Tristar Steering and Suspension Australia Limited v Industrial Relations Commission of New South Wales

4. That the First Respondent be restrained from calling on the summons to give evidence served on Cheng Hong until the final determination of these proceedings or until further order.'

2 The Amended Notice of Motion is supported by the affidavit of Mr Cheng Hong sworn on 19 March 2007. 3 The application is extremely urgent, because Mr Hong has been served with a summons requiring him to give evidence before an inquiry into matters relating to the availability of work at Tristar ('the Inquiry') on Friday 23 March 2007.

Facts 4 On 9 February 2007 the second respondent ('the Minister') referred to the Industrial Relations Commission of New South Wales ('the Commission'), pursuant to s 146(1)(d) of the Industrial Relations Act 1996 (NSW) ('the IR Act') a reference requiring the Commission to inquire and report to the Minister in respect of the following three issues ('the Terms of Reference'): '1. The facts and circumstances, including the historical and background facts and circumstances relating to the availability of work or the continuing availability of work at the operation of Tristar Steering and Suspension Australia Ltd at Carrington Road, Marrickville with regard to, but not limiting the generality of the foregoing, the current dispute between the employees and unions at that site, and the employer or employers operating the site, concerning redundancy or termination pay.

2. The availability and adequacy of remedies under Commonwealth and NSW laws, including but not limited to determination of entitlements and dispute resolution, where there is an issue relating to the availability of work or the continuing availability of work, or redundancy or termination pay, at the workplace.

3. Recommendations as to utilisation of or changes to Commonwealth and NSW laws, including removing any obstacles, jurisdictional or otherwise, where there is an issue relating to the availability of work or the continuing availability or work, or redundancy or termination pay, at the workplace.'

5 Tristar challenges the jurisdiction of the Commission to embark upon the Inquiry. Its jurisdictional argument was founded upon the submission that s 16(1) of the Workplace Relations Act 1996 (Cth) ('the WPR Act') operated to exclude the operation of s 146(1)(d) of the IR Act with the consequence that the Commission had no jurisdiction to conduct the Inquiry. Section 16(1) of the WPR Act relevantly provides: '(1) This Act is intended to apply to the exclusion of all the following laws of a State or Territory so far as they would otherwise apply in relation to an employee or employer.'

6 A 'State or Territory industrial law' is defined in s 4 of the WPR Act as including the IR Act. 7 As an alternative submission Tristar claimed that the Inquiry should be adjourned until the determination of the proceedings against Tristar which had recently been commenced in this Court by the Office of Workplace Services. Such hearing is listed for directions on 28 March 2007. 8 On 8 March 2007 the Commission delivered judgment (see [2007] NSWIRComm 50]). It rejected the submissions of Tristar in respect of the jurisdictional application (see reasons contained at [25] to [76] of its decision). The Commission also rejected an application by Tristar for a stay of the proceedings for the reasons set out in [81] to [88] of its decision. 9 On the following day, namely 9 March 2007, Tristar made an application to this Court seeking interlocutory relief as follows: '1. A stay of the Inquiry by the Commission pending the determination of the application.

2. In the alternative, a stay of the Inquiry by the Commission into events occurring on or after 26 March 2006, pending the determination of the application.

3. In the further alternative, an order restraining the Commission from issuing any summons to produce documents to Tristar and/or summons to give evidence to directors, officers, employees and/or agents of Tristar.'

10 The application for injunctive relief came on before Edmonds J who refused such relief (see Tristar Steering & Suspension Australia Ltd v Industrial Relations Commission of NSW [2007] FCA 348).

Subsequent events 11 On 16 March 2007 a Summons to Give Evidence ('the summons'), addressed to Mr Cheng Hong, the Managing Director of Tristar, was issued pursuant to s 165(3)(b) of the IR Act. The summons was served upon Mr Hong in Sydney. The present application for injunctive relief and for the joinder of Mr Hong was filed on 19 March 2007. During the hearing an order was made that Mr Hong be joined as an applicant. For convenience, when both applicants are referred to hereafter they shall be referred to as 'Tristar'.

Submissions of Tristar 12 Tristar claims that there is a serious question to be tried which it articulates as follows: 'Is the exercise by the Commission of its function of inquiry under s 146(1)(d) of the Industrial Relations Act 1996 (NSW) in relation to the first term of reference an operation of a "State Industrial Law" (as defined in s 4 of the Workplace Relations Act 1998 (Cth)) which has the effect that the State Industrial Law would "otherwise apply in relation to an employee or employer" within the meaning of s 16(1) of the Workplace Relations Act 1996?'

13 Tristar submits that the decision of the Commission delivered on 8 March 2007 is erroneous in relation to its finding that s 16(1) of the WPR Act does not operate to exclude the Commission conducting the Inquiry pursuant to s 146(1)(d) of the IR Act. 14 In particular, Tristar submits that the Commission erred in holding that the word 'apply' in s 16(1) operated to limit the words 'in relation to' to those State Industrial Laws which created rights and obligations. Tristar submits that the words 'in relation to' contained in s 16(1) of the WPR Act apply to industrial matters broadly and are not merely confined to matters relating to employer and employee relations. Tristar submits that s 16(1)(a) would be constitutionally invalid if the words 'in relation to' were not read down (see 48-51), and that the decision of the Commission is contrary to the decision of the finding of the High Court of Australia in New South Wales v Commonwealth (2006) 82 ALJR 34 especially at [346] to [377]. 15 Tristar also submits that Edmonds J did not determine whether there was a serious question to be tried but dismissed the proceedings before him on the grounds that the balance of convenience did not justify the grant of the injunction sought. 16 Mr Hong submits that his rights and liabilities may be infringed because he is required to attend before the Commission and give evidence and that the failure to comply with the summons exposes him to potential fines and penalties as provided by s 165(4) of the IR Act. 17 As to the balance of convenience, it is submitted that only Mr Hong seeks relief by restraining the Commission from calling upon the summons to give evidence. In support of its application, Tristar relies upon the decision of Branson J in Re Cortaus (in Liq); Sheahan v Joye & Ors (No. 2) (1996) 20 ACSR 576 at 578.5, wherein her Honour determined that requiring a person to attend an examination and compulsorily give evidence under oath constituted an infringement of his or her civil liberties.

Minister's Submissions 18 The Minister submits that Edmonds J has already determined whether interlocutory relief should be granted, by refusing the application before him. Tristar had sought an order restraining the Commission from issuing any summons to produce documents. The Minister says that the summonses foreshadowed in the proceedings before Edmonds J have now issued. Further, although Mr Hong is now a party, and was at all material times, the corporate mind of Tristar as its Managing Director, there are no materially changed circumstances which would justify the Court entertaining the present application: see BP Chemicals ANZ Pty Limited v Manildra Starches Pty Limited [1997] FCA 1189. 19 Contrary to the submissions of the applicants the Minster submits that Edmonds J did make a determination that there was no serious question to be tried as stated in paragraph [7] of his Honour's judgment where his Honour said: 'In the limited time I have had to read and consider the Commission's decision and hear Tristar's Senior Counsel's submissions as to the arguable errors in the Commission's process of reasoning, I am not persuaded that the Commission's decision on both the jurisdictional application and the stay application is wrong.'

20 His Honour's reference to the balance of convenience thereafter merely showed that he was considering the necessary issues raised by the application before him. The Minister relies upon the submissions he made before Edmonds J, which, in substance, seek to demonstrate that the WPR Act does not operate to exclude the jurisdiction of the Commission to undertake its functions pursuant s 146(1)(d) of the IR Act, and that the decision of the Commission is correct. 21 As to the balance of convenience, the Minister submits that the decision in Re Cortaus 20 ACSR 576was distinguished by Edmond J on the ground that the summonsed parties in Cortaus 20 ACSR 576 were parties to the proceeding itself. 22 The Minster submits that there are no changed circumstances and that the further application should not be entertained: see Nominal Defendant v Manning (2000) 50 NSWLR 139.

FINDINGS 23 The principles governing the issue of an interlocutory injunction were stated by Mason ACJ (as he then was) in Castlemaine Tooheys Limited and Others v The State of South Australia (1986) 161 CLR 148 at 153 where his Honour said: 'In order to secure such an injunction the plaintiff must show (1) that there is a serious question to be tried or that the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief; (2) that he will suffer irreparable injury for which damages will not be an adequate compensation unless an injunction is granted; and (3) that the balance of convenience favours the granting of an injunction.'

24 As to the first issue, namely whether there is a serious question to be tried, Gummow and Hayne JJ in Australian Broadcasting Corporation v O'Neill (2006) 229 ALR 457 said at page 478 (referring to the joint judgment of Kitto and Owen JJ in Beecham Group Limited v Bristol Laboratories Pty Limited (1968) 118 CLR 618): 'By using the phrase "prima facie case", their Honours did not mean that the plaintiff must show that it is more probable than not that at trial the plaintiff will succeed; it is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial.'

25 Tristar has raised extensive submissions both before the Commission and before Edmonds J in support of its contention that s 16(1) of the WPR Act operates to invalidate the Inquiry because of the introduction of s 16(1) of the WPR Act. Only if the Court comes to the conclusion that there is a 'sufficient likelihood of success' (see O'Neill (2006) 229 ALR 478) in Tristar's case should the Court then consider granting an interlocutory injunction. The Court is required to scrutinise the claim to satisfy itself at least that there is a 'likelihood of success' before proceeding to grant such relief. In Australian Broadcasting Corporation v Lenah Game Meats Pty Limited (2001) 208 CLR 199, Gleeson CJ at 217 said: 'In McCarty v North Sydney Municipal Council (126), the Chief Judge in Equity described the proposition that a plaintiff seeking an interlocutory injunction must show at least a probability that he will succeed in establishing his title to the relief sought at the final hearing as "so well established that no authority is really needed in support of it".'

26 It does not follow that the Court is required as of course, to grant an interlocutory injunction if a claim is made that is merely arguable. Despite the submissions of Senior Counsel for Tristar concerning the effect of the Terms of Reference, particularly the submission claiming that the first term was directed at the employer and employee relationship within Tristar, I am not satisfied that Tristar has established a 'fair prima facie case and a fair probability of being able to succeed in that case at the hearing.': see Roper CJ in Linfield Linen Pty Ltd v Nejain (1951) 51 SR (NSW) 280 at 281. 27 The Court has considered the submission of Tristar and critically examined the findings of the Commission concerning the effect of s 16(1) of the WPR Act arising from such examination. The effect of s 16(1) of the WPR Act is arguable, but the Court is unable to draw the conclusion to the requisite standard to justify the grant of injunctive relief. That is, the Court is not satisfied that there is a 'probability' that Tristar will succeed on this question. Accordingly, the Court finds that a serious question to be tried, as that term has been interpreted by the above authorities, has not been established.

Balance of convenience 28 In determining the harm that might be sustained by Mr Hong if the injunction is not granted, the evidence adduced by Mr Hong must be considered. Relevantly, his affidavit states such alleged prejudice as follows: '8. I reside and work in Adelaide, South Australia. Although I am required to travel during the course of my employment, it is difficult for me to perform my duties as a Managing Director of the Arrowcrest Group if I am required to give evidence in Sydney on 23 March 2007. 9. The Arrowcrest Group conducts a large business and many negotiations occur with respect to potential contracts and deals within and outside of Australia I am most concerned about being compelled to give evidence before the Inquiry in that I may be forced to reveal information or produce documents on behalf of Tristar that are of a commercially confidential nature. This could result in Tristar specifically and the Arrowcrest Group generally suffering detriment. 10. On or about 19 February 2007 the Office of Workplace Services commenced a prosecution against Tristar in the Federal Court of Australia alleging a number of issues including that Tristar has "injured" their workers because of an alleged failure to provide work to these workers. The prosecution before the Federal Court deals with many similar issues as those encompassed in the terms of reference and therefore I am concerned that being compelled to give evidence in the Inquiry could prejudice Tristar's position.' 29 The inconvenience to Mr Hong in travelling to New South Wales to answer the summons can be readily disregarded and it is not seriously advanced as a reason relating to the balance of convenience. The Court also gives negligible weight to the consideration that Mr Hong might find it difficult to perform his duties. However the necessity to answer questions and divulge information is relied upon. As was pointed out by Edmonds J, the summonsed parties in Re Cortaus 20 ACSR 576 'were parties to the proceeding itself' (see Tristar Steering [2007] FCA [12]). His Honour was clearly mindful that the summonsed parties were parties to the appeal pending before the Full Court. Such consideration may have substantially dissipated in view of the leave granted to join Mr Hong as a party to the application. 30 Despite this amendment, I consider that the decision of Branson J in Re Cortaus 20 ACSR 576 is distinguishable. Unlike the facts relied upon for the relief claimed in that decision Mr Hong has not complained that his civil liberties might be infringed. Rather his claim for relief is based on entirely different grounds, namely his concern 'about being compelled to give evidence before the Inquiry in that I may be forced to reveal information or produce documents on behalf of Tristar that are of a commercially confidential nature.' Mr Hong was also concerned that he might be required to reveal information concerning other litigation before this Court which could 'prejudice Tristar's position'. 31 The Court is required to determine 'the practical consequences likely to flow from the interlocutory order sought' see: O'Neill (2006) 229 ALR [71] per Gummow and Hayne JJ. Section 164(3)(a) of the IR Act provides that the Commission may make a non-disclosure order if it is satisfied 'that it is necessary to do so in the interests of justice' (see s 164A(3)(b)). Further, the Commission, at para [85] of its decision, referred to the protection provided by the principle against self incrimination: see Environmental Protection Authority v Caltex Refining Co Pty Limited (1993) 178 CLR 477 at 548. The risk that Mr Hong may be exposed to self incrimination is not by itself a determinative consideration but merely a factor for the Court to take into account. However Mr Hong's concerns can be addressed, if justified, during the Commission's hearing in light of the protection provided by s 164(3)(a) of the IR Act and established principles relating to self-incrimination. The Commission has the same power in relation to the conduct of hearings before it as does the Supreme Court (see s 164(1) of the IR Act). 32 In assessing the balance of convenience, the respondent's convenience must also be considered. If the injunction were granted, its operation may seriously interfere with the function of the Inquiry and possibly have the effect of wholly frustrating its investigations into an aspect which may be vital for the purposes of the Commission's deliberations. 33 The Court is satisfied that the balance of convenience or the 'balance of justice' (see Donaldson MR in Francome and Another v Mirror Group Newspapers Ltd and Others (1984) 2 All ER 408 at 413) is in favour of the relief sought being declined. 34 Since Mr Hong was not a party to the proceedings before Edmonds J, the Court on this application has approached the issue of the claim for relief as an entirely new matter, even though Mr Hong has been intimately involved, as Managing Director, in the management of Tristar and as such may be assumed to have been the 'mind of the company' (see: Tesco Supermarkets Limited v Nattrass [1972] AC 153 at 170). As a consequence, it becomes unnecessary for the Court to determine whether the relief claimed in paragraph [3] of the application before Edmonds J is the same or substantially the same as the relief now claimed. The Court observes that there is a difference only to the extent that the parties were different before his Honour and the prayer for relief before his Honour as set out in Order 3 thereof sought to restrain the issue of any summons, whereas the relief now claimed seeks to restrain the Commission from calling upon the summons. 35 There is one aspect of his Honour's judgment however which is significant, and which would apply with the same effect in relation to the present application, namely the finding at paragraph [7] as follows: 'Moreover, there is no issue that the Commission's report to the Minister cannot affect the legal rights and obligations of Tristar.'

Based upon the available evidence, the same observation applies with equal force to Mr Hong. 36 For the reasons referred to above, the Court in the exercise of its discretion, declines to grant the relief claimed by the applicants. I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy.

Counsel for the Applicants: N. Perram SC, A. Moses, A. Kuklik

Solicitor for the Applicant: Moray & Agnew Solicitors

Counsel for the Respondent: S. Crawshaw SC, D. Chin

Solicitor for the Respondent: Crown Solicitor's Office