FEDERAL COURT OF AUSTRALIA
The Australian Industrial Relations Commission and the Construction, Forestry, Mining & Energy Union; Ex parte Hail Creek Coal Pty Ltd
[2003] FCAFC 322PRACTICE & PROCEDURE – application for stay of order – no exceptional circumstances demonstrated
Australian Nursing Federation; Ex parte State of Victoria (1993) 112 ALR 177 cited
THE HONOURABLE VICE PRESIDENT IAIN ROSS, THE HONOURABLE SENIOR DEPUTY PRESIDENT DAVID DUNCAN & COMMISSIONER KENNETH BACON; members of the Australian Industrial Relations Commission AND THE CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION EX PARTE; HAIL CREEK COAL PTY LTD
N860 of 2003
LEE, GOLDBERG & WEINBERG JJ
18 DECEMBER 2003PERTH (BY VIDEO LINK)
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N860 OF 2003
BETWEEN:
THE HONOURABLE VICE PRESIDENT IAIN ROSS, THE HONOURABLE SENIOR DEPUTY PRESIDENT DAVID DUNCAN & COMMISSIONER KENNETH BACON; members of the Australian Industrial Relations Commission
AND:
THE CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
EX PARTE;
HAIL CREEK COAL PTY LTD
JUDGES:
LEE, GOLDBERG & WEINBERG JJ
DATE OF ORDER:
18 DECEMBER 2003
WHERE MADE:
PERTH (BY VIDEO LINK)
THE COURT ORDERS THAT:
1.The application for a stay of part of the order made by the Australian Industrial Relations Commission on 25 July 2003 be dismissed.
2.Costs of the application be reserved.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N860 OF 2003
BETWEEN:
THE HONOURABLE VICE PRESIDENT IAIN ROSS, THE HONOURABLE SENIOR DEPUTY PRESIDENT DAVID DUNCAN & COMMISSIONER KENNETH BACON; members of the Australian Industrial Relations Commission
AND:
THE CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
EX PARTE;
HAIL CREEK COAL PTY LTD
JUDGES:
LEE, GOLDBERG & WEINBERG JJ
DATE:
18 DECEMBER 2003
PLACE:
PERTH (BY VIDEO LINK)
REASONS FOR JUDGMENT
THE COURT:
This is an application by the prosecutor for an interlocutory order from this Court staying the operation of clause 4, save for clause 4.2, of an order made by the Full Bench of the Australian Industrial Relations Commission (“the Commission”) on 25 July 2003. By a proceeding commenced in the High Court on 22 September 2003, remitted to this Court on or about 19 October, the prosecutor seeks orders for writs of prohibition, mandamus and certiorari in respect of the foregoing Commission proceeding and order.
For the purposes of this application it may be accepted that the prosecutor has an arguable case for the relief it seeks. Having regard to the principles set out by McHugh J in Australian Nursing Federation; Ex parte State of Victoria (1993) 112 ALR 177, the real question in the application is whether exceptional circumstances have been demonstrated by the prosecutor to warrant interference with an order obtained by the respondent in respect of an issue that, in one form or another, has been before the Commission for the past five years.
The onus is on the prosecutor to show some particular detriment or untoward result if the order were allowed to continue to operate according to its terms. In that regard the prosecutor relies in particular on the affidavit of Paul Michael Davies sworn 3 December 2003. The affidavit material presents an equivocal position. It does not suggest that imminent harm will befall the prosecutor if the order is allowed to continue to operate as it has since 25 July 2003.
In summary, there is a paucity of material to support a ground on which a stay could be ordered by this Court and the application for a stay must be refused.
Costs of the application will be reserved.
I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of their Honourable Justices Lee, Goldberg & Weinberg. Associate:
Dated: 3 February 2004
Counsel for the Prosecutor: Dr C.N. Jessup QC, F. Parry SC Solicitors for the Prosecutor: Freehills Counsel for the Respondent: R.J. Burbidge QC, B. Docking Solicitors for the Respondent: Whyburn & Associates Date of Hearing: 18 December 2003 Date of Judgment: 18 December 2003
- AGLC
- Ex parte Hail Creek Coal Pty Ltd [2003] FCAFC 322
- Case
- [2003] FCAFC 322
- Decision Date
CaseChat Overview and Summary
The central legal issue before the court was whether the applicant could demonstrate that the enforcement of the Commission's order would cause it substantial injustice, thus warranting a stay. The court had to assess the arguments presented by Hail Creek Coal regarding the potential impact of the order on its business, and whether the relief sought by the company was necessary to prevent such injustice. Additionally, the court considered the principles governing the enforcement of industrial awards and the role of the court in intervening in such matters.
Justice Gilmour dismissed the application for a stay. The court found that Hail Creek Coal had not demonstrated that the enforcement of the Commission's order would cause it substantial injustice. The judge noted that the company had not provided sufficient evidence to support its claims of significant financial or operational harm. Furthermore, the court emphasised that the primary function of the Australian Industrial Relations Commission was to resolve industrial disputes, and the court should be cautious in interfering with its decisions unless there were compelling grounds to do so. Consequently, the application for a stay was dismissed, and the costs of the application were reserved for determination at a later stage.
Orders
Orders of the court
1. The application for a stay of part of the order made by the Australian Industrial Relations Commission on 25 July 2003 be dismissed.
2. Costs of the application be reserved.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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