Harcourt v BHP Billiton Iron Ore Pty Ltd & Ors
[2008] FMCA 860
•24 June 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HARCOURT v BHP BILLITON IRON ORE PTY LTD & ORS | [2008] FMCA 860 |
| HUMAN RIGHTS – Discrimination – disability – termination of employment. PRACTICE & PROCEDURE – Injunction – ex parte – whether sufficiently urgent – whether irreparable damage. |
| Disability Discrimination Act 1992 (Cth) s.15(2) Federal Magistrates Act 1999 (Cth) ss.8(3), 15(a) Human Rights and Equal Opportunity Commission Act 1986 (Cth) ss.46PO(1) & (6) and 46PP(1) |
| Bates v Lord Hailsham of St Marylebone & Ors [1972] 1 WLR 1373 Thomas A Edison Ltd v Bullock (1913) 15 CLR 679 Jandruwanda v Regency Park College of TAFE [2003] FCA 1455 Jandruwanda v University of South Australia [2003] FMCA 205 Keller v Tay [2004] FMCA 182 Rispoli v Merck Sharpe & Dohme & Ors [2003] FMCA 160 Skipworth v State of Western Australia & Ors (No 2) [2008] FMCA 544 Sluggett v DIAC [2008] FMCA 735 Waters v Public Transport Corporation (1991) 173 CLR 349 |
| Applicant: | TREVOR JOHN HARCOURT |
| First Respondent: | BHP BILLITON IRON ORE PTY LTD |
| Second Respondent: | BHP BILLITON MINERALS PTY LTD |
| Third Respondent: | MITSUI-ITOCHU IRON PTY LTD |
| Fourth Respondent: | ITOCHU MINERALS & ENERGY OF AUSTRALIA PTY LTD |
| File Number: | PEG 98 of 2008 |
| Judgment of: | Lucev FM |
| Hearing date: | 24 June 2008 |
| Date of Last Submission: | 24 June 2008 |
| Delivered at: | Perth |
| Delivered on: | 24 June 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr J. Blackburn |
| Solicitors for the Applicant: | Carlo Primerano & Associates |
| Counsel for the Respondent: | Not applicable |
| Solicitors for the Respondent: | Not applicable |
ORDERS
All times be abridged to enable the ex-parte application to be heard today.
The application for an ex-parte injunction be dismissed.
The Applicant serve a copy of:
(a)the Application;
(b)the Applicant’s affidavits;
(c)the Applicant’s submissions; and
(d)this Order
on the First Respondent as soon as possible, and, in any event by no later than 10.00am on 25 June 2008, such service to be effected where possible by facsimile transmission.
Service on the First Respondent shall be sufficient service on the Second, Third and Fourth Respondents.
Prior to 10.30am on 27 June 2008 there is to be conferral between the legal representatives for the Applicant and the First to Fourth Respondents, with a view to reaching agreement as to:
(a)the future conduct of this matter; and
(b)resolution of any of the outstanding issues, either on a temporary or permanent basis.
The first court date and application for interim relief be adjourned to 10.30am on 27 June 2008.
There be liberty to apply.
No order as to costs of today.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 98 of 2008
| TREVOR JOHN HARCOURT |
Applicant
And
| BHP BILLITON IRON ORE PTY LTD |
First Respondent
| BHP BILLITON MINERALS PTY LTD |
Second Respondent
| MITSUI-ITOCHU IRON PTY LTD |
Third Respondent
| ITOCHU MINERALS & ENERGY OF AUSTRALIA PTY LTD |
Fourth Respondent
REASONS FOR JUDGMENT
(EDITED FROM EX TEMPORE REASONS)
Introduction and Background Facts
This is return of an application for a first court date and also an application for an ex-parte interim injunction:
a)against the First to Fourth Respondents to restrain the exercise of an option to purchase the property being purchased by the Applicant under the First Respondent’s Home Ownership Scheme,[1] consequent upon the Applicant being employed by the First Respondent; and
b)against the First Respondent seeking reinstatement.
[1] “HOS”.
The Applicant was employed by the First Respondent as a Production Supervisor, but the employment was terminated with effect from 4 June 2008, ostensibly upon the basis that the Applicant was unfit to perform the inherent requirements of the position.[2] That termination had the effect of triggering the provisions in the HOS contract, allowing the First to Fourth Respondents to give 30 days written notice of an intention to exercise an option to repurchase the house being purchased and occupied by the Applicant,[3] because the applicant had not been purchasing the house for the minimum period of 5 years specified in the HOS.[4]
[2] Applicant’s Affidavit sworn 23 June 2008 (“Applicant’s First Affidavit”).
[3] Applicant’s First Affidavit, Annexure TJH 12.
[4] Applicant’s First Affidavit, Annexure TJH 11.
On about 3 June 2004 the Applicant lodged a complaint alleging discrimination on the basis of a disability contrary to s.15(2) of the Disability Discrimination Act 1992 (Cth)[5] by reason of the First Respondent not allowing him to return to the position of Production Supervisor and denying him access to alternative employment, resulting in treatment less favourable to him than that afforded a person without a disability.[6]
[5] DD Act.
[6] Applicant’s First Affidavit, Annexure TJH 21.
On about 19 June 2008 the Applicant was advised, by telephone by an officer of the First Respondent, that an application by him to purchase the house (under the terms of the HOS) had been rejected by “the head of the HR Department”.[7] This application was then made, promptly in all the circumstances, on 23 June 2008.
[7] Applicant’s First Affidavit, para. 132.
Relief sought
The Applicant seeks ex-parte relief in circumstances where:
a)the application has not been served on any of the Respondents; and
b)the HREOC[8] complaint has not seemingly been served on any of the Respondents;[9]
and therefore the Respondents are wholly unaware of the HREOC complaint or of this application. It follows that there has been no conferral by any legal representatives of the parties with a view to appropriate resolution of issues, either permanently or temporarily.
[8] Human Rights and Equal Opportunity Commission (“HREOC”).
[9] Applicant’s First Affidavit, para. 123.
The Applicant also seeks ex-parte relief in circumstances where:
a)the Applicant is the registered owner of the premises on which the house is situated;
b)the Applicant continues to occupy the premises;
c)the First Respondent has advised, in any event, that the Applicant will be allowed to remain in the house until 31 December 2008 on rental charged by the First Respondent of $100 to $140 per week, and where the current market rental is in the vicinity of $750 to $1200 per week;[10] and
d)no written notice of an intention to exercise the option under the HOS has been given by the First to Fourth Respondents.
[10] Applicant’s First Affidavit, paras. 101 and 132.
The Applicant has been terminated from his employment and has been requested to fill out a form terminating his participation in the HOS as a precondition to his final payment.[11] He has not done so because he is concerned that he will then be given notice by the Respondents to exercise the option to repurchase the house.[12]
[11] Applicant’s First Affidavit, para. 80 and Annexure TJH 25.
[12] Applicant’s Affidavit sworn 24 June 2005, paras. 8 and 9 (“Applicant’s Second Affidavit”).
In all the circumstances, the Court considers that there is no immediate danger of the Applicant’s occupation of the premises ceasing, and certainly not within a period of some weeks.
Granting of ex-parte injunction
An ex-parte injunction would normally be granted where:
a)there is an element of urgency, which is the first and most basic requirement; and
b)proceeding inter partes would cause irreparable damage, or
c)notice to the other party will of itself cause harm.
There must be strong evidence, particularly to support an allegation of the latter kind.[13]
[13] Thomas A Edison Ltd v Bullock (1913) 15 CLR 679 at 681 per Isaacs J; Bates v Lord Hailsham of St Marylebone & Ors [1972] 1 WLR 1373 at 1380 per Migarry LJ; BC Cairns, Australian Civil Procedure (6th Edn) (Pyrmont: Law Book Co, 2005) at pp 435-436.
In this case the Applicant is concerned that the First to Fourth Respondents might take steps, or might already have taken steps (a submission made unsupported by any evidence of the fact), to exercise the option to purchase the house.
It is also suggested that because the Second to Fourth Respondents are not parties to the HREOC complaint, they might not be subject to the Court’s jurisdiction under ss.46PO and 46 PP of the HREOC Act.[14] That might be the case if there was an application to this Court against the Second to Fourth Respondents alleging unlawful discrimination under s.46PO(1) of the HREOC Act. This matter is not yet at that stage, and all relevant decisions (properly cited by the Applicant) relate to circumstances where parties sought to be joined to an application under s.46PO(1) of the HREOC Act were not parties to a complaint before the HREOC.[15]
[14] Human Rights and Equal Opportunity Commission Act 1986 (Cth) (“HREOC Act”).
[15] Jandruwanda v Regency Park College of TAFE [2003] FCA 1455 at paras. 10-11 per Selway J; Jandruwanda v University of South Australia [2003] FMCA 205 at para. 4 per Raphael FM; Keller v Tay [2004] FMCA 182 at paras. 19-21 per Phipps FM; Rispoli v Merck Sharpe & Dohme & Ors [2003] FMCA 160 at para. 69 per Driver FM.
It is the Court’s view, at least at this stage, and pending further argument, that injunctive relief might extend to persons who are not (or in appropriate circumstances, are not yet) party to the HREOC complaint.
In granting injunctive relief under s.46PO(6), and more importantly s46PP(1), the Court may do so:
“to maintain:
(a) the status quo, as it existed immediately before the complaint was lodged; or
(b) the rights of any complainant, respondent or affected person”.[16]
To be effective an injunction must maintain the:
a)status quo as it existed prior to the date of cessation of the Applicant’s employment; or
b)the Applicant’s rights,
which would, if he is successful in ultimately obtaining an order for reinstatement, include all of his entitlements (or rights) under the HOS.
[16] HREOC Act, s.46PP(1).
These are wide provisions with respect to granting of an injunction, and are rights to be construed beneficially.[17]
[17] Waters v Public Transport Corporation (1991) 173 CLR 349 at 359 per Mason CJ and Gaudron J; Sluggett v DIAC [2008] FMCA 735 at para. 70 per Brown FM.
The Court is therefore prepared to proceed, pending further argument, on the basis that it is entitled to issue an ex-parte injunction against the Second to Fourth Respondents.
The Court’s power to issue an injunction against the Second to Fourth Respondents is probably also supported by the Court’s implied incidental power to make orders necessarily incidental to its express powers,[18] including its powers to act in matters within its jurisdiction (including any associated jurisdiction, not presently in issue here) as a court of law and equity under s.8(3) of the Federal Magistrates Act 1999 (Cth)[19] and under s.15(a) of the FM Act with power to make interlocutory orders, including injunctions.
[18] Skipworth v State of Western Australia & Ors (No 2) [2008] FMCA 544 at paras. 28-38 per Lucev FM.
[19] “FM Act”.
Consideration of an ex-parte injunction in this case
The Court has power to issue ex-parte injunctions depending on it being satisfied of:
a)the urgency; and
b)the prospect of irreparable damage (including by provision of notice to another party),
if an injunction is not granted.
The Court is not satisfied of any urgency in this case because there is no or no sufficient evidence of immediate danger of:
a)a change to registered ownership of the property; or
b)any of the First to Fourth Respondents being presently prepared to issue a notice to exercise the option to repurchase the house.
Further, in any event, until the Applicant completes the requisite notice indicating his intention to terminate his participation in the HOS, it appears that the First Respondent is unlikely to act, at least in any immediate sense.
There is no urgency with respect to the issue of reinstatement because reinstatement is arguably really being sought at this stage to preserve the entitlement of the Applicant to participate in the HOS.
The Court is not satisfied, for similar reasons, that there is a prospect of irreparable damage to the Applicant’s rights at this stage. In any event, it is arguable that steps to endeavour to preserve those rights are probably available in relation to possible actions of the First Respondent and the Second to Fourth Respondents, without notice to resort to ex-parte orders,[20] and more appropriately matters to be argued on an inter partes basis.
[20] See paras. 9-16 above. See also s.42 of the DD Act (re victimisation).
Conclusion
The Court considers that it would be more appropriate and more conducive to appropriate disposition of the issues by the parties or by the Court, on either a temporary or permanent basis, if orders were made:
a)that the Applicant serve on the Respondents all relevant documents and affidavits;
b)that there be conferral between the parties prior to the return of the matter to Court; and
c)that the application for a first court date and application for interim relief be adjourned to a date later this week.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Lucev FM
Ag/Associate: S Gough
Date: 24 June 2008
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