Woodside Energy Ltd v McDonald - [2003] FCA 69

FEDERAL COURT OF AUSTRALIA
Woodside Energy Ltd v McDonald [2003] FCA 69
INDUSTRIAL LAW – injunctions – interlocutory orders sought restraining leaseholder of major project site in north of Western Australia and employers (being contractors carrying out civil engineering works on site) from refusing entry of officers of a particular union to premises – whether serious questions to be tried – assessment of the balance of convenience – discretionary considerations.
Workplace Relations Act 1996 (Cth), ss 170LB(1), 170LL, 170LY(1)(b), 170LZ(1),(2), 285B, 285C, 285D(2)
Industrial Relations Act 1979 (WA), ss 49H, 49I, 83E
Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559 applied
OD Transport Pty Ltd v Western Australian Government Railways Commission (1986) 13 FCR 270 referred to
Australian Paper Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (1998) 81 IR 15 referred to
Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1 followed
Construction, Forestry, Mining and Energy Union v CSR Limited [2000] FCA 1203 referred to
Australian Tramway Employes Association v Prahran and Malvern Tramway Trust (1913) 17 CLR 680 referred to
The Queen v Findlay; Ex parte The Commonwealth Steamship Owners’ Association (1953) 90 CLR 621 referred to
The Queen v Booth; Ex parte Administrative and Clerical Officers’ Association (1978) 141 CLR 257 referred to
WOODSIDE ENERGY LIMITED v JOSEPH McDONALD, CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION OF WORKERS and CBI CONSTRUCTORS PTY LTD
W311 of 2002
CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION & ANR v WOODSIDE ENERGY LIMITED & ORS
W346 of 2002
CARR J
12 FEBRUARY 2003
PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

W311 OF 2002

BETWEEN:

WOODSIDE ENERGY LIMITED
ABN 63 005 482 986
Applicant

AND:

JOSEPH McDONALD
First Respondent

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION OF WORKERS
Second Respondent

CBI CONSTRUCTORS PTY LTD
ABN 90 000 612 411
Third Respondent

AND:

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION OF WORKERS
Cross-Claimant

WOODSIDE ENERGY LIMITED
First Cross-Respondent

CBI CONSTRUCTORS PTY LTD
Second Cross-Respondent

THE MINISTER FOR EMPLOYMENT AND WORKPLACE RELATIONS
Intervenor

JUDGE:

CARR J

DATE:

12 FEBRUARY 2003

PLACE:

PERTH

THE COURT ORDERS THAT:
1.The application by the cross-claimant for the interlocutory relief sought in its notice of motion filed on 13 December 2002 is dismissed.
2.Any party (including the intervenor) has liberty to apply, by letter addressed to the Registrar, within 7 days in relation to costs of the above interlocutory application.

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

W346 OF 2002

BETWEEN:
CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
First Applicant

BOB WADE
Second Applicant

AND:
WOODSIDE ENERGY LIMITED
(ABN 63 005 482 986)
First Respondent

BRAMBLES AUSTRALIA LIMITED (ACN 000 164 938)
Second Respondent

WYLIE & SKENE PTY LTD (ACN 008 785 662)
Third Respondent

AUTOMOTIVE, FOOD, METALS, ENGINEERING,
PRINTING AND KINDRED INDUSTRIES UNION
Fourth Respondent

AUSTRALIAN WORKERS’ UNION

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

Case: [2003] FCA 69
Decision Date: 12 FEBRUARY 2003

CaseChat Overview and Summary

Woodside Energy Ltd brought an application seeking declarations that Mr Joseph McDonald had no right to enter its land on the Burrup Peninsula, where it operates a natural gas processing plant as part of the North-West Shelf Gas Project. Woodside sought an order restraining Mr McDonald from entering the land except with its prior authorisation. The application was brought in the Federal Court of Australia, as it involved issues of inconsistency between state and federal laws under the Industrial Relations Act 1979 (WA) and the Workplace Relations Act 1996 (Cth). The Minister for Employment and Workplace Relations of the Commonwealth intervened in the matter under s 471(1) of the Workplace Relations Act 1996 (Cth).

The legal issues before the court were whether Mr McDonald had a right to enter the land under Division 2G of Part II of the Industrial Relations Act 1979 (WA), and if this right was inconsistent with the provisions of Part IX, Division 11A of the Workplace Relations Act 1996 (Cth). The court also had to consider whether the right of entry provisions in the Industrial Relations Act 1979 (WA) were inconsistent with certain certified agreements. The court found that, given the complexities of the issues, there was insufficient evidence to justify the urgent relief sought by Woodside. The court concluded that the risk of irreparable harm to the unions or other interested parties did not outweigh the other factors in the balance, and therefore dismissed the application for interlocutory relief.

The court ordered that the application for interlocutory relief in the cross-claim in application W311 of 2002 and the application for interlocutory relief in application W346 of 2002 be dismissed. However, the court recognised the importance of the issues and directed that the hearing in each application be expedited. The court also noted that any party, including the intervenor, had the liberty to apply within 7 days in relation to the costs of the interlocutory application.

Orders

Orders of the court

1. The application by the cross-claimant for the interlocutory relief sought in its notice of motion filed on 13 December 2002 is dismissed.

2. Any party (including the intervenor) has liberty to apply, by letter addressed to the Registrar, within 7 days in relation to costs of the above interlocutory application.

1. The applicants’ application for the interlocutory relief, sought in their application filed on 17 December 2002 (as amended), is dismissed.

2. Any party has liberty to apply, by letter addressed to the Registrar, within 7 days in relation to costs of the above interlocutory application.

Note:

Background

Background to the litigation

The land referred to above is a substantial area on the Burrup Peninsula which is held by Woodside pursuant to various Crown leases. Woodside operates a natural gas processing plant on the land which comprises the on-shore aspects of an industrial undertaking known as the North-West Shelf Gas Project. Woodside is in the course of expanding the North-West Shelf Gas Project. It has engaged various contractors (“the Contractors”) to construct additional plant and equipment on part of the land (“the Site”) as part of a project known as the North-West Shelf Phase IV Project (“Phase IV”). I shall refer to “the Land” as being the whole of land of which the Site forms a part. CBI is one of the Contractors. FACTUAL AND PROCEDURAL BACKGROUND On 7 November 2002, Woodside filed an application in this Court seeking declarations that: · Mr Joseph McDonald, who is now the first respondent, has no right of entry to the Land; · the provisions of Division 2G of Part II of the Industrial Relations Act 1979 (WA) (“the State Act”), the division which provides for right of entry and inspection of premises and interviewing employees by authorised representatives of unions on to the land, are inconsistent with the provisions of Part IX, Division 11A of the Workplace Relations Act 1996 (Cth) (“the Act”), which makes similar (but not identical) provision, and accordingly are inoperative; and · the provisions of Division 2G of Part II of the State Act concerning the right of entry on to the Land are inconsistent with certain certified agreements which were set out in a schedule to the application. Woodside also sought an order that Mr McDonald be restrained and enjoined from entering and being on the Land except with its prior authorisation. Notice of a Constitutional Matter was served on the Attorneys-General of the States, the Northern Territory and the Commonwealth in accordance with s 78B of the Judiciary Act (1903). At this stage none of the Attorneys has intervened. On 11 November 2002, the State union filed a claim in the Industrial Magistrates Court of Western Australia against Woodside and CBI seeking, amongst other things, interim orders that they allow the State union’s authorised representatives access to the Land. Woodside and CBI foreshadowed that as part of their defences in those proceedings they would put in issue whether the provisions of Division 2G of Part II of the State Act had any application. On 27 November 2002, the Industrial Magistrate ordered that the State union’s interlocutory application and the claim generally be adjourned pending the determination of this application. On 26 November 2002, the Minister for Employment and Workplace Relations of the Commonwealth of Australia (“the Minister”) filed a notice of intervention pursuant to s 471(1) of the Act. It is convenient to summarise the facts of this matter initially by reference to the pleadings and then by reference to some of the affidavits. Where there is a substantial factual dispute I shall identify it to the extent necessary.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

CARR J

In short, I am not persuaded on the evidence and arguments before the Court to date that these are matters in which urgent relief of the interlocutory nature sought in both applications should be granted. In particular, I am not satisfied that the risk of either the State or Federal union or any other interested person suffering irreparable harm outweighs the other factors which I have reviewed above as weighing on the opposite scale of the balance. CONCLUSION For the foregoing reasons the application for interlocutory relief in the cross-claim in application W311 of 2002 will be dismissed as will the application for interlocutory relief in application W346 of 2002. However, in my view, these matters are of sufficient importance for the hearing in each application to be expedited. I will hear from the parties about ways and means for expediting the interlocutory procedures in both matters.

Ratio Decidendi

Legal Principle Established

Established by: CARR J

Full text does not contain this section.

BETWEEN:	WOODSIDE ENERGY LIMITED ABN 63 005 482 986 Applicant
AND:	JOSEPH McDONALD First Respondent CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION OF WORKERS Second Respondent CBI CONSTRUCTORS PTY LTD ABN 90 000 612 411 Third Respondent
AND:	CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION OF WORKERS Cross-Claimant
WOODSIDE ENERGY LIMITED First Cross-Respondent
CBI CONSTRUCTORS PTY LTD Second Cross-Respondent
THE MINISTER FOR EMPLOYMENT AND WORKPLACE RELATIONS Intervenor

BETWEEN:	CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION First Applicant
BOB WADE Second Applicant
AND:	WOODSIDE ENERGY LIMITED (ABN 63 005 482 986) First Respondent
BRAMBLES AUSTRALIA LIMITED (ACN 000 164 938) Second Respondent
WYLIE & SKENE PTY LTD (ACN 008 785 662) Third Respondent
AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION Fourth Respondent
AUSTRALIAN WORKERS’ UNION

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W311 OF 2002

JUDGE:	CARR J
DATE:	12 FEBRUARY 2003
PLACE:	PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W346 OF 2002