FEDERAL COURT OF AUSTRALIA Finance Sector Union of Australia v Commonwealth Bank of Australia [2004] FCA 187 STAY OF PROCEEDINGS – principles to consider – application for enforcement of award in Federal Court – concurrent application in Australian Industrial Relations Commission to vary award retrospectively – whether proceedings in Federal Court should be stayed B P Australia Limited v Bennett & Anor (unreported, Supreme Court of New South Wales, Equity Division, McLelland J, 17 August 1983) discussed Commonwealth Bank of Australia v Finance Sector Union of Australia [2003] FCAFC 212 referred to Environmental Group Ltd & Environmental Systems Pty Ltd v Croudace & Croudace Holdings Pty Ltd (unreported, Supreme Court of New South Wales, Equity Division, Santow J, 7 August 1998) discussed Idameneo (No 123) Pty Ltd v Ko Ko Swe Pty Ltd [2003] NSWSC 384 discussed Jupp v Computer Power Group Ltd (1994) 122 ALR 711; (1994) 54 IR 248 referred to McGarry v Boonah Clothing Pty Ltd (1993) 49 IR 66 referred to Norborne Page Cole v Coca Cola Amatil Limited (unreported, Supreme Court of New South Wales, Equity Division, Master Macready, 16 September 1998) referred to Re Brack; Ex parte Operative Painters & Decorators Union of Australia (1984) 51 ALR 731 referred to Rexam Ausrtralia Pty Limited v Optimum Metallising Pty Limited [2002] NSWSC 916 discussed Software Engineers Australia (NSW) Pty Ltd v Bonket Pty Ltd [2002] FCA 1168 discussed Star League and Ors v Dean Pay and Ors (unreported, Supreme Court of New South Wales, Equity Division, Santow J, 9 June 1995) discussed Sterling Pharmaceuticals Pty Limited v Boots Company (Australia) Pty Limited (1992) 34 FCR 287 discussed FINANCE SECTOR UNION OF AUSTRALIA & JOSEPH ADAMS v COMMONWEALTH BANK OF AUSTRALIA N 1068 of 2000 MOORE J 5 MARCH 2004 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 1068 of 2000 BETWEEN: FINANCE SECTOR UNION OF AUSTRALIA FIRST APPLICANT JOSEPH ADAMS SECOND APPLICANT AND: COMMONWEALTH BANK OF AUSTRALIA RESPONDENT JUDGE: MOORE J DATE OF ORDER: 5 MARCH 2004 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The application by the respondent for an order vacating the hearing dates or staying this proceeding 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 NEW SOUTH WALES DISTRICT REGISTRY N 1068 of 2000 BETWEEN: FINANCE SECTOR UNION OF AUSTRALIA FIRST APPLICANT JOSEPH ADAMS SECOND APPLICANT AND: COMMONWEALTH BANK OF AUSTRALIA RESPONDENT JUDGE: MOORE J DATE: 5 MARCH 2004 PLACE: SYDNEY REASONS FOR JUDGMENT 1 This judgment concerns an application ("the stay application") by the Commonwealth Bank of Australia ("the Bank") for an order staying an application ("the principal application") by the Finance Sector Union of Australia ("the Union") and Joseph Adams (collectively "the applicants") or an order vacating the hearing dates of 8, 9 and 10 March 2004. I gave judgment in a similar application on 7 February 2003: [2003] FCA 51. The Bank submits circumstances have changed since that judgment was given and the orders they now seek are justified by reference to existing circumstances. I will refer to those changed circumstances shortly. Before doing so, however, I will simply repeat some of the background as described in the 7 February 2003 judgment. 2 The principal application is a representative proceeding brought by the applicants on behalf of former employees of the Bank who resigned from their employment when the information technology services of the Bank were outsourced and provided to the Bank by a third party. These events occurred over six years ago. The group members are said to number approximately 572. Amongst other things, it is alleged in the principal application that the Bank breached the Commonwealth Bank Officers Award 1990 ("the Award") by failing to pay the group members severance payments on the basis that they had been made redundant. 3 The principal application was filed on 5 October 2000. It was in the docket of another Judge and the matter was fixed for hearing in July 2001. However, the hearing did not proceed to finality as the principal application was transferred to my docket. This was because another matter ("the Macey matter"), raising broadly similar issues, was already in my docket and due to be heard by me. It was agreed that the further prosecution of the principal application would await judgment in the Macey matter. Judgment was given in the Macey matter on 16 November 2001: see [2001] FCA 1613 and judgment given in an appeal on 18 June 2002: see [2002] FCAFC 193. The judgment of the Full Court determined the meaning of relevant provisions of the Award as they applied in the Macey matter. One material factual difference between the circumstances raised in the Macey matter and those raised in the principal application is that the employees said to have been entitled to payment under the Award in the former matter did not resign their employment with the Bank when the information technology services were outsourced, whereas the employees in the latter matter did resign. 4 In the stay application, the Bank seeks either an order staying the principal application until the Australian Industrial Relations Commission ("the Commission") has determined an application under s 113(2) of the Workplace Relations Act 1996 (Cth) ("the Act") to vary the Award ("the variation application") or at least orders vacating the hearing dates next week and standing the matter over for two months. The purpose of the variation application is to make clear that the Bank would have no obligation under the Award to pay the group members to which the principal application relates, any payment arising from their resignation from their employment on the basis that they had been made redundant. It is unnecessary to express a view about whether this objective can be achieved. It is sufficient to note that the variation application was filed on or about 3 April 2001 and that it was adjourned generally as a result of a decision of Senior Deputy President Duncan given on 20 June 2001. The variation application was adjourned generally on the application of the Union. On 7 March 2002, the Bank applied to Senior Deputy President Duncan to list the variation application for hearing. By a decision given on 4 April 2002, the Senior Deputy President declined to do so and confirmed his earlier decision to stand the variation application over generally. 5 At this point I should refer the changed circumstances relied on by the Bank. When I gave judgment on 7 February 2003, the variation application remained adjourned generally. That position has now altered. On 11 June 2003, Senior Deputy President Duncan decided, effectively, that the variation application should be heard. Hearings took place in September and October 2003. On 23 October 2003, Senior Deputy President Duncan reserved his decision subject to the provision of written submissions in reply by the Bank. Those written submissions were filed and served on 12 November 2003. I was informed by senior counsel for the Bank that the Senior Deputy President is aware of the dates fixed for the hearing of the principal application in this Court on 8, 9 and 10 March 2004. That is, next week. 6 It is convenient now to refer to a summary of the submissions made in the earlier stay application and my consideration of them. I said the following in my reasons for judgment of 7 February 2003 at [6] and following: The Bank supports the application for a stay on the following basis. It is appropriate that the proceedings in the Commission (namely the variation application as it relates to the Bank's possible liability in relation to group members) be resolved before the principal application is heard and determined. This would reflect the proper relationship between the Court and the Commission given that the Commission is the proper (and only) forum to resolve the underlying industrial dispute between the parties about redundancy entitlements. While the Bank, understandably, did not concede the point (and made clear it did not invite its determination in this stay application), it submitted that arguably any declarations about liability under the Award in its present terms would be declarations of right binding the Bank which could not be undone by the Commission: see Warramunda Village Inc v Pryde [2001] FCA 61; (2001) 105 FCR 437 and Commonwealth Bank of Australia v Finance Sector Union of Australia [2002] FCAFC 193 at [6] together with Tszyu v Fightvision Pty Ltd [2001] NSWCA 103. Arguably an issue estoppel may arise: see Australian Transport Officers Federation v State Public Services Federation (1981) 34 ALR 406 and Blagojevch v Australian Industrial Relations Commission [2000] FCA 483; (2000) 98 FCR 45 at [13]-[14]. The Bank submitted that if a stay application was unsuccessful it could suffer serious prejudice and be deprived of its statutory right to seek to have the Award varied. The gravamen of the response of the applicants was that the Bank had a right to apply to vary the Award: see Fisher v Madden as Receiver and Manager of Dataflow Computer Services Pty Ltd [2002] 54 NSWLR 179 which it had exercised and what it was now seeking was effectively an opportunity to have the principal application adjourned to enable it to alter the respective rights of the parties. As a matter of principle, that should not be facilitated: see McGarry v Boonah Clothing Pty Ltd (1988) 80 ALR 284 [this citation is incorrect in that the only report of this judgment dealing with this question of adjournment is in (1993) 49 IR 66 at 77-78]. This is not the occasion to endeavour, in any comprehensive way, to discuss the relationship between the Court and the Commission. Suffice it to say that amendments made in 1993 to what was then the Industrial Relations Act 1988 (Cth) and subsequently have brought about what, in my opinion, are significant changes in the role of the Commission and an increased role for the Court in what might broadly be described as industrial relations issues. That is not to say, however, that the Court has not always had such a role (reflected in the existence, until recently, of an Industrial Division of the Court) though the Court's role has always been, and continues to be, to determine justiciable controversies about existing rights and liabilities. There is potential for tension arising from, on the one hand, the exercise of jurisdiction by the Court to interpret awards or industrial agreements made under the Act either in an application for their interpretation (see s 413 of the Act) or as a step in the process of determining an application for their enforcement or a penalty under Part VIII and, on the other hand, the exercise of the power of the Commission to vary an award (see s 113 of the Act) with, potentially, retroactive effect. The Commission's power to vary an award with particular effect may be exercised notwithstanding, and in the face of, an interpretation by the Court that the award has a different effect: see Re Brack; ex parte Operative Painters & Decorators Union of Australia (1984) 51 ALR 731. In my view, the appropriate approach is not to stay the principal application. Whatever rights are presently conferred and liabilities imposed by the Award will be determined in the principal application. The Court has a duty to determine that application: see the judgment of Gray J in McGarry v Boonah Clothing Pty Ltd (supra)and the authorities referred to and Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [19]. It is not appropriate to refrain from exercising that duty simply because one party wishes to take steps, potentially, to alter the rights and liabilities of the parties to the litigation in the Court. If, as the applicants contend, Mr Adams and group members were entitled to redundancy pay under the Award (as it was framed at the relevant time) when they left the employment of the Bank, that is a legally enforceable right the applicants are entitled to vindicate by proceedings in the Court. Assuming the existence of such a right and that the Commission can and would wish to alter those rights on the application of the Bank, that is a matter for the Commission. There is no reason why the Commission cannot, in the course of dealing with any application to vary the Award and for the purpose of determining such an application, interpret the Award. However even if the Commission took the view that it should hear the Bank's variation application (notwithstanding its earlier decision to adjourn the variation application generally though made apparently by reference to a position then adopted by the Union which has altered) the Court's duty would continue to be to hear and determine the principal application. If the Award was varied before judgment was given then the legal effect of the variation would, if raised as an issue which was relevant, have to be determined in the principal application. 7 The Bank sought leave to appeal against the judgment of 7 February 2003 and a later judgment concerning the trial of a separate question: see [2003] FCA 518. The Full Court refused leave on 22 August 2003: see [2003] FCAFC 212. The Bank now relies on observations made by the members of the Full Court. First, it refers to the observations of Wilcox J at [2]: In my view, the applications must be dismissed for quite pragmatic reasons. I bear in mind that each of the decisions made by his Honour was a matter of practice and procedure, and a discretionary judgment. It seems to me, and with respect to his Honour, that not only was the view that he took open to him, but also it would have been extremely difficult for him to have reached any other view having regard to the circumstances with which he was confronted. and at [11] and [13]: Moore J, of course, had no control over the actions of the Commission. He was confronted with a situation that there was no immediate prospect of the Commission dealing with the variation application, on the one hand and, on the other, that he had before him applicants who were entitled to come to the Court to take action to enforce the award and were anxious to press on with the matter and obtain a hearing. It seems to me that it was not only open to Moore J to take the view that under those circumstances it would be wrong to stay the matter before him; but also, as I have said before, that I think he could not responsibly have come to any other conclusion. ……. It is worth emphasising that even as recently as the time when his Honour dealt with the separate question, the matter in the Commission had yet to be un-adjourned. 8 The Bank also relies on observations of Marshall J at [30], [31] and [35]: No substantial injustice arises as a result of the challenged decisions. The significance of Moore J's failure to stay the substantive proceeding has largely been overtaken by the decision of the Commission to list the award variation application for hearing next month. It is highly likely that the matter will be heard and determined prior to the commencement of the hearing of the substantive matter. In any event, Moore J was correct to refuse to stay the substantive application. At the time Moore J refused to stay the substantive application, the award variation application was adjourned generally in the Commission. …… Moore J's judgment to favour the separate question posed by the respondents is unexceptional. As his Honour noted at [8], the question posed by the applicant may lead the necessity for further questions to be asked beyond a mere threshold question. In any event, it may be that the hearing of the separate question by Moore J in March 2004, and indeed the timing of it, may require further consideration pending the outcome of the award variation application. In a real sense this demonstrates the premature nature of the application for leave to appeal and the inherent lack of unfairness to the applicant if the judgments, subject to the application for leave, are left to stand. 9 In refusing leave to appeal, the Full Court had regard to practical considerations concerning the point proceedings had reached in the Commission at the time I gave judgment and also at the time the Full Court gave judgment. 10 The approach I adopted in my judgment of 7 February 2003 was intended to be a principled one. It was that a Court should not refrain from performing its duty to hear and determine an application to enforce what are said by the moving party to be existing legal rights merely because there were other proceedings on foot in a tribunal which might, if determined in a particular way, alter the existing legal rights contended for by the moving party. To the authorities referred to in the extract from my earlier judgment above, can be added the judgment of Gray J in Jupp v Computer Power Group Ltd (1994) 1 IRCR 86 in which his Honour cited Re Minister for Communications; Ex parte NBN Ltd (1986) 14 FCR 344; Attorney-General (NT) v Minister for Aboriginal Affairs (1987) 73 ALR 33; Re Minister for Minerals and Energy; Ex parte Wingate Holdings Pty Ltd [1987] WAR 190; Willow Wren Canal Carrying Co Ltd v British Transport Commission [1956] 1 WLR 213. Authorities cited by his Honour in the earlier judgment in McGarry v Boonah Clothing Pty Ltd (supra)were Willow Wren Canal Carrying Co Ltd (supra); R v Whiteway; Ex parte Stephenson [1961] VR 168, at 171; Rochfort v John Fairfax & Sons Ltd [1972] 1 NSWLR 16; Aherne v Freemen [1974] VR 121, at 127. 11 If I were to adopt the same approach as adopted in my earlier judgment, without qualification, in determining the present stay application, the changed circumstances identified by the Bank would be substantially irrelevant. The changed circumstances are that the proceedings in the Commission are well advanced but not yet concluded in the sense that a decision has not yet been given which, when given, might alter existing legal rights asserted by the applicants in the principal application. If, in application of the principle I acted on earlier, it is appropriate that I should continue to hear the principal application, notwithstanding the existence of other proceedings intended to alter the legal rights contended for by an applicants, then how far advanced those other proceedings are is really beside the point. 12 However, the Bank has referred to several judgments of both the Supreme Court of New South Wales and this Court (which were not referred to in the hearing leading to the judgment of 7 February 2003) where proceedings in those courts were stayed pending the determination of proceedings in the Industrial Commission of New South Wales in Court Session ("the State Commission") under s 106 of the Industrial Relations Act 1996 (NSW) ("the State Act"). These decisions suggest the approach I earlier adopted was too narrow, as do the observations of the Full Court earlier referred to (the observations of Wilcox and Marshall JJ). 13 The Bank submits that the power to stay the principal proceeding is a discretionary one and, in the present circumstances, the discretion should be exercised in its favour. However, even accepting the power is a discretionary one, it is necessary to ascertain what is the basis on which the power can be exercised so that it is exercised judicially and in a principled way. A recent consideration of what constraints might operate on the exercise of a wide discretionary power is found in the decision of the High Court in Oshlack v Richmond River Council (1998) 193 CLR 72. It is plain that such a power cannot be exercised arbitrarily or capriciously. The Court divided on the question of whether the trial judge took into account extraneous considerations having regard to the provision conferring the power and the statutory context in which was conferred. However, in my respectful opinion, there is much to commend the approach of McHugh J (at [65]), adapted for present purposes, that a discretionary power of the type presently under consideration (to stay or adjourn proceedings) should be exercised judicially and in accordance with established principle. His Honour noted the observations of Mason CJ in Latoudis v Casey (1990) 170 CLR 534 at 541: it does not follow that any attempt to formulate a principle or a guideline according to which the discretion should be exercised would constitute a fetter upon the discretion not intended by the legislature. Indeed, a refusal to formulate a principle or guideline can only lead to exercises of discretion which are seen to be inconsistent, a result which would not have been contemplated by the legislature with any degree of equanimity. 14 A decision to adjourn or stay proceedings because the existing legal rights contended for by one party might alter as a result of other proceedings, can result in the denial of those rights if they are, in the intervening period, modified or extinguished. However, the obvious rejoinder is that in those other proceedings, a tribunal or Court will be exercising a power (which presumably would ordinarily have been conferred by statute) authorising an alteration of the pre-existing legal rights and that there are no reasons of public policy why, in the interests of justice, one process should be preferred over the other. 15 Before discussing the authorities the Bank relies on (and other authorities dealing with analogous situations) I should briefly say something about the State Commission and the nature of proceedings under s 106 of the State Act. There is authority that the State Commission, in proceedings under s 106, exercises arbitral power: see Minister for Youth and Community Services v Health & Research Employees Association of Australia NSW Branch (1987) 10 NSWLR 543 at 560 (per McHugh JA), though more recent authority would suggest that it is exercising judicial power: see Tszyu v Fightvision Pty Ltd (2001) 104 IR 225 at [58] and Commonwealth Bank of Australia v Finance Sector Union of Australia [2003] FCAFC 212 at [33]. There is also authority that a judgment given in proceedings under s 106 by the State Commission (which is, for relevant purposes, a superior court of record: see ss 152 and 153(1)(c) of the State Act; Tszyu (supra) at [58]; and CBA v FSU (supra) at [33]) gives rise to res judicata: see Fisher v Madden (2001) 54 NSWLR 179 at 194 [45]; Hodges v Streets Ice Cream Pty Ltd (1985) 11 IR 60 at 62.8 to 63.3; Autobake Pty Ltd v Budd (1986) 19 IR 18 at 20.5; and Baker v National Distributional Services Limited (1993) 50 IR 254 at 266.6 to 267.4. However, these matters do not appear, at least expressly, to have influenced the decisions the Bank relies on which have resulted in proceedings in this Court and the Supreme Court being stayed pending the determination of proceedings in the State Commission. Rather, the issue of whether a stay should be granted has been determined by reference to what might be characterised as fairly practical considerations deriving from the judgment of Lockhart J in Sterling Pharmaceuticals Pty Limited v Boots Company (Australia) Pty Limited (1992) 34 FCR 287. 16 The facts in Sterling Pharmaceuticals Pty Ltd (supra) were as follows. The respondent applied for orders that the proceeding commenced in this Court by the applicant on 19 November 1991, be stood out of the list or alternatively stayed until the hearing and determination of proceedings in the High Court of New Zealand between related companies (the protagonists both in Australia and New Zealand were subsidiaries of pharmaceutical companies in the United States and United Kingdom). The proceedings in this Court involved allegations of contravention of ss 52 and 53 of the Trade Practices Act 1974 (Cth). The proceedings had reached a point where pleadings had been concluded. The gravamen of the complaint of the applicant was that the respondent sold a drug with a misleading statement on the packet. The proceedings in New Zealand were commenced on 9 November 1990 and alleged contravention of s 9 of the Fair Trading Act 1986 (NZ), which was, relevantly, in identical terms to s 52 of Australian legislation. In issue in the New Zealand proceedings was the contentious statement on the drug packaging. No final determinations of law or fact had been made in the New Zealand proceedings at the time the stay application was considered. There had, however, been a substantial interlocutory hearing in the New Zealand proceedings and those proceedings were moving towards a hearing at the end of the year in which Lockhart J gave judgment on the stay application. His Honour was satisfied, in the circumstances, that it was in the interests of justice to accede to the application of the respondent. 17 Lockhart J identified a number of relevant considerations for determining whether to stay proceedings in one court where there are proceedings in another court involving the same or related parties and the same or similar issues. Those considerations included which proceeding was commenced first, how far advanced the proceedings were in each court, whether the termination of one proceeding was likely to have a material effect on the other, whether work done on pleadings, particulars, discovery, interrogatories and preparation might be wasted and the circumstances relating to witnesses. Other relevant matters identified by Lockhart J were, public interest, the undesirability of two courts competing to see which of them determined common facts first, the undesirability of substantial waste of time and effort if it became a common practice to bring actions in two courts involving substantially the same issues and generally balancing the advantages and disadvantages to each party. Lockhart J noted that the law should strive against permitting multiplicity of proceedings in relation to similar issues. 18 I will consider this stay application generally by reference to the approach adopted by Lockhart J. However I am not confident that his Honour intended that the considerations he identified would be applied other than in situations where the jurisdictions of two courts were invoked by the same or related parties to resolve substantially the same legal issues by reference to substantially the same facts. As is evident from the clear line of authority discussed by Gray J in Jupp v Computer Power Group Ltd (supra) and McGarry v Boonah Clothing Pty Ltd (supra), courts have steadfastly refused to modify the course of proceedings because the law may change and alter the rights of the parties. There is a parallel between the alteration of rights by the legislature and their alteration by legal processes in courts or tribunals. Perhaps the rationale for what is probably an extension (in some of the authorities discussed shortly) of what might be described as the principles established by Lockhart J is, as suggested by senior counsel for the Bank, that the alteration of rights by legal processes ordinarily involve the consideration of the circumstances of the parties themselves and often, though not always, arises in an industrial or employment context. Perhaps the authorities to which I will shortly refer concerning the State Commission are based on the understated premise that the State Commission is, relevantly, a court exercising judicial power (though, as noted earlier, this appears not to underlie the reasoning). But the nature of the jurisdiction the State Commission exercises in proceedings under s 106 is far removed, in my opinion, from the jurisdiction being exercised by the High Court of New Zealand in Sterling Pharmaceuticals (supra) which almost certainly would have been of fundamental significance to Lockhart J. 19 Also, I acknowledge that this matter is different yet again. If the variation application is successful, the Commission may have given effect to what it understands to be the subjective intentions of the parties to the Award. The result may or may not reflect the rights conferred by the Award, on the parties to it (and persons deriving rights under it) construed by this Court applying settled principles of construction. While those principles are directed to ascertaining the intention of the parties, the focus of the inquiry is the language used though other matters are also relevant: see for example Short v F W Hercus Pty Ltd (1993) 40 FCR 511 and City of Wanneroo v Holmes (1989) 30 IR 362. An industrial instrument may confer rights (and impose obligations) even though an industrial tribunal determines that the parties did not subjectively intend to create those rights. This was illustrated fairly starkly in Re Brack; ex parte Operative Painters & Decorators Union of Australia (1984) 51 ALR 731 in which the High Court pointed to the different functions of this Court and the Commission in, respectively, interpreting awards and varying them. In the present case, I am not proceeding on the basis that the Award confers the rights asserted by the applicants but rather it may and that they have regularly invoked this Court's jurisdiction to enforce those rights if it does. 20 I now refer to a number of authorities including those the Bank relies on in support of the stay application (the first three authorities). In Environmental Group Ltd & Environmental Systems Pty Ltd v Croudace & Croudace Holdings Pty Ltd (1998) (unreported, Supreme Court of New South Wales, Equity Division, Santow J, 7 August 1998) proceedings were commenced on 20 February 1998 in the Equity Division of the Supreme Court of New South Wales alleging breaches of contract, director's duties and employee duties as well as actionable misrepresentations. On 24 February 1998 proceedings were commenced in the State Commission under s 106 of the State Act by the defendants in the Supreme Court proceedings. Orders were sought to vary or avoid the various agreements between the parties. The defendants in the Supreme Court proceedings (and applicants in the proceedings in the State Commission) sought a stay of the Supreme Court proceedings. Santow J granted the stay. Matters which led to that result were as follows. After referring to the considerations identified in Sterling Pharmaceuticals (supra), his Honour noted that there was a risk of conflicting judgments concerning the factual claims made in the two proceedings (unless precluded by estoppel in favour of the first court's decision) and that the proceedings in the State Commission were listed for conciliation whereas further steps were required before the Supreme Court proceedings were ready for hearing. Moreover, his Honour noted that delays in the Supreme Court proceedings arising from the filing of defences were not as a result of any breach of the rules by the defendants and also that parties to the Supreme Court proceedings who were not parties to the proceedings in the State Commission could be joined. Further, his Honour noted that the quantification of damages in the claim for damages in the Supreme Court proceedings might require proceedings in the Supreme Court of Victoria to be concluded. 21 The next authority the Bank relies on is Software Engineers Australia (NSW) Pty Ltd v Bonket Pty Ltd [2002] FCA 1168. Proceedings were commenced in the State Commission on 25 January 1999 under s 106 to avoid or vary various agreements. Those agreements were relied on in this Court in proceedings commenced on 3 April 2002. Goldberg J was asked to stay the proceedings in this Court and did. At the time his Honour came to consider the stay application, there had been 11 days of hearings in the State Commission between 4 December 2000 and 2 April 2002 and all but one witness had given evidence. Golberg J was satisfied that the State Commission proceedings might have a material effect on the proceedings in this Court and that the avoidance and variation of the various agreements and documents sought in the State Commission, if ordered by that court, would alter the contractual basis upon which the applicant's causes of action were based in this Court. His Honour referred to the judgment of Lockhart J in Sterling Pharmaceuticals (supra) and Santow J in Environmental Group Ltd v Croudace (supra). 22 The last case the Bank refers to is Idameneo (No 123) Pty Ltd v Ko Ko Swe Pty Ltd [2003] NSWSC 384. In that matter, Supreme Court proceedings were commenced on 24 September 2001. Proceedings were commenced on 11 December 2002 in the State Commission under s 106. Barrett J stayed the proceedings in the Supreme Court. His Honour did so because of the potential impact of the proceedings in the State Commission on the Supreme Court proceedings, particularly given that the former proceedings might result in the avoidance or variation of two agreements underpinning the Supreme Court proceedings. 23 However there are also cases of generally the same character were a stay has not been granted. In Rexam Ausrtralia Pty Limited v Optimum Metallising Pty Limited [2002] NSWSC 916, proceedings were commenced in 2002 in both the Supreme Court and the State Commission. When dealing with the issue of whether to grant the stay, Einstein J observed that there would be a real question as to whether the jurisdiction of the State Commission had been correctly invoked. Einstein J noted that the proceedings before the Supreme Court were quintessentially commercial proceedings of the type very commonly encountered in the Supreme Court with no clearly apparent connection with the prevention or settlement of industrial disputes or with the regulation of industrial relations. While the State Commission proceedings were to commence one day before the Supreme Court proceedings, his Honour found that this fact had no special weight. Moreover, his Honour considered that the defendants would derive considerable commercial advantage if the Supreme Court proceedings were stayed until the State Commission determined the jurisdictional issue, as the plaintiff would have to continue to pay creditors of the business, which upon its case, was a liability of the defendant. His Honour noted that while the State Commission could set aside or vary the relevant contract, that fact was only one of the circumstances that the Court should consider when determining whether to grant a stay. Other factors included any commercial imperatives, the state of the respective lists and the significance of a plaintiff having regularly invoked the jurisdiction of the Commercial List and thereby being entitled to have those proceedings brought on for hearing by the usual directions. 24 In Star League and Ors v Dean Pay and Ors (unreported, Supreme Court of New South Wales, Equity Division, Santow J, 9 June 1995) Santow J also refused to stay Supreme Court proceedings in the face of proceedings in the Industrial Court of New South Wales under the legislative antecedent of s 106. His Honour did not consider that the fact the contract (on which the Supreme Court Proceedings were based) might be set aside or avoided ab initio by the Industrial Court, outweighed the considerations in favour of continuing the two proceedings so long as no hearing date is set for the Supreme Court proceedings on a final basis pending the determination of the Industrial Court proceedings and subject to those being prosecuted with all due expedition. His Honour followed the approach of Young J in Majic Markets v Motor Repairs Pty Ltd (unreported, Supreme Court of New South Wales, Equity Division, Young J, 3 October 1987) and B P Australia Limited v Bennett & Anor (unreported, Supreme Court of New South Wales, Equity Division, McLelland J, 17 August 1983). In Norborne Page Cole v Coca Cola Amatil Limited (unreported, Supreme Court of New South Wales, Equity Division, Master Macready, 16 September 1998) Master Macready also refused to stay proceedings in the Supreme Court. 25 I lastly refer to B P Australia Limited v Bennett (supra). In that matter McLelland J dealt with an application for an interlocutory injunction and a stay of the proceedings in the Supreme Court. The plaintiff owned premises which were a self-service petrol station and shop. They were leased and licensed to the defendants under a lease and a licence agreement which also constituted an agency agreement. In early August 1983, the plaintiff purported to terminate the agency and the licence. The plaintiff commenced proceedings on 8 August 1983 seeking immediate possession of the premises and declarations about the validity of its actions in early August 1983. On 9 August 1993, the defendants commenced proceedings under the equivalent of s 106 in the predecessor of the State Commission. The plaintiff failed in its application for interlocutory injunctive relief. On the question of stay, McClelland J observed that the power of the Supreme Court to stay proceedings should be used 'if serious injusticewould otherwise be occasioned', citing Williams v Williams [1979] 1 NSWLR 376 at 383 with approval. That is, the power to issue a stay: should be exercised sparingly and a stay not lightly granted. Particularly would this be so where the proceedings in this Court are not brought for the purpose of obtaining what has been sometimes called a constitutive order, that is, an order creating rights which did not previously exist, but merely for the purpose of preserving or protecting existing rights. The present proceedings are in the latter category. The plaintiff is really seeking the Court's assistance to protect, in an orderly way, proprietary rights which, if its case be ultimately sustained, it might well be able to protect in a disorderly way without the assistance of the Court. His Honour did, however, leave open the possibility of staying the Supreme Court proceedings, in substance, in light of how matters progressed in the Supreme Court and the State Commission. 26 In the present matter, the Commission is well advanced in hearing and determining the variation application. As noted earlier, I was informed by senior counsel for the Bank that Senior Deputy President Duncan is aware that the principal application is to be heard next week (at least a hearing on how the question presently formulated for separate trial should be answered). His Honour has not given a decision and it may well be that his Honour does not consider it is necessary to decide the variation application before the hearing in this Court, though other factors could well be influencing the course of events, including what may be considerable demands on his Honour's time from other matters. Against that must be balanced the fact that the proceeding in this Court has been on foot for almost three and a half years and is also well advanced. It relates to events which occurred over six years ago. The proceeding in this Court was commenced almost half a year before the Bank made an application to vary the Award, though the resolution of that application has been delayed as a result of successful applications by the Union. 27 If the principal application is delayed further because the Bank is successful in its stay application (even if the matter is only adjourned for two months) and the Senior Deputy President dismisses the variation application, hearing dates that have now been fixed for almost seven months will be lost (the hearing dates were fixed in late July 2003). Another hearing will not take place, at the earliest, until later this year. In addition, if the Bank sought to appeal a decision of the Senior Deputy President dismissing the variation application, there will be further delay in resolving the variation application in the Commission. On the assumption I stayed the principal application until the variation application was determined, there would be a compelling rational argument that the principal application should be stayed further until the processes within the Commission had been exhausted. I should add that if the principal application is stayed and the Bank was successful in its variation application, there is the prospect the Union would appeal, potentially with the same consequences just discussed. 28 There is, of course, the possibility that if the principal application is not stayed and the Senior Deputy President does grant the Bank's variation application, the Bank will be prejudiced if I have then both answered the preliminary question and answered it in the way contended for by the applicants. It is this prejudice which I view as the material prejudice to the Bank. If the variation application is determined this way and I have not answered the preliminary question, the matter can be reopened. In that case or if I have answered the preliminary question in the way contended for by the Bank, the only real prejudice to the Bank will have been incurring costs and suffering the other burdens associated with a hearing that, with the benefit of hindsight, was unnecessary. Also relevant is the use of public resources and Court time in conducting the hearing now. 29 No question of witnesses, wasted preparatory work or competition for the determination of common facts arises in this matter. 30 Having balanced the various matters I have discussed, and, in particular, the possibility that the Bank might succeed in the variation application in circumstances which will give rise to the material prejudice discussed earlier, I am not satisfied a sufficient basis has been made out for either adjourning or staying the principal application with the manifest prejudice to the applicants of further delay in determining whether the rights they assert they have, truly arise under the Award. Accordingly I dismiss the Bank's stay application. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore. Associate: Dated: 5 March 2004 Counsel for the Applicant: S Rothman SC with P Ginters Solicitor for the Applicant Geoffrey Edwards & Co Counsel for the Respondent: R Ellicott QC with J Fernon SC Solicitor for the Respondent Freehills Date of Hearing: 2 March 2004 Date of Judgment: 5 March 2004