FEDERAL COURT OF AUSTRALIA

Brown v Health Services Union (No 3) [2012] FCA 1246

THE COURT ORDERS THAT:

1.    The time for compliance with paragraph 18 of the Scheme of Administration approved on 21 June 2012 (as varied) is extended to 23 November 2012.

2.    The Administrator is to file and serve all such Affidavits and an Outline of Submissions upon which he wishes to rely in support of any application to vary the Scheme of Administration in respect to the NSW Branch and the Victoria No 3 Branch of the Health Services Union on or before 14 November 2012.

3.    Any such further Affidavits or Outlines of Submissions upon which any interested party wishes to rely is to be filed and served on or before midday on 20 November 2012.

4.    The proceeding in respect to any variation of the Scheme of Administration in respect to the NSW Branch and the Victoria No 3 Branch is fixed for hearing at 9.30am on Thursday 22 November 2012.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

THE COURT ORDERS THAT:

1.    The time for compliance with paragraph 18 of the Scheme of Administration approved on 21 June 2012 (as varied) is extended to 23 November 2012.

2.    The Administrator is to file and serve all such Affidavits and an Outline of Submissions upon which he wishes to rely in support of any application to vary the Scheme of Administration in respect to the NSW Branch and the Victoria No 3 Branch of the Health Services Union on or before 14 November 2012.

3.    Any such further Affidavits or Outlines of Submissions upon which any interested party wishes to rely is to be filed and served on or before midday on 20 November 2012.

4.    The proceeding in respect to any variation of the Scheme of Administration in respect to the NSW Branch and the Victoria No 3 Branch is fixed for hearing at 9.30am on Thursday 22 November 2012.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    This is yet a further application to extend the time for compliance with paragraph 18 of the Scheme of Administration as approved on 12 June 2012. The circumstances giving rise to the approval of the Scheme have previously been recounted: Brown v Health Services Union [2012] FCA 644, 291 ALR 497. They need not again be recounted. Prior applications to vary the scheme and to extend the time for compliance have also been previously recounted in the decision published in September 2012: Brown v Health Services Union (No 2) [2012] FCA 1014. Again, those previous applications need not be recounted.

2    Two events have transpired since September 2012, namely:

    the steps necessary to be taken in respect to what was previously described as the “Melbourne property” have taken longer than was anticipated; and

    on 26 October 2012 a Judge of this Court, made orders for the conduct of an inquiry in relation to the elections for all officers in the Health Services Union Victoria No 1 Branch. An order was also then made restraining the Returning Officer from taking any further step in the conduct of the elections for those offices in the Victoria No 1 Branch.

3    The events of immediate relevance to the present application, it should be noted, are substantially beyond the control of the Administrator. Due to what has been described as a “backlog” in the State Revenue Office in Victoria, an application seeking exemption from ad volerum stamp duty in respect of the Melbourne property has not as yet been processed. It is not anticipated that the application will be considered by the State Revenue Office prior to 31 October 2012. Moreover, negotiations in respect to amended proposed security arrangements with the Commonwealth Bank of Australia are taking longer than expected.

4    In such circumstances it is appropriate to extend the time for compliance with paragraph 18 of the Scheme of Administration until 23 November 2012, being the date sought by the solicitor acting on behalf of the Administrator.

5    The inquiry ordered by his Honour Justice Tracey gives rise to different considerations. That inquiry in respect to the Victoria No 1 Branch is fixed for hearing for two days commencing on 15 November 2012. It can readily be accepted that a judgment in respect to the inquiry relating to the Victoria No 1 Branch elections will be forthcoming as soon as is reasonably practicable to his Honour. But it may not be sufficient, as proposed in the Affidavit of the solicitor for the Administrator, to simply “monitor the progress of the said inquiry”. If the balance of the Scheme in respect to the two other Branches has been completed by the date for compliance as extended in September 2012, namely by mid-December 2012, consideration should be given sooner rather than later to whether any variation to the terms of the existing scheme are warranted to ensure that the administrator’s involvement in those two branches comes to an end as soon as possible.

6    Consideration should also be given to whether any order or direction pursuant to s 323 of the Fair Work (Registered Organisations) Act 2009 should now be made to regularise the timetable for elections as previously contemplated: see [2012] FCA 1014 at [14].

the Orders of the Court Are:

1.    The time for compliance with paragraph 18 of the Scheme of Administration approved on 21 June 2012 (as varied) is extended to 23 November 2012.

2.    The Administrator is to file and serve all such Affidavits and an Outline of Submissions upon which he wishes to rely in support of any application to vary the Scheme of Administration in respect to the NSW Branch and the Victoria No 3 Branch of the Health Services Union on or before 14 November 2012.

3.    Any such further Affidavits or Outlines of Submissions upon which any interested party wishes to rely is to be filed and served on or before midday on 20 November 2012.

4.    The proceeding in respect to any variation of the Scheme of Administration in respect to the NSW Branch and the Victoria No 3 Branch is fixed for hearing at 9.30am on Thursday 22 November 2012.

Associate:

Dated:    12 November 2012

Schedule

                                                                                                                  No: (P)NSD 621 of 2012

Federal Court of Australia    

District Registry: New South Wales

Division: Fair Work

Applicants

Second Applicant:    LLOYD ALBERT WILLIAMS

Third Applicant:    DANIEL PATRICK HILL

Fourth Applicant:    ROSEMARY LOUISE KELLY

Fifth Applicant:    JORGE NAVAS

Sixth Applicant:    ZITA DARLENE MITCHELL

Respondents

Second Respondent:    HSU EAST

Third Respondent:    MICHAEL WILLIAMSON

Fourth Respondent:    KATHERINE JACKSON

Fifth Respondent:    GERARD HAYES

Sixth Respondent:    PETER BEATON

Seventh Respondent:    LEANNE BURNS

Eighth Respondent:    LEIGH BUSH

Ninth Respondent:    RAY DUNN

Tenth Respondent:    GRAHAME EDWARDS

Eleventh Respondent:    JOHN FITZROY

Twelfth Respondent:    HELEN GOODLUCK

Thirteenth Respondent:    BARBARA GRAY

Fourteenth Respondent:    LYNETTE GUYMER

Fifteenth Respondent:    SHARALYN HAYNES

Sixteenth Respondent:    SHARON JONES

Seventeenth Respondent:    LINDEN MARTIN

Eighteenth Respondent:    SHARON MCCULLOUGH

Nineteenth Respondent:    DEBORAH NEUMANN

Twentieth Respondent:    PAULINE O'NEILL

Twenty First Respondent:    VICKI RILEY

Twenty Second Respondent:    BRUCE ROWLING

Twenty Third Respondent:    LYNNE RUSSELL

Twenty Fourth Respondent:    ZI ZHENG SHAO

Twenty Fifth Respondent:    CLARRIE SMITH

Twenty Sixth Respondent:    MARK STERREY

Twenty Seventh Respondent:    LYNETTE THOMPSON

Twenty Eighth Respondent:    DAVE VEALEY

Twenty Ninth Respondent:    GRAHAM CONROY

Thirtieth Respondent:    JODIE COWDREY

Thirty First Respondent:    RODNEY FELTHAM

Thirty Second Respondent:    LACHLAN GILCHRIST

Thirty Third Respondent:    CHRISTINE GILCHRIST

Thirty Fourth Respondent:    CHRISTINE GILKINSON

Thirty Fifth Respondent:    ZELDA GISLETT

Thirty Sixth Respondent:    ADAM HALL

Thirty Seventh Respondent:    ROBERT HULL

Thirty Eighth Respondent:    ANGELA HUMPHRIES

Thirty Ninth Respondent:    MONIQUE IRVINE

Fortieth Respondent:    IRIS KNIGHT

Forty First Respondent:    KEN MCINTOSH

Forty Second Respondent:    KIM MULLER

Forty Third Respondent:    SEAN O'CONNOR

Forty Fourth Respondent:    MICHAEL O'DONNELL

Forty Fifth Respondent:    STEPHEN POLLARD

Forty Sixth Respondent:    JOHN SANTANGELO

Forty Seventh Respondent:    TIM THORBURN

Forty Eighth Respondent:    BEV TURELLO

Forty Ninth Respondent:    MARCO BOLANO

Fiftieth Respondent:    BRYAN YEATES

Fifty First Respondent:    TED HINGE

Fifty Second Respondent:    TERRY AGIUS

Fifty Third Respondent:    LIA AUGOUSTAKIS

Fifty Fourth Respondent:    STUART BOWLES

Fifty Fifth Respondent:    SHANE BRASIER

Fifty Sixth Respondent:    GINO CATHERINE

Fifty Seventh Respondent:    BRETT DAVIDSON

Fifty Eighth Respondent:    REUBEN DIXON

Fifty Ninth Respondent:    JENNY DUNLOP

Sixtieth Respondent:    LEONIE FLYNN

Sixty First Respondent:    JULIE GRAHAM

Sixty Second Respondent:    JOE GRECH

Sixty Third Respondent:    MARK HINDSON

Sixty Fourth Respondent:    PHILIP ADRIAN KERR

Sixty Fifth Respondent:    LISA MAGNUSSON

Sixty Sixth Respondent:    MELISSA NENADOVIC

Sixty Seventh Respondent:    PATRICK O'BRIEN

Sixty Eighth Respondent:    JIM PAPARAS

Sixty Ninth Respondent:    LORI SCIDONE

Seventieth Respondent:    LYN SHEPHERD

Seventy First Respondent:    STEPHEN SIGISMONDI

Seventy Second Respondent:    JIMMY VILLANUEVA

Seventy Third Respondent:    TAMMIE WHEELHOUSE

Seventy Fourth Respondent:    KATE WILKINSON

Seventy Fifth Respondent:    STUART MILLER

Seventy Sixth Respondent:    KERRIE SEYMOUR

Seventy Seventh Respondent:    PETER JAMES MYLAN

Seventy Eighth Respondent:    KIM HAZELWOOD

Seventy Ninth Respondent:    KIM GOODLOCK

Eightieth Respondent:    SHARON JOSEPH

Eighty First Respondent:    ALICIA ANSET

Eighty Second Respondent:    ROBERT BRADLEY

Eighty Third Respondent:    PETER BRAVIS

Eighty Fourth Respondent:    MELISSA BUTLER

Eighty Fifth Respondent:    ANDREW HEWAT

Eighty Sixth Respondent:    DEIDRE MCINTOSH

Eighty Seventh Respondent:    ADRIANA VESPUCCI

Schedule

                                                                                                                  No: (P)NSD 735 of 2012

Federal Court of Australia    

District Registry: New South Wales

Division: Fair Work

Second Respondent:    MINISTER FOR EMPLOYMENT AND WORKPLACE RELATIONS

Third Respondent:    HEALTH SERVICES UNION

Fourth Respondent:    CHRISTOPHER PAUL BROWN

Fifth Respondent:    LLOYD ALBERT WILLIAMS

Sixth Respondent:    DANIEL PATRICK HILL

Seventh Respondent:    ROSEMARY LOUISE KELLY

Eighth Respondent:    JORGE NAVAS

Ninth Respondent:    ZITA DARLENE MITCHELL

Tenth Respondent:    KATHERINE JACKSON

Other:                    UNIONS NSW

Second Other:    MICHAEL FRANCIS MOORE