Patrick Stevedores Operations No 2 Pty Ltd & Others v Maritime Union of Australia & Others

(1998) 195 CLR 1

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PATRICK STEVEDORES OPERATIONS NO 2 PTY LTD & OTHERS v MARITIME UNION OF AUSTRALIA & OTHERS

Court:

Judges: Brennan CJ, McHugh, Gummow, Kirby and Hayne
Gaudron
Callinan JJ

Subject References:
HIGH COURT AND FEDERAL JUDICIARY
Federal Court of Australia
Power under s 298U of the Workplace Relations Act 1996 (Cth) and s 23 of the Federal Court of Australia Act 1976 (Cth) to grant interlocutory injunctions to restrict purported termination of labour supply agreements, termination of employment of employees, obtaining stevedoring services, engaging in conduct having the effect of termination employment of employees, and engaging in conduct having the effect of the divestment of assets or dealing with assets otherwise than in the ordinary course of business.
EQUITY
Equitable Remedies
Mareva injunctions and other interlocutory injunctions
Whether within jurisdiction of the Federal Court of Australia to grant injunction with the effect of fettering discretion of administrators appointed under Pt 5.3A of the Corporations Law
Whether effect of such injunction requires company to trade while insolvent
Whether injunction necessary to prevent frustration of process
Whether confined to maintaining status quo at the time of making application
Whether available to protect the subject matter of litigation conferring greater rights than when application made
Whether serious question to be tried
Whether appropriate on balance of convenience
Effect on third parties
Exercise of supervisory jurisdiction.
CORPORATIONS
Companies
Management and Administration
Appointment of administrators under Pt 5.3A of the Corporations Law
Powers and duties in administration of company
Personal liability in administration of company
Jurisdiction of court fettering discretion of administrators
Jurisdiction of court to make orders compelling administrators to retain employees and to trade while insolvent contrary to responsibilities under the Corporations Law.
INDUSTRIAL LAW
Commonwealth
Stevedoring Industry
Whether restructuring of companies so as to remove assets from employer company with the effect of dismissing, injuring or altering the position of employees by reason of their membership of a union contravenes Pt XA of the Workplace Relations Act 1996 (Cth)
Nature of interlocutory injunctive relief available under s 298U of that Act.
TORT
Joint or Several Tortfeasors
Conspiracy
Whether interlocutory injunction an appropriate remedy
Whether interlocutory mandatory injunction an appropriate remedy.

Other References:
Corporations Law, Pt 5.3A, s 1321
Federal Court of Australia Act 1976 (Cth), ss 23, 32
Workplace Relations Act 1996 (Cth), Pt XA, ss 298K, 298L, 298T, 298U, 298V

Judgment date: 4 MAY 1998

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ORDERS

1. Special leave to appeal granted.

2. Appeal treated as instituted and heard instanter.

3. Appeal allowed in part.

4. The orders of the Full Court contained in pars 3 and 5 of the order of the Full Court set aside and in lieu thereof order:

(i)

Paragraphs 2, 3 and 5 of the orders made by North J on 21 April 1998 ("the orders of North J") be varied by inserting at the commencement of each paragraph the words: "Subject to par 5A of this order".

(ii)

Add as par 5A of the orders of North J the following:

"5A. The orders in pars 2, 3 and 5 of this order are made without prejudice to the powers of the Administrators of the First, Second, Third or Fourth Respondents during the period of administration."

(iii)

Add as par 10A of the orders of North J the following:

"10A. Without limiting the generality of the liberty to apply reserved in par 10, reserve liberty to any party to apply in relation to the foregoing orders upon 24 hours written notice to all other parties upon the administration of any of the First, Second, Third or Fourth Respondents ending."

(iv)

Add as par 12 of the orders of North J the following:

"12. Orders 1, 2, 3, 4 and 5 of this order shall lapse unless by 4.00pm on 6 May 1998 (or such other time as a Judge shall order before the expiry of that time) the Applicants shall give to the Federal Court of Australia an undertaking by their solicitors or counsel in the terms or to the effect of the undertakings given to the Federal Court but with an amendment of the first undertaking to add after the words 'to pay to any party' the words 'or to any person who is or hereafter becomes a creditor of the First, Second, Third or Fourth Respondents'".

(v)

Vary the order contained in par 4 of the Full Court's order by deleting "these orders" and inserting in lieu "the orders of the High Court of Australia".

5. Remit to the Full Court of the Federal Court any application by a party for an order with respect to costs of the proceedings in the Federal Court.

6. Otherwise dismiss the appeal.

7. The appellants pay the costs in this Court of the First to the Sixth Respondents. Otherwise no order as to costs.