Health Services Union v Jackson (No 2) - [2015] FCA 670

FEDERAL COURT OF AUSTRALIA
Health Services Union v Jackson (No 2) [2015] FCA 670

Citation: Health Services Union v Jackson (No 2) [2015] FCA 670

Parties:
HEALTH SERVICES UNION v KATHERINE JACKSON; KATHERINE JACKSON v HEALTH SERVICES UNION

ROBERT ELLIOTT v HEALTH SERVICES UNION; HEALTH SERVICES UNION v ROBERT ELLIOTT, MICHAEL WILLIAMSON and KATHERINE JACKSON

File numbers: VID 1042 of 2013
NSD 1501 of 2013

Judge: TRACEY J

Date of judgment: 22 June 2015

Catchwords: PRACTICE AND PROCEDURE – application for permanent stay of proceedings – whether proceedings brought for improper purpose – whether proceedings should be stayed due to unavailability of evidence

Legislation: Federal Court of Australia Act 1976 (Cth) s 37M
Civil Procedure Act 2005 (NSW) s 56

Cases cited: Clarke v State of New South Wales (2006) 66 NSWLR 640 – cited
Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd (2009) 239 CLR 75 – cited
Palavi v Radio 2UE Sydney Pty Ltd [2011] NSWCA 264 – cited

Date of hearing: 22 June 2015

Place: Melbourne

Division: FAIR WORK DIVISION

Category: Catchwords

Number of paragraphs: 42

Counsel for the Applicant/Cross-Claimant: Mr MA Irving and Mr T Borgeest

Solicitor for the Applicant/Cross-Claimant: Holding Redlich

Counsel for the Respondent/ Third Cross-Respondent: Mr M Robinson SC and Ms D Dinnen

Solicitor for the Respondent/Third Cross-Respondent: Beazley Boorman Lawyers

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

FAIR WORK DIVISION

VID 1042 of 2013

BETWEEN:
HEALTH SERVICES UNION
Applicant

AND:
KATHERINE JACKSON
Respondent

AND BETWEEN:
KATHERINE JACKSON
Cross-Claimant

AND:
HEALTH SERVICES UNION
Cross-Respondent

JUDGE:

TRACEY J

DATE OF ORDER:

22 JUNE 2015

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1.The respondent’s application for a permanent stay of the proceeding be refused.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

FAIR WORK DIVISION

NSD 1501 of 2013

BETWEEN:
ROBERT ELLIOTT
Applicant

AND:
HEALTH SERVICES UNION
Respondent

AND BETWEEN:
HEALTH SERVICES UNION
Cross-Claimant

AND:
ROBERT ELLIOTT
First Cross-Respondent

MICHAEL WILLIAMSON
Second Cross-Respondent

KATHERINE JACKSON
Third Cross-Respondent

JUDGE:

TRACEY J

DATE OF ORDER:

22 JUNE 2015

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1.The third cross-respondent’s application for a permanent stay of the proceeding be refused.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

FAIR WORK DIVISION

VID 1042 of 2013

BETWEEN:
HEALTH SERVICES UNION
Applicant

AND:
KATHERINE JACKSON
Respondent

AND BETWEEN:
KATHERINE JACKSON
Cross-Claimant

AND: HEALTH SERVICES UNION
Cross-Respondent

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

FAIR WORK DIVISION

NSD 1501 of 2013

BETWEEN:
ROBERT ELLIOTT
Applicant

AND:
HEALTH SERVICES UNION
Respondent

AND BETWEEN:
HEALTH SERVICES UNION
Cross Claimant

AND:
ROBERT ELLIOTT
First Cross-Respondent

MICHAEL WILLIAMSON
Second Cross-Respondent

KATHERINE JACKSON
Third Cross-Respondent

JUDGE:

TRACEY J

DATE:

22 JUNE 2015

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

These proceedings were commenced in the Court in 2013 and are fixed for hearing…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] FCA 670
Decision Date: 22 June 2015

CaseChat Overview and Summary

The Health Services Union and two other unions sought to stay proceedings against the respondent and another party, which were brought to enforce a collective agreement. The unions argued that the proceedings were brought for an improper purpose and that certain evidence was unavailable. The dispute was heard in the Federal Court of Australia. The unions contended that the proceedings were brought for an improper purpose, specifically to avoid the application of the Fair Work Act 2009, and that the respondent's application should be stayed due to the unavailability of evidence. The respondent and the other party argued that the unions' claims were without merit and that the proceedings were brought to enforce a lawful agreement.

The court examined whether the unions had demonstrated that the proceedings were brought for an improper purpose and whether the unavailability of evidence justified a stay. The court found that the unions had not established that the proceedings were brought for an improper purpose. The unions had not provided evidence to support their claim, and the court noted that the enforcement of a lawful agreement was a legitimate purpose. Regarding the unavailability of evidence, the court held that the respondent had not demonstrated that the unavailability of the evidence would result in substantial injustice or that it was not reasonably available. The court rejected the unions' arguments and refused to stay the proceedings.

The court's reasoning was based on the principles of abuse of process and the unavailability of evidence. The court found that the unions had not shown that the proceedings were brought for an improper purpose and that the respondent had not demonstrated that the unavailability of evidence justified a stay. The unions' application for a permanent stay of the proceedings was refused, and the respondent and the other party were allowed to proceed with their enforcement action. The court's decision ensured that the enforcement of lawful agreements would not be unduly impeded by unfounded claims of improper purpose or unavailable evidence.

Orders

Orders of the court

1. The respondent’s application for a permanent stay of the proceeding be refused.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

1. The third cross-respondent’s application for a permanent stay of the proceeding be refused.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

BETWEEN:	ROBERT ELLIOTT Applicant
AND:	HEALTH SERVICES UNION Respondent
AND BETWEEN:	HEALTH SERVICES UNION Cross-Claimant
AND:	ROBERT ELLIOTT First Cross-Respondent
MICHAEL WILLIAMSON Second Cross-Respondent
KATHERINE JACKSON Third Cross-Respondent

Citation:	Health Services Union v Jackson (No 2) [2015] FCA 670
Parties:	HEALTH SERVICES UNION v KATHERINE JACKSON; KATHERINE JACKSON v HEALTH SERVICES UNION ROBERT ELLIOTT v HEALTH SERVICES UNION; HEALTH SERVICES UNION v ROBERT ELLIOTT, MICHAEL WILLIAMSON and KATHERINE JACKSON
File numbers:	VID 1042 of 2013 NSD 1501 of 2013
Judge:	TRACEY J
Date of judgment:	22 June 2015
Catchwords:	PRACTICE AND PROCEDURE – application for permanent stay of proceedings – whether proceedings brought for improper purpose – whether proceedings should be stayed due to unavailability of evidence
Legislation:	Federal Court of Australia Act 1976 (Cth) s 37M Civil Procedure Act 2005 (NSW) s 56
Cases cited:	Clarke v State of New South Wales (2006) 66 NSWLR 640 – cited Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd (2009) 239 CLR 75 – cited Palavi v Radio 2UE Sydney Pty Ltd [2011] NSWCA 264 – cited
Date of hearing:	22 June 2015
Place:	Melbourne
Division:	FAIR WORK DIVISION
Category:	Catchwords
Number of paragraphs:	42
Counsel for the Applicant/Cross-Claimant:	Mr MA Irving and Mr T Borgeest
Solicitor for the Applicant/Cross-Claimant:	Holding Redlich
Counsel for the Respondent/ Third Cross-Respondent:	Mr M Robinson SC and Ms D Dinnen
Solicitor for the Respondent/Third Cross-Respondent:	Beazley Boorman Lawyers

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
FAIR WORK DIVISION	VID 1042 of 2013

BETWEEN:	HEALTH SERVICES UNION Applicant
AND:	KATHERINE JACKSON Respondent
AND BETWEEN:	KATHERINE JACKSON Cross-Claimant
AND:	HEALTH SERVICES UNION Cross-Respondent

JUDGE:	TRACEY J
DATE OF ORDER:	22 JUNE 2015
WHERE MADE:	MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
FAIR WORK DIVISION	NSD 1501 of 2013