Hill v St Anthony's Tennis Club
[2021] FCCA 66
•22 January 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Hill v St Anthony’s Tennis Club [2021] FCCA 66
File number(s): SYG 2827 of 2020 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 22 January 2021 Catchwords: INDUSTRIAL LAW – PRACTICE AND PROCEDURE – Applicant is director of company that provided services to respondent under contract – respondent terminated contract after applicant lodged applications with the Fair Work Commission alleging respondent bullied him and contravened general protection provisions of the Fair Work Act 2009 (Cth) (FW Act) – respondent terminated the contract – applicant applies for relief under FW Act alleging contract was terminated in contravention of s 340 of the FW Act – applicant applied for interlocutory relief for reinstatement of contract – whether the applicant has reasonably arguable case that he has standing to apply for relief in relation to termination of the contract – whether applicant otherwise has reasonably arguable case that respondent contravened s 340 of the FW Act – whether balance of convenience favours the granting of interlocutory relief – application for interlocutory injunction refused. Legislation: Fair Work Act 2009 (Cth) ss 12, 340, 341(1), 342(1), 360, 361(1), 361(2), 365, 370(a), 370(b), 372, 539(1), 539(2), 545, 789FC
Work Health and Safety Act 2011 (Cth), s 7(1)
Cases cited: Australian Broadcasting Corporation v O'Neill [2006] HCA 46
Barclay v Board of Bendigo Regional Institute of Technical and Further Education [2010] FCA 284
Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618
Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32
Castlemaine Tooheys Limited v South Australia (1986) 161 CLR 148
Edwards v Halliwell [1950] 2 All ER 1064
Fair Work Ombudsman v Northcoast Security Services Group Pty Ltd & Ors (No.3) [2020] FCCA 521
Prudential Assurance Co Ltd v Newman Industries Ltd (No 2) [1982] Ch 204
Number of paragraphs: 48 Date of hearing: 15 January 2021 Place: Sydney The Applicant: Appeared in person, by telephone Solicitor for the Respondent: Mr S Alexander of Alexanders Lawyers, by telephone ORDERS
SYG 2827 of 2020 BETWEEN: ANDREW JAMES HILL
Applicant
AND: ST ANTHONY'S TENNIS CLUB ABN 69 475 998 584
Respondent
ORDER MADE BY:
JUDGE MANOUSARIDIS
DATE OF ORDER:
22 JANUARY 2021
THE COURT ORDERS THAT:
1.The applicant’s application for an interlocutory injunction is dismissed.
REASONS FOR JUDGMENT
INTRODUCTION
On 15 December 2020 the applicant, Mr Hill, filed an application with this Court for relief under the Fair Work Act 2009 (Cth) (FW Act) against the respondent, St Anthony’s Tennis Club (SATC). The proceeding was listed for a first court date on 2 February 2021.
On 22 December 2020 there came to my attention an email a Mr Grass had sent to the Court Registry on 18 December 2020 on behalf of Mr Hill. In his email Mr Grass, who is not a lawyer, said he had been advised by the Court Registry “to make urgent representations to expedite Mr Hills [sic] request for an interlocutory injunction in this matter until the matter can come to hearing”. I arranged to have the proceeding listed for directions before me at 9:45 am on 23 December 2020.
Mr Hill, who is not legally represented, appeared at the directions hearing on 23 December 2020 by telephone, and I permitted Mr Grass, who was also on the telephone, to assist Mr Hill. There was no appearance by SATC. At the conclusion of the hearing I made the following orders:
THE COURT NOTES THAT this matter came before Judge Manousaridis for directions at 9:45 am on 23 December 2020 in response to a request by the applicant that there was urgency in the matter. At the directions hearing the applicant indicated that he wished to apply for an interlocutory injunction seeking an order to the effect that the contract between the respondent and AJH Leisure Pty. Limited, a copy of which is annexed to the Form 2 the applicant filed, be immediately reinstated. In those circumstances, the Court proposes to list for hearing such application for an interlocutory injunction at 9:30 am on 15 January 2021. To that end the Court makes the following orders.
THE COURT ORDERS THAT:
1.By 24 December 2020 the applicant serve on the respondent a sealed copy of these orders.
2.By 11 January 2021 the applicant file and serve all affidavits on which he intends to rely in support of his application for an interlocutory application [sic].
3.The matter is listed before Judge Manousaridis at 9:30 am on 15 January 2021 for the purpose of hearing the applicant’s application for an interlocutory injunction.
4.The parties have liberty to apply on such notice as the circumstances warrant.
Mr Hill served on SATC a sealed copy of the orders I made on 23 December 2020, and he filed and served an affidavit. SATC filed a short affidavit and submissions. On 15 January 2021 I heard Mr Hill’s application for an interlocutory injunction that the “Contract” I identify below be reinstated. In these reasons for judgment I consider Mr Hill’s application.
I begin with the relevant facts as revealed in documents and as alleged by Mr Hill. For ease of expression, I will state the facts without regularly noting that the facts I set out are those that are alleged by Mr Hill. No statement of fact, however, is to be taken as a finding of the fact stated other than for the purposes of this application.
ALLEGED FACTS
SATC is a club that operates a tennis court complex. It is managed by a committee. Mr Hill is a member of SATC.
In about November 2007 Mr Hill commenced providing to SATC the services of a “Tennis Court Manager/Facilitator”. Mr Hill did so through his company, AJH Leisure Pty Ltd (AJH), pursuant to the terms of an agreement contained in a “Job Description Form” (Contract). That document begins with the following:
St Anthonys Tennis Club Inc.
Job Description Form: AJH LEISURE PTY. LIMITED (Andrew Hill, Principal)
LOCATION: St Anthony’s Tennis Club Courts, MARSFIELD, NSW.
JOB TITLE: Tennis Court Administrator
REPORTS TO:
SATC Committee
TYPE OF POSITION WEEKLY PAY RATE:
. . . $424.00 per week . . .
x Contractor
Under the heading “GENERAL DESCRIPTION” the document describes the required work of a tennis court administrator. These included organising tennis court bookings, club maintenance, court maintenance, and keeping SATC committee members informed of a number of issues.
In addition to the Contract, Mr Hill has a contract with SATC under which SATC permits AJH to provide coaching services at SATC’s courts. Pursuant to that contract AJH has been hiring tennis courts from time to time for the purpose of undertaking coaching activities.
Mr Hill claims that beginning in late 2019 and early 2020 members of SATC’s committee increasingly interfered with Mr Hill’s tasks under the Contract. In March 2020 Mr Hill raised concerns with SATC “regarding their interference, takeover and instruction [sic] in various aspects of” Mr Hill’s “contracted duties”. The committee “commenced bullying and harassing” Mr Hill and undermined Mr Hill’s authority and responsibilities in relation to ensuring the tennis courts abided by the COVID-19 restrictions.
Mr Hill annexes what appears to be an extract from the minutes of the SATC committee meeting of 26 April 2020. The minutes relate to a motion to reopen the tennis courts following the further relaxing of the COVID-19 restrictions. Mr Hill, in his capacity of COVID-19 marshal, moved the motion. The minutes record that Mr Hill offered to ensure that those using the tennis courts will be supervised, and that those using the tennis courts will comply with the social distancing and other requirements of Tennis NSW, and the Commonwealth and (New South Wales) State governments. The minutes further record Mr Hill’s agreeing there would be no additional costs for the additional effort.
Mr Hill says that SATC’s interference with the Contract included the matters of which Mr Hill was notified by a memorandum dated 31 May 2020 from Mr Bennett Tesara. The memorandum sets out a number of “changes to the role that you are fulfilling for SATC”, noting that “all the arrangements including your current agreed payment per month holds”. The changes related to the introduction of an online court booking system. The memorandum stated that all casual bookings would be done online; Mr Hill should direct to a specified link all enquiries he receives on how casual hirers can hire the tennis courts; Mr Hill should direct all enquiries by persons who intend to make permanent bookings to a specified email address; member bookings will be done by members via the online system; and Mr Hill must ensure that only persons who have paid for their bookings should be using the tennis court.
The 31 May 2020 memorandum refers to two other subjects. The first is AJH having pre-booked 100 hours’ worth of court time. The memorandum noted that AJH could only use those pre-booked tennis courts. I understand from what Mr Hill told me at the hearing that AJH booked the tennis courts for the purpose of Mr Hill and others whom he engaged to provide tennis coaching. The second subject related to information contained on AJH’s website. The memorandum requested that Mr Hill remove “any reference or links to the current online booking that AJH runs on its website or publications where booking a court at [SATC] is concerned”; and that if Mr Hill wished to provide information on the AJH website on how to book SATC tennis courts, the website should show a link which I infer is the link to SATC’s website.
On 9 June 2020 Mr Hill lodged a general protections application not involving dismissal with the Fair Work Commission (FWC). It appears he also lodged a separate application with the FWC alleging bullying. On 28 July 2020 the Deputy President of the FWC gave SATC leave to commence mediation process. SATC did not, however, commence mediation. Instead, SATC “continued with the takeover of” Mr Hill’s “contracted duties accompanied by bullying and harassment” of Mr Hill “and other association members who supported” Mr Hill’s application to the FWC.
On 12 August 2020 the SATC committee resolved “to terminate AJH services effective 2 weeks from the day he is notified”. That decision, and the discussion that occurred in relation to it, is recorded in the following minutes of the meeting.
2. Review of AJH’s role
AJH is currently paid $424 per week.
AJH’s role read by SS (list of duties written by John Peacock (JP), unsigned)
1st duty to take and oversee bookings – no longer performed by AJH
No cash system in place for the online booking system
Teething problems with the online booking system – expected in any new system
Options.
1.AJH to do maintenance and resolving booking conflicts, therefore reduce salary to $224 (3 votes)
2.Terminate AJH Leisure Pty Ltd as court hiring manager (5 votes)
3.AJH to resume his duties with admin access to Online Booking System (1 vote)
AJH is not transparent about the actual bookings made to the club.
SATC does not benefit from the old arrangement with AJH as court hiring manager
Move to terminate AJH services effective 2 weeks from the day he is notified
On 30 August 2020 SATC directed Mr Hill to attend a workplace meeting. Mr Hill requested that a support person be present at the meeting, but his request was ignored. Mr Hill nevertheless attended with a support person, but SATC threatened to call the police unless the support person left the meeting. According to Mr Hill the following occurred:
I stood my ground insisting I have the right to have a support person present and in response the Respondents cancelled the workplace meeting and I was immediately handed a letter of termination of my court administrator’s contract effective 28th September 2020
The letter Mr Hill was handed is as follows:
The St. Anthony’s Tennis Club Inc. regretfully inform you that the Committee on 9/8/2020 meeting had voted to terminate the services of AJH Leisure P/L effective on 28/9/2020 (4 weeks from 30/8/2020).
We appreciate the services AJH had [sic] provided the club over the years. With the introduction of the BCS Online Booking System and generous club members’ volunteer time and effort, AJH courts booking service is no longer required. Furthermore, due to the club [sic] unfortunate financial hardships, we have decided to seek other alternatives to service our customers that will further reduce our operating cost.
Wishing you all the best in the future.
SATC advertised the position that had been performed under the Contract. The draft advertisement stated that applications for the position were open until 18 August 2020. SATC has engaged another person to perform work, and that person appears to have commenced work on 26 October 2020.
On 28 September 2020 SATC informed Mr Hill to attend a further workplace meeting. Mr Hill informed SATC that he would have a support person. SATC issued an expulsion notice to Mr Hill’s support person.
MR HILL’S CLAIMS
In his Form 2 Mr Hill claims SATC “terminated my services” because he had exercised a workplace right, that workplace right being his applying to the FWC for an order that SATC stop bullying him, and his lodging with the FWC a general protections application not involving dismissal. In short, Mr Hill alleges that by SATC terminating the Contract it had contravened s 340(1)(a)(ii) of the FW Act.
PRINCIPLES FOR GRANTING INTERLOCUTORY INJUNCTIONS
The Court has jurisdiction under s 545(2)(a) of the FW Act to make an order granting, among other things, an interim injunction “to prevent, stop or remedy the effects of a contravention” of any “civil remedy provision”. Under s 539(1) of the FW Act s 340 of the FW Act is a “civil remedy provision”. The Court, therefore, has jurisdiction to determine whether it should grant the interlocutory injunction Mr Hill seeks.
A commonly referred statement of the relevant principles for the granting of an interlocutory injunction is that given by Mason ACJ in Castlemaine Tooheys Limited v South Australia:[1]
In order to secure such an injunction the plaintiff must show (1) that there is a serious question to be tried or that the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief; (2) that he will suffer irreparable injury for which damages will not be an adequate compensation unless an injunction is granted; and (3) that the balance of convenience favours the granting of an injunction.
[1] (1986) 161 CLR 148, at page 153
The reference in this passage to “prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief” is taken from the judgment of the High Court in Beecham Group Ltd v Bristol Laboratories Pty Ltd.[2] The meaning of that passage was explained by Gummow and Hayne JJ in Australian Broadcasting Corporation v O'Neill:[3]
By using the phrase “prima facie case”, their Honours did not mean that the plaintiff must show that it is more probable than not that at trial the plaintiff will succeed; it is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial. That this was the sense in which the Court was referring to the notion of a prima facie case is apparent from an observation to that effect made by Kitto J in the course of argument. With reference to the first inquiry, the Court continued, in a statement of central importance for this appeal:
“How strong the probability needs to be depends, no doubt, upon the nature of the rights [the plaintiff] asserts and the practical consequences likely to flow from the order he seeks.”
[2] (1968) 118 CLR 618, at page 622
[3] [2006] HCA 46, at [65] (footnotes omitted)
PRIMA FACIE CASE?
The first question I must consider is whether Mr Hill has a prima facie case that SATC has contravened s 340(1)(a)(ii) of the FW Act.
Elements of contravention of s 340(1)(a)(ii) of the FW Act
Section 340(1)(a)(ii) of the FW Act provides that a “person must not take adverse action against another person . . . because the other person . . . has, or has not, exercised a workplace right”. Three matters must be established before a person will be held to have contravened s 340(1)(a)(ii) of the FW Act.
First, the person has taken “adverse action against another person”. That expression is defined in a table contained in s 342(1) of the FW Act which identifies in one column the persons by whom and against whom adverse action must be taken, and, in another column, the conduct that, if taken by and against such persons, constitutes adverse action. In the context of this proceeding, it is arguable that the relevant person who must take the adverse action, and against whom such action must be taken, are the persons identified in item 3 of column 1 of the table to s 342(1) of the FW Act, namely:
[A] person (the principal) who has entered into a contract for services with an independent contractor against the independent contractor, or a person employed or engaged by the independent contractor
A principal will engage in “adverse action” against an independent contractor if the principal does any of the matters identified in item 3 of column 2 of the table to s 342(1) of the FW Act, namely:
(a) terminates the contract; or
(b) injures the independent contractor in relation to the terms and conditions of the contract; or
(c) alters the position of the independent contractor to the independent contractor’s prejudice; or
(d) refuses to make use of, or agree to make use of, services offered by the independent contractor; or
(e)refuses to supply, or agree to supply, goods or services to the independent contractor.
The expression “independent contractor” is not defined in the FW Act, although s 12 of the FW Act provides that “independent contractor” is “not confined to an individual”.
The second matter that must be established before a person can be found to have contravened s 340 of the FW Act is that a person has, among other things, exercised a “workplace right”. That expression is defined in s 341(1) of the FW Act, and includes a person’s being “able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument”. The expression also includes a person’s being able to make “a complaint or inquiry . . . to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument”.
The third matter that must be proved to establish a contravention of s 340 of the FW Act is that the person who is alleged to have taken adverse action has taken the adverse action for a particular reason, or for reasons that included a particular reason.[4] That requirement arises from the presence of the word “because”:[5] s 340(1) of the FW Act prohibits a person from taking adverse action “because” a person has a “workplace right”, or “because” the person has exercised, or has not exercised, or proposes to exercise, or proposes not to exercise, such a right. Further, where the particular reason is one of a number of reasons for which the adverse action is taken, the particular reason must be “a “substantial and operative factor” as to constitute a “reason”, potentially amongst many reasons”,[6] or must be an “operative or immediate reason for the action”.[7][
[4] FW Act, s 360
[5] Barclay v Board of Bendigo Regional Institute of Technical and Further Education [2010] FCA 284, at [26] (Tracey J)
[6] Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32, at [127] (Gummow and Hayne JJ)
[7] Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32, at [140]) (Heydon J)
An important aspect of determining whether in any given case a person has taken adverse action “because” of one or more of the matters specified in s 340(1) of the FW Act is s 361(1) of that Act. That subsection provides:
If:
(a)in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
(b)taking that action for that reason or with that intent would constitute a contravention of this Part;
it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
Subsection 361(2) provides that s 361(1) “does not apply to orders for an interim injunction”. Thus, Mr Hill cannot in this application for an interlocutory injunction rely on the presumption provided for by s 361(1) of the FW Act.
Column 2 of the table to s 539(2) of the FW Act identifies the classes of persons who may apply to the courts identified in column 3 for remedies under s 545 of the FW Act in relation to contraventions of the civil remedy provisions identified in column 1 of that table. The person column 2 of the table to s 539(2) of the FW Act identifies as a person who can apply to this Court includes “a person affected by the contravention”. Under s 545(1) of the FW Act this Court and the Federal Court “may make any order the court considers appropriate if the court is satisfied that a person has contravened, or proposes to contravene, a civil remedy provision”. It is reasonably arguable that s 545(1) of the FW Act is broad enough to authorise the Court to make orders in relation to a person who is affected by a contravention of a civil remedy provision even where the person so affected is not a party. [8]
Apparent merits of Mr Hill’s claim
[8] See Fair Work Ombudsman v Northcoast Security Services Group Pty Ltd & Ors (No.3) [2020] FCCA 521, at [109]-[115]
Standing
SATC submits Mr Hill has no arguable case for relief because he has no standing to bring the proceeding. SATC submits that Mr Hill’s complaint is that SATC terminated the Contract, but Mr Hill was not a party to the Contract; that contract was made between SATC and Mr Hill’s company, AJH. To the extent SATC’s termination of the Contract constitutes adverse action, therefore, it is adverse action SATC has taken against AJH. Although SATC did not refer to any authorities, it is apparent it relies on the principle that the “proper plaintiff in an action in respect of a wrong alleged to be done to a company or association of persons is prima facie the company or the association of persons itself”,[9] this being a reflection of the broader rule that “A cannot, as a general rule, bring an action against B to recover damages or secure other relief on behalf of C for an injury done by B to C. C is the proper plaintiff because C is the party injured, and, therefore, the person in whom the cause of action is vested”.[10]
[9] Edwards v Halliwell [1950] 2 All ER 1064, at page 1066
[10] Prudential Assurance Co Ltd v Newman Industries Ltd (No 2) [1982] Ch 204, at page 210
This principle does not necessarily apply to deny Mr Hill standing. Mr Hill applies for orders under s 545(1) of the FW Act; and whether he can apply for an order under s 545(1) of the Act to reinstate the Contract turns on the proper construction of the expression “a person affected by the contravention” as it appears in s 539(2) of the FW Act, and also on whether the Court can make an order under s 545(1) of the Act in favour of a person affected by the contravention who is not a party to the proceeding.[11] I am satisfied Mr Hill has a reasonably arguable case that he has standing to claim an order reinstating the Contract, assuming there is otherwise available to him a reasonably arguable case that by terminating the Contract SATC had taken adverse action against AJH. In any event, it might be prudent for AJH to apply to be joined as an applicant in the proceeding, assuming it has a reasonably arguable case that SATC had taken adverse action against it.
[11] As to which see Fair Work Ombudsman v Northcoast Security Services Group Pty Ltd & Ors (No.3) [2020] FCCA 521, at [109]-[115]
Exercise of workplace right?
The next question is whether it is reasonably arguable that by applying to the FWC for an order that SATC stop bullying him, and his lodging a general protections application not involving dismissal, Mr Hill exercised a workplace right. I assume Mr Hill made his claims to the FWC in relation to bullying under s 789FC of the FW Act, and he made his general protections application not involving dismissal under s 372 of the FW Act. It is reasonably arguable that Mr Hill’s lodging a general protections application not involving dismissal constituted the initiation by him of, and the participation in, “a process or proceedings under a workplace law”, namely, the FW Act and, for that reason, his making such an application constituted the exercise by him of a workplace right within the meaning of s 341(1)(b) of the FW Act.
It is also reasonably arguable that Mr Hill’s lodging an application under s 789FC of the FW Act constituted the initiation by him of, and the participation in, “a process or proceedings under a workplace law”. An application under s 789FC may be made by a “worker”. “Worker” is defined in s 789FC(2) of the FW Act to have the meaning given to that word under the Work Health and Safety Act 2011 (Cth). Under s 7(1) of that Act “worker” is defined to include, among other things, a contractor or subcontractor, or an employee of a contractor or subcontractor. Thus, it is reasonably arguable that by making an application to the FWC under s 789FC of the FW Act Mr Hill exercised a workplace right.
Proscribed reason?
As I have already noted, Mr Hill cannot on this application for an interlocutory injunction take advantage of the presumption provided for by s 361(1) of the FW Act. The question, then, is whether on the material before me Mr Hill has a reasonably arguable case the Contract was terminated because he lodged applications with the FWC.
The contemporaneous documentary evidence at the very least reveals differences of opinion between Mr Hill and others and SATC about how SATC should manage the tennis courts. The difference of opinion seems to have arisen in relation to SATC’s decision to adopt an online booking system, and the impact the adoption of that system has had to the manner in which AJH books tennis courts for the purpose of its coaching activities. The evidence suggests that SATC had implemented its online booking system by May 2020, and the differences that arose from that introduction had largely crystallised by the end of May 2020. There is also evidence that suggests that at least one of the tasks AJH was required to undertake under the Contract is now being done through the online system which, therefore, reduces the work that is required to be done under the Contract. This evidence points to SATC’s decision to terminate the Contract as being motivated by sound business reasons.
There is, however, other evidence and circumstances which, if not explained away by evidence from SATC, is reasonably capable of grounding a finding that SATC terminated the Contract because Mr Hill had lodged applications to the FWC. First, there is the timing of SATC’s decision to terminate the Contract. It was made on 12 August 2020 at least two months after the dispute between Mr Hill and SATC appears to have crystallised, and after Mr Hill had lodged his applications with the FWC. Second, a number of options were before the Committee when it considered whether to terminate the Contract. One of the options was to retain AJH for a reduced amount to take into account SATC’s having implemented an online booking system that did not require the manual booking of tennis courts; but this option does not appear to have been explored with Mr Hill.
I am satisfied that Mr Hill has a reasonably arguable case that SATC terminated the Contract for reasons that included as a substantial and operative factor Mr Hill’s having lodged his applications with the FWC.
Conclusion on apparent merits of claim
For these reasons I am satisfied Mr Hill has a reasonably arguable claim for relief under s 545(1) of the FW Act against SATC based on a contravention of s 340 of the FW Act.
BALANCE OF CONVENIENCE
Mr Hill submits that unless the Contract is reinstated he will suffer economic hardship because he will not be earning the income he was earning under the Contract. Mr Hill also submits that without the Contract his tennis coaching business has been and will continue to be adversely affected.
Mr Hill has not adduced evidence of any specific hardship from AJH not receiving payments under the Contract. Mr Hill has not adduced evidence, for example, that he cannot meet his day to day expenses because he no longer has the benefit of the Contract. To the extent AJH’s coaching business has been affected by SATC’s termination of the Contract, that would not be a relevant prejudice because it is not reasonably arguable that it was within the contemplation of the parties that the Contract was entered into for a purpose other than that revealed by its terms, namely, for AJH to undertake the work described in the Contract. For these reasons, I am satisfied that any prejudice Mr Hill may suffer if no injunction is granted, but if he succeeds at the final hearing, will be adequately compensated by an order for compensation, together with interest.
If, contrary to my conclusion, the prejudice Mr Hill will suffer cannot be adequately compensated by an order for compensation, there is the prejudice SATC will suffer if an injunction is granted, but it succeeds at the final hearing. The principal prejudice is that SATC has engaged another person to provide services that AJH would have provided had SATC not terminated the Contract. Although it is reasonable to assume that it is open to SATC to terminate that other service provider’s engagement on the giving of a short period of notice, nevertheless, there is a likelihood there will be a period in which SATC will be required to pay two service providers for the same service. That is a prejudice that would offset any prejudice Mr Hill may suffer if an injunction is not granted.
There is one other matter that is relevant to the exercise of discretion; and that is delay. SATC notified Mr Hill on 30 August 2020 it intended to terminate the Contract with effect on 28 September 2020, but Mr Hill did not commence this proceeding until 15 December 2020. Mr Hill submits he could not have lodged any application with the FWC until after his notice period had expired. That period expired on 28 September 2020, and Mr Hill lodged his application with the FWC on 1 October 2020. I have no reason to doubt that Mr Hill believed he could not make any application to this Court until after he lodged an application with the FWC under s 365 of the FW Act. That is the effect of s 370(a) of the FW Act. That paragraph, however, is subject to s 370(b) of the FW Act, the effect of which is that a person who is entitled to apply to the FWC under s 365 of the FW Act to deal with a dispute may make a “general protections court application in relation to the dispute” if “the general protections court application includes an application for an interim injunction”.
I am therefore not satisfied that the balance of convenience would favour my granting an interlocutory injunction.
DISPOSITION
I propose to order that Mr Hill’s application for an interlocutory injunction be dismissed.
I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 22 January 2021
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