Case: Miller v University of New South Wales (2003) 127 IR 432
Outcome: referred to
I accept that, as Mr Goot contended, a determination by the AIRC on the question of statutory construction cannot bind this Court. Any such determination appears to be merely a step to the determination of future rights by the AIRC and does not bind the parties: Miller v University of New South Wales (2003) 127 IR 432, at 439, per Gray J; at 456, per Ryan and Gyles JJ. Nonetheless, having pursued a particular course in this Court and failed, Sydney Ferries now seeks relief in the AIRC that is in substance very similar if not identical to that sought in this Court on an interlocutory basis. It does so, moreover, on the basis of arguments that it has decided not to pursue in this Court on an interlocutory basis and which may remain to be resolved. In my opinion, to allow Sydney Ferries to proceed in this way would impair the integrity of the processes of this Court that Sydney Ferries itself chose to invoke. To put the matter another way, Sydney Ferries' initiation of proceedings in the AIRC is an attempt to seek relief of the kind that it has unsuccessfully sought in this Court, and requires the AIRC to address issues of construction that were and may still be before this Court. 30 It is difficult to see, so far as the present dispute between the parties is concerned, what point would be served by the proceedings in this Court seeking declaratory relief in relation to the construction of the Enterprise Agreements if Sydney Ferries were to succeed in its application before the AIRC, whether on an interim or permanent basis. Assuming Sydney Ferries succeeded before the AIRC, it would have obtained orders binding on the Respondents and their members, in the sense that any contravention of the orders could lead to the imposition of penalties. For the AIRC to make such orders, it would have to address the questions of construction presented by the application to this Court. This is so because if Sydney Ferries' actions are not authorised by the Enterprise Agreements, it is unlikely that the Respondents could be said to be organising or threatening ' industrial action '. Moreover, if the AIRC made the orders sought by Sydney Ferries, the onus would be on the Respondents to challenge the orders, whether by way of an appeal to a Full Bench of the AIRC (for which leave is necessary), or, more likely, by an application in this Court or the High Court by way of constitutional writs alleging jurisdictional error. There would be no need for Sydney Ferries to obtain any additional relief from this Court for the threatened or actual ' industrial action ' to be effectively restrained. 31 I should add that the effect of the anti-suit injunction sought by the Respondents will not be to deprive Sydney Ferries of recourse to the AIRC. The order proposed by the Respondents will apply only until the determination of the application for declaratory relief in this Court. Once that occurs, as Mr Birch SC (who appeared with Mr Gibian for the AMOU) accepted, it will be open to Sydney Ferries to seek orders under s 496 of the Workplace Relations Act from the AIRC. Any declaration made by the Court as to the effect of the Enterprise Agreements will be binding on the parties by virtue of s 849 of the Workplace Relations Act . Since an expedited hearing has been granted, there will be only a short delay before Sydney Ferries' application to this Court is resolved. Thereafter it will be free to pursue such remedies as may be available to it in the AIRC.