Case: Police Federation of Australia &amp; Anor v Nixon &amp; Anor [2008] FCA 467 ; (2008) 168 FCR 340
Outcome: cited
that sense, I respectfully agree with the observations of Ryan J in Police Federation of Australia &amp; Anor v Nixon &amp; Anor [2008] FCA 467 ; (2008) 168 FCR 340 at [69] in these terms: If the effect of s 809(2) is to require an applicant to demonstrate, in the absence of any evidence at all from the respondent, a serious question to be tried as to each element of the cause of action, including the respondent's reason or reasons for the impugned conduct, the applicant may suffer irreparable damage before he or she can be accorded a final trial at which, ex hypothesi , the presumption would enable the cause of action to be made out. I consider that such a restrictive and apparently unjust interpretation should only be given to a provision which occurs in what seems to be a beneficial or facultative legislative scheme, if the language of the subsection intractably requires it. In my view, a construction more consonant with the statutory context and history and the preparatory material is that s 809(2) precludes the Court from finding, on an application for an interim or interlocutory injunction, even provisionally, by recourse solely to the presumption that the respondent's conduct was for a prescribed reason or for reasons that included a prescribed reason. However, I do not construe s 809(2) as preventing the Court, in assessing whether there is a serious issue to be tried, from having regard to the availability of the presumption in the final determination of the application. Similarly, I consider that account can be taken of the ultimate availability of the presumption when assessing the respective strengths of the case for the applicant and that for the respondent as part of exercising the general discretion to grant or withhold interlocutory relief. Having regard to these matters, the applicants say that there is no controversy that Mr Brown and Mr Coombs were dismissed with effect from 19 June 2009. Nor is there controversy that each man gave evidence in the proceedings brought by the CEPU in relation to the proposed Blue Star Agreement and that those proceedings relate to an industrial law. The applicants say that an inference arises that each man was dismissed for the reason that he participated and gave evidence in the CEPU proceedings before Reeves J. That inference arises on the footing that the evidence was given on Monday, 15 June 2009 and each man's employment was terminated at the end of the working day on Friday of the same week. In other words the timing of the termination is proximate to the giving of the evidence. Secondly, each man had been a good worker. David Coombs had worked for Blue Star for two years and seven months and had been commended for his commitment to resolving a difficult stage of the Brisbane Central Project. Craig Brown had worked for Blue Star since 16 September 2008 although he had only worked on the Brisbane Central site from 11 May 2009. Craig Brown deposes to what might only be a sense of irritation on the part of Blue Star through Mr Walsh but nevertheless reflects some focus on Tuesday following the giving of the evidence, in the context of work duties, upon Mr Brown's day at Court on the preceding Monday. The hypothesis that each man was dismissed for reasons that include, as an operative reason, the giving of evidence in the CEPU proceedings, is entirely consistent with the evidence of the applicants. Further, the applicants rely upon the presumption in terms of the strength of the case at trial. The applicants contend that if the evidence remains at trial as it is on the interlocutory application, the applicants will succeed at trial. The respondent seeks to dispel any inferences which might arise from proximity of timing, a good history of work performance, the remark by Mr Walsh and the operation of the presumption by identifying the context within which the dismissal decision was taken.