Tait v Walters

[1999] QCA 298

COURT OF APPEAL  99.298

McMurdo P
Pincus JA
Thomas JA

CA No 6358 of 1999

WILLIAM PETER TAIT  First Applicant

and

REBECCA SMITH  Second Applicant

and

KAREN WALTERS  First Respondent

and

DANVRE CLEMENT  Second Respondent

and

STANWELL CORPORATION LIMITED               Third Respondent

TOWNSVILLE

..DATE 29/07/99

JUDGMENT

PINCUS JA:  The applicant has filed a notice of motion dated 30 June 1999 seeking an extension of time within which to appeal against orders of Jones J delivered on the 18th day of May 1999.  The notice of motion also mentions other matters, but the essential point is whether or not there should be an extension of time.

Mr Tait has appeared before us today and has explained the basis upon which the intended appeal would proceed.  There were three applications brought before Jones J and they were brought by Mr Tait and by another applicant.  It does not appear to me that it is necessary to refer further to the other applicant, although Mr Tait made some reference to that aspect in the course of his address.

The first application with which Jones J dealt was a judicial review application.  And the history of it appears to be that the second respondent served the applicant with a notice alleging breaches of discipline against him as the then environment officer for the James Cook University union.  A special meeting of the union found the charges sustained.  In the course of argument before us today the applicant objected to the Judge's statement that the union had found that the first applicant had breached discipline.  It does not appear, however, that that statement is inaccurate.

A complaint was lodged by the applicant with the Anti-discrimination Tribunal alleging that there had been discrimination against him on the basis of his political beliefs.  There was also lodged a complaint, alleging discrimination on the basis of political beliefs, against Stanwell Corporation, which is the third respondent.  The applicant had made several submissions relating to an assessment study conducted by that respondent in relation to the North Queensland power project.  The consultation register included in the study report did not refer to these submissions.  The complaints were, it appears, not successful.

An application for judicial review of the decisions in question was made.  The orders which were made and which are complained of before us were explicit and implicit.  The explicit order was that the directions hearing, which was before his Honour was adjourned, and implicitly his Honour decided that applications to dismiss the application for judicial review, foreshadowed by the applicants, should be determined before the directions hearing.  It is not, of course, possible to appeal, and Mr Tait does not seek to appeal, against the latter point.  The only order which was made, operatively, on the first application was simply an adjournment of the directions hearing. 

There has been nothing put before us by the applicant, although he addressed at some length on this matter, to suggest that the Judge, in exercising his discretion to adjourn the directions hearing, erred.  Indeed, in view of the fact that the matter was apparently brought on by way of telephone application (for reasons which need not be stated) that would have been prima facie a convenient course, unless there was some urgency about the case, and there does not seem to have been any urgency about it.  It is therefore my view that if and in so far as the applicant says that the Judge wrongly exercised his discretion in adjourning the directions hearing, that complaint has no substance. 

The second application is described by Jones J in these terms.  It was made by a notice of a motion of 14 May and his Honour said, “This matter was brought on as a matter of urgency because the council of the union”, and his Honour is there referring to the union previously mentioned. 

“The council of the union was due to meet at 3 p.m. on Tuesday 20 May 1999, the day of hearing, and the applicants wished to restrain the members of the council from further discussing or making decisions with respect to the disciplinary charges against the second respondent.” 

Although it is not absolutely clear that the applicant agrees that that was the substance of what was asked of Jones J I have no hesitation in proceeding on the basis that his Honour understood what it was that was desired of him.  The fact of the matter is that, we are told by the applicant, no such meeting was held.  That is, there was no meeting of 20 May and therefore, if an injunction had been granted it would have had no effect.

The matter is therefore now academic.  Although I did not find this terribly clear, I understood that the applicant suggested that there should have been an amendment of the notice of motion of 14 May 1999 to make a claim for a declaration; if that is so, then it does not seem to me that the complaint really has any substance. 

The third application related to an injunction restraining the James Cook University union from conducting any business relating to a proposed community sports foundation and relating to the judicial review application which I mentioned previously.  Jones J refused the application for an injunction.  His Honour found that the applicant had no standing to seek the injunction, and the basis of that view was discussed by the applicant today.  The basis on which His Honour proceeded, which is conceded to be factually correct, is the applicant was not, at relevant times, a member of the union. 

The reasons which His Honour gave in relation to this matter assert, and again, I must say I would have thought accurately, that it was not made clear what the nature of the complaint was.  However, we have had the advantage of an explanation by the applicant of what it is that he asserted the council was going to do unlawfully. 

He said that there is provision in the rules restraining the council of the union from making certain sorts of decisions without holding a referendum.  As he did not appear to dispute, however, that was not what was sought to be restrained.  The application was to restrain the council of the union from considering or discussing various matters and a rule preventing them from making decisions of a particular sort would not, plainly, prevent consideration or discussion of them.  For example, consideration or discussion of an issue could lead to a conclusion that the matter should be taken no further, or could lead to a conclusion that a referendum should be held, or could lead to a conclusion that the matter should simply be put over for further consideration.

Assuming in favour of the applicant that he is right in the statement he makes as to the effect of the rule, it seems plain that the Judge's view of the matter, which was that injunctions should not be granted, was correct.  And the reason why it was correct, leaving the question of standing aside altogether, was that the rule which, as is now clear, is relied on cannot entitle the applicant to the relief which he seeks.

So far, I have been discussing the first notice of motion which was filed, which is dated 30 June 1999 and was filed on 5 July 1999.  I made brief mention of the fact that it deals with matters other than the extension of time.  Paragraph 2 says:

“Subsequent to the granting of such relief, Order 70 Supreme Court Rules, the spirit of the purposes of the Judicial Review Act 1991 and the requirements for natural justice, the Court of Appeal order.”

That goes on then to ask that the Registrar waive certain fees and that the union pay certain fees.  Nothing has been put forward to justify the grant of any of that relief.  The third matter mentioned in the notice of motion is that “The appeal be instituted by way of this notice of motion and be heard as soon as is practicable.”  That would not be necessary, if the extension of time is not granted.

The second notice of motion which was filed, and that one is dated 26 July, asked for various relief.  It asked, “That service of all applications and submissions filed in the Courts or otherwise by any of the respondents be set aside and that those submissions not be heard or considered by the Courts but be struck from the record.”  Nothing was put forward which could possibly justify such an extraordinary order.  Secondly it asked that the Court, in the interests of various matters, proceed with the application for an extension of time as soon as practicable.  We have done that.  And thirdly it asks for a declaration, nothing has been put forward which could justify the declaration which was mentioned.

The result is that the first notice of motion and the second notice of motion, in my view, should be dismissed. 

The substance of the matter is that the application challenges decisions made by Jones J in the telephone hearing which his Honour conducted, the bases of the challenges which are put forward, extracted only with considerable difficulty from a welter of irrelevant observations made by the applicant, are quite unsound.

The order which I would therefore propose to be made is that each notice of motion, namely that dated the 30th day of June 1999, and that dated the 26th day of July 1999 be dismissed with costs.

THE PRESIDENT:  I agree with Mr Justice Pincus, and with the orders he proposes.  A substantive application for judicial review is to be heard tomorrow in Townsville by Mr Justice Jones.  The applicant has not demonstrated any reasons, in the circumstances, that would justify the granting of an extension of time.

THOMAS JA:  I agree.  I would not extend the time that is needed to enable the applications to be granted and would add that they appear to be hopeless.

THE PRESIDENT:  The orders are the notices of motion dated 30 June and 26 July 1999 are dismissed with costs.

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