Blair v Johnston

[2000] FCA 663

FEDERAL COURT OF AUSTRALIA

Blair v Johnston [2000] FCA 663

Workplace Relations Act 1996 s 209(4)

JOCK BLAIR  v  CRAIG JOHNSTON, DARREN NELSON and MARK LIGHT

V288 of 2000

RYAN J
10 MAY 2000
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY		V288 of 2000
BETWEEN:	JOCK BLAIR Applicant
AND:	CRAIG JOHNSTON First Respondent
DARREN NELSON Second Respondent
MARK LIGHT Third Respondent
JUDGE:	RYAN J
DATE OF ORDER:	10 MAY 2000
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.        The directions hearing be adjourned to 9 June 2000.

2.        The respondent file and serve by 31 May 2000 any affidavit or affidavits in reply.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V288 of 2000

BETWEEN:	JOCK BLAIR Applicant
AND:	CRAIG JOHNSTON First Respondent
DARREN NELSON Second Respondent
MARK LIGHT Third Respondent

JUDGE:	RYAN J
DATE:	10 MAY 2000
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. There is before the Court the first return of a rule to show cause which was granted on 5 May this year.  By that rule as amended by leave granted today, the applicant seeks the following interim orders: 

   “1.Until the hearing and determination of the application herein, each of the respondents perform and observe the rules of the AMWU by giving effect to and complying with the decisions of the AMWU National Council by refraining from publishing or distributing or authorising the sale of advertising to be placed in any publication which incorporates the Metal Engineering and Associated Industries Award 1998 or any trade manual other than the version of the award and the trade manual published on behalf of the AMWU by Union Publicity Service Pty Ltd.

   2.That until the hearing and determination of the application herein, the first-named respondent perform and observe the rules of the AMWU by complying with the direction of the National Secretary, Mr Cameron, contained in a letter dated 11 April 2000 which is Exhibit JB11 to the affidavit of Jock Blair affirmed 4 May 2000.

   3.That each of the respondents perform and observe the rules of the AMWU by giving to the State Secretary, Mr Roe, the publication entitled “Metal Engineering and Associated Industries Award” issued March 2000 which has on its front cover a blue and white Eureka Southern Cross symbol incorporating the words "Proud to be Union".”

2. When the hearing of this matter resumed after the luncheon adjournment today Counsel for the applicants sought leave further to amend paragraph 2 of those proposed interim orders to read: 

   “That within 14 days of the making of this order the first‑named respondent perform and observe the rules of the AMWU by complying with the direction of the national secretary, Mr Cameron, contained in a letter dated 11 April 2000 which is exhibit JB11 to the affidavit of Jock Blair affirmed 4 May 2000 by responding to and complying with the list of questions provided to the first‑named respondent by Mr Blair which are set out in exhibit JB14 to the affidavit of Jock Blair affirmed 4 May 2000.”

3. The need for the first interim order has largely been obviated by the respondents’ giving through their Counsel an undertaking in related proceedings in this Court, Verner v Johnston V164 of 2000, to refrain until the hearing and determination of that application or further order from publishing or distributing the version of the Metal Engineering and Associated Industries Award 1998 which is Exhibit “JS1” to the affidavit of John Speight affirmed 4 May 2000.  I shall refer to that version of the award as “the disputed version”.

4. The respondents in Verner v Johnston who would be bound by the undertaking include each of the respondents to the present application by Mr Blair.  The directions hearing in Verner v Johnston has been adjourned to 9 June 2000.  However, Counsel for the applicant presses the application for interim relief in terms of paragraphs 2 and 3, which I have quoted, whether or not leave be granted further to amend paragraph 2.  In particular, he seeks an interim order requiring the first respondent, Mr Johnston, to provide answers to a questionnaire directed to him by Mr Blair on the instructions of Mr Cameron, the National Secretary of the Union.  It is also submitted that an interim order should be made requiring delivery up to Mr Roe, as State Secretary, of any copies of the disputed version which the respondents may have in their possession. 

5. In support of those interim orders, Mr Damian Murphy, for the applicant, has pointed to s 209(4) of the Workplace Relations Act 1996 which provides: 

   “At any time after the making of an application for an order under this section the court may make such interim orders as it considers appropriate and, in particular, orders intended to further the resolution within the organisation concerned of the matter the subject of the application.”

6. Having heard extensive argument, I am not persuaded that the applicants have established an incontrovertible case of non-performance by the respondents of any identifiable provision of the rules of the Union.  I also remain unconvinced that interim orders in terms of paragraphs 2 and 3 of the orders sought by the applicants would conduce to furthering the resolution, within the Union, of the matter the subject of the present application.  Indeed, I consider that there is unlikely to be any effective resolution of that matter until after the completion of the election which has given rise to the related proceedings in Verner v Johnston.  The ballot in that election, on the evidence in those proceedings, will close on 19 May 2000.  I also consider that it is inappropriate to make interim orders having mandatory effect which would be tantamount to giving the applicants part of the final relief which they seek. 

7. In these circumstances, I shall adjourn the application to 9 June 2000 for further directions, and shall direct that the respondents file and serve by 31 May any affidavit or affidavits on which they intend to rely in answer to the affidavits filed on behalf of the applicants. 

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.

Associate:

Dated:             10 May 2000

Counsel for the Applicant:	Mr M D Murphy
Solicitor for the Applicant:	Holding Redlich
Counsel for the Respondent:	Mr R Niall
Solicitor for the Respondent:	Howie and Maher
Date of Hearing:	10 May 2000
Date of Judgment:	10 May 2000