Shamrock Holdings Pty Ltd v The Construction Forestry Mining

[2004] FCA 570

FEDERAL COURT OF AUSTRALIA

Shamrock Holdings Pty Ltd v The Construction Forestry Mining
& Energy Union of Workers [2004] FCA 570

SHAMROCK HOLDINGS PTY LTD v THE CONSTRUCTION FORESTRY MINING & ENERGY UNION OF WORKERS
W60 of 2004

CARR J
7 MAY 2004
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W 60 OF 2004

BETWEEN:	SHAMROCK HOLDINGS PTY LTD APPELLANT
AND:	THE CONSTRUCTION FORESTRY MINING & ENERGY UNION OF WORKERS RESPONDENT
JUDGE:	CARR J
DATE OF ORDER:	7 MAY 2004
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.        The appellant’s motion, filed on 17 March 2004, be stood over. 

2.The appellant have liberty to apply in the event of any variation to the interlocutory injunctions granted today in the matter of BGC Contracting Pty Ltd & Ors v The Construction Forestry Mining & Energy Union of Workers, Application No W38 of 2004. 

3.Costs of the motion to date be reserved.

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

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W 60 OF 2004

BETWEEN:	SHAMROCK HOLDINGS PTY LTD APPELLANT
AND:	THE CONSTRUCTION FORESTRY MINING & ENERGY UNION OF WORKERS RESPONDENT

JUDGE:	CARR J
DATE:	7 MAY 2004
PLACE:	PERTH

REASONS FOR JUDGMENT

1. The appellant moves for orders in the following terms:

   ‘1.Until further order, the operation of any declaration made by Commission[er] Kenner pursuant to the judgment delivered on Monday 15 March 2004 CR 13 of 2004 in the Western Australian Industrial Relations Commission be stayed.

   2.Costs be in the cause of the Appeal.’

2. In its supplementary notice of appeal, filed on 29 March 2004, the appellant appeals from what is said to be the whole of the judgment of the Western Australian Industrial Relations Commission given on 15 March 2004, purports to appeal against various findings of Commissioner Kenner in reasons delivered on 15 March 2004 and appeals from the Commission’s declaration issued on 24 March 2004. 

3. The subject matter of this appeal overlaps substantially with an interlocutory judgment which I have delivered today in BGC Contracting Pty Ltd & Ors v The Construction Forestry Mining & Energy Union of Workers [2004] FCA 569 and two earlier judgments in that matter, the first delivered on 20 February 2004, BGC Contracting Pty Ltd & Ors v The Construction Forestry Mining & Energy Union of Workers [2004] FCA 272 and the second on 18 March 2004, BGC Contracting Pty Ltd & Ors v The Construction Forestry Mining & Energy Union of Workers [2004] FCA 417. These reasons are intended to be read with those three sets of reasons. Accordingly I will not in these reasons recite the factual and procedural background of this appeal.

4. The appellant’s motion was called on for hearing after the hearing of the application for the continuation of interlocutory injunctive relief in Application No W38 of 2004 with which the third of those reasons were concerned.  When the motion was called on, Mr M C Hotchkin, counsel for the appellant, moved for an adjournment on the basis, inter alia, that the appellant sought the above stay only because it was possible that the Court might discharge the interlocutory injunctions granted in Application No W38 of 2004. 

5. I declined to adjourn the motion, for short reasons given at the time. 

6. As it transpires, for the reasons which I have published today, I have decided that those interlocutory injunctions should remain in force until the hearing of the application or further order. 

7. In those circumstances, I do not think that it is necessary to make an order in the terms proposed in the appellant’s notice of motion. 

8. Shortly before the hearing of the motion I raised with the parties the question whether it was possible to stay a declaration.  They were given leave to file written submissions on this point and they have done so. 

9. I take the appellant’s point that it is seeking a stay of the operation of the declaration, by which I take it to mean the stay of any steps taken in reliance upon or in consequence of the making of the declaration.  I do not intend, in these reasons, to recite the authorities on the question of what stay orders (if any) may be possible or appropriate where a declaration has been made. 

10. While the interlocutory injunctions remain in force in the principal application, I see no utility in making a stay order in this appeal.  If that circumstance should change, the appellant should have the right to press its claims for a stay. 

11. In those circumstances, the orders which I propose to make are that the motion be stood over with liberty to apply in the event of any variation being made to the interlocutory injunctions granted in application W38 of 2004.  Costs of the motion should be reserved. 

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of Justice Carr.

Associate:

Dated:             7 May 2004

Counsel for the Appellant:	Mr M C Hotchkin
Solicitors for the Appellant:	Messrs Hotchkin Hanly
Counsel for the Respondent:	Mr H Borenstein SC with Mr T J Dixon
Solicitors for the Respondent:	Mr T R Kucera
Date of Hearing:	16 April 2004
Date of Judgment:	7 May 2004