Coal & Allied Mining Services Pty Ltd T/A Mt Thorley Operations/Warkworth v Mr Lindsay Douglas Lawrence
[2011] FWA 352
•1 FEBRUARY 2011
[2011] FWA 352 |
|
DECISION |
Fair Work Act 2009
s.603 - Application for varying and revoking FWA decisions
Coal & Allied Mining Services Pty Ltd T/A Mt Thorley Operations/Warkworth
v
Mr Lindsay Douglas Lawrence
(C2010/6062)
VICE PRESIDENT WATSON | SYDNEY, 1 FEBRUARY 2011 |
Application to vary an order PR505577 of Full Bench on 24 December 2010 in matter number C2010/5297- power to vary order of Full Bench - principles for stay of Full bench decision when prerogative writ is sought - discretionary considerations - forum of convenience.
Introduction
[1] This decision, edited from the transcript of proceedings of 17 January 2011 concerns an application by Coal & Allied Mining Services Pty Limited (Coal & Allied) to vary an order by a Full Bench of Fair Work Australia (FWA) reinstating Mr Lawrence in his employment. 1 The application is made under s 603 of the Fair Work Act 2009 (the Act) which provides that FWA may vary or revoke certain decisions of FWA made under the Act. Coal & Allied foreshadows seeking prerogative relief in the High Court or Federal Court and seeks an order in the nature of a conditional stay of the order made by the Full Bench.
Matters Argued
[2] In the submissions before me a number of matters are contested. They include the power of this Tribunal to make the orders sought, the nature of the tests to be applied in considering a stay in a matter of this nature, the submissions on whether the tests are satisfied and matters going to the discretion of the Tribunal to issue a stay or make an order of such a nature in the circumstances of this matter. I do not propose to set out the detail of those arguments for reasons which will become apparent.
Discretionary Considerations
[3] The question of discretion involves a number of important considerations which include the unusual nature of the application to seek a variation of an order made quite recently by a full bench, its consideration by myself as a single member of the same Tribunal, the existence of an alternative means to obtain a stay via the application for prerogative relief that has been made with an accompanying application for remitter originally to the High Court with intent for remitter to the Federal Court, the prospect that an application seeking the variation of the orders sought could be made to a judge of the Federal Court within a week or two and the consideration that ultimately the prerogative relief that is sought is a matter for the court to determine by reference to its jurisdiction, being a judicial function which is not within the jurisdiction of this Tribunal.
[4] Those considerations lead me to the conclusion that the matter is best considered by the Court that will consider whether to grant prerogative relief. This Tribunal has no power to consider such applications. I consider it inappropriate to consider matters such as the tests to be applied for a stay in prerogative writ proceedings and whether there is an arguable case for prerogative relief in circumstances where an application to the court is available. I would not grant the orders sought in this matter even if I were to find that there is power to make the orders and merit in the application. For those discretionary reasons I decline to issue the orders sought in the application.
[5] In the circumstances I do not consider it appropriate to express any views as to the other matters that have been argued as to power to make the orders and the existence of an arguable case or the balance of convenience. In my view, it is more appropriate in all of the circumstances that if Coal & Allied wishes to seek a variation of the order it seeks that variation elsewhere. I express no view on the matters that the court may need to consider in that regard.
Conclusion
[6] For the above reasons the application is dismissed.
VICE PRESIDENT WATSON
Appearances, 7 January 2011:
G Hatcher SC with Y Shariff of counsel for Coal & Allied Mining Services Pty Limited
A Slevin of counsel with K Endacott for Mr Lawrence
Appearances, 17 January 2011:
P Kite SC, with S Gardiner for Coal & Allied Mining Services Pty Limited
M Gibian with K Endacott for Mr Lawrence
Hearing details:
2011.
Sydney.
January 7, 17
1 PR505577
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<Price code A, PR506021>
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