FEDERAL COURT OF AUSTRALIA

Glen Cameron Nominees Pty Ltd v Transport Workers’ Union of Australia [2017] FCA 1026

ORDERS

THE COURT ORDERS THAT:

1.    The interlocutory relief sought against the Respondents in the Applicant’s interlocutory application filed on 22 August 2017 be dismissed.

2.    No order as to costs.

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

REASONS FOR JUDGMENT

PERRAM J:

1    This is an application by the Applicant (‘Glen Cameron Nominees’) to restrain the First Respondent, the Transport Workers’ Union of Australia (‘the TWU’), and the Second Respondent, the Full Bench of the Fair Work Commission (‘Full Bench’), from taking any further steps in proceeding C2017/1406 entitled Glen Cameron Nominees Pty Ltd t/a Glen Cameron Trucking v Transport Workers’ Union of Australia. On 8 June 2017, the Full Bench made an order refusing to grant permission to Glen Cameron Nominees to appeal an earlier decision which had been made by Deputy President Bull. It is strongly arguable that permission to appeal was not required and that Glen Cameron Nominees could appeal as of right. It is therefore strongly arguable that the decision of the Full Bench is attended by a legal error.

2    The present substantive proceeding was commenced by Glen Cameron Nominees seeking relief which included setting aside the Full Bench’s decision to refuse to grant permission, or alternatively, declaring that decision to have been without legal consequence. After the Full Bench made that decision, and after the commencement of the proceedings in this Court, the Full Bench became aware of the error which appears to have been made. On 21 August 2017, it reconvened and indicated that it was minded to revoke the earlier decision to refuse leave but nevertheless set a timetable for submissions on the question of whether it should, in fact, do so. That timetable reaches its final stage later today and it is reasonable to infer that shortly after its expiration, the Full Bench is likely to make a decision on the question of whether it should revoke its earlier decision.

3    Glen Cameron Nominees now seeks to restrain the Full Bench from making that decision. Since that is in substance what it seeks in this Court, this may appear a surprising application. However, Glen Cameron Nominees was candid in admitting that it wishes to have the decision dealt with in this Court by way of orders quashing the decision or declaring it to be invalid so that it may procure the benefit of an order that the matter be heard by a Full Bench of the Commission differently constituted. This will not occur if the Full Bench proceeds to set aside its own decision.

4    The application for the interlocutory injunction is put on a few interrelated bases. First, it is said that the Full Bench lacks the jurisdiction to revoke its earlier decision. Next, it is said that by reason of what occurred at the directions hearing on 21 August 2017, there is a reasonable apprehension that the Full Bench has pre-judged the matter. Thirdly, and perhaps related to the second argument, is a contention that the timetabling orders made by the Full Bench occasion to Glen Cameron Nominees a degree of unfairness. The unfairness is put, I think, as an independent part of the application, but also by way of buttressing of the apprehended bias argument.

1.    Jurisdictional ground

5    I make the assumption that Glen Cameron Nominees has an arguable case that the Full Bench lacks jurisdiction to revoke its earlier decision. Despite that, it seems to me that Glen Cameron Nominees is confronted with a difficulty, which is that it does not appear to suffer any irremediable prejudice if an injunction is not granted to restrain the Full Bench from rescinding its decision, even if the Full Bench has no power to do so.

6    If it be correct that the Full Bench has no power to rescind its earlier decision, then Glen Cameron Nominees will be able to amend its current proceeding in this Court to challenge that decision as well. It is true that going down that path may increase the complexity of the proceedings, and it may ultimately require a further amendment to the proceedings if the Full Bench then proceeds to deal with the underlying appeal in a way which is not to the taste of Glen Cameron Nominees. But it seems to me that Glen Cameron Nominees is still in a position where it can challenge the revocation decision (and any subsequent decision on an appeal) in proceedings in this Court.

7    Mr Fagir of counsel for Glen Cameron Nominees submitted that that would be an inconvenient and potentially complex course to undertake. He submitted that considerations of efficiency and provisions such as s 37M of the Federal Court of Australia Act 1976 (Cth) suggested that it would be more convenient and more efficient for this Court to determine that issue now. On that view of things, this would save the parties, the Full Bench and, to an extent, this Court from further and complicated proceedings. I am prepared to make the assumption that that may well turn out to be true, but it does not provide the required element of irremediable prejudice to ground an application for an interlocutory injunction. It seems to me, therefore, that in relation to the jurisdictional argument, the balance of convenience does not favour an injunction.

2.    Bias ground

8    Then it is said that there is a reasonable apprehension of bias on the part of the Full Bench by reason of the manner in which it conducted the directions hearing before it on 21 August 2017. There are two parts of the transcript of that hearing which represent the high watermark of the argument. The first of these appears in an annexure to the affidavit of Mr Leon, which was tendered by Glen Cameron Nominees. At p 23 of the affidavit, it is recorded that the Vice President said:

‘The Full Bench is minded to revoke the decision. Mr Baroni, we just want to understand whether you want to be heard separately on an argument about that. If you do, we will program the matter for that to occur.’

9    The second passage is at p 24 of Mr Leon’s affidavit and is in these terms:

‘THE VICE PRESIDENT: This is not a game about trying to outplay. It’s a simple point. Mr Gibian, how long do you think you would be to reply to those sort of submissions?’

10    In addition to those two passages, Mr Fagir also submitted that the general tone and temperature of the directions hearing lent colour to the application based on apprehended bias. There may be an arguable case in relation to apprehended bias arising from those remarks, although I would tend to put the argument at the lower end of the spectrum. This is particularly so given the nature of exchanges which can happen between bench and bar and the subject matter of the application. But I will make in Glen Cameron Nominee’s favour the assumption that there is some sort of arguable case in there.

11    The main difficulty, so it seems to me, is that Glen Cameron Nominees has not applied to the Full Bench asking that the Vice President disqualify himself from dealing with the revocation application. It seems to me a significant discretionary matter that that step has not first been taken before being raised as a matter in this Court. Given the seriousness of the nature of an allegation of apprehended bias against the Full Bench, it really is something which ought to be raised in the first instance with that body. By itself, therefore, I do not think that the apprehended bias argument is one which will provide a basis for the grant of an injunction.

3.    Procedural unfairness ground

12    As I have said above, related to the application based upon apprehended bias were also some points which were made about the fairness of the procedure which the Full Bench had put in place in order to deal with the question of whether it should now revoke its own decision. It seems to me that those arguments both went to augment the apprehended bias argument, but also I think were probably put on the basis of a procedural fairness argument. The point related specifically to the timetable for submissions which had been put in place by the Full Bench.

13    The hearing in question took place on Monday, 21 August 2017, and at the end of it, the Full Bench put in place a timetable which required Glen Cameron Nominees to put on any submissions it wished to make on the question of the revocation of the earlier decision by Thursday, 24 August 2017 with the TWU being required to put on submissions in response by Monday, 29 August 2017, and with a right to Glen Cameron Nominees to put on submissions in reply by the close of business today, that is to say, Wednesday, 31 August 2017. I interpolate that the application for the present interlocutory injunction was made to me on Friday, 25 August 2017; that is, the day after Glen Cameron Nominees was required to have its submissions on before the Full Bench.

14    The argument was that given the complexity of the legal issues which arose, that timetable was unfair. I do not accept that submission. I would accept that the timetable was a tight one, and that the Full Bench could have allowed more time. But although the arguments which Mr Fagir deployed before me involved some legal nicety, I do not think that I could say that a timetable of the kind imposed by the Full Bench occasioned procedural unfairness to Glen Cameron Nominees, or that it adds any substantive flavour to the contention that the Full Bench had engaged in conduct which would give rise to a reasonable apprehension of bias. Accordingly, I do not think that the argument provides the basis for an injunction either.

4.    Conclusion

15    In those circumstances, I dismiss the application for an interlocutory injunction against the Respondents.

Associate:

Dated:    31 August 2017