Patrick Stevedores Operations No 2 Pty Limited and ORS v Maritime Union of Australia and ORS M29/1998 [1998] HCATrans 145 (4 May 1998)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M29 of 1998

B e t w e e n -

PATRICK STEVEDORES OPERATIONS NO 2 PTY LTD

First Applicant

LANG CORPORATION LTD

Second Applicant

STRANG PATRICK HOLDINGS PTY LTD

Third Applicant

NATIONAL STEVEDORING HOLDINGS PTY LTD

Fourth Applicant

PLZEN PTY LTD

Fifth Applicant

INTRAVEST PTY LTD

Sixth Applicant

CUMBERLANE HOLDINGS PTY LTD

Seventh Applicant

EQUITIUS PTY LTD

Eighth Applicant

JAMISON EQUITY LTD

Ninth Applicant

SERENADE PTY LTD

Tenth Applicant

SCARABUS PTY LTD

Eleventh Applicant

PATRICK STEVEDORES HOLDINGS PTY LTD

Twelfth Applicant

PATRICK STEVEDORES OPERATIONS PTY LTD

Thirteenth Applicant

and

MARITIME UNION OF AUSTRALIA

First Respondent

PETER BREUKERS, JAKE HAUB and KIERAN COYLE

Second Respondent

PATRICK STEVEDORES NO 1 PTY LTD (Under Administration)

Third Respondent

PATRICK STEVEDORES NO 2 PTY LTD (Under Administration)

Fourth Respondent

PATRICK STEVEDORES NO 3 PTY LTD (Under Administration)

Fifth Respondent

NATIONAL STEVEDORING TASMANIA PTY LTD (Under Administration)

Sixth Respondent

CHRISTOPHER D'ARCY CORRIGAN

Seventh Respondent

WILLIAM CLAYTON

Eighth Respondent

ROBERT DUNN

Ninth Respondent

NATIONAL FARMERS FEDERATION

Tenth Respondent

PCS OPERATIONS PTY LTD

Eleventh Respondents

PCS RESOURCES PTY LTD

Twelfth Respondent

P & C STEVEDORES PTY LTD

Thirteenth Respondent

DONALD GORDON McGAUCHIE

Fourteenth Respondent

PAUL XAVIER HOULIHAN

Fifteenth Respondent

JAMES WILLIAM FERGUSON

Sixteenth Respondent

COMMONWEALTH OF AUSTRALIA

Seventeenth Respondent

PETER KEASTON REITH

Eighteenth Respondent

For Judgment

BRENNAN CJ

GAUDRON J

McHUGH J

GUMMOW J

KIRBY J

HAYNE J

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON MONDAY, 4 MAY 1998, AT 11.30 AM

(Continued from 30/4/98)

Copyright in the High Court of Australia

BRENNAN CJ: This matter was heard in Canberra by the entire Court. Justices McHugh, Gummow, Kirby, Hayne and I would allow the appeal in part, vary the orders of the court below, but otherwise dismiss the appeal with costs. I shall state the full text of the orders we propose when I pronounce the formal order of the Court. I publish our reasons.

GAUDRON J: I would grant special leave to appeal but dismiss the appeal with costs. I publish my reasons.

CALLINAN J: I would grant special leave and allow the appeal. Orders 1 to 6 should be set aside and discharged. The first and second respondents should pay the costs of the applicants and administrator in this Court. I publish my reasons.

BRENNAN CJ: The effect of the orders I am about to pronounce can be ascertained only by reference to the facts. None of the MUA employees has been dismissed by the employer. What happened on 7 April 1998 is that the agreement between the employer companies and the company in the Patrick group which carried on the stevedoring operation was terminated. The employer companies and their workforce were left without work. Administrators were appointed to the employer companies. The interests of the creditors of the employer companies and the personal liability of the Administrators, as well as the rights of the MUA, the employees and the Patrick group have therefore to be reflected in the orders made.

The orders made by Justice North and which are to be varied by this Court provide for the restoration of the Labour Supply Agreements that were in force before 7 April 1998 if the Administrators decide to resume trading. It is not the orders made but a decision to resume trading that may see the employees return to work. The courts do not - indeed, they cannot - resolve disputes that involve issues wider than legal rights and obligations. They are confined to the ascertainment and declaration of legal rights and obligations and, when legal rights are in competition, the courts do no more than define which rights take priority over others. In the orders which follow, priority is given to the powers of the Administrators of the employer companies but, subject to those powers, the orders seek to restore the position that existed prior to 7 April 1998. That position will be achieved, however, only if undertakings be given to protect amongst others the creditors of the employer companies.

The formal orders of the Court are:

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 paragraphs 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 Justice North on 21 April 1998 ("the orders of Justice North") be varied by inserting at the commencement of each paragraph the words: "Subject to paragraph 5A of this order".

(ii) Add as paragraph 5A of the orders of Justice North the following:

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

(iii) Add as paragraph 10A of the orders of Justice North the following:

"10A. Without limiting the generality of the liberty to apply reserved in paragraph 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 paragraph 12 of the orders of Justice North the following:

"12. Orders 1, 2, 3, 4 and 5 of this order shall lapse unless by 4.00 pm 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 paragraph 4 of the Full Court's order by deleting the words "these orders" and inserting in lieu thereof "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.

I publish the order.

The Court will adjourn to a date to be fixed.

AT 11.36 AM THE MATTER WAS CONCLUDED