Eastern Basin Pty Ltd v Maritime Union of Australia

[1999] NSWSC 231

CITATION:	Eastern Basin Pty Ltd v Maritime Union of Australia [1999] NSWSC 231 revised - 25/03/99
CURRENT JURISDICTION:	Equity
FILE NUMBER(S):	1254/99
HEARING DATE(S):	22 March 1999
JUDGMENT DATE:	22 March 1999
PARTIES :	Eastern Basin Pty Ltd (P) Maritime Union of Australia (D1) James Boyle (D2)
JUDGMENT OF:	Hamilton J

COUNSEL :	Mr John Trew QC with him Mr H Bauer and Mr S Wood (P) Mr S Crawshaw SC with him Mr P Ginters (D1 & 2)
SOLICITORS:	Clayton Utz (P) Taylor & Scott (D1 & 2)
CATCHWORDS:	PROCEDURE [26] - Courts - Concurrent jurisdiction of different Courts - Transfer of proceedings under cross vesting legislation - Where appropriate in interests of justice - Where argument as to jurisdiction of Court in which proceedings maintained.
ACTS CITED:	Workplace Relations Act 1996 (Cth) s414 Jurisdiction of Courts (Cross Vesting) Act 1987
CASES CITED:	Williams v Hursey (1959) 103 CLR 30
DECISION:	Proceedings transferred to Federal Court

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

MONDAY, 22 MARCH 1999

1254/99 EASTERN BASIN PTY LTD v MARITIME UNION OF AUSTRALIA & 1 ORS

JUDGMENT

HIS HONOUR:
1 In this matter the plaintiff seeks relief by way of interlocutory injunction against the first defendant which is an organisation registered pursuant to the Workplace Relations Act 1996 (Cth) (the WRA) and the second defendant who is a member of that organisation. The defendants have moved for an order that the proceedings be transferred to the Federal Court of Australia under the provisions of the Jurisdiction of Courts (Cross Vesting) Act 1987. The application is made on 2 bases. The first is that it is argued by the defendant that s414 of the WRA removes from this Court jurisdiction to deal with these proceedings as being jurisdiction in relation to an act or omission for which an organisation or member of an organisation is "liable to be sued". The application is also made on the basis that there are other proceedings pending in the Federal Court of Australia which, whilst not between the same parties, relate to overlapping subject matter and that a trial in the Federal Court would be more convenient.
2 The matter is of some urgency as a ship is scheduled to arrive in Newcastle harbour on Thursday and the application for interlocutory relief is in relation to the handling of that ship. It is true, as the plaintiff has objected, that application for the transfer of the proceedings was not made until this morning, although the interlocutory application has been pending in this Court for some little time. However, there is still time between now and Thursday and the situation is that the time in this Court today up till this moment has been taken up by argument of or of matters preparatory to argument of the transfer application. Just as this Court has facilities for dealing quickly with matters that are urgent, similar facilities are in general terms available in the Federal Court of Australia in Sydney. There is no reason to think they are not available at the present time. The substantive hearing has not commenced in this Court and can as well take place on an urgent basis in the Federal Court as in this Court.
3 On the front of the jurisdiction argument, Mr Trew, of Queen’s Counsel for the plaintiff, says that the jurisdictional point is unarguable. He says that this follows from the decision of the High Court in Williams v Hursey (1959) 103 CLR 30 in relation to s147 of the Conciliation and Arbitration Act 1904 (Cth), which had considerable similarity to the terms of the present s414 of the WRA. However, s147 was, as I understand it, repealed with the Conciliation and Arbitration Act in 1988. The replacing Act did not contain a similar provision, but s414 was inserted in the present legislation in 1993. Whatever the precise legislative history, which there has not been time to research, it is undoubted that the words of the 2 sections are significantly different. The section is differently constructed and the words "in respect of which the Court has jurisdiction" do not appear in s414. Mr Trew has argued that they are unnecessary because of the reconstruction of the sentence and that the section is of identical effect.
4 However, it does not seem to me that it is unarguable that the effect is different and that the jurisdiction of this Court is excluded in the present proceedings. Mr Trew has said that the defendants’ argument will evaporate on analysis. There is not time for analysis. So long as there is an argument, even if it not be a particularly strong one, I think that there is an important reason, from the point of view of the administration of justice in this federal society, why the matter should, under the provisions of the cross vesting legislation, be sent to the Federal Court. If this Court proceeds in the matter, which is a matter of some public interest and public controversy, and grants interlocutory relief of the type sought by the plaintiff, the argument may then well be pursued that, in a difficult and contentious situation, this Court has made its orders without jurisdiction. I think it is most undesirable in the interests of the administration of justice that that sort of situation should arise.
5 As I have already said, similar facilities are available in the Federal Court in Sydney for dealing with this matter in an urgent way and the matter has not proceeded in this Court beyond the jurisdictional argument. I am of the view that the matter should proceed beyond this point in the Federal Court of Australia in Sydney, and I propose to order that the proceedings be transferred to that Court in its New South Wales District Registry. Mr Trew has asked, in view of the lateness of the application, that I should make it a condition of making such an order that some form of undertaking by the defendants as to future conduct ought to be exacted as the price of the order, but as I think the matter should now proceed in the Federal Court I do not believe that the situation should be trammelled by such a condition imposed by this Court. I do not therefore propose to attach such a condition to the making of the order I propose. As to costs, it may be that a day has been lost by the argument of the transfer application. The costs of today will be reserved.
6 The orders that I make are that these proceedings, 1254/99 in the Equity Division of this Court, be transferred to the Federal Court of Australia, New South Wales District Registry. Costs of today are reserved.

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Last Modified: 25/03/99