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Australian Rail, Tram and Bus Industry Union v Metro Trains Melbourne Pty Ltd [2020] FCAFC 81 (18 May 2020)

Last Updated: 18 May 2020

FEDERAL COURT OF AUSTRALIA

Australian Rail, Tram and Bus Industry Union v Metro Trains Melbourne
Pty Ltd [2020] FCAFC 81

Application for leave to appeal from:	Metro Trains Melbourne Pty Ltd v Australian Rail, Tram and Bus Industry Union (No 2) [2019] FCA 2034
File number:	VID 1382 of 2019
Judges:	FLICK, BROMBERG AND ANASTASSIOU JJ
Date of judgment:	18 May 2020
Catchwords:	INDUSTRIAL LAW – protected industrial action – contravention of an order – power of Court to set aside retrospectively PRACTICE AND PROCEDURE – orders nunc pro tunc – power of Court to make – interference with a substantive right PRACTICE AND PROCEDURE – leave to appeal – notices of contention
Legislation:	Administrative Appeals Tribunal Act 1975 (Cth) Administrative Decisions (Judicial Review) Act 1976 (Cth) s 16 Bankruptcy Act 1966 (Cth) Pt III Div 2 Fair Work Act 2009 (Cth) ss 408, 409, 413, 413(5), 415, Pt 4-2 Div 2, s 603 Federal Court of Australia Act 1976 (Cth), ss 22, 28 Federal Court Rules 2011 (Cth) Pt 39 Migration Act 1958 (Cth) ss 476A, 484 Supreme Court of Judicature Act 1873 (UK) s 24
Cases cited:	Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] HCA 3, (2018) 262 CLR 157 Barnes v Fortytwo International Pty Ltd [2010] FCAFC 87 Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571 Commonwealth of Australia v Bank of New South Wales [1949] HCA 47; (1949) 79 CLR 497 Construction, Forestry, Mining and Energy Union v Australian Competition and Consumer Commission [2016] FCAFC 97; (2016) 242 FCR 153 Director of the Fair Work Building Industry Inspectorate v Powell [2016] FCA 1287 Elyard Corp Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 61 FCR 385 Emanuele v Australian Securities Commission [1995] FCA 1762; (1995) 63 FCR 54 Emanuele v Australian Securities Commission [1997] HCA 20, (1997) 188 CLR 114 Esso Australia Pty Ltd v Australian Workers’ Union [2017] HCA 54, (2017) 263 CLR 551 Fewin Pty Ltd v Prentice [2016] FCA 1038 Hartley Poynton Ltd v Ali [2005] VSCA 53, (2005) 11 VR 568 Johnston v Vintage Developments Pty Limited [2006] FCAFC 171 Juul v Northey [2010] NSWCA 211 Luck v University of Southern Queensland  [2018] FCAFC 102 ; (2018) 265 FCR 304 Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457 Re Macks; Ex parte Saint [2000] HCA 62; (2000) 204 CLR 158 Resort Hotels Management Pty Ltd v Resort Hotels of Australia Pty Ltd (1991) 22 NSWLR 730 Safetycare Australia Pty Ltd v Phillip Maxwell Earle [1999] VSC 535 South Johnstone Mill Ltd v Dennis [2007] FCA 1448, (2007) 163 FCR 343 State of New South Wales v Kable [2013] HCA 26, (2013) 252 CLR 118 Turagadamudamu v PMP Ltd [2009] NSWCA 120; (2009) 75 NSWLR 397 VFS Group Pty Ltd v BM2008 Pty Ltd (in liq) [2010] VSCA 277 Westpac Life Insurance Services Ltd v Estate of Late Graham Brian Ugle (No 2) [2019] FCA 1445
Date of hearing:	10 March 2020
Registry:	Victoria
Division:	Fair Work Division
National Practice Area:	Employment & Industrial Relations
Category:	Catchwords
Number of paragraphs:	102
Counsel for the Appellant:	Mr H Borenstein QC with Mr Y B Bakri and Mr C J Tran
Solicitor for the Appellant:	Gordon Legal
Counsel for the Respondent:	Mr F Parry QC with Mr A R M Pollock
Solicitor for the Respondent:	Herbert Smith Freehills

ORDERS

THE COURT ORDERS THAT:

1. The Appellant is granted leave to appeal.
2. The appeal is allowed.
3. The Respondent’s Notice of Contention is dismissed.
4. The order of the primary judge of 6 December 2019 is set aside.
5. Within seven days herewith, the parties file a minute of proposed further orders for the disposition of the appeal and, should the orders proposed not be agreed, short submissions of no more than two pages addressing the further disposition of the appeal.

REASONS FOR JUDGMENT

FLICK J:

1. The present proceeding centres upon the power of this Court to make an order nunc pro tunc which would have the effect of retrospectively revoking an order of this Court which had been contravened. The question assumes importance because s 413(5) of the Fair Work Act 2009 (Cth) (the “Fair Work Act”) provides that a person who wishes to engage in protected industrial action “must not have contravened any orders”. Notwithstanding the past contravening conduct, it was assumed by the parties that if the order could be retrospectively set aside, there would thereafter be no contravention for the purposes of s 413(5).
2. The facts giving rise to the dispute have been helpfully set forth by Bromberg J. They need not be repeated. The opportunity has been taken to also read the reasons for decision of Anastassiou J.
3. The same conclusion has been reached as that reached by Bromberg and Anastassiou JJ, albeit by a different route.
4. It is thus respectfully concluded that the Court has the power to make such an order but the making of such an order involves an exercise of discretion. It is further concluded that the primary Judge erred in concluding that the Court lacked such a power and that the matter should be remitted to his Honour in order for the discretion to be exercised.
5. Expressed as a general proposition, there is no question as to the power of the Court to make any order it considers appropriate to resolve a dispute before it.
6. This Court – as a statutory Court – has extensive powers conferred upon it to make orders both when exercising its original jurisdiction (e.g., Federal Court of Australia Act 1976 (Cth), s 22 (the “Federal Court Act”)) and when exercising its appellate jurisdiction (e.g., s 28 of the Federal Court Act) for the purpose of resolving any dispute before it. Section 22, for example, is a like provision to s 24(7) of the Supreme Court of Judicature Act 1873 (UK): Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457 at 505. Mason J (as his Honour then was) there observed:

Section 5 of the [Federal Court Act] ... creates the Federal Court pursuant to s. 71 of the Constitution. However, the Act does not vest any jurisdiction in the Federal Court. It looks to other statutes ... to give jurisdiction to the court (s. 19(1)). But the Act does arm the court with powers, especially powers to grant relief, as are appropriate to the exercise of such jurisdiction as may be vested in it.
Section 22 [of the Federal Court Act] is such a provision. ...
It is in terms similar to s 32 of the Judiciary Act 1903, as amended. It in turn was taken from s. 24(7) of the English Supreme Court of Judicature Act, 1873, a provision which was designed to eliminate multiplicity of actions and to ensure that the High Court of Justice would grant both legal and equitable relief in the same proceedings...

See also: (1981) 148 CLR at 489-490 per Gibbs J. The powers conferred by the Federal Court Act are further elaborated upon in the Federal Court Rules 2011 (Cth) (the “Federal Court Rules”): e.g., Pt 39.

7. The powers conferred by the Federal Court Act and the Federal Court Rules are subject to such other statutory provisions as confer jurisdiction upon this Court and, in doing so, address the extent to which any of the generally expressed powers may be modified or supplemented: e.g., the Administrative Decisions (Judicial Review) Act 1976 (Cth) (the “Judicial Review Act”), s 16; the Bankruptcy Act 1966 (Cth), Pt III Div 2; the Fair Work Act, Pt 4-2 Div 2; and the Migration Act 1958 (Cth), ss 476A and 484.
8. Orders made by a Judge, when exercising the original jurisdiction of the Court, determine the rights as between the parties then in dispute. Such orders may be made when entertaining an interlocutory application, and such orders may even then be expressly made “until further order” (cf. Resort Hotels Management Pty Ltd v Resort Hotels of Australia Pty Ltd (1991) 22 NSWLR 730 at 731 per McClelland J), or may be varied or set aside when final judgment is given. But all such orders remain subject to such further orders as may be made by a Court on appeal. Orders made by a primary Judge may be set aside on appeal, either from the date upon which orders were first made or as from the date of judgment of the Full Court exercising the appellate jurisdiction of the Court: e.g., Johnston v Vintage Developments Pty Limited [2006] FCAFC 171 per Tamberlin, Jacobson and Rares JJ. It is, of course, the very purpose being pursued by any Appellant to seek a variation of orders previously made. An appeal, it has been said, “is the formal proceeding by which an unsuccessful party seeks to have the formal Order of a court set aside or varied”: Commonwealth of Australia v Bank of New South Wales [1949] HCA 47; (1949) 79 CLR 497 at 625. And, even such orders as may be made by a Full Court on appeal may be set aside by the High Court of Australia: e.g., Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] HCA 3, (2018) 262 CLR 157.
9. But one of the many orders that may be made by the Court includes an order nunc pro tunc. The power to make such an order and the principles applicable to the making of such an order are long established. It is an order which has been made by this Court in a variety of circumstances, including where there is no “legislative intention” that a failure (for example) to obtain leave before the commencement of a proceeding is to render an application a nullity: Emanuele v Australian Securities Commission [1995] FCA 1762; (1995) 63 FCR 54 at 66 per Spender, von Doussa and Hill JJ. On appeal, see: Emanuele v Australian Securities Commission [1997] HCA 20; (1997) 188 CLR 114. See also: South Johnstone Mill Ltd v Dennis [2007] FCA 1448 at [40]- [48], [2007] FCA 1448; (2007) 163 FCR 343 at 350-351 per Middleton J. An order has also been made nunc pro tunc that no filing fee be payable in respect of an originating application: Westpac Life Insurance Services Ltd v Estate of Late Graham Brian Ugle (No 2) [2019] FCA 1445 at [36] per Thawley J.
10. The form of order to be made, in either the primary or the appellate jurisdiction of the Court, is dictated by the relevant legislative context and the facts and circumstances in issue and the nature of the dispute sought to be resolved. In most, if not all cases, the Court when making an order is exercising a discretion as to whether any order should be made at all and – if an order is to be made – the form of order.
11. The power of this Court to make orders, including orders nunc pro tunc, may of course be subject to statutory modification. The jurisdiction of the Court to make orders (for example) pursuant to the Administrative Appeals Tribunal Act 1975 (Cth) or the Judicial Review Act may be expressly confined or modified by another statutory provision: e.g., Migration Act, s 476A. But any modification or restriction upon the generally expressed powers conferred by the Federal Court Act and the Federal Court Rules would have to be clearly and unambiguously expressed.
12. In the present context, no provision of the Fair Work Act expressly seeks to relevantly confine or limit the orders that may be made by this Court when resolving a dispute of the present kind that has arisen under that Act. The provision which attracted the greatest attention in this matter, s 413(5), does not seek to confine the powers of this Court conferred by the Federal Court Act to make such orders as it considers are most appropriate. Nor does it impliedly seek to do so.
13. As a matter of statutory construction, in Esso Australia Pty Ltd v Australian Workers’ Union [2017] HCA 54 at [49]- [52], [2017] HCA 54; (2017) 263 CLR 551 at 579-582 (“Esso Australia”), Kiefel CJ, Keane, Nettle and Edelman JJ endorsed a construction of s 413(5) which permitted a result that an inadvertent contravention of an order would not necessarily strip an entity of a future ability to engage in protected industrial action. Albeit in the context of the power of the Fair Work Commission to make an order retrospectively, their Honours there observed at 579 to 580:

[49] The AWU’s contention that to construe s 413(5) in the manner contended for by Esso would be productive of capricious, unjust results is also unpersuasive. The Fair Work Commission has broad powers under s 603 of the Fair Work Act to vary or revoke orders, including power to vary or revoke orders retrospectively. The very considerable breadth of the power accorded by s 603 stands in contrast to the more limited power accorded by s 602 to correct “obvious errors”. Thus, although it has been said that courts should eschew the exercise of inherent power to vary an order nunc pro tunc where the variation would have the effect of altering the substantive rights of the parties, the statutory power accorded by s 603 is different. ...
(footnotes omitted)

Their Honours went on to cite a number of authorities canvassing the ability to make an order retrospectively and continued as follows at 580 to 581:

[49] ... And the same is surely true of the Fair Work Commission’s statutory power under s 603 of the Fair Work Act to vary or revoke orders relating to a proposed agreement or matters arising during the bargaining for such an agreement. To adopt and adapt the language of Kirby J in Emanuele v Australian Securities Commission [(1997) [1997] HCA 20; 188 CLR 114 at 156] it may be inferred that Parliament contemplated that oversight and inadvertence would sometimes occur for which the Fair Work Commission’s powers of variation and revocation under s 603 would be available.
(footnote omitted)

Of importance is the “inference” drawn by their Honours that Parliament envisaged that there may be some contraventions which would not strip an entity of an ability to engage in future protected industrial action and the recognition by the Parliament that such a result could be achieved by the making of a retrospective order.

14. In Esso Australia, their Honours went on to give content to those circumstances which could attract the exercise of the discretion of the Fair Work Commission to make an order retrospectively as follows at 581:

[50] Hence, if a document cannot be filed within the time specified in an order made by the Fair Work Commission, an application might be made for the time to be enlarged, or alternatively for the order to be revoked and a new order made allowing greater time, and, if there were good reason for the failure to file the document timeously, no doubt time would be enlarged, especially when it is appreciated that to refuse to enlarge time would preclude the possibility of protected industrial action by reason of s 413(5). Similarly, if a document were filed within time but later found not to comply with requirements imposed by the Fair Work Commission, and there was a satisfactory excuse for the failure in compliance, time in which to file a document complying with requirements might be enlarged retrospectively. If, in exercise of the power conferred by s 603, an order were made by the Fair Work Commission varying or revoking a previous order with effect from a time earlier than the alleged contravention, the effect would be that there would not have been a contravention of the order. If, however, it appeared that the failure to file the document on time or to file what was required by the previous order was the result of contumaciousness or unacceptably careless disregard for the terms of the order, or if it were thought that to alter the order retrospectively would amount to an inappropriate or unfair interference with the rights of the parties, it might be expected that the Fair Work Commission would decline to exercise the power conferred by s 603 with the effect that the immunity attaching to protected industrial action would not arise.

15. Of present importance is not so much the recognition of the power conferred upon the Commission by s 603 of the Fair Work Act to make an order retrospectively, but the recognition by their Honours of the “inferred” Legislative intent that acts, which at the time they were committed would otherwise constitute a contravention of an order and hence attract the operation of s 413(5), could retrospectively be stripped of that character. In an appropriate case it was thus envisaged by their Honours that an order could be made retrospectively even though an intervening contravention of an order had occurred. The “inferred” Legislative intent was one founded upon a conclusion that not all conduct of a contravening entity necessarily attracted the consequence that the entity could not thereafter engage in protected industrial action; it was not an inference founded upon any distinction as to whether the making of a retrospective order was one made by the Commission or a superior court of record.
16. Repeated judicial decisions nevertheless maintain that an order should not be made nunc pro tunc where the making of such an order would interfere with a substantive right: e.g., Esso Australia [2017] HCA 54 at [49], (2017) 263 CLR at 580, citing (inter alia) Hartley Poynton Ltd v Ali [2005] VSCA 53 at [24]- [80] and [113], [114][2005] VSCA 53; , (2005) 11 VR 568 at 581-609 per Ormiston JA, Buchanan and Eames JJA agreeing at 620. Whether such an order should not be made by reason of the Court lacking the power to make such an order, or should be refused in the exercise of the Court’s discretion, is a question which can presently be left to one side. No question arises in the present proceeding of the order sought interfering with a substantive right. No such right can be inferred from either the Fair Work Act itself or from the form of order sought to be revoked. Insofar as the Fair Work Act is concerned, no question arises as to that Act (and s 413(5) in particular) because:
    • section 413(5) is expressed in terms of removing an entitlement to engage in protected industrial action if there has been a contravention – as opposed to conferring a right upon some other person; and
    • the decision in Esso Australia does not contemplate the subsection conferring any such right.

Nor does the form of order made by the primary Judge operate to confer any substantive right because the form of order:

• is more in the nature of the prescription of an administrative requirement whereby notice is to be given to those affected.

17. A different statutory provision, obviously enough, may not permit of an inference that a Court can make an order altering the consequences legislatively imposed: e.g., Hartley Poynton Ltd v Ali [2005] VSCA 53, (2005) 11 VR 568.
18. The power of this Court to make an order nunc pro tunc is certainly no less or more confined than that conferred upon the Commission by s 603 of the Fair Work Act. And the fact that orders of this Court are valid until set aside as explained in State of New South Wales v Kable [2013] HCA 26 at [32], (2013) 252 CLR 118 at 133 (“Kable”) says nothing as to the power of this Court to set aside an order previously made.
19. Whether or not that power should be exercised, and the form of any order to be made, remains a matter within the discretion of the Court.
20. On the facts of the present case, it is respectfully concluded that the primary Judge determined that he lacked power to make an order nunc pro tunc. So much is apparent from his Honour’s identification of what he considered to be the “fundamental proposition” established by Kable and his conclusion expressed as follows:

[59] Consistently with that fundamental proposition, orders that are intended to have retrospective operation may only be made if they affect procedural, not substantive rights. Such orders “cannot deem something to exist which does not exist and cannot deem something to have remained in existence which no longer remains in existence” (Hartley Poynton Ltd v Ali [2005] VSCA 53; (2005) 11 VR 568 at 613, [91]). Likewise, retrospective orders cannot deem something that did exist (here, valid and binding orders) never to have existed or be deemed never to have been made. But that would be the precise effect of the making of the orders sought by the RTBU in this case. In the context of contempt proceedings see Papas v Grave [2013] NSWCA 308 at [65]- [70] (Emmett JA, Basten JA and Sackville AJA agreeing); Ross v Lane Cove Council [2014] NSWCA 50; (2014) 86 NSWLR 34 at 39, [17] (Leeming JA, Meagher JA and Tobias AJA agreeing)(“... it remains a contempt to disobey orders that are subsequently set aside”); Rumble v Liverpool Plains Shire Council [2015] NSWCA 125; (2015) 90 NSWLR 506 at 528, [114]- [116] (Basten JA, with whom McColl JA agreed)).

Clearly enough, his Honour concluded that a “substantive right” would be “affected” if an order was made nunc pro tunc and that in such circumstances the Court could not “deem something that did exist ... never to have existed...”.

21. In so concluding, with respect, his Honour erred. Just as the Fair Work Commission could make an order retrospectively if (for example) a contravention occurred by reason of “oversight and inadvertence”, this Court could do likewise. The decision in Kable says nothing to the contrary. Whether or not such an order should be made in the exercise of the Court’s discretion was a matter which, on his Honour’s approach, was a question not arising.
22. Other than concluding that the matter should be remitted to the primary Judge for the exercise of the discretion, concurrence is otherwise expressed with the orders proposed by Bromberg J as to the disposition of the proceeding.

Associate:


Dated: 18 May 2020

REASONS FOR JUDGMENT

BROMBERG J:

23. This is an appeal from a decision of a judge of this Court not to set aside nunc pro tunc, that is retrospectively and from their outset, interlocutory orders made by Snaden J on 9 August 2019 requiring the appellant (“RTBU”) to notify its members that their proposed industrial action was enjoined.
24. The following provisions of the Fair Work Act 2009 (Cth) (“FW Act”) are relevant to an understanding of the background facts and the issues raised on the appeal.
25. Section 415 of the FW Act provides that no action lies under any law (written or unwritten) in relation to any industrial action that is “protected industrial action” unless it has involved or is likely to involve personal injury, willful or reckless destruction of, or damage to, property, or the unlawful taking, keeping or use of property. Industrial action will be protected industrial action for a proposed enterprise agreement under s 408(a) if it is an “employee claim action” for the agreement in the terms of s 409 and if it meets the “common requirements” in s 413.
26. Section 413 specifies the “common requirements” for industrial action to qualify as protected industrial action, relevantly, as follows:

(5) The following persons must not have contravened any orders that apply to them and that relate to, or relate to industrial action relating to, the agreement or a matter that arose during bargaining for the agreement:

(a) if the person organising or engaging in the industrial action is a bargaining representative for the agreement − the bargaining representative;

27. Broadly stated, the relevant background is as follows. The RTBU and the respondent (“Metro”) were involved in bargaining for a new enterprise agreement to replace the Metro Trains Melbourne Pty Ltd Rail Operations Enterprise Agreement 2015-2019, which expired on 30 June 2019. In the context of that bargaining, the RTBU and its members employed by Metro advised of their intention to organise and take protected industrial action against Metro from 12 August 2019. In response Metro commenced urgent proceedings in this Court seeking to enjoin the proposed industrial action on the basis that it was not protected industrial action as provided for by the FW Act and was therefore unlawful. Holding, inter alia, that there was a serious issue to be tried as to whether the proposed industrial action was protected industrial action, Snaden J restrained the proposed industrial action and made ancillary orders requiring the RTBU to immediately take various steps to notify its members and the general public that the proposed action was enjoined.
28. The RTBU and its members complied with the order made by Snaden J restraining the proposed industrial action. However, shortly after the deadline had expired for the RTBU to take steps required by two of the ancillary orders, Metro advised the RTBU that it had failed to comply with those ancillary orders and as a consequence of the operation of s 413(5) of the FW Act it was now barred from organising the taking of protected industrial action. Relying on the operation of s 413(5), Metro threatened further proceedings unless the RTBU undertook (in effect) that no further industrial action would be taken by it and its members in relation to the bargaining for the new enterprise agreement.
29. As a consequence, the RTBU itself brought an application to the primary judge which, as the primary judge stated at [42], was directed at relieving the RTBU of the consequences of s 413(5) of the FW Act.
30. The primary judge dismissed the RTBU’s application. The RTBU seeks leave to appeal that dismissal.
31. As the order made by the primary judge was interlocutory, the RTBU requires leave to appeal. The principles for leave to appeal are well settled and were not in contest: see Construction, Forestry, Mining and Energy Union v Australian Competition and Consumer Commission [2016] FCAFC 97; (2016) 242 FCR 153 at [13]- [17] (Dowsett, Tracey and Bromberg JJ). I am satisfied, for reasons that will become apparent, that in all the circumstances of the case, the judgment of the primary judge is attended by sufficient doubt to warrant it being reconsidered by the Full Court and that substantial injustice would result if leave were refused. Leave to appeal should be granted. All parties proceeded on the basis that if leave is granted the appeal should be dealt with instanter.

THE PRIMARY JUDGE’S DECISION

32. Before the primary judge the RTBU conceded its failure to fully comply with order 3 of the orders of Snaden J, in that, in the time available, it had not posted the notice required to be posted at all of the train stations concerned. Metro alleged that the RTBU had also breached orders 2, 5 and 6. The RTBU sought that orders 2, 3, 5 and 6 be revoked retrospectively.
33. The primary judge assessed whether or not the orders had been complied with by reference to the series of events that had occurred after the pronouncement of Snaden J’s orders. The primary judge then assessed whether or not the orders of Snaden J could and should be revoked retrospectively from their outset.
34. Beyond arguments as to the validity of the orders made by Snaden J, the submissions made to the primary judge focussed upon whether the order sought by the RTBU would have the effect of altering the substantive rights of Metro. Those submissions are not addressed in the reasoning of the primary judge. It would seem that that issue was overtaken by what the primary judge referred to at [52] as “a more fundamental question” which the primary judge set out at [52] and for which his Honour requested further submissions from the parties as to whether, given that consistently with State of New South Wales v Kable (2013) 252 CLR 118 (Kable (No 2)), the orders of Snaden J “remained valid at the time of non-compliance”, the orders sought by the RTBU would have the consequence of the RTBU not having contravened the orders of Snaden J for the purpose of s 413(5) of the FW Act. The primary judge’s reasons refer to the submissions provided by the parties on that question. At [57]‑[59] the primary judge then relevantly said:

[57] I cannot accept the RBTU’s submission. As the plurality makes clear in Kable at 133, [32]:

It is now firmly established [citing Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571 at 590, 598, 606-607; DMW v CGW [1982] HCA 73; (1982) 151 CLR 491 at 501‑505, 507; R v Ross-Jones; Ex parte Green (1984) 156 CLR 185 at 193‑194, 222-223; Ex parte Marsh [1985] HCA 67; (1985) 157 CLR 351 at 374-375; Re Macks [2000] HCA 62; (2000) 204 CLR 158 at 177-178 [19]- [23], 183-187 [46]‑[57], 235-237 [214]-[220], 247-249 [253]-[257], 278-279 [342]‑[344]] by the decisions of this Court that the orders of a federal court which is established as a superior court of record are valid until set aside, even if the orders are made in excess of jurisdiction (whether on constitutional grounds or for reasons of some statutory limitation on jurisdiction). It was not submitted that any of these decisions should be reopened and there would be powerful reasons not to disturb such a long-established stream of authority ...

[58] As the plurality went on to explain, decisions made in the exercise of judicial power are given effect despite the particular decision later being set aside or reversed, because the orders of a superior court of record are treated as valid until set aside (Kable at 135, [39]):

Were this not so the exercise of judicial power could yield no adjudication of rights and liabilities to which immediate effect could be given. An order made by a superior court of record would have no more than provisional effect until either the time for appeal or review had elapsed or final appeal or review had occurred. Both the individuals affected by the order, and in this case the Executive, would be required to decide whether to obey the order made by a court which required steps to be taken to the detriment of another. The individuals affected by the order, and here the Executive, would have to choose whether to disobey the order (and run the risk of contempt of court or some other coercive process) or incur tortious liability to the person whose rights and liabilities are affected by the order.

[59] Consistently with that fundamental proposition, orders that are intended to have retrospective operation may only be made if they affect procedural, not substantive rights. Such orders ‘cannot deem something to exist which does not exist and cannot deem something to have remained in existence which no longer remains in existence’ (Hartley Poynton Ltd v Ali [2005] VSCA 53; (2005) 11 VR 568 at 613, [91]). Likewise, retrospective orders cannot deem something that did exist (here, valid and binding orders) never to have existed or be deemed never to have been made. But that would be the precise effect of the making of the orders sought by the RTBU in this case. In the context of contempt proceedings see Papas v Grave [2013] NSWCA 308 at [65]- [70] (Emmett JA, Basten JA and Sackville AJA agreeing); Ross v Lane Cove Council [2014] NSWCA 50; (2014) 86 NSWLR 34 at 39, [17] (Leeming JA, Meagher JA and Tobias AJA agreeing)(‘... it remains a contempt to disobey orders that are subsequently set aside’); Rumble v Liverpool Plains Shire Council [2015] NSWCA 125; (2015) 90 NSWLR 506 at 528, [114]- [116] (Basten JA, with whom McColl JA agreed)).

35. His Honour’s reasons then moved to the disposition of the appeal concluding that orders 2 and 3 applied to the RTBU and were contravened by it, and that the RTBU thus contravened orders that applied to it within the meaning of s 413(5) of the FW Act. The primary judge declined to make the orders sought by the RTBU and dismissed the application.

CONSIDERATION

Which orders made by Snaden J were contravened?

36. It is convenient to commence with grounds 4 and 5 of the Notice of Appeal. Ground 6 is merely supplementary to those grounds and need not be further considered. Grounds 4 and 5 challenge the following findings made by the primary judge at [49]:

[49] In my view, notwithstanding the RTBU’s submissions that order 2 was too imprecise or should instead be construed to have been directed at the Victorian Branch of the RTBU, it also contravened order 2. The order is directed to the RTBU and it was ordered to post a copy of the relevant notice ‘on the home page of the respondent’s internet site’, which on any view it did not do.

37. Order 2 of the orders made by Snaden J was in the following terms:
    2. Not later than 11:00pm on Friday, 9 August 2019, the respondent generate a notice on its letterhead in the form of Attachment 1 to these orders, signed by its Victorian Branch Secretary, Ms Luba Grigorovitch, and:

(a) post a copy of the notice on the home page of the respondent’s internet site;
(b) ensure that the notice posted in accordance with order 2(a) above remains so posted until 11:59pm on Monday, 19 August 2019.
(c) post a copy of the notice on the home page (whether described as a ‘timeline’, ‘feed’, or otherwise) of each online social media account (including accounts on the social media platforms Facebook and Twitter) normally used by the respondent to communicate with its members who are employed by the applicant, and which are accessible by those members;
(d) ensure that the notice posted in accordance with order 2(c) above remains posted in a manner that is immediately visible on the home page (whether by ‘pinning’ the posted notice or otherwise) until 11:59pm on Monday, 19 August 2019; and
(e) provide a copy of the notice to the applicant.

38. The notice referred to in order 2 was “Attachment 1” to the orders (“notice”) and is in the following terms:

Attachment 1
On 5 August 2019, the Australian Rail, Tram and Bus Industry Union issued a Notice of Intention to Take Industrial Action against Metro Trains Melbourne Pty Ltd (Metro) from Monday, 12 August 2019.
Item 1 of the Notice described action in the form of ‘keeping open the passenger ticket barriers at train stations’ on Monday, 12 August 2019 between 00:01am and 23:59pm.
Item 13 of the Notice described action in the form of ‘keeping open the passenger ticket barriers at train stations’ on Monday, 19 August 2019 between 00:01am and 23:59pm.
The RTBU has withdrawn Items 1 and 13. The RTBU directs its members not to engage in the actions notified at Items 1 and 13 of the Notice.
The RTBU wishes to clarify that:

• commuters travelling on the Melbourne metropolitan train network cannot have a ‘free travel day’ or otherwise travel for ‘free’, on days on which RTBU members engage in industrial action (or otherwise take action against Metro);
• it is not lawful or permissible for commuters to travel on the Melbourne metropolitan train network on days on which RTBU members engage in protected industrial action (or otherwise take action against Metro), without ‘touching on’ or ‘touching off’ with a Myki card; and
• commuters travelling on the Melbourne metropolitan train network without touching on or touching off with a Myki card on days on which RTBU members engage in protected industrial action (or otherwise take action against Metro), may be issued with an infringement notice or otherwise contravene the law.

39. Ground 4 challenges the primary judge’s finding that order 2 was not too imprecise and thus incapable of compliance. Ground 5 challenges the primary judges finding that order 2 was contravened because the RTBU failed to post a copy of the notice “on the homepage of the respondent’s internet site”. In that respect, the RTBU contended that by posting the relevant notice on the homepage of the internet site of the Victorian Branch of the RTBU, the RTBU complied with para (a) of order 2. In my view that submission should be accepted.
40. The description in order 2 “the respondent’s internet site” was capable of being a reference to any internet site of the RTBU whether operated by a branch or by the union’s National Office. However, the order was directed at a single internet site and the context spoke volumes as to which of the RTBU’s internet sites it was directed to. The proposed industrial action was organised by the Victorian Branch and was to be taken by its Victorian members employed by Metro in Victoria. The order required the notice to be signed by the Victorian Branch Secretary of the RTBU. The terms of para (c) of order 2 identify the targeted audience of the notice as the members of the union employed by Metro. Order 5 directed that the notice to be published in Victorian newspapers, The Age and the Herald-Sun. When read in context, para (a) of order 2 was an intended reference to the internet site of the Victorian Branch of the RTBU.
41. Implicit in the findings made by the primary judge at [49] is that the internet site referred to in para (a) of order 2 was the RTBU’s internet site operated by its National Office. With respect to the primary judge, the preferable conclusion given the context in which the order was made, was that the RTBU’s internet site operated by the Victorian Branch was the intended internet site of the RTBU on which the notice was to be posted. As the RTBU did post the notice on that site, the RTBU complied with the order. The primary judge erred in concluding that para (a) of order 2 was not complied with. Ground 5 of the Notice of Appeal should be allowed. It is unnecessary to consider ground 4.
42. There was no contest that the RTBU had contravened order 3 of the orders made by Snaden J. That order was in the following terms:

Not later than 4:00pm on Saturday, 10 August 2019, the respondent post a copy of the notice referred to in order 2 on all noticeboards at the applicant’s train stations normally used by the respondent for communicating with the applicant’s employees

43. The evidence before the primary judge was that despite substantial effort in the limited time available, the RTBU had not posted a copy of the notice at all of the approximately 220 train stations that the order refers to.

Should the ancillary orders of Snaden J have been retrospectively revoked?

44. The basis upon which the primary judge dismissed the RTBU’s application was in contest.
45. Metro contended that the primary judge rejected the RTBU’s application for an order revoking the orders of Snaden J in the exercise of the Court’s discretion to refuse to make an order with retrospective effect.
46. That contention was succinctly put by Metro as follows:

[6] Properly understood, his Honour applied principles derived from Ormiston JA’s extensive analysis (Buchanan and Eames JJA agreeing) in Hartley Poynton Ltd v Ali [2005] VSCA 53; (2005) 11 VR 568 (Hartley Poynton) in declining to exercise discretion to revoke the 9 August Orders nunc pro tunc on the ground that to do so would alter substantive (rather than merely procedural) rights. His Honour’s reference to Kable No 2 underscored the policy rationale behind eschewing revocation of superior court orders nunc pro tunc. There was no error, appellable or otherwise, in that approach.
[7] The primary judge’s ratio decidendi appears at [59] of the Judgment. That ratio did not directly apply Kable No 2. Rather, the primary judge used the policy rationale articulated by the majority in Kable No 2 (at [39]) to contextualise two principles derived from Hartley Poynton, which his Honour then went on to apply in dismissing the RTBU’s application.

47. The difficulty with that submission is that, although at [59] the primary judge did state by way of principle that “orders that are intended to have retrospective operation may only be made if they affect procedural, not substantive rights”, no affected substantive right of Metro was identified in his Honour’s reasons and there is no reasoning or basis given for any conclusion that by the making of the order with retrospective effect sought by the RTBU, a substantive right of Metro would be affected. Nor is there any discussion as to why, in the exercise of the Court’s discretion, the RTBU’s application for a retrospective order should be refused. Additionally, the characterisation proffered by Metro is disjointed from the reasoning of the primary judge which preceded [59] including all of the discussion in relation to what the primary judge referred to as the “more fundamental question”.
48. The RTBU contended that the primary judge refused its application because he considered such an order to be inutile. It postulated that the primary judge rejected the RTBU’s application having answered in the negative the “more fundamental question” he posed as to the meaning and effect of s 413(5) of the FW Act. That contention was made in the following terms in the submission of the RTBU:

The primary judge dismissed the revocation application on the basis that revocation of any order breached by the RTBU nunc pro tunc would not avoid the application of s 413(5) of the FW Act, because revocation nunc pro tunc would not alter the historical fact that there had been an order made that had, in fact, been contravened in the past: Pt A tab 5 [59]. Thus, revocation of a court order nunc pro tunc provided no pathway to a person to avoid the operation of s 413(5) should that person have contravened that court order.

49. The primary judge’s reasoning at [59] indicates that the primary judge’s decision determinatively turned on his acceptance of what appears as a statement of principle at [59] as follows:

Likewise, retrospective orders cannot deem something that did exist (here, valid and binding orders) never to have existed or to be deemed never to have been made.

50. That statement, for the reasons that follow, essentially describes what it is that a nunc pro tunc order does. The sentence supports the view that the primary judge proceeded on the basis that he lacked the power to make an order with the effect he there described. On that basis it may be concluded, as Flick and Anastassiou JJ have concluded, that the primary judge refused the RTBU’s application because he was of the view that this Court lacked the power to make a nunc pro tunc order of the kind sought by the RTBU.
51. As Beazley JA (Ipp JA agreeing and Campbell JA agreeing generally) explained in Turagadamudamu v PMP Ltd [2009] NSWCA 120; (2009) 75 NSWLR 397 at [48]:

Nunc pro tunc means, literally, ‘now instead of then’. E R H Ivamy, Mozley and Whiteley’s Law Dictionary 11th ed (1993) Sydney, Butterworths at 184, defines nunc pro tunc as: ‘Now instead of then; meaning that a judgment is entered, or document enrolled, so as to have the same legal force and effect as if it had been entered or enrolled on an earlier day.’

52. What such an order does is “antedat[e] the effect” of the order made: Hartley Poynton Ltd v Ali [2005] VSCA 53; (2005) 11 VR 568 at [24] (Ormiston JA with Buchanan and Eames JJA agreeing). Where an order revokes an earlier order nunc pro tunc, the revocation is taken to have been done as at the antedated time, that is, at the time when the earlier order was first made. The earlier order is treated as revoked upon its making and not to have existed from that time.
53. There are many examples of nunc pro tunc orders which have the effect of deeming something to exist which did not exist. It suffices to identify two. In Emanuele v Australian Securities Commission [1997] HCA 20; (1997) 188 CLR 114, a majority of the High Court held that leave to apply for a winding up order could be granted nunc pro tunc. In Barnes v Fortytwo International Pty Ltd [2010] FCAFC 87 (Stone, Jacobson and Nicholas JJ), in the context of a party having used documents in one proceeding which it had been provided in another proceeding without first obtaining leave of the Court to do so, the Full Court held that leave could be granted nunc pro tunc.
54. The application of the slip rule is another example of an order made with retrospective effect which removes or corrects an earlier order. It is well established in that context that “the ‘later order corrects the earlier order, and speaks from the date of the earlier order, which then operates with full force as corrected.’ The earlier order is deemed or treated as having always operated as corrected”: VFS Group Pty Ltd v BM2008 Pty Ltd (in liq) [2010] VSCA 277 at [25] (Tate JA with Nettle and Harper JJA agreeing). See also Elyard Corp Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 61 FCR 385 at 391-392 (Lockhart J with Black CJ agreeing) and at 400‑401 (Lindgren J with Black CJ agreeing); Luck v University of Southern Queensland  [2018] FCAFC 102 ; (2018) 265 FCR 304 at  [69]  (Mortimer J with Logan J agreeing).
55. On the basis of those authorities and for the reasons given by Flick J, in my view, this Court undoubtedly has the power to revoke its own orders retrospectively from their outset and thereby deem an order previously made to have never been made.
56. The traditional capacity of a Court to make orders of this kind is not impaired by the principle in Kable (No 2) – that an order of a superior court is valid and must be complied with until set aside. That principle has a very long pedigree: Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571 at 590 (Rich J with Latham CJ agreeing at 585), at 598-599 (McTiernan J), at 607 (Williams J); Re Macks; Ex parte Saint [2000] HCA 62; (2000) 204 CLR 158 at [19]- [23] (Gleeson CJ), at [53] and [57] (Gaudron J), at [219] (Gummow J), at [256]-[257] (Kirby J), at [344] (Hayne and Callinan JJ). It is not a principle which engages with the power to make orders which revoke a prior order with retrospective effect, although the rationale for the principle should be seen to be consistent with the principle expressed by Kiefel CJ, Keane, Nettle and Edelman JJ in Esso Australia Pty Ltd v Australian Workers’ Union [2017] HCA 54; (2017) 263 CLR 551 at [49] “that courts should eschew the exercise of inherent power to vary an order nunc pro tunc where the variation would have the effect of altering the substantive rights of the parties”.
57. I also respectfully agree with each of Flick and Anastassiou JJ that s 413(5) of the FW Act does not limit or proscribe this Court’s powers to make an order nunc pro tunc. When [59] of the primary judge’s reasons is read in the context of the prior discussion, framed as it is by the “more fundamental question” which his Honour posed for the parties as to the meaning of s 413(5) of the FW Act, it is possible, despite the view I prefer, that the primary judge refused the RTBU’s application because he thought the order it sought was inutile. Given that grounds 1 and 2 of the RTBU’s Notice of Appeal address that possibility, I should also here address it.
58. If the primary judge so held, his Honour should be understood to have proceeded on the basis that, for the purposes of s 413(5) of the FW Act, retrospective orders cannot deem valid and binding orders never to have existed and cannot deem the contravention of such orders never to have occurred. If that be so, the primary judge must have understood the words “not have contravened any orders” in s 413(5) to engage a contravention of an order that existed at the time of the contravention irrespective of whether that order had been revoked retrospectively from the outset.
59. If that is the basis upon which the primary judge dismissed the RTBU’s application, grounds 1 and 2 of the RTBU’s Notice of Appeal challenge that holding and, in my view, should be upheld. With respect to the learned primary judge, the conclusion that the nunc pro tunc revocation of an order which had been contravened would nevertheless engage s 413(5), is inconsistent with the observations made by the majority in Esso at [49]-[50].
60. Before setting out the reasoning in Esso, it is necessary to provide some context.
61. The relevant facts in Esso were that the Fair Work Commission made an order that the Australian Workers’ Union (“AWU”) stop organising certain industrial action. The AWU continued to organise the industrial action in contravention of that order. The majority (Kiefel CJ, Keane, Nettle and Edelman JJ) found that s 413(5) was intended to apply to past contraventions of orders, such that any person who had not previously complied with a pertinent order was not entitled to the immunity in s 415 of the FW Act. Therefore, because the AWU had breached a relevant order during bargaining for the agreement, it was incapable of satisfying the common requirement specified in s 413(5) and any industrial action organised by it in that bargaining period would not be protected pursuant to s 415 of the FW Act.
62. In resisting the construction of s 413(5) ultimately preferred by the majority, the AWU contended that such a construction of s 413(5) would be productive of capricious and unjust results; that if a bargaining representative contravened an order related to the bargaining for a new agreement, no matter how insignificant or venial the contravention, that the bargaining representative would thereafter be precluded from the protection of s 415. The majority found that this contention was unpersuasive for the reasons set out at [49]-[50] under the heading “Not productive of capricious, unjust results” (emphasis added):

[49] The AWU's contention that to construe s 413(5) in the manner contended for by Esso would be productive of capricious, unjust results is also unpersuasive. The Fair Work Commission has broad powers under s 603 of the Fair Work Act to vary or revoke orders, including power to vary or revoke orders retrospectively. The very considerable breadth of the power accorded by s 603 stands in contrast to the more limited power accorded by s 602 to correct ‘obvious errors’. Thus, although it has been said that courts should eschew the exercise of inherent power to vary an order nunc pro tunc where the variation would have the effect of altering the substantive rights of the parties, the statutory power accorded by s 603 is different. As was observed in George Hudson Ltd v Australian Timber Workers’ Union in relation to the retrospective operation of the Conciliation and Arbitration Act, the provisions of that Act were not to be read down as if confined to a prospective operation at the expense of the ‘great public policy’ which the Act embodied, namely, that of encouraging and maintaining ‘industrial peace in the Commonwealth’. So also, in Australian Tramway and Motor Omnibus Employees Association v Commissioner for Road Transport and Tramways (NSW), the Court held that the Conciliation Commissioner had power to vary the terms of an award that had expired (but continued in force by operation of statute). As Murphy J stated in R v Gough; Ex parte Key Meats Pty Ltd, it was clear that the Australian Conciliation and Arbitration Commission was entitled to vary or set aside an award provision in accordance with the Act even if its new provision operated ‘locally, temporarily, prospectively or retrospectively, provided the provision would have been within the scope or ambit of the original dispute’. The same considerations informed this Court’s decision in Re Dingjan; Ex parte Wagner that the power to set aside or vary the terms of a harsh or unfair contract under ss 127A and 127B of the Industrial Relations Act could be exercised in relation to a contract that had been discharged. And the same is surely true of the Fair Work Commission’s statutory power under s 603 of the Fair Work Act to vary or revoke orders relating to a proposed agreement or matters arising during the bargaining for such an agreement. To adopt and adapt the language of Kirby J in Emanuele v Australian Securities Commission, it may be inferred that Parliament contemplated that oversight and inadvertence would sometimes occur for which the Fair Work Commission’s powers of variation and revocation under s 603 would be available.
[50] Hence, if a document cannot be filed within the time specified in an order made by the Fair Work Commission, an application might be made for the time to be enlarged, or alternatively for the order to be revoked and a new order made allowing greater time, and, if there were good reason for the failure to file the document timeously, no doubt time would be enlarged, especially when it is appreciated that to refuse to enlarge time would preclude the possibility of protected industrial action by reason of s 413(5). Similarly, if a document were filed within time but later found not to comply with requirements imposed by the Fair Work Commission, and there was a satisfactory excuse for the failure in compliance, time in which to file a document complying with requirements might be enlarged retrospectively. If, in exercise of the power conferred by s 603, an order were made by the Fair Work Commission varying or revoking a previous order with effect from a time earlier than the alleged contravention, the effect would be that there would not have been a contravention of the order. If, however, it appeared that the failure to file the document on time or to file what was required by the previous order was the result of contumaciousness or unacceptably careless disregard for the terms of the order, or if it were thought that to alter the order retrospectively would amount to an inappropriate or unfair interference with the rights of the parties, it might be expected that the Fair Work Commission would decline to exercise the power conferred by s 603 with the effect that the immunity attaching to protected industrial action would not arise.

63. There can be no doubt, that the majority considered that a valid and binding order made by the Fair Work Commission that had been contravened could be revoked retrospectively from the outset and that, for the purposes of s 413(5), “the effect would be that there would not have been a contravention of the order”. In arriving at that view the majority must have construed the words “not have contravened any orders” in s 413(5) as not engaging the contravention of an order that had been revoked with retrospective effect prior to the date of the contravention. The primary judge must have come to the opposite conclusion if his Honour proceeded on the basis here postulated. Although his Honour briefly referred to Esso (at [45]) there is no indication in his Honour’s reasons as to whether the reasoning of the majority at [49]-[50] was considered.
64. Metro contended that the observations in Esso were of no assistance because they were only applicable to orders made and revoked with retrospective effect by the Fair Work Commission and not to orders made and revoked by a court. Metro relied upon the observations made in Esso being focused on orders made by the Fair Work Commission and not by a court and that the power there addressed was the power conferred upon the Fair Work Commission by s 603 of the FW Act to revoke its orders with retrospective effect. Although some reference is made at both [49] and [50] to orders made with retrospective effect by courts, it is true that the focus of those paragraphs is on orders made by the Fair Work Commission and upon the Fair Work Commission’s capacity to make orders revoking its own orders with retrospective effect.
65. That that should be so is not surprising. The majority in Esso was dealing with the proper construction of s 413(5) and the AWU’s contention that Esso’s construction of that provision would be productive of capricious and unjust results. The contention made by the AWU was made in the context of a contravention of an order of the Fair Work Commission, and its hypothetical example of the contravention of an order (at [26]) would have been read by the majority as a contravention of an order of the Fair Work Commission. The majority answered the AWU’s contention by reference to the hypothetical example in the context in which it was made.
66. What, for current purposes, is material in the answer given by the majority to the contention put by the AWU, is what can be discerned about the proper construction of the words “not have contravened any orders” in s 413(5) of the FW Act. The words “any orders” obviously have application to any orders of either the Fair Work Commission or a court. Section 413(5) draws no distinction between orders of the Fair Work Commission and orders of a court. In that context, there is no conceivable basis for thinking that the majority in Esso intended that the view expressed by them about the meaning of s 413(5), and in particular the effect under that provision of the retrospective revocation of an order that had been contravened, was limited to orders made only by the Fair Work Commission. There is no basis for construing the words of s 413(5) as providing for a different effect depending upon whether an order of the Commission is contravened but then revoked with retrospective effect as compared to the case of the contravention of an order of the court revoked with retrospective effect. As the RTBU contended, s 413(5) cannot be construed as speaking with two voices.
67. In answering the AWU’s contention, the majority in Esso did (at [49]) address the question of the power to make orders with retrospective effect. The majority there stated that the power reposed in the Fair Work Commission by s 603 of the FW Act was “different” to the inherent power of a Court to vary an order nunc pro tunc, the difference being that courts “should eschew” the exercise of such a power where the substantive rights of the parties would be altered. The reference to a difference, upon which Metro relied to distinguish the observations made by the majority, was not addressing the proper construction of s 413(5) at all. Those observations were concerned with a court’s discretion to make orders revoking a prior order with retrospective effect. They say nothing of what effect, for the purposes of s 413(5), such orders have once made. That question, which is the critical question for present purposes, was dealt with by the majority at [50] and was not, and given the terms of s 413(5), could not be dealt with differentially as between orders of the Fair Work Commission and orders of a court.
68. The principle from Kable (No 2) was not referred to by the majority in Esso in the observations made about the operation and proper construction of s 413(5) of the FW Act. Nor is it apparent how that principle could inform the meaning and effect of s 413(5). If the primary judge did rely upon Kable (No 2) to conclude that the words “not have contravened any orders” in s 413(5) would engage a contravention of an order that existed at the time of the contravention but which had been revoked with retrospective effect, the primary judge’s reliance on Kable (No 2) was misplaced.

Metro’s Notice of Contention

69. By its Notice of Contention, Metro contended that the primary judge ought to have dismissed the application to revoke the orders of Snaden J nunc pro tunc on the ground that to do so would alter Metro’s substantive rights by removing the protection afforded to it by the “common requirement” for “protected industrial action” prescribed by s 413(5) of the FW Act and would expose Metro to industrial action which, if taken, would involve the breach of employment contracts and various other tortious actions.
70. As can be inferred from the Notice of Contention, and is apparent from Metro’s oral submissions, Metro does not rely upon orders 2 and 3 made by Snaden J themselves as providing for the substantive right that Metro says will be affected. It accepted that no substantive right is conferred upon it by s 413(5). Where the substantive right that it relies on emanated from was not clearly stated. As I understood it, Metro suggested that the right was conferred upon it by the RTBU’s contravention of orders 2 and 3, being the right not to be subjected to protected industrial action which it may have been subjected to if the RTBU could lawfully organise its members to take such action.
71. I accept that – as the majority said in Esso at [49] – this Court should eschew making an order with retrospective effect where to do so would have the effect of altering the substantive rights of the parties.
72. There is no clear cut answer as to whether a right is substantive or procedural, indeed as McHugh J stated, speaking extra-judicially, the distinction between procedural and substantive rights “is not always easy to draw”: see McHugh J, “Does Chapter III of the Constitution Protect Substantive as well as Procedural Rights?” (2001) 21 Aust Bar Rev 235 at 237.
73. What it is that constitutes a “right” can also be a difficult question. In Director of the Fair Work Building Industry Inspectorate v Powell [2016] FCA 1287 I made the following comments on the meaning of a “right” which it is useful to here recite:

[11] The word ‘right’ can have a variety of meanings both within legal discourse and in ordinary usage. Some meanings do not hold a right to be the correlative of any duty. It is common, for instance, to refer to a liberty or a privilege to do a thing free from interference as a right to do that thing. As Gummow J said in Minister for Immigration and Multicultural and Indigenous Affairs v Al Khafaji [2004] HCA 38; (2004) 219 CLR 664 at 672 (emphasis added):

It has long been notorious that the term ‘right’ has no definite or stable connotation and bears a variety of meanings according to the connection or context in which it is used.

Furthermore, as Professor Stone has said, ‘Legal relations habitually referred to as ‘rights’ are found to break up, when precision is sought, into rights and privileges, powers and immunities as well’: Stone J, The Province and Function of Law (2nd ed, Maitland Publications, 1950) at 127.

74. In the context here in question, a “right” must be understood as a right in the strict sense and not as including a mere privilege, benefit or advantage. The right must concern a matter of substance and not a matter of procedure. In my view, no substantive right of Metro would be affected by the retrospective revocation of the ancillary orders made by Snaden J.
75. What Metro really seems to be contending, is that if such an order was made, it would more likely face the prospect of protected industrial action being taken against it because the RTBU would then become capable of organising its members to take protected industrial action. Even if it is the case that in the absence of the order the RTBU seeks, it is less likely that protected industrial action might be taken against Metro in the current bargaining period, that circumstance does not provide Metro with any substantive right.
76. The “right” which Metro asserts is no more than a mere circumstantial advantage. It is akin to what Middleton J referred to in South Johnstone Mill Ltd v Dennis [2007] FCA 1448; (2007) 163 FCR 343 as a “forensic windfall”. In that case, the applicants sought leave to continue a proceeding seeking injunctive relief and damages from the respondents on behalf of and in the name of a Company. The applicants required leave nunc pro tunc in order to ensure that no limitation defence could be raised by the respondents. In deciding whether or not to exercise his discretion, Middleton J assessed the prejudice that would flow to both parties from such a grant. Not granting leave would have required the applicants to reissue proceedings adding unnecessary expense and time and may have resulted in the Company being statute barred from bringing any potentially good cause of action – Middleton J found that this may result in incurable prejudice. On the other hand, Middleton J found that the respondents were merely seeking to protect a “forensic windfall”, which was not a “proper basis for denying leave nunc pro tunc” (see at [58]-[59]): see also Fewin Pty Ltd v Prentice [2016] FCA 1038 at [26] and [39] (Gleeson J).
77. The “right” claimed by Metro is not sourced in the FW Act, in any other legal instrument or in the common law. Metro’s contention that the right emanates from the RTBU’s contravention of the ancillary orders of Snaden J is demonstrative of the advantage it relies on lacking a legitimate source from which it may be said that a substantive right was conferred upon Metro. Nor, for the reasons given by Anastassiou J, did the ancillary orders made by Snaden J confer any substantive right upon Metro. In my view the revocation of the orders would not affect any substantive right of Metro. Metro’s Notice of Contention must be dismissed.

CONCLUSION

78. I would grant the RTBU leave to appeal, allow the appeal, and dismiss Metro’s Notice of Contention. A further order should be made setting aside the primary judge’s order of 6 December 2019 which dismissed the RTBU’s application. There would then remain the question of whether the RTBU’s application should be determined by the Full Court or remitted to the primary judge.
79. The parties submitted that if the RTBU succeeded, the RTBU’s application should be remitted to the primary judge. It was agreed that there are factual issues going to the further exercise of the Court’s discretion to make the orders sought by the RTBU – now relevantly an order to set aside order 3 of the orders of Snaden J – which the primary judge is best placed to deal with. It is not clear what factual matters the parties have in mind and it is curious, especially given the obvious expedition which attends this proceeding, that any matter which Metro may now want the primary judge to revisit was not the subject of Metro’s Notice of Contention. In the interests of efficiency and expedition I would invite the parties to consider whether they wish to maintain their position that the matter be remitted to the primary judge and direct the parties to provide (within seven days) a minute of proposed further orders for the disposition of the appeal together with short submissions should there be no agreement as to the further orders which should be made. I would propose that any outstanding issues be then dealt with on the papers.

Associate:


Dated: 18 May 2020

REASONS FOR JUDGMENT

ANASTASSIOU J:

80. I have had the advantage of reading the separate judgments of Flick and Bromberg JJ in draft. I agree with their conclusions but wish to express my own reasons for reaching them.
81. The relevant facts are succinctly canvassed in the Reasons for Judgment of the primary judge: [2019] FCA 2034, at [1]-[40].
82. This appeal raises the question of whether the Court has the power to set aside certain orders, retrospectively, or nunc pro tunc, in circumstances where the time limited for compliance with those orders had expired before the application was made to set them aside.
83. In the absence of any relevant legislative prohibition, the Court undoubtedly has power to revoke its own order, and, if appropriate, to do so retrospectively. The source of the primary judge’s power to revoke the earlier order is s 22 of the Federal Court of Australia Act 1976 (Cth). I respectfully adopt the reasons given by Flick J at [5]-[9] concerning the source of the Court’s power to make, and revoke, including retrospectively, orders pursuant to the power conferred by s 22. I also respectfully adopt the reasons of Flick J at [12]-[18] for the conclusion that there is no statutory proscription in s 413(5) of the Fair Work Act 2009 (Cth) (FW Act) against the Court retrospectively revoking an order that would otherwise engage that sub section.
84. The subject orders were not made by the primary judge but by a different judge of the Court, Snaden J: [2019] FCA 1265. Nothing turns on this coincidence.
85. In the ordinary course, an order made by a judge of the Court exercising original jurisdiction may only be varied or set aside by the Full Court exercising the appellate jurisdiction pursuant to s 28 of the Federal Court of Australia Act. However, the original orders here were interlocutory in nature. To explain that characterisation I shall digress to describe the subject orders and the context in which they were to operate.
86. The relevant orders concerned giving of notice to members of the RTBU that certain proposed industrial action was not to take place because it had been enjoined by an order of the Court (order 1). One of the orders (order 2) concerned the posting of an explanatory notice, the form of which was annexed to the orders, on the home page of the RTBU’s website. The other relevant order (order 3) concerned the posting of a copy of the same notice in hard copy form on “all noticeboards at [Metro’s] train stations normally used by the [RTBU] for communicating with [Metro’s] employees.” The notice was to be posted on the home page by 11 pm on Friday, 9 August 2019 and hard copies of the notice were to be posted on all of the notice boards at the train stations by 4 pm on Saturday, 10 August 2019.
87. The RTBU allegedly failed to comply with order 2 because the notice was published on the home page of the Victorian Branch of the RTBU, rather than the home page of the national body. For the reasons given by Bromberg J at [36]-[41] in my view the RTBU did not breach this order. Indeed, in the context of the industrial action being organised principally from within the Victorian Branch, the spirit of the order was better complied with by posting the notice on the Victorian Branch home page than would have been the case had the notice been posted on the website of the national body.
88. The RTBU conceded that it had not complied with order 3, in that it had not by 4 pm on Saturday, 10 August 2019, posted the notice on all of Metro’s train stations. Metro’s solicitors were astute to monitor compliance with the orders, as is apparent from their correspondence to the RTBU at 1.36 pm on Saturday, 10 August 2019 extracted by the primary judge at [34]. In that letter Metro’s solicitors asserted that “As a result [breaches of the orders], it appears to us that all industrial action contained within the IA Notices, and the notice of a 4 hour stoppage that was provided to our client dated 9 August 2019, will be unprotected.”
89. On one view it may be said that order 1, the substantive injunction, was not interlocutory because it finally disposed of the parties’ rights concerning the threatened industrial action. While this may be true so far as the immediate industrial action was concerned, that action formed part of a much larger ongoing industrial campaign by the RTBU. In my view it would be artificial to characterise the injunction granted to restrain the instant action as finally disposing of the dispute between the parties in the context of a large scale industrial campaign conducted under the aegis of protected industrial action pursuant to s 413 of the FW Act. While the imminent threatened industrial action was restrained by order 1, that order was not intended to put an end to the larger industrial contest between the parties.
90. As I have said, the RTBU conceded that it failed to comply on time with order 3, as it had failed to post the notice at all stations by 4pm on Saturday, 10 August 2019. It did not refuse to comply with the order. It apologised to the Court below for its failure to fully comply with order 3.
91. Metro submits that any breach of the orders, including a breach of orders ancillary to order 1, meant that the RTBU could not thereafter engage in protected industrial action in connection with the on-going industrial dispute. If Metro’s submissions are correct, the modern regime for protected industrial action is as tenuous as a pre-Judicature Acts claim brought in error as to the form of the pleading, or some other procedural defect, whenever an order is not complied with; irrespective of the reasons for non-compliance and irrespective of whether the order is substantive or merely ancillary to a substantive order. See, for example Juul v Northey [2010] NSWCA 211 at [191] per McColl JA with whom Basten and Campbell JJA agreed; Safetycare Australia Pty Ltd v Phillip Maxwell Earle [1999] VSC 535 at [93]; and, M Leeming, “Fusion-Fission-Fusion: Pre-Judicature Equity Jurisdiction in New South Wales 1824-1972” in J Goldberg et al (eds), Equity and Law: Fusion and Fission (Cambridge University Press 2019), 118-143.
92. In my view, order 3 was demonstrably ancillary to order 1. It made provision for but one of several means of communicating to the RTBU’s members that the planned industrial action had been enjoined by the Court pursuant to order 1. Needless to say, to give effect to the substantive relief it was necessary to inform the RTBU’s members of the injunction and to do so urgently.
93. If, despite its best endeavours, it became apparent to the RTBU that it would be unable to post the notice at all stations by 4pm on 10 August 2019, it could have applied to the Court for an extension to the time limited by order 3 before that time expired. Had the RTBU been sufficiently astute, it might have made an application for an extension of time shortly after receiving the letter from Metro’s solicitors at 1.36 pm referred to above. If it had done so, the RTBU would have had a compelling case for an extension of time, assuming practical impediments to full compliance within the time limited by order 3. Such an application would have been compelling for the very reason relied upon by Metro in opposition to the revocation of the order retrospectively, namely that the prima facie consequence of non-compliance is that the RTBU would thereafter be deprived of engaging in protected industrial action. Further, in my view, had the RTBU made an application to extend time before the time had expired, it would border upon risible to suggest that the Court does not have power to extend the time for compliance with order 3.
94. In the events that occurred the RTBU did not make a prospective application to extend time for compliance with order 3. However, the above hypothetical is revealing because it exposes the essential character of order 3 as ancillary and procedural. The procedural nature of order 3 is to be contrasted with orders which are final and dispositive of the controversy between the parties, or create or affect substantive rights.
95. The contrast between court orders which create substantive rights on the one hand and procedural orders, on the other, may be readily distinguished in many circumstances. There are countless examples that might be given of circumstances in which a court order finally determines a dispute, resulting in the creation, or recognition, of substantive rights as between the parties to the proceeding. Similarly, there are countless examples of a final determination which has consequences for the substantive rights of persons who were not parties to the proceeding, including, for example, a determination of the proper construction and effect of a statutory provision.
96. Order 3 bears none of the characteristics, nor carries any of the consequences of a final dispositive order. As I have said, order 3 was but one of several means by which the RTBU’s members were to be informed of the outcome of the application to restrain the imminent industrial action. More specifically, the aspect of the order that was contravened was the failure to do what was required, on time. Time was an important element of the order because the threatened action was imminent. Metro was entitled to, and did, obtain urgent and timely relief from the Court. But there is no suggestion that the failure to post the notice at all of the stations on time caused any particular prejudice to Metro.
97. The “prejudice” did not arise from the failure to comply with order 3. Rather, the substance of Metro’s complaint is that it would be deprived of the opportunity to take advantage of the consequences pursuant to s 413(5) of the FW Act which arose due to the RTBU’s contravention of order 3. Such collateral advantage, arising incidentally, or coincidentally, from the RTBU’s failure to comply strictly with the time limit prescribed for the giving of the notice as required by order 3 does not confer a substantive right upon Metro, however advantageous that consequence may be from a commercial or industrial perspective. Such incidental commercial, industrial or tactical consequence is not a right arising from the making of the order. Rather, it is a coincidental consequence that arose purely as a result of the RTBU’s failure to comply strictly with an ancillary procedural requirement for the giving of notice in aid of the injunction contained in order 1.
98. The substantive order made by the Court was to enjoin the RTBU. In aide of that substantive relief, a mechanism for notification, by various means and media, was included in the order. The mechanism was limited by time, as was plainly necessary in the circumstances. But the mechanism for notification could not confer any legal right upon Metro and could not affect the rights of non-parties. Accordingly, a variation of order 3, including its revocation, prospectively or retrospectively, is incapable of altering substantive rights in the relevant sense; at least not by reason of the coincidental advantage pursuant to s 413(5) of the FW Act relied upon by Metro.
99. The learned primary judge was, with respect, correct to be concerned about the effect upon substantive rights of revoking the orders retrospectively. However, with respect, the primary judge erred by tacitly treating the collateral beneficial consequences, so far as Metro was concerned, as conferring rights upon it which would be adversely affected by revoking the orders retrospectively. Once the consequences from Metro’s perspective are seen for what they really are – coincidental good fortune arising from someone else’s failure, a kind of schadenfreude – they are mere incidental effects, or more accurately, side effects; ex hypothesi not intended by the making of the order.
100. There is a clear parallel between the Court’s power to set aside or vary its own orders where substantive rights are not adversely affected and the Court’s power to dispense with legislative conditions or preconditions to the assertion of claims or rights. In Emanuele v Australian Securities Commission [1997] HCA 20; (1997) 188 CLR 114 Kirby J (at 152-153) said:

Courts today are less patient with meritless technicalities. They recognise the inconvenience that can attend an overly strict requirement of conformity to procedural pre-conditions. In the morass of modern legislation, it is easy enough, even for skilled and diligent legal practitioners (still more lay persons who must conform to the law) to slip in complying with statutory requirements ... An undue rigidity in insisting upon strict compliance with all of the procedural requirements of the Law could become a mask for injustice and a shield for wrong-doing.

101. The same may be said of an undue rigidity in relation to the variation to court orders of a procedural or interlocutory nature. Court orders are to be complied with, strictly. But where the order in question is procedural in nature, as here, and where there are good reasons for a failure to comply with the order as opposed to contumelious disregard for it, justice may be served by revoking the order, or varying it, including retrospectively, to prevent the court’s own coercive powers from becoming a “mask for injustice and a shield for wrong-doing”: Emanuele.
102. For the above reasons I agree with the orders proposed by Bromberg J.

Associate:


Dated: 18 May 2020