Construction Forestry Mining & Energy Union & Ors v Full Bench, Australian Industrial Relations Commission & Anor [1998] FCA 1791

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 257 of 1998

BETWEEN: CONSTRUCTION FORESTRY MINING & ENERGY UNION & ORS

ApplicantS

AND: FULL BENCH, AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

FIRST RespondentS

COAL AND ALLIED OPERATIONS PTY LIMITED

SECOND RESPONDENT

JUDGE: THE HON JUSTICE MARCUS EINFELD AO

DATE: 24 DECEMBER 1998

PLACE: SYDNEY

REASONS FOR JUDGMENT On 7 November 1997, Boulton J in the Australian Industrial Relations Commission (the Commission) made orders in proceedings involving the applicants and the second respondent which, on 29 January 1998, were quashed by a Full Bench of the Commission on appeal by the second respondent. On 6 November 1998 a Full Court of this Court, at the request of the applicants, issued writs of certiorari and mandamus to the Full Bench of the Commission which effectively quashed its decision and sent the matter back for another hearing. The subject matter of the dispute involves the workplace relations of members of the applicant unions at the second respondent's establishment. Application has now been made to the High Court by the second respondent, by amended application filed on 7 December, for special leave to appeal against the orders of the Full Court. I have been informed today that there is no indication as to when the application for special leave might be heard, and have therefore been asked by the second respondent to order a stay of the decision of the Full Court pending the outcome of the proceedings in the High Court. Although there was a discussion of these matters before the Commission on 3 December, it does not appear that the Commission was then or has since been asked for a stay of the new hearing before the Full Bench which has been fixed for 18 and 19 February 1999. The Commission has instituted a case management schedule involving the filing of written submissions. Although there is no doubt that it has the power to grant a stay of its own orders, I do not think in the present circumstances of the case that this Court is a good choice of venue. The Court was seized of this matter only in respect of strict issues of law concerning interpretation of various provisions of the Workplace Relations Act and related matters. The Commission, on the other hand, consisting altogether of three judges and one Commissioner, has already dealt with the matter at some length, and the dispute has been the subject of efforts to conciliate by other members. The Commission is thus far more appraised of the detailed factual matters upon which these parties have apparently been divided for quite a considerable time than is this Court. The High Court is also in a better position than this Court to rule on the question of a stay. First of all, it has been statements of the High Court concerning the appropriateness of stays in given circumstances, especially in relation to matters coming before the Commission, on which the stay application has been based. Although some of those principles have found their way into more generalised statements, what has to be considered at the end of the day is really one central issue, viz what are the prospects of success of the application in the High Court. Other matters, such as irreparable prejudice or balance of convenience, are secondary to the question as to whether the proceedings in the High Court have or are likely to have any real substance and chances of success. It is invidious to invite a single Judge of the very Court whose orders have generated the proceedings in the High Court to try to second guess what the High Court might do. I am not in a position to find that there are substantial prospects of success in the High Court proceedings. That is not to say that they may not ultimately be successful, but as presently advised, and although I have read the decision of the Full Court and other significant material in the matter, I simply do not think that it would be wise for me to pass an observation about the likely success of the proceedings, nor would it be useful that I attempt to do so. Thus the real question to be determined on this application is whether there have been shown to be any seriously irreparable or irremediable consequences if a stay is not granted, and the proceedings proposed in the Commission in February actually take place. The primary argument put in this regard was that if the High Court grants special leave and upholds the appeal, the proceedings before the Commission will be futile and all the effort and money spent to prepare them will have been wasted. That argument is clearly correct but in the circumstances of this litigation, it does not seem to me to hold any particular weight. These are substantial parties. They have already argued the matter before a single Judge and a Full Bench of the Commission, and a Full Court of this Court, and they will undoubtedly already be preparing for the High Court proceedings early in 1999. The preparation of written submissions for the Commission, therefore, in time for a hearing in February 1999 does not strike me as being a particularly heavy burden to undertake in all the circumstances. If money and effort is lost, it will be a small element only in the whole history of this litigation. It must also be understood that depending on the result in the High Court, there may follow from a determination of the Commission a full award-creation hearing which I am satisfied would, in the circumstances of the case, take a considerable time. In itself, the High Court application, if special leave is granted, cannot be expected to be finally disposed of in less than several months. In addition, I have been informed that the Minister has himself sought a review of Boulton J's decision and has asked for the hearing to take place at the same time as the proposed February hearing before the Commission. Whatever order was to be made here, it could not and would not affect the Minister's application to review and there is nothing before me that suggests that the Minister would be likely to agree to postpone his application for the many months that might transpire before the High Court proceedings are disposed of. The dispute which gives rise to this litigation is substantial and serious and has significant industrial ramifications, not only for the parties but for many others in the community. It does not seem to me to be right that I should intervene at this stage to stop that process in its tracks by putting a hold on everything to do with the dispute until the High Court is able to give its final ruling in the matter. There is no overwhelmingly powerful argument available that suggests that the application of the second respondent to the High Court is likely to be successful. Moreover, the overall weight of evidence on the practicalities of the matter, and what is generally called "the balance of convenience", is strongly against the granting of a stay. I therefore refuse the application for a stay pending the hearing and determination and the application to the High Court for special leave. The motion filed by the second respondent on 23 December will be dismissed with costs. I certify that this and the preceding three (3) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Marcus Einfeld AO