FEDERAL COURT OF AUSTRALIA Sutton v Construction, Forestry, Mining & Energy Union [2002] FCA 831 JOHN SUTTON v CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION N 494 OF 2002 GYLES J SYDNEY 29 MAY 2002 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 494 OF 2002 BETWEEN: JOHN SUTTON APPLICANT AND: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION RESPONDENT JUDGE: GYLES J DATE OF ORDER: 29 MAY 2002 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. Any evidence to be filed on behalf of any other party to be filed and served on or before 5.00pm on 5 June 2002. 2. Liberty to any person affected to apply on twenty-four hours' notice. 3. No further steps shall be taken in the conduct of the election until further order of the Court. 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 N 494 OF 2002 BETWEEN: JOHN SUTTON APPLICANT AND: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION RESPONDENT JUDGE: GYLES J DATE: 29 MAY 2002 PLACE: SYDNEY EX TEMPORE REASONS FOR JUDGMENT 1 In this matter application is made for interim orders pursuant to s 221 of the Workplace Relations Act 1996 (Cth) ("the Act"), an inquiry into the relevant election having been instituted. It is agreed on all hands that the question which arises on that inquiry is, if not entirely, at least predominantly, one of construction, and the inquiry has been fixed for hearing on Friday 7 June 2002. There appears to be no good reason why the matter should not be heard on that day. Thus, the principal order which is sought is that no further steps should be taken in the conduct of the election, or in carrying into effect the result of the election, until the inquiry has been conducted. 2 The first question which arises is as to whether or not there is a sufficient case made for intervening at this point. This is not quite the same question as arises upon the grant of an interlocutory injunction, but it is not dissimilar. It is also, in my opinion, a different question to that which is involved in satisfying s 219B of the Act. The nature of the question to be tried is also, at least to an extent, to be judged against the practical consequences of intervening at this point with an order under s 221(1)(a). Although there can be no certainty that judgment could be delivered in the case on Friday 7 June 2002, there is, it seems to me, a reasonable prospect that an early decision could be made, and the time delay involved overall is therefore likely to be quite limited. 3 The position is that nominations for election have closed. The ballot was to commence today, and if that had occurred it would have closed on 14 June 2002. The returning officer, by his solicitor, does not put forward any practical problem in not taking any step to open the ballot until the Court has given a decision, and no party has referred me to any possibility that the Rules of the Union will be breached if that further time is granted. For this purpose, and as I may be hearing the case, I will not set out the arguments which have been foreshadowed on all sides. If necessary, reference can be made to the transcript to understand what those arguments might be. I am satisfied that there is a sufficient argument available to warrant intervention provided the balance of convenience falls that way. 4 So far as the balance of convenience is concerned, as the time involved is limited and as, on any view, the constituency is small and easily communicated with, it seems to me the balance of convenience lies reasonably heavily on the side of staying the conduct of the election, in the sense of not opening the ballot, until the questions which arise in the inquiry have been resolved. 5 There appears no utility in having a ballot which may be misconceived. That would lead not only to disturbance of affairs but also, it seems to me, the unnecessary waste of time and effort in having a campaign conducted with the direct and indirect expenses associated with it which may have to be repeated. I am therefore satisfied that an order under s 221(1)(a) should be made. I am not disposed to make any other orders as I do not believe they are necessary. Any need for any other interlocutory orders which I cannot foresee at the moment can be taken up separately in the event that the need arises. I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles. Associate: Dated: 28 June 2002 Counsel for the Applicant: M Perry Solicitor for the Applicant: Taylor & Scott Solicitor for the Returning Officer: J Heard of the Australian Government Solicitor Date of Hearing: 29 May 2002 Date of Judgment: 29 May 2002