Federated Ironworkers Association v Boyne Smelters Ltd

[1991] FCA 937

IN THE FEDERAL COURT Or A ~ ~ ~ ~ I A	1
OUEENSLAND DISTRICT REGISTRY	1
INDUSTRIAL DIVISION	1 No. Q1 5-15 of 1991

RE: FEDERATED IRONWORKERS

ASSOCIATION

Applicant

AND: BOYNE SMELTERS LTD

Respondent

CORAM:	Burchett J.
PLACE :	Brisbane
DATE :	6 September 1991

EX TEMPORE REASONS FOR JUDGMENT

In this matter, prosecutions were launched under section

334 of the Industrial Relations Act 1988 very promptly after

the dismissal of some 54 employees. The prosecutions related to 11 of these dismissals, which are claimed to fall within section 334 on the ground that the persons dismissed were or had been members or officers of an organisation. Prior to

,, these dismissals, there had been a log of claims.

Subsequently, further disputes arose, and there are proceedings on foot in the Commission which include proceedings seeking a variation of the relevant award so as to secure the reinstatement of all of the men, including the 11 the subject of the prosecutions. The jurisdiction of the Commission has been challenged and has not yet been determined finally, there being an appeal on foot which is to be heard next week. The prosecutions were set down some considerable

what is sought is an adjournment of them until after the time ago for hearing commencing on the 16th of this month, and

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determination of the question of jurisdiction in respect of
the proceedings in the Commission.

Mr Martin, who appears for the prosecutor, has undertaken that, should jurisdiction be finally found in his client's favour, the prosecutions will be withdrawn. The adjournment is opposed on the ground that the defendant has prepared for the hearing of the prosecutions at considerable expense, and

W	is anxious to have the allegations made against it cleared up as quickly as possible. It is submitted that it would be quite inappropriate to adjourn criminal proceedings, in order to give precedence to the proceedings in the Commission, when the defendant is anxious to have the prosecutions proceed and be determined. It is pointed out that, under section 334(7), the objective of the proceedings in the Commission, so far as the eleven persons the subject of the prosecutions are concerned, could be achieved as a result of a successful prosecution. I was referred to Bowlinq v. General Motors -
L/	Holdenrs Ptv Ltd 50 FLR 79, which suggests that this would
successful prosecution. follow, if not as of course, at least generally, upon such a
In my opinion, there is a fundamental principle that a party is entitled to have proceedings, whether civil or criminal, but perhaps more especially criminal proceedings, dealt with as soon as may reasonably be in the normal course of dealing with the Court's business, subject only to the reasonable vicissitudes of litigation, and to the

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demonstration of a sufficient reason for making an exception and granting an adjournment in a particular case. In this case, I think the defendants are entitled to insist on the prosecution making up its mind whether it will proceed or not, and if it wishes to proceed, proceeding on the date which has been allotted. Accordingly, I refuse the application.

Mr Callinan QC asks me to reserve costs on the footing

L, that it is possible that, ultimately, there might be jurisdiction shown in the proceedings to make a costs order on the footing that the proceedings are frivolous or vexatious. I should say firmly that there is not the slightest indication at this stage, so far as I am aware, that these proceedings do fall within that category, but I think that if I am asked to reserve costs on that ground, there can be no valid reason why I should not do so, and I therefore reserve any question of costs.

I certify that this and the preceding two (2) pages

are a true copy of the Reasons for Judgment herein

of Mr Justice Burchett.

Associate : 
Date: 

Counsel for the Applicant:	Mr. G. Martin
Solicitors for the Applicant:	Messrs Carberry and McGuire
Counsel for the Respondent:	Mr. I. Callinan Q.C.
Mr. A. Herbert
Solicitors for the Respondent:	Messrs Freehill Hollingdale
& Page
Date of hearing:	6 September 1991