Glen Cameron Nominees Pty Ltd v Transport Workers' Union of Australia [2017] FCA 1026

FEDERAL COURT OF AUSTRALIA

Glen Cameron Nominees Pty Ltd v Transport Workers' Union of Australia [2017] FCA 1026 Appeal from: Glen Cameron Nominees Pty Ltd t/a Glen Cameron Trucking v Transport Workers' Union of Australia [2017] FWCFB 2907

File number: NSD 1340 of 2017

Judge: PERRAM J

Date of judgment: 30 August 2017

Catchwords: PRACTICE AND PROCEDURE – application for interlocutory injunctive relief – whether arguable case – whether balance of convenience favours granting of injunctions

Legislation: Federal Court of Australia Act 1976 (Cth) s 37M

Date of hearing: 25 August 2017

Registry: New South Wales

Division: General Division

National Practice Area: Employment and Industrial Relations

Category: Catchwords

Number of paragraphs: 15

Counsel for the Applicant: Mr O Fagir

Solicitor for the Applicant: McCabes Lawyers

Counsel for the First Respondent: Mr M Gibian

Solicitor for the First Respondent Transport Workers' Union of Australia, Legal

ORDERS NSD 1340 of 2017

BETWEEN: GLEN CAMERON NOMINEES PTY LTD Applicant

AND: TRANSPORT WORKERS' UNION OF AUSTRALIA First Respondent

FAIR WORK COMMISSION Second Respondent

JUDGE: PERRAM J DATE OF ORDER: 30 AUGUST 2017

THE COURT ORDERS THAT:

1. The interlocutory relief sought against the Respondents in the Applicant's interlocutory application filed on 22 August 2017 be dismissed. 2. No order as to costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

PERRAM J: 1 This is an application by the Applicant ('Glen Cameron Nominees') to restrain the First Respondent, the Transport Workers' Union of Australia ('the TWU'), and the Second Respondent, the Full Bench of the Fair Work Commission ('Full Bench'), from taking any further steps in proceeding C2017/1406 entitled Glen Cameron Nominees Pty Ltd t/a Glen Cameron Trucking v Transport Workers' Union of Australia. On 8 June 2017, the Full Bench made an order refusing to grant permission to Glen Cameron Nominees to appeal an earlier decision which had been made by Deputy President Bull. It is strongly arguable that permission to appeal was not required and that Glen Cameron Nominees could appeal as of right. It is therefore strongly arguable that the decision of the Full Bench is attended by a legal error. 2 The present substantive proceeding was commenced by Glen Cameron Nominees seeking relief which included setting aside the Full Bench's decision to refuse to grant permission, or alternatively, declaring that decision to have been without legal consequence. After the Full Bench made that decision, and after the commencement of the proceedings in this Court, the Full Bench became aware of the error which appears to have been made. On 21 August 2017, it reconvened and indicated that it was minded to revoke the earlier decision to refuse leave but nevertheless set a timetable for submissions on the question of whether it should, in fact, do so. That timetable reaches its final stage later today and it is reasonable to infer that shortly after its expiration, the Full Bench is likely to make a decision on the question of whether it should revoke its earlier decision. 3 Glen Cameron Nominees now seeks to restrain the Full Bench from making that decision. Since that is in substance what it seeks in this Court, this may appear a surprising application. However, Glen Cameron Nominees was candid in admitting that it wishes to have the decision dealt with in this Court by way of orders quashing the decision or declaring it to be invalid so that it may procure the benefit of an order that the matter be heard by a Full Bench of the Commission differently constituted. This will not occur if the Full Bench proceeds to set aside its own decision. 4 The application for the interlocutory injunction is put on a few interrelated bases. First, it is said that the Full Bench lacks the jurisdiction to revoke its earlier decision. Next, it is said that by reason of what occurred at the directions hearing on 21 August 2017, there is a reasonable apprehension that the Full Bench has pre-judged the matter. Thirdly, and perhaps related to the second argument, is a contention that the timetabling orders made by the Full Bench occasion to Glen Cameron Nominees a degree of unfairness. The unfairness is put, I think, as an independent part of the application, but also by way of buttressing of the apprehended bias argument.