CPSU, The Community & Public Sector Union & Ors v Pacific Access Pty Ltd
[1998] FCA 1551
•04 DECEMBER 1998
CPSU, THE COMMUNITY AND PUBLIC SECTOR UNION, JOHN THEODORSEN, CATE COLEMAN, FRAN SCIARETTA, DAVID LETIZIA, GRACE COLLIER, SEAN MOUNTFORD, JENNIFER HOLDCROFT, MAYA STUART-FOX, KAREN ATHERTON and STEPHEN JONES v. PACIFIC ACCESS PTY LTD
No. VG 641 of 1998
FED No. 1551/98
Number of pages - 12
Industrial Law
(1998) 89 FCR 106
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
MARSHALL J
Industrial Law - right of entry - injunctive and declaratory relief sought to direct the respondent to cease refusing or unduly delaying the entry of union officers and employees to the respondent's premises - whether abuse of process - whether Court has jurisdiction to grant such interlocutory relief - whether serious issue to be tried - balance of convenience.
Federal Court of Australia Act 1976 (Cth) s 23
Trade Practices Act 1974 (Cth) ss 80, 86
Workplace Relations Act 1996 (Cth), ss 285A, 285C, 285D, 285F, 285G, 412
R v Dunlop Rubber Australia Ltd; Ex p Federated Miscellaneous Workers Union (1957) 97 CLR 71
Sea Culture International Pty Ltd v Scoles (1991) 32 FCR 275
Thomson Australian Holdings Pty Ltd v Trade Practices Commission (1981) 148 CLR 150
Patrick Stevedores Operations No 2 Pty Ltd and Others v Maritime Union of Australia and Others (1998) 153 ALR 643
Houssein and Anor v Department of Industrial Relations and Technology (1982) 148 CLR 88
Wentworth v NSW Bar Association (1992) 176 CLR 239
Health Services Union of Australia v North Eastern Health Care Network (1997) 79 FCR 43
Bullock v Federated Furnishing Trades Society of A/asia (1985) 5 FCR 464
MELBOURNE, 27 November 1998 (hearing), 4 December 1998 (decision)
#DATE 4:12:1998
Counsel for the Applicants:
Mr R W Hinkley and Mr D C Langmead Solicitor for the Applicants: Mr Steve Ramsay Counsel for the Respondent: Mr P Jopling QC with Mr M McDonald Solicitor for the Respondent: Freehill Hollingdale and Page
THE COURT ORDERS THAT:
1. Leave be granted to amend the application in terms of the amended application filed in Court on 27 November 1998.
2. Leave be granted to add as applicants in the proceeding the following persons:
Mr John Theodorsen, Ms Cate Coleman, Ms Fran Sciaretta, Mr David Letizia, Ms Grace Collier, Mr Sean Mountford, Ms Jennifer Holdcroft, Ms Maya Stuart-Fox, Ms Karen Atherton and Mr Stephen Jones.
3. Upon the 1st applicant giving the usual undertaking as to damages and pending any further order of the Court, the respondent by itself, its servants or agents, allow each of the 2nd to 11th named applicants inclusive to enter any of the premises set out below at which the respondent employs persons for as long as any such applicant has a permit issued by the Industrial Registrar pursuant to s285A of the Workplace Relations Act 1996 (Cth) and remains an officer or employee of the 1st applicant and the purpose for which such applicant enters any such premises is to hold discussions with any of the employees therein who wish to participate in those discussions, provided that any such applicant may only enter such premises during working hours, and may only hold such discussions during the employees' meal time or other breaks: 1/35 Grafton Street, Woollahra, NSW; 117 Gipps Street, Fortitude Valley, QLD; 225 Greenhill Road, Dulwich, SA; 60 Liverpool Street, Hobart, TAS, 2nd Flr 436 Elgar Road, Box Hill, VIC; 400 Queen Street, Melbourne, VIC; Greenwood Office Park Building 3/301 Burwood Hwy, Burwood, VIC (in respect of any employee of the respondent who works at the Burwood, Victoria premises of the respondent on the production, distribution or sales of Telstra's White Pages directory); 1100 Hay Street, West Perth, WA.
4. Liberty to apply be reserved on not less than 24 hours notice to each other party.
5. The directions hearing be adjourned to 9:30 am on 4 December 1998.
6. The respondent's notice of motion of 27 November 1998 be dismissed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
MARSHALL J
On 27 November 1998 the Court dealt with an application for interlocutory orders against the respondent. Shortly after the completion of submissions of counsel the Court announced that it would make the following order ("the order").
1. Leave be granted to amend the application in terms of the amended application filed in Court on 27 November 1998.
2. Leave be granted to add as applicants in the proceeding the following persons:
Mr John Theodorsen, Ms Cate Coleman, Ms Fran Sciaretta, Mr David Letizia, Ms Grace Collier, Mr Sean Mountford, Ms Jennifer Holdcroft, Ms Maya Stuart-Fox, Ms Karen Atherton and Mr Stephen Jones.
3. Upon the 1st applicant giving the usual undertaking as to damages and pending any further order of the Court, the respondent by itself, its servants or agents, allow each of the 2nd to 11th named applicants inclusive to enter any of the premises set out below at which the respondent employs persons for as long as any such applicant has a permit issued by the Industrial Registrar pursuant to s285A of the Workplace Relations Act 1996 (Cth) and remains an officer or employee of the 1st applicant and the purpose for which such applicant enters any such premises is to hold discussions with any of the employees therein who wish to participate in those discussions, provided that any such applicant may only enter such premises during working hours, and may only hold such discussions during the employees' meal time or other breaks: 1/35 Grafton Street, Woollahra, NSW; 117 Gipps Street, Fortitude Valley, QLD; 225 Greenhill Road, Dulwich, SA; 60 Liverpool Street, Hobart, TAS, 2nd Flr 436 Elgar Road, Box Hill, VIC; 400 Queen Street, Melbourne, VIC; Greenwood Office Park Building 3/301 Burwood Hwy, Burwood, VIC (in respect of any employee of the respondent who works at the Burwood, Victoria premises of the respondent on the production, distribution or sales of Telstra's White Pages directory); 1100 Hay Street, West Perth, WA.
4. Liberty to apply be reserved on not less than 24 hours notice to each other party.
5. The directions hearing be adjourned to 9:30 am on 4 December 1998.
Upon the Court making the order the parties were informed that I would deliver my reasons for deciding to make the order as soon as reasonably practicable. Those reasons follow.
BACKGROUND TO THE APPLICATION
On 24 November 1998 the applicant, CPSU, The Community and Public Sector Union ("CPSU") filed an application under s285F of the Workplace Relations Act 1996 (Cth) ("the Act"). The application sought the following relief:
"1. The Respondent by itself, its servants or agents, refrain from contravening or cease contravening Section 285E of the Workplace Relations Act 1996 ("the Act") by refusing or unduly delaying entry to premises by officers of and employees of the Community and Public Sector Union ("CPSU") entitled to enter them under section 285C.2. The Respondent by itself, its servants or agents, allow, on the giving of at least 24 hours notice, entry to any of its premises for the purposes of exercising powers under section 285C of the Act to each of the following persons for so long as that person has a permit issued by the Industrial Registrar under section 285A of the Act and remains an officer or employee of the CPSU:
Mr John Theodorsen Ms Cate Coleman Ms Fran Sciaretta Mr David Letizia Ms Grace Collier Mr Sean Mountford Ms Jennifer Holdcroft Ms Maya Stuart-Fox Ms Karen Atherton Mr Stephen Jones
3. A penalty be imposed on the Respondent."
CPSU sought interlocutory relief largely in terms of paragraphs 1 and 2 of the relief sought in the substantive application.
At the hearing of the application for interlocutory relief CPSU successfully sought to amend the substantive application to add as applicants those persons referred to in paragraph 2 of the claim for relief. CPSU also successfully sought to amend the substantive application by seeking the following additional relief:
"A declaration that the second to eleventh named Applicants are entitled on the giving of at least 24 hours notice, to enter any of the Respondent's premises."
FACTUAL BACKGROUND
CPSU is an organisation of employees registered pursuant to the Act. The second to eleventh applicants are officers or employees of the CPSU in respect of whom the Industrial Registrar has issued permits under s285A of the Act. CPSU has amongst its membership some 80 persons employed by the respondent, Pacific Access Pty Ltd ("the company").
The company was incorporated in 1991 as a joint venture company. The major shareholder in the company is Telstra Corporation Limited ("Telstra"). Pursuant to an agreement entered into with Telstra in 1997 the company compiles, produces, makes, distributes and sells copy space in Telstra's White Pages directories ("the directories").
Until 1997 the production of the directories was undertaken by a business unit within Telstra known as National Directory Services ("NDS"). The main business of NDS was the management of the production and distribution of the directories and associated products and the maintenance of related systems. During 1997 Telstra decided to outsource the function performed by NDS to the company. The company has operations in all States of Australia. Work performed in connection with its directories functions is performed in the locations referred to in the order.
Between 1 July 1997 and 3 November 1997 Telstra's NDS staff were seconded by Telstra to work for the company. The company directed the work activities of such staff but employment costs were paid by Telstra. NDS staff were advised over that period that they would be either offered employment by the company, be re-deployed or made redundant by Telstra. On 3 November 1997 former NDS staff who accepted an offer of employment with the company became employees of the company and resigned from Telstra. There was no change in their work functions as a result of the change of employer. About 42 per cent of the former NDS staff were transferred in this way to work for the company. When the former NDS staff were employed by Telstra the terms and conditions of their employment were regulated by the following awards made by the Australian Industrial Relations Commission ("AIRC"):
* Telstra/CPSU (Consolidated) Award 1996
* Telstra Corporation General Conditions of Employment Award 1996
* Telstra Sales Force Conditions Award 1993
Various of the second to eleventh applicants have sought to enter premises of the company for the purposes of holding discussions with the company's employees. The company has denied access to the second to eleventh applicants on the basis that no work is carried on at its premises pursuant to an award which is binding on the CPSU.
In late October 1998 the company made the eleventh applicant, Mr Jones, aware of its intention to make a workplace agreement with its employees pursuant to s170LK of the Act. The company refused requests by CPSU to allow its officers to be involved in negotiations regarding the proposed agreement. CPSU sought certain orders from the AIRC to enable it to hold discussions with its members at the company's workplaces. The company opposed the AIRC making any such orders on the basis that it lacked jurisdiction to do so.
During the course of the proceedings in the AIRC counsel for the company announced that the company intended to circulate a proposed agreement pursuant to s170LK of the Act on 27 November 1998. He also announced that the company desired to conduct a vote on the proposed agreement in the two weeks following, with a view to having the agreement certified by the AIRC before Christmas 1998.
On 20 November 1998 CPSU obtained legal advice about its right to commence proceedings in this Court pursuant to s285F of the Act. The receipt of that advice lead to the application being filed on 24 November 1998 and an interlocutory injunction being sought on 27 November 1998.
THE LEGISLATIVE CONTEXT
Division 11A of Part IX of the Act is entitled "Entry and inspection of premises etc. by organisations". Part IX of the Act deals with "registered organisations". It traverses such matters as:
* the process of registration
* the requirements regarding rules
* elections within organisations
* limitations on persons holding office
* amalgamations
* withdrawal from amalgamations
* rights of members
* accounting issues
and related matters.
It is a Part which deals essentially with the main rights and obligations of organisations having regard to the relatively privileged position they hold in Australian industrial law, and have historically held of representing not only those who are their members but the class of person eligible for membership as a "party principal". See R v Dunlop Rubber Australia Ltd; Ex p Federated Miscellaneous Workers Union (1957) 97 CLR 71.
One right given to an organisation by the Act is a right to empower its officers or employees to inspect the premises of employers provided that certain conditions are met.
Section 285A of the Act provides as follows:
"(1) A Registrar may, on application by an organisation in accordance with the regulations, issue to an officer or employee of the organisation a permit in the form prescribed for the purposes of this section.(2) The permit: (a) remains in force until it expires or is revoked under this section; and (b) expires at the earlier of: (i) 3 years after the day on which it was issued; or (ii) the time at which the person to whom it was issued ceases to be an officer or employee of the organisation concerned.
(3) A Registrar may, on application in accordance with the regulations, revoke the permit if he or she is satisfied that the person to whom it was issued has, in exercising powers under this Division, intentionally hindered or obstructed any employer or employee or otherwise acted in an improper manner.
(4) An application for the revocation of a permit must set out the grounds on which the application is made.
(5) A person to whom a permit has been issued under this section must, within 14 days after the expiry or revocation of the permit, return the permit to the Registrar.
(6) If one or more permits issued to a person under this section have been revoked, the Registrar must take the fact into account when deciding whether to issue a further permit under this section to the person."
Section 285C of the Act provides that:
"(1) A person who holds a permit in force under this Division may enter premises in which: (a) work is being carried on to which an award applies that is binding on the organisation of which the person holding the permit is an officer or employee; and (b) employees who are members, or eligible to become members, of that organisation work; for the purposes of holding discussions with any of those employees who wish to participate in those discussions.(2) The person may only enter the premises during working hours and may only hold the discussions during the employees' meal-time or other breaks."
Section 285D of the Act provides that:
"(1) If: (a) a person proposes to enter, or is on, premises in accordance with section 285B or 285C; and (b) the occupier of the premises requires the person to show his or her permit; the person is not entitled under that section to enter or remain on the premises unless he or she shows the occupier the permit.(2) A person is only entitled to enter premises, and exercise powers, under section 285B or 285C if the person has given the occupier of the premises at least 24 hours' notice of the person's intention to do so.
(3) A person is not, in exercising any powers under section 285B or 285C, entitled to enter any part of premises used for residential purposes, except with the permission of the occupier."
Section 285F of the Act makes the following provisions:
"(1) In this section: eligible court means: (a) the Federal Court of Australia; or (b) a District, County or Local Court; or (c) a magistrate's court. penalty provision means subsection 285A(5) or 285E(1),(2), (3) or (4). (2) If a person contravenes a penalty provision, the contravention is not an offence. However, an eligible court may make an order imposing a penalty on a person who contravenes a penalty provision.(3) The penalty cannot be more than $10,000 for a body corporate or $2,000 in other cases.
(4) An application for an order under subsection (2) may be made by any person.
(5) An eligible court may grant an injunction requiring a person not to contravene, or to cease contravening, a penalty provision."
Section 285G of the Act provides:
"(1) In spite of section 89A, the Commission may exercise its powers under Part VI of this Act to prevent and settle industrial disputes about the operation of this Division, but must not make an order for that purpose conferring powers that are additional to, or inconsistent with, powers exercisable under this Division.(2) However the Commission does have power, for the purpose of preventing or settling the industrial dispute, to revoke a permit issued to a person under section 285A. If it does so, it may make any order that it considers appropriate, for the purpose of preventing or settling the industrial dispute, about the issue of any further permit to the person, or of any permit or further permit to any other person, under that section."
THE CLAIM FOR INTERLOCUTORY RELIEF
On 27 November 1998 the CPSU was represented by Mr Hinkley and Mr Langmead (both of counsel). The company was represented by Mr Jopling QC who appeared with Mr McDonald of counsel. At the commencement of the hearing for interlocutory relief Mr Jopling sought to file in Court a notice of motion seeking that:
"...the proceedings be stayed pursuant to Order 20 Rule 2(1)(c) on the grounds that the proceedings are abuse (sic) of the process of the Court."
Mr Hinkley consented to the Court hearing the company's notice of motion together with CPSU's claim for interlocutory relief.
Mr Jopling submitted that the application before the Court was an abuse of process having regard to the fact that the issues raised by it are subject to an extant application in the AIRC. He also submitted that the Court did not, in any event, have the jurisdiction to make an interlocutory order under s285F(5) of the Act. Mr Jopling further contended that the application disclosed no serious issue to be tried and that the balance of convenience did not favour the grant of injunctive relief.
(a) The abuse of process issue
The AIRC is empowered pursuant to s285G of the Act to prevent and settle industrial disputes about the operation of Division 11A of the Act. In so doing the AIRC has broad powers which are not constrained by s89A of the Act. If there is an industrial dispute about the operation of the Division or if there is likely to be such a dispute about its operation an organisation is obliged by s99 of the Act to notify the AIRC of that fact. The fulfilment of that requirement before an administrative tribunal cannot act as a bar to an organisation enforcing its rights in an "eligible court" pursuant to s285F of the Act.
In support of the respondent's notice of motion Mr Jopling, with one exception, referred the Court to cases where relief was sought concerning the same subject matter in two courts. The AIRC is not a Court. It lacks judicial power. The cases referred to by Mr Jopling are entirely inapposite to the present situation. The exercise of the power by the AIRC to prevent or settle an industrial dispute could rarely, if ever, provide the basis for the Court declining to exercise its jurisdiction on the basis that the invocation of it was an abuse of process.
The case referred to by Mr Jopling, which did not involve the making of claims in different courts, was Sea Culture International Pty Ltd v Scoles (1991) 32 FCR 275. In that matter French J dealt with a notice of motion to stay an application as an abuse of process. The abuse of process was said to arise as a result of proceedings commenced in the Western Australian Industrial Relations Commission. French J ultimately dismissed the notice of motion. At 280 he said that:
"...the difference in the nature of the proceedings in this Court and those in the Industrial Relations Commission, the different issues that are to be determined in the two forums and the possibility that an argument may be available to support the plea in the statement of claim notwithstanding that in the Industrial Relations Commission lead me, although not without some hesitation, to consider that this is not a case in which I should take the drastic remedy of striking out or staying the proceedings as an abuse of process. That is not to say that real questions of credibility do not arise particularly having regard to the range of matters raised in the initial statement of claim in these proceedings and the substantial changes which have occurred in the applicant's case since it was begun here, and the changes made in the position adopted by Dr Melville in the Industrial Relations Commission. In the event I am satisfied that the motion to dismiss or stay the proceedings as an abuse of process should be dismissed."
Although French J dismissed the notice of motion he did so "not without some hesitation". That hesitation arose, it would seem, as a result of the similarities involved in the proceedings having regard to the claim in the Commission being of a monetary nature. In this case I have no hesitation in dismissing the notice of motion having regard to the fact that the AIRC application initiated by CPSU essentially amounted to the notification of a dispute in accordance with its statutory obligations. The fact that the nature of the relief sought was similar is beside the point. In any event as French J said, at 279 in Sea Culture, the power to dismiss or stay a proceeding on the basis that it is an abuse of the court's process is a power which "ought to be very sparingly exercised and only in exceptional cases".
In addition to the orders made on 27 November 1998 I will also order that the respondent's notice of motion dated 27 November 1998 be dismissed.
(b) The Jurisdictional Issue
Mr Jopling contended that the Court was not empowered to grant an interlocutory injunction to require a person not to contravene or to cease contravening s285E of the Act. Mr Jopling submitted that the Court was only able to grant injunctive relief once it had made a finding after a final hearing that a respondent had contravened a penalty provision in the Division.
Mr Jopling described s285F(5) of the Act as "a complete and comprehensive statement of the circumstances in which injunctions might be granted in relation to conduct prohibited by Part IX". That is obviously stating the matter too widely so in fairness to the submission I will treat the reference to "Part IX" as a reference to "Div 11A of Part IX".
It was submitted by Mr Jopling that "when a specific statute which invests a Court with jurisdiction in matters of a particular class does so in such a way as to limit the power of the Court to grant relief of that kind, there is no basis for transcending that limitation by recourse to the general provisions of the Federal Court of AustraliaAct, such as section 23." He said that such was especially so when the accrued jurisdiction of the Court was not sought to be invoked.
Mr Jopling relied in particular upon the judgment of the majority of the High Court in Thomson Australian Holdings Pty Ltd v Trade Practices Commission (1981) 148 CLR 150 at 161-162.
In Thomson the majority of the High Court held that s86 of the Trade Practices Act 1974 (Cth) ("TP Act") conferred jurisdiction on the Federal Court because of the nature of the particular proceedings, that is, one for the recovery of a pecuniary penalty. At 161 s23 of the Federal Court of Australia Act 1976 (Cth) ("the Court Act") is described in the following way:
"...it arms the Court with power to make all kinds of orders and to issue all kinds of writs as may be appropriate, but it does not provide authority for granting an injunction where there is otherwise no case for injunctive relief."
The TP Act was interpreted in Thomson as not authorising the grant of injunctions other than in situations referred to in s80 of that Act.
The jurisdiction of the Court in this matter is invoked by s412 of the Act. That section provides so far as is material, that:
"The Court has jurisdiction with respect to matters arising under this Act in relation to which:(a) applications may be made to it under the Act...
(e) penalties may be sued for and recovered under this Act"
As the majority of the High Court said in Patrick Stevedores Operations No 2 Pty Ltd and Others v Maritime Union of Australia and Others (1998) 153 ALR 643 at 655:
"The power to make an interlocutory order is exercised by reference to the relief finally available but that is not, or is not necessarily, to say that the power to make the final order is the source of the power to make an interlocutory order or confines the power to make an interlocutory order." (emphasis supplied)
Their Honours went on at 655-656 to say that:
"Once the jurisdiction conferred on the Federal Court by the Act is invoked, that court has power under s23 of the Federal Court of Australia Act 1976 (Cth) (the Federal Court Act) to make "orders of such kinds, including interlocutory orders ... as the Court thinks appropriate". That power may be exercised in any proceeding in which the Federal Court has jurisdiction unless the jurisdiction invoked is conferred in terms which expressly or impliedly deny the s23 power to the court in that class of proceeding. It cannot be invoked to grant an injunction where the court acquires its jurisdiction under a statute which provides an exhaustive code of the available remedies and that code does not authorise the grant of an injunction. But this is not such a case."
Section 285F(5) of the Act permits the Court to grant injunctive relief in a matter like the instant application where it is alleged that a penalty provision is being contravened. It is entirely beside the point that no accrued common law relief is sought. The jurisdiction of the Court having been invoked by s412 of the Act and the Court being specifically endowed with powers to grant injunctive relief it is contended by Mr Jopling that such injunctive relief cannot include interlocutory relief. In support of that submission reference is made to other like provisions to s285F(5) of the Act such as s298U(e) which refer to "injunctions (including interim injunctions)".
In my view the word "injunction" in s285F(5) of the Act is wide enough to cover particular types of "injunction" one of which is an "interlocutory injunction". To draw a comparison with s298U(e) of the Act to support a submission that the draftsman did not intend that interim or interlocutory injunctions be made under s285F(5) of the Act is to be careless with the maxim expressio unius which:
"...must always be applied with care, for it is not of universal application and applies only when the intention it expresses is discoverable upon the face of the instrument... It is "a valuable servant, but a dangerous master": Colquhoun v Brooks (1888) 21 QBD 52 at 65."
See Houssein v Department of Industrial Relations and Technology (1982) 148 CLR 88 at 94.
See also Wentworth v NSW Bar Association (1992) 176 CLR 239, 250 where Deane, Dawson, Toohey and Gaundron JJ said:
"It has often been said that the expressio unius maxim is one that should be applied with caution. It can only be applied if "the intention it expresses is discoverable upon the face of the instrument". And to the extent that the maxim is concerned with the drawing of an inference (specifically, a negative inference), it can only be applied if the inference is not inconsistent with other provisions of the Act and is otherwise permitted by the ordinary rules of construction."
The ordinary rules of construction do not favour the view that an interlocutory injunction is not an injunction of the kind referred to in s285F(5) of the Act. I am also of the view that the jurisdiction of the Court having been invoked by s412 of the Act and the remedy of injunction being specifically contemplated by s285F(5) the Court can, as recognised by s23 of the Court Act, make interlocutory orders, as the Court thinks appropriate.
There is nothing in the Act or any other statute which limits the power of this Court to grant an interlocutory injunction of the kind sought by CPSU in this matter.
(c) Serious Issue to be tried
Mr Jopling submitted that the provisions of Division 11A had not been satisfied by CPSU because it had not been shown that work was being carried on at any premises of the company in respect of which an award applies that is binding on the CPSU.
I did not require Mr Hinkley to address the Court in reply on this issue. In my opinion, if the evidence before the Court for this interlocutory application remains in its current form at trial, a very strong case has been established to show that the company is bound by awards to which the CPSU is a party (being the awards referred to earlier in these reasons) as a result of a transmission of part of the business of Telstra to the company when some of the former NDS staff became employees of the company in the circumstances described earlier in these reasons for judgment. See s149(1)(d) of the Act and Health Services Union of Australia v North Eastern Health Care Network (1997) 79 FCR 43.
BALANCE OF CONVENIENCE
It is pertinent in the current circumstances to bear in mind the observations of Woodward J (with whom Smithers and Sweeney JJ agreed) in Bullock v Federated Furnishing Trades Society of A/asia (1985) 5 FCR 464 at 472 that:
"...when it becomes necessary to consider the balance of convenience, it is, I believe, quite proper to continue to bear in mind the apparent strength of the applicants' case; the two legs of the test need not be considered in isolation from each other. Thus an apparently strong claim may lead a court more readily to grant an injunction when the balance of convenience is fairly even. A more doubtful claim (which nevertheless raises "a serious question to be tried") may still attract interlocutory relief if there is a marked balance of convenience in favour of it."
I do not believe that there is a marked balance of convenience in favour of interlocutory relief. I hold that view because of the delay by CPSU in filing its application in circumstances where the company's refusal to grant its permit holders right of entry has been a live issue for approximately one month prior to the application being lodged. Notwithstanding that, I believe that the balance of convenience does favour the CPSU not only because of the strength of the serious issue raised by its application but because of the importance of it being able to exercise its right of entry at a critical time for its members and persons eligible to be its members, that is, a time at which a s170LK agreement is being considered by such persons.
ORDER
It was for the above reasons that the Court decided to make the order which it made on 27 November 1998. In addition I now also order that the respondent's notice of motion of 27 November 1998 be dismissed. I will now deal with the adjourned directions hearing in the matter and consider what orders should be made in relation to the future conduct of the proceeding.
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