John Holland Pty Ltd v Construction, Forestry, Mining and Energy Union

[2009] FCA 1178

FEDERAL COURT OF AUSTRALIA

John Holland Pty Ltd v Construction, Forestry, Mining and Energy Union
[2009] FCA 1178

PRACTICE AND PROCEDURE – application to vacate trial dates – prior discovery order – applicant intending to seek leave to appeal in relation to the discovery order – whether the applicant will suffer serious injustice or prejudice if adjournment not granted – consideration of countervailing factors including court processes, other litigants, public interest in early determination

Safety, Rehabilitation and Compensation Act 1988 (Cth), s 100

Sali v SPC Ltd (1993) 67 ALJR 841
Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146
Aon Risk Services Australia Limited v Australian National University (2009) 83 ALJR 951

JOHN HOLLAND PTY LTD (ACN 004 282 268) v CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION, GREG MCLAREN, ANDREW CLARK, RUSSELL SARGENT and SHANE TREADAWAY

QUD 178 of 2009

REEVES J
6 OCTOBER 2009
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
FAIR WORK DIVISION	QUD 178 of 2009

BETWEEN:

JOHN HOLLAND PTY LTD (ACN 004 282 268)
Applicant

AND:

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
First Respondent

GREG MCLAREN
Second Respondent

ANDREW CLARK
Third Respondent

RUSSELL SARGENT
Fourth Respondent

SHANE TREADAWAY
Fifth Respondent

JUDGE:	REEVES J
DATE OF ORDER:	6 OCTOBER 2009
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.The notice of motion filed by the applicant on 5 October 2009 be dismissed.

2.Any question of costs associated with the notice of motion filed on 5 October 2009 be reserved.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
FAIR WORK DIVISION	QUD 178 of 2009

BETWEEN:

JOHN HOLLAND PTY LTD (ACN 004 282 268)
Applicant

AND:

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
First Respondent

GREG MCLAREN
Second Respondent

ANDREW CLARK
Third Respondent

RUSSELL SARGENT
Fourth Respondent

SHANE TREADAWAY
Fifth Respondent

JUDGE:	REEVES J
DATE:	6 OCTOBER 2009
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. This is an urgent application by John Holland Pty Ltd to vacate the dates set for trial which is due to commence next Monday, 12 October 2009 and proceed for four days.

2. The principles in relation to whether or not an adjournment application should be granted were delineated by the High Court in its decision of Sali v SPC Ltd (1993) 67 ALJR 841 at 843 as follows: “an adjournment which, if refused would result in a serious injustice to the applicant should only be refused if that is the only way that justice can be done to another party in the action”.

3. The serious injustice or prejudice that Mr Easton, on behalf of John Holland, says it will suffer arises from its desire to seek leave to appeal my decision of last Friday, 2 October 2009. In that decision I refused to strike out a part of the Union’s pleading that seeks to raise a collateral challenge to a declaration made by a Commonwealth Minister under s 100 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the SRC Act”), which is fundamental to its licence as a non-Commonwealth licensee. I held the Union’s right to raise that collateral challenge was not clearly untenable or unarguable. Consequent upon that order, I ordered that John Holland make discovery of certain documents relevant to the issue of the collateral challenge and, particularly, the declaration made by the Minister under s 100 of the SRC Act.

4. Mr Easton says that, if I proceed with the trial of this matter next week, the trial will render nugatory any appeal that John Holland may be able to pursue.  He says that will occur because, in that event, the Union will have obtained discovery of the documents relevant to the collateral challenge, documents which he says are particularly sensitive in commercial terms.  He also says that the Union will have been able to agitate its collateral challenge at the trial when, if John Holland was able to successfully appeal the matter, it would not have had either of those advantages.

5. I do not consider these matters amount to serious injustice or prejudice such that I would be justified in vacating the hearing dates in this matter. 

6. First, John Holland has not yet even prepared a notice of appeal.  It necessarily follows that it has not sought leave to appeal and it has not sought a stay of the orders I made last week.  It is therefore not possible to ascertain what prospects, if any, John Holland has of obtaining leave or, after that, of succeeding on the appeal.

7. Secondly, this is not a case where injustice will be caused to John Holland because it will be prevented from pursuing a claim or defence if the adjournment were refused.  That was the situation that arose in Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146. All I did last week was to rule that the collateral challenge the Union wished to pursue was not so clearly untenable or unarguable that the Union should be prevented from pursuing it. I did not rule on the substance of that issue, ie whether or not John Holland or the Union would be successful on that particular issue.

8. It follows, at its highest, that if this trial proceeds, John Holland will have to contend with an issue during the trial, and before the trial make discovery of documents, where it may not have to do so if it were able to obtain leave; and a stay; and then succeed on the appeal.  However, it is frequently the case that a party to litigation has to contend with an arguable point raised by an opponent, make discovery and incur costs in defending that point.  Sometimes, even where it is successful on that point, it may not be entitled to costs because it fails on the primary issues in the case.  But this is part and parcel of litigation.  It is not a matter that I consider amounts to serious injustice or prejudice. 

9. Furthermore, even if John Holland may suffer some injustice or prejudice by my refusing to adjourn the trial next week, I do not consider it is sufficient to outweigh the counter-veiling factors that have been identified by the High Court, including, more recently, in its decision of Aon Risk Services Australia Limited v Australian National University (2009) 83 ALJR 951.

10. They include these:  this trial was set down urgently, approximately two months ago, by Dowsett J.  When Dowsett J set the matter down for trial, he thought that, in all the circumstances, setting an early trial date was the most efficient way to deal with the matter.  He was confronted with an application for interlocutory relief which, ultimately, he granted in a form to allow the matter to remain in status quo until the urgent trial.  While it may be possible to dissolve that injunction in whole or in part as a condition of an adjournment, it is not without significance, in my view, that that injunction was framed and put in place in circumstances where the trial of the whole proceedings was expected to be held within a short period of time.

11. Additionally, the Court has had to make special arrangements to make a judge available to hear this matter next week.  Furthermore, I take into account the interests of other parties in the Court who may have been affected by this matter being granted an urgent trial date.  Finally, I take into account whether or not public confidence in the administration of justice will be affected by an adjournment of this trial.  In this particular matter, I consider this factor is significant.  I am told by Mr Murdoch SC for the State of Queensland, which has intervened in these proceedings, that John Holland’s claim has placed a cloud over the State’s Workplace Health and Safety legislation and the State is therefore anxious to have the matter resolved as promptly as possible.  That is, of course, just one aspect of the public interest that is at work in these proceedings.

12. For all these reasons, I refuse John Holland’s application to vacate the dates set for the trial of this matter next week. 

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves.

Associate:

Dated:       16 October 2009

Counsel for the Applicant:	A Herbert
Solicitor for the Applicant:	Herbert Geer
Counsel for the Respondents:	WL Friend
Solicitor for the Respondents:	Hall Payne Lawyers
Counsel for the Intervener:	JE Murdoch SC
Solicitor for the Intervener:	Crown Solicitor

Date of Hearing:	6 October 2009
Date of Judgment:	6 October 2009