FEDERAL COURT OF AUSTRALIA

CPSU, The Community & Public Sector Union v Crown in Right of the State of Victoria [1999] FCA 744

INDUSTRIAL LAW – interlocutory relief – whether respondent’s conduct in making and pursuing an application in the Australian Industrial Relations Commission in circumstances where the applicants had already filed an application in the Federal Court of Australia amounts to an abuse of process – whether appropriate to restrain respondent from taking any further step in relation to its application before the Australian Industrial Relations Commission – whether appropriate to restrain the respondent from commencing any related proceeding in the Australian Industrial Relations Commission

Workplace Relations Act 1996 (Cth) Part XA, s178

Williams v Spautz (1992) 174 CLR 509, followed

CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345, followed

CPSU, THE COMMUNITY & PUBLIC SECTOR UNION AND OTHERS v CROWN IN RIGHT OF THE STATE OF VICTORIA

V 107 OF 1999

MARSHALL J

MELBOURNE

7 JUNE 1999

THE COURT ORDERS THAT:

The applicants’ notice of motion dated 7 May 1999 be dismissed.

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

REASONS FOR INTERLOCUTORY JUDGMENT

1                     On 12 March 1999 the applicants filed an application in the Victoria District Registry of the Court pursuant to s178 of the Workplace Relations Act 1996 (Cth) (“the Act”). The applicants seek the imposition of penalties upon the respondent for the respondent’s alleged breach of the Public Service (Non Executive Staff - Victoria) Interim Award 1996 (“the Award”).

2                     The first applicant (“the CPSU”) is an organisation of employees registered under the Act. The second and third applicants are members of the CPSU and employees of the respondent in its Department of Justice. The second and third applicants are each physically employed at a correctional facility known as Barwon Prison.

3                     On 21 May 1999 the application was amended whereby the applicants alleged that the respondent had additionally engaged in conduct in breach of Part XA of the Act. On 7 May 1999, prior to the filing of the amended application, the applicants filed a notice of motion in which they sought the following relief:

“1.       THAT until the final hearing and determination of this matter by the Court, or until further order, the First Respondent be restrained from taking any further step in Matter No C32576 in the Australian Industrial Relations Commission (“AIRC”), being an application to vary the Public Service (Non Executive Staff -Victoria) Interim Award 1996 filed by the Respondent in the AIRC on or about 15 April 1999 (“the application to vary”).

2.                  That until the final hearing and determination of this matter or until further order, the First Respondent be restrained from commencing in the Australian Industrial Relations Commission any proceeding or application concerning or affecting the variation of clauses 12, 13A or 19 of the Public Service (Non Executive Staff -Victoria) Interim Award 1996.”

4                     The notice of motion was returnable on 11 May 1999. The Court heard some submissions on that day but ultimately adjourned the motion for further hearing until 31 May 1999. The reason for that adjournment was that the application referred to in the proposed order numbered one was scheduled to be before the Australian Industrial Relations Commission (“the AIRC”) on 14 May 1999 for programming. It was the making of that application which  led to the applicants before the Court to seek the orders set out above in their notice of motion.

5                     Matter No C32576 of 1999 is an application in the AIRC by the respondent to seek to vary the Award with effect from the date on which it came into operation, that is, 18 December 1996. If that application is acceded to by the AIRC with retrospective effect any entitlements which the second and third applicants may have under s178 of the Act will be rendered nugatory. That outcome would not result if the application were to be finally determined prior to any order of the AIRC which gives the respondent the relief it seeks in that matter.

6                     Mr S Howells, of counsel, appeared for the applicants and made submissions in support of the relief sought in the motion.  In particular he made submissions in support of the relief referred to in the proposed order numbered one above. Mr F Parry, of counsel, appeared for the respondent and submitted that the notice of motion should be dismissed.

7                     Mr Howells contended that by making and pursuing its application to vary the Award the respondent had engaged in conduct which amounted to an abuse of the process of the Court. That allegation carried with it the inference that the respondent was seeking to achieve some ulterior purpose by making the application, that is, by seeking to retrospectively remove an obligation which it currently has to the second and third applicants under the Award. In support of his submissions Mr Howells referred to a number of authorities which deal with anti-suit injunctions. Mr Howells did not refer the Court to any authority in which a Court had granted an anti-suit injunction directed to an administrative tribunal.

8                     Mr Parry submitted that the Court has no jurisdiction to grant the relief sought. The Court rejects that submission. As the majority of the High Court said in Williams v Spautz (1992) 174 CLR 509, (at 518):

“It is well established that Australian superior courts have inherent jurisdiction to stay proceedings which are an abuse of process.”

9                     Further as was said by the majority of the High Court of Australia in CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345, (at 391):

“The counterpart of a court’s power to prevent its processes being abused is its power to protect the integrity of those processes once set in motion.”

10                  Mr Parry also opposed the relief sought in the notice of motion being granted having regard to matters of merit. Mr Parry alerted the Court to the fact that the AIRC not only proposes to deal with his client’s award variation application but also with certain dispute notifications which were initiated by the CPSU in 1998.  Those dispute notifications concern matters relevant to the entire controversy between the parties which are also encompassed by the instant proceeding before the Court and the award variation application before the AIRC.

11                  Although the AIRC may find it necessary to form a view about the meaning of the Award in its current form, its task in the award variation application is not the same task as that to be performed by the Court. The AIRC is empowered to determine what the Award should contain, as a matter of discretion in the exercise of the judgment of a specialist tribunal. In that proceeding public interest considerations will be relevant in addition to the interests of the immediate parties.

12                  There is a significant difference in the nature of the jurisdiction being exercised by the AIRC when compared with the nature of the jurisdiction of the Court. It is therefore inappropriate for the Court to grant the relief sought in the notice of motion. It may be inconvenient for the CPSU to be faced with the prospect of resisting the award variation application in the Commission simultaneously with advancing its application before the Court.   Such an inconvenience is however not a sufficient basis upon which the Court should restrain the respondent from taking any further steps in the award variation application. This is especially so when one considers that the AIRC would be entitled to traverse matters relevant to the s178 application in the context of the dispute notifications alone.

13                  In any event, the nature of the relief sought by the applicants in their notice of motion may have been ineffective in attaining the outcome they sought to achieve. The AIRC has rejected the CPSU’s application to adjourn proceedings before it and has listed the relevant dispute notifications and the award variation application for programming on 9 June 1999. Those matters are capable of being programmed by the AIRC independently of any step being taken by the respondent.

14                  Separate to the issue of the adequacy of the relief claimed however, it is the Court’s firm view that it does not consider the proceedings in the AIRC to be an abuse of the process of the Court or an attack on the integrity of the Court’s proceedings in reference to the matters referred to earlier in these reasons for interlocutory judgment.

Order

It is appropriate therefore to order that the applicants notice of motion dated 7 May 1999 be dismissed.

Associate:

Dated:              7 June 1999