FEDERAL COURT OF AUSTRALIA CPSU, The Community and Public Sector Union v Telstra Corporation Limited (No 2) [2000] FCA 872 PRACTICE AND PROCEDURE – judgments and orders – judgment not entered – discretion to recall WORDS AND PHRASES – "threaten" Workplace Relations Act 1996 (Cth) s 298K Federal Court Rules O 35 r 7(1) Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 cited Gietzelt v Craig-Williams Pty Ltd (No 1) (1959) 1 FLR 456 referred to Gietzelt v Craig-Williams Pty Ltd (No 2) (1959) 1 FLR 465 doubted Smith v New South Wales Bar Association (1992) 176 CLR 256 cited State Rail Authority of New South Wales v Codelfa Construction (No 2) (1982) 150 CLR 29 cited Wood v Bowron (1866) LR 2 QB 210 cited CPSU, THE COMMUNITY AND PUBLIC SECTOR UNION, ASSOCIATION OF PROFESSIONAL ENGINEERS, SCIENTISTS AND MANAGERS, AUSTRALIA, COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA and PROFESSIONAL OFFICERS' ASSOCIATION (VICTORIA) v TELSTRA CORPORATION LIMITED V 194 of 2000 JUDGE: FINKELSTEIN J PLACE: MELBOURNE DATE: 27 JUNE 2000 IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 194 of 2000 BETWEEN: CPSU, THE COMMUNITY AND PUBLIC SECTOR UNION, ASSOCIATION OF PROFESSIONAL ENGINEERS, SCIENTISTS AND MANAGERS, AUSTRALIA, COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA and PROFESSIONAL OFFICERS' ASSOCIATION (VICTORIA) Applicants AND: TELSTRA CORPORATION LIMITED Respondent JUDGE: FINKELSTEIN J DATE OF ORDER: 27 JUNE 2000 WHERE MADE: MELBOURNE THE COURT ORDERS THAT the motion be dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 194 of 2000 BETWEEN: CPSU, THE COMMUNITY AND PUBLIC SECTOR UNION, ASSOCIATION OF PROFESSIONAL ENGINEERS, SCIENTISTS AND MANAGERS, AUSTRALIA, COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA and PROFESSIONAL OFFICERS' ASSOCIATION (VICTORIA) Applicants AND: TELSTRA CORPORATION LIMITED Respondent JUDGE: FINKELSTEIN J DATE: 27 JUNE 2000 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 On 23 June 2000 I delivered judgment in this proceeding, dismissing the claim made by the applicant unions that Telstra had injured or prejudicially altered the position of its employees for a prohibited reason contrary to s 298K(1) of the Workplace Relations Act 1996 (Cth), or that it had made a threat to that effect. Briefly stated, it had been alleged that Telstra proposed or had threatened to discriminate against award-based employees or those who were employed under certified agreements for the purpose of determining which of its employees would be made redundant. I found that no employee had been injured or prejudicially affected and that all that had occurred was an instruction that could be construed by some as a direction that discrimination should occur. I said that it was necessary to find an actual injury or alteration of position. As regards the allegation that there had been a threat, I found that on the proper construction of s 298K it was necessary that Telstra's intention of inflicting injury on or prejudicially affecting the position of its employees must be communicated to those employees, and there had been no communication. The order dismissing the proceeding has not been perfected, that is to say, it has not been passed and entered. 2 The unions now ask that I recall the order and hear further argument on one issue. The unions wish to contend that I did not place a proper construction upon the word "threaten" in s 298K(1). They go further and say that I overlooked a decision of the Full Bench of the Commonwealth Industrial Court, Gietzelt v Craig-Williams Pty Ltd (No 2) (1959) 1 FLR 465, which gave a different construction to the word and that I should follow that case. 3 It is settled law that until a judgment is passed and entered it is under the control of the judge who may recall it or alter it. Until the order is entered it is only provisionally effective. A judge has inherent jurisdiction to recall an order and, in cases in the Federal Court, the judge may also rely upon the power found in O 35 r 7(1) of the Rules. Although plainly there is power to recall the order I pronounced, the critical question I must determine is whether, in the circumstances of this case, it is appropriate to do so. 4 It is generally accepted that the power to vacate an order should be exercised with great caution. The circumstances which would justify a rehearing must be exceptional: State Rail Authority of New South Wales v Codelfa Construction (No 2) (1982) 150 CLR 29 at 38 per Mason and Wilson JJ; at 45 per Brennan J. Normally the power will be exercised only to deal with technical or incidental changes to the formal contents of an order. It should not be used as a substitute for an appeal. In Smith v New South Wales Bar Association (1992) 176 CLR 256 at 264-266 Brennan, Dawson, Toohey and Gaudron JJ said of a case where reasons for judgment had been given, that the power will be exercised only if there is some matter calling for review. In Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 Mason CJ, after referring to Smith v New South Wales Bar Association said (at 303): "What must emerge, in order to enliven the exercise of the jurisdiction, is that the Court has apparently proceeded according to some misapprehension of the facts or the relevant law and that this misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing. The purpose of the jurisdiction is not to provide a backdoor method by which unsuccessful litigants can seek to reargue their cases." 5 The unions contend that my reasons demonstrate a clear error of law which, in the interests of justice, should be corrected by me instead of requiring the unions to take this case on appeal. They contend that the error is manifest in view of the decision in Gietzelt v Craig-Williams Pty Ltd (No 2), which places a different construction on the word "threaten" in s 298K. The unions say that Gietzelt v Craig-Williams Pty Ltd (No 2) stands for the proposition that in s 298K(1), "threaten" does not mean that the proposed action must be uttered in the presence of the person threatened. They say that the case is authority for the view that a threat is constituted whenever a statement that prohibited conduct will be engaged in is uttered in the presence of any person whatsoever. 6 I must confess immediately that in deliberating on the case I paid no regard to Gietzelt v Craig-Williams Pty Ltd (No 2). I did not pay any attention to that authority because I was not aware of its existence. In passing, I note that it appears in the same volume of the Federal Law Reports as does Geitzelt v Craig-Williams Pty Ltd (No 1) (1959) 1 FLR 456, a decision to which I did make reference. 7 I accept some responsibility for not having discovered the case. I do not always rely on counsel to refer me to all decisions that may be in point. Often, following old habits learned at the Bar, I undertake my own research to satisfy myself that I have all the relevant cases, and sometimes those that are only remotely relevant. I did not do so on this occasion and, in the circumstances, that is a matter of some regret. I suppose it to be inevitable that I will find myself in the same position again in the future. Be that as it may, assuming for the moment that Gietzelt v Craig-Williams Pty Ltd (No 2) is a decision that supports the unions' case, is the fact that I did not discover the case a reason to recall my judgment? 8 I am satisfied that it is not a sufficient reason to adopt the course the unions seek. The meaning of the word "threaten" was one of the issues that the parties came to court to argue. Before the commencement of the trial, Telstra had filed and served an outline of argument that referred to Gietzelt v Craig-Williams Pty Ltd (No 1) as a relevant authority on the point which ultimately found favour with me. Neither in their written submissions nor in their oral argument did the unions refer me to Gietzelt v Craig-Williams Pty Ltd (No 2) nor to any other decision dealing with the meaning of the word "threaten". 9 I must treat the present application as an attempt by the unions to reargue their case now they have found an authority which they say supports their position. This is not a case where the unions were deprived of an opportunity to present full argument on the construction of the section. The unions cannot show that by accident, or without fault on their part, they had not been heard on the point. 10 In rejecting the request to recall my order, I have proceeded on the basis that I am wrong as regards the meaning I attributed to the word "threaten" and that my judgment may be set aside by a Full Court. But that is not a sufficient reason to recall the order. Judges are often wrong. I may be wrong in this case. The fact that a judge gives a ruling in error is not, without more, a sufficient reason to allow an unsuccessful party to obtain a rehearing of a case on the merits. This is all the more so in a case where the authority upon which the unions now seek to rely was there to be found when the case was heard. 11 In the foregoing discussion I have assumed, in the unions' favour, not only that I was in error in my construction of s 298K(1) but that Gietzelt v Craig-Williams Pty Ltd (No 2) demonstrates that error. As I have said, as regards the first point, I accept that a judge may be wrong even if very clear in his or her decision. No judge is infallible. But I do not agree that Gietzelt v Craig-Williams Pty Ltd (No 2) demonstrates error on my behalf, or demonstrates error so clearly that it might be said that I should save the unions the trouble of taking the case on an appeal on which they will necessarily succeed. 12 Gietzelt v Craig-Williams Pty Ltd (No 2) involved a charge under the provision in the Conciliation and Arbitration Act 1904 (Cth) which was the predecessor to s 298K. The charge alleged that the defendant threatened to dismiss an employee because the employee proposed to become a member of a union. The threat was said to have been made at a meeting called by the employer to inform staff of their impending dismissal. The person allegedly threatened was not in attendance at the meeting. In the event, the court dismissed the charge because it found that the employer had not threatened to dismiss its staff but had in fact dismissed them on the day in question. However, in the course of their reasons, the members of the court expressed the obiter opinion that a threat to dismiss an employee need not be made to the person threatened. Dunphy J said (at 467-468): "In my opinion it is not necessary under the section that the threat should be communicated to the persons threatened. If, for instance, an employer said to a union secretary 'I will dismiss any of my employees who proposes to join your union" a prosecution would lie if the employees never heard about the matter at all." Morgan J said (at 468): "… in my opinion an employer could offend against sub-s 5(1A) if he made the threat to dismiss an employee to some person other than that employee." 13 The judgment of Spicer CJ is not so clear. He referred to what he said in Gietzelt v Craig-Williams Pty Ltd (No 1) namely: "In section 5(1A) 'threaten' is I think equivalent to 'express an intention to' or 'says he will'… If therefore it can be established that such an expression of intention preceded the actual dismissal the informant would succeed on this aspect of the case…" His Honour apparently regarded this statement as meaning a threat did not have to be made to the person threatened. 14 There is, of course, a clear distinction between the facts of Gietzelt v Craig-Williams Pty Ltd (No 2) and the facts of this case. There the threat to unlawfully dismiss the employee was made, not to that employee, but to others who were also the object of the threat. In the circumstances of the case it might be supposed that the threat of dismissal would be passed on to those employees who did not attend the meeting. 15 In my reasons for decision I said that one of the objects of s 298K was to prevent employers bullying employees by reason of matters connected with their terms and conditions of employment. I had in mind that the word "threaten" should be taken to mean a communicated intent to inflict harm. I accept that the communication need not be directly to the person threatened but could be just as effectively made if it is communicated to a person in circumstances where it is intended to or is likely to find its way to the person threatened. I was then and still am of the view that it is the essence of a threat that it be made for the purpose of intimidating a person: Wood v Bowron (1866) LR 2 QB 21. One primary meaning of the word "threaten" given by the Oxford English Dictionary is: "to try to influence (a person) by menaces". See also the definition of "threat" in Black's Law Dictionary 7th ed (1999) at pp 1489-1490 and Mozley & Whiteley's Law Dictionary 11th ed (1993) at p 271. 16 I did not then, and I do not now, believe that there can be a relevant threat whenever an employer states an intention to contravene s 298K, regardless of the circumstances. Take but one example. Assume that a director of a 'one-man company' tells his secretary that he intends to take action against the company's employees for a prohibited reason, intending the communication to remain secret between them. Is that a threat? I do not believe that it is. If Gietzelt v Craig-Williams Pty Ltd (No 2) is authority for a contrary proposition, and I do not believe that it is, I would not follow it. 17 But in the end I need not decide the precise scope to be given to the dicta in Gietzelt v Craig-Williams Pty Ltd (No 2). Here the only point that I am seeking to make is that Gietzelt v Craig-Williams Pty Ltd (No 2) is not a decision that so clearly demonstrates that I was in error that I would be justified in recalling my order. 18 Accordingly I decline the invitation to recall the order. If the unions are dissatisfied with the result of this case their remedy is to take the matter on appeal. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finkelstein. Associate: Dated: 27 June 2000 Counsel for the Applicant: Mr H Borenstein Solicitor for the Applicant: Maurice Blackburn Cashman Counsel for the Respondent: Mr F Parry Solicitor for the Respondent: Freehill Hollingdale & Page Date of Hearing: 27 June 2000 Date of Judgment: 27 June 2000