FEDERAL COURT OF AUSTRALIA The Australian Industrial Relations Commission and the Construction, Forestry, Mining & Energy Union; Ex parte Hail Creek Coal Pty Ltd [2003] FCAFC 322 PRACTICE & PROCEDURE – application for stay of order – no exceptional circumstances demonstrated Australian Nursing Federation; Ex parte State of Victoria (1993) 112 ALR 177 cited THE HONOURABLE VICE PRESIDENT IAIN ROSS, THE HONOURABLE SENIOR DEPUTY PRESIDENT DAVID DUNCAN & COMMISSIONER KENNETH BACON; members of the Australian Industrial Relations Commission AND THE CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION EX PARTE; HAIL CREEK COAL PTY LTD N860 of 2003 LEE, GOLDBERG & WEINBERG JJ 18 DECEMBER 2003 PERTH (BY VIDEO LINK) IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N860 OF 2003 BETWEEN: THE HONOURABLE VICE PRESIDENT IAIN ROSS, THE HONOURABLE SENIOR DEPUTY PRESIDENT DAVID DUNCAN & COMMISSIONER KENNETH BACON; members of the Australian Industrial Relations Commission AND: THE CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION EX PARTE; HAIL CREEK COAL PTY LTD JUDGES: LEE, GOLDBERG & WEINBERG JJ DATE OF ORDER: 18 DECEMBER 2003 WHERE MADE: PERTH (BY VIDEO LINK) THE COURT ORDERS THAT: 1. The application for a stay of part of the order made by the Australian Industrial Relations Commission on 25 July 2003 be dismissed. 2. Costs of the application be reserved. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N860 OF 2003 BETWEEN: THE HONOURABLE VICE PRESIDENT IAIN ROSS, THE HONOURABLE SENIOR DEPUTY PRESIDENT DAVID DUNCAN & COMMISSIONER KENNETH BACON; members of the Australian Industrial Relations Commission AND: THE CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION EX PARTE; HAIL CREEK COAL PTY LTD JUDGES: LEE, GOLDBERG & WEINBERG JJ DATE: 18 DECEMBER 2003 PLACE: PERTH (BY VIDEO LINK) REASONS FOR JUDGMENT THE COURT: 1 This is an application by the prosecutor for an interlocutory order from this Court staying the operation of clause 4, save for clause 4.2, of an order made by the Full Bench of the Australian Industrial Relations Commission ("the Commission") on 25 July 2003. By a proceeding commenced in the High Court on 22 September 2003, remitted to this Court on or about 19 October, the prosecutor seeks orders for writs of prohibition, mandamus and certiorari in respect of the foregoing Commission proceeding and order. 2 For the purposes of this application it may be accepted that the prosecutor has an arguable case for the relief it seeks. Having regard to the principles set out by McHugh J in Australian Nursing Federation; Ex parte State of Victoria (1993) 112 ALR 177, the real question in the application is whether exceptional circumstances have been demonstrated by the prosecutor to warrant interference with an order obtained by the respondent in respect of an issue that, in one form or another, has been before the Commission for the past five years. 3 The onus is on the prosecutor to show some particular detriment or untoward result if the order were allowed to continue to operate according to its terms. In that regard the prosecutor relies in particular on the affidavit of Paul Michael Davies sworn 3 December 2003. The affidavit material presents an equivocal position. It does not suggest that imminent harm will befall the prosecutor if the order is allowed to continue to operate as it has since 25 July 2003. 4 In summary, there is a paucity of material to support a ground on which a stay could be ordered by this Court and the application for a stay must be refused. 5 Costs of the application will be reserved. I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of their Honourable Justices Lee, Goldberg & Weinberg. Associate: Dated: 3 February 2004 Counsel for the Prosecutor: Dr C.N. Jessup QC, F. Parry SC Solicitors for the Prosecutor: Freehills Counsel for the Respondent: R.J. Burbidge QC, B. Docking Solicitors for the Respondent: Whyburn & Associates Date of Hearing: 18 December 2003 Date of Judgment: 18 December 2003