Fire Rescue Victoria v United Firefighters' Union of Australia [2025] FCA 74 File number(s): Judgment of: NESKOVCIN J Date of judgment: 20 January 2025 Date of publication of reasons: 13 February 2025 Catchwords: PRACTICE AND PROCEDURE – production order made by the Fair Work Commission for the United Firefighter's Union to produce a Trust Deed to the applicant and to the Commission – Union did not comply with the production order – applicant sought a mandatory injunction to compel the Union to produce the Trust Deed – whether claim for interlocutory relief is an abuse of process – whether claim should be stayed until application heard by the Commission – scope of the production order made by the Commission considered – order made for the production of the Trust Deed – application for a stay dismissed Legislation: Fair Work Act 2009 (Cth) ss 590, 593, 739 Federal Court of Australia Act 1976 (Cth) s 23 All Care Australia v Fair Work Ombudsman [2024] FCA 545 Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57; [2006] HCA 46 Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v ALS Industrial Australia Pty Ltd (2015) 235 FCR 305; [2015] FCAFC 123. Cases cited: Bradto Pty Ltd v State of Victoria (2006) 15 VR 65; [2006] VSCA 89 Civil Air Operations Officers Association of Australia v Airservices Australia (No 2) [2021] FCA 993 Duggan v Metropolitan Fire and Emergency Services Board (2017) 251 FCR 1; [2017] FCAFC 112 Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1; [1998] HCA 30 Samsung Electronics Co. Ltd v Apple Inc. (2011) 217 FCR 238; [2011] FCAFC 156 Division: Fair Work Division Registry: Victoria National Practice Area: Number of paragraphs: 34 Date of hearing: 20 January 2025 Counsel for the Applicant: Robyn Sweet KC & Brendan Avallone Solicitor for the Applicant: Lander & Rogers Counsel for the First Respondent: CA Massy Solicitor for the First Respondent: Slater and Gordon Lawyers Counsel for the Second Respondent: C Murdoch KC & J McKenna Solicitor for the Second Respondent: Davies Lawyers ORDERS VID 1380 of 2024 BETWEEN: FIRE RESCUE VICTORIA Applicant UNITED FIREFIGHTERS' UNION OF AUSTRALIA AND: First Respondent PETER MARSHALL Second Respondent order made by: NESKOVCIN J DATE OF ORDER: 20 JANUARY 2025 THE COURT NOTES THAT: 1. Fire Rescue Victoria, by its Counsel, undertakes that it will submit to such order (if any) as the Court may consider just for the payment of compensation (to be assessed by the Court or as it may direct), to any person (whether or not that person is a party), affected by the operation of these orders or undertakings or any continuation (with or without variation) of these orders or undertakings. THE COURT ORDERS THAT: 1. By 5:00pm on 21 January 2025, the first respondent is to produce to the Fair Work Commission (by email to Chambers.Wilson.C@fwc.gov.au) and the solicitors for the applicant (by email to kgulle@landers.com.au and ataraborrelli@landers.com.au) the following document: 1. the trust deed (Trust Deed) for the discretionary trust established by or on behalf of the United Firefighters Union of Australia – Victorian Branch, of which Alternative Risk Management Services Pty Ltd (ABN 70 649 963 191) is trustee. 2. The Trust Deed produced in accordance with order 1 above is subject to the requirements in relation to confidentiality and distribution of the document as ordered by the Commission in proceeding C2024/5387 [FWC Order PR779526] on 24 September 2024. 3. Paragraph 2 of the second respondent's interlocutory application filed on 16 January 2025, seeking a stay of the applicant's claim for interlocutory relief identified in its Originating Application filed on 12 December 2024, is dismissed. 4. The proceeding is referred to the National Operations Registry for allocation to a Docket Judge to, among other things, deal with the balance of the second respondent's interlocutory application. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT (Delivered ex tempore, revised from the transcript) NESKOVCIN J 1. In its Originating Application, the applicant, Fire Rescue Victoria (FRV), sought interlocutory relief by way of an injunction to compel the respondents to produce, to the applicant's solicitors and to the Fair Work Commission, the Trust Deed for a discretionary trust established by or on behalf of the United Firefighters' Union of Australia – Victorian branch. The application was opposed. By interlocutory application dated 16 January 2024, the first respondent, the United Firefighters' Union of Australia, sought a stay of FRV's claim for interlocutory relief identified in its Originating Application until proceeding C2024/5387 was heard and determined by the Commission. 2. The Originating Application was filed on 12 December 2024 and came before me as the Victorian Duty Judge on 19 December 2024 and again on 20 December 2024, at which time I made orders for substituted service and listed the claim for interlocutory relief on 20 January 2025. In the meantime, the Union filed an interlocutory application for a stay of FRV's claim for interlocutory relief. I listed both applications for hearing at the same time. The short turnaround time and urgent nature of the applications were due to the fact that the dispute in the Commission was set down for arbitration on 11–12 March 2025 and FRV was due to file its materials for the arbitration by 31 January 2025. 3. For the reasons that follow, I made an order for the production of the Trust Deed and dismissed the Union's application for a stay. BACKGROUND 1. On 7 August 2024, the Union lodged an application for the Commission to deal with a dispute with FRV, pursuant to s 739 of the Fair Work Act 2009 (Cth) (FW Act) and the dispute resolution procedures in the Fire Rescue Victoria Operational Employees Interim Enterprise Agreement 2020. 2. On 27 August 2024, FRV made an application to the Commission pursuant to s 590(2)(c) of the FW Act for an order for production of the Trust Deed. Section 590 empowers the Commission to inform itself in relation to a matter in such manner as it considers appropriate, including by requiring a person to provide copies of documents or records or to provide any other information to the Commission. 3. The application was heard by Commissioner Wilson on 16 August 2024. On 24 September 2024, Commissioner Wilson made orders for the production of the Trust Deed subject to a confidentiality regime. The orders were subsequently amended. For the purposes of the present application, the relevant order was the 'correction order' made on 30 September 2024 (which should include the schedule in the original order, which refers to the Trust Deed) (production order). 4. The production order relevantly provides: [1] Having regard to the provisions of s.590 and s.593 of the Fair Work Act 2009, the following Orders are made by the Commission; (a) Subject to paragraphs (b), (c) and (d) herein, the United Firefighters' Union of Australia of 410 Brunswick Street Fitzroy VIC 3065 is ORDERED to provide to the Fair Work Commission the documents, records and other information specified in the Schedule to this order ("the Documents") before the Fair Work Commission at the following time, date and place: Time: 10:00 AM Date: Tuesday, 8 October 2024 Place: Via email to Chambers.Wilson.C@fwc.gov.au kgulle@landers.com.au and ataraborrelli@landers.com.au (b) Until further order of the Commission, the Documents so produced are confidential and may not be distributed to or accessed by a person other than; (i) the United Firefighters' Union of Australia, its lawyers and persons it authorises; (ii) a nominated senior executive of Fire Rescue Victoria and lawyers acting for Fire Rescue Victoria in relation to the proceedings before the Fair Work Commission in matter number C2024/5387; (iii) a Member or employee of the Fair Work Commission dealing with matter number C2024/5387. (c) Fire Rescue Victoria is to advise the Commission and the United Firefighters' Union of Australia of the name and position of the "nominated senior executive" referred to in paragraph (b)(ii), by no later than 10 AM Monday 30 September 2024. (d) A person authorised by paragraph (b)(ii) above to access the Documents may only do so for the purposes of responding to the Fair Work Commission proceedings in matter number C2024/5387. [emphasis in original] 1. The Union had not complied with the production order. However, it said it was not required to do so because the production order only applied to conciliation and, having moved to arbitration, the order was 'spent'. LEGAL PRINCIPLES Interlocutory injunctions 1. The principles applicable to the grant of interlocutory injunctions are well established. An applicant must demonstrate that there is a prima facie case and that the balance of convenience favours the grant of an injunction: see Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57; [2006] HCA 46 at [19] (Gleeson CJ and Crennan J) and [65] (Gummow and Hayne JJ) and Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1; [1998] HCA 30 at [21] (Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ). 2. To satisfy the requirement for a prima facie case, it is not necessary for the applicant to establish that it is 'more likely than not' or 'probable' that it will succeed at trial, rather, it must demonstrate sufficient prospects to show that the situation does not become irredeemable: O'Neill at [19] and [65]. 3. Insofar as the balance of convenience is concerned, it is for the court to weigh up the competing implications of granting or not granting the injunction and to determine what is just in all the circumstances. That is, whether the applicant's inconvenience or injury, which may arise from not granting the injunction, outweighs the inconvenience or injury to the respondent if the injunction is granted: O'Neill at [19] and [65]. 4. It is uncontroversial that the requirements of a prima facie case and the balance of convenience are related inquiries. An apparently strong claim may cause the court to grant an injunction if the balance of convenience is fairly even and a more doubtful but prima facie claim may still result in an injunction if the balance of convenience tilts strongly in favour of it: Bradto Pty Ltd v State of Victoria (2006) 15 VR 65; [2006] VSCA 89 at [39] (Maxwell P and Charles JA) and Samsung Electronics Co. Ltd v Apple Inc. (2011) 217 FCR 238; [2011] FCAFC 156 at [67] (Dowsett, Foster and Yates JJ). 5. The relief sought by FRV was in the nature of a mandatory injunction. FRV conceded that such injunctions are rare and that there is dicta suggesting they should issue only in the most exceptional circumstances. However, FRV submitted that the circumstances of this case were similar to other cases, in which the courts have been prepared to grant a mandatory injunction, where the respondent's conduct had been contumelious or evasive or where the respondent had attempted to forestall the court's order: see Dyson, Leeming, Turner, Meagher, Gummow & Lehane's Equity: Doctrines & Remedies (5th ed, LexisNexis Butterworths, 2015) at [21-395]. Stay of proceedings 1. Under s 23 of the Federal Court of Australia Act 1976 (Cth), the Court has power to make orders of such kinds, including interlocutory orders, as the Court thinks appropriate. Such orders include granting a stay of the Court's proceedings. 2. The relevant principles in relation to an order to stay proceedings were summarised in All Care Australia v Fair Work Ombudsman [2024] FCA 545 (Dowling J) at [25] as follows: 3. The consideration of whether to grant a stay is a matter for the Court's discretion, to be exercised where it is in the interests of justice to do so: Websyte Corporation Pty Ltd v Alexander (No 2) [2012] FCA 562 at [53] (Dodds-Streeton J), citing Rochfort v John Fairfax & Sons Ltd [1972] 1 NSWLR 16 at [19] and [21] (Sugerman ACJ, with whom Holmes and Mason JJA agreed). 4. The Court's task is to balance justice between the parties, having regard to all relevant factors, where each case is to be judged on its own merits, and it would be wrong to attempt to define in the abstract the relevant factors: Jefferson v Bhetcha [1979] 2 All ER 1108 at [1113], cited with approval in ResMed Limited v Australian Manufacturing Workers' Union (No 2) [2015] FCA 537; (2015) 243 FCR 366 at [48]–[52] (Perry J). 5. The Court should not lightly take any step to delay the resolution of any matter properly brought before it for resolution: National Tertiary Education Industry Union v Monash University [2022] FCA 1368 at [24] (Snaden J). 6. The Court should consider the overarching purpose of civil practice and procedure provisions; relevantly whether the stay would facilitate the just resolution of the dispute, according to law, and as quickly, inexpensively and efficiently as possible: Federal Court Act 1976 (Cth), s 37M and ResMed at [48]–[52] (Perry J). CONSIDERATION 1. The grounds on which the respondents opposed FRV's claim for interlocutory relief, and on which the Union sought a stay, overlapped somewhat. In effect, the Union submitted that FRV's claim for interlocutory relief should be refused because the production order expired on 3 December 2024, when the proceeding before the Commission moved to the arbitration stage and the production order was 'spent', in the sense that it no longer operated to require the Union to produce the Trust Deed. The Union further submitted that the Union was not required to comply with procedural orders of the Commission. 2. The Union also submitted that the balance of convenience did not favour production of the Trust Deed because: 3. FRV can adequately mount its case based on what its advisors, who have been granted access to the Trust Deed subject to a confidentiality regime, have told it about the contents of the document; 4. FRV can seek an order for production from the Full Bench as part of the arbitration; and 5. the subject matter of the claim for interlocutory relief is to be ventilated before the Full Bench of the Commission and, if the injunction was granted, it would destroy part of the litigation presently before the Commission and prevent the Full Bench from dealing with that issue. 6. In relation to the Union's stay application, the Union submitted that the claim for interlocutory relief was an abuse of process because the Commission has decided that it would consider the issue of production of the Trust Deed at the start of the arbitration and it is unjust and unfair to require the Union to deal with the issue of the production of the Trust Deed in more than one forum. Alternatively, the claim for interlocutory relief should be stayed on case management grounds because it was undesirable for the Court to interfere with the conduct of the case in the Commission in circumstances where no legal error had been shown, or alleged, in relation to the Commission's handling of the matter. 7. As already noted, the grounds on which the Union opposed FRV's claim for interlocutory relief, and on which the Union sought a stay, overlapped somewhat. The starting point for the determination of the applications is the meaning of the production order made by Commissioner Wilson, which is to be determined by the production order and the Commission's decision made on 24 September 2024 (production decision). 8. The production order was expressed to have been made under ss 590 and 593 of the FW Act. As FRV pointed out, s 590 deals with the Commission's powers to inform itself, and provides that the Commission may "inform itself in relation to any matter before it in such manner as it considers appropriate". Paragraph 1(a) of the production order required the Union to provide the Trust Deed to the Commission. Paragraph 1(b) of the production order required the Trust Deed to be produced to the applicant, to the persons designated in the order, and specified that the Trust Deed "so produced" was to be kept confidential "[u]ntil further order of the Commission…". 9. It is clear from the production decision that Commissioner Wilson regarded the Trust Deed as relevant. The parties were in dispute as to the meaning and duration of the production order, which dispute had arisen from paragraphs [21]–[25] of the production decision, which are reproduced below: [21] After considering the submissions of each party and the limited material before me at this time, I am satisfied that a case has been made for the provision of the Trust Deed directly to FRV. The document plainly has relevance to the course of proceedings before me. I am concerned that without production of the document, further conciliation will be ineffective, with a key party perhaps not being as aware of its situation as it should be, and being unable to respond with appropriate concessions or responses to the UFU. I am then concerned that, without production of the document, arbitration, if necessary, may be similarly ineffective, or that the Commission as arbitrator is inadvertently misdirected. [22] While I am prepared to grant the application for an order, I am also of the view that this needs to be done in two stages. [23] First, taking into account my observation that FRV needs access to the Trust Deed document so as to obtain advice, including legal advice, for the purposes of these proceedings – presently at the stage of conciliation – it is my view that the document should be provided to FRV in a controlled and confidential manner. In this respect, I will order that only a nominated senior executive within FRV and its solicitors and barristers retained for these proceedings, may have access to the Trust Deed once produced and then only for the purposes of these proceedings. To the extent that it is necessary to do so I invoke the provisions of s.593 of the Act to give effect to this intention. [24] Second, should the application proceed to arbitration then, subject to further determination, I consider it would be appropriate for the document to be generally available to the parties, their instructors and witnesses in the hearing, albeit that the document may still be subject to a wider confidentiality order. Consideration of any such further order pertaining to the Trust Deed may be made at the appropriate time and I do not issue an order dealing with this second stage at this time. [25] An Order will be made by the Commission through separate instrument in the following terms (and dealing only with the first stage referred to above). 1. At the time of the production order, the matter before the Commission was a conciliation. The matter had not reached (and might not have proceeded to) arbitration. FRV submitted that the production order was an order for production of the Trust Deed without regard to the stage of the matter before the Commission. Further, that what the Commissioner contemplated by the order was that there would be production of the Trust Deed in accordance with the order and that, should the application before the Commission proceed to arbitration, the issue to be revisited was whether the constraints in relation to confidentiality and the dissemination of the Trust Deed should be lifted to make it "generally available to the parties": see [24] of the production decision. 2. The Union submitted that Commissioner Wilson contemplated that the order for production would be for the conciliation only and that the question of production in the arbitration would be "subject to further determination" and dealt with at a later time: see [24] of the production decision. The difficulty, however, with that argument was that, first, the production order was for the production of the Trust Deed, albeit with restrictions placed on the persons who could access the Trust Deed and obligations imposed as to confidentiality. As FRV submitted, production was to occur by that order and it is nonsensical to suggest a further order for production would be required. Second, the production order clearly contemplated that the Trust Deed would be a matter on which the Commission could inform itself under s 590, so as to ensure the entire process before the Commission was not "ineffective" and Commission as arbitrator was not "inadvertently misdirected". 3. In my assessment, the matters which the Commissioner considered ought to be revisited, at the time of the arbitration, were the terms and extent of production of the Trust Deed. That is evident from the production decision and paragraph 1(b) of the production order. The effect of paragraph 1(b) of the production order was that the Trust Deed was to be kept confidential, and not be distributed other than to the persons in paragraph 1(b) of the order, "until further order of the Commission". Under the production order, confidentiality was addressed by invoking the provisions of s 593 and by limiting production to the persons referred to in the order. It was the confidentiality issue and whether the document should be "generally available" which the Commissioner considered should be dealt with at the arbitration. These matters also indicate that the Commissioner did not intend the orders to end when the conciliation came to an end, as the Union contended. 4. As a result, I am satisfied that FRV has demonstrated a prima facie case. The Union submitted that procedural orders are not binding on it and that the cases relied upon by FRV dealt with arbitral awards, and were distinguishable: see Duggan v Metropolitan Fire and Emergency Services Board (2017) 251 FCR 1; [2017] FCAFC 112 and Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v ALS Industrial Australia Pty Ltd (2015) 235 FCR 305; [2015] FCAFC 123. However, the Union did not take me to any authorities directly on point and it is to be noted that the Union has not objected to the jurisdiction of the Commission. In my assessment, it is at least arguable on the construction of the dispute resolution clause in the Fire Rescue Victoria Operational Employees Interim Enterprise Agreement 2020 that the agreement to refer a matter to the Commission and for the Commission to utilise all of its powers is an agreement to be bound by the powers exercised by the Commission. Moreover, FRV contended that the Union was estopped from denying that it has an enforceable obligation under the dispute resolution clause to comply with the production order: see Civil Air Operations Officers Association of Australia v Airservices Australia (No 2) [2021] FCA 993. 5. On the question of the balance of convenience, I am satisfied that the balance of convenience favours FRV. The Union had not complied with the production order which was made in late September 2024. The Union abandoned an appeal of the order. It unsuccessfully sought a stay and it had abandoned proceedings to challenge the stay decision. On 29 November 2024, it foreshadowed an application to vary the production order, however, no such application was made. 6. The Union submitted that, at a directions hearing on 4 December 2024, senior counsel for the Union informed the Deputy President of the Commission that it regarded the order as no longer extant. I accept that there was some attempt to do so, however, it was clear that the Deputy President was proceeding on the basis that the order was extant and was expecting compliance with the order. The Deputy President said, the separate question of the "use of the document that's the subject of the order for purpose of an arbitration might require a further determination by the Bench" (PN16). After counsel for FRV rejected the suggestion that "skipping the conciliation stage means that the order falls away or compliance of the order is not required", and that any submission to that effect should be rejected, the Deputy President said: PN27 DEPUTY PRESIDENT COLMAN: Yes. I think Mr Borenstein was, as I understood it, displaying that at least in the UFU's point of view there might be a further decision that a Full Bench now or would need to make at some point about whether the document, which I think clearly has to be produced - and that a further decision would be required. PN28 I understand now that you dispute this, but a further decision by the Full Bench would be required before the document produced could be used in the arbitration. But I mean, we're nowhere near that point. We're at the point of programming the matter for a hearing, and I mean one imagines, you know, in the ordinary course, well an F52 order for production is issued, the party complies with its legal obligations to do what the Commission orders it to do and produces the document. PN29 When the arbitration comes on for hearing, to the extent that there's a disagreement or further things to be said about what use might be made of the document in the arbitration, well the parties can stand up and say what they like at the start of the proceeding in the course of dealing with any preliminary matters, and the Full Bench will just decide the matter then to the extent a further decision is necessary. 1. In my assessment, the Deputy President was proceeding on the basis that the order was extant and that the separate question as to the "use" of the document in the arbitration would be dealt with by the Full Bench. That ought to have been clear to the Union. If the Union had a contrary view, it was incumbent on the Union to state its position clearly. It did not do so. It has had ample time to return to the Commission to clarify or alter the position, but it has chosen not to do so. 2. The Union submitted that there was no harm to FRV if the injunction was not granted because the question of the production of the Trust Deed could and would be dealt with at the start of the arbitration. In my assessment, the Full Bench was intending to return to the issue of the "use" of the Trust Deed in the arbitration, meaning the issue of its admissibility. By that point, FRV would have had to prepare its material. FRV wanted to see the Trust Deed to prepare for the arbitration and to consider what, if any, use it might seek to make of the Trust Deed. It would be prejudiced in that regard if the Trust Deed were not produced in time for it to prepare its case and, in my assessment, that prejudice was not adequately addressed by the earlier production to its tax advisors. 3. The Union submitted that the Court should not interfere with the Commission's processes and ability to determine its own processes. I have been very mindful of that issue. However, on my interpretation of the Commission's orders and the materials before me, the Commission was reserving to itself the question as to the "use" of the Trust Deed at the arbitration, meaning whether or not it might be tendered in evidence, and any injunction made by this Court would not interfere with the Commission's power to determine that issue. I refer to Justice Hatcher's observations in the decision to refuse to stay the production order, at [30]: This submission may be accepted only in the narrow sense that the Trust Deed will have to be produced (to the Commission, not FRV) and disclosed to the single person nominated by FRV if a stay is not granted. However, the ultimate purpose of orders for production of documents is the use of the documents in the proceedings in question. The Commissioner has made no determination as to whether the Trust Deed should be admitted into evidence or otherwise used in the proceedings, and the UFU's rights in this respect are maintained if a stay is not granted. The UFU did not otherwise identify any substantive prejudice which will arise if a stay is not granted. Its assertion that the Trust Deed is confidential lacked content in that it was not explained what about it is actually confidential or what prejudice to the UFU might flow from its production in accordance with the Order. 1. Finally, the Union's submission that an order for production would destroy the subject matter of the litigation, if it turns out later that the Trust Deed was not used in the arbitration, has no force. In my assessment, the Commission ordered the Trust Deed to be produced so that it could inform itself of a matter under s 590 of the FW Act and to FRV, on a limited basis, with the only issue to be determined later being the use to which the document may be put, in terms of its admissibility. The Union's position and ability to later make submissions about the admissibility of the Trust Deed was not prejudiced by the order for production which was contemplated by the Commission. CONCLUSION 1. For the reasons set out above, I would make an order for production of the Trust Deed and the Union's application for a stay of the interlocutory relief sought by FRV will be dismissed. 2. Insofar as FRV also sought relief against the second respondent, I have decided not to grant that relief as the production order was made against the Union and there was no suggestion that the Union would not comply with an order of this Court. 3. The proceeding will otherwise be referred to the National Operations Registry for allocation to a Docket Judge to, among other things, deal with the balance of the Union's interlocutory application. I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Neskovcin. Associate: Dated: 13 February 2025