Coal & Allied Operations v Full Bench of Ausn Ind Relations Com

[1999] HCATrans 277

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S185 of 1998

B e t w e e n -

COAL & ALLIED OPERATIONS PTY LTD

Applicant

and

THE FULL BENCH OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION CONSISTING OF THE HONOURABLE GEOFFREY GIUDICE, PRESIDENT, THE HONOURABLE PAUL MUNRO, DEPUTY PRESIDENT AND ANNE LARKIN, COMMISSIONER OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

First Respondents

CONSTRUCTION FORESTRY MINING AND ENERGY UNION

Second Respondent

AUTOMOTIVE FOOD, METALS ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION

Third Respondent

COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA

Fourth Respondent

Application for special leave to appeal

GAUDRON ACJ
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 10 SEPTEMBER 1999, AT 10.49 AM

Copyright in the High Court of Australia

________________

MR J.N. WEST, QC:   May it please the Court, I appear with my learned friend, MR G.J. HATCHER, for the applicant.  (instructed by Freehill Hollingdale & Page)

MR W.R. HAYLEN, QC:   If the Court pleases, I appear with my learned friend, MR R. REITANO, for the second, third and fourth respondents.  (instructed by R.L. Whyburn & Associates)

GAUDRON ACJ:   The Deputy Registrar certifies that she has been informed by the first respondent in this matter that it does not wish to be represented at the hearing of this application and will submit to any order of the Court, save as to costs.  Yes, Mr West.

MR WEST:   Your Honours, the special leave questions in this case concern the nature of an appeal to the Full Bench - - -

GAUDRON ACJ:   Well, do they?

MR WEST:   With respect, yes, your Honour.  The first question is - - -

GAUDRON ACJ:   Why?

MR WEST:   Because, your Honour, under section 45 of the Workplace Relations Act, it is our respectful submission that the appeal which is there given from within the Commission to a Full Bench is by way of re-hearing.  That applies in two decisions of this Court but not in relation to that appeal.

GAUDRON ACJ:   Let me go back a step.  There was an application for what to this Court?  How did this matter start?

MR WEST:   This matter started, your Honour, back in the Industrial Relations Commission?

GAUDRON ACJ:   No.

MR WEST:   In this Court.

GAUDRON ACJ:   The judicial proceedings.

MR WEST:   It came to this Court seeking prerogative relief.

GAUDRON ACJ:   What sort of prerogative relief?

MR WEST:   Certiorari and mandamus, your Honour.  That matter was then referred to the Full Court of the Federal Court. 

GAUDRON ACJ:   Yes, and what could that court do on that application?  What was it open to that court to do?

MR WEST:   That court could issue each of those writs.

GAUDRON ACJ:   On what grounds?

MR WEST:   In the event that it was found that the decision below had been the subject of error as to the proper - - -

GAUDRON ACJ:   Well now, there seems to me to be a few problems  in this case.  The application was for certiorari which is limited to error on the face of the record.  Prohibition was limited to jurisdictional error amounting to excess of jurisdiction, was it not?

MR WEST:   Yes, your Honour.

GAUDRON ACJ:   Well then, is not the question here whether it was open to the Full Federal Court to find jurisdictional error on the part of the Full Bench of the Industrial Relations Commission.

MR WEST:   Indeed, your Honour.  In that circumstance, in our respectful submission, it was not open to the Full Court - - -

GAUDRON ACJ:   Well, why was it not open to them?

MR WEST:   Because there was no jurisdictional error on the part of the Commission. The Commission exercised, in its Full Bench, the jurisdiction which it had to hear an appeal from a single member of the Commission. In doing that, the Full Bench of the Commission was entitled to substitute its view for the view of the member at first instance. It was entitled to do that because the nature of the appeal which section 45 gave was by way of re‑hearing.

GAUDRON ACJ:   But only one member of the Full Bench of the Commission proceeded on the basis that it was a re-hearing.

MR WEST:   Justice Munro expressly said that it was.

GAUDRON ACJ:   And the others seemed to have proceeded on - - -

MR WEST:   Justice Guidice proceeded upon the basis that it seemed not to matter whether it was by way of re-hearing or whether it was an appeal strictu sensu.  It is not entirely clear, although his Honour Justice Guidice referred to House v The King in the course of his judgment, just how House v The King applied in this case.  It is our respectful submission, it did not apply at all because the decision which was made by the judge at first instance was not a discretionary decision.  It was not a decision in the exercise of an unfettered discretion but, rather, was a decision in the nature which required the finding of fact and then the application to those facts of judgment.  That is not a discretionary decision.       The authority for those propositions is Re Coldham; Ex Parte Brideson [No 2].

GAUDRON ACJ:   That was a different sort of case, was it not?  Was not Brideson [No 2] concerned with a judicial registrar’s decision and a different provision of a different Act?

MR WEST:   Your Honour, the answer to those questions is, in some part, yes, in some part, no, with respect.

GAUDRON ACJ:   Yes.

MR WEST:   But not relevantly because the discretion, if I may use that expression, which the registrar had was a confined discretion as to two of the limbs of his power.  As to the third, he could make such decision as he thought appropriate but this Court found that that was not a discretionary judgment.

GAUDRON ACJ:   Now, let us assume that the Full Bench – well, let us go back to this:  what difference does it make, in your submission, as to what is the nature of an appeal in this matter?  Does it make any difference at all?

MR WEST:   Your Honour, it would in the light of the judgment of the Full Federal Court because the Full Federal Court - - -

GAUDRON ACJ:   Well, the Full Federal Court seems not to have been concerned to identify jurisdictional error except by reference to the notion of an appeal not being by way of re-hearing which, in any event, it does not seem that the Full Bench of the Commission said it was.

MR WEST:   The Full Bench of the Commission did not say it was an appeal by way of re-hearing, only one.  But the Full Court of the Federal Court approached the matter this way, in our respectful submission, that the nature of an appeal one has from within the Commission to the Full Bench varies depending upon the nature of the power which the single member from whom an appeal is sought to be brought is exercised.  In our respectful submission, that is not so and Brideson does not so decide, although Brideson was cited as authority, because that question was mentioned in Brideson but it was not a determining factor, as a subsequent decision of this Court in the Public Service Association v Federated Clerks Union demonstrates, which was a consideration by this Court of the registration provisions in South Australia.  They were almost in pari materia with the federal ones.

GAUDRON ACJ:   Yes, but they came, did they not, via the administrative law procedures of the South Australian Supreme Court?

MR WEST:   Yes, they did, your Honour.

GAUDRON ACJ:   We were not talking about an appeal in that case at all.  As I recollect it. we were talking about a particularly limited privative provision.

MR WEST:   The question was, your Honour, whether or not the appeal which was provided from the registrar to the South Australian Industrial Court was by way of prerogative review or whether it was by way of an appeal and it was found it was by way of an appeal, and it was an appeal by way of re-hearing.  That was found on the basis that the provisions in the South Australian legislation were almost identical to those under consideration in Brideson.  So that what one had was not judicial review of administrative action when you came to the court from the registrar but a full appeal and even though the decision by the registrar involved the exercise of a discretion, it was not correct to characterise that as a discretionary judgment.

So that, on appeal, whatever the nature of the appeal, it was not a case where House v The King applied because House v The King only applies if what you have is a truly discretionary decision.  So that if House v The King did not apply, then you had a judgment which - - -

GAUDRON ACJ:   But did the Industrial Commission say House v The King applied?

MR WEST:   It is certainly arguable that Justice Guidice thought it did from that part of his judgment where he referred to House v The King.

GAUDRON ACJ:   Yes.So, what difference does that make?

MR WEST:   In our respectful submission, in the end it made none because we won on the facts.  The judgment below could not stand.

GAUDRON ACJ:   The reason I ask this is – and it is not necessarily against you – there was a precise notion of jurisdictional error and, equally, there was a precise notion of error on the face of the record.  The only question that could have been before the Full Bench of the Federal Court was whether there was an error on the face of the record or a jurisdictional error.  You seek special leave to appeal but your draft notice of appeal would seem to involve an attempt to raise other issues which do not necessarily go directly to the question whether there was an error on the face of the record or a jurisdictional error.

MR WEST:   Yes, your Honour, in so far as that, that is so, but the considerations which the Full Federal Court gave - - -

GAUDRON ACJ:   Well, there may be some matters that were not really within their province, given the nature of the proceedings before them.

MR WEST:   Your Honour, what was within their province was whether or not the Full Bench had made a jurisdictional error in the way in which it applied its appellate powers on appeal from a single judge, and that much was certainly before the Full Bench and that much is raised here.

GAUDRON ACJ:   And a lot more, is it not?

MR WEST:   A little more, yes, your Honour.  But that question is certainly alive as a matter going to special leave and allied with it is the question of what was the nature of the decision under section 170MW which the trial judge and the Commission on appeal had to deal with. 

GAUDRON ACJ:   I do not know why that is so.

MR WEST:   Your Honour, because the Full Federal Court - - -

GAUDRON ACJ:   At first instance, Deputy President - - -

MR WEST:   Justice Boulton, your Honour.

GAUDRON ACJ:   - - - Justice Boulton made a decision.

MR WEST:   He did.

GAUDRON ACJ:   Made an order.  There is no doubt there was an appeal.

MR WEST:   Yes.

GAUDRON ACJ:   And there was no doubt that the appeal was allowed.

MR WEST:   Yes.

GAUDRON ACJ:   There was no doubt that the Full Bench had jurisdiction to entertain an appeal, is that not right?  The Act says so.

MR WEST:   No doubt whatever.

GAUDRON ACJ:   And it did it, entertained the appeal and allowed the appeal on a basis on which only one member said that he thought the appeal was by way of re-hearing.  Maybe the Full Bench got it wrong; maybe the Full Bench got it right, but if the majority did not say it was a re-hearing, where is the jurisdictional error?  Is that not the beginning and end of your case?

MR WEST:   Your Honour, the jurisdictional error - - -

GAUDRON ACJ:   The Full Bench is allowed to get things wrong.

MR WEST:   Yes, your Honour.

GAUDRON ACJ:   It is just not allowed to exceed its jurisdiction.  Now, is that not the beginning and end of your case?

CALLINAN J:   Or to limit its jurisdiction.

MR WEST:   Or to limit its jurisdiction, yes.  What the Full Court has done is to effectively limit the jurisdiction of the Full Bench by saying that it is to approach the hearing of these appeals as though it were a court sitting on judicial review on administrative action.  That is a fundamental error in the Full Federal Court’s judgment.  It was led into that error - - -

GAUDRON ACJ:   Well, does the error matter?  The error - - -

CALLINAN J:   Well, the error could matter because if the case has to go back, as well it might, it would be critically important - - -

MR WEST:   Indeed.  Absolutely, your Honour.

CALLINAN J:   - - - that it go back upon the basis that the Full Commission exercise in an appropriate way its full jurisdiction.

MR WEST:   Yes, your Honour.  It is our submission that that mischaracterisation of the appellate function was fundamental to the way the Full Federal Court approached the matter.

CALLINAN J:   The more common error of jurisdiction is excess of jurisdiction but it does not mean that the converse is not an error of jurisdiction.

MR WEST:   Indeed.  But that error of jurisdiction infects the Full Federal Court.

GAUDRON ACJ:   Well, Mr West, we think we might be assisted by hearing from Mr Haylen at this point.

MR WEST:   If your Honours please.

MR HAYLEN:   If your Honours please, the issue about the power of the Federal Court to deal with the writs for certiorari, prohibition and mandamus was met and dealt with only on the basis of the contending provisions, “Yes, there was an appeal that was by re-hearing” rather than ‑ ‑ ‑

GAUDRON ACJ:   Because the case you were putting when you brought your application does not seem to have been dealt with by the Full Court?

MR HAYLEN:   Well, in this way, your Honour:  what we identified was this.  We said when the Full Bench came to hear the matter, one member of the Bench, Justice Munro, did say that he regarded himself as involved in a re‑hearing, quite contrary to the learning accepted by the Commission over some 50 years.  Justice Guidice and Justice Munro, as we apprehend, were of the view they were exercising some sort of supervisory jurisdiction.  The first point that we made was that they never did exercise the appellate power.  They exercised some other power.  They were not exercising a power in relation to a re-hearing and they were not exercising a supervisory jurisdiction.

GAUDRON ACJ:   But that case does not seem to have been dealt with anywhere.

MR HAYLEN:   I think it is, your Honour. They go through the whole of section 45. They analyse it and they say to the extent that they thought that they were exercising a supervisory jurisdiction, that is not right, and to the extent that they thought they were involved in a re-hearing, that is not right, and to the extent when they came to the nature of the power that Justice Boulton was exercising, they said they thought that they needed to find or make valid findings of fact, that the Commission had to be satisfied on all of those cases such as Wu Shan Liang and those related cases.

So we said on both those bases, the Commission, at Full Bench level had failed to exercise its jurisdiction.  That was the case that was pursued and that was the case that was upheld.  The argument that your Honours have just raised about the division between the court, that was not argued at all; it was not just put.  The issues were squarely raised and dealt with as, “Is this a re-hearing or not a re-hearing?  Is section 170MW a matter of satisfaction or approved fact?”

GAUDRON ACJ:   Yes, but the real question is does the question whether it was a hearing or a re-hearing really arise?  Because the Full Bench did not say it was doing it by way of a re-hearing except for Justice Munro.

MR HAYLEN:   It is not quite as easy as that.

GAUDRON ACJ:   No, I know.

MR HAYLEN:   The decision of the Full Bench is difficult.

GAUDRON ACJ:   There is no doubt the Full Bench had jurisdiction to hear an appeal. 

MR HAYLEN:   They had.  Our complaint was that they were - - -

GAUDRON ACJ:   And how do you say they exceeded that jurisdiction?

MR HAYLEN:   They failed to exercise the jurisdiction.

GAUDRON ACJ:   You say they failed to exercise it?

MR HAYLEN:   Yes, your Honour, that is the way we put it.  We said they had a jurisdiction to hear an appeal which was an appeal that had to apply two principles in this case:  to the extent that there was a discretion.  Undoubted in section 170MW(1) the discretion is to terminate or not terminate the bargaining period.  The other thing was the satisfaction that the Commission had to reach as to the preconditions to exercising the jurisdiction.

GAUDRON ACJ:   Is that right, you see, in this sense?  They had jurisdiction to hear an appeal.  If they mistook the nature of their appellate powers, that might be one thing.  If they simply erred in deciding whether or not they should allow the appeal, that is another thing, is it not? 

MR HAYLEN:   Your Honour, that is not the case that has been brought on special leave.  The case that has been brought on special leave is the Full Bench were right.  It is a re-hearing.  That was the only way it was argued.

GAUDRON ACJ:   So, who argued that?

MR HAYLEN:   It was argued – well, frankly, I think the Full Bench started bringing forth that in the judgment.  I do not believe the appellants before the Full Bench addressed the issue of appeal powers.  The respondents certainly did.

GAUDRON ACJ:   No.  But you did not contend, or did you, that it was a re‑hearing?

MR HAYLEN:   No, I did not contend for that. What I put to the Full Bench was this - and this is the case that was then debated before the Full Court – the power – this is an appeal, a section 45 appeal, about the exercise of powers under section 170MW. First let us – and this is the submission that was put, “Let’s delineate the nature of the power that you are exercising on appeal. It is a satisfaction.” So, it is not a finding of fact.

CALLINAN J:   I do not agree with that.  If you are satisfied about a fact, it inevitably involves findings of fact.

MR HAYLEN:   Not necessarily so, your Honour.  Buck v Bavone is really at the centre of it.  In Buck v Bavone this Court said – that was the registration of selling and growing - potato growers.  It was in relation to people who had grown and people who wanted to sell.  Justice Gibbs as he then was said a person who has grown – the satisfaction is one that is a question of value judgment, it will always be the same.  A person who has grown will undoubtedly show, very easily, and satisfy a tribunal.  Somebody who says they will grow or will grow and sell, you have just got to make an analysis of what they put forward to see if you can be satisfied that they will do so.  So, it is precisely that type of point.

CALLINAN J:   With all due respect to the former Chief Justice, I would need a lot of persuasion that that does not, inevitably, involve a finding of fact.  It may involve more than that but it certainly involves a factual finding.

MR HAYLEN:   I think it goes this way, your Honour – there are a number of things.  Before Justice Boulton there were a number of matters put before him as to demonstrating that there were preconditions for the termination of the bargaining period:  widespread industrial action, parliamentary motions of urgency, things that go to the danger to the community and the economic difficulty.

CALLINAN J:   Mr Haylen, the Commission has to be satisfied of the existence of one of a number of circumstances.

MR HAYLEN:   Has to be satisfied.

CALLINAN J:   Yes, of the existence; satisfied that any of the circumstances set out in the subsections exist or existed.

MR HAYLEN:   Exist or existed.

CALLINAN J:   Now, that involves, classically, a finding of fact.  The circumstances have to be established.

MR HAYLEN:   Your Honour, the classic statement really is in Wu Shan Liang though.  When the legislature uses the word “satisfy” it is talking about making some type of value judgment.

GAUDRON ACJ:   Not always.

MR HAYLEN:   Not always because sometimes you can get both - - -

GAUDRON ACJ:   Yes.  “I’m satisfied that the event occurred” is one thing; “I’m satisfied that this was not telling the truth” is another thing; “I’m satisfied that it is in the public interest” is a third thing altogether.

MR HAYLEN:   And, here, “satisfied that certain things were happening were threatening or threatened the economy or the community”.

GAUDRON ACJ:   So, there might have been two things.

MR HAYLEN:   There might have been.  This is the error that seems to creep into the analysis in the special leave application.  It was not a question that you could satisfy yourself without any evidence.  You did not necessarily – the decision maker did not have to decide valid – or make valid findings of fact.  The Commission could form an impression – make a value judgment – but because of the evidence that shows this -  A, B, C is happening – that it is likely that it will threaten the community or the economy.

CALLINAN J:   Take subsection (7).  That is one of the circumstances, is it not; one of the possible circumstances? 

immediately before the commencement of this section, the wages and conditions of the kind of employees whose employment will be subject to the agreement were determined by a paid rates award –

What is that if that is not a matter of fact?

MR HAYLEN:   That is Buck v Bavone, your Honour.  That is saying sometimes the satisfaction will be very easily satisfied, but have a look at subsection (5).

CALLINAN J:   It misses the point, I am sorry, Mr Haylen.  It misses the point.  The point is, is there a factual matter which has to be established?  It might be at the end of the day that the Tribunal has to be satisfied of other matters, may have to be satisfied about other conclusions, but in the course of reaching that conclusion certain factual matters have to be established.

MR HAYLEN:   Or certain evidence has to be there to base a satisfaction.  If your Honour looks at section 170MW(2)(a) and (b).  It talks about establishing that a party “did not genuinely try to reach an agreement”.

CALLINAN J:   But judges every day make findings whether witnesses are genuine.  That is a question of fact.  Every day.

MR HAYLEN:   And there is nothing inconsistent with saying it is also an assessment.  That is the whole line of cases.  I remind your Honour the Acting Chief Justice of the joint judgment of your own and Justice Gummow, I think, in The Queensland Attorney-General v Riordan, the Ambit Case, and the challenge to that notion, and in your joint judgment you pointed to – yes, I think the Industrial Relations Act – the finding of a dispute under section 100 and the use of the words “if the member considered that there was a dispute” and the distinction between the previous Act, the Conciliation and Arbitration Act where you had to make the finding as a finding of fact, and the use there of “considered” was debated and the view was expressed that it was an assessment.  You did not need to make a finding of fact.

Now, here, it is the same type of power; it is the same type of jurisdiction that is being exercised.  A whole lot of evidence will be called that allows the Commission to reach a state of satisfaction that the preconditions exist.  Some of the them, in the Buck v Bavone sense, will be established because they are almost indisputable.  Something happened as a matter of fact.  Some things will need evidence to allow the court to be able to satisfy itself.

GAUDRON ACJ:    Then what do you say is the jurisdiction of the Full Bench?

MR HAYLEN:   Well, the Full Bench - - -

GAUDRON ACJ:   It certainly has jurisdiction to hear an appeal.

MR HAYLEN:   - - - can hear the appeal.  Then, is hearing appeal in relation to the exercise of the power under section 170MW.  It moves on the basis that there had to be valid findings of fact that the circumstances existed and rejected the notion that satisfaction of circumstances was sufficient.  That is the whole purpose of the word.  There are a variety of things - - -

GAUDRON ACJ:   Why can it not do that?  It is given power to hear an appeal and - - -

CALLINAN J:   And it can admit further evidence.

GAUDRON ACJ:   Yes.

CALLINAN J:   It may admit further evidence under 45(6)(b).

MR HAYLEN:   It did not in this case but it could.

CALLINAN J:  

may direct a member of the Commission to provide a report in relation to a specified matter.

It seems to me that that subsection is plainly talking about factual matters.

MR HAYLEN:   Your Honour, it does not matter that there can be factual matters. 

CALLINAN J:   No, but it gives an indication of the nature of the appeal and the nature of the issues fit for consideration on an appeal.

MR HAYLEN:   You have to start with what is 170MW doing.  It addresses both circumstances that can only be established by an assessment, the forming of a value judgment in the way that Wu Shan Liang and Mt Isa Mines and those other cases – Parisienne Basket, that far back – talk about.  Some of them will be established almost indisputably as a matter of fact.  But it covers the whole territory.  The fact that it covers the territory does not detract from the categorisation of “satisfaction” being an assessment.  It just means that where there is an almost indisputable fact, it will be very easy to satisfy the Tribunal.  That was what Buck v Bavone was about.

CALLINAN J:   Are you saying that if the Commission at first instance made an utterly perverse finding of fact or said something that was utterly perverse, having regard to the facts, then that could not be corrected by the Full Bench?

MR HAYLEN:   No.  Your Honour, because Wu Shan Liang and Buck v Bavone say then – they are not unreviewable, they used to be thought to be unreviewable - what you can do is review it for acting on an unreasonable basis.  No basis for forming the view.

CALLINAN J:   Factual error.  It is another way of saying factual error, is it not?

GAUDRON ACJ:   Wednesbury unreasonableness, I think you are talking about, are you?

MR HAYLEN:   Wednesbury unreasonableness, but there is a debate about that.

GAUDRON ACJ:   Yes.  Well, you say that is the only jurisdiction the Commission has in relation to 170 – that is the only ground on which it can review?

CALLINAN J:   A section 170MW decision.  Is that what you say?

MR HAYLEN:   Yes, that is right.  That follows from those cases.

GAUDRON ACJ:   That is not what the Full Court said, though, was it?

MR HAYLEN:   With respect, it did say that.  In terms, it said that.

GAUDRON ACJ:   Well, that is a very important question, is it not?

MR HAYLEN:   I would not have thought so, your Honour.  It applies ‑ ‑ ‑

GAUDRON ACJ:   I would have thought when there is an outright grant of jurisdiction to hear appeals, take evidence, so forth and so on, that to say that the nature of the power under MW is such that the only ground of review is an administrative law type ground of review, being Wednesbury unreasonableness, and that if you do not confine yourself to that, you then commit a jurisdictional error when you have clearly got jurisdiction to hear an appeal.

MR HAYLEN:   That will depend on the way the legislature draws section 170MW.

GAUDRON ACJ:   I think what we have got here, Mr Haylen, is a very interesting question about the nature of jurisdictional error.

MR HAYLEN:   I am starting to lose interest in it, your Honour.  Only when the wind changes.

GAUDRON ACJ:   A very interesting question as to what is meant by “jurisdictional error” on the part of an appellate body with appellate powers.

MR HAYLEN:   And it would have been good if that was the argument before the Full Court or it was the argument on special leave, but it was not.

GAUDRON ACJ:   Well, this is what seems to me to be a difficulty about this case.  It may not be a difficulty in the end result but the difficulty seems to be that the Full Court was not dealing with the argument that informed your application to this Court for prerogative relief.

MR HAYLEN:   Your Honour, I must say it seemed to us that – precisely the argument that we put forward, and the point that I was just making about – when your Honour the Acting Chief Judge says to me, “Look, that’s a very narrow form of review”, that is because the legislature draws section 170MW in a particular way.  If it draws it in a different way - - -

CALLINAN J:   The proper construction of 170MW is a fairly important point, is it not?  You may well turn out to be right on what you say about it but it is a very important matter.  It is one of the key provisions to the industrial legislation, is it not?  It introduced a different sort of a regime from what had been there before.  Is that not all correct, Mr Haylen?

MR HAYLEN:   Well, to an extent.  Mr Reitano has just drawn my attention to page 141 of the application book, page 44 of the judgment of the Full Court, the beginning of the new paragraph just above 4860, and they noted they had not necessarily reached “a concluded view on the proper construction of s 170MW”.

CALLINAN J:   I think they should have.  I do not know how they could have decided this case without taking - - -

MR HAYLEN:   Because there were a number of issues debated, your Honour, and I think they confined themselves to this issue of satisfaction identified in the Full Bench, the error being that the Commission was looking for, as a Full Bench exercising this power, or looking at reviewing the decision below on appeal said, “The error that we’ve identified is Justice Boulton didn’t have sufficient evidence to make a valid finding of fact.”  Section 170MW is not necessarily about making valid findings of fact.  In some subsections it will; in others it will not.

GAUDRON ACJ:   You would have to find that industrial action is being taken.

MR HAYLEN:   There is no issue about that.  There was an eight-week strike that was continuing at the time.  There was a bargaining period - - -

GAUDRON ACJ:   To support or advance claims, there is no issue about that.

MR HAYLEN:   Yes.

GAUDRON ACJ:   And then that that industrial action is such as to endanger, et cetera.  Now, if there was a finding with respect to action in globo and it was not all industrial action, that would ordinarily be a House v The King circumstance to which you could get into, on appeal – an appellate bench could.  Is that not right?

MR HAYLEN:   I think that is right, your Honour, yes.

GAUDRON ACJ:   But do you say that that is not possible here because, at the end of the day, one is not concerned with whether a value judgment was made on proper principles, only whether it was a value judgment that could not reasonably be held?

MR HAYLEN:   That is the point and the re-hearing is already dealt with.

GAUDRON ACJ:   That is an important point, is it not?

MR HAYLEN:   I am not sure it is, your Honour.  Could I just say this about the appeal, the nature of the appeal, the re-hearing:  that has been dealt with by many, many benches and it really does not arise very often at all.  The question of the 170MW has been focused upon in this case under the new legislation which has only been in, in this form, since 1996, there have been a number of cases.  That is true.  Not too many of them focusing upon these issues.  So, when we talk about “general importance” of the case, I am not sure that that can be made out on those two bases as is sought to be made in the - - -

GAUDRON ACJ:   Well, it has a constitutional importance, does it not, in this sense:  it really is raising the question of what is error which will ground prerogative relief in an important context?

MR HAYLEN:   Well, your Honour, not the case run before the Full Court and not the case brought here on special leave.  How do they get at that now?  How do they do that now?  Why do we face that prospect now?  This started in 1995.  The hearings were in 1997.  On a stay application, the Chief Justice says, “You might not get back to the Commission for another two years.”  The delay in this case, when this legislation anticipates there will be industrial action legitimately brought to press claims, is now fundamentally affected.

GAUDRON ACJ:   There is no order binding your client now, is there?

MR HAYLEN:   Your Honour, there is proceedings now – a Full Bench has re-heard the matter; has dismissed the appeal.  There is an award hearing under section 170 MX - - -

GAUDRON ACJ:   You have had a re-hearing of the appeal, have you?

MR HAYLEN:   Yes, there has been a - - -

GAUDRON ACJ:   In consequence of - - -

MR WEST:   The Full Federal Court’s judgment, your Honour.

GAUDRON ACJ:   Is that disclosed in your application?

MR WEST:   No, your Honour.  There is an affidavit that was filed yesterday by our learned friends - - -

GAUDRON ACJ:   I see, yesterday.  What time yesterday?

MR HAYLEN:   Nine o’clock, your Honour.

GAUDRON ACJ:   Who put that on?

MR HAYLEN:   We did, your Honour.

GAUDRON ACJ:   When was the appeal heard and determined?

MR HAYLEN:   In May, your Honour.

MR WEST:   It was determined in May.

GAUDRON ACJ:   When did the special leave application go on?

MR HAYLEN:   On December last year, your Honour.

CALLINAN J:   Was an application made to have the hearing delayed of the appeal?

MR HAYLEN:   To the Full Bench, yes.

CALLINAN J:   And the Full Bench, what, refused that application?

MR HAYLEN:   Yes, and then there was a stay application in this Court the Chief Justice refused in relation to the award case.

GAUDRON ACJ:   That seems to raise a quite different problem and that is whether any useful relief can now be given; whether the question is not entirely academic.

MR HAYLEN:   And, your Honour, with respect, the delay – this is a discretionary - - -

GAUDRON ACJ:   Well, do not worry about delay too much in this sense, that is a discretionary consideration.

MR HAYLEN:   Yes.

CALLINAN J:   But who delayed?

MR HAYLEN:   The applicant for special leave.  I mean, the applicant made no effort to have this brought on at an early time.  In fact, it was pushed back.

CALLINAN J:   But the applicant filed the application within time.

MR HAYLEN:   Well, had to, your Honour.

CALLINAN J:   Well, yes.  Well, no, he might have applied for leave out of time but the application was filed within time.  The applicant sought a stay and the applicant asked the Full Commission not to go ahead with the matter.  What more could the applicant have done?

MR HAYLEN:   It could have moved a lot sooner.  It took two or three months for it to make those applications and then when it came to this Court there was a delay of some two or three months and the Chief Justice said, “What’s the reason for delay?”, and there was none given.

GAUDRON ACJ:   What purpose can now be served?  This is an extraordinary development.

MR WEST:   May I deal with it this way:  the matter went back to the Full Bench and it re-entertained the appeal.  It purported to apply the decision of the Full Court.

GAUDRON ACJ:   So, you might have good grounds for seeking to bring that forward.

MR WEST:   We have done that.

GAUDRON ACJ:   You have done that.

MR WEST:   Your Honour, an application for prerogative relief was made against that judgment - - -

CALLINAN J:   Which will raise exactly the same point.

GAUDRON ACJ:   No.

MR WEST:   No, not quite, your Honour, because it is complicated now by the decision in the Full Federal - the Full Bench of the Commission applying the principles that the Full Federal Court has enunciated, they seeming to think that they now have to apply House v The King principles to 170MW(1) but judicial review principles to 170MW(3) which is not easily discerned from the Full Federal Court judgment.  What then happened, your Honours, was this, that despite our attempts to ask the Full Bench not to proceed with a 170MX arbitration, which is a Full Bench arbitration, the relief which they get in the event that the bargaining period is terminated.  The Full Bench has proceeded to hear that case.  Now, that case is not concluded.

If we were successful in obtaining special leave today, that Full Bench would be told of that fact.  That Full Bench would need to know that because in the event that, contrary to the submissions being made to it, an award was made, it is required to give that award a life.  Now it cannot, during the currency of that life, revoke the award but it can when the life expires.  In the event we were successful in getting special leave here and succeeded on appeal in this Court, we would then ask the Full Bench to revoke – what would happen is it would set aside the Federal Court - - -

GAUDRON ACJ:   The truth of the matter is this, is it not, the realistic thing is, you have to get special leave in this case and you have to get this Court to deal with your other application contemporaneously.

MR WEST:   And we have tried to do that.  The Chief Justice has sat upon that and he has heard, but not to completion, the application for prerogative relief.  He did not grant an order nisi.  He stood it over, your Honour.

GAUDRON ACJ:   He has heard an application for an order nisi?

MR WEST:   Yes, your Honour, he did.  What happened was that he decided not to proceed to complete that application but to stand it over to a date to be fixed after this special leave application was heard and determined.

GAUDRON ACJ:   Yes, very well.

MR WEST:   I am sorry to be speaking across your Honour.

GAUDRON ACJ:   That should have been brought to our attention much earlier on.

MR WEST:   Your Honour, it was my intention to do so in my oral address.

GAUDRON ACJ:   And we interrupted you too much.

MR WEST:   It certainly had not escaped our attention and that was not ‑ ‑ ‑

GAUDRON ACJ:   Thank you.  Mr Haylen, I think your time had expired unless you wish to answer what has just been said.

MR HAYLEN:   I do not wish to answer that, if your Honour pleases.

GAUDRON ACJ:   There will be a grant of special leave in this matter but it will be confined to the question whether there was error on the part of the Full Bench of the Commission grounding an entitlement to prerogative relief.  That may encompass other matters but - - -

MR WEST:   Yes, your Honour.  There will be some issues - - -

GAUDRON ACJ:   But that does not mean the issues relating to 170MW et cetera are at large.  It is not as though it were an appeal on all issues.

MR WEST:   I understand that, your Honour.

GAUDRON ACJ:   I take it, Mr Haylen, you say there is some urgency in having this and the - - -

MR HAYLEN:   No urgency up until now, your Honour.

GAUDRON ACJ:   Well, now.  I think you say there is now some urgency in having this and the other matter - - -

MR HAYLEN:   No, your Honour.  The only point I was making is there has been a delay that would impinge upon the exercise of the discretion to grant special leave.

GAUDRON ACJ:   Yes.  But you do not say your client’s interests are such that the matter should be heard - - -

MR HAYLEN:   Your Honour, the process is continuing before the Commission.  If, ultimately, one result or another flows, it will have to be sorted out thereafter.

GAUDRON ACJ:   Thank you.

AT 11.34 AM THE MATTER WAS CONCLUDED