termination of employment of an employee, the Court may make one or more of the following orders: (a) an order imposing on the employer a penalty of not more than $10,000; (b) an order requiring the employer to reinstate the employee; (c) subject to subsections (2), (3), (4) and (5), an order requiring the employer to pay to the employee compensation of such amount as the Court thinks appropriate; (d) any other order that the Court thinks necessary to remedy the effect of such a termination; (e) any other consequential orders. (2) An amount of compensation ordered by the Court under paragraph (1)(c) or (d) to be paid to an employee may not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the employee by the manner of terminating the employee's employment. … (5) For the avoidance of doubt, an order by the Court under paragraph (1)(c) or (d) may permit the employer concerned to pay the amount required in instalments specified in the order. 47 Subsections (2) and (5) referred to subsection 665(1)(d) in terms which necessarily accepted that an order to remedy the effects of a contravention of s 659 might include an order for compensation. Counsel for the TWU candidly accepted the difficulty this presented for the TWU argument. Counsel's only answer was to suggest that the references, in those subsections, to subsection (1)(d) were a drafting error. There is insufficient support for such a proposition. 48 In our view, there was no uniform pattern or structure in the WR Act of the kind suggested by the TWU argument, and upon which the argument depends. On the contrary, there are sufficient indications from the text and structure of the WR Act to deny the foundation for that argument. 49 The TWU also argued that considerations arising from the history of certain provisions in the WR Act supported its arguments. We do not agree. It is necessary to refer to only one matter in this connection. The statutory predecessors to s 494(1) and (5) (which were, from 31 December 1996 to 26 March 2006, to be found in the combined operation of ss 170MN(1), 170ND(b), 170NF(1) and 170NG) only provided for remedies by way of penalty and injunction. It is clear that s 494(5) provided much wider powers to the Court - i.e. apart from pecuniary penalties and injunctions, to make "any other orders that the Court considers necessary" (our emphasis). Unless the width of that new power was confined by considerations other than the text of s 494(5) itself we have no doubt that it extended to an order for compensation. 50 The trial judge referred to most of the foregoing matters, and also to earlier provisions of the WR Act (at [383]-[392] of the principal judgment). He concluded his analysis of this issue by saying: 393 While this legislative history sustains a cogent argument that when the legislature intended to confer a power to award compensation it did so expressly and its failure to do so in s 494 can be taken to indicate that the power was not intended to be conferred. That argument is fortified by the fact that at the time s 494 was enacted, other sections were enacted (ss 508, 616, 632, 769 and 807) which expressly conferred a power to order compensation separately from and in addition to the power to make an order to remedy the effects of the proscribed conduct. However, pointing in the opposite direction was the section enacted at the same time which point to the power to award compensation as comprehended by the more general power to make an order to remedy the effects of proscribed conduct (s 448) and a section to similar effect enacted later (s 904). 394 Ultimately the question is whether these are sufficiently clear signals that the express words should be treated as limited in the way discussed in FIA General Insurance [sic] referred to earlier. They are not. The words used "should be construed with all the amplitude that [their] ordinary meaning…admits". That would include making an order requiring the payment of money to defray the financial effects of the industrial action. I have power to award compensation under s 494(5)(b). 51 We agree with that conclusion. The guiding principle to be borne in mind is that limitations are not readily to be implied or found in the case of a grant of judicial power in terms which are themselves unconfined (see Owners of "Shin Kobe Maru" v Empire Shipping Co Inc (1994) 181 CLR 404 at 421; Hillpalm Pty Ltd v Heaven's Door Pty Ltd (2004) 220 CLR 472 at [47]; Macedonian Orthodox Community Church St Petka Incorporated v His Eminence Petar the Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66 at [55]). A related principle which applies in the present case is that a remedial power should not normally be narrowly construed (see PMT Partners Pty Ltd (In Liquidation) v Australian National Parks and Wildlife Service (1995) 184 CLR 301 at 313). 52 The grant of power in s 494(5) was a very wide one. The Court was given a power to make "any other orders that the Court considers necessary" to remedy the effects of a contravention. A grant of power in wide terms does not render the grant of power ambiguous. Were it not for the structural considerations relied upon by the TWU, there would be no doubt, in our view, that taking the ordinary and natural meaning of the words used in s 494(5) of the WR Act, the terms of the grant of power were wide enough to include an order for compensation. The matters relied on by the TWU do not provide a reason to depart from that construction of s 494(5). 53 In our respectful view the trial judge came to the right conclusion on the issue of statutory construction raised by the present appeal. The order of compensation which he made was open to him. It is not otherwise challenged. The appeal must therefore be dismissed. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Buchanan and McKerracher.
Transport Workers Union of Australia
Qantas Airways Ltd
National Parks and Wildlife Service (1995) 184 CLR 301, cited Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue of the State of Victoria [2001] HCA 49 (2001) 207 CLR 72, cited Sanders v Snell (1998) 196 CLR 329, cited
REASONS FOR JUDGMENT GRAY J: 1 This appeal is from the judgment of Moore J, awarding to the respondent Qantas Airways Ltd ("Qantas") (the applicant in the proceeding at first instance) compensation in the sum of $707,345 plus interest against the Transport Workers' Union of Australia ("the TWU"), pursuant to s 494(5)(b) of the Workplace Relations Act 1996 (Cth) ("the Workplace Relations Act") (now repealed). The sole question in the appeal is whether s 494(5)(b) conferred on the Court the power to award compensation. 2 Moore J published two sets of reasons for judgment. The first was Qantas Airways Ltd v Transport Workers' Union of Australia [2011] FCA 470, in which his Honour found that the TWU and eight of its officers or employees for whose conduct the TWU was responsible had contravened s 494(1) of the Workplace Relations Act in relation to stoppages of work at the airport terminals at Sydney, Brisbane, Adelaide and Perth on 30 March 2009. His Honour held that s 494(5)(b) of the Workplace Relations Act empowered the Court to award compensation to Qantas. His Honour also held that claims by Qantas for damages for contravention of s 45D of the Trade Practices Act 1974 (Cth) ("the Trade Practices Act"), the tort of inducing breach of contract, the tort of interference with trade or business by unlawful means, and the tort of nuisance should be dismissed. The second set of reasons for judgment, Qantas Airways Ltd v Transport Workers' Union of Australia (No 2) [2011] FCA 816, was devoted principally to calculating the amount of compensation and assessing the level of penalties his Honour also imposed on the TWU and the individuals sued by Qantas. His Honour's final orders were made on 22 July 2011. 3 Qantas filed a cross-appeal in relation to the dismissal of its claims for inducing breach of contract and interference with trade or business by unlawful means (but not the claims under the Trade Practices Act or for nuisance). The cross-appeal attracted a notice of contention from the TWU. Counsel for Qantas conceded that the cross-appeal had no utility if the appeal were to be dismissed, because the damages awarded for either or both of the torts alleged would not differ from the compensation ordered by Moore J on the statutory cause of action. On 14 February 2012, at the conclusion of argument on the appeal, the Court made an order dismissing the appeal and reserved its reasons for judgment. The Court also made orders adjourning the hearing of the cross-appeal, on the basis that it will stand dismissed unless the TWU should apply for, and be granted, special leave to appeal to the High Court from the dismissal of its appeal, and should be successful in any resulting appeal to the High Court, in which case the cross-appeal will be heard and determined. Because of the effect of s 824 of the Workplace Relations Act, there was no order for costs. 4 Section 494(5) of the Workplace Relations Act provides that the Court may make, "in relation to a person who has contravened" s 494(1) or (3), one or more of the orders to which the section refers. Section 494(5)(a) provides for the imposition of a pecuniary penalty on the person. Section 494(5)(b) refers to "injunctions, and any other orders, that the Court considers necessary to stop the contravention or remedy its effects." The words are of wide import. Ordinarily, the conferral on a court of a statutory power to make orders should be construed broadly, not confined by implications not apparent from the words of the conferral themselves: Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue of the State of Victoria [2001] HCA 49 (2001) 207 CLR 72 at [11] per Gaudron, Gummow, Hayne and Callinan JJ; Owners of the Ship "Shin Kobe Maru" v Empire Shipping Co Inc (1994) 181 CLR 404 at 421; Knight v FP Special Assets Ltd (1992) 174 CLR 178 at 185 per Mason CJ and Deane J, 202-203 per Dawson J and 205 per Gaudron J; and FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268 at 283-284 per Wilson J, with whom Brennan, Deane and Dawson JJ agreed, and 290 per Gaudron J. In accordance with this principle, the Court should not confine the phrase "any other orders" by reference to any implication, but only by reference to the terms of s 494(5)(b) itself. For the purpose of this case, the relevant limitation is that any order must be an order to "remedy" the "effects" of a contravention of s 494(1). 5 The TWU's argument on the appeal focussed first on the word "remedy". It was said that the ordinary meaning of "remedy" looked to the future, rather than to the past, and that an order to remedy the effects of a contravention would only include an order preventing future effects of a contravention from occurring, not an order undoing the past effects of a contravention. This argument was put in two principal ways. The TWU relied on authorities in which a meaning of "remedy" of the kind for which the TWU advocated had been adopted by courts in a variety of contexts. It was said that these authorities demonstrated that the ordinary meaning of the word "remedy" was concerned with making the future more satisfactory, rather than attempting to undo the past. There was an argument that the words of s 494(5)(b) show that the focus is on events that are ongoing, rather than on those that are over and done with. 6 At issue in FL Schuler AG v Wickman Machine Tool Sales Ltd [1974] AC 235 was a clause in a commercial contract that obliged a party to make regular specified visits to certain customers, to solicit orders. Another clause provided that the contract could be terminated by one party if the other committed a material breach and failed to remedy it within 60 days of being required in writing to do so. One question was whether a breach of the obligation to visit and solicit orders was capable of being remedied. At 249-250, Lord Reid said: The question then is what is meant in this context by the word "remedy." It could mean obviate or nullify the effect of a breach so that any damage already done is in some way made good. Or it could mean cure so that matters are put right for the future. I think that the latter is the more natural meaning. The word is commonly used in connection with diseases or ailments and they would normally be said to be remedied if they were cured although no cure can remove the past effect or result of the disease before the cure took place. And in general it can only be in a rare case that any remedy of something that has gone wrong in the performance of a continuing positive obligation will, in addition to putting it right for the future, remove or nullify damage already incurred before the remedy was applied. To restrict the meaning of remedy to cases where all damage past and future can be put right would leave hardly any scope at all for this clause. This passage is not of great assistance to the TWU in the present case. Lord Reid acknowledged the alternative meaning of "remedy", making good damage that had already been done. His Lordship's adoption of the future-related meaning was clearly based on the context in which the word "remedy" was used in the contract. The significance of the ongoing nature of the obligation to visit and canvas orders should not be overlooked. 7 Similarly, Batson v de Carvalho (1948) 48 SR (NSW) 417 involved the question whether a breach of a covenant in a lease, a covenant creating an ongoing obligation not to part with possession of the leased premises without the landlord's consent, was capable of remedy. A question arose as to whether the breach was capable of being remedied, so as to render a statutory notice requiring it to be remedied an unnecessary step prior to terminating the lease. At 425-426, Sugarman J referred to English authority on whether breach of a negative covenant could ever be remedied. His Honour expressed agreement with Morris J in Egerton v Esplanade Hotels London Ltd [1947] 2 All ER 88 at 90, who said that it was clear that the phrase "remedy the breach" cannot mean that the breach was to be wiped out, because that would be an impossibility, and that a more useful approach was to consider whether the consequences of the breach were capable of remedy. At 426-427, Sugarman J held that the covenant in question was capable of remedy, perhaps by the lessee regaining possession of the premises or by asking for and obtaining consent, and that a notice requiring it to be remedied was required. At 427, his Honour said: To "remedy" a breach is not to perform the impossible task of wiping it out-of producing the same condition of affairs as if the breach had never occurred. It is to set things right for the future, and that may be done even though they have for some period not been right, and even though that may have caused some damage to the lessor… 8 This passage was cited with apparent approval by the New South Wales Court of Appeal in Burger King Corporation v Hungry Jack's Pty Limited [2001] NSWCA 187 (2001) 69 NSWLR 558 at [121]. Even if it were to be applied to the present case, it is not of great assistance to the TWU. Clearly, circumstances might exist in which a way (perhaps the only way) of setting things right for the future is to require the payment of money, to compensate the wronged party for loss suffered by reason of a wrong that cannot be undone. This is why it is common to refer to the right to damages as a "remedy", and sometimes as "the primary remedy" in relation to many causes of action in contract or tort. Sugarman J's adoption of Morris J's reference to remedying the consequences of a breach, rather than the breach itself, points to circumstances in which a breach or other actionable wrong has caused the wronged party to suffer loss which is capable of being set right only by the payment of money. In that way, the consequences of the wrong are remedied. 9 The final authority to which reference was made is Australian Electoral Commission v Hickson (1997) 76 IR 399. That case concerned an election in an organisation registered under the Workplace Relations Act. A candidate was found to have been nominated invalidly, because one of the persons nominating him was not a financial member of the organisation. A question arose whether the returning officer had complied with a requirement of the organisation's rules to give the candidate a notice advising that he could remedy the defect in the nomination and advise the returning officer that he had done so within seven days. At 407, Northrop ACJ said: The word remedy connotes futurity. It means to cure, to put right, to rectify, to make good: see the Shorter Oxford English Dictionary and the Macquarie Dictionary. Of necessity to remedy is to make good that which was bad. This must apply to action taken after that which was bad has been identified. At 408, his Honour held that the remedy was to ensure that the nominator in question became financial before a particular date. As the nominator had done so, the defect in the nomination had been cured. At 418, Branson and Marshall JJ reached a similar conclusion, without discussion of the meaning of the word "remedy". For present purposes, the noteworthy feature of that case is that the defect in the nomination was remedied by the payment of money, which did not cause the defect never to have existed (an impossibility), but remedied it for the future. In a similar way, the payment of money might remedy a contravention of a statutory obligation, not by causing the contravention never to have occurred, but by ameliorating its consequences, so that, to the extent possible, the contravention is made good for the future. 10 Counsel for the TWU conceded that there are two possible meanings of the word "remedy", one having to do with the undoing of the wrong in a past sense, the other having to do with making good the consequences of the wrong for the future. The argument was that, in the context of s 494(5)(b) of the Workplace Relations Act, it was only the latter meaning that should be adopted. The context was said to be supplied by the reference to an injunction to "stop" the contravention, so that it could be said that the provision was directed to the making of orders about a contravention that was still occurring, as well as by the use of the word "effects", which it was contended should be construed as referring to future, and not to past, effects. 11 The arrangement of the words of s 494(5)(b) suggests that the full range of orders contemplated is to be available both for the purpose of stopping a contravention and for the purpose of remedying the effects of a contravention. In other words, the provision is not to be read distributively, as if it empowers the grant of an injunction to stop a contravention and the grant of any other orders to remedy the effects of a contravention. Once this proposition is accepted, it is clear that the provision is not confined to ongoing contraventions, or contraventions with ongoing effects. It is true that only a contravention that is still occurring can be stopped, whether by injunction or by any other order. It is also true that the effects of a contravention that is no longer occurring can be the subject of an order to make good those effects, whether the order be an injunction or some other type of order. The effects to be remedied might also have ceased to develop, although they are still being felt, but they can still be remedied. A way of remedying them might be by monetary compensation. 12 It is perfectly possible to read s 494(5)(b) as empowering the Court to grant an injunction, or to make any other order, to stop a contravention that is still occurring at the time the Court makes its order, and to grant an injunction, or to make any other order, to remedy the effects of a contravention, whether or not that contravention is still occurring. In other words, both of Lord Reid's alternative meanings of the word "remedy" might be applicable. When read in this way, the provision can be understood readily to include in the range of orders available to remedy the effects of a contravention an order for compensation for loss caused as one of those effects. 13 One of the difficulties confronting the TWU's argument is that it is very difficult to imagine an order other than an injunction that might be made to remedy the effects of a contravention if an order for compensation were to be considered to be unavailable. The words "any other orders" should not be treated as having no function to perform in the operation of s 494(5)(b) of the Workplace Relations Act. 14 For these reasons, I agree with Buchanan and McKerracher JJ, and with Moore J, that s 494(5)(b) of the Workplace Relations Act, standing alone, should be read as empowering the Court to make an order for monetary compensation as one of the range of orders it can make to remedy a contravention of s 494(1) or (3). 15 The only remaining question is whether such a reading would be inconsistent with other provisions of the Workplace Relations Act in which grants of power in terms the same as or similar to those found in s 494(5)(b) appear, sometimes accompanied by specific grants of power to award compensation. For the reasons given by Buchanan and McKerracher JJ, and for the reasons given by Moore J at [380]-[394] of his first reasons for judgment, I am of the view that the legislative history of s 494, and the other provisions of the Workplace Relations Act, do not provide a sufficiently consistent indication that the expression "any other orders…to…remedy its effects" in s 494(5)(b) is to have a meaning narrower than its ordinary meaning. 16 For these reasons, I concurred in the making of the orders made on 14 February 2012. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gray.
[2001] QCA 342
(1997) 76 IR 399
(2001) 69 NSWLR 558
(1988) 165 CLR 268
(2004) 220 CLR 472
(1992) 174 CLR 178
(2008) 237 CLR 66
(1994) 181 CLR 404
(1995) 184 CLR 301
(2001) 207 CLR 72
(1998) 196 CLR 329