Att-Gen for Qld, Ex parte- Re Ausn Education Union

[1996] HCATrans 94

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B4 of 1996

In the matter of -

An application for Writs of Prohibition and Certiorari against THE HONOURABLE JUSTICE MUNRO of the Australian Industrial Relations Commission, THE HONOURABLE DEPUTY PRESIDENT HARRISON of the Australian Industrial Relations Commission, THE HONOURABLE COMMISSIONER JONES of the Australian Industrial Relations Commission and THE HONOURABLE COMMISSIONER FRAWLEY

First Respondents

AUSTRALIAN EDUCATION UNION

Second Respondent

Ex parte -

HER MAJESTY’S ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND

Prosecutor/Applicant

Office of the Registry
  Brisbane  No B5 of 1996

In the matter of -

An application for Writs of Prohibition and Certiorari against THE HONOURABLE JUSTICE MUNRO of the Australian Industrial Relations Commission, THE HONOURABLE DEPUTY PRESIDENT MAHER of the Australian Industrial Relations Commission, THE HONOURABLE COMMISSIONER LEWIN of the Australian Industrial Relations Commission and THE HONOURABLE SENIOR DEPUTY PRESIDENT RIORDAN

First Respondents

AUSTRALIAN EDUCATION UNION

Second Respondent

Ex parte -

HER MAJESTY’S ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND

Prosecutor/Applicant

GUMMOW J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 4 APRIL 1996, AT 10.04 AM

Copyright in the High Court of Australia

________________

MR J.S. DOUGLAS QC:   If your Honour please, I appear with MR G.R. ALLAN on behalf of the prosecutor in each application, B4 and B5.  (instructed by the Crown Solicitor for Queensland)

HIS HONOUR:   Yes.  I should note a certificate from the Deputy Registrar that he has been informed by the Australian Government Solicitor, the solicitors for the first respondents in these matters, that the first respondents do not wish to be represented today and will submit to any order of the Court save as to costs.  The Deputy Registrar also certifies as to information by Holding Redlich, solicitors for the second respondent in these matters, that the second respondent does not wish to be represented either.

MR DOUGLAS:   Thank you, your Honour.  I had proposed to read or seek leave to read affidavits of service to that effect to assist you.  It is probably unnecessary to do that now.

HIS HONOUR:   Yes.  You are excused from that, I think, Mr Douglas.

MR DOUGLAS:   Thank you, your Honour.

HIS HONOUR:   Now, what is the reason why these should not be remitted to the Industrial Relations Court?

MR DOUGLAS:   If your Honour is satisfied that there should be orders nisi, that is the only issue.  The reason why we say they should not be remitted is that on 5 February the Court gave leave to appeal in a matter called the Ambulance Services matter.

HIS HONOUR:   Yes.  Is that the same log of claims?

MR DOUGLAS:   No, it is not the same log of claims.  It conceptually raises the same issue as this log of claims in the sense that the argument in that matter is that the log of claims was fanciful in that it contained numerous claims that were fanciful embedded in a general log of claims.

HIS HONOUR:   That is a defect that has been perceived before, is it not, in other claims; in other logs?

MR DOUGLAS:   Yes.  That is, I suppose, what interested the members of the Bench who sat on the leave application.  They were interested, apparently, in the reasons of the Full Court of the Industrial Relations Court for arriving at the decision they did in the Ambulance Services Case and gave leave to appeal and, conceptually, we say these two cases raise that issue.  If we had to go back to the Industrial Relations Court, it is likely that it could be an expensive detour on the way back to here.

HIS HONOUR:   But the Industrial Relations Court would, as to any matter of principle, be bound by the Full Court decision, would it not?

MR DOUGLAS:   Yes, unless, for example, it was heard before the Full Court decision here was heard and decided.  The alternative reason, we submit it is appropriate to have it kept in this Court, is that it enables this Court to look at the issue across a variety of factual situations; one, in the Ambulance Services appeal and also in this appeal, so that if there is a general principle to be discerned, it can be discerned against the background of a variety of factual situations.

HIS HONOUR:   What would the general principle be?

MR DOUGLAS:   If one looks at the decision of the High Court in the State Public Services Federation Case in 1993 where the Court, in a variety of ways, condemned fanciful claims but in the context of a narrowly drawn log of claims, how far does that principle extent to fanciful claims embedded in a broader log of claims?  It could affect, to some extent, also notions of ambit and the propriety of the paper dispute form of commencing proceedings in the commission.  So, from the point of view of the Court it enables those arguments to be canvassed not just in the one set of facts but across a wider variety of facts.

The other point of view that is relevant to that is that other issues raised in these claims raise constitutional arguments similar to those in the AEU decision of the Court last year. 

HIS HONOUR:   That is settled, hopefully.

MR DOUGLAS:   I do not think so, your Honour.  I think there is still a fair degree of argument about what the meaning of the Court’s decision in that case is.

HIS HONOUR:   Yes, but I mean that has to be worked out in the Industrial Relations Court.

MR DOUGLAS:   That is the attitude that Justice Dawson took in another AEU matter that was decided earlier this year on an application for an order nisi and I think the union actually drew to the Registrar’s attention that decision in their letter to him and I can give your Honour a copy of that if you wanted it.

HIS HONOUR:   Yes.

MR DOUGLAS:   It is only reported in the Australian Law Journal.  It is a poor photocopy, I am sorry.

HIS HONOUR:   Yes, thank you, Mr Douglas.  Would there be any particular registry of the Industrial Relations Court that would be the appropriate designation, or just to the Industrial Relations Court in Australia generally, if one were to remit it?

MR DOUGLAS:   I think it would be more convenient to have it in Brisbane, probably, because the Court does come up and sit there.  It sat there for the Ambulance Services appeal, even though there were both Victoria and Queensland parties in it.  The Union has not made any suggestion to us and they have not decided to appear, so - - -

HIS HONOUR:   No.  Do you know the identity of any other counsel in the matter for the other parties?  Probably Brisbane counsel?

MR DOUGLAS:   No, I do not think so, not for the AEU.  Was it Mr Bell who, I think, is a Victorian?  I am just stretching my memory at the moment, your Honour.

HIS HONOUR:   In any event, counsel do not all come from the one place.

MR DOUGLAS:   No, that is right.

HIS HONOUR:   So, some choice has to be made and Queensland would appear to be appropriate, I would have thought.

MR DOUGLAS:   I am pretty sure it was Victorian counsel before.

HIS HONOUR:   I would be minded to remit the matter to the Industrial Relations Court of Australia, Queensland Registry.  It that the correct appellation of it?

MR DOUGLAS:   I think so, your Honour, yes.  I can check that.

HIS HONOUR:   I think it is.  Can you check that?

MR DOUGLAS:   Yes.  I was hoping to check it by examination of a copy of the judgment in the Ambulance Services matter but it does not help me.  I am almost positive that that is it, your Honour.

HIS HONOUR:   Yes, all right.

MR DOUGLAS:   We could check that before any order is taken out to ensure that that is correctly ascribed.

HIS HONOUR:   Now, the costs of the application this morning, they would be costs of the further proceedings in the Industrial Relations Court I should think.

MR DOUGLAS:   Yes, I would think so, your Honour.

HIS HONOUR:   All right.  I order that the matter be remitted to the Industrial Relations Court of Australia, Queensland District Registry.  Costs in this Court to date be costs in the further proceedings in the Industrial Relations Court of Australia.  Is there anything else?

MR DOUGLAS:   I suppose, as a point of clarification, was your Honour disposed to make the order nisi and remit it or to remit the application for the order nisi?

HIS HONOUR:   To remit the application for the order nisi.

MR DOUGLAS:   Thank you, your Honour.

HIS HONOUR:   I will say order that the matter including the application for order nisi be remitted.

MR DOUGLAS:   Thank you, your Honour.

AT 10.15 AM THE MATTER WAS CONCLUDED