Patrick Stevedores No 2 & Ors v Maritime Union of Aus

[1998] HCATrans 122

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne               No M29 of 1998

Between -

PATRICK STEVEDORES NO.2 PTY LTD
  and OTHERS

Applicants

MARITIME UNION OF AUSTRALIA
  and OTHERS

Respondents

HAYNE J   (in Chambers)

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 23 APRIL 1998, AT 8.31 PM

Copyright in the High Court of Australia

HIS HONOUR:   Yes, Mr Gyles.

MR R.V. GYLES QC:   If your Honour pleases, I appear for Patrick Stevedores Operations No.2 Pty Ltd and a number of other companies who were applicants before the Full Court of the Federal Court, for leave to appeal against orders granted by North J of that court.  We are here, your Honour, to seek a stay until such time as your Honour can hear a substantive application for a stay pending a special leave application.  (instructed by Freehill Hollingdale and Page)

I think, your Honour, all of the parties who were represented before the Full Court are here.  I think the completion of the judgment reading was less than an hour ago.  Your Honour will pardon us for not having with us an application for special leave or indeed a motion for stay.  What we do have, your Honour, however, is two bundles of documents which consist of the following.  They consist firstly of the relevant application before the Federal Court, that is the substantive application; the current amended statement of claim in those proceedings; the notice of motion which was brought on for interlocutory relief before his Honour North J; the decision of His Honour which was dated 21 April 1998 ‑ ‑ ‑

HIS HONOUR:   Interrupting you there, Mr Gyles, I should inform you that I have examined and read, with a little care though perhaps not as much as I should, at least a version of his Honour's reasons as published on the Net.

MR GYLES:   Thank you, your Honour, that will certainly help things, bearing in mind the time of evening.  Then lastly, your Honour, there is the decision of the Full Court which was read and handed out a very short time ago.

HIS HONOUR:   As to that, I should inform you that I heard part of that which was broadcast on radio.  I did not hear the entirety of what was broadcast and, as I understood it, not all of the reasons of the Full Court was broadcast in any event.

MR GYLES:   If your Honour pleases.  Can I take your Honour to the actual orders of the ‑ ‑ ‑

HIS HONOUR:   Before you go to anything, Mr Gyles, first, what is the application that you make, against whom is it made?

MR GYLES:   Yes, your Honour. 

HIS HONOUR:   Accepting as I do that you tell me that everybody who is interested is here, it might be as well to find out who they are and for whom they appear.

MR GYLES:   They will need to be identified, your Honour, yes, with respect.  My application is that your Honour grant a stay of the orders of North J made on 21 April, as amended by the Full Court this evening, 23 April, until further order.

HIS HONOUR:   Unlimited?

MR GYLES:   Yes, until further order.  But, your Honour, my application is that your Honour will fix a time tomorrow or such a time as - the first reasonable period upon which your Honour can give us time to make a substantive application.

HIS HONOUR:   As to that, I should inform you that I would be able to sit in Melbourne at what might be called a reasonable time tomorrow morning.  I would assume that, subject to whatever parties may say, it would be possible to make an application returnable at, say, 9.15 tomorrow morning.

MR GYLES:   Yes, your Honour, it would be.  Your Honour will perhaps have a little informality with the documentation, your Honour, but we will certainly do our best to have everything ready for that time.  Certainly the application could go on then, your Honour. 

HIS HONOUR:   That would be what application, in what proceeding, of what kind?

MR GYLES:   That application then, your Honour, would be an application for a stay pending the Full Court hearing, a special leave application.

HIS HONOUR:   Yes.

MR GYLES:   That would be, your Honour, a proceeding arising out of Federal Court matter VG 152 of 1998. 

HIS HONOUR:   Is that the proceeding before North J or the proceeding in the Full Court?

MR GYLES:   That is the Full Court number but I think it may also be the court number, your Honour. 

HIS HONOUR:   Yes.

MR GYLES:   It is both.

HIS HONOUR:   Yes.

MR GYLES:   That, as your Honour will see from judgments, is entitled generally Patrick Stevedores and other appellants and the Maritime Union of Australia and other respondents.

HIS HONOUR:   Yes.

MR GYLES:   But there is a schedule, your Honour, of parties on page 20 of the Full Court decision which will identify all of those parties.  Your Honour, I appear with my learned friends Mr Middleton and Mr McDonald for the first to the 13th - they were appellants below, applicants here.

HIS HONOUR:   Yes.  Now, is there any other party who seeks to appear in relation to the matter?  Mr Burnside?

MR J.W.K. BURNSIDE QC:   If your Honour please, with my learned friends Mr Borenstein, Mr Bromberg and Mr Gronow, I appear for the MUA and the employees, who are the applicants in the action in the Federal Court and who were the first two respondents to the appeal in the Federal Court.  (instructed by Maurice Blackburn and Co)

HIS HONOUR:   Yes.  Is there any other party who seeks to appear or is there simply an abundance of counsel at the bar table?

MR G.P. HARRIS:   Your Honour, I appear for Mr Corrigan and Mr Dunn, both of whom are directors of various Patrick companies and were the seventh and ninth respondent before the Full Court.
(instructed by Blake Dawson and Waldron)

MR J. FAJGENBAUM QC:   If your Honour pleases, I appear with MS P. TATE for the 11th to the 16th respondents, who were also applicants and ultimately appellants in another application dealt with

simultaneously with the Patricks application before the Full Court.
(instructed by Minter Ellison)

HIS HONOUR:   Do you make any application to me or have any standing in the matter which Mr Gyles has mentioned?

MR FAJGENBAUM:   We make no application to your Honour but we have standing because we are parties, your Honour, to the action.

HIS HONOUR:   Which action?  I thought you told me you were parties to a separate appeal and separate action.  Which action are you a party to?

MR FAJGENBAUM:   We are parties to the original action.  We were parties to Mr Gyles' clients' appeal.

HIS HONOUR:   As what, appellant or respondent in that appeal?

MR FAJGENBAUM:   In Mr Gyles' clients' appeal we were respondents.

HIS HONOUR:   Yes.

MR FAJGENBAUM:   In our own appeal of course we were the applicants and ultimately the appellants.  It was an application for leave to appeal, which was granted, and the appeal was dealt with at the same time.

HIS HONOUR:   Yes.

MR FAJGENBAUM:   I simply make the observation, as I have made below, that one of the 11th respondents, the second‑named one, is the identical legal person to the 12th respondent.

HIS HONOUR:   Yes.  Mr Murdoch?

MR P. MURDOCH QC:   May it please your Honour, I appear with my learned friend MR J.D. ELLIOTT for the third respondent, fourth respondent, fifth respondent and sixth respondent in the Federal Court proceeding VG 152 for the Patrick Stevedores No.1, 2, 3 and National Stevedoring Tasmania Pty Ltd, all of which companies are under administration.  (instructed by Phillips Fox)

HIS HONOUR:   Yes.

MR G.T. PAGONE QC:   Your Honour, I appear with MR D. CHAN and MS W. HARRIS for the Commonwealth of Australia and for Mr Reith, who are the 17th and 18th respondents in the appeal that Mr Gyles brought.  I understand that we will be respondents to the application that may be made before your Honour.  If your Honour pleases.  (instructed by Dunhill Madden Butler)

HIS HONOUR:   Yes.  Does that account for all of the parties in the proceeding before the Full Court of the Federal Court of Australia in which Mr Gyles' clients were appellants?

MR GYLES:   I think, your Honour, Mr Clayton was the eighth respondent in our appeal below or our application below and appeal below.  He was not, as I understand it, your Honour, represented by counsel during that application.

HIS HONOUR:   Did he appear either on the application or the appeal?

MR GYLES:   I think, your Honour, yes.  I have to get instructions, your Honour, as to whether an appearance has been filed on his behalf. 

HIS HONOUR:   Does any party contend that I should for the moment examine whether Mr Clayton is a necessary party for my determining the application immediately made?

MR BURNSIDE:   We do not, and we think your Honour should know that Mr Murdoch and his clients were not appellants in the Full Court and we would say they have no standing in any application to this court.

HIS HONOUR:   Were they party to that appeal, Mr Burnside?

MR BURNSIDE:   As respondents, yes.

HIS HONOUR:   Why do they not have standing to attend in relation to an application now made?

MR BURNSIDE:   We would submit they have nothing to complain about.

HIS HONOUR:   Yes.  We may come to that in due time perhaps.  Now, Mr Gyles, as I understand it you ask that I make a stay for a limited
time, pending the hearing and determination of your - what might be called substantive application for stay.  Is that right?

MR GYLES:   Yes, your Honour.  Can I perhaps add, your Honour, only this:   if your Honour has the Full Court judgment, the bottom of page 1 and over to the end of the first paragraph on page 2 indicates the reasons why the Full Federal Court granted exceptional urgency to that application and indeed that appeal.

HIS HONOUR:   Mr Gyles, what are we hearing?  Are we hearing an application for stay on the merits or are we doing more than applying for what might loosely but not inaccurately be described as a stay on the same principle as Tait v the Queen?

MR GYLES:   The latter, if your Honour pleases.

HIS HONOUR:   Yes.  On what basis or why should I now make a stay order pending consideration of the merits of your application for stay?

MR GYLES:   Your Honour, the Full Court below recognised - in these words:

We stayed those orders not because we had any view about their merits but simply because it seemed to us undesirable to run the risk of the chopping and changing that would occur if the orders were allowed to operate for a short time and were then set aside on appeal.

That led, your Honour, to the grant of an immediate stay and then the expeditious dealing with the matter.  Now, the factual substratum, your Honour, which leads to our application this evening is this:  the effect of the orders below is that there is only a limited stay in relation to the orders of North J.  If your Honour goes to the minutes of order which are attached to the judgment, the operation of Order 4 is stayed:

In regard to each workplace to which it will apply until the completion of the work shift that is current at that workplace at the time these orders are pronounced.

Order 4, your Honour, is to be found most conveniently in the judgment of North J on page 3 of that judgment.

HIS HONOUR:   That is the order about restraining the Patrick parties from acquiring stevedoring services etcetera.

MR GYLES:   Yes.  Your Honour, the practical effect of that is that the companies which are presently supplying labour to the stevedores will be - as they come off each shift, the injunction will bite as far as those persons are concerned.  The wharf will then, as it were, be vacant and unprotected.  That will happen, your Honour, overnight, and it will vary from place to place but it will be happening overnight.

Order 5 in the Federal Court stays the operation of Orders 1 and 2 of North J until 12 noon or such earlier time as might be agreed - 12 noon tomorrow.  That is when the previous employees will commence their operations.  The practical effect, your Honour, is that there will be an hiatus, once the existing workforce leave the dock, with in effect nobody in possession.  Then there will be a period until the new workforce comes on board.

Your Honour, we are instructed that in the meantime, for example, the access will depend upon the attitude of police in various states and places.  There is no guarantee, your Honour, that there will be any administration in place because we have been told this evening that the administrator of the four companies who are supposed to reassume their role will be making an application to North J tomorrow for a stay because he will not be able to complete his duties.  There is no certainty that there will be any management in place and, your Honour, all cargo will be unguarded from about 6 am or wherever the ‑ ‑ ‑

HIS HONOUR:   This sounds suspiciously like an application on the merits.  My understanding of the basis of the jurisdiction that was exercised in Tait was that, in Sir Owen Dixon's words, "entirely so that the authority of this court might be maintained, the proceeding would be adjourned and orders made staying" - in that case - "execution of sentence on the prisoner Tait."  The assumption that may or may not underlie the application that you now make is that a stay on the merits when it can be heard is said to be a necessary step in order to make your application for special leave not futile.

MR GYLES:   Yes, of futility.

HIS HONOUR:   Is that the position or is there some other position?

MR GYLES:   No, your Honour, that is the position.

HIS HONOUR:   Well, why am I going into these intervening events?  If the contention is that you wish to be heard later to say special leave
application will be futile, am I to sit here until the early hours of the morning when neither the parties nor I have a reasonable opportunity to consider the reasoning of their Honours of the Full Court or are we simply to stay proceedings temporarily so that the parties - and, if it matters, the court - might draw collective breath to see whether the stay application has legs or no?

MR GYLES:   Your Honour, I am not embarking upon a course which would involve any examination on our part beyond that which I have said.  I was anxious to assure your Honour that this is not an unnecessary application, that is that things are going to happen overnight.  That is all I wish to say, your Honour. 

HIS HONOUR:   Yes.  Upon what terms, if any, do you say that a stay should go, if - I underline "if" - I were minded to give a stay until, say, 10 o'clock tomorrow morning?

MR GYLES:   We would have to - and I am in a position to give an undertaking as to damages, your Honour, in the normal form.

HIS HONOUR:   Yes.

MR GYLES:   Your Honour, as I stand here I can think of no other term because ‑ ‑ ‑

HIS HONOUR:   Would there not have to be an undertaking first to issue an application for special leave, an application for stay, to serve them within specified times and - I do not know - perhaps undertakings about the prosecution of those applications?  There may be other matters, I do not know.

MR GYLES:   Your Honour, I would have thought those were terms which would be imposed tomorrow rather than tonight.

HIS HONOUR:   The issue and service I think is something that if it is going to happen - if you are going to come up here sans papers, there has got to be some undertaking it seems to me, if you are to get a stay, that there will be some papers served within particular times.

MR GYLES:   Your Honour, 9 o'clock?

HIS HONOUR:   I am not debating the direction at the moment.  I just want to explore with you what undertakings you say - or what terms you
say - are implicit or required by your application.

MR GYLES:   Your Honour, I would immediately accept that a term might be imposed upon us of the kind your Honour mentions and we would submit to such a term.

HIS HONOUR:   Yes.

MR GYLES:   I cannot for my own part at the moment think of anything else.

HIS HONOUR:   Then given the hour, given the fact that the reasons have only just been published - and they may have been digested by counsel but I can assure you I have not - why should I not now inquire of those having an interest to oppose your application, at least as to their attitude?

MR GYLES:   If your Honour pleases. 

HIS HONOUR:   Yes.  Mr Burnside, your clients obviously have an interest to oppose it.  Is there any other party whom you say I should call on before I call on you, to express an attitude?

MR BURNSIDE:   No, your Honour, I think they are all against us.

HIS HONOUR:   Yes.  What is the attitude to what I have - as I say, loosely and perhaps inaccurately - described as a Tait v the Queen stay?

MR BURNSIDE:   In our submission, your Honour, the applicants have not even approached laying a foundation for a Tait stay.

HIS HONOUR:   Have you read Tait recently, Mr Burnside?

MR BURNSIDE:   Yes, your Honour. 

HIS HONOUR:   You will see there that Sir Owen said, did he not, that a stay went in that case without any consideration of the application or the basis on which it was made, without giving any consideration to or expressing any opinion as to the grounds upon which the application is based?

MR BURNSIDE:   Yes, your Honour, quite so, but in those circumstances, your Honour, it takes only a moment's reflection to see
that an application for special leave would be futile if the applicant had been executed overnight.  Now, in these circumstances, in order to reach that same conclusion, it takes a moment's reflection.  The Full Court gave it reflection and said to the applicants for a stay below that they did not regard it as a case likely to get special leave, insofar as one can make predictions of that sort, and they did not regard it as a case justifying a stay.  It has to be remembered, your Honour, that the stay application wherever ‑ ‑ ‑

HIS HONOUR:   Their Honours' view as to the prospects of success of special leave was perhaps informed by their Honours' view that North J's reasons were "tightly structured and compelling".  Is that so?

MR BURNSIDE:   In part, no doubt, and in part because they had given detailed consideration to the numerous arguments put forward by the appellants.

HIS HONOUR:   Yes.

MR BURNSIDE:   Your Honour, in our submission a party cannot justify a stay merely because they rush to the court late at night in circumstances which make detailed consideration inconvenient or impossible.  They must show at least some prospect that in the event that the court later decides that a stay should be granted that that later order will be rendered futile, thus bringing ‑ ‑ ‑

HIS HONOUR:   That is the contention they desire to make, Mr Burnside, and as I have said, as at present advised, subject to what you will urge upon me, I do not think it right or productive to attempt to resolve that question without having an opportunity for reflection upon the reasons and a proper opportunity for argument of a kind that might assist the court to arrive at an appropriate conclusion.

MR BURNSIDE:   May I say this, your Honour:  I think it has not even been drawn to your attention that the order which they most object to is the order which effectively would allow the recently displaced workforce to resume work.  That order is stayed in operation until 12 o'clock tomorrow by the Full Court.

HIS HONOUR:   Yes.  What harm then do you suffer if tonight I order stay until, say, 10 am tomorrow, adjourning the application on terms of the general kind discussed with Mr Gyles until, say, 9.15 tomorrow?

MR BURNSIDE:   It depends on which order you are staying, your Honour. 

HIS HONOUR:   All of the orders of North J as modified by the orders of the Full Court, so that this court may have a sufficient opportunity to consider the arguments which a party desires to address to it.

MR BURNSIDE:   Yes.  Your Honour, in our submission no stay is necessary until 12 o'clock tomorrow and before that time this court will be in a position ‑ ‑ ‑

HIS HONOUR:   Mr Burnside, let there be no misunderstanding of this between us ‑ by that, do you mean to say, Mr Burnside, let there be no misunderstanding of this between us - by that, do you mean to say that no step will be taken, depending upon or seeking to enforce orders that were made by North J, as modified by the Full Court?

MR BURNSIDE:   Yes, your Honour, I think that's right.

HIS HONOUR:   No, Mr Burnside, let there be no misunderstanding.  Are you telling me that or are you telling me something different or qualifying it?

MR BURNSIDE:   Your Honour, as I understand the operation of the orders, no positive step is to be taken by the replacement workforce before 12 o'clock tomorrow.

HIS HONOUR:   Then what harm do you suffer by a stay going until 10 am so that this Court might consider the application that is made in due time and circumstances.

MR BURNSIDE:   The only thing I can say against that, your Honour, unfortunately reaches out of the Court into the real world where a large number of people ‑ ‑ ‑

HIS HONOUR:   That, Mr Burnside, is a comment which is liable to be misconstrued and is liable to be misconstrued as intendedly offensive.

MR BURNSIDE:   It was not intended to be offensive at all, your Honour.

HIS HONOUR:   Good.

MR BURNSIDE:   In fact, it is borne of a real concern about this circumstance, which is not available on the material, but which is apparent to most people who have been following the events of the last several weeks.  The concern is this:  the workers who were displaced in a midnight raid two weeks ago, three weeks ‑ ‑ ‑

HIS HONOUR:   Mr Burnside, there is no jury in this Court.  If you would be good enough please to put submissions, having regard to that fact.

MR BURNSIDE:   The workers who were displaced suddenly on 8 April, have been living under an increasing amount of tension which has manifested itself in troubles at the waterfront in each state of the Commonwealth.  When North J handed down his decision, their hopes were raised and within 90 minutes were dashed when a stay was ordered.  Again, this evening, their hopes were raised when the Full Court unanimously rejected the appeals brought by the Patrick company and the farmer groups.

In our submission, your Honour, even if it is only for symbolic effect, it would be, to say the least, unkind and at the worst extreme; potentially unsettling at the waterfront if the symbolic victory were taken away from them, when there is no apparent need to take it away from them.  The fact is that if your Honour hears the matter at 9.15 in the morning, you can then reach a considered view, presumably before 12 o'clock, about whether any stay of the operative part of the orders is required.

HIS HONOUR:   No, Mr Burnside, this Court will not be put under time limits of that kind.  That is the whole point of Tait's case.  This Court does not operate in that fashion.  It cannot, if it is to do justice according to law, consistent with its position.

MR BURNSIDE:   All I can say, your Honour, is that adopting what was said in Tait's case, there will be no irreversible change of circumstances to anyone between now and 9.15 tomorrow morning, or indeed until 12 o'clock tomorrow morning.

There is another consideration, your Honour, and that is, the orders which the Full Court made modifying North J's orders, are designed to create the hiatus which Mr Gyles referred to so that one shift of the new workforce leaves before the previous workforce arrives.  It will be difficult to put those same arrangements in place again if matters are dislocated until the middle of the day tomorrow.

It may be, your Honour, that the only effect of leaving things as they presently stand is that if the Court takes longer than 12 o'clock tomorrow to deal with the matter, the order which would otherwise allow the old workforce to go back in will have to be stayed, and so be it.  That will not impose any pressure on the Court and if the matter were proceeding and the Court were still considering its decision, then we couldn't possibly oppose that course if the Court thought it appropriate.  All that would result in is that the old labour force would not return for the balance of Friday. 

Your Honour, in our submission, that is an appropriate way to leave matters, given that the Court cannot give the application proper consideration tonight.  In our submission, your Honour should not make any orders tonight but should review tomorrow morning whether Order 4 should be stayed beyond midday.

HIS HONOUR:   Yes, thank you.  Is there any other party who desires to be heard in opposition to Mr Gyles application?  I take the silence as a negative.

Maintenance of the rule of law in this society requires that parties may resort to the courts to determine their disputes.  Parties for whom Mr Gyles appears, seek to resort to this court and to contend that unless a stay of the orders of North J, as modified by the orders of the Full Court of the Federal Court of Australia made this evening is granted, their right to apply to this Court for special leave to appeal will be rendered futile.

To adopt and adapt the words of Dixon CJ in Tait v The Queen (1962) 108 CLR 620 at 624, without giving consideration to, or expressing any opinion as to the grounds on which the proposed application is based, but entirely so that the authority of this court may be maintained and it may have an opportunity of considering the application, there will be a stay now of the orders I have earlier mentioned, if the applicant proffers an undertaking as to damages in common form and gives suitable undertakings as to issue and service of both an application for special leave to appeal and an application for stay pending its hearing, that stay being until the hearing and determination of the proposed application for stay or further order.

Mr Gyles, what do you say as to the undertaking as to damages?  What do you say as to the undertaking as to issue and service?

MR GYLES:   I am instructed to and do give the undertaking as to damages in common form on behalf of those applicants for whom I have announced my appearance.

HIS HONOUR:   Let there be no doubt of it, Mr Gyles:  for which applicants, by what corporate name.

MR GYLES:   Yes, your Honour.  The schedule of parties annexed to the judgment of the Full Court of 23 April, those which are identified, your Honour, as the first to the 13th appellants inclusive; that is, from Patrick Stevedores Operations No.2 Pty Ltd, first appellant, down to and including Patrick Stevedores Operations Pty Ltd, the 13th appellant.

HIS HONOUR:   Therefore including, amongst others, the various public companies there named, including Lang Corporation Ltd, Jamieson Equity Ltd and I think there is no other public company.  The rest are proprietary companies.  Is that so?

MR GYLES:   I think that is right, your Honour, with respect.

HIS HONOUR:   You proffer that undertaking in common form on behalf of those companies as to damages in favour of which parties?

MR GYLES:   In favour, your Honour, of the parties for whom my learned friend - I will just locate them, your Honour - the parties identified as the first and second respondents in the schedule to which I have referred.

HIS HONOUR:   Namely, the Maritime Union of Australia, Peter Breukers, Jake Haub and Kieran Coyle.

MR GYLES:   Yes, your Honour.  Your Honour, I include and add to that the parties identified in that schedule as the third to the sixth respondents, Patrick Stevedores No.1 Pty Ltd, Patrick Stevedores No.2 Pty Ltd, Patrick Stevedores No.3 Pty Ltd, National Stevedores Tasmania Pty Ltd.

HIS HONOUR:   In each case a company under administration.

MR GYLES:   Yes, your Honour.

HIS HONOUR:   What undertaking, if any, do you proffer about service, issue and the like?

MR GYLES:   Your Honour, we will undertake to serve by 9 am tomorrow an application for special leave to appeal, which will include a claim for stay until the hearing and determination of that special leave to appeal, recognising, your Honour, that the stay may be for a shorter period.

HIS HONOUR:   I will come back to that presently, but it would, I suspect, be better if the undertaking were to serve a draft, preferably if it were possible, earlier.  I say a draft because the Deputy Registrar will have to issue it.  As soon as the parties can have it, the better.  Is there to be any material supporting the application?

MR GYLES:   Your Honour, we will be endeavouring to have an affidavit which will support the application and I will undertake to serve by 9 am at least an unverified version of any such affidavit upon which we wish to rely in unsworn form at that stage.

MR GYLES:   Yes.

HIS HONOUR:   So again - I do not want this thing to trip up on misunderstandings.  The time specified is 9 am that you offer.

MR GYLES:   Yes, your Honour, but we will undertake to do it earlier - I mean, we will inter partes do it earlier if we can.

HIS HONOUR:   But the undertaking is 9 am tomorrow.

MR GYLES:   Yes.

HIS HONOUR:   It is a draft application.

MR GYLES:   Yes.

HIS HONOUR:   It is, rather, not draft; it is unsworn form of affidavit or affidavits upon which you intend to rely in support of your application.

MR GYLES:   Yes.

HIS HONOUR:   I should have added, but did not; that the draft application for special leave to appeal would also include an application for stay, pending its hearing and determination.

MR GYLES:   Yes, your Honour.  Your Honour, I would propose to tender the material I have handed to your Honour tonight and the parties all have copies of that and know what it is.

HIS HONOUR:   At some inconvenience to the court recording service, for which I am indebted, the proceedings have been recorded so that there should be no difficulty about us finding out what has passed between us all tonight.

MR GYLES: Your Honour, the only other thing I would do whilst I am on my feet, if it would be helpful to your Honour, is to hand to your Honour a copy of some submissions we put to the Full Court today on issues which we will be asking your Honour to look at tomorrow, and if it would help your Honour, a copy of the Workplace Relations Act.

HIS HONOUR:   I have got the Act.  Is there any reason, Mr Burnside, why I should not receive this document?  Is it a document that you have seen?

MR BURNSIDE:   I believe so.  Yes, no reason.  Your Honour, before you pronounce orders, may I ‑ ‑ ‑

HIS HONOUR:   I am going to hear from you and the other parties about the terms of any of these undertakings and directions before I pronounce the order.  Before I call on you, should I not hear from those whose interests at least are not as immediately adverse to Mr Gyles as yours are?  Do any of the other parties seek to be heard in relation to the proposals made by Mr Gyles?  No?

MR HARRIS:   No, your Honour.

MR FAJGENBAUM:   No, your Honour.

HIS HONOUR:   Mr Burnside, yes?

MR BURNSIDE:   The form of the undertakings in relation to damages is fine.  The other undertakings are fine, your Honour.  The one difficulty we have is that the stay really should only operate in relation to Orders 1, 2 and 4 of North J's decision.  Specifically it should not operate to stay Order 5 which is the one order that preserve the continuing employment of our clients in the companies under administration.  That order has never been the subject of a stay.

MR MURDOCH:   That's the order made against my client, your Honour, and we would not press for that to be stayed, your Honour.

MR GYLES:   I am told, your Honour, that we are content to exclude Order 5.  The other orders have never been the subject of stay, your Honour.  Order 6 should ‑ ‑ ‑

HIS HONOUR:   In the nature of a Mareva.

MR GYLES:   Again,  your Honour, between now and tomorrow morning we are not troubled by 6.

MR BURNSIDE:   And for what benefit it may have in terms of the speed of this litigation, your Honour, the directions that were made after Order 6 should also remain, in our submission.  They also have not been stayed at any prior stage, nor has any reason been suggested why there ought to be.

HIS HONOUR:   My understanding was that the application was to stay the operation of the injunctions.  I do not think I have expressed it in that form, but if a stay goes staying the injunctions, I had better do it by paragraph number I think, excluding paragraphs 5 and 6, is it, of the order of North J?

MR BURNSIDE:   3 should not be stayed as well.  The only orders that have been stayed thus far are ‑ ‑ ‑

HIS HONOUR:   Excluding 5 and 6.

MR BURNSIDE:   3 should not be stayed either, your Honour.  It has been common ground, I think it's fair to say, that 1, 2 and 4 need to be stayed to preserve the present position of both parties, but if the others are stayed, then our position would be irretrievably lost.  I think, with respect, until tomorrow morning we are content with that, your Honour - 1, 2, 4.

HIS HONOUR:   Yes.  Before we leave this place tonight I want a form of the order, in scribbled handwriting if needs be, prepared so that I may pronounce it, so that again there will be no doubt of the effect of this order.  I want therefore one or other of the juniors to begin that task now.  Yes, Mr Burnside.

MR BURNSIDE:   Your Honour, I apologise for getting up again, but I should have mentioned, the form of undertaking as to damages is an unfortunate shorthand.  You referred to the three named applicants, the three personal applicants, but they are applicants in a representative capacity.  They represent the 1400 or so displaced workers.  The undertaking as to damages really should be an undertaking in favour of all those displaced workers.  They are readily identifiable by a schedule.  There is no doubt about their identity.

HIS HONOUR:   What is there that tells me that the suit is a representative suit?

MR BURNSIDE:   The application and the Statement of Claim do but you do not have those papers I think.

HIS HONOUR:   Yes, I do.  What paragraph of the amended Statement of Claim - is it paragraph 1, brought by Coyle as a representative parties.  The group members are the "employees".  Is that the paragraph on which you depend?

MR BURNSIDE:   Yes, it is.

HIS HONOUR:   Mr Gyles, what do you say?

MR GYLES:   Your Honour, the difficulty is ‑ ‑ ‑

HIS HONOUR:   Let me interrupt you, Mr Gyles.  It is now 20 past 9.  Presently I will leave the bench and I will come back at half past or 25 to 10, by which time I want counsel to have prepared a form of order so that we may know precisely what form of order is sought, and if there is a difference, what that difference is.  So you can perhaps take instructions.  Is there any other matter that you wish to raise, Mr Burnside?

MR BURNSIDE:   No, your Honour.

HIS HONOUR:   There is one other matter that I should mention now to the parties so that they may order their affairs accordingly.  It may be - I emphasise it may be - that a Full Court of the Court may be assembled on Monday next if it is thought necessary or desirable to deal with any aspect of this matter.  It may be, therefore, that a Full Court of the Court could be assembled in Canberra to hear, if the proceedings are then in a state to do so, an application for special leave, perhaps more than that, I do not know.  I simply mention it to the parties.  I mention it to them as a
possibility.

MR GYLES:   If your Honour pleases.

HIS HONOUR:   I will adjourn until 25 to 10, by which time I trust counsel would have done their scribing.

ADJOURNED  [9.21 pm]

RESUMED  [9.39 pm]

MR GYLES:   Your Honour, Mr Middleton, with Mr Burnside's assistance, has reduced these terms to writing and I hand them to your Honour.  As your Honour will see, we will want to recover them in due course to have them made more legible.

HIS HONOUR:   Is there any dispute between the parties that these orders reflect the intention of the orders that I had foreshadowed?

MR BURNSIDE:   No, your Honour.

MR HARRIS:   No, your Honour.

HIS HONOUR:   And do you, Mr Gyles, on behalf of the parties which are not identified in this?

MR GYLES:   Yes.

HIS HONOUR:   Show it to Mr Burnside.  You are content with those alterations, are you, Mr Burnside?

MR BURNSIDE:   Yes.

HIS HONOUR:   Mr Gyles, on behalf of the parties named in this document, namely the applicants referred to as the first to third appellants - - -

MR GYLES:   13th.

HIS HONOUR:   Who is writing this, gentlemen, you or me?  No, these orders are important.

MR GYLES:   Yes, your Honour.

HIS HONOUR:   These orders have to be capable of enforcement.  Try again.  I know it is late, I know you are under pressure, but these things matter.  They have got to be right.

MR GYLES:   I can inform my friend that it is now made clear or legible that it is the first to the 13th, I hope.

HIS HONOUR:   Yes.  Third time lucky, Mr Gyles.  You, on behalf of the applicants referred to as the first to the 13th appellants in the schedule of parties in the judgment of the Full Court of the Federal Court of Australia, today undertake to pay to the Maritime Union of Australia, Peter Breukers, Jake Haub, Kieran Coyle, and the individuals referred to in paragraph 1 of the statement of claim in action VG 152 of 1998 in the Federal Court of Australia whom Kieran Coyle represents; to Patrick Stevedores No.1 Pty Ltd, No.2 Pty Ltd, No.3 Pty Ltd and National Stevedoring Tasmania Pty Ltd adversely affected by the stay granted by this court, such compensation if any as the court thinks just in such manner as the court directs.  Do you offer that undertaking on behalf of those persons?

MR GYLES:   I do, your Honour.

HIS HONOUR:   And upon the same applicants, an undertaking to serve a draft application for special leave to appeal, including a notice of motion for a stay of proceedings until the determination of the said application and any unsworn affidavits upon which they intend to rely by 9 am tomorrow, Friday 24 April 1998.  Do you offer that undertaking on behalf of those persons?

MR GYLES:   I do.

HIS HONOUR:   There will then be orders that:

Paragraphs 1, 2 and 4 of the orders of North J, made on 21 April 1998 as modified by the Full Court of the Federal Court of Australia on 23 April 1998 be stayed until the hearing and determination of the proposed application for stay by the applicants.

I assume I should also reserve the costs and certify for the attendance of counsel, should I?

MR GYLES:   If your Honour pleases.

HIS HONOUR:   Orders are made in those terms.  The proceeding then, subject to anything that counsel may say, will stand over until 9.30 am tomorrow.

MR GYLES:   I was wondering, your Honour, if 10.15 might be doable from our point of view.  It is going to be - - -

HIS HONOUR:   It is going to be a long night, is it not, Mr Gyles?  9.30 tomorrow.

MR GYLES:   If your Honour pleases.

MATTER ADJOURNED AT 9.47 PM UNTIL
FRIDAY, 24 APRIL 1998