FEDERAL COURT OF AUSTRALIA National Road Transport Association Ltd v Road Safety Remuneration Tribunal [2016] FCAFC 56 File numbers: QUD 226 of 2016 QUD 228 of 2016 Judges: JESSUP, BUCHANAN AND RANGIAH JJ Date of judgment: 7 April 2016 Catchwords: PRACTICE AND PROCEDURE – Application for prerogative remedies in respect of orders and decision of statutory tribunal – Interlocutory application for stay of order and decision – Whether prima facie case of invalidity – Whether strong case – Whether exceptional circumstances shown – Interests of parties and wider community – Imminence of final hearing. Legislation: Road Safety Remuneration Act 2012 (Cth) ss 19, 20, 22, 23, 24, 25, 26, 27, 32 Judiciary Act 1903 (Cth) s 39B Cases cited: Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57 Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 Re Australian Nursing Federation; Ex parte State of Victoria (1993) 112 ALR 177 Re Griffin; Ex parte Professional Radio and Electronics Institute of Australia (1988) 167 CLR 37 Date of hearing: 6 April 2016 Registry: Queensland Division General Division QUD 226 of 2016: National Practice Area Administrative and Constitutional Law and Human Rights QUD 226 of 2016: Division Fair Work Division QUD 228 of 2016: National Practice Area Employment and Industrial Relations QUD 228 of 2016: Category: Catchwords Number of paragraphs: 58 Counsel for National Road Transport Association Ltd: Mr R Derrington QC with Mr M Spry Solicitor for National Road Transport Association Ltd: Cooper Grace Ward Lawyers Counsel for the Road Safety Remuneration Tribunal: The Road Safety Remuneration Tribunal filed a submitting notice Solicitor for the Road Safety Remuneration Tribunal: Australian Government Solicitor Counsel for the Transport Workers' Union: Mr J Glissan QC with Mr M Gibian Solicitor for the Transport Workers' Union: Maurice Blackburn Lawyers Counsel for the Applicants in QUD 228 of 2016: Mr Y Shariff Solicitor for the Applicants in QUD 228 of 2016: Mr S Smith of Australian Industry Group Counsel for the Commonwealth of Australia (Department of Employment) (Intervener): Dr C Ward SC with Dr J Stellios Solicitor for the Commonwealth of Australia (Department of Employment) (Intervener): Minter Ellison ORDERS QUD 226 of 2016 BETWEEN: NATIONAL ROAD TRANSPORT ASSOCIATION LTD Applicant AND: ROAD SAFETY REMUNERATION TRIBUNAL First Respondent TRANSPORT WORKERS' UNION OF AUSTRALIA Second Respondent COMMONWEALTH OF AUSTRALIA (DEPARTMENT OF EMPLOYMENT) Intervener JUDGES: JESSUP, BUCHANAN AND RANGIAH JJ DATE OF ORDER: 7 APRIL 2016 THE COURT ORDERS THAT: 1. The applicant's application for interlocutory relief be dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. ORDERS QUD 228 of 2016 BETWEEN: AUSTRALIAN INDUSTRY GROUP First Applicant AUSTRALIAN CHAMBER OF COMMERCE AND INDUSTRY Second Applicant LINFOX AUSTRALIA PTY LTD Third Applicant TOLL TRANSPORT PTY LTD Fourth Applicant AND: ROAD SAFETY REMUNERATION TRIBUNAL First Respondent TRANSPORT WORKERS' UNION OF AUSTRALIA Second Respondent COMMONWEALTH OF AUSTRALIA (DEPARTMENT OF EMPLOYMENT) Intervener JUDGES: JESSUP, BUCHANAN AND RANGIAH JJ DATE OF ORDER: 7 APRIL 2016 THE COURT ORDERS THAT: 1. The applicants' application for interlocutory relief be dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT The Court: 1 Each of the two proceedings now before the court relate to an order and a decision of the Road Safety Remuneration Tribunal ("the Tribunal") under the Road Safety Remuneration Act 2012 (Cth) ("the RSR Act"). The order, the Contractor Driver Minimum Payments Road Safety Remuneration Order 2016 ("the December order"), was made under s 19 of the RSR Act on 18 December 2015. The decision ("the April decision") was made on 1 April 2016, and involved the refusal by the Tribunal to vary the December order pursuant to s 32 of the RSR Act. 2 Both proceedings involve challenges under s 39B of the Judiciary Act 1903 (Cth) to the legality of the December order and the April decision. The first proceeding, QUD226/2016, is brought by National Road Transport Association Ltd ("NRTA") and names the Tribunal and now the Transport Workers' Union of Australia ("the TWU") as respondents. The second proceeding, QUD228/2016, is brought by Australian Industry Group ("AI Group"), Australian Chamber of Commerce and Industry, Linfox Australia Pty Ltd and Toll Transport Pty Ltd, and names the Tribunal and the TWU as respondents. 3 On 1 April 2016 in QUD226/2016, on the application, ex parte, of NRTA, Collier J stayed the operation of the December order and the April decision pending further order of the court. The question which arises for present consideration is whether those stays should continue pending the hearing and determination of that proceeding. No similar interim orders were made in QUD228/2016, but the applicants in that proceeding seek interlocutory stays in terms which are relevantly indistinguishable from those sought to be continued in QUD226/2016. 4 At the outset, something should be said about the form of the orders made, on the application of the NRTA, on 1 April 2016. The court granted, in effect, interim injunctions under circumstances which were said to be urgent, and without notice to other interested parties. An order of this nature, in our respectful view, should always operate for the minimum time necessary for the other parties to be notified and brought before the court, and that time should be specified in the order. That is to say, the order should not be expressed in an open-ended way, or so as to operate pending further order of the court. The onus should always be on the person who obtained an order in such circumstances to persuade the court that the order should continue beyond the limited time originally stated in it, as made ex parte. The present interlocutory application in QUD226/2016 has been approached on that basis. It is for NRTA to make good its case for the continuation of the stay orders made on 1 April 2016, or for the making of an equivalent interlocutory injunction. Needless to say, the applicants in QUD228/2016 are under the same obligation. 5 The December order arose out of lengthy proceedings before the Tribunal, but it is sufficient to commence with the draft road safety remuneration order prepared and published under s 22 of the RSR Act on 26 August 2015. Subsequently, the Tribunal received submissions from interested parties, including a lengthy submission on behalf of interests which included NRTA and AI Group dated 30 September 2015. It was after the Tribunal had considered those submissions, and many other submissions filed conformably with s 24 of the RSR Act, that it made the December order on 18 December 2015. 6 The December order dealt with the matter referred to in s 27(2)(b) of the RSR Act, namely, conditions of minimum rates of remuneration and conditions of engagement for contractor drivers. In its reasons for decision accompanying the making of that order, the Tribunal said: This decision establishes minimum payments for contractor drivers in the road transport industry providing a road transport service involving distribution operations in relation to a supermarket chain and contractor drivers in the road transport industry providing a road transport service involving long distance operations. It also provides for unpaid leave for such contractor drivers, as well as other provisions aimed at promoting the observance of the minimum payments and knowledge about the road safety remuneration orders (RSROs) covering road transport drivers. The December order was to commence on 4 April 2016. 7 On 9 March 2016, AI Group made an application to vary the December order by the deferral of the operative date to 1 January 2017 and by the insertion of the following transitional provision: If, in relation to the provision of a road transport service, immediately prior to the operative date of this Order a hirer is lawfully paying a lower amount to a contractor driver than the amount payable pursuant to the Order, the difference between the amount paid to the driver and the amount payable under the Order shall be referred to as the transitional amount. Where there is a transitional amount for a contractor driver, in lieu of the relevant minimum amount in this Order, the hirer shall pay no less than the following amount to the driver: Operative Date Amount in Order minus 75% of transitional amount 12 months later Amount in Order minus 50% of transitional amount 24 months later Amount in Order minus 25% of transitional amount 36 months later Amount in Order At the same time, AI Group sought a stay of the operation of the December order pending the hearing and determination of its application for variation. 8 On 11 March 2016, NRTA made an application to vary the December order by the deferral of the operative date to 1 January 2017, and by making unparticularised variations to "the substantive operation of the 2016 RSRO to rectify the matters specified in Part 3 above". Those matters were the "grounds" upon which NRTA relied, namely: A. The Contractor Driver Minimum Payments Road Safety Remuneration Order 2016 (2016 RSRO) imposes significant obligations on businesses that engage 'contractor drivers' directly or contract with a third party that engages 'contractor drivers'. B. The 2016 RSRO, which mandates minimum rates of payment on an hourly and kilometre basis, fundamentally changes the compliance and commercial landscape for those businesses. C. The definition of a 'contractor driver' under the 2016 RSRO is ambiguous and not adequately defined with the result that the Applicant is unable to determine with any certainty to whom the 2016 RSRO applies. D. The Applicant has been unable to obtain clear and unambiguous advice or guidance from the Fair Work Ombudsman (FWO) about the lawful operation and application of the 2016 RSRO, including for example the definition of a 'contractor driver'. E. To the extent that guidance material is provided by the FWO, that guidance material is inconsistent and incomplete. For example, the current FWO checklist (Current Checklist) purporting to be guidance for contractor drivers covered by the 2016 RSRO: i. is titled 'Checklist for owner drivers' in circumstances where the term 'owner driver' is not defined in the Current Checklist or the 2016 RSRO; ii. does not distinguish between a 'road transport driver' and a 'contractor driver'; iii. uses terminology such as 'most likely' and 'unlikely' to describe a party's status rather than giving definitive guidance; and iv. is significantly different to the original FWO Checklist for owner drivers which was published on the FWO website until in or about February 2016. F. The 2016 RSRO requires hirers to alter the manner and method by which contractor drivers are engaged and as a consequence requires alterations to business practices, payments systems and computer software used by hirers. A 3.5 months period of time from the making of the 2016 RSRO to its commencement on 4 April 2016 is insufficient to allow hirers to complete such alterations. G. The online calculator published by the Tribunal only became available on or about 3 March 2016. H. Hirers of contractor drivers have commercial arrangements in place with customers with fixed transport rates structures that cannot be amended in the short to medium term. As a result the hirers stand to lose significant sums of money because the amounts that must be paid to contractor drivers under the 2016 RSRO are, in some cases, significantly higher than the current commercial rates that are factored into hirer's current commercial arrangements with customers. I. The rates prescribed by the 2016 RSRO result in hirers being required to pay rates to contractor drivers for some routes, particularly in rural areas, that are significantly higher than current industry norms. This has the result that the commercial considerations referred to in point H are exacerbated in rural and regional areas. At the same time, NRTA sought a stay of the operation of the December order pending the hearing and determination of its application for variation. 9 In all, there were some 39 applications for the variation of the December order made between 3 and 22 March 2016. Those applications were considered by the Tribunal in the period which followed. On 15 March 2016, conformably with Div 3 of Pt 2 of the RSR Act as applied by s 32(4) of that Act, the Tribunal prepared a draft variation to the December order. The draft followed the terms of the AI Group application for variation, but the Tribunal made it clear that there should be no assumption that it was thereby disposed to give effect to that application, or to make any variation to the December order. 10 The Tribunal subsequently held hearings in relation to the applications for variation, and the draft which it had prepared. A number of people, including the applicants, made submissions on those matters, and the Tribunal held hearings over the Easter holiday period in 2016. In the result, on 1 April 2016, the Tribunal made what we have described as the April decision, by which it decided not to make the variations to the December order, as sought by NRTA, AI Group and others. 11 The NRTA application in QUD226/2016 was made on 1 April, and amended on 6 April, 2016. It seeks that each of the December order and the April decision be "quashed or otherwise set aside as from the date it was made". It seeks an order that the NRTA application for variation of the December order be remitted to a differently constituted Tribunal for determination according to law. It seeks a stay of the December order pending the determination by the Tribunal of that application for variation. It seeks declarations as to the invalidity of the December order and the April decision. In each case, the invalidity is claimed to arise "by reason of the non-compliance by the Tribunal with the requirements" of the RSR Act. 12 The AI Group application in QUD228/2016 was made on 4 April 2016, and seeks the quashing, by certiorari, of the December order and the April decision. It seeks an order in the nature of prohibition restraining the Tribunal from taking any step to give effect to the December order, and an order in the nature of mandamus directing the Tribunal to make a road safety remuneration order, if such an order were to be made under the RSR Act, in accordance with law; alternatively, to determine the applications for variation which AI Group and others had made pursuant to s 32(1) of the RSR Act in accordance with law. 13 Late in the day on 1 April 2016, counsel for NRTA appeared before Collier J and obtained, ex parte, the stay order to which we have already referred. 14 The applicants' cases for a continuation of the stay orders were heard on 6 April 2015. The TWU appeared to oppose those applications, and the Commonwealth of Australia appeared, by leave, as an intervener in support of the applications. 15 On an application for an interlocutory restraint in civil proceedings, two questions arise, namely (1) whether 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 trial of the action, the plaintiff will be held entitled to relief; and (2) whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs, or is outweighed by, the injury which the defendant would suffer if an injunction were granted: Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 at 622, 623; Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57 ("O'Neill") at 82, [65]. 16 The present are not, however, conventional civil proceedings. Even in such proceedings, "the governing consideration [is] that the requisite strength of the probability of ultimate success depends upon the nature of the rights asserted and the practical consequences likely to flow from the interlocutory order sought": O'Neill 227 CLR at 84, [71]. This principle leads naturally to the identification of the approach which is appropriate in a setting in which the act of a public regulatory official is sought to be stayed, such as, and most analogously in the present context, the stay of an industrial award. 17 In Re Griffin; Ex parte Professional Radio and Electronics Institute of Australia (1988) 167 CLR 37, Brennan J said at 42: A stay of a Commissioner's decision is exceptional…There are sound reasons for this rule. Decisions of the Commission are made in a climate of industrial relations and of economic conditions which presents a multitude of considerations which the Commission must evaluate in deciding where the merits lie. This Court is concerned solely with the legality of the exercise or purported exercise of the Commission's powers and not with the merits of the decision whose legality is challenged. Exceptional circumstances need to be shown to warrant the making of an order by this Court, before it determines the legality of an impugned decision, which affects the merits of a problem in industrial relations. 18 Likewise, in Re Australian Nursing Federation; Ex parte State of Victoria (1993) 112 ALR 177 at 184 to 185, McHugh J said: An order for a stay of an order, award or judgment must be made under the inherent jurisdiction of the court. It is only in exceptional circumstances that this court will make an order sterilising the operation of an order or award of the Commission before the court has determined the validity of an order or award made by the Commission. In Re Moore; Ex Parte Pillar [(1991) 65 ALJR at 685; 103 ALR 14], Dawson J said: Ultimately, the power to grant a stay is to be found only where it is necessary to preserve the subject matter of litigation, or perhaps where the refusal of the stay would make it difficult in the determination of the proceedings in this Court to grant the relief sought. Although it may be easier to obtain a stay under O 55, r 10 than inherent jurisdiction, the jurisdiction under O 55, r 10 is also one that is to be used sparingly and with caution. Ordinarily, a strong case will need to be shown before a stay will be granted under that rule. In the present case, all parties and the intervener accepted that this was the approach we should take. 19 Turning to the substantive grounds upon which the applicants relied for the grant of interlocutory relief, taken together, and including also the contribution made by the intervener, those grounds came down to ten arguments. We shall deal with them below in what appears to be a logical order, commencing with the applicants' challenges to the validity of the December order. 20 (1) It was submitted that, by departing in substantial respects from the draft order published on 26 August 2015, the Tribunal did not comply with the provisions of Div 3 of Pt 2 of the RSR Act when it made the December order. Sections 22 and 23 of that Act provide as follows: 22 Before making a road safety remuneration order, the Tribunal must prepare and consult on a draft of the order in accordance with this Division. 23 The Tribunal must publish the draft of the order on the Tribunal's website and by any other means the Tribunal considers appropriate. Under s 24, specified persons and bodies are required to have a reasonable opportunity to make written submissions to the Tribunal in relation to the draft. Under s 25, the Tribunal is permitted, but not required, to hold a hearing in relation to the draft. Section 26 provides as follows: (1) The Tribunal may make any changes it thinks appropriate to the draft of the order, before making a road safety remuneration order based on the draft. (2) The Tribunal may decide that no road safety remuneration order is to be made based on the draft. If the Tribunal does so, the Tribunal must publish notice of the decision on its website and by any other means the Tribunal considers appropriate. 21 The submission, which in this case was made by NRTA, was that the Tribunal was not empowered, when making its final order as such, to depart radically from the draft which it had published, and upon which it had received comments from interested parties. The argument involves a question of construction to an extent, but, if correct at that level, would also involve a careful assessment of the extent and nature of the differences between the Tribunal's draft of 26 August 2015 and the December order as ultimately made. At the first level, it was submitted on behalf of the TWU, with some force we are bound to observe, that s 26 of the RSR Act empowered the Tribunal to "make any changes it thinks appropriate to the draft of the order" (emphasis added). There is nothing in the RSR Act itself, it was submitted, that would justify limiting the clear intent of this provision. At the second level, the extent of the departures of the December order from the August draft were not, we would have to say, conspicuous features of the submissions advanced on behalf of NRTA. If the assessment was made by counsel that an examination at this level of detail was best left for the trial of the action, we would be disposed to agree. 22 In our consideration of the nature and strength of the prima facie case which the applicants seek to make, we must observe that their project at trial is likely to be significantly complicated, to say the least, by the circumstance that it was not until the institution of the present proceedings that any suggestion was made that the December order was invalid because of the extent of its departure from the draft published in August 2015. In detailed written submissions made to the Tribunal in March 2016, for example, no such suggestion appeared. The prerogative relief which the applicants seek does not issue as a matter of course, and the timeliness of the complaint of unlawful administrative conduct with which such heads of relief are concerned will normally be a factor of some relevance, if not force. For this reason, and also because the constructional aspect of this argument is not, in our assessment at this stage, self-evidently correct, we take the view that the contribution which the argument makes to the strength of the applicants' prima facie case is negligible. 23 (2) It was next submitted that the period of time which was allowed by the Tribunal for commentary upon the terms of the draft published in August 2015 was unreasonably short, to an extent that involved a failure, on the Tribunal's part, to comply with s 24(1) of the RSR Act, which provides as follows: (1) The Tribunal must ensure that the following persons have a reasonable opportunity to make written submissions to the Tribunal for its consideration in relation to the draft of the order: (a) all persons and bodies likely to be affected if a road safety remuneration order based on the draft were to be made; (b) any person or body prescribed by the regulations for the purposes of this paragraph. That is to say, according to NRTA (which advanced this particular argument), the Tribunal did not allow the applicants a "reasonable opportunity" to make written submissions in relation to the draft which it had published. 24 We would have to say, with respect to those involved, that this argument appears to be incongruous with the way in which the applicants conducted themselves in the period following the publication of the draft order on 26 August 2015. NRTA, AI Group and other persons with like interests made a substantial and, we would say, very professionally prepared written submission to the Tribunal on 30 September 2015. In the weeks which followed, the Tribunal received further submissions, including submissions in reply. Our attention has not been drawn to any instance in which the applicants protested that the time allowed by the Tribunal for the receipt of submissions was unreasonably short. Without providing any more than our provisional assessment of the quality of this ground, we would permit ourselves the observation that the commencement of a proceeding of the kind now before the court would have been a course open, and naturally available, to the applicants at the time when the Tribunal specified dates for the receipt of commentary upon its August draft. Were it to be seriously suggested that the time allowed by the Tribunal was not reasonable within the meaning of s 24(1), the natural course would have been to approach the court promptly within such a challenge. Rather than following such a course, the applicants participated in the process of consultation required by the Tribunal. 25 At the hearing of these cases, the question arising under the present argument will come down to this: was the period allowed by the Tribunal for the making of comments on its August draft a reasonable one within the meaning of s 24(1) of the RSR Act? On what presently appears, we are provisionally disposed to the view that the applicants will face substantial challenges in their project to secure a negative answer to this question. 26 (3) It was submitted that, in deciding that it would make the December order, the Tribunal did not comply with s 20 of the RSR Act, subs (1) of which provides as follows: In deciding whether to make a road safety remuneration order, the Tribunal must have regard to the following matters: (a) the need to apply fair, reasonable and enforceable standards in the road transport industry to ensure the safety and fair treatment of road transport drivers; (b) the likely impact of any order on the viability of businesses in the road transport industry; (c) the special circumstances of areas that are particularly reliant on the road transport industry, such as rural, regional and other isolated areas; (d) the likely impact of any order on the national economy and on the movement of freight across the nation; (e) orders and determinations made by an Expert Panel of the Fair Work Commission in annual wage reviews and the reasons for those orders and determinations; (f) any modern awards relevant to the road transport industry (see subsection (2)) and the reasons for those awards; (g) the need to avoid unnecessary overlap with the Fair Work Act 2009 and any other laws prescribed for the purposes of this paragraph; (h) the need to reduce complexity and for any order to be simple and easy to understand; (i) the need to minimise the compliance burden on the road transport industry; (j) any other matter prescribed by the regulations for the purposes of this paragraph. All the applicants, and the intervener, made the matter of compliance with s 20(1) an aspect of their complaint as to the legality of the December order. As we understand it, the applicants will point particularly to paras (a), (b), (d), (h) and (i) of this subsection. 27 The difficulty which this submission will confront, on what presently appears, is that, in its reasons for making the December order, the Tribunal expressly adverted to, and ostensibly complied with, the requirements of s 20(1). Indeed, 25 paragraphs of those reasons dealt with this subject, and did so systematically by reference to the lettered paragraphs of the subsection. To the extent that the applicants' case involves the proposition that the Tribunal paid no more than lip service to s 20(1), we are bound to say that such a submission was developed neither systematically nor persuasively. Rather, the point seemed to be that it was self-evident that the December order failed to pass muster under the statutory provision in respects which were so clear as to compel the conclusion that the requirements of the provision were, in point of substance, ignored. 28 On what presently appears, we would say that the bar which the applicants have set for themselves in this department of the case is likely to be a high one. This was an expert Tribunal which had been dealing with the matters then under inquiry for many months. It dealt with the requirements of s 20(1) in a systematic way towards the end of its conclusions, but there was nothing tokenistic about the terms in which it did so. So far as we can see, the Tribunal satisfied itself that the substantive considerations by reference to which it was approaching its task of deciding whether to make a road safety remuneration order sufficiently covered the matters required to be taken into account under s 20(1). At the hearing of these proceedings, the applicants may, of course, succeed in demonstrating that, notwithstanding the language which it used, the Tribunal did not in fact have regard to one or more of the matters listed in the subsection. On the cases which have been presented to us, however, there is no obvious warrant for such a conclusion. 29 (4) In relation both to the December order and to the April decision, it was submitted that the Tribunal had failed to have regard to a circumstance which was, under s 27 of the RSR Act, a required matter for consideration in relation to the specification of the date upon which the December order would commence. 30 Relevantly to the present point, s 27 of the RSR Act provides as follows: (4) The order must specify: (a) the road transport drivers to whom the order applies; and (b) the persons on whom any requirements in the order are imposed; and (c) a commencement date for the order or a series of commencement dates (see subsection (5)); and (d) an expiry date for the order (which must not be later than 4 years after the commencement date, or if there is a series of commencement dates, after the earliest of those dates). (5) The order may take effect in stages (as provided in the order) if the Tribunal considers that it is not feasible for the order to take effect on a single date. 31 It will be noted that an order made under the RSR Act must specify a commencement date or series of commencement dates; and may take effect in stages if the Tribunal considers that it is not "feasible" for the order to take effect on a single date. The applicants' case in relevant respects accepts that the option of providing a series of commencement dates for which s 27(4)(c) provides is intended to pick up the terms of subs (5), and they contend that these provisions thereby require the Tribunal to give attention to the matter of feasibility in all cases. It could not be suggested – and it was not suggested – that the question of feasibility under s 27(5) is justiciable in this court. Rather, it was said that the Tribunal could not make a valid order unless it had first considered whether it was feasible for the order to take effect on a single date. 32 In point of substance, there appears to be little doubt but that the Tribunal gave careful attention to the submission made by AI Group and others that there should be a series of dates on which different aspects of the December order commenced. As already mentioned, a staged implementation of the new regime to which that order gave effect was described as involving "transitional" arrangements. Neither was it suggested that the Tribunal did not give serious attention to the submissions in fact made to it on this subject: in terms, the April decision is positively bristling with references to the "transitional" arrangements which AI Group and others sought. 33 To the extent that the applicants' case now is that the Tribunal did not, in terms, advert to the necessity for a consideration of the question of whether it was not "feasible" for the December order to take effect on a single date (and it is by no means clear that the applicants make such a submission), we can only say that nothing in the material was drawn to our attention by which the applicants, or any party with which they were associated, submitted to the Tribunal that it was not "feasible" for the December order to take effect on a single date. It may be that, at the trial of these cases, something will be found in the evidence which would contradict the position as presently appears, but, consistent with the authorities to which we have referred, we must decide the present interlocutory applications by reference to the material before us. 34 A construction of the relevant provisions of s 27 which, in our view, is as likely to find favour at trial as any other is that the Tribunal must specify a commencement date for any order which it makes, and may specify a series of commencements dates by which the order takes effect "in stages" if it considers that it is not feasible for the order to take effect on a single date. Provisionally, we think it unlikely that these provisions will be held to impose upon the Tribunal an obligation to consider the matter of feasibility in every case which comes before it, whether or not the circumstances obviously call for such a consideration, and whether or not any interested party has raised the matter of feasibility as a problem to be addressed. That is to say, the content of the Tribunal's obligation under these provisions in the circumstances of a particular case will depend very much upon the nature of those circumstances, and how they present. On what appears, it was contended by AI Group and others that the December order should take effect in stages, and the Tribunal gave detailed consideration to that contention. If the evidence remains the same at trial, our assessment is that the applicants' prospect of success on this point is an improbable one. 35 (5) As in the case of the challenge to the December order, so too in their challenge to the April decision, the applicants submitted that the Tribunal did not comply with requirements of s 20(1) of the RSR Act. With respect to the approach which the Tribunal took, and the structure of its reasons given in relation to the April decision, however, we are bound to say that the prospect of this argument succeeding must be regarded as no better than we have assessed above with respect to the like argument advanced in relation to the December order. In its reasons for the April decision, the Tribunal devoted 27 paragraphs to the requirements of s 20(1) and, from what appears, systematically satisfied itself that it had complied with the subsection. In the circumstances, it is sufficient that we reiterate the reasons we have given earlier for the conclusion, which we likewise reach in relation to the April decision, that the prospect of this argument by the applicants are insubstantial. 36 (6) It was submitted on behalf of AI Group that the Tribunal fell into error when it did not accede to the proposal, described as a "consent" one, made by AI Group and other business interests, of the one part and the TWU of the other part for certain staging arrangements in relation to the date of commencement of the December order. In its reasons for making the April decision, the Tribunal described this proposal in the following terms: Late in these proceedings the TWU with the support of Linfox, Toll and the [AI] Group also proposed that the commencement date of the 2016 RSRO remain as 4 April 2016, with 1 October 2016 being the commencement date for its minimum payments clauses and its supply chain contracts clauses concerning auditing. The proposal came with no rationale, was not widely supported and was strenuously opposed by some, including for the reason that it was likely to create confusion. For those reasons, and for reasons given for the rejection of the applicants' transitional proposals more generally, the Tribunal did not act as requested jointly by the TWU, AI Group and others. 37 The way AI Group articulated the jurisprudential basis of this complaint about the course followed by the Tribunal was expressed in its written outline of submissions as follows: The second contention relates to the Tribunal's failure to properly consider or evaluate the consent position put forward by the TWU, Linfox, Toll and the AI Group and/or to reject consideration of it on the basis of irrelevant considerations and/or on the incorrect premise that the TWU had provided no rationale for the consent position. It was said that the TWU had put forward submissions which outlined a "rationale" for the proposal which it jointly made with AI Group. Reference was made to a reason given by the TWU for its support for the proposal in submissions dated 29 March 2016. 38 It is not suggested that the Tribunal was bound to accept the proposal advanced by the TWU and AI Group. The submission now made that the Tribunal failed to consider the proposal (whether on the basis of irrelevant considerations, an incorrect premise or otherwise) is, as it presently appears to us, a somewhat optimistic one. From what appears in the passage to which we have referred, the Tribunal articulated the basis upon which the proposal was rejected, albeit, in the eyes of some at least, it may have done so compendiously. The submission now made that the Tribunal's failure was "properly" to consider the proposal, or to "evaluate" the proposal, is likely to be regarded by the court at trial as little more than an attempt to re-agitate the merits of the matters which were for the Tribunal to consider. On what presently appears, the applicants' task in securing a positive outcome at trial based on this argument is likely to be a challenging one. 39 (7) It was submitted on behalf of AI Group that the Tribunal failed "to properly consider a central contention made by several parties that the [December] order gave rise to practical and legal complexity". In terms at least, this submission (as articulated in AI Group's outline) did not amount to the proposition that the Tribunal had failed to have regard to the matter referred to in s 20(1)(h) of the RSR Act, but we are prepared, favourably to AI Group, so to regard it. A premise upon which the submission was based was that the Tribunal had found "that there was, and is, uncertainty and confusion" resulting from the making of the December order. The evidence presently before the court provides no support for such a premise. From what the Tribunal said in its reasons of 1 April 2016, the concern was that an unjustified perception of uncertainty and confusion as to the meaning and operation of the December order had been generated by others. There is no suggestion that the Tribunal itself shared such perceptions. Wherever the rights and wrongs of the matter in this respect lie, the notion that the Tribunal fell into legal error by failing to give consideration to the subject mandated for consideration by s 20(1)(h) of the RSR Act gains no support in the material now before the court. Beyond that, we would say only that the AI Group submission in this respect came close to providing encouragement for the court to revisit the wisdom of the April decision. So to proceed would, of course, be well beyond the role of the court in proceedings such as the present. 40 (8) It was submitted on behalf of the intervener that the Tribunal fell into legal error in the procedures for consultation which it deployed in the period following the applications to vary the December order made by the applicants and others in March 2016. The power to vary a road safety remuneration order arises under s 32 of the RSR Act, subs (3) and (4) of that section providing as follows: (3) In deciding whether to vary the order, the Tribunal must have regard to the matters in section 20. (4) Before varying the order, the Tribunal must prepare and consult on a draft of the variation in accordance with Division 3, as if references in that Division to making an order were references to varying an order. It was submitted that, conformably with s 32(4) in relation to the variation applied for, the Tribunal was obliged to comply with the terms of ss 22 and 23 of the RSR Act, which have already been referred to. It was submitted that the draft which the Tribunal was obliged to prepare, and by reference to which it was obliged to consult, had to be a draft of the order which it then provisionally intended to make. What actually happened, as noted above, was that the Tribunal used the terms of the variation for which AI Group applied as the relevant consultation draft, while at the same time making it clear that it had not itself formed any provisional view that a variation in those terms would, or even might, be appropriate. By proceeding in this way, as it was submitted on behalf of the intervener, the Tribunal failed to comply with the imperative provisions of Div 3 of Pt 2 of the RSR Act, thereby providing a basis for the grant of mandamus in proceedings such as the present. 41 At base, the Tribunal's obligation in relevant respects is that set out in s 32(4) of the RSR Act: to prepare and to consult on a draft of the relevant variation. However, this obligation, as expressed, is a preliminary to a variation of a road safety remuneration order. The opening words of s 32(4) are, "Before varying the order…". As it seems to us, there is a very real question whether, as a matter of construction, s 32(4) has any operation in a situation in which the order therein referred to is never varied, as was the case here. This is, doubtless, a matter which the intervener would need to address at trial (assuming, which we are prepared to do for the moment, that the intervener will seek to be heard, and will be heard, at that stage). 42 If the intervener is able to surmount that hurdle, there remains the further constructional question whether the draft for which s 22 of the RSR Act provides must necessarily correspond with a provisional view which the Tribunal has reached at the time with respect to the terms to be included in the final order. We are prepared to say nothing further at this stage than that this is a constructional question upon which different views would be legitimately available. 43 Beyond that, we would regard the intervener's point as an essentially procedural one, it not having been suggested that any party or interests was, or were, disadvantaged by the course which the Tribunal followed in the present case, and it not having been suggested that any difference was made, ultimately, by the circumstance that the Tribunal followed that course. Whatever might be said at a final hearing in these proceedings, we do not regard this point as raising practical considerations of sufficient relevance or force to bear upon the essentially pragmatic interlocutory task which confronts the court today. 44 (9) More so in their written outline than in arguments developed fully at the hearing, counsel for the intervener raised a series of other, we would have to say subordinate, considerations by reference to which, it was said, the validity of the April decision would, or at least might, be subject to question. We propose to say nothing further about these miscellaneous points than that nothing in them is of sufficient importance, or attraction generally, to influence us in the task to which we have referred. 45 (10) Finally, we mention a submission outlined in writing by counsel for NRTA as follows: The applicant relies on the prima facie case of prejudgment and bias in relation to 1 April decision. Given the overlap in relation to the variously constituted tribunals the apparent bias of the latter decision infects the earlier one. This serious and, we would have to say, very compendious passage in NRTA's outline was not the subject of any development, nor even reference, in submissions made on its behalf, save that counsel declined the opportunity to withdraw, or not to press, the contention when such an opportunity was presented by the court. The unsatisfactory features of advancing an undeveloped allegation of bias and prejudgment in this way need scarcely to be emphasised. We propose to say nothing more about this aspect of NRTA's case. 46 Neither individually nor in any conceivable combination do the arguments advanced by the applicants present a prima facie case of the strength sufficient to justify the grant of an interlocutory stay as required by the authorities. Far from demonstrating self-evidently strong prospects, we would express the provisional assessment that the applicants' grounds lie well towards the weaker end of the spectrum. Consistently with O'Neill and the other authorities to which we have referred, that conclusion does not, of itself, produce the result that the interlocutory stay sought by the applicants should not be granted. As always in such cases, it is necessary to take account of where the balance of convenience – or, perhaps more accurately in the circumstances of the present case, the balance of disadvantage – lies; and to consider also such other discretionary matters as may be relevant to that question. It is, therefore, to those aspects that we next turn. 47 The Tribunal is a statutory body established under an Act of Parliament intended to promote safety and fairness in the road transport industry. The object of the Act set out in s 3 is to promote safety and fairness in the road transport industry by doing a number of things, including the following: (a) ensuring that road transport drivers do not have remuneration-related incentives to work in an unsafe manner; (b) removing remuneration-related incentives, pressures and practices that contribute to unsafe work practices; (c) ensuring that road transport drivers are paid for their work, including loading or unloading their vehicles or waiting for someone else to load or unload their vehicles; … Self-evidently, there is a strong public interest in a road safety remuneration order made by the Tribunal after a detailed investigation of the merits of the matter having its intended operation. We are not here dealing with an order that affects only the parties before us. The December order made important changes in the regulation of the remuneration of drivers in the road transport industry, changes which we must assume will be for the benefit of drivers and road users generally. 48 Considerations of this kind inform the principle, conventionally recognised in the setting of administrative law challenges to industrial awards, that exceptional circumstances must be shown before the operation of such an award will be stayed on the establishment of no more than a prima facie case of invalidity. This is not to set the bar unreasonably high for an applicant in such a context. It is no more than a recognition of the wider public interest involved in the discharge of the regulatory functions of the award-maker and of the premise, usually readily available, that detriment will, or at least may, be suffered over a wide front if some new provision considered to be meritorious does not operate according to its terms. The quasi-legislative function of the Tribunal under the RSR Act makes the case for the analogous invocation of this principle an obvious, if not a compelling, one. That is to say, at this point, at least, there is a sound working hypothesis which must be accepted that the Tribunal acted within its jurisdiction rather than outside it unless a strong and clear case seems available to the contrary. We are not satisfied that the applicants or the intervener have demonstrated such a strong and clear case which would warrant intrusion by the court at this stage to stay the impugned decisions. 49 In their arguments for a stay, both NRTA and the intervener proceeded upon the view that a stay of the December order would extinguish obligations and corresponding entitlements for the duration of the stay, rather than merely suspending them with the prospect that those obligations and entitlements might revive if the stay were later discharged at a final hearing. AI Group appeared to accept that the grant of a stay might not finally extinguish rights and obligations if the stay were later to be discharged. It is not necessary for us to resolve this issue. We will proceed upon the footing that the preponderant view, that is, from NRTA and the intervener, is correct. The consequence is that the improvement in rates for pay and conditions intended by the Tribunal as a positive step to assist road safety and the transport industry would be lost for the duration of a stay and the concomitant consequences for road safety would also be lost. 50 As it happens, there appears no real doubt but that, whether a stay is granted or not, there will be inconvenience, possibly amounting to positive disadvantage in some quarters. NRTA led some indirect evidence that, if a stay were not granted, some drivers would lose future engagements. However, as the TWU pointed out, there can be no general assumption that the bulk of the industry has not been making the necessary arrangements to comply with the December order. That is, in our view, a point of some significance. Just as those represented by the applicants might find it most inconvenient to be obliged to reorganise their arrangements and protocols in order to comply with the December order only to have to revert to the original position if the order were ultimately shown to have been invalidly made, so too would others in the industry, whose voice is not heard in these proceedings, find it inconvenient to have their presumptively conscientious endeavours to comply with the order rendered irrelevant, even if only for a temporary period. 51 We feel unable to conclude in favour of the applicants that the inconvenience or prejudice of not granting a stay will be greater than the inconvenience or prejudice of further preventing the intended commencement of the December order. This is a matter about which the applicants bore the relevant onus, both of proof and of persuasion, and they have not discharged it. 52 There can be no assumption that the applicants in the present proceeding speak for the whole industry any more than they did before the Tribunal. Indeed, it must be accepted that the TWU, which opposes the grant of a stay, also performs a significant representative role in the industry, although, as in the case of the applicants, we make no attempt to assess or to quantify the extent of that role. 53 We also bear in mind that we have directed an expedited hearing of these applications. 54 The applications to vary the December order, which were pressed on the Tribunal only in March of this year and with which the Tribunal dealt with great urgency, did not proceed upon any premise that the order was invalid in any of the respects now suggested, or in any other respect. On the contrary, it seems to us that the applications to vary necessarily assumed the validity of the order, and that a variation to defer its commencement beyond 4 April 2016 or to introduce transitional provisions would be, of itself, effective and valid. 55 No submission suggesting invalidity, we were told, was made to the Tribunal. The first suggestion of invalidity in the December order was made after the Tribunal's decision published on 1 April 2016. The consequence is that, notwithstanding the Tribunal's decision to defer introduction of its order for three and a half months or so until 4 April 2016, in order to permit the industry a period in which to make the adjustments which the Tribunal accepted would be necessary, the applicants sat on their rights until a matter of days ago, immediately before the order was to commence. 56 It therefore seems to us that there are sound reasons to decline the grant of any stay of the order upon the ground that the applicants have not taken reasonable steps in their own interests, and in the interests of those whom they claim to represent, diligently to prosecute the jurisdictional arguments upon which they now rely. Regardless of, and possibly in addition to, the consequences which that delay may have for the strength of the applicants' cases at the final hearing of these proceedings, it reinforces our view that it would not be appropriate to step in now by way of a stay of the order. 57 In the April decision, the Tribunal determined not to adjust, and not substantially to defer the announced and intended commencement of operation of, the December order. If the applicants' arguments about jurisdictional error in respect of that decision are accepted, the claimed consequence is that the Tribunal will be directed to give further attention to the matters which were the subject of that decision. There can be no assumption that the outcome of such further attention would more accord with the applicants' desires than did the April decision itself. It would not be an appropriate outcome to order a stay of the December order just so that the Tribunal might revisit the issues dealt with on 1 April 2016. 58 For these reasons, there appears to us to be no warrant to grant a stay of either the December order or the April decision pending the final hearing of the present applications. In each matter, the order we make is that the application for interlocutory relief be dismissed. I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Jessup, Buchanan and Rangiah. Associate: Dated: 14 April 2016