Quirk and Miller; In the matter of an urgent application before the start of a proceeding [2014] FCA 1254

Quirk and Miller; In the matter of an urgent application before the start of a proceeding [2014] FCA 1254

The applications were dismissed because no proceeding for final relief had yet been commenced and the oral s 164 application did not provide a present foundation for further relief; s 164(2) precluded making an order without giving affected persons an opportunity to be heard; the Court was not satisfied under s 164(3) that reasonable internal steps had been taken, particularly given the appeal rights in the union rules; and the alleged natural justice breaches were speculative. The Court was not persuaded that an anticipatory prima facie case had been established or that the balance of convenience favoured restraining the meeting.

Jurisdiction
Australia
Judgment Date
18 November 2014
Procedural Posture
Urgent Application Before Start of a Proceeding / Ex Parte Urgent Application Before Commencement of Proceedings, Including Oral Application for an Order Under S 164 of the Fair Work (registered Organisations) Act 2009 (cth)
Outcome
Applications dismissed.
Legal Topics
['urgent Injunction' 'union Disciplinary Proceedings' 'performance of Union Rules' 'natural Justice' 'rule to Show Cause' 'ex Parte Application']
['practice and Procedure' 'industrial Law' 'registered Organisations'] ['urgent Injunction' 'union Disciplinary Proceedings' 'performance of Union Rules' 'natural Justice' 'rule to Show Cause' 'ex Parte Application']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 1 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Urgent Application Before Start of a Proceeding / Ex Parte Urgent Application Before Commencement of Proceedings, Including Oral Application for an Order Under S 164 of the Fair Work (registered Organisations) Act 2009 (cth)

Legal Issues

  1. 1 ['Whether an urgent injunction should be granted to restrain a CFMEU Divisional Executive disciplinary meeting from taking place.' 'Whether an oral application for an order under s 164 of the Fair Work (Registered Organisations) Act 2009 (Cth) could be entertained before a proceeding for final relief had been commenced and without the persons against whom the order was sought being heard.' 'Whether the applicants had shown that the disciplinary meeting would likely breach rule 11 of the Rules of the Division or the requirements of natural justice.' 'Whether the applicants had taken all reasonable steps to try to have the matter resolved within the organisation for the purposes of s 164(3).']

Ratio Decidendi

The applications were dismissed because no proceeding for final relief had yet been commenced and the oral s 164 application did not provide a present foundation for further relief; s 164(2) precluded making an order without giving affected persons an opportunity to be heard; the Court was not satisfied under s 164(3) that reasonable internal steps had been taken, particularly given the appeal rights in the union rules; and the alleged natural justice breaches were speculative. The Court was not persuaded that an anticipatory prima facie case had been established or that the balance of convenience favoured restraining the meeting.

Court Disposition

Applications dismissed.

Orders

  • ['The applicants have leave to file electronically their Urgent Application Before Start of a Proceeding.' 'The application be dismissed.' 'The oral application for an order under s 164 of the Fair Work (Registered Organisations) Act 2009 (Cth) be dismissed.']