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DAVIDS DISTRIBUTION PTY LIMITED v NATIONAL UNION OF WORKERS

NG900 of 1998

WILCOX, BURCHETT and COOPER JJ

SYDNEY

13 AUGUST 1999

The reasons for judgment of his Honour, Justice Burchett, should be amended asfollows:

Page 65, para 134, last line:Alter the citation "Gidaro vSecretary, Department of Society Security",to read "Gidaro v Secretary,Department of Social Security".

Jenny Quy

Associate to Burchett J

INDUSTRIAL LAW - Termination of employment - Application for leave to appealagainst interlocutory orders restraining employer fromtermination or requiringthe reinstatement, of the employment of 53 employees - Whether primary judgeerred in holding there wasa serious question to be tried in relation toalleged contraventions of ss170MU and 298 ofWorkplace Relations Act -Whether primary judge should have disqualified himself on the ground ofperceived bias - Dispute over log of claims resulted inindustrial actioninvolving picketing - Whether picketing is "industrial action" within themeaning of theWorkplace Relations Act - Whether notice necessary for"protected action" was given - Whether the picketing was in concert with otherunions or persons- Whether reinstatement orders may be made under s298U of theAct only after final determination of the matter.

Workplace Relations Act 1996,ss4, 170ML, 170MM, 170MO, 170MT, 170MU,170NG, 170NH, 298K, 298L, 298U and 298V.

DAVIDS DISTRIBUTION PTY LIMITED v NATIONAL UNION OF WORKERS

NG900 of 1998

WILCOX, BURCHETT and COOPER JJ

SYDNEY

13 AUGUST 1999

THE COURT ORDERS THAT:

1.Leave be granted to appeal against the orders made by North J on 1 December1998.

2.The appeal be dismissed.

Note:Settlement and entry of orders is dealt with in Order 36 of the FederalCourt Rules.

1WILCOX and COOPER JJ: Davids Distribution Pty Limited ("Davids") hasapplied to the Full Court for leave to appeal against interlocutory orders madebya judge of the Court (North J) on 1 December 1998. Those orders were madein a proceeding instituted against Davids by the NationalUnion of Workers("NUW" or "the Union") on 11 August 1998 and arising out of an industrialdispute between NUW and Davids. The ordersreplaced earlier interlocutoryorders of North J. In accordance with a direction made by the Court, counselfor the parties putfull argument, as on the appeal itself.

Background to the litigation

2NUW is an employee organisation registered under theWorkplace RelationsAct 1996 (formerly theIndustrial Relations Act 1988 ("the Act")).Davids carries on business as a grocery wholesaler and distributor. For thatpurpose it operates distribution centresin two Sydney suburbs, Blacktown andSilverwater, and at Fyshwick in the Australian Capital Territory. At the timewhen the industrialdispute commenced, Davids employed about 300 people atBlacktown, about 60 at Silverwater and about 20 at Fyshwick. Amongst thosepersons were many NUW members.

3In October 1997 NUW served on Davids a log of claims seeking a new industrialagreement. The demands included higher wages foremployees at the distributioncentres. Davids refused to accede to the claims and there was a long runningdispute involving proceedingsin both the New South Wales and the AustralianIndustrial Relations Commissions.

4At 16 June 1998, the dispute remained unresolved. On that day, NUW served onDavids a notice of intended industrial action. The notice was presumablyintended to be a notice under s170MO of the Act, a provision contained inPartVIB of the Act dealing with certified agreements.

5The 16 June notice referred to an indefinite stoppage. That notice waswithdrawn only two days later. In the meantime, however,it apparently causedRay Richards, Davids' New South Wales Distribution Manager, to send to allwarehouse staff at Blacktown, Silverwaterand Fyshwick the followingmemorandum, dated 18 June 1998:

"The National Union of Workers has advised us that its membersemployed by us will be commencing an indefinite stoppage from tomorrow. Asunion delegates have commenced asking for annual leave we are forced to assumethat there will be such a strike.

You should be aware that whilst your union is advising you that the strikeis `protected action' under Federal Industrial legislation,our legal advice isthat it is not. This matter will not be resolved until well after thestrike.

If our legal advice is correct and the strike was not protected action, thenit is clear that if you take part in the strike you willbe guilty ofmisconduct. Of course if the union is correct then you will not. It is amatter for you to decide whether to riskyour employment on the basis of theunion's advice.

Regardless of the above issue, it is clear that stopping trucks entering andleaving the premises is not, and never can be, protectedaction.

Any employee who, whilst engaged in a strike or otherwise, interferes withthe free access to or exit of any vehicles or people fromany of the warehousesoperated by this company will clearly be guilty of serious and wilfulmisconduct. Such employee's employmentwill be terminated with immediateeffect."

6On the same day NUW served on Davids a fresh s170MO notice in which itforeshadowed "protected action in the form of bans and rollingstoppages" byNUW members employed at the three distribution centres. The notice said theaction "shall commence on Thursday, 25June 1998" and "relates to thebargaining period initiated by the National Union of Workers in C No.21555 of1998". The notice wassigned by Frank Belan, Branch Secretary of the New SouthWales Branch of NUW.

7North J made findings, which have not been criticised by counsel, as to whatfollowed:

"On 25 June 1998, rolling stoppages commenced as notified.Then, at about 3 pm on 8 July 1998, an indefinite strike began and picketswereformed outside the entrances to the three distribution centres. On the nextday, 9 July 1998, Mr Zammitt, the Assembly Managerat the BlacktownDistribution Centre, and Mr Blazejko, a Warehouse Supervisor at the BlacktownDistribution Centre, were instructedby Mr Richards, the State Manager forDistribution in New South Wales and the ACT, to take the names of employeeswhom they observedinterfering with the free access of vehicles or persons atthe Blacktown Distribution Centre. There were about 70 or 80 picketerspresent. Mr Zammit and Mr Blazejko identified 35 employees. On the same day,Davids sent letters to the 35 employees, in the followingform:

`Dear Sir,

You were observed at a picket line at the entrance of this company'sDistribution Centre at 37 Bessemer Street, Blacktown during theafternoon ofThursday, 9 July 1998.

Whilst on that picket line you were observed to interfere with the freeaccess to or exit of vehicles and/or persons at the DistributionCentre. Onthe 18^th of June 1998, I wrote to you advising you that youremployment would be terminated if you engaged in conduct of that kind.

As you are aware your conduct represents a dismissible offence. If you haveany matter that you wish us to consider before takingaction in respect of yourconduct, your [sic] are invited to phone Mr David Small at or before 10:00am on10 July 1998 on 9208-1358.

Failing any satisfactory explanation or matter in mitigation being raisedwith us by that time your services will be terminated andcheque will beforwarded to you for outstanding monies.'

On 14 July 1998, Davids sent letters in similar terms to four more picketersin relation to alleged obstruction which occurred onthat day and, on 20 July1998, Davids sent a further ten letters to more picketers in relation toalleged obstruction which occurredon that day. On 20 August 1998, Davids senta letter to Mr Reti in generally similar terms, although it alleged particularincidentsagainst Mr Reti. It stated that he had damaged a bus window on 14August 1998 and a prime mover window on 15 August 1998. On 21August 1998,Davids sent letters in generally similar terms to Mr Prasad and Mr Carratt,although they alleged a particular incidentagainst both, namely, damaging abus window on 11 August 1998. In total, Davids sent such letters to 52picketers."

8Many of the employees to whom letters were sent claimed difficulty incontacting Mr Small before the deadline fixed in their letters;he wasunavailable and did not return their call. Others claimed that Mr Smallappeared uninterested in their explanation, he wasconcerned only to ascertainwhether they were involved in the picket. Whatever the truth of these claims,between 10 July and 25August 1998, Davids purported to terminate theemployment of all 52 employees. Davids claimed before North J that all theseemployeeswere dismissed because they engaged in picketing, despite MrRichards' warning letter of 18 June 1998. It seems to be common groundthatthe 52 employees were involved in the picket, although there is no agreement orfinding as to the nature of their individualactivities. No doubt because oftheir involvement in the picket, North J adopted the convenience of referringto the 52 employeesas "the picketers". He referred to the remainder of theemployees, who engaged in the indefinite stoppage, conducted between 8 Julyto28 August 1998, as "the strikers".

9Shortly after the return to work, Davids threatened to dismiss one of thestrikers, Alexander Pucar, ostensibly because of hisinvolvement in an incidentsaid to have occurred on 31 August. However, North J restrained Davids fromcarrying out the threateneddismissal.

The Supreme Court proceeding

10On 13 July 1998 Davids commenced a proceeding in the Supreme Court of NewSouth Wales. The detail is important to an appealin that proceeding heard byus immediately before this application. For present purposes we need do nomore than repeat North J'ssummary:

"On 13 July 1998, Davids obtained an ex parte injunction fromthe Supreme Court of New South Wales against the Union and three officers,restraining them from impeding the entry or exit of persons or vehicles fromthe New South Wales distribution centres. On 15 July1998, Davids filed amotion for contempt, based upon the alleged breach of the ex parte ordersobtained two days before. The hearingof this motion commenced on 27 July1998, and concluded on 7 August 1998. The day before the hearing concluded,Davids sent theUnion an offer to settle the dispute. On the day the hearingconcluded, 7 August 1998, Davids sent a letter to the strikers, inthefollowing terms:

`Dear Fellow Employee,

As you would be aware, the industrial dispute at our Blacktown andSilverwater sites has now been going for seven weeks. Whilst thecompany hasmade a substantial offer on increased wages, the union has apparently declinedto even tell you of the offer or allowyou to vote on it. Contrary to themisinformation contained in union circulars, the offer contains a number ofchanges to whichthe union has agreed and provides for a 6% wage increasewhilst maintaining the 36 hour week.

Regardless of acceptance of the offer or otherwise the company is going tohave to take some steps to return its operations to normal.

In early July we informed employees that the NUW maintained that the strikeupon which employees were embarking was `protected action'. This has nowchanged.

Mr Belan, the NSW Secretary of the NUW, has announced on Radio 2KY and Radio3CR that the action is being taken in conjunction withother unions includingthe MUA, the CFMEU, the AMWU, the CEPU and the Clerks Union. Section 170MM oftheWorkplace Relations Act makes it clear that industrial action is notprotected if more than one organisation is involved. In other words, thestrike isno longer a `protected action'. We have enclosed a copy of thesection of the Act to assist you in obtaining advice. You shouldcheckIndependent Legal Advice in relation to continuing with your strike.

As the strike is no longer a `protected action', any further absence fromemployment by you is unauthorised absence from work forwhich you will beliable to termination.

UNLESS YOU ARE AT WORK ON OR BEFORE THE FIRST ROSTERED SHIFT ON WEDNESDAYTHE 12^TH AUGUST, YOU WILL BE REQUIRED TO SHOW CAUSE WHY YOUREMPLOYMENT SHOULD NOT BE TERMINATED.'"

The proceeding before North J

11On 11 August 1998, the day before the deadline for return to work, NUW filedin the Victorian Registry of this Court an Applicationseeking the followingorders:

"1.A declaration that the Respondent has engaged in conduct incontravention of s.170MU of theWorkplace Relations Act 1996 (the `Act') indismissing or threatening to dismiss employees, members of the Applicant,engaged in industrial action.

2.A declaration that the Respondent has engaged in conduct incontravention ofPart XA of the Act in dismissing or threatening to dismissemployees, members of the Applicant, engaged in industrial action.

3.A declaration that the purported termination of employees, members ofthe Applicant, engaged in industrial action on and after 8 July1998 was and isineffective and void.

4.An order that the Respondent treat all persons employed by it on 8July 1998 as employees of the Respondent and any purported terminationof suchperson as void.

5.An order restraining the Respondent, its servants or agents fromtaking any and all steps to give effect to any purported terminationofemployment effected on or after 8 July 1998 and/or to give effect to any threatof termination made on or after 8 July 1998.

6.Penalties."

12The Application also foreshadowed the following claim for interlocutoryrelief:

"1.An order that, until further order of the Court, theRespondent, by its servants and agents, take no steps to give effect to anypurported termination of employees of the Respondent who are members of theApplicant.

2.An order that, until further order of the Court, the Respondent, byits servants and agents, take no steps to give effect or carryout any threatto dismiss or terminate any employee of the Respondent, being an employee whois a member of the Applicant."

13The application for interlocutory relief came before the Melbourne dutyjudge, North J. It is convenient for us to reproduce hisHonour's account ofthe various hearings before him:

"On 11 August 1998, most of the employees of Davids were onstrike and many of them were present on the picket. At the first hearing,on11 August 1998, Davids gave undertakings not to dismiss any employees until4.15pm on Friday, 14 August 1998, and the furtherhearing was adjourned untilthen.

On Friday, 14 August 1998, the matter was again mentioned. Davids expressedconcern about the continuance of the picket and allegedcontinuing breach ofthe orders of the Supreme Court of New South Wales. The Union was not able tooffer an undertaking in respectof the continuance of the picket.Consequently, the hearing was adjourned for mention by videolink on Monday, 17August 1998, toallow the Union to consider the question. No injunctions weregranted in the meantime.

On Monday, 17 August 1998, the Union was still not able to undertake thatthere would be no picket action by its members. But itindicated that thequestion would be considered by a meeting of members on Wednesday, 19 August1998. Consequently, no injunctionswere granted and the application forinterim orders was adjourned for full argument until 26 August 1998.

On 26 August 1998, the application for interim orders was argued. The Unionoffered undertakings as to damages and an undertakingto cease industrialaction. Davids indicated that it wanted the employees, other than thepicketers, to return to work. For practicalpurposes, the only issue betweenthe parties at the end of this day was whether the balance of conveniencefavoured the making oforders. The only issue of substance urged by Davids onthis question was that the return of the picketers would cause acrimony intheworkplace. As there was no evidence of this likelihood and Davids was preparedto take back strikers who had been on the picketbut had not been dismissed fortheir attendance, the Court granted injunctions in the following terms, on theundertakings set outbelow:

`UPON THE APPLICANT by its Counsel undertaking to pay to any partyadversely affected by these Orders such compensation (if any) as the Courtthinksjust, in such manner as the Court directs -

AND UPON THE APPLICANT by its Counsel further undertaking that from3:00pm on Friday 28 August 1998 it will not engage in any industrial actionrelatingto the negotiations with the Respondent concerning an enterpriseagreement -

In this undertaking `industrial action' does not include any action by anemployee if:

(a)the action was based on a reasonable concern by the employee aboutan imminent risk to his or her health or safety; and

(b)the employee did not unreasonably fail to comply with a direction ofhis or her employer to perform other available work, whetherat the same oranother work place, that was safe and appropriate for the employee toperform.

AND UPON THE APPLICANTby its Counsel further undertaking that noprejudice or action of retaliation or victimisation by it through its servants,agents,or members shall be effected, taken or implemented against any person,including any supervisor, employee or contractor on accountof theparticipation or non-participation in industrial action or on account of theperformance or non-performance of any work duringthe period between 8 July1998 and 28 August 1998.

AND UPON THE APPLICANT by its Counsel further undertaking to enter intoan agreed process of discussion with the Respondent as to the circumstances ofthepurported termination of each of the 52 employees with a view to narrowingthe differences between the parties on this issue.

THE COURT ORDERS THAT:

1.Until 4:00pm on 9 September 1998, the Respondent, Davids DistributionPty Ltd by itself, its servants and agents, treat all personsemployed by it on8 July 1998 as employees of the Respondent with continuity of service save andexcept for the purpose of paymentof wages; and

2.Until 4:00pm on 9 September 1998, the Respondent, Davids DistributionPty Ltd, by itself, its servants and agents, be restrained fromtaking all andany steps to give effect to any purported termination of employment effected onor after 8 July 1998 or to give effectto threat of termination made on orafter 8 July 1998.

3.The further hearing of this application be adjourned to 10:15am on 9September 1998 to consider the extension of the above ordersbeyond 9 September1998 and for directions.

4.Liberty to apply on very short notice.'

Reasons for decision were given. The further hearing was adjourned until 9September 1998 to allow Davids to adduce evidence onthe narrow question of thepossible difficulty arising in the workforce from the continued presence of thepicketers at work.

As a result of the orders, the strikers and picketers returned to work inshifts commencing on 28 August 1998.

On 9 September 1998, new counsel appeared for Davids. They sought to reopenthe entire argument. In the end, I reluctantly agreedto hear argument on allissues and Davids' argument took the entire day. In the course of argument,counsel for Davids raised theproblem that the existing orders preventedresignations of employees and prevented Davids recognising the abandonment ofemploymentby some employees. Consequently, the orders made on 26 August 1998were slightly modified, by adding a new paragraph 2, as follows:

`2.Order 1 does not apply to employees of the Respondent who resign or abandontheir employment.'

Otherwise, the orders made on 26 August 1998 were continued until 22 September1998, the date fixed for the Union to put its argumentin response.

On 22 September 1998, the Union put its argument and Davids foreshadowed anapplication for disqualification. This application,which is dealt with indetail later in these reasons, was heard on 23 September 1998. On 23 September1998 I reserved my decisionin relation to the application for interim reliefand on the application for disqualification. The orders made on 26 August1998,as modified on 9 September 1998, were continued until the determinationof the application for interim orders.

The Union argued that the existing orders should be further continued andDavids argued that the orders should be discharged."

The orders of 1 December

14North J considered the arguments put to him at the hearings he identified.On 1 December 1998 he made new orders and deliveredcomprehensive reasons forjudgment. The orders were as follows:

"UPON THE APPLICANT by its counsel undertaking to pay toany party adversely affected by these orders such compensation (if any) as theCourt thinksjust, in such manner as the Court directs -

AND UPON THE APPLICANT by its counsel further undertaking thatit will not engage in any industrial action relating to the negotiations withthe respondentconcerning an enterprise agreement -

In this undertaking `industrial action' does not include any action by anemployee if:

(a)the action was based on a reasonable concern by the employee aboutan imminent risk to his or her health or safety; and

(b)the employee did not unreasonably fail to comply with a direction ofhis or her employer to perform other available work, whetherat the same oranother work place, that was safe and appropriate for the employee toperform.

AND UPON THE APPLICANT by its counsel undertaking that no prejudice oraction of retaliation or victimisation by it through its servants, agents, ormembersshall be effected, taken or implemented against any person, includingany supervisor, employee or contractor on account of the participationornon-participation in industrial action or on account of the performance ornon-performance of any work during the period between8 July 1998 and 28 August1998.

THE COURT ORDERS THAT:

1.Until further order, the respondent, Davids Distribution Pty Ltd byitself, its servants and agents, treat all persons named in theschedule tothis order as employees of the respondent with continuity of service save andexcept for the purpose of payment of wages;and

2.Until further order, the respondent, by itself, its servants andagents, is restrained from terminating the employment of the saidemployees andAlexander Pucar.

3.Paragraphs 1 and 2 do not prevent the respondent accepting theresignation of any of the said employees or Alexander Pucar.

4.Liberty to the parties to apply on the giving of 24 hours' notice inwriting to the other party.

5.The respondent's application for disqualification isdismissed."

The Schedule contained 52 names. As we understand the position, they arethe names of the 52 people Davids had purported to dismissbetween 10 July and25 August.

Relevant statutory provisions

15In order to understand North J's reasons for these orders, it is necessaryto be aware of some provisions of theWorkplace Relations Act. First,Part VIB deals with certified agreements. We do not need to discuss the natureor effect of certified agreements. However, we must referto Divisions 8 and10 of the Part.

16Division 8 commences with s170MI. That section permits an employer, anorganisation of employees or an individual employee toinitiate a "bargainingperiod" for negotiating a proposed certified agreement. This is done by givinga written notice to each othernegotiating party. Particulars must be supplied(s170MJ) and the bargaining period begins seven days after the notice was given(s170MK). Section 170ML creates an entitlement to take "protected action"during the bargaining period. As the form of that sectionassumed someimportance in the argument before us, we set out its relevant parts:

"(1)...

(2)During the bargaining period:

(a)an organisation of employees that is a negotiating party; or

(b)a member of such an organisation who is employed by the employer;or

(c)an officer or employee of such an organisation acting in that capacity;or

(d)an employee who is a negotiating party;

is entitled, for the purpose of:

(e)supporting or advancing claims made in respect of the proposedagreement; or

(f)responding to a lockout by the employer of employees whose employmentwill be subject to the agreement;

to organise or engage in industrial action directly against the employerand, if the organisation, member, officer or employee doesso, the organisingof, or engaging in, that industrial action is protected action.

(3)Subject to subsection (6), during the bargaining period, the employer isentitled, for the purpose of:

(a)supporting or advancing claims made by the employer in respect of theproposed agreement; or

(b)responding to industrial action by any of the employees whose employmentwill be subject to the agreement;

to lock out from their employment all or any of the employees whoseemployment will be subject to the agreement and, if the employerdoes so, thelockout is protected action.

(4)The reference in subsection (3) to the employer locking out employeesfrom their employment is a reference to the employer preventingemployees fromperforming work under their contracts of employment without terminating thosecontracts.

(5)...

(6)...

(7)This section has effect subject to the following provisions of thisDivision."

17The term "industrial action" is defined bys4 of the Act:

"industrial action(except inPart XA) means:

(a)the performance of work in a manner different from that in which itis customarily performed, or the adoption of a practice in relationto work,the result of which is a restriction or limitation on, or a delay in, theperformance of the work, where:

(i)the terms and conditions of the work are prescribed, wholly orpartly, by an award or an order of the Commission, by a certified agreementorAWA, by an award, determination or order made by another tribunal under a lawof the Commonwealth or otherwise by or under a lawof the Commonwealth; or

(ii)the work is performed, or the practice is adopted, in connectionwith an industrial dispute;

(b)a ban, limitation or restriction on the performance of work, or onacceptance of or offering for work, in accordance with the termsand conditionsprescribed by an award or an order of the Commission, by a certified agreementor AWA, by an award, determinationor order made by another tribunal under alaw of the Commonwealth or otherwise by or under a law of the Commonwealth;

(c)a ban, limitation or restriction on the performance of work, or onacceptance of or offering for work, that is adopted in connectionwith anindustrial dispute; or

(d)a failure or refusal by persons to attend for work or a failure orrefusal to perform any work at all by persons who attend for work,if;

(i)the persons are members of an organisation and the failure orrefusal is in accordance with a decision made, or direction given, byanorganisation, the committee of management of the organisation, or an officer ora group of members of the organisation actingin that capacity; or

(ii)the failure or refusal is in connection with an industrial dispute;or

(iii)the persons are employed by the Commonwealth or a constitutionalcorporation; or

(iv)the persons are employed in a Territory;

but does not include:

(e)action by employees that is authorised or agreed to by the employerof the employees; or

(f)action by an employer that is authorised or agreed to by or onbehalf of employees of the employer; or

(g)action by an employee if:

(i)the action was based on a reasonable concern by the employee about animminent risk to his or her health or safety; and

(ii)the employee did not unreasonably fail to comply with a direction of hisor her employer to perform other available work, whetherat the same or anotherworkplace, that was safe and appropriate for the employee toperform."

18Sections 170MM and 170MN impose some limitations on permissible industrialaction. Only s170MM is presently relevant. It provides:

"170MM(1)Engaging in industrial action is not protected actionif:

(a)it is engaged in in concert with one or more persons ororganisations that are not protected persons; or

(b)it is organised other than solely by one or more protected persons.

(2)Organising industrial action is not protected action if;

(a)it is organised in concert with one or more persons or organisationsthat are not protected persons; or

(b)it is intended to be engaged in other than solely by one or more protectedpersons.

(3)In this section:

protected person means:

(a)an organisation of employees that is a negotiating party; or

(b)a member of such an organisation who is employed by the employer;or

(c)an officer or employee of such an organisation acting in thatcapacity; or

(d)an employee who is a negotiating party."

19Section 170MO(1) provides that action mentioned in s170ML(2) by anorganisation of employees (amongst others) is not protectedaction unless therequirements of s170MO(2) are met. That subsection provides:

"(2)The requirements are that:

(a)if the action is in response to, and is taken after the start of, alockout of employees by the employer in respect of the proposedagreement - theorganisation, or the employee who is a negotiating party, has given theemployer written notice of the intentionto take the action; or

(b)in any other case - the organisation, or the employee who is a negotiatingparty, has given the employer at least 3 workingdays' written notice of theintention to take the action."

Subsections (3) and (4) contain counterpart requirements for notice byemployers. Subsection (5) states that a written notice orother notificationunder the section "must state the nature of the intended action and the daywhen it will begin".

20It is possible to pass over ss170MP to 170MS. Section 170MT confers someimmunities on parties engaging in protected action. It reads:

"170MT(1)An order made by the Commission undersection 127 doesnot apply to protected action.

(2)Subject to subsection (3), no action lies under any law (whetherwritten or unwritten) in force in a State or Territory in respectof anyindustrial action that is protected action unless the industrial action hasinvolved or is likely to involve:

(a)personal injury; or

(b)wilful or reckless destruction of, or damage to, property; or

(c)the unlawful taking, keeping or use of property.

(3)Subsection (2) does not prevent an action for defamation being brought inrespect of anything that occurred in the course ofindustrialaction."

21Section 170MU is of central importance to NUW's argument. It reads:

"170MU(1)An employer must not:

(a)dismiss an employee, injure an employee in his or her employment oralter the position of an employee to the employee's prejudice;or

(b)threaten to dismiss an employee, injure an employee in his or heremployment or alter the position of an employee to the employee'sprejudice;

wholly or partly because the employee is proposing to engage, is engaging, orhas engaged, in protected action.

(2)Subsection (1) of this section does not apply to any of the followingactions taken by the employer:

(a)standing-down the employee;

(b)refusing to pay the employee where, under the common law, theemployer is permitted to do so because the employee has not performedwork asdirected;

(c)action of the employer that is itself protected action.

(3)In proceedings under section 170NF for an alleged contravention ofsubsection (1) of this section, it is to be presumed, unlessthe employerproves otherwise, that the alleged conduct of the employer was carried outwholly or partly because the employee wasproposing to engage, was engaging, orhad engaged, in protected action."

The remainder of Division 8 is not presently material.

22Division 10 relates to enforcement and remedies. By s 170ND, it identifiescertain "penalty provisions", including s170MU, and,by s170NE, "eligiblecourts", including this Court. Section 170NF empowers an eligible court toimpose a penalty on a person whocontravenes a penalty provision. The sectionspecifies maximum penalties and the persons by whom applications may be made.Section170NG deals with injunctions and s170NH with reinstatement ofemployees. They read:

"170NGAn eligible court may grant an injunction requiring aperson not to contravene, or to cease contravening, a penalty provision.

170NH(1) If an employer contravenes section 170MU, an eligible court mayorder the employer;

(a)if the contravention was constituted by dismissing an employee - toreinstate the person dismissed to the position that the personoccupiedimmediately before the dismissal or to a position no less favourable than thatposition; and

(b)in any case - to pay, to the person dismissed, injured orprejudiced, compensation for loss suffered as a result of the dismissal,injuryor prejudice.

(2)The rights of and relating to reinstatement that are conferred on aperson by this section do not limit any other rights of theperson."

23Second, reference must be made toPart XA of the Act, relating to freedomof association. It includes Division 3 headed "Conduct by Employers". TheDivision includes s298Kwhich relevantly provides:

"298K(1)An employer must not, for a prohibited reason, or forreasons that include a prohibited reason, do or threaten to do anyof thefollowing:

(a)dismiss an employee;

(b)injure an employee in his or her employment;

(c)alter the position of an employee to the employee's prejudice;

(d)refuse to employ another person;

(e)discriminate against another person in the terms or conditions onwhich the employer offers to employ the other person.

(2)..."

24In argument before North J, NUW relied on paras (e), (l) and (n) ofs298L(1). They read:

"298L(1)Conduct referred to in subsection 298K(1) or (2) is foraprohibited reason if it is carried out because the employee,independent contractor or other person concerned:

"...

(e)in the case of an employee - has refused or failed to agree or consent to,or vote in favour of, the making of an agreementto which an industrialassociation of which the employee is a member would be a party; or

...

(l)in the case of an employee, or an independent contractor, who is amember of an industrial association that is seeking better industrialconditions - is dissatisfied with his or her conditions; or

...

(n)as an officer or member of an industrial association, has done, orproposes to do, an act or thing for the purpose of furthering orprotecting theindustrial interests of the industrial association, being an act or thing thatis:

(i)lawful; and

(ii)within the limits of an authority expressly conferred on the employee,independent contractor or other person by the industrialassociation under itsrules."

25Division 6 ofPart XA (ss298T -298V) deals with remedies. Subject tosome presently immaterial qualifications, 298T permits the making ofapplications to the Courtfor orders under s298U in respect of conductcontraveningPart XA. Section 298U provides:

"In respect of conduct in contravention of this Part, the Courtmay, if the Court considers it appropriate in all the circumstancesof thecase, make one or more of the following orders:

(a)an order imposing on a person or industrial association whoseconduct contravened or is contravening the provision in question a penaltyofnot more than:

(i)in the case of a body corporate - $10,000; or

(ii)in any other case - $2,000;

(b)an order requiring the person or industrial association to reinstatean employee, or to re-engage an independent contractor;

(c)an order requiring the person or industrial association to pay to anemployee or independent contractor, or to a prospective employeeor independentcontractor, compensation of such amount as the Court thinks appropriate;

(d)an order requiring the person or industrial association not to carryout a threat made by the person or association, or not to makeany furtherthreat;

(e)injunctions (including interim injunctions), and any other orders,that the Court thinks necessary to stop the conduct or remedy itseffects;

(f)any other consequential orders."

26Section 298V relates to onus of proof;

"298V: If:

(a)in an application under this Division relating to a person's or anindustrial association's conduct, it is alleged that the conductwas, or isbeing, carried out for a particular reason or with a particular intent; and

(b)for the person or industrial association to carry out the conductfor that reason or with that intent would constitute a contraventionof thisPart;

it is presumed, in proceedings under this Division arising from theapplication, that the conduct was, or is being, carried outfor that reason orwith that intent, unless the person or industrial association provesotherwise."

North J's reasoning

27North J commenced his reasons for judgment by setting out the relevantstatutory provisions and dealing with some proceduralissues raised by counselfor Davids. He then dealt with a submission that s298U did not empower theCourt to make interim ordersfor reinstatement. This submission had twoaspects. First, it was said orders under s298U of the Act could be made onlyafter afinal determination that there had been a contravention ofPart XA.North J rejected this submission as being inconsistent with the view expressedby a majority of the High Court of Australia inPatrick StevedoresOperations No.2 Pty Ltd v Maritime Union of Australia[1998] HCA 30;(1998) 153 ALR 643 at655. The second proposition was that s298U did not authorise an interim orderforreinstatement,as distinct from enjoinder of dismissal. North Jsaid:

"Counsel for Davids contended that there was a general power togrant interim injunctions in s298U(e). The power to grant specificrelief byway of reinstatement was contained in s298U(b). This specific power was notexpressed to include a power to grant interimreinstatement. Consequently, itwas argued, Parliament must be taken to have intended that the power to orderreinstatement waslimited to the making of final orders. The Union relied ons23 of theFederal Court of Australia Act as the source of power to makeinterlocutory orders for reinstatement. It provided:

`The Court has power, in relation to matters in which it has jurisdiction, tomake orders of such kinds, including interlocutoryorders, and to issue, ordirect the issue of, writs of such kinds, as the Court thinks appropriate.'

Davids then responded that s298U was an exclusive code, restricting the reliefavailable by way of reinstatement to final orders."

28After considering authorities, includingPatricks Stevedores inthe Full Court of this Court and the High Court, North J concluded:

"In the same way that the majority of the High Court inPatricks held that s298U(e) was not an exclusive code of the remediesavailable under that section, I hold that s298U(b) is not an exclusivecode ofthe remedies available. Section 23 of theFederal Court of AustraliaAct allows the Court to make interlocutory orders forreinstatement."

29Turning to Part VIB of the Act, North J accepted Davids' submission thats170NH, dealing with reinstatement, applied only to pastcontraventions. Buthe rejected the further submission that this precludes the making of an interimorder. His Honour said:

"Counsel for Davids, however, submitted that s170NG and s170NHpermitted the Court to make final orders only. In respect of s170NH,thisconclusion flowed from the opening phrase `If an employer contravenes section170MU ...'. It was argued that these words requiredthe establishment of aproven contravention before any orders could be made. Doubtless, the purposeof these words is to specifythe jurisdiction of the Court to make finalorders. In my view, that is the only purpose of the phrase. It has nothing tosay,either expressly or by implication from its context, about thecircumstances in which interim orders may be made. Section 170NHis not anexclusive code in relation to reinstatement orders. It does not exclude theoperation of s23 of theFederal Court of Australia Act in respect of thepower to make interlocutory orders for reinstatement.

...

In my view, s23 of theFederal Court of Australia Act gives power tomake interlocutory orders in cases in which final orders may be made unders170NG or s170NH. Nothing in these sectionssuggests that they restrict theapplication of s23. Section 23 is available in the same way and foressentially the same reasonsas it is available in relation to298U."

30North J noted the established principles relating to the making ofinterlocutory injunctions. In connection with the issue whetherthere was aserious question to be tried, his Honour mentioned the contention of counselfor Davids that:

"the picketing was not protected action because:

(a)the notice of intention to take industrial action did not conform tothe requirements of s170MO;

(b)picketing was not industrial action within the definition in s4(1)of the Act;

(c)the action was taken in concert with other Unions and was thereforenot protected, as a result of the operation of s170MM."

31North J expressed views about these contentions (to which we will return)before concluding that, "on the evidence as a whole,the Union has establishedthat there is a serious issue to be tried that the picketers were dismissed, atleast partly, for the reasonthat they engaged in protected action incontravention of s170MU(1)(a)". [Despite the absence of a comma after"protected action,"his Honour undoubtedly meant there was a serious issue thatthedismissal was in contravention of s170MU(1)(a).] He also said NUWhad established a serious question to be tried:

"that Davids threatened to dismiss the strikers, at least inpart, for the reason that they were engaging in protected action, namely,participating in the continuance of the strike, in contravention ofs170MU(1)(b)."

North J emphasised these conclusions were necessarily preliminary; they weremade on the basis of affidavit evidence that had notyet been tested by crossexamination.

32His Honour then turned to the question whether there was a serious questionto be tried that Davids dismissed the picketers,and threatened to dismiss thestrikers, all of whom were members of an industrial association that wasseeking better industrialconditions, because they were dissatisfied with theirconditions: see s298L(1)(l) of the Act. For reasons that he gave, and towhich we will return, North J held there was such a question.

33North J gave attention to a number of matters relevant to the properexercise of his discretion: the strength of the applicant'scase on the issueof serious question to be tried and the balance of convenience in relation tothe strikers, the picketers andMr Pucar. We need not go into these matters.Counsel for Davids did not seek to persuade us we should interfere with themannerof exercise of the Court's discretion, assuming there was power to makethe orders, and NUW's case raised a serious question to betried.

The application for disqualification

34After indicating the relief that he thought appropriate, North J dealt withthe application made by Davids' counsel on 22 September1998 that he disqualifyhimself from determining the application for interim orders and further hearingthe case, on the ground ofreasonable perception of bias. His Honour detailedhis reasons for rejecting that application. We think he was correct to do so.We have had the advantage of reading the reasons for judgment of Burchett J.His Honour there sets out the relevant principles. We agree with, andgratefully adopt, his Honour's analysis. We have considered for ourselves thepassages of transcript upon whichcounsel relied to support the claim ofperceived bias. We agree with Burchett J that they do not establish theclaim.

Power to grant interim relief

35Counsel for Davids repeated to us the submission put to North J that theCourt had no power to grant interim relief restrainingan employer fromterminating an employee's employment in contravention of s170MU or s298K of theAct. Counsel's argument is that"jurisdiction to found the orders must beidentified in theWorkplace Relations Act,that being specificlegislation which sets about directly dealing with the power conferred on theCourt". In particular, counselcontended the Court was not entitled to applys23 of theFederal Court of Australia Act 1976. Counsel cited threeauthorities:Thompson Australian Holdings Pty Ltd v Trade PracticesCommission[1981] HCA 48;(1981) 148 CLR 150,Dunham v Randwick Imaging Pty Ltd(1994) 122 ALR 323 andJackson v Sterling Industries Limited[1987] HCA 23;(1987)162 CLR 612.

36Like North J we think this submission is resolved against Davids by thedecision of the High Court in Patrick Stevedores. Contrary tocounsel's submission to us, the High Court did not holds23 of theFederalCourt of Australia Act to have been available in that case only becausethere was an allegation of conspiracy. At para [27] Brennan CJ, McHugh,Gummow,Kirby and Hayne JJ said:

"Once the jurisdiction conferred on the Federal Court by the Actis invoked, that court has power unders23 of theFederal Court ofAustralia Act 1976 ... to make `orders of such kinds, includinginterlocutory orders ... as the Court thinks appropriate'. That power may beexercisedin any proceeding in which the Federal Court has jurisdiction unlessthe jurisdiction invoked is conferred in terms which expresslyor impliedlydeny thes23 power to the court in that class of proceeding. It cannot beinvoked to grant an injunction where the court acquires its jurisdictionundera statute which provides an exhaustive code of the available remedies and thatcode does not authorise the grant of an injunction. But this is not such acase."

In using the words "this is not such a case", their Honours were referringto a case in which the Federal Court had been asked torestrain a threatenedbreach of s298K by employers. They held, in effect, that para (e) of s298U oftheWorkplace Relations Act did not exclude the general powers conferredon the Court bys23 of theFederal Court of Australia Act. As North Jpointed out, parity of reasoning must lead to the same conclusion about theargument that s298U(b) provides an exclusivecode of remedies.

37InPatrick Stevedores the High Court was not concerned with Division8 ofPart VIB of the Act; there was no "protected action" situation. However,the same line of reasoning must apply to Davids' argument that s170NGprovidesan exclusive code of remedies. There is nothing in Division 8 that providesexpress or implicit support for that proposition.

38BothThomsonandJackson were considered by the High Court inPatrick Stevedores. Their Honours saw no inconsistency between thosedecisions and the view they expressed. Nor do we.

39IfDunham was inconsistent withPatrick Stevedores, we wouldhave to conclude it was wrongly decided. But it is not. The only presentlyrelevant portion ofDunham is what appears at 327-329. Wilcox CJ therediscussed s431 of theIndustrial Relations Act and its predecessors.Section 431 was framed in substantially similar terms to the present s170NG.Far from supporting Davids submission,the discussion indicates that aprovision in the form of s170NG would normally empower the Court to make aninterlocutory order restraininga threatened contravention of statutoryprovisions. The reason the Industrial Relations Court could not take thatcourse inDunhamwas the existence of s170EH, which specificallyexcluded the application of s431 to a contravention or proposed contraventionof thesub-division of theIndustrial Relations Act on which Mr Dunham'scase depended. There is no counterpart of s170EH in this case. As Mr Dunhamhad not yet been dismissed, WilcoxCJ did not need to consider whether, but fors170EH, s431 of theIndustrial Relations Act (or s419 which correspondedtos23 of theFederal Court of Australia Act) would have empowered theCourt to make an interlocutory reinstatement order.

40We reject the submission that the orders made by North J were beyond thepower of the Court.

Serious question to be tried

41As North J appreciated, the first matter that needs to be considered, inrelation to the granting of an interlocutory injunction,is whether there is aserious question to be tried. When the proceeding was commenced, there was athreat by Davids to terminatethe employment of the strikers, if they did notreturn to work on 12 August. They did not return to work that day but didreturnon 28 August. Notwithstanding the delay, Davids took no action todismiss any of the strikers, except Mr Pucar, and counsel forDavids informedNorth J that none of the strikers would be dismissed for having been on strike.Consequently, the dismissal threatdisappeared from the case. The onlyremaining questions, at least on an interlocutory basis, were, first, whetheror not the Courtshould make an order requiring Davids, in effect, to reinstatethe picketers pending final disposal of the proceeding, and, second,whether ornot the Court should restrain Davids from dismissing Mr Pucar. It followedthat, in considering the question of seriousissue to be tried, the mainmatter North J had to consider was whether there was an arguable case that thedismissals of the picketerswere in contravention of the Act. As alreadyrecounted, NUW relied on alleged contraventions of two provisions: ss170MU and298K. Davids submitted the evidence before North J did not disclose anarguable case in relation to either section. If that is correct,there was nobasis for an interim injunction. In order to determine whether it is correct,it is necessary to examine the positionin relation to each section.

The s170MU claim - the issues

42Davids did not dispute NUW's assertion it had dismissed the 52 picketers.It claimed it did so because those employees were guiltyof serious and wilfulmisconduct in that they interfered "with the free access to or exit of anyvehicles or people" from one ofthe company's warehouses; that is, they wereinvolved in a picket that stopped trucks approaching the warehouse whilstpeople involvedin the picket attempted to persuade the driver not to proceedfurther. NUW said this was "protected action" within the meaning ofDivision 8ofPart VIB of the Act and, consequently, the dismissals contravened s170MU.Davids argued the picketing was not "protected action" for any oneof threereasons:

(i)the picketing was not "industrial action" within the meaning of the Act;therefore, it could not be "protected action";

(ii)even if the picketing was "industrial action", NUW had given no notice ofthat action, as required by s170MO of the Act; thereforeit was not "protectedaction"; and

(iii)even if the picketing was initially "protected action", it lost thatstatus when NUW first acted in concert with other organisations: sees170MM.

We will deal separately with each of these points.

Is picketing "industrial action"?

43The question whether picketing falls within the statutory definition of"industrial action", quoted above at para 17, is notfree from difficulty. Thequestion has been touched on in several cases but not conclusively resolved.Counsel for NUW argued picketingdoes fall within the definition andparticularly relied on para (c). Counsel said the picket imposed in this casewas a "ban, limitationor restriction on the performance of work", (by thosewhose trucks were stopped) that was adopted (by NUW and some of its members)inconnection with an industrial dispute. Counsel acknowledged para (c) might beread as referring only to bans, limitations andrestrictions on the activitiesof those imposing them, but they argued this reading unwarrantedly restrictsthe words used in theparagraph; the better view is that Parliament intendedpara (c) to be given a wide interpretation. They argued picketing has beenafamiliar form of industrial action for generations; it is therefore unlikelythat Parliament chose to exclude it, when it adoptedthe current paras (a) to(f) in 1988. Counsel referred to a comment about the definition in theExplanatory Memorandum circulated,by the then Minister for IndustrialRelations, with the Bill for the 1988 Act:

"Industrial action' is given a wide meaning, and is capable ofapplying to conduct by any persons, whether employers, organisations,employeesor others. Underparagraphs (e) and (f) of the definition,conduct described in the definition is not to be regarded as industrial actionby employees where agreed to orauthorised by their employer, or as industrialaction by an employer where agreed to or authorised by, or on behalf of,employeesof the employer."

(The 1988 definition differed from that used in the previous legislation,theConciliation and Arbitration Act 1904, primarily by the addition ofpara (c). The 1904 Act definition included paragraphs substantially identicalto paras (a), (b)and (d), but not para (c).) Counsel also referred to acomment made by a later Minister for Industrial Relations, in his SecondReading Speech for the 1993 Bill that first introduced into Commonwealth lawthe concept of "protected action":

"Industrial action - including strikes and lockouts - whichtakes place during a bargaining period for a proposed single businesscertifiedagreement will be immune from sanctions. Action involving personal injury,wilful or reckless damage or the unlawful takingof property, or defamation,will, however, not be immune from sanctions. This aspect of the legislationwill give effect to Australia'sinternational obligations in respect of therights of workers to engage in industrial action, subject to reasonablerestrictions.

For access to the bargaining period, a party must give notice to the otherparty of an intention to seek an agreement and must complywith directions fromthe commission regarding bargaining in good faith. The commission will be ableto terminate a bargaining periodon application if it considers a party is notgenuinely trying to reach an agreement or is not complying with directionsrelatedto bargaining in good faith. The commission may terminate thebargaining period if the industrial action is threatening to endangerthesafety, health or welfare of the public or cause significant damage to theAustralian economy."

44Counsel for Davids turned their opponents' argument back upon them. Theyconceded picketing was a well-known form of industrialaction in 1988 andargued it should therefore be concluded that, if Parliament had intended toinclude picketing in the definition,it would have referred to it by name.Counsel for NUW responded by pointing out the definition also fails to makeexpress referenceto strikes and lockouts; yet these were clearly intended tobe "protected action" within the meaning of the 1993 amendment, and thereforeaspecies of "industrial action".

45InF H Transport Pty Ltd v Transport Workers' Union of Australia(1997) 145 ALR 366, Drummond J was asked to restrain action "in which TWUofficials ... have intervened at terminals operated by NQX, John Bain Transportand United Transport Services, to prevent the applicants' vehicles and driversloading and unloading goods, including containers". There was a questionwhether this was "protected action". Drummond J held it was arguable it wasnot, but only because it seemedthe conduct was being undertaken with theadditional purpose of coercing companies, other than the employer, to increasetheir wagerates. His Honour seems to have accepted, although probably withoutargument on the point, that picketing activity was "industrialaction".

46Castlemaine Perkins Pty Limited v Australian Liquor, Hospitality andMiscellaneous Workers Union of Australia[1997] S.C.Qld (2 December 1997)was a decision of Derrington J. The case concerned a claim under Queenslandindustrial legislationthat was modelled on the federal legislation. TheQueensland legislation contained a definition of "industrial action" that wassimilar to that ins4 of theWorkplace Relations Act. It also made noexpress reference to picketing. Derrington J commented:

"It [picketing] is such a significant part of industrial actionthat if it were intended to have been excluded it might be thought,firstly,that that would somehow be made plain rather than depend upon an exclusivereading of fairly broad provisions of a definition;and secondly, that it wouldhave been referred to in the Minister's speech."

47The question whether picketing might constitute "industrial action" wasdebated before the Australian Industrial Relations Commission("theCommission") in proceedings relating to the termination of a bargaining period:see (before Justice Boulton)Construction, Forestry, Mining and EnergyUnion v Coal and Allied Operations Pty Ltd(1997) 77 IR 269 and (on appealto the Full Bench)Coal and Allied Operations Pty Ltd v Construction,Forestry, Mining and Energy Union(1998) 80 IR 14. There was a division ofopinion on the point. At first instance Justice Boulton thought picketingmight constitute "industrialaction", as did Justice Munro on appeal.President Giudice took the opposite view. Commissioner Larkin left herposition unclear.

48The Full Bench decision inCoal and Allied Operationscame underchallenge before a Full Court of this Court (Spender, Moore and Branson JJ):seeConstruction, Forestry, Mining and Energy Union v Giudice("CFMEU")(1998) 159 ALR 1. In granting writs of certiorari andmandamus, the Court dealt with many matters, one of which was "the relevance ofpicketing indeciding whether to terminate a bargaining period". In connectionwith that topic, the Full Court heard argument as to whether picketingwas"industrial action" within the meaning of s4 of the Act, but their Honours didnot express a final conclusion about the matter. They said at 13-14:

"The only basis on which picketing might be comprehended by thedefinition of industrial action is if it is conduct of the type identifiedinpara (c) of the definition. That is, if it is a restriction on the performanceof work or on the acceptance of or offering forwork. The word `picketing' maysimply describe a lawful assembly outside a workplace (or elsewhere) protestingabout and drawingattention to conditions of employment in the workplace. Theword `picketing' may also describe an assembly which engages in protestof thistype but also prevents or impedes access into and out of the workplace (orelsewhere).

Even if used to describe the latter situation, it is unlikely that picketingis conduct comprehended by the expression `a ... restrictionon the performanceof work' as it appears in para (c). Having regard to the context in which thatexpression appears, it is morelikely to relate to restrictions imposed by anemployee or a group of employees on the work they do so as to limit the scopeof thatwork or the time or the circumstances in which it is done. While theexpression `a ... restriction ... on acceptance of or offeringfor work' inpara (c) might comprehend picketing of the latter type which preventedemployees who were continuing to work from attendingthe workplace it isunlikely to have such a wide meaning if the other elements in para (c) relateto circumstances of the type justdiscussed. It is likely that para (c) in itsentirety is directed to the conduct of employees who engage in conduct limitingthework they do or the circumstances in which they offer to doit."

49It is clear from the Full Court's reasons inCFMEU that theirHonours were aware of the judgments of Drummond J and Derrington J mentionedabove. It is not clear whether they werereferred to the 1988 ExplanatoryMemorandum or the 1993 Second Reading Speech. Nor is it clear whether argumentwas addressed tothe consequences of adopting one view or the other. There isat least one important consequence.Section 127(1) of theWorkplaceRelations Act provides:

"(1)If it appears to the Commission that industrial action ishappening, or is threatened, impending or probable, in relation to:

(a)an industrial dispute; or

(b)the negotiation or proposed negotiation of an agreement underDivision 2 ofPart VIB; or

(c)work that is regulated by an award or a certified agreement;

the Commission may, by order, give directions that the industrial action stopor not occur.

Subsection (2) permits the Commission to make an order under subs (1) of itsown motion or on the application of a party to the industrialdispute, a personwho is directly affected, or likely to be directly affected, by the industrialaction or an organisation of whichan affected person is a member. Subsection(5) requires the addressee of an order to comply with it and subss (6) and (7)empowerthis Court to enforce the order by injunction. It will be obviousthat, if picketing is not "industrial action", the Commissionhas no powerdirectly to deal with it.

50In assessing the significance of this point, it is relevant to note that, inthe 1988 Act, s127 took a more limited form; itapplied only to "industrialaction by persons engaged in the public sector". Nonetheless, to the extentthat such persons mightengage in picketing, the point was the same.

51The relationship between s127 and the definition of "industrial action" wasdiscussed by French J in a decision given only twodays before the Full CourtCFMEU judgment:Communications Electrical Energy Information PostalPlumbing and Allied Services Union of Australia v Laing(1998) 159 ALR 73("CEPU"). The case arose out of stoppages at three power stations, inprotest against industrial legislation introduced into the WesternAustralianParliament. A picket line was established at Muja power station. CommissionerLaing made orders under s127 of the Act prohibiting the CEPU, its officials,agents and employees taking part in industrial action "including engaging in orbeing partyto or concerned in picket lines, strikes, bans and limitations onperformance of normal work". In a proceeding remitted to the FederalCourt bya Justice of the High Court of Australia, CEPU challenged Commissioner Laing'sorders on a number of grounds. One questionwas whether the picketing activityat Muja was "industrial action", as defined in s4 of the Act. At 88 French Jnoted the Muja picketline did not prevent entry and exit of staff of the powerstation who wanted to cross it, "but fuel supplies to the power stationweredisrupted because fuel tankers did not want to cross the picket line". He wenton:

"The general concept of picketing was discussed by Lockhart andGummow JJ inAustralian Builders' Labourers' Federated Union of Workers(WA Branch)v J-Corp Pty Ltd[1993] FCA 266;(1993) 114 ALR 551 at 555-7. It isapparent that it is a wider class of conduct than industrial action under s127.At common law it is not necessarilyunlawful but may become so if it involvesobstruction and `besetting':Sid Ross Agency Pty Ltd v Actors andAnnouncers Equity Association of Australia[1971] 1 NSWLR 760 at 767 (MasonJA).

To constitute `industrial action' under s127 picketing must fall within thestatutory definition of that term. It is not the performanceof work. It canonly qualify as industrial action if it amounts to a `ban, limitation orrestriction on the performance of work'. So a picket line whose purpose is toprevent or deter or discourage employees from attending on their employer'spremises and fromcarrying out their work could constitute a ban for thepurposes of s127. There are therefore circumstances in which picketing maybethe subject of an order as industrial action under s127. In this case theCommission's order literally applied only to such participationin picket linesas was industrial action. The term `industrial action' provided the umbrellaclass within which all classes of conductspecifically proscribed by the orderhad to fall. This was reinforced by the reference in para 4 of the order tothe applicationof the statutory definition of industrial action `for thepurposes of this order'.

The particular picket line did not prevent entry to the power stationpremises nor was there evidence to suggest that it deterredor discouragedentry. Fuel truck drivers, however, did not want to cross it. It is arguablethat the order did not apply to suchpicketing activity as had been undertaken.Whether it did or not would no doubt require a close investigation of the factsconcerningthe establishment and conduct of the picket."

Australian Builders' Labourers' v J-Corp, referred to by French J,was a case under s45D of theTrade Practices Act 1974. That section didnot use the words "picket" or "picketing". The value of the passage cited byFrench J is that it demonstratesthat activities falling within the generaldescription of "picketing" may range from a protest in which the picketers dono morethan communicate their views to persons entering or leaving particularpremises, through various degrees of hindrance to total preventionof ingressand/or egress.

52Activity that merely involves communication of information to personsentering or leaving a site is not "industrial action",within the meaning ofthe definition in theWorkplace Relations Act. Such activity clearlycannot constitute a "ban, limitation or restriction on the performance of work"by the picketers. If thepicketers do no more than communicate information, itis immaterial that the recipient of the information may bepersuaded notto perform, accept or offer for work. On the other hand, if the picket takesthe form ofpreventingorhinderingpeople from performing,accepting or offering for work, its effect is to limit or restrict theperformance of work, or the acceptanceof, or offering for, work. Such conductmay be regarded as falling literally within para (c) of the definition of"industrial action". However, consistently with the tentative view of the FullCourt inCFMEU, we think the paragraph ought to be read as applying onlyto limitations on the work of those imposing the ban. The history of thelegislation and policy considerations persuade us it is likely Parliamentintended to confine the paragraph in this way.

53It will be recalled that s170MT(2) excludes from its immunity "industrialaction" that "has involved or is likely to involve:

(a)personal injury; or

(b)wilful or reckless destruction of, or damage to, property; or

(c)the unlawful taking, keeping or use of property."

North J thought the presence of this exception was a pointer to the meaning tobe ascribed to "industrial action". He said thelimitation of the immunity:

"is likely to have been drawn with picket conduct in mind. Ifpicketing was not industrial action, the limitation would apply onlyto injuryto person or property associated with strikes or conduct such as work to rules.Personal and property injury is far morelikely to be associated with a picketthan with a refusal to work or a work to rules."

54We understand that reaction but are not persuaded the limitation aroseout of consideration of the width of the definition of "industrialaction".There have been, and remain, many exclusions in this Act identical to thosecontained in paras (a), (b) and (c).

55When originally enacted in 1988, the Act contained a provision (s164) whichexcluded actions under a law of a State or Territoryagainst a trade union, oran officer, member or employee of a trade union in relation to what the Actcalled "boycott action". Nolimitations were imposed on the extent of thatimmunity. However, in 1993 s164 was amended so as to exclude from the immunity"conductthat has involved or is likely to involve:

(a)personal injury; or

(b)wilful or reckless destruction of, or damage to, property; or

(c)the unlawful taking, keeping or use of property": see s164(2).

Also a new subs (3) was inserted, dealing with defamation actions.

56At the same time a new section was added, as follows:

"166A(1)Subject to this section, an action in tort under thelaw of a State or Territory may not be brought by a person against anorganisation of employees, or an officer, member or employee of such anorganisation, in relation to conduct by the organisation,or by the officer,member or employee acting in that capacity, in contemplation or furtherance ofclaims that are the subject ofan industrial dispute unless the Commission:

(a)has certified in writing as mentioned in paragraph (6)(a) or (c) in respectof the conduct; or

(b)has certified in writing as mentioned in paragraph (6)(b) in relation tothe person in respect of the conduct.

(2)Subsection (1) does not apply to:

(a)conduct that has resulted in :

(i)personal injury; or

(ii)wilful or reckless destruction of, or damage to, property; or

(iii)the unlawful taking, keeping or use of property; or

(b)conduct arising out of a demarcation dispute; or

(c)conduct arising out of a dispute relating to a claim for payment toemployees in respect of a period during which the employeesengaged, or engage,in industrial action.

(3)A person who wants to bring an action in tort in respect of conduct towhich subsection (1) applies may give written noticeto a member of theCommission or a Registrar stating that the person wants to bring the action.

(4)If a notice under subsection (3) is given to a Registrar, he or she musttell a member of the Commission as soon as practicable.

(5)If such a notice is given, the Commission must take immediate steps to try,or to continue to try, by the exercise of its powersunder this Act, to stopthe conduct.

(6)If:

(a)after the Commission starts to exercise conciliation powers inrelation to the industrial dispute it forms the opinion that it isnot likelyto be able to stop the conduct promptly; or

(b)the Commission decides that it would cause substantial injustice to theperson who gave a notice under subsection (3) in respectof the conduct if theperson were prevented from bringing the action to which the notice relateswhile the Commission is exercisingconciliation powers in relation to theindustrial dispute; or

(c)the Commission has not stopped the conduct by the end of 72 hours after thenotice was given under subsection (3) in respectof the conduct;

the Commission must immediately certify in writing to that effect."

57It will be noted that the formula used in s166A(2)(a) differs from that ins164 (and the present s170MT(2)) in that it limitsthe exclusion of immunityonly by reference toactual outcomes of the conduct, as distinct fromactual andlikely outcomes. It will also be noted the exclusionapplies toany conduct by an organisation, or an officer, member oremployee of an organisation acting in that capacity, whatever the nature ofthat conduct; provided only that the conduct is undertaken in contemplation orfurtherance of claims in an industrial dispute. However,the immunity may bebrought to an end by a certificate of the Commission under subs (6).

58The 1993 amendments also added to the Act a new Part VIB providing forcertified agreements and enterprise flexibility agreements. The Part includedDivision 4 dealing with immunity from civil liability. That Division containeds170PM(3), which excluded actionunder any State or Territory law "in respectof any industrial action that is protected action unless the industrial actionhas involvedor is likely to involve:

(a)personal injury; or

(b)wilful or reckless destruction of, or damage to, property; or

(c)the unlawful taking, keeping or use of property."

It will be noted the exclusion formula was similar to that in s166A(2)(a),except that it included action that had one of the stipulatedlikelyoutcomes.

59The 1996 amending Act repealed the old Part VIB. It substituted a new PartVIB, dealing only with certified agreements. ThatPart contains s170MT(2),whose terms are substantially identical to the old s170PM. The amending Actalso added Part VID relatingto Australian workplace agreements. Division 8 ofthat Part contains a provision giving a limited immunity, conditional on givingthree days' notice of intention to take the action. Section 170WC(1) providesthat, subject to a qualification about defamationactions:

"(1)... no action lies under any law (whether written orunwritten) in force in a State or Territory in respect of AWA industrialactionunless the action has involved or is likely to involve:

(a)personal injury; or

(b)wilful or reckless destruction of, or damage to, property; or

(c)the unlawful taking, keeping or use of property."

The term "AWA industrial action" is defined by s170WB, in relation to anemployee's action, as "any industrial action taken by anemployee directlyagainst an employer for the purpose of compelling or inducing the employer" tomake an AWA. Although the definitionincludes the words "industrial action",this term does not have its s4 meaning; it is defined for the purposes of theDivision bys170WB as meaning:

"(a)the performance of work in a manner different from that in which it iscustomarily performed, or the adoption of a practicein relation to work, theresult of which is a restriction or limitation on, or a delay in, theperformance of the work; or

(b)a ban, limitation or restriction on the performance of work, or acceptanceof or offering for work; or

(c)a failure or refusal to attend for work or a failure or refusal to performany work at all."

60Significantly, this definition is intended to be used in relation toaction taken by a single employee against an employer. Thedefinitionreflects that included in s4, but without the exclusions contained in paras(e), (f) and (g) of that definition. Presumablythose exclusions were regardedas inapplicable to action in support of the making of an Australian workplaceagreement. Such anagreement is, by definition, an agreement between anemployer and an individual employee (see s170VF), although two or moreagreementsmay be collectively negotiated (see s170VE). For present purposesthe interesting point is that, even in that context, Parliamentthought itappropriate to exclude action involving personal injury etc from the immunityconferred by s170WC.

61It is also interesting to note that Division 8 of Part VID employs a conceptcalled "general industrial action". This conceptis defined by s170WB asmeaning:

"... any action taken by an employer or employee for the purposeof:

(a)compelling or inducing an employer or employee to accept particularterms or conditions of employment; or

(b)enforcing compliance with any demand relating toemployment."

The action referred to in this paragraph is not limited to the particulartypes of action specified in either the s4 or s170WB definitionof "industrialaction".

62Particularly having regard to the terms of ss170WB and 170WC, it seemserroneous to conclude that Parliament must have had picketingin mind whendeciding to limit the immunity conferred by S170MT(2) on "industrial action".Rather, it seems to us, the explanationis that Parliament was prepared toconcede a right to strike, the essence of which is withdrawal of the employee'sown labour, butonly provided the exercise of this right does not haveunacceptable consequences. One possible consequence is economic damage; hencethe powers of the Commission under s166A(6). Another possible consequence isactual or likely personal injury, destruction of, ordamage to, property or theunlawful taking, keeping or use of property. As a matter of general policy,reflected in various provisions,Parliament was not prepared to confer immunityagainst State and Territory law where one of these consequences occurred or waslikelyto occur.

63We do not see inherent improbability in this conclusion. Although we agreethat personal injury or property damage is a morelikely outcome of picketingthat involves obstruction and besetting than of a mere ban by employees uponthe performance of all orpart of their own duties, it is not difficult toenvisage circumstances in which a restriction on the employee's own activitiesmightoccasion personal injury or property damage. For example, a limitationby a road traffic controller might create a risk of injuryto members of thepublic; similarly, in the case of persons having the care of ill or disabledpeople or young children. A suddenwithdrawal of labour might have the resultof damaging sensitive equipment.

64We think Part VIIIA of the Act, inserted in 1996, is also relevant to theinterpretation of "industrial action". That Part containss187AA whichprescribes a general rule that an employer "must not make a payment to anemployee in relation to a period during whichthe employee engaged, or engages,in industrial action": see s187AA(1). Section 187AB forbids an organisationor an officer, memberor employee of an organisation, to make a claim for sucha payment or threaten or take industrial action with intent to coerce theemployer to make such a payment.

65The concept of "industrial action" is central to those prohibitions. It istherefore important to note that the 1996 amendmentsadded para (g) to thatdefinition. That addition had the effect of excluding from the concept of"industrial action" activitiesreasonably attributable to health and safetyconcerns. Employees were not to be penalised for actions based on thoseconcerns.

66The prohibitions in s187AA(1) and s187AB relate to all industrial actionwhich falls within the definition in s4(1), whetheror not it is protectedaction within the meaning of s170ML(1) of the Act or AWA industrial actionwithin the meaning of s170WB(1)of the Act:Independent Education Union ofAustralia v Canonical Administrators, Barkly Street Bendigo[1998] FCA 1127;(1998) 157 ALR531 at 553-554.

67The prohibitions are presumably to be justified on the basis that they do nomore than reflect the common law rule that deniesremuneration to an employeewho has refused to perform the work required by his or her contract ofemployment: seeAutomatic Fire Sprinklers Pty Ltd vWatson[1946] HCA 25;(1946) 72CLR 435 at 466;Miles v Wakefield Metropolitan District Council[1987] UKHL 15;[1987]1 AC 539 (HL) at 552, 561, 565, 574;Wiluszynski v Tower Hamlets LondonBorough Council[1989] ICR 493 (CA) at 500, 503 and 506;Re IndependentEducation Union of Australia at 548 - 552. There could be no suchjustification in the case of an employee who continued to perform his or hernormal duties,whilst also supporting a picket; unlikely though this might bein actual practice.

68Counsel for NUW submit there are policy reasons why the definition of"industrial action" in s4 should be interpreted in sucha way as to includepicketing. Their reason is the matter mentioned by French J inCEPU; aconstruction that excludes picketing from the definition prevents theCommission from making orders under s127 of the Act, includingorders made onthe Commission's own motion, to prevent or stop picketing. Counsel submitParliament should be taken as regardingsuch a power as a desirable one.

69A "picket", in the industrial relations setting, is a person who standsoutside an establishment to make a protest, to dissuadeor to preventemployees, suppliers, clients or customers of the employer from entering theestablishment. "To picket" is to postor serve as a picket at anestablishment. A "picket line" is a line of persons acting as pickets. AsFrench J pointed out inCEPU,picketing is unlawful only if it involvesobstruction and besetting. The requirements of obstruction and besetting,before picketingwill constitute an actionable tort, were discussed by Murphy JinDollar Sweets Pty Ltd v Federated Confectioners Association ofAustralia[1986] VicRp 38;[1986] VR 383 where his Honour said (at 388 - 389) :

"I am also satisfied that the acts of all the defendants whichhave now been repeatedly performed over many months cannot be consideredto bea lawful form of picketing, but amount to a nuisance involving, as they do,obstruction, harassment and besetting. The formof picketing which theevidence discloses here is not peaceful but amounts clearly to an interferencewith the rights of a personwishing to enter or at least to proceed and makedeliveries or take supplies to or from the plaintiff's premises. In fact, sooftenas they are able, the defendants physically prevent persons and vehiclesfrom approaching and entering the plaintiff's premises. This, as I have said,is done by obstruction, threats and besetting, the latter meaning, in thiscontext, to set about or surroundwith hostile intent. Besetting isappropriately a term applied to the occupation of a roadway or passagewaythrough which personswish to travel, so as to cause those persons to hesitatethrough fear to proceed or, if they do proceed, to do so only with fearfortheir own safety or the safety of their property. ..."

70Such conduct constitutes an actionable tort at the suit of the person whois denied entry to the premises of the employer in derogationof that person'sright to enter (seeWilliams v Hursey[1959] HCA 51;(1959) 103 CLR 30 at 77 - 78) orat the suit of the employer: seeJ Lyons & Sons v Wilkins[1899] 1Ch 255 (CA) at 267 - 268, 271, 274 andSid Ross Agency at 767.

71As we have already observed, picketing which does not involve obstructionand besetting does not fall within the definition of"industrial action"; itdoes not relate to the performance of work in the circumstances specified inparagraphs (a), (b), (c) or(d) of the definition. Such conduct does not needthe protection of s 170MT(2) because it is not actionable by anyone.Only picketingwhich involves obstruction and besetting, and is therefore anactionable tort, gives rise to policy considerations as to whetherit wasintended to be protected from suit, or should be so covered if the languagewill permit.

72Picketing which interferes with a person's liberty and freedom of movementinfringes that person's common law rights; in particular,the right to freepassage in public places and on public roads and footpaths: seeWilliams vHursey at 78 - 79;Melbourne Corporation v Barry[1922] HCA 56;(1922) 31 CLR 174at 196, 206;City of Keilor v O'Donohue[1971] HCA 77;(1971) 126 CLR 353 at 363;Fourmile v Selpam Pty Ltd[1998] FCA 67;(1998) 80 FCR 151 at 186. There is apresumption in the interpretation of statutes that there is no intention tointerfere with common law rightsor basic common law doctrines unless the wordsof the statute expressly or necessarily require that result:Baker vCampbell[1983] HCA 39;(1983) 153 CLR 52 at 123.

73To interpret para (c) of the definition of "industrial action" in such a wayas to include picketing infringing upon the rightsand freedoms of others,would be to confer statutory immunity on such conduct; provided only it wasengaged in upon proper noticeto the employer and for the purposes ofnegotiating a certified agreement or an AWA. It would authorise interferencewith the rights,not only of the employer, but also of other affected personswho, but for the immunity, would have a right of action at common law. Theinterpretation would substitute, for a remedy in common law courts of competentjurisdiction, a mere right to apply to the Commission for an order prohibitingthe conduct. Bearing in mind the presumption mentioned in the last paragraph,we do not think the definitionshould be interpreted in that way. We do notdiscern a clear indication in the Act that Parliament contemplated thatpicketing involvingobstruction and besetting, and which therefore amounts toan actionable tort, may be protected industrial action, provided only itdidnot involve, or was not likely to involve, personal injury, wilful or recklessdestruction of property or unlawful taking, keepingor use of property.

74The fact that the Commission may not make orders under s 127 of the Actprohibiting picketing does not mean that picketing, undertakenand incidentalto industrial action of the type falling within the jurisdiction of theCommission, is irrelevant to a decision bythe Commission whether or not todirect that the industrial action stop or not occur. Nor is picketingirrelevant to a determinationby the Commission whether or not it is satisfiedof the existence of one or more of the circumstances specified ins 170MW(2) to(7) of the Act, when it has to decide whether or not tosuspend or terminate the bargaining period under s 170MW(1): seeCFMEU at 14. Further, actionable picketing engaged in by anorganisation of employees, or by the officers or employees of such anorganisationis covered by s 166A(1). The Commission has power unders 166A(6) to exercise conciliation powers to stop the picketing, if itreceivesa notice under s 166A(3).

75Additional support for our conclusion comes from s 4(9) of the Actwhich provides, so far as is presently relevant :

"4(9)For the purposes of the Act:

(a)conduct is capable of constituting industrial action even if the conductrelates to part only of the duties that persons arerequired to perform in thecourse of their employment."

76The consequence for the present case is that the picketing did notconstitute "industrial action", and so could never have constituted"protectedaction" within the meaning of s170ML(1) of the Act; it could not thereforeattract the immunity provided by s170MT.

The notice of action

77Our conclusion about the proper interpretation of "industrial action" makesit strictly unnecessary for us to determine Davids'submission that the noticeof action given by NUW on 16 June 1998 was ineffective to make the picketing"protected action". However,as the issue is of some general importance andwas fully debated, we think it appropriate to indicate our view.

78Leaving aside action taken in response to a lockout by the employer, theeffect of s170MO(1) is that industrial action by anemployee organisation is"protected action" only if "the organisation ... has given the employer atleast 3 working days' writtennotice of the intention to take the action". Theterm "working day" is defined by s170LF, in relation to a single business orpartof a single business, as "a day on which employees normally perform workin that business or part". The Act does not specify therequisiteparticularity in the notice's description of "the action".

79Counsel for NUW argued the Act does not require particulars of the proposedindustrial action; "notification of industrial actionsimpliciterissufficient provided the nature of the action is stated". They explained that,by "nature of the action", they meant the "genusof the action"; that is, inthe case of action by an employee or employee organisation, whether it fallswithin s170MO(2)(a) (actionin response to a lockout) or 170MO(2)(b) (actionnot in response to a lockout) and, in the case of an employer, whether or notittakes place in response to employee action: see s170MO(3) and (4).Alternatively, counsel submitted, the notice given in this caseon 18 June 1998covers the picketing activity undertaken by NUW.

80Counsel for Davids contended the picketing activity "was of an entirelydifferent form to that notified by the applicant. Anindefinite total stoppageof work accompanied by picketing cannot properly be characterised as part of`bans and rolling stoppages';particularly when the applicant had earliernotified an indefinite strike and then withdrawn that notification".

81Counsel for both parties mentioned a comment by Wilcox J inConstruction,Forestry, Mining and Energy Union v Curragh Queensland Mining Limited[1998] FCA 1231. In that case, CFMEU faced the difficulty that its more recentnotice of action failed to allow enough time; it did not provide "atleast 3working days' written notice" of its intention to take the action. In anendeavour to avoid that difficulty, counsel forCFMEU fell back on an earliernotice. Wilcox J said:

"The position is not clear but it is possible this notice gavethree clear days' notice of proposed industrial action. However, itidentifiedthe proposed industrial action as `overtime bans, bans on the use ofcontractors, work-to-rule, stop-work meetings androlling stoppages'. Thattype of industrial action is different in kind from a complete cessation ofwork, which was the form ofindustrial action in place on 6 August 1997.Section 170MO(2)(b) of the Act requires `at least 3 working days' writtennotice ofthe intention to takethe action'. No doubt some latitude ispermissible, having regard to the dynamics of industrial conflict, but I thinkthe Act shouldbe construed as protecting only industrial action of the samekind as that described in the notice."(Originalemphasis)

82In dealing with the sufficiency of the notice of action, North J saidthis:

"What is meant by `the nature of the intended action' isgoverned by the context in which s170MO(5) appears. Unlike the equivalentUnited Kingdom legislation:Trade Union & Labour Relations(Consolidation) Act 1992 (UK),the Act provides a comprehensivedefinition of industrial action. In the absence of subsection (5), the onlyrequirement would beto notify that `industrial action' was to be taken. Thepresence of subsection (5) allows me to assume that, in its absence, a simplereference to the expression `industrial action' in a notice would suffice. Thefunction of subsection (5) is to require notice ofthe `nature' of the action.The `nature', in my view, is a reference to the specific element of thedefinition of industrial actionwhich applies to the situation. This is alimited requirement to specify the general type of action to be taken. It canbe contrastedto a requirement to notify `particular' action intended to betaken. There is good reason for a limited notice requirement. Theconstruction, which I favour, has the advantage of certainty. Those notifyingneed only choose a description from the list of actionwithin the definition.A requirement to notify particular action would often lead to controversy as towhether the action notifiedfell within the definition. This would injectuncertainty into a process which requires as much certainty as is possible.That Parliamenthas opted for certainty at some expense to comprehensiveness ofdescription is evident from the requirement to specify the time ofcommencementof the industrial action. There is no requirement to specify the duration nor,as is required by the United Kingdomlegislation, whether the action is to becontinuous or discontinuous.

To determine what reference to the definition will suffice as a descriptionof the nature of the industrial action to be taken, itis necessary to examinethe definition of industrial action. The definition covers three types ofactivity. A strike is coveredby subparagraph (d), and work to rules or goslows and like conduct is covered by subparagraph (a). Both provisions referto theaction taken by an employee in respect of the employee's own work.Subparagraphs (b) and (c) include actions of employees in relationto others.They both relate to bans, limitations or restrictions on the performance ofwork, the acceptance of work, or offeringfor work. This subject matterremains constant throughout both subparagraphs. The remaining matters in eachsubparagraph are directedto the jurisdictional basis of the provision. Thus,if the notice refers to `bans', it must be taken to be a reference to the bansreferred to in subparagraphs (b) or (c) of the definition, that is to say, banson the performance of work, the acceptance of work,or the offering for work.The description `bans' sufficiently describes the nature of the industrialaction where the person notifyingintended, at the time of notification, toimpose bans at the time designated in the notice. Reference to thejurisdictional basisof the provision is not necessary in order to describe thenature of the industrial action for the purposes of s170MO(5)."

83North J then turned to the reference, in the notice of 18 June 1998, to"bans and rolling stoppages". He said there was a "seriousissue to be triedthat the notification of `bans' was a sufficient notification of the action ofthe picketers in attending the picket"and "the action of the strikers wassufficiently notified by reference in the notice to `rolling stoppages'".

84The question addressed by North J in the lengthy passage just quoted is oneof considerable difficulty, about which people mayreasonably reach differentconclusions. Parliament did not indicate what degree of specificity itintended by the term "nature ofthe intended action". To interpret this term,on the one extreme, as requiring no more than an indication of industrialaction,as argued by NUW, would be significantly to devalue s170MO(5); thenotice would provide little information. To interpret it, onthe otherextreme, as requiring precise details of every future act or omission would beto impose on the giver of a notice an obligationalmost impossible to fulfil.Industrial disputes are dynamic affairs. Decisions as to future steps oftenneed to be made at shortnotice, sometimes in response to actions of theopposing party or other people, including governments, and changingcircumstances. It would be a major, and unrealistic, constraint on industrialaction to require a party to specify, three clear working days inadvance,exactly what steps it would take. An unduly demanding interpretation ofs170MO(5) would seriously compromise the schemeof Division 8 of Part VIB ofthe Act; it would be difficult for a party to an industrial dispute to obtainthe protection contemplatedby the Division.

85North J appreciated these points. He also appreciated the need forsimplicity of application and certainty. His answer wasto relate the phrase"nature of the intended action" to the various paragraphs in the s4 definitionof "industrial action". However,while we appreciate the factors that droveNorth J to that answer, we have difficulties with it. In the first place,nowhere inthe Act is there any cross-reference between the s4 definition ands170MO(5). The subsection does not use the term "industrial action". Ratherit uses the definite article, in speaking of "theintended action". Itseems to us this implies a measure of particularity greater than would beconveyed merely by quoting the wordsof one of the paragraphs in thedefinition. On this approach, an employees' notice that adopted the wording ofpara (c) of the definitionwould cover a total ban on a particular workactivity, a partial ban or limitation or a ban on the use of particularequipment. It would tell the employer very little. The converse comment maybe made about an employer's notice under s170MU(3) that referredmerely to a"lockout".

86Another reason for rejecting North J's approach is that it places a premiumon legalism. Framers of notices would need to undertakea careful analysis ofthe definition of "industrial action", in the way North J did, in order toidentify the paragraph which bestfits the contemplated activity. Bearing inmind that notices will often, perhaps ordinarily, be prepared by non-lawyersacting withoutlegal advice, it is unlikely Parliament intended that result.

87We think s170MO(5) was designed to ensure that industrial disputants who areto become affected by protected action, in relationto which their usual legalrights are significantly diminished, are at least able to take appropriatedefensive action. For example,an employer may operate a sophisticated item ofequipment that will be damaged if precipitately shut down. If warned inadvanceof a ban that might affect the continued operation of that plant, theemployer might choose a controlled shut down during the periodof the notice.More commonly, perhaps, an employer might use the notice time to communicatewith suppliers and customers, and therebyreduce the consequences for them ofthe notified industrial action. Very often, the recipient of the notice willrespond in a waythat has a legal dimension. For example, a union might reactto a notice by an employer of intent to lockout some employees by givingnoticethat all employees will strike indefinitely as from the commencement of thelockout. Similarly, an employer might respondto an employees' notice of bansby giving notice of a lockout of some or all employees.

88It will be apparent we think it necessary, and sufficient, for parties todescribe the intended action in ordinary industrialEnglish; for example, "anindefinite strike of all employees", "a lockout of all employees employed inthe AB fabrication plant","a ban on overtime", "a ban of the use of MNequipment", "rolling stoppages throughout the mine", "a ban on the servicing ofdeliveryvehicles".

89If we are correct in this approach, it follows that a notice that refersonly to "bans and rolling stoppages", without any indicationof the nature ofthe bans or the location of the rolling stoppages, does not adequately disclose"the nature of the intended action". It certainly does not convey to a readeran intention to mount a picket at which truck drivers will be hindered inentering theemployer's premises.

90It seems to us that, if picketing fell within the definition of "industrialaction", there would be two deficiencies in the noticerelied on in the presentcase. First, the word "ban" would be inappropriate to the picketing that wasadopted. Even if the picketingcould be described as a "limitation" or"restriction" on the work performed by the truck drivers, it could not properlybe describedas a "ban"; a "ban" is a prohibition. Second, an activity sosignificant as the pickets in this case would need specific mentionin a noticedesigned to reveal the "nature" of the intended action.

91We conclude that, even if picketing fell within the definition of"industrial action", the notice of 18 June 1998 would not coverthe picketingactivity by NUW against Davids. As this notice is the only s170MO(5) noticerelied upon by NUW in relation to thatactivity, the picketing would not be"protected action" within the meaning of Division 8 of Part VIB of the Act.

Action in concert

92In view of our earlier conclusions, it is unnecessary for us to determineDavids' further submission that the picket failed,or ceased, to be protectedaction because it was undertaken in concert with one or more unprotectedpersons or organisations: sees170MM. However, we make three observations.First, we agree with North J that there is a difference between taking action"in concert"and action in conjunction. Action "in concert" is actionundertaken as a result of communication between the parties to the action. Itis not enough that there be spontaneous actions by two or more persons, even ifthose actions occur at the same time; although,of course, such actions may"naturally ... lead to the inference that these separate acts were the outcomeof pre-concert, or somemutual contemporaneous engagement": The King andthe Attorney-General of the Commonwealth v The Associated Northern Collieries[1911] HCA 73;(1911) 14 CLR 387 at 400, per Isaacs J. Nor is action "in concert"simply because the action of one person or organisation is supported by others.It follows, and this is our second observation, that, in order to establishthat a picket was undertaken "in concert" between twounions, it would not beenough to show that members of a second union participated in a picket arrangedby the first unless, in thecircumstances, the inference of concert wereappropriate. Those members may have attended the picket as individuals,rather thanat the instigation of their union. Even if they attended at thebehest of their union, this might have been because their unionwished toindicate support for the first union, and/or the picketers as individuals,without any collaboration between the two unions. Third, if the subjectpickets had ceased to be "protected action" because of collaboration in theirmaintenance between NUW andone or more unprotected persons or organisations,this would not affect the status of the picket at an earlier point of time, orthe availability of Division 10 of Part VIB in respect of any action taken byDavids in relation to employees' participation in thepicket at that time.

93If s170MM remained a live issue in this case, it would be necessary toexamine in detail the evidence concerning support forNUW by other unions, ortheir members, so as to determine whether it amounted to action in concert,and, if so, the chronologicalrelationship between the commencement of thatsupport and the conduct that caused Davids to make its various dismissals. Asthatevidence appears controversial, the task would appropriately be left untilthe final hearing.

Disposition of the s170MU claim

94NUW's argument in relation to S170MU of the Act depended (as North J found)on there being a serious issue to be tried in favourof the proposition thatone of the reasons for the 52 picketers being dismissed was that theyparticipated in the picket. However,if the picket was not "protected action",as we hold, the dismissals could not constitute contraventions of s170MU; thebasis ofthe s170MU claim disappears. North J's orders cannot be sustained byreference to that section.

The s298K claim

95We have mentioned that North J held there was a serious issue to be tried inconnection with NUW's assertion that Davids dismissedthe picketers, andthreatened to dismiss the strikers, for the reason that each of them was amember of an industrial association(NUW) and was "dissatisfied with his or herconditions". An important element in his Honour's conclusion was thepresumption enactedin s298V of the Act. The terms of that section are set outabove at para 26. Referring to the High Court decision inPatrickStevedores at153 ALR 647, North J held s298V applies to interiminjunctions. He went on:

"As inPatricks, there was no express denial by Davidsthat it acted for this reason. The person responsible for the dismissal seemsto have beenMr Ray Richards, the District Manager for New South Wales and ACT.He prepared the memo dated 18 June 1998 and gave instructionsfor itsdistribution. He instructed various employees of Davids to observe the picketand report the names of employees who obstructedtrucks on the picket. Hesigned the letters to the picketers, and he instructed Mr Craddock to preparetermination statements andcheques for the picketers. He swore two affidavits,one on 25 August 1998 and one on 4 September 1998. In neither of theseaffidavitsdid Mr Richards directly deny the allegation that the dismissalswere made for the reason that the picketers were members of theUnion which wasseeking better industrial conditions and the picketers were dissatisfied withtheir conditions. Mr Gary Johnson,the National Industrial Relations Manager,swore a very extensive affidavit on 13 August 1998 concerning the history ofthe disputeand the details of the daily happenings on the picket. He sworeanother affidavit on 4 September 1998, well after the extent ofthe Union'sallegations had been ventilated. He also made no express denial of theallegations made by the Union. On the basisof the silence of Mr Johnsonand/or Mr Richards, the case under s298K is made out as a result of the failureof Davids to dischargethe onus of proof."

96North J turned to an argument apparently advanced by Davids:

"It may be suggested that it was implicit in Davids' case thatit acted against the picketers solely for the reason that they wereobstructingtrucks on the picket. In my view, there is a serious question to be tried thatDavids did not dismiss the picketerssolely because they obstructed trucks onthe picket. The videos of the conduct on the picket after 13 July 1998 showconduct onthe picket ranging from picketers wandering onto the roadway in agroup and causing trucks to stop for a few minutes to violent resistancetopolice attempting to drag picketers from the roadway in front of trucks. Inrespect of the conduct on the picket before this,the Union conceded that therehad been significant obstruction to trucks. In almost all cases, Davids didnot identify particularconduct of individual employees upon which it based itsdecision to dismiss that employee. Davids' position was that it would dismissemployees if they were involved in any obstruction of trucks, however minor.It is unlikely, in my view, that Davids would have believedthat such conductwould justify dismissal in all the circumstances. It is arguable, on theevidence at this stage, that Davids wascommitted to dismiss some of itsemployees who were on strike whatever the extent of their conduct on the picketor even if suchconduct had minimal effect on the movement of trucks. Therewas advantage to Davids in asserting picket conduct as the reason becauseitcontended the picketing could not be protected action. That Davids was notsolely concerned with conduct on the picket is indicatedby evidence whichsuggests that Davids was not interested to hear any explanation from thepicketers of their conduct. Althoughthe letter to the picketers invited themto phone and explain their position prior to termination, there is evidencethat the invitationwas issued, in some cases, after the time for explanationhad passed, that, in other cases, there was no answer on the phone numbergivenin the invitation and, in several cases, when employees were able to speak toMr Small, he was not interested in any explanationbut seemed to havedetermined upon dismissal in any event. The evidence suggests that thedecision to dismiss the picketers wasnot solely because they obstructed truckson the picket. Davids has denied that the picketers were not given a properopportunityto explain their actions. There is a serious issue to be tried onthis matter. I emphasise that I make no final findings as tothe reasons forDavids actions. That is not the present task. But the evidence does satisfyme that the reason for dismissal ofthe picketers was not only for obstructingtrucks on the picket."

97Finally, North J dealt with the claim under s298(1)(l):

"The next question, then, is whether there is a serious issue tobe tried that a reason for the decision to dismiss the picketerswas aprohibited reason. It is undoubted that the Union was seeking betterconditions and that the picketers were dissatisfied withtheir conditions. Thedismissals occurred in the context of a long-running industrial dispute aboutwages and conditions. Particularlyin the absence of an express denial, it islikely that part of the reason for the action against the picketers and thestrikers wasthat they were members of the Union which was seeking betterconditions and that they were dissatisfied with their conditions. Thus,in myview, the Union has established a serious issue to be tried that Davids actedfor the prohibited reason set out in s298L(1)(l)in respect of both thepicketers and the strikers. In the light of these conclusions it is notnecessary to consider whether theUnion has made out a case under s298L(1)(e)or (n), or a case that the purported terminations of the picketers wereineffective andvoid."

98In submissions to us, counsel for NUW emphasised the presumption providedby s298V of the Act and the other points made by NorthJ. They referred toevidence that some of the letters inviting an explanation were issued after thetime for explanation had passed,the difficulty some employees experienced inmaking contact with the officer appointed to hear any explanation and evidenceindicatingthat officer's lack of interest in hearing any explanation. Perhapsmore significantly, they cited evidence in an affidavit dated25 August 1998 ofAndrew Joseph, an NUW official, that on 17 July 1998 he attended a meetingconvened by John Robertson of the NewSouth Wales Labor Council involving GaryJohnson, Davids' Industrial Relations Manager. According to Mr Joseph'saffidavit, duringthat meeting Mr Johnson said to him words to the effect:"Davids intends to terminate another ten people". On 24 July, Davidsterminatedanother ten NUW members, allegedly for attending the picket on 20July.

99Although Mr Johnson made three affidavits after 25 August 1998, on 4September, 10 September and 5 December 1998, he did notdeny the statementattributed to him by Mr Joseph; and this despite the fact that his lastaffidavit referred specifically to thesending of letters to ten employeesdemanding explanations of their conduct on 20 July and their terminations fourdays later. Counselfor Davids offered no answer to their opponents' referenceto Mr Joseph's evidence.

100The suggestion of NUW's counsel was that the dismissals were an exercise inintimidation; Davids thought it would assist theircause in the industrialdispute to terminate a number of the employees and they used their allegedpicketing activity as an excuse. Counsel claim this is revealed by the factthat Mr Johnson was able to specify on 17 July that there would be ten furtherdismissals,yet the relevant picketing had not yet occurred.

101We have considered the affidavits referred to by North J and counsel forNUW. Not only was it correct for his Honour to sayneither Mr Richards nor MrJohnson directly denied NUW's allegation that the dismissals were made for thereason referred to in s298L(1)(l)of the Act, neither of these men directlyasserted the 52 picketers were dismissed for picketing. The nearest approachto such anassertion was in Mr Richards' affidavit of 25 August 1998. He therereferred to the sending of letters to persons identified tohim as picketers bynamed Davids' officers and reports to him of alleged responses andnon-responses to those letters. In relationto each batch of letters, he thensaid: "In the absence of any satisfactory explanations employees numbered[numbers stated] havenow had their employment terminated". Mr Richards didnot identify the person who made the termination decisions or specify anyreason. It is not apparent whether or not he was involved in any of thedecisions to terminate or whether or not he agreed withthem.

102Davids' affidavit evidence was extensive. The affidavits were compiledover a period of almost four months. Throughout thattime, Davids wasrepresented by experienced counsel and solicitors. The reason for thetermination of the picketers was a centralissue in the case. Under thesecircumstances, it must be concluded Davids made a deliberate decision torefrain from proving theidentity of the person who decided on theterminations, or to adduce evidence from that person as to his or her reasons.Perhapsthis was a tactical decision; Davids might have thought it would assistNUW's s170MU claim if Davids proved that picketing was thesole reason for theterminations. However that may be, the result is there is no evidencerebutting the presumption provided bys298V.

103In relation to para (l), counsel for Davids submitted:

"... it is clear that there was simply no evidence before hisHonour that any dismissed employee was dissatisfied with his conditions,evenif it be accepted that the union was seeking better industrial conditions.There were a number of people engaged in the conductidentified by therespondent as the reason for termination who were not even employees. Itcannot be (and ought not to have been)inferred that persons who engaged in theconduct complained of did so because they were dissatisfied with theirconditions."

104This submission is disingenuous. Whether or not their presence on thepicket line was the sole reason for their dismissal, itappears to be commonground that all the dismissed employees participated in the picket. They didthis after having been told byDavids on 18 June 1998 that any employee whointerfered with access to or exit from any of the warehouses will be guilty ofseriousand wilful misconduct and the "employee's employment will be terminatedwith immediate effect". It must have required some courageand resolution forindividual employees to defy this threat. While we appreciate employees mighthave been under peer pressure toparticipate in the picket, it is reasonable toinfer, at least for interlocutory purposes, that most of the picketers wereactuatedby dissatisfaction with their industrial conditions. Withoutwidespread dissatisfaction, it seems unlikely the picket could havebeenmaintained.

105We hesitate to accept the suggestion of intimidation made by counsel forNUW; it attributes to Davids a high measure of duplicity. But it is notnecessary for us to determine that matter. The question is whether we aresatisfied that North J erred in holdingthere were serious issues to be triedregarding NUW's claim that "the decision to dismiss the picketers was notsolely because theyobstructed trucks on the picket" and that one of thereasons was the reason proscribed by para (l) of s298L(1) of the Act. We arenot so satisfied.

106Section 298K forbids an employer from dismissing an employee for aprohibited reason or for reasons that include a prohibitedreason. Theprohibited reasons are contained in s 298L. Each of the reasons relatesto the exercise of the right of an employeeor independent contractor to join,or refuse to join, an "industrial association" (as defined) and, where theemployee becomes amember of an industrial association, to take collectiveaction by or through the industrial association in pursuit of their industrialinterests. Section 298L(1)(l) is concerned to ensure that an employee who isdissatisfied with his or her industrial conditionsis not discouraged fromparticipation in concerted action engaged in by the industrial association ofwhich the employee is a memberand which is seeking better industrialconditions. The objective of s 298K is to ensure the threat of dismissalor discriminatorytreatment cannot be used by an employer to destroy orfrustrate an employee's right to join an industrial association and to takeanactive role in that association to promote the industrial interests of both theemployee and association.

107In the context of the Act, Part XA does not stand alone. It is aimed atensuring that employees may band together, if theywish, for collectivebargaining of the type provided for in the Act to achieve the broaderobjectives of the Act as contained ins 3. In this regard the Actoperates in the same way and to the same ends as similar legislation in theUnited States of America(National Labor Relations Act ss 2(3), 7,8(a)(1,3), 13 as amended 29 U.S.C.A.S. 152(3), 157, 158(a), (1,3), 163);American Ship Building Company v National Labor Relations Board[1965] USSC 53;85 S.Ct955 (1965);National Labor Relations Board v Brown[1965] USSC 57;85 S.Ct 980 (1965).That which is protected by such legislation is more than the right to be amember. It is the right to participate in protectedunion activities,including the taking of collective industrial action against an employer toseek to obtain better industrial conditions:American Ship BuildingCompany at 965.

108Section 298K requires that an applicant for relief under s 298U mustprove that the motive for the conduct was a prohibitedreason. That is, theapplicant must prove the state of mind of the employer. Where an employee isdismissed, the reason for thedismissal must be a reason falling withins 298L(1) of the Act.

109Section 298L(1)(l) requires that the applicant prove the employee wasdismissed from his or her employment. It also requiresit be proved that theemployee was at the time of the dismissal dissatisfied with his or herindustrial conditions, and was a memberof an industrial association that wasseeking better industrial conditions. In order to make the link between thedismissal andthe circumstances which the applicant must establish to bring thedismissal within s 298K, the Act provides in s 298V a statutorypresumption that the link exists in certain circumstances. Under s 298Vin proceedings under Division 6 of Part XA of the Act fora contravention of asection in Part XA, an allegation in those proceedings of conduct for aprohibited reason is sufficient forit to be presumed that the conduct wasengaged in for that reason unless the employer proves to the contrary. Section298V doesnot relieve the applicant in proceedings under Division 6 of Part XAof the Act from proving on the balance of probabilities eachof the ingredientsof the contravention. It enables the allegation to stand as sufficient proofof the fact unless the employerproves otherwise:The King v Hush; Exparte Devanny[1932] HCA 64;(1932) 48 CLR 487 at 507.

110Where there is an application for interim relief in proceedings under theDivision, the onus remains upon the applicant to demonstratethat there is aserious question to be tried that the dismissal occurred for a prohibitedreason. If a serious question to be triedis made out in respect of the otheringredients of the alleged contravention, s298V operates to establish there isa serious questionto be tried that the dismissal was for a prohibited reason.It remains available to the employer to demonstrate at the interlocutorystagethat the reason for the dismissal was other than for a prohibited reason. Theweight of that evidence may be such as to persuadethe court there is noserious question to be tried.

111In the present proceedings Davids submitted that the weight of the evidenceis against a finding that dismissal was for anyreason other than taking partin picketing which impeded the movements of trucks into and out of Davids'premises. The submissionis that the employees were warned before thepicketing commenced that those employees who engaged in picketing which impededmovementsinto and out of the premises would be dismissed and Davids actedthroughout in accordance with that warning. Because the conductwas consistentwith the warning, Davids submit s 298V cannot operate in such a manner asto make the mere allegation of a prohibitedreason enough to make out a seriousquestion to be tried on the s298L(l) issue. The essence of the submission isthat dismissalfor unlawful picketing does not contravene s 298L(1)(l).

112The difficulty with Davids' submission is the uncontradicted evidence ofMr Joseph that, on 17 July 1998, Mr Johnson, informedhim that Davidsintended to terminate another ten people. That statement was evidence of apresent intention of Davids to terminatein the future a specific number ofemployees. The reason for such a proposed course of conduct was not given.Specifically, it wasnot tied to the stated policy to dismiss only picketerswho impeded movements into or out of Davids' premises. The subsequentdismissalof another ten employees on 24 July 1998, for engaging in picketingon 20 July, put in issue not only whether or not those ten employeesweredismissed for a reason other than picketing, but also whether or not theemployees previously dismissed were dismissed solelyfor the reason that theywere picketing in such a way as to impede access. The statement of Mr Johnsonwas itself evidence thatthere was a serious question to be tried that therewas a different or additional reason for the dismissals, which was a prohibitedreason.

113Section 298V of the Act, having regard to the allegations in theproceedings and the state of the evidence, provides sufficientproof of aprohibited reason for the purpose of interlocutory relief. The evidence reliedupon by Davids was not of sufficient weightto deprive the NUW of the benefitof the presumption in the proceedings before North J. Even if the reasonof Davids for terminatingthe employees was their engagement in the strikeaction and picketing, having regard to the concept of membership of anindustrialassociation being wider than the right to join, there remains aserious question to be tried as to whether the dismissal of the employeesforengaging in the collective industrial action taken by the NUW as part of anindustrial campaign for improved industrial conditionswas conduct fallingwithin s 298K(2) and s 298L(1)(l) of the Act.

114We should mention that counsel for Davids submitted it was not sufficientthat NUW establish the facts said to give rise tothe proscribed reason, "[i]tmust go further and establish that the employer knew those facts to be theposition, prior to any effectbeing given to s298V". In support of thatsubmission they citedJoiner v Muir(1967) 15 FLR 340 at 353, a decisionof the Commonwealth Industrial Court. The case involved a statutory provision,s5(4) of theConciliation and Arbitration Act1904, that placed a burdenon the defendant to prove he or she was not actuated by the proscribed reasonalleged in the charge. Thepassage from the judgment of Dunphy and Kerr JJcited by counsel contains no statement of principle; it is simply a referencetoissues for determination.

Form of the orders

115It follows from the above observations that it was open to North J to makeinterlocutory injunctions and other orders. However,counsel for Davidscomplain about the form of the orders his Honour made, contending they "wentwell beyond any order that couldpossibly be granted on final relief":

"The orders took from the respondent the right to terminate inemployment any employees initially, and subsequently any of the 53employeeswho had been terminated and were reinstated. This is an order which hasendured for six months. Whilst leave was reservedto approach the Court inrelation to any particular employees the respondent wished to terminate, theapproach of the Court in relationto Mr Pucar made it clear that there waslittle utility in any such approach."

116We do not agree that the orders went beyond any possible final relief.Section 298U(e) would empower the Court to make a finalorder enjoining Davidsfrom dismissing any particular employee or employees. Section 298U(b) wouldenable the Court to order reinstatementof any employee or employees. As tothe complaint that the order deprived Davids of the right to terminate any ofthe 53 employeeswithout the leave of the Court, that is true; but it is alsotrue that North J reserved liberty to apply on 24 hours' notice. Asweunderstand his Honour's approach, one of the reasons for providing such shortnotice was to enable Davids quickly to approachthe Court for leave, if itwished to terminate any of the 53 employees for a reason or reasons that didnot include a proscribedreason. In relation to Mr Pucar, we note North Jheard evidence about an incident that was said to have actuated Davids'dismissaldecision. He also heard submissions on the matter. After discussingthis evidence and these submissions at some length, he indicateda "preliminaryview" which, he emphasised, might not survive a final hearing. His preliminaryview was that there was a seriousquestion to be tried "that the involvement ofMr Pucar in the alleged incident was not the sole reason for Davids' decisionto dismissMr Pucar". It has not been suggested to us that this view was notopen to his Honour.

Disposition of case

117The issues raised in the application for leave to appeal are substantial.Under those circumstances, it is appropriate to grantleave to appeal.However, although we think NUW is entitled to interim relief on only one of thetwo bases urged by it, it is entitledto that relief. The limitation of NUW'scase to s298K does not affect the continuing appropriateness of the orders madeby NorthJ. The appeal should be dismissed.

118Before departing from the matter we commend to the parties the desirabilityof them discussing the future of this long-runningand, no doubt, expensivelitigation. Even a final hearing of this case will not resolve any issue thatmay remain between the partiesregarding the appropriate terms of a newcertified agreement; it will only resolve Davids' entitlement to terminate theemployeesnamed in North J's order. To the extent Davids establishes at afinal hearing that it did not terminate the employment of any oftheseemployees because of a reason prohibited by s298L(l), there would thereafter beno injunction restraining it from making anew termination of employment.Davids would then need to consider whether to do so, making a separate decisionin relation to eachemployee. No doubt Davids would wish to act fairly andavoid any complaint that the termination was harsh, unjust or unreasonable. Inorder to achieve those objectives, Davids would need to take into account, notonly that employee's participation in the picket,despite the warning of 18July 1998, but also both the circumstances of industrial disputation andconfrontation applying at thattime and the employee's length of service andwork record. If it is correct, as Davids' executives have claimed, that theonly peopledismissed were people identified at the picket by at least twoDavids' officers, it is likely long-serving employees will predominateamongstthe dismissed employees. It might be difficult for Davids to refute thesuggestion it was harsh, unjust and unreasonableto dismiss a long-servingemployee, whose work record is otherwise satisfactory, simply because of thatperson's non-violent participationin a picket organised by his or her union insupport of an industrial demand. We appreciate Davids' allegation that somedismissedemployees resorted to violence; also some dismissed employees may nothave provided satisfactory service. These employees may bein a differentcategory, but they seem to be a small minority. If it be accepted that blanketdismissals of all picketers cannotbe justified, the stakes in this litigationseem small. Even now, it would seem sensible for the parties to discusswhether theycan negotiate an agreement that will obviate a final hearing byNorth J.

Associate:

Dated:13 August 1999

BURCHETT J

119On all issues save one, I am in agreement with the reasons for judgment ofWilcox and Cooper JJ. But, since that issue is crucialto the result, my viewon it requires me to dissent from the orders their Honours support. Thequestion is one of the effect, inthe circumstances of this appeal, of s 298Vof theWorkplace Relations Act 1996, which provides:

"Proof not required of the reason for, or the intention of,conduct

If:

(a)in an application under this Division relating to a person's or anindustrial association's conduct, it is alleged that theconduct was, or isbeing, carried out for a particular reason or with a particular intent; and

(b)for the person or industrial association to carry out the conduct for thatreason or with that intent would constitute a contraventionof this Part;

it is presumed, in proceedings under this Division arising from theapplication, that the conduct was, or is being, carried outfor that reason orwith that intent, unless the person or industrial association provesotherwise."

This section is relevant to that part of the respondent's application forinterlocutory reinstatement which the majority judgmentupholds, that is, somuch of it as is based on the allegation that the appellant employer dismissedemployees for the prohibitedreason stated in s 298L(1)(l).

120In my opinion, s 298L(1)(l) has no application to the events out ofwhich this matter arose. It is necessary to recall the general character ofthose events,which is succinctly stated by North J in the opening paragraph ofthe judgment under appeal:

"The question before the Court is whether existing orders shouldbe continued pending the trial of the action, which is presentlyfixed to starton 7 December 1998. The effect of the orders is to restrain the respondentfrom carrying out its threat to terminatethe employment of about 270 employeeswho were on strike from 8 July 1998 until about 28 August 1998 (in thesereasons, these employeeswill be referred to as `the strikers') and to requirethe respondent to reinstate 52 employees who the respondent says were dismissedfor the reason that they were present on a picket and impeded the movements oftrucks into and out of the respondent's premises inthe course of the strike(in these reasons, these employees will be referred to as `thepicketers')."

The evidence of those circumstances seems to me to repel convincingly any casein reliance on s 298L(1)(l) which might otherwise arise, not fromevidence (as to that there is no argument), but from the presumption created bys 298V. Ofcourse, I appreciate that the respondent had only to make a case tothe extent of showing a serious question to be tried, but noteven such a casecan survive circumstances that are completely inconsistent with therespondent's allegation. It is said there aregaps in the appellant's directevidence which leave the presumption under s 298V unanswered; but the answerneed not be by directevidence - if the circumstances rebut the presumption sostrongly that no serious question remains, that must suffice.

121To see whether s 298L(1)(l) can have any application to the factsput before the Court in this case, the provision must first be construed. Itappears inPart XA of the Act, which is headed: "Freedom of Association". Theobjects of the Part are set out in s 298A, by way of a reference tothe generalobjects of the whole Act, together with the addition of the following:

"(a)to ensure that employers, employees and independentcontractors are free to join industrial associations of their choice or nottojoin industrial associations; and

(b)to ensure that employers, employees and independent contractors are notdiscriminated against or victimised because they are,or are not, members orofficers of industrial associations."

A key provision is s 298K, expressed relevantly in terms forbidding an employerto dismiss an employee, or to threaten to do so,"for a prohibited reason, orfor reasons that include a prohibited reason". Section 298L(1) then makesclear what is meant by aprohibited reason:

"Conduct referred to in subsection 298K(1) or (2) is for aprohibitedreason if it is carried out because the employee, independent contractor orother person concerned:

(a)is, has been, proposes to become or has at any time proposed to become anofficer, delegate or member of an industrial association; or

(b)is not, or does not propose to become, a member of an industrialassociation; or

(c)in the case of a refusal to engage another person as an independentcontractor:

(i)has one or more employees who are not, or do not propose to become, membersof an industrial association; or

(ii)has not paid, or does not propose to pay, a fee (however described) to anindustrial association; or

(d)has refused or failed to join in industrial action; or

(e)in the case of an employee - has refused or failed to agree or consent to,or vote in favour of, the making of an agreementto which an industrialassociation of which the employee is a member would be a party; or

(f)has made, proposes to make or has at any time proposed to make anapplication to an industrial body for an order under an industriallaw for theholding of a secret ballot; or

(g)has participated in, proposes to participate in or has at any time proposedto participate in a secret ballot ordered by anindustrial body under anindustrial law; or

(h)is entitled to the benefit of an industrial instrument or an order of anindustrial body; or

(i)has made or proposes to make any inquiry or complaint to a person or bodyhaving the capacity under an industrial law to seek:

(i)compliance with that law; or

(ii)the observance of a person's rights under an industrial instrument ; or

(j)has participated in, proposes to participate in or has at any time proposedto participate in a proceeding under an industriallaw; or

(k)has given or proposes to give evidence in a proceeding under an industriallaw; or

(l)in the case of an employee, or an independent contractor, who is a memberof an industrial association that is seeking betterindustrial conditions - isdissatisfied with his or her conditions; or

(m)in the case of an employee or an independent contractor - has absentedhimself or herself from work without leave if:

(i)the absence was for the purpose of carrying out duties or exercising rightsas an officer of an industrial association; and

(ii)the employee or independent contractor applied for leave before absentinghimself or herself and leave was unreasonably refusedor withheld; or

(n)as an officer or member of an industrial association, has done, or proposesto do, an act or thing for the purpose of furtheringor protecting theindustrial interests of the industrial association , being an act or thingthat is:

(i)lawful; and

(ii)within the limits of an authority expressly conferred on the employee,independent contractor or other person by the industrialassociation under itsrules."

122An examination of the listed reasons shows that they are precisely whatone would expect in a key section of a Part concerned,not with the regulationof strikes or picketing or like activity, but with protecting the right offreedom of association, includingthe right to serve as an officer of anassociation. None of them relates to strikes or pickets. Paragraphs (a) to(c) relate toordinary membership, or membership as an officer or delegate.Paragraphs (d) to (g) relate, in one way or another, to involvementin thedecisions of industrial bodies. Paragraphs (h) to (k) relate to involvement inproceedings in a court or other tribunal. Paragraphs (m) and (n) relate to theperformance of the duties of an officer-holder. It is in this context thatpara (l) has to be construed. The reason it specifies refers to aperson's state of mind - "is dissatisfied with his or her conditions". Thatwould not often be a reason for dismissal. Accordingly, I was at firstinclined to think that although the opening part ofthe paragraph literallydoes no more than identify a person who may be the subject of dismissal for theprohibited reason that heor she "is dissatisfied with his or her conditions",the paragraph should be construed as a whole to refer to a prohibited reasonthat the employee or other person is displaying dissatisfaction by membershipof an industrial association that is seeking betterindustrial conditions. Butthe difficulty with this construction is not only that it would read into theparagraph something thatis not there; it would also leave the paragraphvirtually without any useful role. For membership of an industrial associationis(by para (a)) the very first prohibited reason, whether or not theindustrial association is seeking better industrial conditions,and whether ornot the member's membership expresses the same attitude. It is also proper toobserve, as a factor operating againstan expansive construction of theparagraph, that it expresses an ingredient of a contravention for which thepenalty may be $10,000(s 298U).

123The core of the matter is that s 298L is an essential part of the Act'sresponse to any attack on the freedom of association,that is, the right tobelong to a functioning union. Paragraph (l) protects an employee, whobelongs to an industrial association that is seeking better industrialconditions, against dismissal groundedon the state of mind of dissatisfactionwith his or her conditions, or perhaps against dismissal grounded on that stateof mind expressedby membership of the industrial association. Those arespecial reasons for dismissal, and the paragraph is plainly part of an attemptto cover comprehensively all reasons for dismissal which might be part of anattack, not on some particular operation (such as astrike) undertaken by aunion, but on its very existence and functioning as a union. Other provisions,in a separate part of theAct, deal with strikes and related actions.

124I now return to the facts of the present case. For the sake of theargument, I can accept that the appellant's failure to fillthe gaps in itsevidence may allow a sufficient case to emerge that the 52 dismissals were forreasons other than the alleged reasonthat the men had engaged in unlawfulpicketing. But, in the circumstances described by North J, those other reasonswould almostcertainly have been related to the strike, which was, in thejudge's words, "a hot dispute". That, indeed, during the argument atfirstinstance, is the inference to which reference was repeatedly made. His Honour,for example, is recorded (at 79 of his judgment)as having suggested theinference "that Davids was motivated by an attempt to get rid of people whowere on strike rather than forthe stated reason." There was, on the evidence,no other bone of contention. It is not a matter, likePatrick StevedoresOperations No 2 Pty Ltd v Maritime Union of Australia[1998] HCA 30;(1998) 153 ALR 643,where the case sought to be made was that an employer was pursuing, through aconspiracy, an attack on the existence and role ofthe union. Given, then,that the detailed evidence of the events in question either allows theconclusion (for which the appellantcontends) that the dismissals were for thereason given at the time, or, whether or not for that reason, for reasonsrelated to themajor strike which had been launched against the employer, canit be said there is a serious question to be tried in respect of anallegedreason of a different kind altogether, of the kind to which para (l)refers? The only basis on which the respondent suggests an affirmative answercould be made to this question is to be found ins 298V. But, in my opinion,that would be to put on the section a weight it cannot bear. Its function isnot to transform a case,to change the complexion of the facts; its function isto raise (via a presumption) an evidentiary onus. (Of course, at theinterlocutorystage, the burden on an applicant would anyway be only to show aserious question to be tried.) But the s 298V onus was dischargedwhen thecircumstances were revealed. Because of the gaps in the evidence, it was (I amprepared to assume) not discharged to thefull extent of proof that the solereason for the dismissals was that given. But it was discharged to the extentthat the circumstancesshowed clearly the nature of the dispute to which onlyany hidden reason must, as a matter of common sense, have related. Thecircumstancesbeing known, there was simply no room for a separate reasonconnected, not with the strike, but with the state of mind to which para(l) refers.

125In some cases, there might be a difficulty in reconciling the requirementsof the statutory presumption under s 298V with therequirements of theprinciple upon which interlocutory relief may be granted, not upon proof as ata trial, but upon the showingof a serious question to be tried. However, itcannot be the law that such a presumption will always entitle an applicant tointerlocutoryrelief, whatever the facts, because it shows a question to betried, and full answer is not possible at an interlocutory hearing. At allevents where, as in the present case, the applicant relies on nothing but thepresumption, and the circumstances are thesubject of detailed evidencepointing strongly to reasons other than the one alleged, I do not accept thatit is appropriate to grounda decision on the presumption. Although written inthe context of a final hearing, the words of Dixon J inBriginshaw vBriginshaw[1938] HCA 34;(1938) 60 CLR 336 at 361 express a principle which is relevanthere:

"The truth is that, when the law requires the proof of any fact,the tribunal must feel an actual persuasion of its occurrence orexistencebefore it can be found. It cannot be found as a result of a mere mechanicalcomparison of probabilities independentlyof any belief in itsreality."

The Court must be actually persuaded that there is a serious question to betried, and since the undisputed circumstances make relianceon the presumptionunreal, it cannot simply be applied as a mantra.

126Accordingly, I would allow the appeal.

127There is one further issue in the appeal which I should consider. Theappellant alleged that the learned Judge at first instanceshould havedisqualified himself on the ground of bias, or at least of apprehended bias.An application was made to him during thehearing that he should so disqualifyhimself, but this application was rejected.

128Not many cases have dealt with the proof of actual bias, since generally"it is not necessary that actual bias should be proved":R v BarnsleyLicensing Justices; Ex parte Barnsley and District Licensed Victuallers'Association[1960] 2 QB 167 at 187, per Devlin LJ. That is because it iseasier to establish apprehended bias, whereas, if this cannot be established,a fortiori actual bias cannot be shown. However, since theMigrationAct 1958 specified "actual bias" as a relevant ground of appeal ins476(1)(f), several decisions have explored the nature of what this groundinvolves. InSun v Minister for Immigration and Ethnic Affairs (1997)81 FCR 71 at 123, Wilcox J referred to the decision of Lockhart J inSingh vMinister for Immigration and Ethnic Affairs (unreported, 18 October 1996)as establishing three points:

"First, the fact that a decision-maker has formed a preliminaryconclusion about an issue is not sufficient to indicate bias. Therewill beactual bias only when preliminary views are incapable of alteration. Second,any particular matter relied on as showingactual bias must be considered inthe context of the whole hearing. Third, it is not enough that thedecision-maker displayed irritationor impatience or even usedsarcasm."

InSun at 127, I expressed the view that the question was "whether theTribunalhas ... prejudged the case, so as to be unable or unwilling todecide it impartially" (italics original). I accepted that "actual biasneednot be confined to an intentional state of mind", and added:

"Bias may be subconscious, provided it is real. Nevertheless, a finding ofbias is a grave matter, different in kind from a findingof mere error, or evenwrong-headedness, whether in law, logic, or approach. It would be a sadreflection on administrative tribunals,and certainly on courts which exist inthe name of justice, if it were to be seen as other thanexceptional."

The third member of the Court was North J. His Honour said (at 134):

"Actual bias exists where the decision-maker has prejudged the case againstthe applicant, or acted with such partisanship or hostilityas to show that thedecision-maker had a mind made up against the applicant and was not open topersuasion in favour of the applicant... ."

The most recent Full Court decision on actual bias isJia Le Geng v Ministerfor Immigration and Multicultural Affairs(1999) FCA 951. There, Spender Jsaid (at para 40):

"In my opinion, the test is plain. A decision-maker is biased if thedecision-maker has made up his or her mind on the matter tobedecided."

He added:

"Actual bias is not made out if the decision-maker holds a view that isprovisional or qualified."

Cooper J, who dissented as to the result, took the same view of the law. Hesaid (at para 80):

"For there to be actual bias on the part of a decision maker sufficient tojustify disqualification, there must exist as a fact amind so prejudged infavour of a conclusion already formed that the decision maker will not alterthe conclusion irrespective ofthe evidence or arguments presented to him orher in respect of the very issue involved in the determination:Laws vAustralian Broadcasting Tribunal[1990] HCA 31;(1990) 170 CLR 70 at 91, 101;Sun vMinister for Immigration and Ethnic Affairs at 123, 127;Singh vMinister for Immigration and Ethnic Affairs(1996) FCA 902 at9."

R D Nicholson J said (at para 158) that "for actual bias to be establishedthere must be evidence of `a closed mind to the issuesraised', `preliminaryviews incapable of alteration', prejudgment of the case at least in somerespect, real although not necessarilyintentional." His Honour also said (atpara 161):

"I accept that ... the correct test of actual bias is whether pre-judgmenthas occurred - that is, beyond a firmly or even stronglyheld view to the pointwhere the view is not open to change by the relevant facts falling forconsideration."

129However, since it is clear that, if the appellant does not succeed onthe ground of apprehended bias, it cannot succeed on theground of actual bias,the real question is whether apprehended bias was shown. In this regard, as iswell known, the law of Australiahas diverged from that of England. Theposition in this country was succinctly stated by Mason CJ and McHugh J inWebb v The Queen[1994] HCA 30;(1994) 181 CLR 41 at 47:

"When it is alleged that a judge has been or might be actuatedby bias, this Court has held that the proper test is whether fair-mindedpeoplemight reasonably apprehend or suspect that the judge has prejudged or mightprejudge the case. ... The principle behindthe reasonable apprehension orsuspicion test is that it is of `fundamental importance that justice should notonly be done, butshould manifestly and undoubtedly be seen to be done'."(I have omitted footnotes.)

Their Honours distilled this test from a considerable body of authority, andcases continue to accumulate. Recent decisions includeRe Ebner; Ebner vOfficial Trustee in Bankruptcy[1999] FCA 110;(1999) 161 ALR 557 in the Full Court of thisCourt;Clenae Pty Ltd v Australia & New Zealand Banking Group Ltd[1999] VSCA 35, a decision of the Court of Appeal of Victoria; andDovade Pty Ltd v Westpac Banking Group[1999] NSWCA 113, a decision ofthe Court of Appeal of New South Wales in which an earlier decision of the FullCourt of the Federal Court of Australiawas endorsed:Jury v WestpacBanking Corporation (Burchett, Foster and O'Connor JJ, unreported, 18 March1998).

130With particular reference to an attack of the nature of that made by theappellant on the consideration of this matter by theJudge at first instance,Giles JA said (with the agreement of Stein JA and Fitzgerald AJA) inLynch vZurich Australian Insurance Limited (Court of Appeal of New South Wales,unreported, 10 November 1998):

"Where the ground for disqualification is perceived prejudgment of an issue,`what must be firmly established is a reasonable fearthat the decision-maker'smind is so prejudiced in favour of a conclusion already formed that he or shewill not alter that conclusionirrespective of the evidence or argumentspresented to him or her':Laws v Australian Broadcasting Tribunal[1990] HCA 31;(1990) 170 CLR 70 at 100."

Giles JA also pointed out that "the apprehension must be that the Judge willnot decide the case impartially or without prejudice,not that the Judge willdecide the case in a particular way". The views of the Court of Appeal of NewSouth Wales in the last caseare fully supported by what Mason J said inReJ.R.L.; Ex parte C.J.L.[1986] HCA 39;(1986) 161 CLR 342 at 352:

"It needs to be said loudly and clearly that the ground of disqualificationis a reasonable apprehension that the judicial officerwill not decide the caseimpartially or without prejudice, rather than that he will decide the caseadversely to one party. Theremay be many situations in which previousdecisions of a judicial officer on issues of fact and law may generate anexpectation thathe is likely to decide issues in a particular case adverselyto one of the parties. But this does not mean either that he will approachtheissues in that case otherwise than with an impartial and unprejudiced mind inthe sense in which that expression is used in theauthorities or that hisprevious decisions provide an acceptable basis for inferring that there is areasonable apprehension thathe will approach the issues in this way. In casesof this kind, disqualification is only made out by showing that there is areasonableapprehension of bias by reason of prejudgment and this must be`firmly established'."

131There are two further points which should be particularly noted in thecontext of the present appeal. In the first place, theHigh Court hasrepeatedly warned that a judge should not accede to an application fordisqualification, as it were, on demand. Thatwould involve a failure toshoulder a burden of the judicial office. Mason J made the point strongly inRe J.R.L.at 352:

"Although it is important that justice must be seen to be done,it is equally important that judicial officers discharge their dutyto sit anddo not, by acceding too readily to suggestions of appearance of bias, encourageparties to believe that by seeking thedisqualification of a judge, they willhave their case tried by someone thought to be more likely to decide the casein their favour."

See alsoLivesey v The New South Wales Bar Association[1983] HCA 17;(1983) 151 CLR288 at 294. Whether a fair minded observer (who must, on the authorities, beassumed also to be informed - seeClenae Pty Ltd v Australia and New ZealandBanking Group Ltd at para 30, per Charles JA) might entertain a reasonableapprehension of bias is a test which a challenged judicial officer shouldapplyrealistically, and not so that it may be lightly satisfied. InDovade PtyLtd v Westpac Banking Group, the judgment of the Court (Mason P, Shellerand Stein JJA) contains the following (at paras 92 and 93):

"InGascor[Gascor v Ellicott[1997] 1 VR 332]TadgellJA observed (at 342) that:

Although the criterion of apprehension of partiality or prejudice ispossibility, not likelihood, a reasonable apprehension is tobe established tothe court's satisfaction: it is a reasonable and not a fanciful or fantasticapprehension that is to be established;and the apprehension is to beattributed to an observer who is `fair-minded' - which means `reasonable'. AsMason CJ and McHughJ pointed out in Webb v R at 52 `... it is the court's viewof the public's view, not the court's own view, which is determinative'. Evenso, the court is to be satisfied that the criterion is met not that it mightbe. InBuilders' Registration Board of Queensland v Rauber(1983) 57ALJR 376 at 384, Brennan J observed that:

Each of the indicia which a party proves and relies upon to show a reasonablesuspicion [which is to be substantially equated witha reasonable apprehension]of bias must be examined, and the Court is called on to determine whether, uponsuch indicia, a reasonablesuspicion of bias arises.

(The parenthetical clause in the passage cited from Brennan J is added byTadgell JA.)

A claim of apprehended bias should be considered in the context of the judicialfunction and the public perception of it. Thereis a presumption that publicofficers have acted with honesty and discretion (Broom's Legal Maxims10^th ed p642). In the case of a judicial officer, this is noempty form. It is reinforced by the accountability necessarily inherentin thepublic processes of litigation and the disappointed litigant's right of appeal.Every judge swears to `do right to all mannerof people according to lawwithout fear or favour, affection or ill-will'. This public oath is not atalisman against error, butit forms the constant back-drop to the way in whicheach judge functions on and off the bench. The history and reach of the oathwere discussed by Sir Gerard Brennan on his swearing in as Chief Justice of theHigh Court of Australia (see 183 CLR at px.). Thelevel of public confidencein the judiciary is based upon experience and a general perception of the ruleof law."

132The second matter is that prejudgment is not to be shown merely bydemonstrating that a judge has made, during the course of ahearing, commentsadverse to the interests of one party. Comments of that kind may quite oftenbe made in the process of explorationof the issues of a case, and to obtaincounsel's response to apparent problems which may affect the argument: seeRe Keely; Ex parte Ansett Transport Industries (Operations) Pty Ltd[1990] HCA 27;(1990) 94 ALR 1. This point was emphasised inVakauta v Kelly[1989] HCA 44;(1989)167 CLR 568 at 571:

"In the course of an eloquent passage in his judgment inR vWatson; Ex parte Armstrong[(1976)[1976] HCA 39;136 CLR 248 at 294], Jacobs Jexpressed the view that judicial `silence' is a `counsel of perfection'. Werespectfully disagree with the applicationof that observation to a trial judgesitting without a jury. It seems to us that a trial judge who made necessaryrulings but otherwisesat completely silent throughout a non-jury trial withthe result that his or her views about the issues, problems and technicaldifficulties involved in the case remained unknown until they emerged as finalconclusions in his or her judgment would not representa model to beemulated."

InR v Lusink; Ex parte Shaw(1980) 55 ALJR 12 at 14, Gibbs ACJ referredtoR v Watson and commented:

"In that case it was pointed out, at p. 264, that it is not uncommon, andsometimes necessary, for a judge, during argument, to formulatepropositionsfor the purpose of enabling their correctness to be tested, and that `as ageneral rule anything that a judge says inthe course of argument will bemerely tentative and exploratory'. However, in some cases the words or conductof the judge may besuch as to lead the parties reasonably to think that thejudge has prejudged an important question in the case, and then prohibitionmayissue. Of course, the court which is asked to grant prohibition will notlightly conclude that the judge may reasonably be suspectedof bias in thissense; it must be `firmly established' that such a suspicion may reasonably beengendered in the minds of the partiesor the public ... ."

On this point, Wilcox J commented inSunat 122:

"Parties are advantaged by learning what is going through the mind of theperson hearing their case; this enables them better to targettheir evidence orsubmissions. The proviso, of course, is that the person must be, and remain,willing to be persuaded out of anyexpress or implied tentativeview."

That is the key to the question. As Cooper J said inJia Le Geng atpara 82:

"The fact that a decision maker has formed a conclusion about an issueinvolved in the enquiry does not constitute bias on the partof the decisionmaker ... . It must be shown that the decision maker is unwilling or unable tobe persuaded out of any express orimplied view before actual bias will befound."

133It is in the light of these principles that the disqualificationargument must be approached in the present appeal. What theappellantcomplains of is that a series of propositions, adverse to its case, wereadvanced by the judge during the course of a lengthyand frequently interruptedhearing. It is not suggested that he advanced no propositions adverse to theinterest of the other side. Nor is it denied that, on numerous occasions, heexpressly qualified his remarks as expressions of tentative or preliminaryviews. It is relevant, too, that his Honour was addressing himself toexperienced counsel, to whom strongly worded comments might be madein the fullexpectation that an appropriate answer would thereby be elicited. Robustexchanges are not so uncommon in the courtsthat, when they occur, anyinference of prejudgment is likely to arise.

134Of course, while judicial silence is not an ideal, judicial restraint is.It is an important advantage of the common law systemthat a judge does notgenerally have to descend into the arena of conflict, where he or she mightrisk becoming too closely identifiedwith the contentions of one side. Even inthe special case of the unrepresented litigant, where justice may demandspecial interventionsby the judge, the courts have been careful to avoid thedanger of too close an involvement in the very dispute the merits of whichtheymust determine: see the comments made, and the authorities collected, inGidaro v Secretary, Department of Society Security(1998) 83 FCR 139 at147.

135It would be tedious, and unnecessary, to go through the lengthy exchangeswhich took place in the present case between the judgeand counsel. None ofthem, in my opinion, could have caused an informed and fair minded observer therelevant apprehension. Noneof them evinced, or suggested, such a prejudgment,irrespective of the evidence or argument, as should have led, according to theauthorities, to the disqualification of the judge. It follows that this groundof appeal fails, although, on the ground earlierdiscussed, I would, as I havesaid, allow the appeal.

Associate:

Dated:13 August 1999