Koc v Diamond

Case [2022] FCA 126

FEDERAL COURT OF AUSTRALIA

Koc v Diamond [2022] FCA 126  

File number: VID 73 of 2022
Judgment of: SNADEN J
Date of judgment: 17 February 2022
Catchwords:

INDUSTRIAL LAW – where applicant the holder of an office within a union – where charges brought against the applicant for “gross misbehaviour” – Branch Executive of the union passed a resolution referring the charges to the National Executive for determination – National Council of the union passed a resolution for the convening of the National Executive to hear and resolve the charges – whether Branch Executive or National Executive the appropriate body to deal with the charges

PRACTICE AND PROCEDURE – application for interlocutory relief under s 164(4) of the FW(RO) Act – weak prima facie case – balance of convenience insufficient to grant the relief sought – application for interlocutory relief dismissed

COSTS – whether proceeding instituted without reasonable cause – no order made
Legislation: Fair Work (Registered Organisations) Act 2009 (Cth) ss 164, 329
Cases cited: Briant v Martin [2020] FCA 1009
Division: Fair Work Division
Registry: Victoria
National Practice Area: Employment and Industrial Relations
Number of paragraphs: 35
Date of hearing: 17 February 2022
Counsel for the Applicant: Mr H Borenstein QC and Mr Y Bakri
Solicitor for the Applicant: Davies Lawyers
Counsel for the Respondents: Mr R Reitano
Solicitor for the Respondents: Slater & Gordon Lawyers

ORDERS

VID 73 of 2022
BETWEEN:

TARIK KOC

Applicant
AND:

MARK DIAMOND

First Respondent

SHAYNE KUMMERFELD

Second Respondent

LUBA GRIGOROVITCH (and others named in the Schedule)

Third Respondent

ORDER MADE BY:

SNADEN J

DATE OF ORDER:

17 FEBRUARY 2022

THE COURT ORDERS THAT:

1.The application be dismissed as against the 21st respondent, Mr Robert Hayden.

2.Mr Tom Brown, Mr Farren Campbell and Mr Darren Galea be joined as, respectively, the 24th to 26th respondents to the application.

3.The application for interlocutory relief contained within the originating application of 16 February 2022 be dismissed.

4.There be no order as to costs.

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


REASONS FOR JUDGMENT

SNADEN J:

  1. The Australian Rail, Tram and Bus Industry Union (the “Union”) is an employee organisation registered as such under the Commonwealth Fair Work (Registered Organisations) Act 2009 (the “FW(RO) Act”).  Like all such organisations, it operates pursuant to rules that have force—and that may be enforced—pursuant to that act.  Those rules (the “Rules”) make provision for the manner in which the various executive and administrative functions of the Union are discharged.  In particular, they provide for the division of those functions throughout various “branches” and “divisions”, and for the management of those functions by various executive organs (to which more particular reference will shortly be made).

  2. Of particular relevance presently is the existence within the union of a Victorian “branch”.  That branch spans a number of “divisions”, one of which is known as the Tram and Bus division.  The applicant is the…

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AGLC
Koc v Diamond [2022] FCA 126
Case
[2022] FCA 126
Decision Date

CaseChat Overview and Summary

Koc v Diamond was an application for interlocutory relief brought before the Federal Court of Australia. The applicant, Mr Koc, sought an injunction preventing the National Executive of the Construction, Forestry, Maritime, Mining and Energy Union from proceeding with a hearing of charges brought against him for "gross misbehaviour." The respondents, the union and its executives, opposed the application. The central legal issue for the court was whether the National Executive was the appropriate body to hear the charges against Mr Koc. The court also needed to determine whether Mr Koc had established a prima facie case and a sufficient balance of convenience to warrant granting the interlocutory relief.

The court concluded that the National Executive was the appropriate body to hear the charges against Mr Koc. It noted that Mr Koc had known for over three months that the charges would be heard by the National Executive and had not commenced the application until shortly before the hearing was scheduled to begin. The court found that the applicant had a weak prima facie case and that the balance of convenience did not favour granting the relief sought. As such, the application for interlocutory relief was dismissed. The court declined to make an order for costs, finding that the proceeding was not instituted without reasonable cause.

The court’s decision underscores the importance of timely legal action and the need for a strong prima facie case and a favourable balance of convenience to obtain interlocutory relief in union disciplinary matters. The court also emphasised that the exercise of discretion in such cases involves an impressionistic assessment of the likelihood of success at trial and the interests of justice.

Orders

Orders of the court

1. The application be dismissed as against the 21st respondent, Mr Robert Hayden.

2. Mr Tom Brown, Mr Farren Campbell and Mr Darren Galea be joined as, respectively, the 24th to 26th respondents to the application.

3. The application for interlocutory relief contained within the originating application of 16 February 2022 be dismissed.

4. There be no order as to costs.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

For the reasons that follow, I am not persuaded that relief in that nature should be granted. The interlocutory application will, therefore, be dismissed.EVIDENCE The application for interlocutory relief came before the court on Thursday, 17 February 2022. The applicant read, without objection, an affidavit affirmed on 16 February 2022 by his solicitor, Ms Antonia Sakkas. At the outset of the hearing, counsel for the respondents drew the court’s attention to the fact that the 21st respondent was no longer a member of the National Executive; and that, in addition to the remaining named respondents, he acted for three other individuals who are but who were not named as respondents. With the consent of all concerned, I indicated that I would make orders dismissing the application as against the 21st respondent and adding the three other National Executive members as the 24th to 26th respondents.PRELIMINARY MATTER The application for interlocutory relief came before me in my capacity as duty judge. It was brought on for hearing quickly at the request of the applicant. To their credit, all of the respondents were represented and did not object to the matter being brought on for hearing at such short notice. As I indicated to senior counsel for the applicant during the hearing, the matter ought to have been commenced much earlier than it was. The applicant has known for more than three months that the Charges would be heard by the National Executive. For more than two months, he has known about the schedule that has been put in place to bring the matter to conclusion, including the requirement that he provide material in his defence by Friday, 18 February 2022. Although, in November, he challenged the National Executive’s assumption of power to determine the Charges, it was not until Friday, 11 February 2022 that he sought (at least formally) an undertaking that the National Executive not proceed with the hearing of the Charges. It was not until Wednesday, 16 February 2022—two days prior to the deadline of which he was advised in December 2021—that he filed the present application. All the same, the applicant came before this court laying claim to urgent interlocutory relief. The court was informed that the delay was a function of some confidential discussions, which, for obvious reasons, were not particularised. That being so, I should constrain any expression of frustration. Nonetheless, the present urgency ought not to have been allowed to get to where it did. In the minds of other duty judges, that alone might have been reason enough not to hear the matter with anything like the expedition that has occurred (or, for that matter, at all). In light of the representations made by senior counsel for the applicant, I shall indulge no further irritation.RELEVANT PRINCIPLES The applicant’s claim for interlocutory injunctive relief arises under s 164 of the FW(RO) Act, which provides as follows (by subsections that, for some reason, are not entirely consecutive):164 Directions for performance of rulesApplication for order directing performance of rules(1)A member of an organisation may apply to the Federal Court for an order under this section in relation to the organisation.Note: For the meaning of order under this section, see subsection (9).(2)Before making an order under this section, the Court must give any person against whom the order is sought an opportunity of being heard.(3)The Court may refuse to deal with an application for an order under this section unless it is satisfied that the applicant has taken all reasonable steps to try to have the matter that is the subject of the application resolved within the organisation.Court may make interim orders(4)At any time after the making of an application for an order under this section, the Court may make any interim orders that it considers appropriate and, in particular, orders intended to further the resolution within the organisation concerned of the matter that is the subject of the application.(5)An order under subsection (4) continues in force, unless expressed to operate for a shorter period or sooner discharged, until the completion of the proceeding concerned.Definition(9) In this section:order under this section means an order giving directions for the performance or observance of any of the rules of an organisation by any person who is under an obligation to perform or observe those rules.

Decision

Reasons for decision

I do not accept that such inconvenience as might attend the rejection of the present application should suffice to incline the court in the contrary direction. All the more is that so given the weak prima facie case upon which the application rests.CONCLUSION I am not persuaded that the court’s discretion to grant interlocutory relief of the kind here sought should be exercised. The application for interlocutory relief contained within the applicant’s originating application of 16 February 2022 is, therefore, dismissed; and the matter will be referred to the court’s national operations registrar for allocation to a docket judge. The respondents pressed for an order that the applicant should pay their costs of the interlocutory application. They did so in spite of s 329(1) of the FW(RO) Act, which constrains the court’s ability to grant such an order to circumstances in which (relevantly) a matter has been instituted without reasonable cause. This is not such a case. The fact that the applicant has not succeeded is not sufficient to establish a want of reasonable cause. The matter involves the exercise of discretion, which calls not for any determination that the applicant does or does not have a case to press; but, rather, an impressionistic assessment of whether his case might warrant success at trial and whether the interests of justice warrant relief at this juncture. The respondents cannot clear the hurdle that s 329(1) poses. No order as to costs will be made.

Ratio Decidendi

Legal Principle Established

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