FEDERAL COURT OF AUSTRALIA

Thiess Contractors Pty Ltd v CFMEU [1999] FCA 1205

INDUSTRIAL LAW - application to extend time in which to make application for leave to appeal - application for leave sought to put in issue the construction of s 170 MN of the Workplace Relations Act 1996 (Cth) - application refused.

Workplace Relations Act 1996 (Cth) s170NG, s 170MN

Bass v Permanent Trustee Company Limited (1999) 73 ALJR 522

THIESS CONTRACTORS PTY LTD v CONSTRUCTION, FORESTRY, MINING & ENERGY UNION

Q 116 OF 1999

MOORE, MARSHALL & DOWSETT JJ

17 AUGUST 1999

BRISBANE

THE COURT ORDERS THAT:

1.      The application to extend time in which to make the application for leave to appeal is refused.

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

REASONS FOR JUDGMENT

(delivered ex tempore)

MOORE J

1                     This is an application by Thiess Contractors Pty Ltd ("Thiess") and Namoi Highwall Pty Ltd ("Namoi") for leave to appeal against the judgment of Cooper J of 13 April 1999 dismissing an application for interlocutory injunctive relief sought under s 170NG of the Workplace Relations Act 1996 (Cth).

2                     An application is also made to extend time to make the application for leave to appeal as that application was not lodged within the prescribed time.  However, I would not be prepared to grant leave to appeal.  The proposed appeal seeks to put in issue the construction of s 170MN adopted by Cooper J who formed the view that the construction of s 170MN relied upon by Thiess and Namoi was not seriously arguable.  It was conceded by counsel in these proceedings for Thiess and Namoi that interlocutory injunctive relief was no longer sought. 

3                     I would refuse leave to appeal for the following reasons.  First, the appeal is now plainly not intended to resolve whether interlocutory relief should be granted, as interlocutory relief is no longer sought.  Second, Cooper J’s views about the construction of s 170MN, though strongly expressed, were tentative or preliminary only, and were made only for the purposes of determining whether interlocutory relief should be granted.  I do not doubt that upon hearing further argument, Cooper J may be persuaded to a different view about the proper construction of s 170MN.

4                     Moreover, it appears to me that this appeal is intended to secure, in the absence of comprehensive findings of fact by the primary judge, a final and binding answer to a legal question that has not been determined finally at first instance.  Thiess and Namoi are, in this respect, seeking to secure prematurely the final determination of the legal question at appellate level.  As leave to appeal should plainly be refused, it appears futile to extend time to make the application.  Accordingly, the only order I would make would be to order that leave to extend time is refused.

MARSHALL J

5                     This is an application by Thiess Contractors Pty Ltd (“Thiess”) and Namoi Highwall Pty Ltd (“Namoi”) for leave to appeal from an interlocutory judgment of the trial judge given on 13 April 1999 and also for an extension of time within which to lodge such appeal.

6                     On 9 April 1999 the trial judge heard an application by Thiess and Namoi made pursuant to s170NG of the Workplace Relations Act 1996 (Cth) for an interlocutory injunction.

7                     Interlocutory relief was sought against the respondent the Construction, Forestry, Mining and Energy Union (“the Union”) to, inter alia, restrain the taking of industrial action or continuing industrial action.

8                     The trial judge refused to grant an interlocutory injunction. At par 19 of his judgment his Honour said:

“For the above reasons, I am of the view that there is no serious question to be tried that the respondent has contravened s170MN(1) of the Act and that there is no reasonable prospect, on the material presently before the Court, that the applicants will obtain final injunctive relief of the nature sought in the application under s170NG of the Act”. (Emphasis supplied).

9                     At the time of the pronouncement of the judgment of the trial judge no oral application was made to him by the applicants for leave to appeal.

10                  On 21 April 1999 Thiess and Namoi filed a notice of motion in which leave was sought to appeal from the interlocutory judgment of the trial judge. The notice of motion did not contain a return date nor did it indicate whether it was returnable before a single judge or a Full Court. Although it attached draft grounds of appeal it was not accompanied by an affidavit and it sought no exemption from the requirement to file an affidavit in support of the motion. The affidavit was later filed on 7 June 1999.

11                  Also on 7 June 1999 Thiess and Namoi filed a further notice of motion dated 4 June 1999 in which they sought leave to extend the time to appeal from the 13 April 1999 judgment of the trial judge.

12                  Under O52 r10 of the rules of the Court a motion to seek leave to appeal from an interlocutory judgment is required to be filed and served within 7 days from the pronouncement of the judgment.

13                  The application for leave was made one day outside the time limit because the solicitors for the applicants were awaiting the disposition of another application before the Court which may have shed further light on the issue which was also before the trial judge. As events transpired it did not.

14                  In my view leave to appeal should be refused as no substantial injustice results assuming the judgment of the trial judge was made in error.

15                  The emphasised part of the trial judge’s conclusion reveals that the trial judge was not foreclosing the possibility that he may be persuaded to a different view on further argument at the trial. Contrary to the submissions advanced by counsel for Thiess and Namoi the trial judge has not made a final ruling against their clients.

16                  As counsel for the Union has stressed the only orders sought by the applicants are that the judgment of the trial judge be set aside and the matter be remitted to him for further hearing. The primary judge in the ordinary course would hear the matter in full at trial. Accordingly I see no practical utility in granting leave to appeal from his Honour’s judgment. I therefore would refuse leave to appeal. Neither is there therefore any utility in allowing leave to extend time to appeal to permit the making of an application which, if made, ought to be refused.

17                  I agree that the order proposed by the presiding judge is the appropriate order to make.

DOWSETT J

18                  I am in general agreement with the reasons which have been given by my brothers and with the proposed order.  I wish only to add some brief comments.

19                  This is, in form, an application for leave to appeal against an interlocutory order.  The application was not filed in the prescribed time, and so an extension is also necessary.  For my part, I would not consider the latter matter to be of great concern.  I accept for present purposes that the construction of the relevant section adopted by the learned Judge at first instance was arguably erroneous, but the first question is whether there should be leave to appeal against the interlocutory order.

20                  There is a compelling consideration against granting leave.  It is that the need for interlocutory relief has now passed.  In those circumstances, there is no point to be served in allowing an appeal at this stage.  Had there been any question of costs involved, it may have been otherwise, but as costs are not ordinarily awarded in this jurisdiction by virtue of the provisions of the Act, and as no order was made on this occasion, that eventuality has not arisen.

21                  The applicant asserts that there is a need to have the question of construction resolved for the purposes of the substantive proceedings.  It seems to me, however, that there are two insuperable hurdles to the Court proceeding in that way.  What counsel asks us to do is to construe the Act in a way which will be binding upon the parties, but this Court is presently seized only of an appeal from the order below, dismissing an application for interlocutory relief.  Although his Honour may have come to a tentative view as to the meaning of the legislation in that context, it is only the correctness or otherwise of the interlocutory decision which may be considered on appeal.  That is the first answer to the applicant's assertions.

22                  The second is that the applicant is, in effect, asking us to make a ruling as to the construction of the relevant legislation without a preliminary finding as to relevant facts.  Such a course is prohibited by the decision of the High Court in Bass v Permanent Trustee Company Limited (1999) 73 ALJR 522, especially at 532 and 533.  For those reasons, I concur in the order proposed.

Associate:

Dated:              17 August 1999