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[2003] FCA 173
Federal Court of Australia
2003-02-26
Carr J
Original judgment source is linked above.
introduction 1 The Court has before it two motions (one in each of the principal applications) for orders that certain questions be tried as separate questions. The factual and procedural background and the issues raised in each of those applications were described in my reasons for judgment for dismissing applications for interlocutory injunctions which were published on 12 February 2003. I do not intend to repeat any of that description except where necessary. Those reasons are intended to be read with these reasons and I use the same abbreviations when referring to the parties and the like.
Application w311 of 2002 2 In application W311 of 2002 the State union seeks the following order: '1. That pursuant to Order 29 of the Rules of the Court, the following issue be decided by the Court as a separate question: Whether the North West Shelf Project (CBI Constructors Pty Ltd) Phase 4 Agreement 2001 and the North West Shelf Project (CBI Constructors Pty Ltd) Phase 4 Civil Works Agreement 2001 referred to in the Schedule to the Amended Application herein, are agreements validly made and validly certified in accordance with Part VIB of the Workplace Relations Act 1996 (Cth).'
Application w346 of 2002 3 In this application the Federal union, by a similar motion seeks the following order: "1. That pursuant to Order 29 of the Rules of the Court, the following issues be decided by the Court as separate questions: A. Whether the North West Shelf Project (Brambles Australia Limited) Phase 4 Civil Works Agreement 2001 and the North West Shelf Project (Brambles Australia Limited) Mechanical Phase 4 Civil Works Agreement 2001 are agreements validly made and validly certified in accordance with Part VIB of the Workplace Relations Act 1996 (Cth). B. Whether the North West Shelf Project (Wylie & Skene Pty Ltd) Phase 4 Civil Works Agreement 2001 is an agreement validly made and validly certified in accordance with Part VIB of the Workplace Relations Act 1996 (Cth)."
the submissions and my reasoning 4 Although, as I explained in my earlier reasons, different issues are raised in each of the two applications, they are related applications with a significant degree of overlap between them. Accordingly, I propose to give a combined set of reasons in respect of both motions. It will be recalled that in application W311 of 2002 the issues raised included the following: (a) whether the provisions of Division 2 of Part 2 of the State Act are inconsistent with the provisions of Part IX Division 11 of the Federal Act; (b) whether the provisions of Division 2G of Part 2 of the State Act are inconsistent with the Certified Agreements; (c) whether there is an inconsistency, within the meaning of s 109 of the Constitution, between the rights of entry claimed by Mr McDonald and the State union under the State Act on the one hand and the Federal Act on the other; (d) whether the State union can establish a breach of the provisions of the State Act in respect of the events of 8 October 2002; (e) whether, in particular, the State union can establish the requisite purpose for entry and the requisite suspicion of any alleged breach of the State Act; and (f) whether injunctive relief should be granted against Mr McDonald. 5 One of the main submissions made on behalf of the State union, put at its shortest, is that the proposed separate question has the potential to dispose of the issue of inconsistency between the State Act and provisions of the Certified Agreements, because the invalidity of the Certified Agreements would make that issue moot. 6 The question whether the Certified Agreements are valid is also in issue in application W346 of 2002, although it seems to be common ground that it is not as central to that application as it is to application W311 of 2002. Other issues in application W346 of 2002 include: (a) whether on 13 December 2002 there was, in fact, a contravention of s 285A(2) and/or (4) of the Federal Act; (b) in particular, whether the Federal union can establish the requisite purpose for entry and the holding of the requisite suspicion of any alleged breach of the Federal Act; and (c) whether in respect of s 285C of the Federal Act entry was sought for the requisite purposes. 7 In application W311 of 2002, Woodside relies upon the two Certified Agreements as a substantial basis for the relief which it seeks. In its defence the State union denies that the Certified Agreements were validly made or validly certified. In summary, the State union contends that, on the facts, the Certified Agreements were not Greenfields agreements within s 170LL of the Act and should not have been so certified. It contends that the CBI (and the contractors sued in application W346 of 2002) did not establish new businesses when they embarked upon the execution of the work in Phase IV, but were simply carrying on already existing businesses. As I mentioned in paragraph 15 of my earlier reasons, the parties opposing that submission (and the Minister) contend that the execution by those contractors of each of those respective works is a "project or undertaking" within the meaning of s 170LB(1) which was itself a "single business" within the meaning of s 170LL and was, at the relevant time, "a new business". 8 The State union and the Federal union (hereinafter together referred to as the CFMEU) submit that: · the proposed separate questions are of relatively narrow compass both factually and legally; · the factual situation is likely to be largely uncontentious; · the argument will be predominantly about the construction of s 170LL of the Act and its application to the circumstances of the Certified Agreements; · the matter is "ripe" for separate and preliminary determination because it is "a central issue in contention between the parties, the resolution of which will … substantially narrow the field of controversy" - quoting Kirby J, president of the Court of Appeal in CBS Productions Pty Ltd v O'Neill (1985) 1 NSWLR 601 at 607-8. This is said to be because the effect of the Certified Agreements in relation to the State Act represents a substantial part of Woodside's case and if the Certified Agreements are struck down as invalid, that part of the case cannot proceed; · hearing and deciding the proposed separate questions will contribute to the more effective case management of the proceedings as a whole, because it will facilitate the referral of the central Constitutional question in the case to a Full Court as proposed in the State union's earlier notice of motion for a case stated; · the Constitutional question is important in view of analogous provisions in comparable legislation in other parts of Australia and for that reason should be decided expeditiously; and · the proposed separate questions are entirely suitable for determination as separate questions for the further reason that the factual issues are confined and separate from the issues in the rest of the case and the legal issues are similarly narrow and focused. 9 It is common ground between the parties that if an order is made for a separate question to be tried in application W311 of 2002, it should be similarly granted in application W346 of 2002. 10 The AMWU and AWU do not oppose the motions. They say that the proposed separate question is the only issue which concerns them and the procedure will provide some cost savings for them. Otherwise, it will not affect the preparation of their case. 11 Woodside, the employer respondents and the Minister oppose the motions. I do not propose to summarise all of the arguments put in opposition. In essence, the opposition is based on the proposition that the most economical and expeditious way of disposing of both applications is to proceed with a trial of all of the facts and law at the one time in accordance with the ordinary rule. The opposing parties submit that there will not be any savings of cost or time in having a trial of the separate questions. They refer to the possibility of separate appeals on the separate questions and the likelihood that the same witnesses will be called upon to testify at the hearing of the separate questions and at trial. 12 In reply, the CFMEU submits that one result of deciding the separate questions is to remove current objections to the Constitutional questions being dealt with by way of a case stated to a Full Court. They further submit that a determination that the Certified Agreements are invalid would provide a real prospect for resolving the proceedings by agreement. 13 The parties opposing the motions dispute those contentions.
my reasoning 14 There was little, if any, dispute between the parties as to the relevant factors to be taken into account in the exercise of the Court's discretion whether to order a trial of separate questions. I do not propose to recite the authorities here, save to refer directly to two of the cases. 15 In Famel Pty Ltd v Burswood Management Ltd (1990) ATPR 41-004 at 51086 French J said: 'The question in the end is one of case management and the identification of the most economical and expeditious way of disposing of the proceedings.' 16 I refer also to the most useful survey of the approaches taken to determining the exercise of this discretion which was conducted by Branson J in Reading Australia Pty Ltd v AMP Society [1999] FCA 718. 17 In my view, the proposed separate questions raise mixed issues of fact and law which in themselves will require a substantial hearing, quite possibly extending for several days. There is no significant agreement on the facts. My impression is that a considerable amount of evidence will have to be called at the hearing of the proposed separate questions. That in itself would not rule out the trial of separate questions if that procedure reduced delay, saved costs or even had a real chance of doing so, but I do not think that is the case here. I think that a considerable number of witnesses will need to give evidence about the nature of the employer respondents' businesses generally and in particular their business on the Burrup Peninsula, and findings of fact will need to be made. 18 I think that it is probable that some of the witnesses who would give evidence at the trial of the separate questions would also need to be called to give evidence on the further issues which will remain to be decided. Questions of their credibility might well have to be decided before they gave their evidence later on the other issues. Apart from the inconvenience to the witnesses (which I think is a relevant factor these days in the administration of justice) it would, in my view, be undesirable to require a judge to decide whether a witness was credible, without having heard all of his or her evidence in the matter. There may be pressing circumstances in which the interests of justice require this to be done, but I do not think that these matters fall into that category. 19 I consider it likely, given the importance of the questions to both sides, that there would probably be appeals on the separate questions no matter which way they were decided. This would add to the delay and, probably, to the expense involved in determination of the two principal applications. Mr H Borenstein SC, senior counsel for the CFMEU, suggested that those appeals could be heard and determined by the same Full Court to which the proposed case would be stated. For the reasons advanced by Mr R L Le Miere QC, senior counsel for the employer respondents, in argument this morning, I consider that such a course would or might well be impractical. For example, if the Certified Agreements were found, after the trial of the separate questions, to be invalid and appeals were instituted the case stated might well be on facts contrary to the findings below. It would be most unusual for a Full Court to be asked to hear a case stated on the assumption that the appeal would be upheld. The appeal might also be on questions of mixed fact and law. 20 I take into account that even after the decisions on the proposed separate questions, there would still be significant and substantial other issues left unresolved and which would require determination: see CBS Productions Pty Ltd v O'Neill at 606. 21 On the other hand, I accept that the determination of the separate questions would substantially narrow the field of controversy. But the degree to which it would do so is, in my opinion, outweighed by the other factual and legal issues which remain for determination and the other factors to which I have referred and also to those to which I will come in a moment. 22 I have considered the CFMEU's submission that decisions on the separate questions would resolve objections to the Constitutional questions being dealt with by way of a case stated. I do not accept that assertion. The authorities show that it is generally undesirable to state a case where the facts are not agreed. Even if the separate questions were determined, I am not satisfied that there would be no unresolved factual issues having a bearing on the Constitutional issues. I think that this is a matter where the Constitutional issues should be decided on a firm basis of facts as found by the trial judge. 23 As to the prospects that a determination that the Certified Agreements are invalid would provide a real prospect for the resolution of the proceedings by agreement, I doubt that proposition. My impression of the evidence and the manner in which these cases has been fought is that in those circumstances agreement would still be unlikely. It would be more likely, as I have already mentioned, that appeals would ensue and that the other issues which I have mentioned would be pressed. I accept that impressions about the unlikelihood of settlement of a case often turn out to be wrong. But there are other factual and legal issues which I have earlier mentioned that I think will have to go to trial eventually. That should happen, in my view, earlier rather than later. 24 As Kirby and Callinan JJ observed in Tepko Pty Ltd v Water Board (2001) 206 CLR 1 at [168-169]: 'The attractions of trials of issues rather than of cases in their totality, are often more chimerical than real. Common experience demonstrates that savings in time and expense are often illusory, particularly when the parties have, as here, had the necessity of making full preparation and the factual matters relevant to one issue are relevant to others, and they all overlap. . . . …there is an additional potential for further appeals to which the course of the trial on separate issues may give rise. Indeed, that could occur here were this appeal to be allowed and a retrial had in which the remaining issues of causation and damages were decided. Single-issue trials should, in our opinion, only be embarked upon when their utility, economy, and fairness to the parties are beyond question.' 25 I think that those remarks are particularly applicable to these two motions. 26 I take into account the fact that the hearing of these applications has been expedited and that a Judge is ready to hear the cases in about a fortnight's time. I acknowledge that the CFMEU would prefer that hearing to be devoted to the proposed separate questions. But in my view to take that course would inevitably lead to a delay in the final disposition of these two cases and would also probably add significantly to the costs and inconvenience of all concerned. Some 40 affidavits were filed in relation to the applications for urgent interlocutory relief. My impression is that a lot of the work that went into the preparation of those affidavits and the preparation for those applications will save a considerable amount of work in the getting up of these cases for trial and in the presentation of the evidence at the trial. I note the position adopted by the AMWU and the AWU and some possible costs savings for them, but I consider that that factor is outweighed by the other matters to which I have referred. 27 After taking into account the factors advanced by the State union and the Federal union in support of their motions, I am not persuaded that a determination in advance of the trial of the proposed separate questions would be an economical, just or expeditious way of conducting and determining the two applications. 28 For those reasons the motions will be dismissed. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of Justice Carr.
Associate: Dated: 29 October 2003 Counsel for the Applicant and First Cross-Respondent in application W311 of 2002 and for the First Respondent in application W346 of 2002: Mr H J Dixon SC and Ms W F Buckley Instructed by Mesrs Blake Dawson Waldron
Counsel for the First Respondent in application W311 of 2002: Mr A J Randles Instructed by Messrs Randles, Read & Associates
Mr H Borenstein SC and Mr M Bromberg Counsel for the Second Respondent and Cross-Claimant in application W311 of 2002 and for the Applicants in application W346 of 2002: Instructed by Messrs Slater and Gordon
Counsel for the Third Respondent/Second Cross-Respondent in application W311 of 2002 and for the Second and Third Respondents in application W346 of 2002: Mr R L Le Miere QC and Mr D S Ellis Instructed by Messrs Freehills
Ms R Cosentino Counsel for the Fourth and Fifth Respondents in application W346 of 2002 Instructed by Messrs Gibson & Gibson
Counsel for the Minister for Employment and Workplace Relations as Intervenor Mr K J Martin QC and Mr M G Lundberg Instructed by Messrs Mallesons Stephen Jaques
Date of Hearing: 26 February 2003
Date of Judgment: 26 February 2003
Woodside Energy Ltd
McDonald