[2014] FWCFB 174

The attached document replaces the document previously issued with the above code on 29 January 2014.

The citation in footnote 17 is amended to Warrell v Fair Work Australia [2012] FCA 267 at [8] per Perram J

Abby Lang

Associate to Deputy President Gostencnik

Dated 6 February 2014

[2014] FWCFB 174

FAIR WORK COMMISSION

DECISION


Fair Work Act 2009
s.604 - Appeal of decisions

E. Allen and Ors
v
Fluor Construction Services Pty Ltd
(C2013/1523)

PRESIDENT JUSTICE ROSS
DEPUTY PRESIDENT GOSTENCNIK
COMMISSIONER SIMPSON

MELBOURNE, 29 JANUARY 2014

Appeal against decision in Transcript and Order [PR541318] of Senior Deputy President Richards at Brisbane on 4 September 2013 in matter number C2013/5890 - s.418 Fair Work Act 2009 (Cth) - adjournment refused - denial of procedural fairness - observations about the form of the order - seeking an order which is contrary to authority without alerting the presiding Member to the contrary authority is inconsistent with a legal practitioner’s duty to the Commission - Legal Profession (Solicitors) Rule 2007 (Qld) - permission to appeal granted - appeal upheld, order quashed and application dismissed.

Introduction

[1] In the afternoon of 4 September 2013 some 70 employees of Fluor Construction Services Pty Ltd (Respondent) stopped work. Following a hearing conducted that evening Senior Deputy President Richards made an order 1 under s.418 the Fair Work Act 2009 (Cth) (Act) directed at stopping unprotected industrial action and binding certain employees of the Respondent. Mr Edwin Allen and 22 other employees2 (Appellants) who are bound by the order lodged a notice of appeal pursuant to s.604 of the Act on 24 September 2013 against the decision3 and order of the Senior Deputy President. This decision deals with the appeal.

Background

[2] It is necessary that we set out, in some detail, the background to this appeal.

[3] On 4 September 2013 at 4:40pm the Respondent applied for orders under s.418 of the Act to stop unprotected industrial action. The orders were directed to the Construction, Forestry, Mining and Energy Union (CFMEU), the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU) and certain employees of the Respondent, then employed to work on the GLNG Upstream Project at Fairview under the Fluor Construction Services Pty Ltd GLNG Upstream Project Greenfield Agreement 2011 (the Fluor employees). In support of its application the Respondent alleged that at around 2:00pm on that day about 70 Fluor employees engaged in mechanical installation work at the Hub Compression Station at the Fairview 04 Construction area (part of the GLNG Upstream Project), withdrew their labour, had not returned to work and there was no indication about when the employees intended to resume work.

[4] An application for substituted service and a request for an urgent listing were submitted with the application. The application for substituted service was granted and the applicant was required to effect service by sending a copy of the application by email marked to the attention of the National Secretaries of the AMWU and CFMEU, and by posting a copy of the application on the site notice board, usually used by the Respondent to communicate with the relevant employees. It is common ground that the Respondent served a copy of the application, by email, on the AMWU and CFMEU at 4:42pm. The Respondent made no attempt to give the Fluor employees notice of the time and place of the hearing.

[5] A notice of listing advising that the matter had been listed for urgent hearing commencing at 6:15pm was sent to the Respondent, the AMWU and the CFMEU at 5:10pm that afternoon. The listing contained an additional note informing recipients that they could make arrangements to appear by telephone or have a witness appear by telephone by contacting the Commission by reply email. Notice of the hearing was not provided to the Fluor employees.

[6] The hearing of the s.418 application commenced at 6:20pm. At the outset, the CFMEU’s representative sought an adjournment of the hearing until the following morning 4 and indicated it wished to call evidence concerning the issues that gave rise to the cessation of work that afternoon. The submission in support of the adjournment application was as follows:

[7] The adjournment application was supported by the AMWU and opposed by the Respondent. The Senior Deputy President refused to adjourn the proceedings and gave the following reasons:

[8] After the adjournment application had been dealt with and before proceeding further, the Respondent advised the Senior Deputy President that it no longer sought an order against the AMWU and the CFMEU. The application for an order was confined to the Fluor employees who were taking industrial action 7. The Senior Deputy President then proceeded to hear and determine that application.

[9] Mr Wayne Sommerville, a construction superintendant for the Respondent at the Hub Compression Station, gave evidence by telephone in support of the application. He was asked about the events that occurred at 2:00pm that day:

[10] Mr Sommerville was also asked about the duration of the stoppage:

[11] Mr Sommerville was cross-examined about this issue:

[12] The Senior Deputy President decided to issue an order pursuant to s.418 of the Act and gave as his reasons for doing so, the following:

[13] The order made by the Senior Deputy President was confined to the Fluor employees.

Legislative context

[14] The order was made pursuant to s.418 of the Act, which is in the following terms:

[15] ‘Industrial action’ is defined in s.19. Relevantly ‘industrial action’ does not include action by an employee if :

[16] Section 420 is also relevant and deals with the timeframe within which an application for an order under s.418 is to be determined:

The Appeal

[17] The Appellants are 23 Fluor employees who are bound by the Senior Deputy President’s order of 4 September 2013.

[18] An appeal under s 604 of the Act is an appeal by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker. 13 There is no right to appeal as an appeal may only be made with the permission of the Commission.

[19] Shortly stated, apart from permission to appeal, the following issues are raised for determination by the appeal:

[20] Each of these issues is considered in turn below, although for reasons that will become apparent we have found it unnecessary to determine the issues identified at [19](b) and (c) above, though we make some observations about the issues relating to his Honour’s orders.

Procedural fairness issue

[21] The Commission’s obligations relating to the manner in which it must perform its functions and exercise its powers are set out in ss.577 and 578 of the Act. Relevantly, the Commission must act in a manner that:

[22] Absent any express provision to the contrary, Members of the Commission are bound to act in a judicial manner and to observe procedural fairness in carrying out functions and exercising powers under the Act. 14 The requirements of procedural fairness are not prescribed in a fixed body of rules. What is required is judicial fairness and that which is fair in one case may be quite different to that which will be required in another.15 The obligation extends to the exercise of powers under s. 418.16

[23] The critical question is what procedural fairness required in the circumstances of this matter, the answer to which depends on a number of considerations including the statutory context, the particular circumstances of the proceeding and the grounds for making the application for an adjournment. 17

[24] The statutory direction to determine s.418 applications, so far as practicable, within two days emphasises that matters under these provisions ‘will necessarily be conducted with expedition and the opportunity to present a case will be limited’. 18 As the Full Bench said in Construction, Forestry, Mining and Energy Union v Hooker Cockram Projects NSW Pty Ltd:

[25] Procedural fairness in the present context required the Senior Deputy President to ensure that each party was given a reasonable opportunity to present their respective cases. Depending on the circumstances, a refusal to grant an adjournment can constitute a failure to give a party to proceedings a reasonable opportunity to adequately present their case. 20 The question whether a reasonable opportunity was provided to the Appellants must also be considered in the context of the whole of the circumstances faced by the Senior Deputy President, including the statutory scheme under which the Respondent’s application was brought and the particular circumstances of the proceeding.

[26] As Katzmann and Rangiah JJ observed in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union v Abigroup Contractors Pty Ltd, 21 the legislative scheme contained in Division 4 of Part 3-3 of the Act, seeks to balance the need for expedition in cases of unprotected industrial action because of its capacity to cause damage against the need to afford a reasonable opportunity to a party in relation to whom an order might be made, to present a case in opposition to the order sought. The scheme does not suggest expedition at all costs. Their Honours said:

[27] The Appellants submit that the refusal of the adjournment was a denial of procedural fairness to the Fluor employees and constituted jurisdictional error having regard to the following circumstances:

[28] The Appellants contend that the short adjournment proposed would have enabled the application to be determined, in all probability, within 24 hours of the filing of the application and almost certainly it could have been determined on 5 September 2013. If for some reason this had become impracticable, the Senior Deputy President should have issued an interim order under s.420(2). On this basis the Appellants contend that their request for an adjournment until the following morning was eminently reasonable and well within the contemplation of the statutory scheme. They argue that the Act did not mandate or support the approach taken by the Senior Deputy President and that granting a short overnight adjournment would have given the Appellants an opportunity to put their position as to the full reasons for the cessation of work from 2pm to 4pm, and as to whether there was any threatened, impending or probable industrial action.

[29] The Appellants also contend that the Senior Deputy President did not consider the requirements of procedural fairness, particularly with respect to the employees, but rather appeared to base his decision on the avoidance of possible “prejudice” to the employer – that is, the possibility that the industrial action might be resumed the following day.

[30] The Respondent submits that in all the circumstances, and having regard to the scheme of the Act, the Senior Deputy President did not deny the Appellants procedural fairness in not granting the request for an adjournment. The Respondent points to the fact that it is well accepted that respondents to a s.418 application have to expect that they will be called on to provide to the Commission their response to the application within a short timeframe, and with limited opportunity to consider their position and to obtain legal or other advice. 32 Indeed, the legislation carries an expectation that when employees, such as the Appellants (whether members or non-members of an industrial organisation),33 engage in a stoppage of work, then they need to be ready at short notice to be represented in any proceedings regarding their conduct.34

[31] As to the particular circumstances of the proceeding the Respondent submits that the following facts are relevant:

(e) However, despite the fact that the CFMEU representative was informed that an urgent hearing was being sought, and that such hearing may require evidence to be given to provide the Commission with the Appellants’ view of the action, the CFMEU representative did not ask the relevant workers who otherwise provided instructions to him, whether they were prepared to provide evidence at the hearing. 37

(f) The AMWU did not assert an inability to call witnesses but did assert that their instructions were “limited”

[32] The Respondent submits that the Appellant’s contention that they had no opportunity to call evidence and no reasonable opportunity to put any case in opposition to the orders is wrong and should be rejected. 38 The Respondent contends that the Appellants chose not to avail themselves of the opportunity provided. An outcome of that election was that the Appellants deprived themselves of the opportunity which was provided by the Commission to give relevant evidence to the hearing. The Respondent says that it was clear that on 4 September 2013, the Appellants (or some of them) communicated with their representative, the CFMEU, between the service of the application and the hearing, and had the opportunity to provide instructions and give evidence at the hearing. The CFMEU as representative of the Appellants chose not to lead evidence from the Appellants and did not ask the Appellants whether they were prepared to give evidence. Consequently it was the Appellants who deprived themselves of the opportunity to give evidence by the election their representative made, rather than by any action of the Senior Deputy President.

[33] In our view, the Respondent’s submissions overly simplify what occurred. The CFMEU’s primary submission before the Senior Deputy President in support of its adjournment application was that it had had a very limited opportunity to take instructions but that those limited instructions indicated that there was a genuine health and safety concern at the workplace 39 and that the CFMEU wished to adduce evidence about that matter and about the role played by health and safety representatives in the stoppage of work. 40

[34] Further, as it had only a restricted opportunity to take proper instructions and to prepare evidence (some 90 minutes between the service of the application and the commencement of the hearing), the CFMEU submitted that it should be granted a short adjournment until the earliest opportunity the next morning to enable it to properly prepare its case. 41 In short, it was submitted that, given the brief period of time between service of the application and the hearing, it was not possible for the CFMEU to adduce evidence directed to the health and safety concerns which would form the basis of a submission that the stoppage of work that had occurred on 4 September 2013 was not industrial action as defined in the Act42. Self evidently, so far as the 23 Appellants are concerned, this submission had some merit.

[35] In order to invoke the exception to the meaning of industrial action set out in s.19(2)(c) of the Act, it would have been necessary to call each of the Appellants who relied upon the exception, to give evidence that that Appellant had a reasonable concern about an imminent risk to his or her personal health or safety. The limited time that was available to the CFMEU between service of the application and the commencement of the hearing did not enable the CFMEU to seek instructions from the Appellants about these matters. That the CFMEU was able to take limited instructions from some individuals and did not ask those individuals whether they were prepared to give evidence that evening, does not diminish this fact. Nor does the fact that the CFMEU’s representative was able to cross examine the Respondent’s witness mean that the Appellants were given a reasonable opportunity to present their case. By the time the CFMEU received notice of the application or several minutes thereafter, the Appellants had left the workplace and were on a bus returning to their accommodation camp. At 6:53pm on 4 September 2013, some 30 minutes after the hearing of the application had begun, a copy of the Respondent’s application for orders was in the process of being posted on the camp notice board which is located at the front of the camp at the administration office.  43 Notice of the hearing was not given to the Appellants.

[36] In our view the time between service of the application and the commencement of the hearing was insufficient to allow the Appellants, through their representative (the CFMEU) to seek necessary instructions from all relevant potential witnesses, to assess the allegations made against the Appellants and to determine which evidence it should call. This was all the more necessary since no allegation was made that the CFMEU organised or was responsible for the stoppage or had any knowledge of the industrial action prior to being informed of the Respondent’s application. True it is that the application made was urgent and that unprotected industrial action had the potential to cause damage and delay to the Respondent’s project but procedural fairness is not to be set aside because of such exigencies. A short adjournment until the next morning was warranted in the circumstances and should have been granted. Such an adjournment would not have defeated the operation of s.420. The application could still have been determined well within the statutory timeframe of two days. In the circumstances the refusal by the Senior Deputy President to grant the adjournment denied the Appellants a reasonable opportunity to present their case and consequently was a denial of procedural fairness.

[37] Further, the Respondent gave notice of the application to the 23 Appellants pursuant to an order of substituted service some 30 minutes after the hearing had commenced. It did not give or attempt to give the 23 Appellants notice of the hearing. A failure to provide a party with notice of the time and place of a hearing denies the party the opportunity to present his or her case. 44 In circumstances where ultimately no orders were sought against the CFMEU and where an order was sought against Fluor Employees irrespective of whether they were members of the CFMEU or not, the failure to provide the Appellants with notice of the hearing was also a denial of procedural fairness.

[38] The Respondent also submitted that the essence of the evidence which the CFMEU sought to put before the Commission after the adjournment was canvassed in the cross examination of the Respondent’s witness. This submission goes to the question whether relief should be granted not whether there has been a denial of procedural fairness. The gravamen of this submission is that had the adjournment been granted and the CFMEU’s evidence put before the Commission it would not have affected the decision and order of the Senior Deputy President. We are not persuaded that this is necessarily so. The Appellants need not establish that the evidence that would have been adduced by the CFMEU if an adjournment had been granted would have affected the decision, they need only establish that the failure to grant an adjournment deprived them of the possibility of a successful outcome. 45 The CFMEU sought an adjournment to enable it to call evidence going to two discrete points, namely the existence of a reasonable concern about an imminent risk to health and safety and the role of health and safety representatives in the stoppage, both or either of which could possibly have led to a different result and we are not able to exclude that possibility in this case. As the High Court said in Stead v State Insurance Commission:46

[39] In the circumstances we think the Appellants are entitled to relief.

The Industrial Action issue

[40] The Appellants essential point under this ground of appeal is that there was no evidence before the Senior Deputy President upon which he could base a finding of jurisdictional fact that industrial action by the Appellant’s was ‘impending’ or ‘probable’ could be made. The Appellants also submitted (although it did so under the form of orders issue) that no industrial action was happening at the time that the order was made, and consequently the Senior Deputy President did not have jurisdiction to make any order directed to the Appellants that they must “stop all industrial action that is happening at the time the order comes into effect”.

[41] Given our conclusions on the procedural fairness issue, it is unnecessary for us to decide the industrial action issue.

Form of orders issues

[42] The Appellants alleged a number of errors in respect of the order made by the Senior Deputy President. Given our conclusions on the procedural fairness issue, it is also unnecessary for us to decide those matters. We do however make the following observations.

[43] Clause 3.2 of the Senior Deputy President’s order provided as follows:

[44] In Transport Workers’ Union of New South Wales v Australian Industrial Relations Commission and Others 47 a Full Federal Court considered, inter alia, the validity of a clause in an order made under s.496 of the Workplace Relations Act 1996, which was caste similar terms to clause 3.2. The majority said of that clause, the following:

[45] More recently in Maritime Union of Australia v Patrick Stevedores Holdings Pty Limited  49 a Full Bench of this Commission determined that a similarly worded clause to that in issue in this appeal, in an order under s.418 of the Act, was clearly beyond power. The Full Bench said:

[46] It would seem clearly to be the case that the Senior Deputy President was in error by including clause 3.2 in the order that he made.

[47] We note that the Respondent by its application sought an order containing the terms of clause 3.2 of the ultimate order 51. A party, particularly one that is represented by an experienced practitioner, applying for an order should not seek to include a term in any order that is clearly beyond power or is contrary to authority without being prepared to alert the presiding Member to the contrary authority, canvassing with the member the doubt as to power, or being prepared to argue that the contrary authority was incorrectly decided or is otherwise distinguishable. To do otherwise will invariably lead the Member into error.

[48] In this context it is important to appreciate that legal representatives have a duty to bring all relevant authorities to the attention of the Commission, whether or not they assist the party they represent. 52 A lawyer’s duty to the Commission is paramount and supercedes a lawyer’s duties to their client.53 A grant of permission to appear pursuant to s.596(1) of the Act is based upon a presumption that the representative to whom leave is granted will conduct themselves with probity, candour and honesty.54 The duty of advocates in that regard has been long recognised by the Commission. As a Full Bench noted in AFMEPKIU v Energy Developments Ltd:

[49] In the present context seeking an order which is contrary to authority without alerting the presiding Member to the contrary authority is inconsistent with a legal practitioner’s duty to the Commission. Furthermore, the Legal Profession (Solicitors) Rule 2007 (Qld) provide:

Permission to appeal

[50] Section 604 provides:

[51] The Explanatory Memorandum to what is now s.604 states:

[52] In Wan the Full Federal Court made the following observation regarding the operation of s.45 of the then Workplace Relations Act 1996 (the WR Act), a statutory predecessor to s.604:

[53] Given the similarities between s.45 of the WR Act and s.604 of the Act the observations in Wan remain apposite.

[54] The Appellants submit that it is in the public interest that permission to appeal be granted:

[55] The Respondent says that permission to appeal should be refused as the public interest is not enlivened and nor is there sufficient doubt to warrant reconsideration of the Senior Deputy President’s order. It is submitted that permission should be refused having regard to the following matters:

[56] A denial of procedural fairness is a jurisdictional error. While we accept that the order made by the Senior Deputy President has expired and the prospect of any enforcement action is remote, this fact is not outweighed by the need correct the procedural fairness error made by the Senior Deputy President and to reinforce the need to properly balance the need for expedition against the right of a party to be given a reasonable opportunity to present a case in applications of this kind. We are satisfied that it is in the public interest to grant permission to appeal and we do so.

Disposition of appeal

We grant permission to appeal, we uphold the appeal and we quash the order made by the Senior Deputy President in PR541318.

Rehearing

It is common ground that the Appellants and other Fluor employees bound by the order made by the Senior Deputy President returned to work without further stoppages or other industrial action, that the outstanding issues had been resolved or are not being agitated and that there have not been any further stoppages or other industrial action. There is no suggestion of any threat of any further stoppages or industrial action. Section 418(1) confers jurisdiction on the Commission to make an order in relation to apparent unprotected industrial action that:

As there is no evidence before us that any unprotected industrial action is happening, threatened, impending of probable, or that it is being organised, no order may be made and the Respondent’s application is dismissed.

PRESIDENT

Appearances:

C.Howell of Counsel for the Appellants

A. Herbert of Counsel for the Respondent

Hearing details:

2013.

Brisbane.

3 December.

 1   PR541318

 2   The other appellants are G Armstrong, S Baucke, G Bitton, D Bullock, G Docherty, M Edwards, A Greaves, R Hale, T Harris, R Harrison, P Hiles, A Martin, S Pekin, J Pisciones, R Shanner, T Stokes, N Thomas, C Thompson, D Treleaven, J Vana, T Warrington and M Webster

 3   The Senior Deputy President gave reasons for his decision to make an order in Transcript at PN342-PN352; AB56-57

 4   AB27 Transcript PN72

 5   AB22 Transcript PN10-PN11, AB25 Transcript PN46 and AB26 Transcript PN58

 6   AB28-29 Transcript PN77-PN80

 7   AB30 Transcript PN95

 8   AB33-34 Transcript PN127- PN135 and AB35 Transcript PN140- PN145

 9   AB36-37 Transcript PN156- PN160

 10   AB45 Transcript PN253-PN254

 11   AB56-57 Transcript PN342-PN352

 12   Section 19(1)(c)

 13   This is so because on appeal FWC has power to receive further evidence, pursuant to s.607(2); see Coal and Allied v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.

 14   Coal and Allied Services Pty Ltd v Lawler (2011) 192 FCR 78 at 83; see also Kioa v Minister for Immigration & Ethnic Affairs (1985) 62 ALR 321 at 347 per Mason J; R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546; Re Australian Bank Employees Union; Ex parte Citicorp Australia Ltd (1989) 167 CLR 513; 29 IR 148

 15   Mobil Oil Australia Pty Ltd v Commissioner of Taxation (Cth), (1963) 113 CLR 475 at [504] per Kitto J

 16   Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union v Abigroup Contractors Pty Ltd [2013] FCAFC 148 at [118]; Transport Worker’ Union of New South Wales v Australian Industrial Relations Commission (2008) 166 FCR 108 at 130

 17   Russell v Duke of Norfolk [1949] 1 ALLER 109 at 118 per Tucker LJ; Warrell v Fair Work Australia [2012] FCA 267 at [8] per Perram J

 18   CEPU v Abigroup Contractors Pty Ltd [2013] FWCFB 453; see also McKewin and Others v Lend Lease Project Management and Construction (Australia) Pty Ltd [2013] FWCFB 2568 at [32]-[33]

 19   [2011] FWAFB 3658 at [18]

 20   Sullivan v Department of Transport (1978) 20 ALR 323 at 343 per Deane J

 21   [2013] FCAFC 148

 22   Ibid at [133]-[137]

 23   AB16 par. 5(c)

 24   AB17

 25   AB24 Transcript PN 27

 26   AB35 Transcript PN 145

 27   AB24 Transcript PN33

 28   AB22 Transcript PN10-PN11 and AB27 Transcript PN72

 29   AB22 Transcript PN10-PN11, AB26 Transcript PN58

 30   AB p.22 PN10, 11, 25, 44, 45, 46, 58

 31   AB p.27 PN62

 32   CEPU and CFMEU v Abigroup Contractors Pty Ltd [2013] FWCFB 453 at [30] and McKewin & Ors v Lend Lease Project Management & Construction (Australia) Pty Ltd [2013] FWCFB 2568 at [32]

 33   McKewin & Ors v Lend Lease Project Management & Construction (Australia) Pty Ltd [2013] FWCFB 2568 at [33]

 34   CEPU and CFMEU v Abigroup Contractors Pty Ltd [2013] FWCFB 453 at [30]

 35   AB35 Transcript PN140-PN143

 36   AB25 Transcript PN45

 37   AB26 Transcript PN56; This statement is said to explain the statement made at AB25 Transcript PN45, that the ‘respondent is not in a position to call evidence’. That was a position largely of the appellants’ representatives own making.

 38   Submissions of the Appellants paragraph [13]

 39   AB 22 Transcript PN10

 40   AB 22 Transcript PN 11; AB 25 Transcript PN 44

 41   AB 26 Transcript PN 52, PN 58

 42   AB 22 Transcript PN 11; AB 24 Transcript PN 25; AB 25 Transcript PN 46

 43   Exhibit R1 at [7] and [9]

 44   R v North; Ex parte Oakley (1927) 1 KB 491 at 502; Edghill v Kellow-Falkner Motor Pty Ltd [2000] AIRC 10 at [51]-[58]

 45   Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union v Abigroup Contractors Pty Ltd [2013] FCAFC 148 at [187]

 46   (1986) 161 CLR 141 at 145-146

 47   (2008) 166 FCR 108

 48   Ibid at 132 per Gray and North JJ at 132

 49   [2013] FWCFB 7736

 50   Ibid at [48]

 51   See clause 3.3 of the draft order prepared by the respondent and attached to its application for an order under section 418 at AB10

 52   Glebe Sugar Refining Co v Greenock Ports & Harbours Trustees [1921] WN 85 at 86; see generally 1pp D (1998) Lawyer’s Duties to the Court, 114 LQR 63

 53   Giannelli v Wraith 91998) 165 CLR 543 at 556 per Mason J; Council of the Queensland Law Society Inc v Wright [2001] QCA 58

 54   Oram v Derby Gem Pty Ltd [2004] 134 IR 379 at [62]

 55   AIRC Print M9753, 1 March 1996 per Ross VP, Maher DP and McDonald C

 56   Rule 14.6; Note also “court” is defined under the Rule to include “an industrial tribunal”

 57   (2001) 116 FCR 481 at [30]

 58   Appellants’ submissions at [52]-[54]

 59   Respondent’s outline of submissions at [4]

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