National Union of Workers v Davids Distribution Pty Ltd

[1998] FCA 1687

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 382  OF   1998

BETWEEN:	NATIONAL UNION OF WORKERS APPLICANT
AND:	DAVIDS DISTRIBUTION PTY LTD RESPONDENT
JUDGE(S):		NORTH J
DATE OF ORDER:		7 DECEMBER 1998
WHERE MADE:		MELBOURNE

THE COURT ORDERS THAT:

1.The application made in paragraphs 1 to 3 of the motion, notice of which was filed by the applicant on 2 December 1998 and amended on 7 December 1998, is dismissed.

2.The trial is adjourned to a date to be fixed.

3.The Court makes the following directions:

(i)the time for the completion of discovery by the applicant is extended until 4 pm on 14 December 1998;

(ii)leave to the respondent to file and serve an amended defence by 4 pm on 18 December 1998;

(iii)the parties are to file and serve any notice of objection to the affidavits to be relied upon by the opposite party, together with grounds therefor, by 4 pm on 18 December 1998;

(iv)the applicant to file and serve any affidavit in reply by 4 pm on 22 January 1998, and the respondent to file and serve any notice of objection to that affidavit, together with the grounds therefor, by 4 pm on 28 January 1999;

(v)the applicant to file and serve contentions of fact and law by 4 pm on 5 February 1999;

(vi)the respondent to file and serve its contentions of fact and law by 4 pm on 15 February 1999;

(vii)by 4 pm on 17 February 1999, the parties are to agree on an estimate of the time to be taken by the trial of this action and advise the Court of such agreement. In default of such agreement, each party is to advise the Court in writing of its estimate of the likely duration of the trial by the said date;

(viii)the return of the subpoena directed by the respondent to the Construction, Forestry, Mining and Energy Union is adjourned to a date to be fixed.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 382 OF 1998

BETWEEN:	NATIONAL UNION OF WORKERS APPLICANT
AND:	DAVIDS DISTRIBUTION PTY LTD RESPONDENT

JUDGE(S):	NORTH J
DATE:	7 DECEMBER 1998
PLACE:	MELBOURNE

EX TEMPORE REASONS FOR JUDGMENT

1. By a motion, notice of which was filed on 2 December 1998 and amended on 7 December 1998, the applicant (the Union) sought orders that certain questions of law be referred to the Full Court, and that the trial which was to commence today be adjourned until the Full Court has determined these questions of law.  In my view, these orders should be refused.  The questions of law are:

   “(a)Does a picket which physically impedes the ingress and egress of vehicles or persons, only some of which persons are employees of the employer, which picket is adopted by an organisation of employees and its members employed by the employer in connection with an industrial dispute and imposed for the purpose of banning, limiting or restricting the performance of work by persons, being employees of the employer and others who enter or leave to facilitate the performance of work, constitute industrial action as defined in s 4 of the Workplace Relations Act 1996 for the purposes of the Workplace Relations Act 1996 (except in Part XA); and,

   (b)Does a picket which impedes (otherwise than physically) the ingress and egress of vehicles or persons, only some of which persons are employees of the employer, which picket is adopted by an organisation of employees and its members employed by the employer in connection with an industrial dispute and imposed for the purpose of banning, limiting or restricting the performance of work by persons, being employees of the employer and others who enter or leave to facilitate the performance of work, constitute industrial action as defined in s 4 of the Workplace Relations Act 1996 for the purposes of the Workplace Relations Act 1996 (except in Part XA)”.

2. Determination of these questions would not determine all the questions raised in the application.  It is preferable for the matter to be argued comprehensively at trial, and if there is an appeal, thereby to provide the Full Court with the benefit of those arguments and the deliberations of the trial judge. 

3. The motion also sought an order that the trial date be vacated, pending the determination of several appeals brought in relation to contempt proceedings instituted in the Supreme Court of New South Wales.  On 13 November 1998, Smart J adjudged the Union guilty of contempt of orders restraining certain conduct on the picket outside Davids' premises. 

4. Complex legal questions arise from those proceedings. The Union has lodged an appeal to the Full Court of this Court, in reliance on s 422 of the Workplace Relations Act 1996 (Cth) (the Act). It contends that the question whether the conduct on the picket was protected action is a matter arising under the Act, which thereby gives rise to a right to appeal under s 422.

5. The Union has also appealed to the Court of Appeal in New South Wales.  One argument on appeal will be that Smart J did not have jurisdiction to make the orders, because s 414 of the Act gave the Federal Court exclusive jurisdiction in the matter.  The issue potentially before the Court of Appeal and the Full Court of this Court, is whether the conduct taken by the Union was protected action.  In the particulars to paragraph 15 of its defence, the respondent (Davids) pleads, in relation to critical allegations of the Union in its statement of claim:

   “The allegations contained in those paragraphs directly involve issues of fact and/or of law that were judicially determined by His Honour Mr Justice Smart of the Supreme Court of New South Wales in his decisions dated 18 August 1998 and 13 November 1998, in proceeding number 11712 of 1998.

6. The Union argued, on the present application, that the appeal process should be exhausted so that an authoritative decision on whether the action taken by the Union was protected action, can be obtained.  Davids opposed these orders.  The parties were not able to say when the appeals would be heard. 

7. In my view, the pendency of these appeals is not a good ground for vacating the trial date.  At trial the court will deal with the estoppel argument in light of the existing circumstances.  The availability of an appeal from the initial decision gives the parties an opportunity to argue the effect of the outcomes of the appeals concerning the contempt matter. Further, it is not clear that the estoppel arguments will be determinative of the present case.  Consequently, the order of the Court is that the application made in paragraphs 1 to 3 of the motion, notice of which was filed by the applicant on 2 December 1998 and amended on 7 December 1998, is dismissed.

8. An issue has arisen in this proceeding as to whether the trial date of today, 7 December 1998, can be maintained.  The case was set down for five days, upon estimates that were made by counsel in the course of the application for interim relief.  Those estimates were tentative and were based on the best information available at that time.  Mr Buchanan QC, in particular, made it clear that the estimate could be no more than a fairly rough guess. 

9. As events have transpired, and without seeking to attribute blame to either of the parties, it has become apparent that the evidence and issues to be examined in the case are most unlikely to conclude in the remaining four days of time set aside for the case.  That is an unfortunate situation, but it arises from the fact that estimates were made and were not revised as time went on.  Maybe they could not be.

10. I have formed a clear view that the case will not conclude in the remaining four days.  I feel it undesirable to commence this case unless it would conclude within the four days.  That is partly for the reason that a number of issues are likely to turn on the credit of some of the witnesses.  It puts an intolerable strain on a judge to recollect the relevant evidence in a way necessary to assess credit if too long a period passes until the case can be concluded.  This might have been avoided if the case were appropriate for determination on written submissions.  I have a firm view that it is not. The issues raised by the case are numerous and difficult.  They require considerable application and effort which, in my view, is best devoted to oral argument.  I therefore intend to vacate the trial date and adjourn the trial of the action to a date to be fixed, when the demands of my timetable become clear. 

11. Mr Hatcher, who appeared as counsel on behalf of Davids on this occasion, sought orders that the existing injunctions and orders be vacated.  He relied upon the change in circumstance that the trial will no longer proceed today, but will be delayed until next year.  He also relied upon the fact that the Supreme Court of New South Wales has recently judged the Union guilty of contempt of the orders of the Supreme Court of New South Wales.  He drew attention to the fact that my judgment delivered on 1 December 1998, a week ago, proceeded upon the basis that the Union's case was a doubtful case and said that the extension of the orders in circumstances where such a finding was made was not appropriate in all the circumstances.  He also relied upon an affidavit filed in court today, and sworn on 5 December by Mr Gary Johnson, the national industrial relations manager for Davids, who deposed to the difficulties which Davids says have been occasioned by the making of the orders of the Court.

12. I am not prepared to vacate or vary the orders made a week ago.  Those orders were made after an exhaustive examination of the circumstances which then existed.  No relevant change has occurred in the circumstances and no foreshadowed changes in the circumstances are deposed to by Mr Johnson.  It must be emphasised, as I sought to do on 1 December in the reasons for judgment, and as I have sought to do in the course of argument today, that any difficulties of a substantial nature requiring urgent attention which are caused by the orders, may be addressed by the liberty to apply on short notice which I have reserved to Davids and to the Union.

13. In all the circumstances, I refuse Davids’ application for any variation or discharge of the orders made on 1 December 1998. 

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North

Associate:

Dated:             7 December 1998

Counsel for the Applicant:	Mr S Rothman SC, with Mr J Pearce
Solicitor for the Applicant:	Ryan Carlisle Thomas
Counsel for the Respondent:	Mr Hatcher, with Mr Cross
Solicitor for the Respondent:	Middletons Moore & Bevins
Date of Hearing:	7 December 1998
Date of Judgment:	7 December 1998