Australian Nursing Federation, in the matter of an application for Writs of Mandamus, Certiorari and/or Constitutional Relief against Munro
[2003] FCA 1581
•28 NOVEMBER 2003
FEDERAL COURT OF AUSTRALIA
Australian Nursing Federation, in the matter of an application for Writs of Mandamus, Certiorari and/or Constitutional Relief against Munro
[2003] FCA 1581IN THE MATTER OF AN APPLICATION FOR WRITS OF MANDAMUS, CERTIORARI AND/OR CONSTITUTIONAL RELIEF AGAINST THE HONOURABLE JUSTICE MUNRO, THE HONOURABLE SENIOR DEPUTY PRESIDENT MARSH, AND THE HONOURABLE COMMISSIONER DEEGAN AS MEMBERS OF A FULL BENCH OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION AND THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION AND THE STATE OF QUEENSLAND AND THE MATER MISERICORDIAE HEALTH SERVICES BRISBANE LIMITED; EX PARTE THE AUSTRALIAN NURSING FEDERATION
Q 163 OF 2003
DOWSETT J
28 NOVEMBER 2003
BRISBANE
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
Q 163 OF 2003
ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA
IN THE MATTER OF AN APPLICATION FOR WRITS OF MANDAMUS, CERTIORARI AND/OR CONSTITUTIONAL RELIEF
AGAINST:
THE HONOURABLE JUSTICE MUNRO, THE HONOURABLE SENIOR DEPUTY PRESIDENT MARSH, AND THE HONOURABLE COMMISSIONER DEEGAN AS MEMBERS OF A FULL BENCH OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION AND THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
FIRST RESPONDENTSTHE STATE OF QUEENSLAND AND THE MATER MISERICORDIAE HEALTH SERVICES BRISBANE LIMITED
SECOND RESPONDENTSEX PARTE:
THE AUSTRALIAN NURSING FEDERATION
PROSECUTORJUDGE:
DOWSETT J
DATE OF ORDER:
28 NOVEMBER 2003
WHERE MADE:
BRISBANE
THE COURT ORDERS THAT:
1.The application for orders nisi be listed for hearing at the February sittings of the Full Court.
2.In the event that the applicant wishes to amend the draft orders nisi, it should file and serve any proposed amended draft orders on or before 31 December 2003.
3.Costs be reserved.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
Q 163 OF 2003
ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA
IN THE MATTER OF AN APPLICATION FOR WRITS OF MANDAMUS, CERTIORARI AND/OR CONSTITUTIONAL RELIEF
AGAINST:
THE HONOURABLE JUSTICE MUNRO, THE HONOURABLE SENIOR DEPUTY PRESIDENT MARSH, AND THE HONOURABLE COMMISSIONER DEEGAN AS MEMBERS OF A FULL BENCH OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION AND THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
FIRST RESPONDENTSTHE STATE OF QUEENSLAND AND THE MATER MISERICORDIAE HEALTH SERVICES BRISBANE LIMITED
SECOND RESPONDENTSEX PARTE:
THE AUSTRALIAN NURSING FEDERATION
PROSECUTOR
JUDGE:
DOWSETT J
DATE:
28 NOVEMBER 2003
PLACE:
BRISBANE
REASONS FOR JUDGMENT
This application for constitutional writs has been referred to the Court from the High Court. The question before me is whether or not the application for orders nisi ought be heard at the February sittings of the Full Court, or at some later stage, in conjunction with an application for orders absolute.
As a matter of practice, the joint hearing of an application for orders nisi, and orders absolute is well-established. It is provided for in the rules and is not infrequently followed. However, in some cases, the application for orders nisi may serve as a useful filtering process to ensure that unmeritorious applications do not proceed, and that respondents are not put to the unnecessary cost of preparing records and arguments which in the end, prove to be of no value. This is particularly so where an applicant is likely to prove impecunious. That, of course, is not the present case, as far as I know.
Whilst there may well be reasons of expediency which militate in favour of joint hearings of the applications for orders nisi and orders absolute, it should not be assumed that those reasons will always prevail. In the present case, I am of the view that the amended draft of the proposed orders nisi demonstrates that it would be inappropriate to follow that course. The draft orders, as elaborated upon by counsel in the course of submissions, demonstrate a confusion of appropriate grounds for judicial review with criticisms of the decision, based upon the merits. The complaints of denial of natural justice are of particular concern. Many of them appear to stem from directions given as to the conduct of the case before the Commission, which directions were not the subject of appeal nor, as far as I can see, of any particular complaint at the time. Nonetheless, the applicant now wishes to complain that compliance with those orders led to it being denied a proper hearing.
In my view, the expeditious and economical disposition of these proceedings will be best served if the application for orders nisi is heard in February so that the applicant can fairly address the merits of its grounds and demonstrate why each such ground may be an appropriate basis for the issue of constitutional writs. The discipline of preparing for a hearing of the application for orders nisi will give the applicant an opportunity to address this matter.
I direct that the application for orders nisi be listed for hearing at the February sittings of the Full Court and that the hearing on that occasion be limited accordingly. The further disposition of the matter should be left to the Full Court hearing the matter in February.
In the event that the applicant wishes to amend the draft orders nisi, it should file and serve any proposed amended draft orders on or before the last working day in December of this year, which is 31 December. Costs are reserved.
I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett. Associate:
Dated: 5 January 2004
Counsel for the Prosecutor: Ms S L Moody Solicitor for the Prosecutor: Roberts & Kane The First Respondents did not appear. Counsel for the Second Respondents: Mr J Murdoch SC
Mr A Horneman-WrenSolicitor for the Second Respondents: McCullough Robertson Date of Hearing: 28 November 2003 Date of Judgment: 28 November 2003
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