Case: Tristar Steering &amp; Suspension Australia Ltd v Industrial Relations Commission of NSW [2007] FCA 348
Outcome: referred to
The application for injunctive relief came on before Edmonds J who refused such relief (see Tristar Steering &amp; Suspension Australia Ltd v Industrial Relations Commission of NSW [2007] FCA 348). 11 On 16 March 2007 a Summons to Give Evidence ('the summons'), addressed to Mr Cheng Hong, the Managing Director of Tristar, was issued pursuant to s 165(3)(b) of the IR Act. The summons was served upon Mr Hong in Sydney. The present application for injunctive relief and for the joinder of Mr Hong was filed on 19 March 2007. During the hearing an order was made that Mr Hong be joined as an applicant. For convenience, when both applicants are referred to hereafter they shall be referred to as 'Tristar'. 12 Tristar claims that there is a serious question to be tried which it articulates as follows: 'Is the exercise by the Commission of its function of inquiry under s 146(1)(d) of the Industrial Relations Act 1996 (NSW) in relation to the first term of reference an operation of a "State Industrial Law" (as defined in s 4 of the Workplace Relations Act 1998 (Cth)) which has the effect that the State Industrial Law would "otherwise apply in relation to an employee or employer" within the meaning of s 16(1) of the Workplace Relations Act 1996 ? ' 15 Tristar also submits that Edmonds J did not determine whether there was a serious question to be tried but dismissed the proceedings before him on the grounds that the balance of convenience did not justify the grant of the injunction sought. 16 Mr Hong submits that his rights and liabilities may be infringed because he is required to attend before the Commission and give evidence and that the failure to comply with the summons exposes him to potential fines and penalties as provided by s 165(4) of the IR Act. 18 The Minister submits that Edmonds J has already determined whether interlocutory relief should be granted, by refusing the application before him. Tristar had sought an order restraining the Commission from issuing any summons to produce documents. The Minister says that the summonses foreshadowed in the proceedings before Edmonds J have now issued. Further, although Mr Hong is now a party, and was at all material times, the corporate mind of Tristar as its Managing Director, there are no materially changed circumstances which would justify the Court entertaining the present application: see BP Chemicals ANZ Pty Limited v Manildra Starches Pty Limited [1997] FCA 1189. 19 Contrary to the submissions of the applicants the Minster submits that Edmonds J did make a determination that there was no serious question to be tried as stated in paragraph [7] of his Honour's judgment where his Honour said: 'In the limited time I have had to read and consider the Commission's decision and hear Tristar's Senior Counsel's submissions as to the arguable errors in the Commission's process of reasoning, I am not persuaded that the Commission's decision on both the jurisdictional application and the stay application is wrong.' 20 His Honour's reference to the balance of convenience thereafter merely showed that he was considering the necessary issues raised by the application before him. The Minister relies upon the submissions he made before Edmonds J, which, in substance, seek to demonstrate that the WPR Act does not operate to exclude the jurisdiction of the Commission to undertake its functions pursuant s 146(1)(d) of the IR Act, and that the decision of the Commission is correct. 25 Tristar has raised extensive submissions both before the Commission and before Edmonds J in support of its contention that s 16(1) of the WPR Act operates to invalidate the Inquiry because of the introduction of s 16(1) of the WPR Act. Only if the Court comes to the conclusion that there is a ' sufficient likelihood of success ' (see O'Neill (2006) 229 ALR 478) in Tristar's case should the Court then consider granting an interlocutory injunction. The Court is required to scrutinise the claim to satisfy itself at least that there is a 'likelihood of success' before proceeding to grant such relief. In Australian Broadcasting Corporation v Lenah Game Meats Pty Limited [2001] HCA 63 ; (2001) 208 CLR 199, Gleeson CJ at 217 said: 'In McCarty v North Sydney Municipal Council (126), the Chief Judge in Equity described the proposition that a plaintiff seeking an interlocutory injunction must show at least a probability that he will succeed in establishing his title to the relief sought at the final hearing as "so well established that no authority is really needed in support of it".' 29 The inconvenience to Mr Hong in travelling to New South Wales to answer the summons can be readily disregarded and it is not seriously advanced as a reason relating to the balance of convenience. The Court also gives negligible weight to the consideration that Mr Hong might find it difficult to perform his duties. However the necessity to answer questions and divulge information is relied upon. As was pointed out by Edmonds J, the summonsed parties in Re Cortaus 20 ACSR 576 'were parties to the proceeding itself' (see Tristar Steering [2007] FCA [12]). His Honour was clearly mindful that the summonsed parties were parties to the appeal pending before the Full Court. Such consideration may have substantially dissipated in view of the leave granted to join Mr Hong as a party to the application.