Australian and New Zealand Banking Group Ltd v Australian Bank Employees Union

[1988] FCA 37

JUDGMENT NO. 37.78.Z ,.,,

CATCiIWORDS

I N THE FT3ZERA.L	COURT O F A U S W A L I A	)
1

V I C T O R I A	D I S T P J C T	R E G I S T R Y	1	V . No.	'16	of	1337
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IXI2USTRIA.L	D I V I S I O N	)
3ETwE.,zhT :

EX TEMFOF!E REASONS F O R JUDGMENT

Inltialljr, the Court ralsed the issue of xhether thls xas a mattzr that should be referred to a Full Zourt

pursuant to the provls lons of s.113C of the Act. Sefore me,

counsel h r the banks has argued that the Court should re l sr the matter f.3r determinatlan by a Full Court vhile ccunsel f o r the Union has contended that therz should be no referenre

to a Full Csurt, 5ut that the mattzr should procsed in the

normai s a y , in vhlch case the application xould be heard and

Yhers appear; 5 6 be :-m disputed q u z s t l ~ n s f fa.:r,

arlslng as t.1 the ccnstruction =aught. It appears khere -a111

be no x t n e s s e s called, and there are no compeclng affida-zlts 3s tc factual natters. Wnat 1 s being ralsed 1: the

zonstruction of a initten	document, namely the $raper
construction of an axard of the Concillation	and Arbitratlon

Commission. The jurlsdiction conferred by 5.110 of the Act

iz rather unlque In that it gets very close to a pcssltlon xhere the Court 1 s empowered t o give an advisory uplnion for the guldance of partlcs, a course xhlch normally the Court

does not exercise under Its normal jurlsdictlon and powers. Hers the -Jery wording of s.110 makes lt clear that +-his is the purpose of the sectlon. That sectlon provides:-

Secondly, in my oplnlon, thls is a case xhet-e, an

tne probabliltiss, no matter xhich of the p . r t . l z z succeeds if

the rnattzr- xsrz to proceed before a sirqle Judge, the other

?,arty xculd appeal to a Fuli Caurt. The matter- 1s cjf -~l:al importance to the gartlzs, and It 15 deslcable co a.;.oid the

unnecesaary procedures and axprnse of hav ing a hearing by a

single Judge and then an appeal. T h ~ s 1 s nut the type rJf case xhere a crial and reasons for ]udgment by S, slngle Judge can be of assistance to a Full Court,. It 1 s well known that appellate courts derive enormous advantage from havlng the

beneflt of 3 trlal Judge glvlng his reasons for declsion, but in a case of this kind, the advantage to be achieved from 3

trlal followed by	an appeal 1s not so great aa to deprlvle the
Full Zaurt .If deallng effsctlvely 21th the matter 57 ;;ay	of
reference under s . l l X of	the Act.

Third:>*, lt is apparent that sane of the current

s.113 appllcations do depend upon the csnstructlon af the clauses of the award, the zubject af the present 3ppllcatlon under s.llO. Not all those s.1:3 proceedings 30 arise, apparently, but 3 zubstantlal numhsr of them .b. In those circumstances, lt seems desirable ',o have 3n authorikat~ve

opinion of the Tuli Court as to t h e pr3per rznstruct;an of the x a r d beforz any of those 3.113 Sppllcatlons ;jhi<h depend

upm t h e rslsvant xlausez of the award, the ~ ~ S l e c t sf ?he

gres:ent proceedlnga, <dine on f n r hearing. TLae qul2ance af a

Full Ccurt as t t o the proper c o n a t r u s t l s n 3 thz t-eles-ant

clauses would be of assistance co c:ae Court in hearing ',hose

5.113 applicatlons in whlch the clauses af the award, the

aubject of the 5.110 appllcation, brs glrren.

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