Neil Kimpton and the Minister for Education of Victoria

[1995] IRCA 718

DECISION NO:   718/95

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

No VI 95/5420

B E T W E E N :

NEIL KIMPTON
Applicant

AND

THE MINISTER FOR EDUCATION OF VICTORIA
Respondent

JUDGE:     North J
PLACE:     Melbourne
DATE:       24 October 1995

EX TEMPORE REASONS FOR JUDGMENT

THE PROCEEDINGS

This is an application for interim relief brought initially on behalf of the applicant, and, in the course of the hearing, on behalf of Barbara Hoghton, Charlie Twomey, Jan Lewis, Jan Summers, Maria Chatwick, Ruth Place, Gay Higgins, Lawrie Fildes, Robyn Edtmaier, Carmel Shields, Kath Hamilton, Kay Steer, Adrian Quirk, Vicki Fuller, Margaret Alderson, Sue Hodgson and Pauline Jelief, all teachers employed by the respondent.  The application is brought in circumstances of urgency. The respondent’s delegate intends to require the attendance of the named individuals at interviews enquiring into their conduct as part of a disciplinary procedure. Some interviews are to be conducted tomorrow commencing at 8.15 am, some in respect of other applicants on the following day, and some others on 2 November 1995.

SERIOUS ISSUE TO BE TRIED

The application is made for an injunction under section 431 of the Industrial Relations Act (“the Act”) to prevent the contravention of section 334(1)(g) and/or section 334A(2) of the Act. I am satisfied from the material before me and in the circumstances that present themselves at 6.10 in the evening before the first interviews are to occur, that there is a sufficiently arguable case to qualify for injunctive relief subject to considerations of the balance of convenience. Mr Green, who appeared as counsel on behalf of the respondent, submitted that the named applicant Neil Kimpton does not have standing and that that matter is unarguable. If the contention is correct, the defect is cured by the instructions that Mr Hinkley, who appears as counsel for the named applicant, has told me he has to make application on behalf of each of the named individuals.

It seems to me, again as a matter of first impression, that Mr Green's argument that there is no relevant injury or alteration for the purposes of the two relevant subsections should not be sustained at this stage.  I emphasise, of course, that that is a view reached for the purposes of this very rushed hearing and says nothing as to the way in which the matter might finally be determined.  That leaves then the question of the balance of convenience.

BALANCE OF CONVENIENCE

On behalf of the respondent, Mr Green put that certain considerations of convenience weigh the balance in favour of refusing relief.  He said that a number of relief teachers have been engaged and have been asked to attend at the Churchill School tomorrow.  He observed that the application could have been brought earlier and he drew attention to the fact that the teachers who are to attend the interviews are persons who are well able to look after themselves in the course of the interviews. Consequently, he contended, to permit the interviews to proceed will do no more than allow ordinary intercourse to occur between employer and employee.

Each of those matters is properly brought to the Court's attention but, in the end, they are outweighed by the inconvenience of the applicants having to attend and possibly suffer the prejudice of a further step in the disciplinary procedure being taken in circumstances where they argue that the procedure is unlawful.  For those brief reasons, I order:

ORDERS

1. that until further order of the Court, the respondent by itself or by its servants or agents and the Director of School Education or his delegate be restrained from proceeding any further in requiring any of the named applicants to respond to or give any explanation in response to paragraphs 4(i) and (ii) of the letter of John Roberts, General Manager (Schools), dated 28 June 1995, such letter being exhibit NK2 to the affidavit of Neil Kimpton, sworn 24 October 1995.

1. that the application be adjourned for a directions hearing at 10.15 am on 30 October 1995.

I certify that this and the preceding three (3) pages are a true copy of the reasons for judgment of his Honour Justice North.

Associate:
Dated:                 7 March 1996

Solicitors for the applicant:     Maurice Blackburn & Co
Counsel for the applicant:      Mr R. Hinkley

Counsel for the respondent:    Mr N.Green

Date of hearing:  24 October 1995

Date of judgment:                   24 October 1995