Australian Workers Union v Registered Organisations Commissioner
[2018] FCA 517
•20 March 2018
FEDERAL COURT OF AUSTRALIA
Australian Workers Union v Registered Organisations
Commissioner [2018] FCA 517
File number: VID 1151 of 2017 Judge: NORTH J Date of judgment: 20 March 2018 Date of hearing: 20 March 2018 Registry: Victoria Division: General Division National Practice Area: Employment & Industrial Relations Category: No Catchwords Number of paragraphs: 11 Counsel for the Applicant: Mr H Borenstein QC with Mr C J Tran Solicitor for the Applicant: Maurice Blackburn Counsel for the First Respondent: Mr C O’Grady QC with Mr M J Follett Solicitor for the First Respondent: Ashurst Australia Counsel for the Second Respondent: Mr G Livermore Solicitor for the Second Applicant: Australian Government Solicitor ORDERS
VID 1151 of 2017 BETWEEN: AUSTRALIAN WORKERS UNION
Applicant
AND: REGISTERED ORGANISATIONS COMMISSIONER
First Respondent
COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE
Second Respondent
JUDGE:
NORTH J
DATE OF ORDER:
20 MARCH 2018
THE COURT ORDERS THAT:
1.The hearing of the trial presently listed before Bromberg J to commence on 26 March 2018 is vacated.
2.The applicant’s application for inspection filed 21 December 2017 is adjourned for directions to 10.15 am on 8 June 2018 in particular for a report back by the second respondent on the progress of the investigation.
3.Costs reserved.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
NORTH J:
The applicant in the proceeding, the Australian Workers’ Union (AWU), applies for an adjournment of the trial presently listed to commence before Bromberg J on 26 March 2018.
The application for an adjournment requires the Court to balance the interests of the parties to the proceeding. Those interests have been outlined to the Court, in both written and oral submissions.
During the course of the application, the second respondent, the Commissioner of the Australian Federal Police (AFP), relied upon three confidential affidavits sworn by Deputy Commissioner Leanne Close of the Australian Federal Police. Those affidavits, and particularly the latter two, sworn on 16 and 19 March 2018, depose to the ongoing investigation, and also to the likely conclusion of the investigation. The affidavits satisfy me that the investigation is active and that the AFP is taking steps expeditiously in support of the investigation.
The AFP claimed public interest immunity on the basis that release of certain specified documents to the AWU would prejudice the ongoing investigation. I am satisfied from looking at the documents that that claim for public interest immunity is made out on the material. Deputy Commissioner Close anticipated that the investigation should conclude within three to four months of the date of her affidavit dated 16 March 2018.
I am also satisfied from the material that there is a real likelihood that the information contained in the redacted portion of the documents might assist the AWU in the establishment of its pleaded claim that the decision of the first respondent, the Registered Organisations Commissioner (Commissioner), to conduct an investigation was done for an improper purpose. It would, therefore, be a disadvantage and unfair to the AWU if it were forced to trial without having access to those documents. That is an interest upon which the AWU can rely.
Against that interest, senior counsel for the Commissioner, contended that there are a number of factors in their client’s favour which should be balanced against this interest. First, the Commissioner was undertaking an investigation in support of a statutory function and should be permitted to proceed with that function as quickly as is possible. Then, the allegation of improper purpose is a serious allegation capable of damaging the reputation of the Commissioner. It is prejudicial to have that allegation unresolved for too long. Finally, the application was brought on 25 October 2017, and an agreed program culminating in a trial in the near future was agreed. In return for that timetable, there was an agreed interlocutory restraint on the further consideration by the Commissioner of his investigation.
Each of the arguments of the Commissioner has considerable force - the first two, however, more than the third.
In relation to the third argument, a trial at this stage represents a faster hearing than can ordinarily be expected in the Court. The early hearing of this matter would necessarily have meant that other matters in the Court would have been delayed.
The first two arguments, however, do have force, particularly, the potential damaging effect of the allegations being unresolved. However, when weighed against the prejudice to the AWU in not having access to the documents which might well advance its case the balance is in favour of the trial date being vacated.
Influential in that view is the prediction by Deputy Commissioner Close that the investigation should be concluded within the next three to four months. A delay of that nature, when added to the time it would take if the trial were conducted when it was intended, is not likely to have such a damaging effect as to outweigh the potential detriment to the AWU if the trial were to proceed on the date previously fixed.
Consequently, the trial listed on 26 March 2018 before Bromberg J is vacated.
I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North. Associate:
Dated: 23 April 2018
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