SZSPT v MIBP
[2014] FCA 1254
•18 November 2014
FEDERAL COURT OF AUSTRALIA
Quirk and Miller; In the matter of an urgent application before the start of a proceeding [2014] FCA 1254
Citation: Quirk and Miller; In the matter of an urgent application before the start of a proceeding [2014] FCA 1254 Parties: ANDREW QUIRK and BRIAN MILLER File number(s): NSD 1190 of 2014 Judge(s): BUCHANAN J Date of judgment: 18 November 2014 Catchwords: PRACTICE AND PROCEDURE – Urgent Application Before Start of a Proceeding – Injunction sought to stop disciplinary meeting of a union taking place – Allegation that disciplinary meeting would breach union rules – Order under s 164 of Fair Work (Registered Organisations) Act 2009 (Cth) sought – applications dismissed Legislation: Fair Work Act 2009 (Cth)
Fair Work (Registered Organisations) Act 2009 (Cth), ss 164, 164(2), 164(3)
Federal Court Rules 2011 (Cth), rr 34.06, 34.06(2)(b)Construction, Forestry, Mining and Energy Union, Construction and General Division Rules, r 11
Date of hearing: 18 November 2014 Place: Sydney Division: FAIR WORK DIVISION Category: Catchwords Number of paragraphs: 22 Counsel for the Prospective Applicants: Mr I M Neil SC with Ms B Obradovic
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
FAIR WORK DIVISION
NSD 1190 of 2014
IN THE MATTER OF AN URGENT APPLICATION
BEFORE THE START OF A PROCEEDING
BETWEEN: ANDREW QUIRK
First Prospective ApplicantBRIAN MILLER
Second Prospective Applicant
JUDGE:
BUCHANAN J
DATE OF ORDER:
18 NOVEMBER 2014
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The applicants have leave to file electronically their Urgent Application Before Start of a Proceeding.
2.The application be dismissed.
3.The oral application for an order under s 164 of the Fair Work (Registered Organisations) Act 2009 (Cth) be dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
FAIR WORK DIVISION
NSD 1190 of 2014
IN THE MATTER OF AN URGENT APPLICATION
BEFORE THE START OF A PROCEEDING
BETWEEN: ANDREW QUIRK
First Prospective ApplicantBRIAN MILLER
Second Prospective Applicant
JUDGE:
BUCHANAN J
DATE:
18 NOVEMBER 2014
PLACE:
SYDNEY
REASONS FOR JUDGMENT
(Revised from transcript)
I am dealing with an urgent application before the start of a proceeding, brought on behalf of Mr Andrew Quirk and Mr Brian Miller. I gave leave for that application to be filed electronically when the proceeding commenced.
Mr Quirk and Mr Miller are each officers of the Construction, Forestry, Mining and Energy Union (“the CFMEU”), Construction and General Division (“the Division”). Each has been charged under the rules of the CFMEU by Mr David Noonan, the Secretary of the Division, with gross misbehaviour. Those charges were made by Mr Noonan by letter dated 5 November 2014. In Mr Quirk’s case they arise from statements made by Mr Quirk on 16 October 2014 on the ABC 7.30 program. In Mr Miller’s case they arise from statements made on 16 October 2014 on the ABC 7.30 program and to a journalist at the Sydney Morning Herald.
On 7 November 2014 Mr Noonan sent to Mr Quirk and Mr Miller the material that he would rely upon at the hearing of the charges made by him, which hearing was to occur at a meeting of the Divisional Executive of the Division at 1 pm today, 18 November 2014.
At the present time proceedings have not been commenced in this Court concerning the issues to which I have referred. It is likely that proceedings will be commenced at least under s 164 of the Fair Work (Registered Organisations) Act 2009 (Cth) for an order for performance of the rules of the CFMEU.
What appears to be in contemplation is that the CFMEU would be ordered to perform rule 11 of the Rules of the Division in a way which avoided any infringement of the requirements of natural justice. The way in which it is said there is an arguable case that those requirements will be infringed if the meeting goes ahead at 1 pm today is that there is the real possibility that the Divisional Executive will be constituted to include persons who are either the accuser (Mr Noonan) or other persons identified in an affidavit of Mr Les Feher at [14] who are persons who might be predisposed against Mr Quirk and Mr Miller or who have been involved in the events which give rise to the charges against them. Those persons are identified as Rita Mallia, Brian Parker and Frank O’Grady.
The second respect in which it has been suggested that Mr Quirk’s and Mr Miller’s rights to natural justice might be infringed is that if a hearing was conducted today they would be denied a reasonable opportunity to consider the charges to be made against them and to prepare their defence.
It is possible that proceedings may also be commenced against the CFMEU as the employer of Mr Quirk and Mr Miller under the Fair Work Act 2009 (Cth) (“the Fair Work Act”). Mr Feher’s affidavit refers to certain respects in which it might, in due course, be contended that the provisions of the Fair Work Act might be infringed. However, at this point in time that is only a possibility and it was candidly conceded by Mr Neil of senior counsel that the prospects for the employment of Mr Quirk and Mr Miller are unknown, although on his submission the prospect that they will be removed as divisional officers of the CFMEU has been established to the necessary standard.
The first difficulty for the applicants in their present application is that proceedings for final relief have not yet been commenced. If proceedings are commenced in this Court seeking orders pursuant to s 164 of the Fair Work (Registered Organisations) Act 2009 (Cth), they would normally be commenced under r 34.06 of the Federal Court Rules 2011 (Cth). In such a case it would be necessary to make an application for a rule to show cause setting out the matters identified in r 34.06(2)(b).
An application for a rule to show cause (which if granted represents the effective initiation of proceedings) may be made to the Court without notice. Today Mr Neil sought to make an oral application relying directly on s 164, but even if I were to treat that application as an application for a rule to show cause it would do no more than effectively commence the proceedings and would not provide a foundation for any further order to be made under s 164 at the moment.
Under s 164 the Court may make interim orders but may only do so after there is an effective application for an order under s 164 before the Court.
Equally importantly s 164(2) provides:
164 Directions for performance of rules
Application for order directing performance of rules
…
(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.
Because the proceedings come before me at the moment ex parte, even if I was to grant Mr Neil’s oral application there has not been any opportunity for any person to be heard on the question of whether an order should be made under s 164 for performance of rules.
Section 164(3) provides:
164 Directions for performance of rules
Application for order directing performance of rules
…
(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.
For reasons which I will mention in a moment I am not so satisfied at the present time.
The rule in question, the performance of which it has been submitted may not be properly carried out, is rule 11 of the Rules of the Division. That rule provides that an officer charged with gross misbehaviour is to have sufficient notice to enable a reply and “is to be afforded an opportunity of being present at the hearing and of being heard in his/her own defence, including an opportunity to cross-examine and to give and call evidence”. That appears to contemplate that the ordinary requirements of natural justice will be afforded but it is difficult to assess in advance whether those requirements will be breached if the meeting goes ahead today.
The rule also provides that any officer removed from office shall have rights of appeal, firstly to the Divisional Conference and thereafter to the National Executive or National Conference. The existence of those provisions is another matter which I take into account as relevant to the operation of s 164(3). I am not satisfied at present that the requirements of s 164(3) have been met. Apart from the prohibition under s 164(2), I decline, therefore, to entertain the oral application for an order under s 164 of the Fair Work (Registered Organisations) Act 2009 (Cth). That oral application will be dismissed.
As to the application for an urgent injunction, I am not persuaded that it should be granted.
I am not satisfied that it is inevitable or even likely that the Divisional Executive will be constituted by persons who are predisposed against Mr Quirk and Mr Miller for the purpose of considering the charges laid against them. Should that occur that might provide some foundation for relief but it would be only speculation to proceed upon the basis that that will be a course taken at the meeting today.
Mr Quirk and Mr Miller have given some indication through their solicitor that they may not attend the meeting. That is a matter about which I make no comment. However, on 14 November 2014, Mr Noonan wrote to Mr Feher, the solicitor acting for Mr Quirk and Mr Miller, advising him that they had been provided with all of the material in support of the charges and that if they had any questions about the charges they could ask such questions at the meeting. Mr Noonan also said that if Mr Quirk and Mr Miller believed they had not been given sufficient time to respond then they could put that to the Divisional Executive at the meeting on 18 November 2014.
In the circumstances, I do not think it would be justified to proceed upon any particular assumption as to what might happen at the meeting should Mr Quirk and Mr Miller attend. Nor upon any particular assumption about what might happen at the meeting should they not attend. If what transpires at the meeting should give rise to some cause of action in this Court then if such proceedings are commenced there might be, depending on the circumstances, a further occasion to consider whether any form of urgent or interim relief is desirable. But it does not appear to me that such relief is necessary at the present time.
I am not persuaded at present that there is a prima facie case for relief established of the anticipatory kind which the present application represents. Furthermore, I am not persuaded that the balance of convenience at the present time would favour restraining the meeting which is scheduled to commence in 25 minutes time at 1 pm. What, if any, relief might be sought as a result of the conduct of this meeting raises different issues about which I say nothing.
For those reasons I reject the application which I gave leave to file electronically. I dismiss the oral application made in Court.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan. Associate:
Dated: 1 December 2014
5
0
4