Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and Ors v Queensland Rail and Anor

[2014] HCATrans 125

[2014] HCATrans 125

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane   No B63 of 2013

B e t w e e n -

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

First Plaintiff

THE ELECTRICAL TRADES UNION OF EMPLOYEES QUEENSLAND

Second Plaintiff

AUSTRALIAN MUNICIPAL, ADMINISTRATIVE, CLERICAL AND SERVICES UNION

Third Plaintiff

QUEENSLAND SERVICES, INDUSTRIAL UNION OF EMPLOYEES

Fourth Plaintiff

AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION KNOWN AS THE AUSTRALIAN MANUFACTURING WORKERS’ UNION

Fifth Plaintiff

AUTOMOTIVE, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES INDUSTRIAL UNION OF EMPLOYEES, QUEENSLAND

Sixth Plaintiff

AUSTRALIAN FEDERATED UNION OF LOCOMOTIVE EMPLOYEES, QUEENSLAND UNION OF EMPLOYEES (FEDERAL)

Seventh Plaintiff

AUSTRALIAN FEDERATED UNION OF LOCOMOTIVE EMPLOYEES, QUEENSLAND UNION OF EMPLOYEES (STATE)

Eighth Plaintiff

AUSTRALIAN RAIL, TRAM AND BUS INDUSTRY UNION, QUEENSLAND BRANCH

Ninth Plaintiff

AUSTRALIAN RAIL, TRAM AND BUS INDUSTRY UNION OF EMPLOYEES, QUEENSLAND BRANCH

Tenth Plaintiff

and

QUEENSLAND RAIL

First Defendant

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

Second Defendant

Directions hearing

KEANE J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO SYDNEY

ON THURSDAY, 5 JUNE 2014, AT 9.01 AM

Copyright in the High Court of Australia

____________________

MR H. EL HAGE:   Your Honour, I appear for the plaintiffs.  (instructed by Hall Payne Lawyers)

MR P.J. DUNNING, QC, Solicitor‑General of the State of Queensland:   May it please the Court, I appear for the first defendant, Queensland Rail.  (instructed by Crown Solicitor (Qld))

HIS HONOUR:   Mr El Hage.

MR EL HAGE:   Your Honour should have a copy of a short minutes of order proposed by the plaintiff.

HIS HONOUR:   I do.  Have you seen these, Mr Solicitor?

MR DUNNING:   I have, your Honour, and only in respect of the date in paragraph 3 do we have any difficulty.

HIS HONOUR:   Yes, Mr El Hage.  Sorry, I cut you off.

MR EL HAGE:   Not at all, your Honour.  Your Honour would see from the notation to the short minutes of order the parties have agreed, subject to the finalisation of the special case in the Court’s view, the matter can proceed by way of special case.  We are fairly advanced in the preparation of a draft special case, your Honour, although we are not quite yet complete.  We anticipate that the special case can be completed fairly soon, based on the correspondence hopefully within a couple of weeks. 

We are simply waiting on a select number of documents to be provided to us by Queensland Rail and we are waiting on Queensland Rail to articulate to us what it says ought to be the alternative test to be adopted by the High Court in determining whether or not a corporation is a trading corporation under section 51(xx) in light of what it pleads in the alternative in paragraph 71(b) of the defence. 

That last aspect is provided for in paragraph 3 of the short minutes of order.  We were hopeful that Queensland Rail would be able to articulate its alternative test to us fairly soon so that, your Honour, we could come back before the Court towards the end of June hopefully having agreed a special case and hopefully being in a position to seek a hearing date at a time convenient to the Court.

HIS HONOUR:   Thank you, Mr El Hage.  Mr Solicitor.

MR DUNNING:   Your Honour, we are agreed with all of that.  One difficulty that presents itself is, as our learned friend has explained, we contend for – we dispute that the entity here is a corporation for the purpose of 51(xx).  Our friends have asked us to set out what we say the definition is and we have no difficulty in doing that, but I am new into the matter.  The defence was done in between Solicitors‑General ‑ ‑ ‑

HIS HONOUR:   I saw that.

MR DUNNING:   I have something on in the High Court next week and the following week.  The question that is raised is an important one and I would like to have some time to actually consider it myself, which would mean we would like a period of about a month to be able to respond to that.  I understand the concerns our friends raise about wanting to have the matter disposed of at a sittings later in the year and Queensland Rail’s position is the same.  It, needless to say, wants to know where it stands as well.  But that is the only issue that is between us.  We would like that date extended to, in effect, a month from today.

HIS HONOUR:   That is the 11 June date?

MR DUNNING:   Yes.

HIS HONOUR:   Thanks, Mr Solicitor.  Mr El Hage, having regard to the lack of unseemly haste which has attended the matter thus far, it does not seem that the Solicitor’s request for a bit more time is unreasonable.  Do you have any particular view you want to put?

MR EL HAGE:   Your Honour, nothing beyond what I put already.  As I understand it, ordinarily the Court does not sit in July.  If it were possible for the matter to come back in July at a convenient time, then, your Honour, we would be grateful.

HIS HONOUR:   The first date that I could list it in July – I mean I could list it on 30 June.  The first date that I can list it in July, having regard to other commitments, is 28 July.  That is to bring the matter back.  That would suit Mr Dunning.  Would it unduly prejudice your side?

MR EL HAGE:   Your Honour, we would rather take a July date as distinct from the 30 June date because if we were only to be told on 29 June what the alternative test would be, then I fear that there may not be sufficient time to ensure that all the relevant facts that might be relevant to the application of that test are included in the special case.

HIS HONOUR:   All right.  What I propose to do, subject to anything that anyone wants to say, is to alter the date in the draft in paragraph 3 from 11 June to 4 July and in paragraph 1 to insert “on 28 July at 9.00 am”.  Any further bids?

MR DUNNING:   No, thank you, your Honour.

MR EL HAGE:   No, thank you, your Honour.

HIS HONOUR: Very well. On the basis then that I have altered the short minutes of order provided by the plaintiffs so that paragraph 1 now reads, “The proceedings are listed for further directions on 28 July 2014 at 9.00 am” and paragraph 3 is altered to read “on or before 4 July 2014”, the first defendant is to inform the plaintiffs of what it contends is the appropriate test to be applied determining whether a corporation is a trading corporation within section 51(xx) of the Constitution, having regard to paragraph 71(b) of the defence. Otherwise the short minutes of order are unchanged, and I make directions in accordance with the short minutes of order which I initial and place with the papers.

Adjourn the Court, please.

AT 9.09 AM THE MATTER WAS ADJOURNED