Coal and Allied Operations, Ex parte- Re CFMEU and Ors
[1999] HCATrans 204
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S106 of 1999
In the matter of –
An application for writs of Certiorari and Mandamus against the Full Bench of the Australian Industrial Relations Commission consisting of THE HONOURABLE JUSTICE GEOFFREY GIUDICE, PRESIDENT, THE HONOURABLE JUSTICE PAUL MUNRO, DEPUTY PRESIDENT and ANNE LARKIN, COMMISSIONER OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
First Respondents
THE CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
Second Respondent
THE AUTOMOTIVE, FOODS, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION
Third Respondent
THE COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA
Fourth Respondent
Ex parte -
COAL & ALLIED OPERATIONS PTY LTD
Prosecutor
Application for a stay
GLEESON CJ
(In Chambers)
TRANSCRIPT OF PROCEEDINGS
AT SYDNEY ON TUESDAY, 13 JULY 1999, AT 10.17 AM
Copyright in the High Court of Australia
_______________________
MR J.L. TREW, QC: If your Honour please, I appear with my learned friend, MR H.J. DIXON, for the prosecutor. (instructed by Freehill Hollingdale & Page)
MR S.C. ROTHMAN, SC: If the Court pleases, I appear with my learned friend, MS C.M. HOWELL, for the second, third and fourth respondents. (instructed by R.L. Whyburn & Associates)
HIS HONOUR: There is a certificate from the Deputy Registrar saying that she has been informed that the first respondents do 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 Trew.
MR TREW: Your Honour, there are two affidavits. Did your Honour get the second affidavit. It was filed very late?
HIS HONOUR: Yes, thank you.
MR TREW: Would it help, your Honour, if I handed up a further copy of the second affidavit? It has been paginated. It might be easier.
HIS HONOUR: Thank you. Is there one notice of motion or two?
MR TREW: One.
HIS HONOUR: And that is dated what date?
MR TREW: It has not got a date, your Honour, because the usual procedure is to remit these to the Federal Court.
HIS HONOUR: On what date was it filed?
MR ROTHMAN: It is 5 July; it is dated 5 July.
MR TREW: I am sorry. Mine is a copy.
HIS HONOUR: Thank you.
MR TREW: Your Honour, the order nisi is connected with a special leave application that is listed for hearing before the Court on 10 September. It raises substantially the same issues as the special leave application. The special leave application challenges the decision of the Full Court on the question of what is the nature of an appeal before the Full Bench of the Industrial Relations Commission.
HIS HONOUR: Can you just explain what that issue is to me.
MR TREW: The Full Court held that, for the purposes of the type of appeal that was being heard here, House v The King principles applied to the disposal of the appeal.
HIS HONOUR: That is an appeal from Justice Boulton?
MR TREW: That is right. I limit it just to this appeal because the Full Court said in other cases the House v The King principles may not apply. The issue is whether or not, in the Full Bench of the Industrial Relations Commission, the Commission on appeal has a full right of review rather than the application of the House v The King principles. That is substantially the point upon which the special leave application is being based.
Following the decision of the Full Court, the proceedings went back to the Full Bench that re-determined the appeal that had been quashed by the Full Court. It applied the House v The King principles and dismissed the appeal. The proceedings ‑ ‑ ‑
HIS HONOUR: Was that consistent with the decision of the Full Court of the Federal Court?
MR TREW: Yes. What this order nisi seeks to do is to challenge the decision of the Full Bench and, of course, the Full Bench was only applying the decision of the Full Court. So the fate of ‑ ‑ ‑
HIS HONOUR: That would seem to suggest that if the application for special leave fails, then the application for an order nisi would necessarily fail.
MR TREW: I think that is right, your Honour. There may be some area where that is not the case, but there would be no reason for it to be held in this Court anyway. But, substantially, that is correct and that is why I have mentioned immediately they are inextricably linked. The urgency for the application is that, following the Full Bench's dismissal of the appeal, the bargaining period, which I will come and explain in a moment, has been terminated and the proceedings now are listed for hearing in the next few weeks before another Full Bench of the Arbitration Commission to carry out a special type of arbitration that the new legislation permits.
HIS HONOUR: Mr Trew, we had better get the evidence in order. You read two affidavits, do you?
MR TREW: Yes, I do, the affidavit of Graeme Ross Watson, sworn 5 July, and his further affidavit sworn 12 July.
HIS HONOUR: Is there any objection to any parts of those affidavits, Mr Rothman?
MR ROTHMAN: Not for the purposes of these proceedings, your Honour.
HIS HONOUR: Mr Trew, I have read those affidavits but I have not read the exhibits to the affidavits, so if there is anything in particular you want to draw my attention to, you will need to do so or, alternatively, you might just summarise the effect of the relevant parts of them in your opening.
MR TREW: I thought I would try and do that, your Honour, and then, to the extent that it might appear necessary in the course of that, I can go to those documents.
The basis of the prosecutor's challenge to the decision of the Full Court is that there is a decision of this Court called Brideson [No 2], which I will come to in due course, which has held in proceedings in the past that the Commission has a full review on appeal. The legislation is slightly different, but for relevant purposes we submit that the principles that applied there are applicable.
HIS HONOUR: It would assist me if you could explain in a summary form the nature of the litigation that came before Justice Boulton and then went to the Full Bench and also the Full Court.
MR TREW: Yes, and I might do this in a number of stages, your Honour, so that I unravel the detail of it as is necessary. The first thing, the employment conditions of the persons employed at this mine are regulated by awards of the federal Commission. Industrial action now, following the amendments in 1996, is not forbidden by the Act except in certain circumstances. Where there is an award applying, industrial action is not forbidden by the Act although, in certain circumstances, orders can be obtained to prevent or to stop industrial action. I will stay with the awards for the moment. That, of course, does not exclude common law tort actions. There is a provision in the Act that requires, before any actions are commenced for damages, a certificate is obtained from the Commission. It has been held by various Supreme Courts that that does not prevent proceedings for injunctions to restrain a tort action if it is industrial action.
Where employers and employees are negotiating for the terms upon which their relationship will be governed there is now provision in the legislation that permits what is described as a bargaining period being established, and there are various provisions that deal with notice that have got to set this up. Once a bargaining period has been established, either party can then give the other party notice, again in a prescribed form or in a statutory form, that they are going to engage in industrial action.
HIS HONOUR: How long can these bargaining periods go on for?
MR TREW: Indefinitely.
HIS HONOUR: Why would anyone want them to go on indefinitely?
MR TREW: Until an agreement is reached. There is a provision that led to this litigation - 170MW, that I will take your Honour to shortly - which enables the Commission itself to bring a bargaining period to an end. The bargaining period will come to an end in a number of circumstances. First, if the parties reach an agreement or, secondly, if the conditions satisfied in 170MW are satisfied. I will come to that in a moment. If the bargaining period comes to an end, the Commission is then obliged under two sections that I will have to take your Honour to, 170MX and 170MY, to then arbitrate and settle that dispute. But it is a very peculiar type of arbitration because it can take account of what has gone on in the bargaining period. I will take your Honour to that.
Ordinarily now, under the legislation following the amendments, the powers of the Commission to deal with industrial disputes are limited and the thrust of the Act now is to require the parties to industrial disputes to settle their differences by agreements. The legislation requires or permits the Arbitration Commission to make what are described as minimum condition awards.
HIS HONOUR: This bargaining period was terminated by Justice Boulton on 7 November 1997.
MR TREW: That is right.
HIS HONOUR: How long had it been going on for when it was terminated?
MR TREW: I cannot answer that off the top of my head but for several months, as I understand it. From about March.
HIS HONOUR: March 1997?
MR TREW: Yes.
HIS HONOUR: So if you are right and it was wrongly terminated, it is more than three years old.
MR TREW: That is right. And the reason that ‑ ‑ ‑
HIS HONOUR: Two years old, I should say.
MR TREW: Yes, yes, and that is because of the litigation that is - perhaps an explanation for the litigation is the section is relatively untried and this litigation is really determining what it means. When Justice Boulton terminated the bargaining period under 170MW - has your Honour had a chance to look at that section?
HIS HONOUR: Yes.
MR TREW: Your Honour will have noticed that he is required to be satisfied, in subsection (1), of various circumstances. The relevant circumstances were MW(3). He made a finding that he was satisfied in respect of that.
HIS HONOUR: Just excuse me for a moment. Which was the relevant part of that subsection?
MR TREW: Both (a) and (b). And it was because of the conduct of the respondent, the CFMEU, that he terminated it because their industrial action was having that effect.
HIS HONOUR: Now, it is his decision to terminate under 170MW(3) that is the origin of the various appeals?
MR TREW: That is right.
HIS HONOUR: It looks like a decision of fact.
MR TREW: Yes.
HIS HONOUR: What is the nature of the challenge to the merits of the decision?
MR TREW: It is more than - that the facts were wrong and that he wrongly exercised the discretion. He has a discretion in (1) as to whether or not to terminate if those facts in (3) exist.
HIS HONOUR: Yes. Now, you appealed to the Full Bench?
MR TREW: Yes.
HIS HONOUR: The Full Bench disagreed with Justice Boulton evidently.
MR TREW: Yes.
HIS HONOUR: On what ground?
MR TREW: And quashed his decision. Substantially because they disagreed with his findings under (a) and (b).
HIS HONOUR: They said he got the facts wrong.
MR TREW: Got the facts wrong.
HIS HONOUR: Not that he exercised his discretion in an erroneous fashion.
MR TREW: Justice Munro certainly held that he had exercised his discretion in an erroneous fashion as well. Then the third member of the Commission substantially agreed with the President, although it was a bit hard to understand a fairly short decision. Can I go to section 45 which is the appeal provision?
HIS HONOUR: Yes.
MR TREW: The appeal was under subsection (1)(b):
an.....order made by a member of the Commission,
it was against that order that the appeal was made. Your Honour will notice that the opening words are, "with the leave of the Full Bench". Subsection (2) deals with leave:
A Full Bench shall grant leave to appeal under subsection (1) if, in its opinion, the matter is of such importance that, in the public interest, leave should be granted.
The Full Court has held that that does not eliminate the ordinary requirements for appeal, in this case in relation to appeals from discretionary judgments.
HIS HONOUR: We have not got to the Full Court yet, but the decision of the Full Bench was challenged on an application for prerogative relief that was remitted to the Full Court.
MR TREW: Yes.
HIS HONOUR: And the Full Court granted the prerogative relief?
MR TREW: Yes.
HIS HONOUR: Quashed the decision of the Full Bench.
MR TREW: Yes.
HIS HONOUR: On what ground?
MR TREW: That the Commission was not entitled to review the decision of the primary judge in the way it had. In other words, they held that it was an appeal from a discretion and the court had not applied the discretionary tests and therefore the appeal was - they had acted without jurisdiction.
HIS HONOUR: The matter then went back to the Full Bench?
MR TREW: It went back to the Full Bench.
HIS HONOUR: And the Full Bench, applying the approach that the Full Court said was the correct approach, then upheld the decision of Justice Boulton?
MR TREW: Yes.
HIS HONOUR: That is where we are at the moment?
MR TREW: That is where we are at the moment. No, there is one further step. A further Full Bench has now been convened to carry out the arbitration that must occur after the termination of the bargaining period.
HIS HONOUR: On 3 May the Full Bench gave directions which included a direction that the arbitration is to commence on 19 July?
MR TREW: Yes. And that is unusual because at that time the appeal was still reserved before another Full Bench.
HIS HONOUR: Yes. Then that decision was given on 12 May.
MR TREW: On 12 May, yes.
HIS HONOUR: What is the - I have not yet seen in the evidence the explanation of the delay between 3 May and 5 July for commencing this application in this Court.
MR TREW: I do not think there is any, your Honour.
HIS HONOUR: Two months elapsed between the time a matter was fixed to commence next week and an application for a stay of proceedings was made. That strikes me as an unusual length of time.
MR TREW: In the second affidavit, I think the answer to this - application was made to the - no, that was 3 May, an application was made to that Full Bench not to proceed with the hearing of it and that was rejected on 3 May. I do not think the evidence deals with what has happened in the time between 3 May and 5 July.
I am still dealing with section 45, your Honour. I have dealt with the leave to appeal. In subsection (6) the Commission, on appeal, has power to "admit further evidence" and it "may direct a member of the Commission to provide a report". The appeal decision allows it to confirm or quash or:
make an award.....dealing with the subject-matter of the decision -
et cetera, very wide powers of what it can do. Subsection (9) is important. It gives the Commission on appeal - it says that:
Each provision of this Act relating to the hearing or determination of an industrial dispute extends to the hearing or determination of an appeal under this section.
There are important sections that that picks up. Section 90, for instance, requires the Commission to have regard to “the public interest”. So that is an independent duty, we submit, that applies to it on appeal. Section 110 of the Act deals with procedural matters and subsection (1) requires it to investigate in the way:
it considers appropriate, carefully and quickly inquire into and investigate the industrial dispute and all matters.
In subsection (2), (b) is important:
The Commission is not bound to act in a formal manner –
and the rules of evidence do not apply.
And then (c), it is to:
act according to equity, good conscience and the substantial merits of the case, without regard to technicalities and legal form.
Now, of the structure of 45, particularly picking up those provisions, in our submission, indicates that on appeal the Commission has the same powers as the member of the Commission from whom the appeal is brought.
HIS HONOUR: That is the argument that you will want to advance in support of your special leave application.
MR TREW: Exactly, yes. This may be the time when I should - has your Honour had a chance to look at the Brideson passage that ‑ ‑ ‑
HIS HONOUR: No.
MR TREW: Could I take your Honour to that? It is in 170 CLR. Can I just ask your Honour perhaps to note that - and it is at page 267 - the judgment and the circumstances of the case are described in the Full Court's decision between pages 30 and 34.
HIS HONOUR: This again is going to the merits of your ultimate argument.
MR TREW: Yes, it is, and the reason that I am taking your Honour to it is to support the submission that the ultimate argument for special leave, and on the appeal itself, if special leave were granted, is that there is a strong case.
HIS HONOUR: Just let it be assumed for the moment that that is right, that you have got an arguable case at least, what is going through my mind at the moment, Mr Trew, is this: putting to one side for the moment the complicating factor of the stay of proceedings of the pending arbitration due to commence on 19 July - and I will ask you a couple of question about that in a moment - you would normally expect that the proper way to deal with these applications for an order nisi at this stage would be to stand it over until after the application for special leave had been dealt with. If the application for special leave fails, that will be the end of the application for an order nisi. If the application for special leave succeeds, one possible course would be to refer the matter to the Full Court of the High Court to be dealt with at the same time as the appeal. So if it were not for the pending arbitration, my initial reaction would be to take a course such as that.
MR TREW: Yes.
HIS HONOUR: In other words, just stand the order nisi application over to be fixed for further hearing on a date following the hearing of the application for special leave. Now, the complicating feature of the case is the pending arbitration. What is the evidence as to how long that arbitration is expected to run and when it will run?
MR TREW: Yes, there are some dates in one of the affidavits, I think. I cannot remember what they are, but it starts in July, it runs in August, and I thought it ran a bit later than that. There are some dates in September as well.
HIS HONOUR: Are they before or after 10 September?
MR TREW: After.
HIS HONOUR: Was the Full Bench given an estimate of the expected length of hearing of the arbitration?
MR TREW: I do not know, your Honour. Yes, three weeks, apparently.
HIS HONOUR: So they have set aside three, as it were, separate weeks?
MR TREW: Yes.
HIS HONOUR: One week in July, one week in August, and one week in September.
MR TREW: Yes.
HIS HONOUR: The week in September being after 10 September?
MR TREW: Yes.
HIS HONOUR: Now, the foundation of your application for a stay, as I understand it, is that the subject matter of the proceedings in the appeal to this Court, if special leave is granted, will be destroyed.
MR TREW: Yes.
HIS HONOUR: Could you just explain to me why that is so.
MR TREW: Yes. Can I do it, again, without reference to the statutes, your Honour, in a summary way. The effect of the termination of the bargaining period is that it alters the relationship of the parties who are bargaining. Before that, they are able to engage in industrial action against one another to force one another to agree to the other’s requirements. When the bargaining period is terminated, they can no longer engage in that industrial action. It is then taken over by the Commission itself and the Commission has a special arbitration, having regard to offers and counter offers that are made during the course of the bargaining, if any; the conduct of the parties during the bargaining period et cetera, and I can take your Honour to the section in due course. The Commission ultimately imposes terms on the parties to settle the dispute that they could not settle themselves. Now, it may be different, it may not be different, to the terms of the award that already binds the employer and the employees in this particular case.
The power of the Commission to conduct this arbitration of its special, or perhaps unique, under the Act, it is triggered by the termination of the bargaining period. If it goes ahead, the Commission – the third party will then get involved in the dealings with the parties and it is inevitable, just limiting myself to the process of the hearing of it at the moment, that the conduct of the parties is going to be examined, perhaps commented on during the course of the running of the case, and it fundamentally alters or undermines the bargaining that had previously gone on.
HIS HONOUR: Would you just explain that to me?
MR TREW: Yes. When the parties were bargaining before, they were uninhibited by any supervision or involvement of any third party. Now, in hearing the arbitration, the Commission will be hearing evidence from parties; there will be cross-examination of parties. If it makes its determination and it is subsequently held to be having been made without power because the bargaining period had not been terminated, it has set the benchmark. By that stage, it has fundamentally altered the position - - -
HIS HONOUR: That is what I want to understand. If you get special leave to appeal to the High Court and if your appeal succeeds, what will be the consequence of that, assuming an award has been made at this arbitration in the meantime?
MR TREW: The Full Bench would then, first of all, have to decide the appeal in accordance with whatever the principles were that were decided upon by the High Court, and it may or may not allow the appeal. But if the principles are as we contend, namely a full review, although we cannot say with certainty on the basis of the decision already made by the Full Bench, but the chances on one view are very high that it would come to a conclusion that the bargaining period should not have been terminated by Justice Boulton.
HIS HONOUR: Now, suppose that happened.
MR TREW: Well then, at that stage, there is a bargaining period in existence. The Commission has, as it were, determined itself how this bargaining should have been resolved and it then destroys the whole basis of the negotiations between the parties because the satisfied party is going to hang on to the decision even though the decision is - - -
HIS HONOUR: What would be the legal effect of the award?
MR TREW: It would be quashed.
HIS HONOUR: Mr Trew, if you get special leave to appeal, it might be a year before the appeal is heard and determined by the High Court.
MR TREW: Yes.
HIS HONOUR: If you win, it will then go back to the Full Bench of the Industrial Relations Court. I am not sure what the time element will be then but some time later than that, if you have another win, 18 months or two years from now, you will have reached the position where there is a decision that Justice Boulton was wrong in terminating the bargaining period or would you have reached a decision that the bargaining period was not effectively terminated? Will that be the outcome if you win all along the line?
MR TREW: Yes.
HIS HONOUR: Well then, if, in two years time, somebody decides in your favour that the bargaining period was not effectively terminated back on 7 November 1997, how will the fact that an award has been made in the meantime deprive you of the fruits of that forensic triumph?
MR TREW: Because in the meantime the relationship between the employers and employees has fundamentally changed in that their relationship will have been regulated for some time by possibly a new and different type of award. It is impossible, we would submit, to change that afterwards. Let me assume against what - - -
HIS HONOUR: Well, first of all, leaving aside what might be called the industrial exigencies, what would be the legal status of the award?
MR TREW: It would not have any.
HIS HONOUR: It would not have any legal status?
MR TREW: No.
HIS HONOUR: So, you will not be deprived of the fruits of your victory by the fact that a binding award will have intervened?
MR TREW: That is right.
HIS HONOUR: Then the respect in which you say you will have been deprived of the fruits of your victory relates to industrial circumstances?
MR TREW: Yes.
HIS HONOUR: Rather than legal consequences?
MR TREW: Yes, but industrial circumstances sanctioned by the legislation.
HIS HONOUR: Industrial circumstances, presumably, change all the time.
MR TREW: Of course.
HIS HONOUR: We are talking about something that, at best, from your point of view, looks about two years away.
MR TREW: Let me come at this in two stages. The legislation sanctions the bargaining by employers and employees uninhibited by any prohibition on industrial action. They can, as it were, fight it out without suffering any penalty during this bargaining period and without the Commission’s interference. If an award is made, a benchmark is established; a benchmark that should not have been established by the Commission if the bargaining period had been allowed to run and the policy of the Act or purpose of the Act had been pursued, namely the parties were allowed to fight it out until exhaustion of one or the other, subject to the safeguards that I took your Honour to in 170MW. That will fundamentally change the relationship between the parties.
Putting it from the employees’ position first, if the award that is made by the Full Bench is no greater than the present award in dealing with the employer in relation to the bargaining period that should not have been terminated, they know that the Commission was of the view that those are the terms and conditions that should have applied and that, as it were, is the benchmark for them and that gives the employer in that case an unfair advantage in the bargaining. And then, from the employers’ point of view, if it is higher than the present award, not only do the employees have a greater advantage in the bargaining that must continue but, in reality, we would submit, it would be impossible to change terms and conditions of employment in a downward direction after they had been fixed like that and people had been working under them.
So, that is the way in which we submit the proceedings that are proposed now in July and onwards will completely undermine the bargaining period. The terms and conditions of employment are protected by award already. There is no certainty that any award made by the Commission will be any different to what already applies. In the running of the case, it is inevitable that the parties will be cross-examining one another's witnesses. Inevitably, that will give one or other advantages in any bargaining that might be permitted thereafter if the bargaining period should not have been terminated. That is the prejudice that suffers and that is why the stay is being sought at this stage.
HIS HONOUR: Well now, does that cover the essence of what you wanted to put, because if it does I will hear what Mr Rothman has to say?
MR TREW: Yes. I have not developed the arguable point - - -
HIS HONOUR: I do not need to hear you develop that. Subject to what Mr Rothman says, I am prepared at the moment to assume that you have an arguable case in your application for special leave.
MR TREW: Yes, if your Honour pleases.
HIS HONOUR: Thank you, Mr Trew. Yes, Mr Rothman. Is there any reason why we should not make that assumption, Mr Rothman? It sounds a little invidious that I should attempt to decide in advance of the hearing of the application for special leave to appeal what its merits are.
MR ROTHMAN: Your Honour, it was not my intention today to argue the nature of an appeal under section 45 as to whether it is a rehearing - - -
HIS HONOUR: Let as assume that Mr Trew has an arguable case for special leave.
MR ROTHMAN: Can I simply point out to your Honour, having stated that, that the point is not quite as simple as my learned friend would have the Court believe. The issue, in fact, turns on a Parisienne Basket point. Section 170MW(1) requires the member of the Commission to be “satisfied” of particular “circumstances”. It is not a finding of fact in that sense, and then exercise a discretion based on the pre-conditioned satisfaction. That is where the issue arose in the Full Court of the Federal Court and that is the reason that it went in the way that it did.
Having said that, your Honour, the position that we put in terms of arguability of case is different from the position of whether or not there is an arguable case on what is the nature of an appeal under section 45 of the Workplace Relations Act.
HIS HONOUR: Let me just attempt to narrow the issues that I have to deal with this morning. As I said to Mr Trew, putting to one side the matter of the impending arbitration, if all that had been involved in this morning’s application was an application for an order nisi, my initial reaction would have been simply to stand that application for an order nisi over until after the hearing of the special leave application and then deal with it in the light of the outcome of the special leave application. Do you have anything to say against that proposition?
MR ROTHMAN: Yes, your Honour, we do. We say it for this reason, that the Court and the legislature has gone to some length to put in place a system to – I hesitate to use the word “ease” the workload of this Court, but nevertheless to have the Federal Court of Australia at least initially deal with matters involving prerogative relief from the Commission in circumstances where this Court takes the view that it is appropriate that remitter occur.
Now, what has occurred in this case is this, that my learned friends – and your Honour has been taken, to some degree, through the litigation. I do not wish to do it again. I do not know if your Honour received a brief outline of submissions that I think I sent through to the Court with a chronology.
HIS HONOUR: Yes, thank you.
MR ROTHMAN: What has occurred in this case, your Honour, is this: the very issues about which my learned friend is concerned were the subject of prerogative relief application that was remitted to the Full Court which decided the issue. There is an order of the Full Court of the Federal Court of Australia binding on the first respondents in this case.
HIS HONOUR: That is subject to an application for special leave to appeal.
MR ROTHMAN: No doubt. That order was sought to be stayed before the Federal Court. The Federal Court refused that stay. That order was also sought to be effectively stayed in the sense that it was sought both before the Full Bench dealing with the 170MW appeal that they not deal with it until the special leave application had been heard by this Court, and the operation of it was sought to be stayed by the fact that in the 170MX arbitration, the Full Bench of the Commission was asked not to proceed until the special leave application.
So that in terms of the Full Court of the Federal Court proceedings, there have been, in effect, three applications for a stay of those proceedings based on the decision of the Full Court which is the subject of special leave. All of those have, in effect, been refused. They have been refused. The Full Bench then deals with the matter in the manner required, as my learned friend has conceded, by the orders of a superior court of record, and my learned friends then seek prerogative relief against that decision abiding by the decision of the Full Court of the Federal Court of Australia.
My learned friends have not sought to stay the order of the Federal Court in this Court. I know that is an unusual course and the Court has turned its face against, generally, other than in exceptional circumstances ‑ ‑ ‑
HIS HONOUR: Now this may be a very strong argument to be addressed against the granting of prerogative relief or against referring the question of prerogative relief to the Full Court of the High Court if special leave to appeal is granted. But if special leave to appeal is refused, this is the end of it. Why should I not simply stand the application for prerogative relief over so that I can see what the outcome of the special leave application is going to be? Nobody’s position is affected one way or the other by that course.
MR ROTHMAN: I accept all that your Honour says in relation to that. I was, with respect, going from the primary position that were there no special leave application, for example, this application itself, in our respectful submission, would be an abuse of process. There are decisions, certainly of the Court of Appeal in New South Wales, where the joining of an application for prerogative relief with an appeal is and was seen as an abuse of process, and I think I have referred your Honour to Meagher v Stephenson in the outline.
Notwithstanding its practicality, the reason that I oppose the course that your Honour suggests is that, in effect, it would at least encourage, and possibly render nugatory, the whole process of remitter because each time the Full Court or any Full Court orders were implemented, there would be the capacity for a party to seek prerogative relief, and we say, with respect, that is - - -
HIS HONOUR: Anybody can seek prerogative relief. The problem is getting it. The course that I propose does not affect their right to seek anything.
MR ROTHMAN: No, your Honour, but it is not unusual in this Court for an order nisi simply to be refused.
HIS HONOUR: Yes. Well, it might be refused too.
MR ROTHMAN: Yes, your Honour, and all I am saying is that the proper course for the determination of the matters that my learned friend says are arguable and that I assume are arguable for the purpose of these proceedings, that is, the issue of what is the nature of an appeal, is the special leave application. That is the point that we make and therefore we say no order nisi ought be granted or encouraged in circumstances where the matter is already before the Court by way of special leave.
HIS HONOUR: You do understand, do you not, that the course I am proposing does not involve the grant of an order nisi?
MR ROTHMAN: I understand that, your Honour, yes. I do understand that, your Honour.
Your Honour, in terms of the grant of a stay, can I say two things? Firstly, as I understand my learned friend’s submission, my learned friend says that the award would somehow affect the bargaining position of the parties. That is, effectively, what I understand him to say, even if it were found later to be invalid. Your Honour, that is not a factor which this Court has ever in the past associated with the kind of detriment which would satisfy the exceptional circumstances required in an industrial matter.
HIS HONOUR: I thought the basis of Mr Trew’s application was that unless a stay is granted, the subject matter of the proceedings involved in the appeal to the Full Court of the High Court, if leave is granted, will be destroyed.
MR ROTHMAN: With respect, that is clearly not the case. There are a number of scenarios, and assuming that my friend is successful in part or in whole, that could arise if special leave is granted and if the Full Court heard and determined it for the appellant.
HIS HONOUR: What would be the effect of the award, Mr Rothman? Let me assume for the moment in Mr Trew’s favour, that he gets special leave to appeal - - -
MR ROTHMAN: He wins the appeal.
HIS HONOUR: - - - and he wins the appeal. That the effect of his winning the appeal to the High Court is that it goes back to the Full Bench, and that he then wins his appeal before the Full Bench. The consequence of that, I presume, is that there will then be a decision of the Full Bench that Justice Boulton did not effectively terminate the bargaining period on 7 November 1997, is that right?
MR ROTHMAN: Well, it will be a decision of the Full Bench overturning the termination of the bargaining period.
HIS HONOUR: And is the consequence of that, the bargaining period then subsists?
MR ROTHMAN: The effect of that would be the bargaining period would subsist and the jurisdictional pre-condition to the arbitration that is to proceed next week or whenever would be taken away and the award made by the Full Bench would be incompetent.
HIS HONOUR: You both seem to agree on that.
MR ROTHMAN: Yes, your Honour.
HIS HONOUR: I will have to take your word for that, but if there is no dispute about it, I am happy to do so.
MR ROTHMAN: Section 170MX award can apply only “if a bargaining period is terminated” and, indeed, only if it is terminated on certain grounds.
HIS HONOUR: Yes. Well, I will assume that is correct.
MR ROTHMAN: So that the situation would be the award would have, at least as at the date that the Full Bench overturned again, on your Honour’s assumption, the decision of Justice Boulton, no effect whatsoever. Can I remind your Honour, as my learned friend, I think, in passing, reminded your Honour, there is, indeed, an award that currently applies. This arbitration is, in effect, an arbitration to update the award that applies to the employees in question. So that in legal terms and, in my respectful submission, in bargaining terms, even if an award was made which is ultimately held not to have been properly based, that award would make no difference to the bargaining position of the parties.
Your Honour, the other matter that I should raise, your Honour, is that far more than that sort of alteration needs to be show in order to overcome what have been placed at a fairly high level, the bar for stay applications in this Court, certainly in industrial proceedings.
HIS HONOUR: What is your best case on that point?
MR ROTHMAN: Your Honour, there are a number of them.
HIS HONOUR: Just the best one.
MR ROTHMAN: Can I perhaps remind your Honour of the decision in the ANF Case 112 ALR 177. I do not need to take your Honour to it. It is a decision of his Honour Justice McHugh. The passage is at pages 184 to 185. He cites with authority Justice Dawson in Re Moore; Ex parte Pillar. Your Honour, without taking your Honour to it, in Re Moore, which his Honour there discusses at length, the factual situation was this. His Honour Justice Dawson had granted ex parte a stay of a certificate for amalgamation of two organisations. Nothing, with respect, could alter more fundamentally the nature of the parties than the amalgamation of two corporate bodies in which circumstances their membership, their assets and their whole being was merged in accordance with the Act.
His Honour, in Re Moore, ultimately found that there was nothing that could not be undone, even if not in total, then certainly substantially, but the subject matter of the litigation was not destroyed and therefore, because it was an industrial case, it ought not be stayed. The passage I should have taken your Honour to and I did not was the passage in Re Griffin, Ex parte PREI. Has your Honour 167 CLR?
HIS HONOUR: Yes.
MR ROTHMAN: It commences at page 37. It is a judgment of his Honour Justice Brennan, and the passage to which I would refer your Honour is a passage at page 42. It is the long paragraph, the first full paragraph on page 42. I would invite your Honour to read that.
The other matter about which we would make mention in terms of a stay, your Honour, is that as I understand what is being put in terms of a stay is that the Court is being asked to stay the section 170MX proceedings. There is no prerogative relief sought against the 170MX proceedings, and the members of that Bench are not parties to these proceedings. That is beyond exceptional. What the Court is being asked to do is being asked to make a stay of proceedings binding on persons who are not party to the proceedings for a proceeding which is dependent not on the decision now being stayed but is dependent upon the earlier judgment of his Honour Justice Boulton. In other words - - -
HIS HONOUR: Just excuse me for a moment. Where actually do I find the application for a stay, Mr Trew? I have the notice of motion.
MR TREW: It is not in the motion, your Honour, but I think it is in the order nisi. It should be at the end of the order nisi, as I recall.
HIS HONOUR: It is in the draft order nisi, is it?
MR TREW: In the draft order nisi. It is on the top of page 5 of the draft. The notice of motion is in the form, as I understand - - -
HIS HONOUR: I have the notice of motion. We will come back to that. Go ahead, Mr Rothman.
MR ROTHMAN: Yes, your Honour. It is at the top of page 5 of the draft order nisi, your Honour.
As your Honour can see from the chronology, the proceedings under section 170MX were programmed before the decision that is currently the subject of this prerogative relief application was made. The proceedings under section 170MX depend upon Justice Boulton’s judgment about which there is no challenge, and the effect of the stay of those proceedings is, in essence, to grant prerogative relief against another set of respondents who are not party to the proceedings in circumstances where there is no jurisdictional bar to those proceedings and, in essence, has the effect of granting the appeal made by the Full Bench because it is the termination by Justice Boulton which gives rise to the 170MX proceedings. The Full Bench will either confirm or quash that. If it quashes it, the termination goes away.
The process of staying another set of proceedings and denying effect to another decision is a process which, your Honour, in our respectful submission, takes it two or three steps beyond the nature of stays that have been granted not only in industrial matters but generally. If the Court pleases.
HIS HONOUR: Thank you, Mr Rothman. Yes, Mr Trew. What do you say about that parties point?
MR TREW: I have to concede it, your Honour, they are not named as parties and we would seek leave to amend to add them as parties. They are members of the Commission: Vice President McIntyre, Senior Deputy President MacBean and Commissioner Harrison.
HIS HONOUR: Are they different from the members of – yes, they are.
MR TREW: Yes, they are, your Honour, yes, and they should be made parties. Your Honour, can I say this: we do not have anything further to say about the procedure that your Honour is suggesting about the adjournment of the order nisi until after the special leave application is heard. So that leaves outstanding the question of the stay. The case of Griffin that your Honour was taken to was a stay sought in relation to an order that had been made that would have the effect of preventing or, actually in that case, requiring money additional to be paid and that is quite
a different case. These circumstances come within the test that has been applied and the judgment of Justice McHugh identifies as an exceptional remedy. The circumstances here, we submit, are exceptional. The whole basis of the litigation is compromised and undermined, we submit, by allowing the arbitration to proceed in those circumstances. I do not think there is anything more than I can say. Yes, I am reminded, of course, that the Court has power to grant the stay without dealing with the order nisi.
HIS HONOUR: Thank you.
There are two applications presently before the Court. The first is an application for an order nisi seeking prerogative relief against the Full Bench of the Australian Industrial Relations Commission consisting of the named first respondents. The second is an application for a stay of proceedings in matter C37571 of 1997 pending the hearing and determination of the application for the order nisi earlier mentioned.
It is unnecessary to refer to the full detail of the complex litigious history of this matter. It suffices for present purposes to say that on 7 November 1997 Boulton J terminated a bargaining period pursuant to section 170MW of the Workplace Relations Act 1996. The present applicant appealed successfully to the Full Bench of the Australian Industrial Relations Commission. The Full Bench made an order quashing the decision of Boulton J. The respondent Unions then made an application for prerogative relief to this Court which was remitted to the Full Court of the Federal Court. In August 1998 the Full Court of the Federal Court heard the application for prerogative relief. The Full Court decided that application in favour of the present respondent Unions. The matter then went back to the Full Bench of the Australian Industrial Relations Commission which applied the principles enunciated in the decision of the Full Court of the Federal Court and decided that the original decision of Boulton J of November 1997 terminating the bargaining period should stand.
The decision terminating the bargaining period forms the basis of an impending arbitration under section 170MX of the Workplace Relations Act. That arbitration is fixed for a hearing which will commence next week on 19 July. It is expected to last three weeks: one week in July, one week in August and one week in mid-September. The programme for that arbitration was set on 3 May 1999. On 5 July 1999 these present applications were made to this Court.
There is pending in this Court an application for special leave to appeal to the High Court against the decision of the Full Court of the Federal Court to which earlier reference has been made. That application for special leave to appeal is listed for hearing on 10 September 1999.
In relation to the application for an order nisi, which is said to have been made for the purpose of keeping open the question of the correct principles to be applied by a Full Bench of the Australian Industrial Relations Commission when dealing with an appeal under section 45 of the Act, it seems to me that the proper course to take at this stage is to stand the matter over to a date to be fixed following 10 September next. It is common ground that if the application for special leave to appeal is refused that will be the end of the application for an order nisi. On the other hand, if special leave to appeal is granted, Mr Rothman SC, representing the respondent Unions, has made it plain that he will wish to argue that, nevertheless, it would be an inappropriate case for the grant of prerogative relief or the making of an order nisi. I express no views on the merits of that proposition, which may or may not have to be determined, depending on what happens on 10 September. Accordingly, I propose to stand the application for an order nisi over to a date to be fixed on the application of either party following 10 September 1999.
The other application that needs to be considered is an application for a stay of proceedings in the section 170MX arbitration. It should be observed that numerous attempts to defer or delay those proceedings have been made and have been unsuccessful. The principles governing consideration of an application for stay in comparable circumstances are set out in Re Griffin; Ex parte Professional Radio and Electronics Institute of Australia (1989) 167 CLR 37 at 42 and Re Australian Nursing Federation; Ex parte State of Victoria (1993) 112 ALR 177 at 184-185.
There is a problem as to parties in relation to the stay application. The members of the Australian Industrial Relations Commission who will be conducting the arbitration are not parties to the present proceedings. If that were the only problem it may be able to be overcome by making an appropriate amendment. But it is unnecessary to resolve that issue. There is also a question of delay which appears to me to be of some significance. On 3 May the arbitration proceedings were programmed to commence on 19 July. The application for prerogative relief and stay of proceedings was not made until 5 July and there has been no explanation of the delay. However, it seems to me that the most appropriate basis on which to deal with the application for stay is on the merits.
In that respect, it is important to note a matter upon which senior counsel for the respective parties are in agreement. In the light of that agreement I have not undertaken any independent consideration of the matter. Both parties agree that if this Court grants special leave to appeal from the decision of the Full Court of the Federal Court, and if the appeal is ultimately successful, and if the matter then goes back to a Full Bench of the Australian Industrial Relations Commission, and if the Full Bench of the Australian Industrial Relations Commission decides that the bargaining period was not effectively terminated on 7 November 1997, then the consequence of all that will be to destroy the jurisdictional basis of the proposed arbitration proceedings and any award made pursuant to that arbitration would have no effect.
It seems to me that in those circumstances it is impossible to say that a stay of proceedings is necessary to preserve the subject matter of the litigation in the High Court which the applicant hopes to commence following 10 September next. Senior counsel for the applicants sought, nevertheless, to demonstrate that there were other exceptional circumstances warranting the grant of a stay. He said that the very conduct of an arbitration and the making of an award, even if the award should be ineffective, would materially alter the industrial situation of the respective parties. That may or may not be so but, as Brennan J pointed out in the first of the two cases mentioned above, the climate of industrial relations and of economic conditions changes constantly. The kind of change relied upon in the present case is not such as to warrant the granting of this exceptional remedy.
Accordingly, I refuse the application for a stay of the arbitration proceedings and I stand the application for an order nisi over to a date to be fixed on the application of either party following 10 September 1999.
What about the matter of costs?
MR TREW: I think there is a statutory prohibition in relation to that except in exceptional circumstances, your Honour.
HIS HONOUR: Is there?
MR ROTHMAN: I think that is right, your Honour. but you could perhaps reserve the situation.
HIS HONOUR: I reserve for further consideration any question that might arise as to the matter of costs.
MR ROTHMAN: If the Court pleases.
HIS HONOUR: I certify for counsel.
MR TREW: If your Honour pleases.
HIS HONOUR: I will adjourn.
AT 11.31 AM THE MATTER WAS CONCLUDED
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