Construction, Forestry, Mining & Energy Union v Mirvac Constructions Pty Ltd [2000] FCA 159 (22 February 2000)

Last Updated: 24 February 2000

FEDERAL COURT OF AUSTRALIA

Construction, Forestry, Mining & Energy Union v Mirvac Constructions Pty Ltd [2000] FCA 159

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION v MIRVAC CONSTRUCTIONS PTY LTD, CDK TECTONICS LTD AND CONSTRUCTION ENGINEERING (AUST) PTY LTD

V 70 OF 2000

NORTH J

22 FEBRUARY 2000

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 70 OF 2000

BETWEEN:	CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION APPLICANT
AND:	MIRVAC CONSTRUCTIONS PTY LTD FIRST RESPONDENT CDK TECTONICS LTD SECOND RESPONDENT CONSTRUCTION ENGINEERING (AUST) PTY LTD THIRD RESPONDENT
JUDGE:	NORTH J
DATE OF ORDER:	22 FEBRUARY 2000
WHERE MADE:	MELBOURNE

Upon the undertaking of counsel for the Construction, Forestry, Mining and Energy Union to file and serve a notice of appeal and any other necessary incidental application within the time limited by the Rules;

THE COURT ORDERS THAT:

Paragraphs 1 and 2 of the orders made by Beach J on 22 February 2000 are stayed until 4.30pm on 24 February 2000.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 70 OF 2000

BETWEEN:	CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION APPLICANT
AND:	MIRVAC CONSTRUCTIONS PTY LTD FIRST RESPONDENT CDK TECTONICS LTD SECOND RESPONDENT CONSTRUCTION ENGINEERING (AUST) PTY LTD THIRD RESPONDENT

JUDGE:	NORTH J
DATE:	22 FEBRUARY 2000
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1 This is an application for a stay of certain orders made orally by the Construction, Forestry, Mining and Energy Union (the Union) in urgent circumstances. This morning at about 11:00 am in the Supreme Court Beach J made certain orders ex parte on the application of Mirvac Constructions Pty Ltd, CDK Tectonics Ltd and Construction Engineering (Aust) Pty Ltd (the respondents) as follows:

"1. Until 4.30pm on 24 February 2000 or further Order, the Defendant [the Union] (whether by its officers, delegates, servants, agents or howsoever otherwise) be restrained from directing, procuring, advising, authorising and/or encouraging its members (otherwise than in the exercise of the rights which the Defendant has pursuant to Division 8 of Part VIB of the Workplace Relations Act 1996) not to perform the work which their contracts of employment (with any of the Plaintiffs or with any sub-contractor engaged on the Plaintiffs' sites) require them to perform.

2. The Defendant:

(1) prepare a letter on the Defendant's letterhead signed by the State Secretary of the Defendant's Victorian Branch to be posted forthwith to the home address of each of its members employed by the Plaintiffs or working on the Plaintiffs' sites in the terms of the attached letter informing those members of the terms of this order and directing that they forthwith cease industrial action and perform the work which their contracts of employment require; and

(2) to send a copy of that letter to the solicitors for the Plaintiffs, at facsimile no. 9230 0505, marked to the attention of Ross Levin, by 5:00pm on 22 February 2000.

3. Until 4.30pm on 24 February 2000, the Defendant (whether by its officers, delegates, servants or agents or howsoever otherwise) is hereby restrained, until the hearing and determination of this matter or further order, from commencing, continuing or taking any step in any proceeding or action in the Federal Court of Australia, which has the effect or may have the effect of:

a) restraining or restricting the Plaintiffs from commencing, continuing or taking any step in this proceeding; or

b) restraining or restricting the Plaintiffs from continuing or taking any step in respect of any Application filed by them pursuant to section 166A of the Workplace Relations Act 1996 (Cth); or

c) restraining or restricting the Plaintiffs or sub-contractors working on the Plaintiffs' sites from commencing, continuing or taking any step in proceedings involving the industrial action the subject of this proceedings; or

d) restraining or restricting the Plaintiffs or sub-contractors working on the Plaintiffs' sites from commencing, continuing or taking any steps in proceedings involving industrial action affecting the Plaintiffs.

4. The costs of this application by way of summons be costs in the proceeding.

5. That this Order by [sic] drawn up by the solicitors for the Plaintiffs and signed by me.

6. That the notification of the making of this order may be effected by telephone message to the Defendant.

7. Service of a copy of this Order by facsimile be deemed proper service.

8. The further hearing of the Summons annexed hereto be adjourned to 10.30am, 24 February 2000."

2 Mr Borenstein, who appeared as counsel for the Union, indicated that the Union intends to appeal against the orders and he offered an undertaking that the Union will file a notice of appeal against the orders together with an application for leave to appeal, if necessary.

3 The application was notified to my chambers late this afternoon and the matter was called on for hearing within approximately half an hour, on very short notice to the respondents. There has not, in the very limited time available, been an opportunity to consider the strength or weakness of the Union's appeal. I should emphasise that the Court has formed no view, nor could it have formed a view, on the merits of the application for a stay of the orders pending the appeal.

4 The basis upon which the stay is sought is set out in the judgment of Hayne J as follows in Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [1998] HCA 31; (1998) 153 ALR 641:

"[1] Maintenance of the rule of law in this society requires that parties may resort to the courts to determine their disputes. The applicants seek to resort to this court and to contend that unless a stay is granted of the orders of North J, as modified by the orders of the Full Court of the Federal Court of Australia made this evening, their right to apply to this court for special leave to appeal will be rendered futile.

[2] To adopt and adapt the words of Dixon CJ in Tait v R, without giving consideration to, or expressing any opinion as to the grounds on which the proposed application is based, but entirely so that the authority of this court may be maintained and it may have an opportunity of considering the application, there will be a stay now of the orders I have earlier mentioned, if the applicants proffer an undertaking as to damages in common form and give suitable undertakings as to issue and service of both an application for special leave to appeal and an application for stay pending its hearing. The stay now ordered will be until the hearing and determination of the proposed application for stay or further order."

5 On that basis that I intend to stay the operation of orders 1 and 2 of the orders made by Beach J earlier today. I should say that I am fortified in staying the orders by the appreciation that the orders made by his Honour are to some degree unusual. Upon one construction of the first three orders, they have the features of being at the same time ex parte, mandatory and arguably intended to be unappellable. If that is the proper characterisation of the orders - and of course further argument will need to determine that issue - then such orders are properly the matter, it would seem to me, of consideration by an appellate court.

6 Having indicated that I would stay the operation of the orders until such time as the parties were in a position to present argument to the court, and after indicating that the court will be available as early as tomorrow morning at 10.15 to hear such argument, the parties indicated that it would suit the convenience of all of them if the stay were granted or extended until 4:30 pm on 24 February 2000, by which time Beach J will probably have determined the next stage of the injunction proceedings in the Supreme Court, namely the application for interlocutory injunctions against the Union.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.

Associate:

Dated: 22 February 2000

Counsel for the Applicant:	Mr H Borenstein
Solicitor for the Applicant:	Slater & Gordon
Counsel for the Respondent:	Mr M P McDonald
Solicitor for the Respondent:	Deacons Graham & James
Date of Hearing:	22 February 2000
Date of Judgment:	22 February 2000