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Tristar Steering and Suspension Australia Limited v Industrial Relations Commission of New South Wales

Tristar Steering and Suspension Australia Limited v Industrial Relations Commission of New South Wales

Case [2007] FCA 407 21 March 2007

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FEDERAL COURT OF AUSTRALIA
Tristar Steering and Suspension Australia Limited v Industrial Relations Commission of New South Wales [2007] FCA 407
Industrial Relations Act 1996 (NSW), ss 146(1)(d), 164
Workplace Relations Act 1996 (Cth), ss 4, 16(1)
Australian Broadcasting Corporation v Lenah Game Meats Pty Limited (2001) 208 CLR 199, cited
Australian Broadcasting Corporation v O’Neill (2006) 229 ALR 457, cited
Beecham Group Limited v Bristol Laboratories Pty Limited (1968) 118 CLR 618, cited
BP Chemicals ANZ Pty Limited v Manildra Starches Pty Limited [1997] FCA 1189, referred to
CastlemaineTooheys Limited and Others v The State of South Australia (1986) 161 CLR 148, cited
Environmental Protection Authority v Caltex Refining Co Pty Limited (1993) 178 CLR 477, referred to
Francome and Another v Mirror Group Newspapers Ltd and Others (1984) 2 All ER 408, referred to
Linfield Linen Pty Ltd v Nejain (1951) 51 SR (NSW) 280, referred to
New South Wales v Commonwealth (2006) 82 ALJR 34, considered
Re Cortaus (in Liq); Sheahan v Joye & Ors (No. 2) (1996) 20 ACSR 576, distinguished
Tesco Supermarkets Limited v Nattrass [1972] AC 153, referred to
Tristar Steering & Suspension Australia Ltd v Industrial Relations Commission of NSW [2007] FCA 348, referred to
TRISTAR STEERING AND SUSPENSION AUSTRALIA LIMITED AND CHENG HONG v INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES AND NSW MINISTER FOR INDUSTRIAL RELATIONS
NSD 354 OF 2007
COWDROY J
21 MARCH 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 354 OF 2007

BETWEEN:

TRISTAR STEERING AND SUSPENSION AUSTRALIA LIMITED
First Applicant

CHENG HONG
Second Applicant

AND:

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES
First Respondent

NSW MINISTER FOR INDUSTRIAL RELATIONS
Second Respondent

JUDGE:

COWDROY J

DATE OF ORDER:

21 MARCH 2007

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.Leave be granted to the applicants to file an Amended Application and Points of Claim.
2.The Amended Notice of Motion be otherwise dismissed.
3.The applicants pay the costs of the respondents.

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

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 354 OF 2007

BETWEEN:

TRISTAR STEERING AND SUSPENSION AUSTRALIA LIMITED
First Applicant

CHENG HONG
Second Applicant

AND:

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES
First Respondent

NSW MINISTER FOR INDUSTRIAL RELATIONS
Second Respondent

JUDGE:

COWDROY J

DATE:

21 MARCH 2007

PLACE:

SYDNEY

REASONS FOR JUDGMENT

By Amended Notice of Motion filed on 19 March 2007 the first applicant (‘Tristar’) seeks, inter alia, the following relevant relief:
‘1.That leave be granted to join Mr Cheng Hong as the Second Applicant in the proceedings being Application No. NSD 354 of 2007.
2.That leave be granted to the Applicant and, if joined, Mr Cheng Hong, to file in Court and serve forthwith on the Respondents an Amended Application and Amended Points of Claim in the form of the documents marked annexure ‘A’ and annexure ‘B’ to this Amended…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Tristar Steering and Suspension Australia Limited v Industrial Relations Commission of New South Wales [2007] FCA 407
Case: [2007] FCA 407
Decision Date: 21 March 2007

CaseChat Overview and Summary

The case of Tristar Steering and Suspension Australia Limited v Industrial Relations Commission of New South Wales involves a dispute regarding the jurisdiction of the Industrial Relations Commission of New South Wales to conduct an inquiry into the availability of work at Tristar. The Commission had been referred a reference by the Minister under the Industrial Relations Act 1996 (NSW), and Tristar contested the Commission's jurisdiction on the basis that the Workplace Relations Act 1996 (Cth) excluded state industrial laws, including the IR Act. Tristar also sought an adjournment of the proceedings until the resolution of separate proceedings against it by the Office of Workplace Services. The Commission dismissed Tristar's jurisdictional challenge and refused to stay the proceedings, leading to Tristar's application to the Supreme Court of New South Wales for leave to file an amended application and points of claim.

The primary legal issue before the court was whether the Commission had jurisdiction to conduct the Inquiry into the availability of work at Tristar. This hinged on the interpretation of section 16(1) of the Workplace Relations Act 1996 (Cth) and its interaction with section 146(1)(d) of the Industrial Relations Act 1996 (NSW). Tristar argued that section 16(1) of the federal act excluded the application of the state act, thereby precluding the Commission from having jurisdiction. Alternatively, Tristar sought a stay of the proceedings pending the resolution of related proceedings in the Supreme Court. The court was required to determine the validity of these arguments and decide on the appropriate orders.

In its decision, the court found that the Commission had jurisdiction to conduct the Inquiry. The court held that section 16(1) of the Workplace Relations Act 1996 (Cth) did not operate to exclude the application of the Industrial Relations Act 1996 (NSW) in this context. The court reasoned that the federal act did not intend to wholly exclude state industrial laws but rather to provide a federal framework that would prevail in cases of inconsistency. Furthermore, the court found no merit in Tristar's application for a stay, as the separate proceedings in the Supreme Court did not provide sufficient grounds for adjourning the Commission's Inquiry. Consequently, the court dismissed Tristar's application and ordered that it pay the costs of the respondents.

The Supreme Court of New South Wales granted leave for Tristar to file an amended application and points of claim, but dismissed the amended notice of motion otherwise. The court also ordered Tristar to pay the costs of the respondents.

Orders

Orders of the court

1. Leave be granted to the applicants to file an Amended Application and Points of Claim.

2. The Amended Notice of Motion be otherwise dismissed.

3. The applicants pay the costs of the respondents.

Background

Background to the litigation

The application is extremely urgent, because Mr Hong has been served with a summons requiring him to give evidence before an inquiry into matters relating to the availability of work at Tristar (‘the Inquiry’) on Friday 23 March 2007. FACTS On 9 February 2007 the second respondent (‘the Minister’) referred to the Industrial Relations Commission of New South Wales (‘the Commission’), pursuant to s 146(1)(d) of the Industrial Relations Act 1996 (NSW) (‘the IR Act’) a reference requiring the Commission to inquire and report to the Minister in respect of the following three issues (‘the Terms of Reference’):‘1.The facts and circumstances, including the historical and background facts and circumstances relating to the availability of work or the continuing availability of work at the operation of Tristar Steering and Suspension Australia Ltd at Carrington Road, Marrickville with regard to, but not limiting the generality of the foregoing, the current dispute between the employees and unions at that site, and the employer or employers operating the site, concerning redundancy or termination pay.2.The availability and adequacy of remedies under Commonwealth and NSW laws, including but not limited to determination of entitlements and dispute resolution, where there is an issue relating to the availability of work or the continuing availability of work, or redundancy or termination pay, at the workplace.3.Recommendations as to utilisation of or changes to Commonwealth and NSW laws, including removing any obstacles, jurisdictional or otherwise, where there is an issue relating to the availability of work or the continuing availability or work, or redundancy or termination pay, at the workplace.’ Tristar challenges the jurisdiction of the Commission to embark upon the Inquiry. Its jurisdictional argument was founded upon the submission that s 16(1) of the Workplace Relations Act 1996 (Cth) (‘the WPR Act’) operated to exclude the operation of s 146(1)(d) of the IR Act with the consequence that the Commission had no jurisdiction to conduct the Inquiry. Section 16(1) of the WPR Act relevantly provides:‘(1)This Act is intended to apply to the exclusion of all the following laws of a State or Territory so far as they would otherwise apply in relation to an employee or employer.’ A ‘State or Territory industrial law’ is defined in s 4 of the WPR Act as including the IR Act. As an alternative submission Tristar claimed that the Inquiry should be adjourned until the determination of the proceedings against Tristar which had recently been commenced in this Court by the Office of Workplace Services. Such hearing is listed for directions on 28 March 2007. On 8 March 2007 the Commission delivered judgment (see [2007] NSWIRComm 50]). It rejected the submissions of Tristar in respect of the jurisdictional application (see reasons contained at [25] to [76] of its decision). The Commission also rejected an application by Tristar for a stay of the proceedings for the reasons set out in [81] to [88] of its decision.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

COWDROY J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: COWDROY J

Full text does not contain this section.

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Citations

Tristar Steering and Suspension Australia Limited v Industrial Relations Commission of New South Wales [2007] FCA 407

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Citation 1 (Para 16)

…The Court expects parties to deal with issues relating to costs in a timely and efficient way: Tristar Steering and Suspension Australia Ltd v Industrial Relations Commission of New South Wales (No 2) (2007) 159 FCR 274 ( Tristar ) at [26] per Buchanan J. Ordinarily, an application for a special cos…
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Citation 2 (Para 1)

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Citation 3 (Para 9)

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Citation 4 (Para 17)

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Citation 5 (Para 5)

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Citation 6 (Para 29)

…Earlier this week, I invited the parties to provide written submission as to costs, or to advise me if they preferred to make oral submissions as to costs. As Buchanan J explained in Tristar Steering and Suspension Australia Ltd v Industrial Relations Commission of New South Wales (No 2) (2007) 159 …
Birch v Wesco Electrics (1966) Pty Ltd [2012] FMCA 5
Citation 7 (Para 4)

…e Federal Court of Australia in Tristar Steering and Suspension Australia Ltd v Industrial Relations Commission (NSW) .[133] [133] (2007) 161 IR 330; [2007] FCA 407 (“ Tristar ”).…
Astram Financial Services Pty Ltd v Bank of Queensland Ltd (No 2) [2010] FCA 1166
Citation 8 (Para 3)

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Australian Workers' Union of Employees, Queensland v Etheridge Shire Council [2009] FCAFC 95
Citation 9 (Para 16)

…In support of that contention, the appellants referred to Tristar Steering and Suspension Australia Ltd v Industrial Relations Commission of New South Wales (No 2) (2007) 159 FCR 274 as a case in which s 824 was held not to apply. In Tristar , however, the dispute was as to the jurisdiction of the N…
Fisse v Secretary, Department of the Treasury & Anor (No 2) [2008] FCAFC 200
Citation 10 (Para 12)

…Even though the Court may exercise its power as to costs “ after the conclusion of the proceeding ”, it has long been accepted that the time at which submissions as to costs should be made is generally the time at which the Court is hearing the appeal itself — not after judgment has been delivered: …
Construction, Forestry, Mining and Energy Union v Clarke [2008] FCAFC 143
Citation 11 (Para 20)

…Accordingly, the appellants say, either because s 824 has no application in relation to the Notice of Objection to Competency, or because the respondent engaged in an “unreasonable act or omission” for the purposes of s 824(2), the appellants were entitled to the costs order made by the first Full C…
Siminton v Australian Prudential Regulation Authority (No 2) [2008] FCAFC 113
Citation 12 (Para 4)

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Tristar Steering and Suspension Australia Ltd v Industrial Relations Commission of New South Wales (No 2) [2007] FCAFC 95
Citation 13 (Para 13)

…n 16 March 2007 Graham J ordered that costs of that day be paid on an indemnity basis and be taxed and paid forthwith. (c)On 21 March 2007 Cowdroy J ([2007] FCA 407) dismissed an amended notice of motion for interlocutory relief and ordered the applicants to pay costs.…

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Cases Cited

Campbell v Zeiher [2009] FCA 423
Citation 1 (Para 25)

…s a ‘likelihood of success’ before proceeding to grant such relief. In Australian Broadcasting Corporation v Lenah Game Meats Pty Limited (2001) 208 CLR 199, Gleeson CJ at 217 said: ‘In McCarty v North Sydney Municipal Council (126), the Chief Judge in Equity described the proposition that a plaintiff seeking an inte…
Telstra Corporation Pty Limited v Premier Media Group Pty Limited [2007] FCA 568
Citation 2 (Para 24)

…As to the first issue, namely whether there is a serious question to be tried, Gummow and Hayne JJ in Australian Broadcasting Corporation v O’Neill (2006) 229 ALR 457 said at page 478 (referring to the joint judgment of Kitto and Owen JJ in Beecham Group Limited v Bristol Laboratories Pty Limited (1968) 118 CLR 618):…
Tristar Steering and Suspension Australia Ltd v Industrial Relations Commission of NSW [2007] FCA 348
Citation 3 (Para 10)

…ive relief came on before Edmonds J who refused such relief (see Tristar Steering & Suspension Australia Ltd v Industrial Relations Commission of NSW [2007] FCA 348). Subsequent events…
New South Wales v Commonwealth [2006] HCA 52
Citation 4 (Para 14)

…own (see 48-51), and that the decision of the Commission is contrary to the decision of the finding of the High Court of Australia in New South Wales v Commonwealth (2006) 82 ALJR 34 especially at [346] to [377].…
Todd v Novotny [2000] WASC 308
Citation 5 (Para 22)

…e Minster submits that there are no changed circumstances and that the further application should not be entertained: see Nominal Defendant v Manning (2000) 50 NSWLR 139. FINDINGS…
Lenah Game Meats Pty Limited v Australian Broadcasting Corporation [1999] TASSC 114
Citation 6 (Para 25)

…red to scrutinise the claim to satisfy itself at least that there is a ‘likelihood of success’ before proceeding to grant such relief. In Australian Broadcasting Corporation v Lenah Game Meats Pty Limited (2001) 208 CLR 199, Gleeson CJ at 217 said: ‘In McCarty v North Sydney Municipal Council (126), the Chief Judge in Equity described the proposition that a plaintiff see…
BP Chemicals ANZ Pty Ltd v Manildra Starches Pty Ltd [1997] FCA 1189
Citation 7 (Para 18)

…ed circumstances which would justify the Court entertaining the present application: see BP Chemicals ANZ Pty Limited v Manildra Starches Pty Limited [1997] FCA 1189.…
Sheahan v Joye [1995] FCA 351
Citation 8 (Para 17)

…As to the balance of convenience, it is submitted that only Mr Hong seeks relief by restraining the Commission from calling upon the summons to give evidence. In support of its application, Tristar relies upon the decision of Branson J in Re Cortaus (in Liq); Sheahan v Joye & Ors (No. 2) (1996) 20 A…
Environment Protection Authority v Caltex Refining Co Pty Limited [1992] HCATrans 354
Citation 9 (Para 31)

…he protection provided by the principle against self incrimination: see Environmental Protection Authority v Caltex Refining Co Pty Limited (1993) 178 CLR 477 at 548. The risk that Mr Hong may be exposed to self incrimination is not by itself a determinative consideration but merely a factor for the Court to take int…
Castlemaine Tooheys Ltd v South Australia [1986] HCA 58
Citation 10 (Para 23)

…sue of an interlocutory injunction were stated by Mason ACJ (as he then was) in Castlemaine Tooheys Limited and Others v The State of South Australia (1986) 161 CLR 148 at 153 where his Honour said: ‘In order to secure such an injunction the plaintiff must show (1) that there is a serious question to be tried or that…
Beecham Group Ltd v Bristol Laboratories Pty ltd [1968] HCA 1
Citation 11 (Para 24)

…006) 229 ALR 457 said at page 478 (referring to the joint judgment of Kitto and Owen JJ in Beecham Group Limited v Bristol Laboratories Pty Limited (1968) 118 CLR 618): ‘By using the phrase “prima facie case”, their Honours did not mean that the plaintiff must show that it is more probable than not that at trial the…

Legislation Cited

Industrial Relations Act 1996 (NSW) 146(1)(d), 164
3 mentions (from Para 4)

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 354 OF 2007

JUDGE:	COWDROY J
DATE OF ORDER:	21 MARCH 2007
WHERE MADE:	SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 354 OF 2007

JUDGE:	COWDROY J
DATE:	21 MARCH 2007
PLACE:	SYDNEY