Continental Ace Pty Ltd, Ex parte McIntyre

[2000] HCATrans 42

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S237 of 1999

In the matter of –

An application for Writs of Prohibition and Certiorari against a Full Bench of the Australian Industrial Relations Commission consisting of THE HONOURABLE VICE PRESIDENT ANTHONY W.D. McINTYRE, THE HONOURABLE SENIOR DEPUTY PRESIDENT L.E.C. DRAKE, AND COMMISSIONER F.J. RAFFAELL

First Respondents

HUSAM MOHAMED

Second Respondent

Ex parte –

CONTINENTAL ACE PTY LTD

Applicant/Prosecutor

KIRBY J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 16 FEBRUARY 2000, AT 9.51 AM

Copyright in the High Court of Australia

MR D. D. KNOLL:   I appear for the applicant prosecutor.  (instructed by Thompson Norrie)

HIS HONOUR:   You are actually, at this stage, I think, the applicant because the order nisi has not been granted.

MR KNOLL:   Yes.  I appreciate - - -

HIS HONOUR:   That was a mystery of nomenclature that I did not know until quite recently. 

I have a certificate from the Deputy Registrar informing me that the first respondent in this matter, the members of the Industrial Relations Commission of Australia, do not wish to be represented at the hearing of the application and submit to any order of the Court save as to costs.

You are Mr Mohamed, are you?

MR H. MOHAMED appeared in person.  I spoke to the solicitor yesterday - - -

HIS HONOUR:   What is your name?

MR MOHAMED:   Husam Mohamed.

HIS HONOUR:   You are Husam Mohamed.  Are you the named respondent to the application?

MR MOHAMED:   Yes, I am.

HIS HONOUR:   Very well.  Come forward, Mr Mohamed.  Thank you for coming today.  I was informed by the Deputy Registrar that your solicitors have withdrawn from the record and I directed that she ask them to inform you of the fact that the proceedings were before the Court today and I assume that they did that.

MR MOHAMED:   Yes, than rang me yesterday.

HIS HONOUR:   I am glad that they did that and I am glad that you have come today.

MR MOHAMED:   And they said that you had spoken to them.

HIS HONOUR:   Thank you.  Yes, Mr Knoll.

MR KNOLL:   Your Honour, may I take care of some housekeeping matters first?

HIS HONOUR:   Yes, indeed. 

MR KNOLL:   I understand that affidavits prior to an affidavit yesterday of my instructing solicitor were filed and I wish to formally hand up the affidavit of my instructing solicitor, George Warren Williams, sworn yesterday, faxed to the Court.  Mr Williams is present with me and has brought the original with him.

HIS HONOUR:   Yes.  What is the date of that affidavit?

MR KNOLL:   It is 15 February 2000.

HIS HONOUR:   I do not seem to have that in the file.  This is something new.  Have you a copy of that for Mr Mohamed?

MR KNOLL:   Yes, I believe we do, your Honour.

HIS HONOUR:   I will just take a moment to read that.  I have read the affidavit of George Warren Williams, solicitor, sworn 15 February 2000.  Do you have any objections to that affidavit, Mr Mohamed?

MR MOHAMED:   I am sorry, I have not finished reading it yet.

HIS HONOUR:   Very well.  Well, you just continue reading and tell me when you have finished. 

MR MOHAMED:   I understand what has happened there.  It is true.  I have actually moved.  I believed, as of December or January, I do not recall exactly when - - -

HIS HONOUR:   Yes, but do you have any objections to my receiving the affidavit at this stage?

MR MOHAMED:   No.

HIS HONOUR:   Very well.  Well, I have read that affidavit.  Do you wish to ask any questions of Mr Williams at this stage?  Perhaps you can save them up because there are, I think, other affidavits and it may be that you will want to ask him some questions.  If you do, you can do that later.

MR MOHAMED:   I do not come from a legal background.  I am confused in the matter - - -

HIS HONOUR:   You do have a legal back or you do not?

MR MOHAMED:   No, I do not.  I understood the matter was listed - - -

HIS HONOUR:   It is usual to stand up when you address the Court.  I am sorry to say that to you, and it does not worry me, but it is the usual convention.

MR MOHAMED:   Yes.  No, I am sorry.  I understood that the matter was discontinued either late or early this year and - - -

HIS HONOUR:   Yes.  Well, I will give you a chance to say something to the Court after we have heard Mr Knoll present what he wants the Court to do and then I will hear you fully.

MR MOHAMED:   Okay.

HIS HONOUR:   Yes.

MR KNOLL:   Your Honour, may I assist the Court by handing up a very short outline of written submission and just take the Court briefly to it.

HIS HONOUR:   Thank you.  Yes.  Can I ask you two little things just before you start.  The first relates to whether, in the event that I was convinced that there is an issue reasonably arising on the documents before the Court, rather than provide you with an order nisi, I would not remit this matter to the Federal Court to be determined by that court in order to save the burden on this Court, at least in the first instance, and to provide this Court with the opinion of the Federal Court on the legal issues of jurisdiction that you wish to raise in relation to the Australian Industrial Relations Commission?

MR KNOLL:   Your Honour, we think that is an appropriate course and respectfully submit that we are asking here only for the remitter. 

HIS HONOUR:   You are asking for that?

MR KNOLL:   Yes, your Honour.

HIS HONOUR:   I did not see that in the papers.  It may be there somewhere.  The second question is this:  from the documents before me it does appear that Mr Mohamed, and he may say this himself, has lost interest in this litigation and, in a sense, the costs of defending the matter now far exceed the issue which was originally at stake.  Now, it may be important to you, for reasons which I cannot immediately see, to have the file taken out of the archives of the Industrial Relations Commission in order that an order in the nature of prohibition and certiorari be issued and the order of that Commission be quashed.  But in the case of a person who is unrepresented and who is, on the face of things, by the description, a person of modest means, is there not some principle that would restrain the return of the matter before this Court or its remitter to the Federal Court to agitate an issue which seems, on the face of things, to be theoretical or to impose upon you or your client, if it is a matter of importance to you, to ensure that Mr Mohamed is put in funds to defend himself in order that either this Court, if it remains here, or the Federal Court, if it is remitted to them, is provided with a contradictor because otherwise Mr Mohamed is dragged along to a court proceedings which he would only partly understand and would have to represent himself in complex argument and the courts would not have very much assistance in the nature of things to discharge their judicial duty.  So, if you would address that matter, I would be grateful because that was the matter that was going through my mind as I read the papers.

MR KNOLL:   Your Honour, we are, indeed, very conscious of it and might I go straight to that.  This morning I received by facsimile and propose to hand up – I am afraid I only have the one copy – from the AIRC the notice of discontinuance and, we, quite frankly, regret that we have had to come here today.  As will be seen from Mr Williams’ affidavit of yesterday, we discovered this discontinuance but a day and a half ago and only obtained the notice this morning.  We were not served with it.

HIS HONOUR:   Yes.  Would you show that to Mr Mohamed and I will ask him if he has any objection to my receiving that document.  Do you know that document, Mr Mohamed?  It is the notice of discontinuance in the Industrial Relations Commission.

MR MOHAMED:   Yes.

HIS HONOUR:   That has been tendered to me.  Do you have any objection to my receiving that document?

MR MOHAMED:   No.  It was mentioned. 

HIS HONOUR:   That will be exhibit A.

EXHIBIT:  Exhibit A ….. Notice of discontinuance

MR MOHAMED:   May I mention, it was known to the investigator who presented me with the documents two weeks ago.  To the best of my knowledge, it was completed.

HIS HONOUR:   Yes, very well.   Thank you.

MR KNOLL:   In all honesty, we regret the necessary but nonetheless inconvenience to Mr Mohamed.  We are in some difficulty in this position, because had we known when the discontinuance was filed which, as your Honour will see is a date prior to our putting on our application before this Court, that it had been done and, in fact, had it been served in accordance with the rules, a copy of which I have and can hand up, the entire application may well have been saved.  The parties may well have been able to resolve their dispute privately.  The difficulty with the prejudice, unfortunately, to us is only that.  We have only just discovered that that occurred and, consequently, have undertaken the task of preparing the matter to seek a remitter.

So, in one respect, we are very regretful and do not wish to waste the High Court’s time on a matter that ultimately could become a very small matter.  At the same time, in addressing your Honour’s second part of the question, there is - - -

HIS HONOUR:   That is made acute by this notice, exhibit A, that you have just given me because now there is no current lively matter and the issue is a controversy that is theoretical and therefore is not – at least, may not, arguably, be within the judicial power of the Commonwealth.

MR KNOLL:   Yes.  This is where I am coming, your Honour.  We are duty bound, of course, to appear having only just received that document this morning, but there is only a very small theoretical point therefore left.  If I might hand up the rules and take your Honour straight to it so that we do not waste too much of the Court’s time.

HIS HONOUR:   Yes, thank you. 

MR KNOLL:   I will have a copy for Mr Mohamed.  Your Honour, I draw the Court’s attention to rule 43 which deals with discontinuance before the Australian Industrial Relations Commission.

HIS HONOUR:   Yes, I have that.

MR KNOLL:   Subrule (5) indicates that a “matter deemed to be discontinued under subrule (4)”, which we had hitherto thought was the case:

may be restored for conciliation, arbitration or related proceedings, as the case may be, only be application to a Presidential Member.

The short solution therefore is that if, indeed, we want to be certain that there is, in fact, no live matter, then a direction be made or an order be made simply that the matter not be restored to the AIRC’s list pursuant to that possible rule.

HIS HONOUR:   But why would I make such an order, there being no indication – indeed, the indications of exhibit A being to the contrary – that the matter would ever be restored to that list?  In the event that it were, you would have all the rights that you presently have to come along here and to agitate as to the unfairness and perhaps unavailability of that course, in the circumstances.

MR KNOLL:   Yes.  That is really the conclusion I wish to come to and that is that if appropriate directions can be made to simply preserve that right should the matter again become live, I think we would have to be content and not waste the Court’s time any further.

HIS HONOUR:   But why would I reserve that?  You could move the Court, and it does not need any order from me, in the unlikely event in the face of exhibit A that application were made to a Presidential Member of the Australian Industrial Relations Commission to restore the matter for conciliation or arbitration before that Commission and an order by that member granting that request.  I mean, it is several steps removed.

MR KNOLL:   It is several steps removed, your Honour, and if that were the course of action proposed by this Court, I think my client would have to be content, despite its aggrievance with the Full Bench decision.

HIS HONOUR:   Yes.  Well, the transcript would record that you indicated that you have a lingering concern about that and it would record what I have just said to you, that you will have a full facility to approach the Court again and the Court would then list the matter and give notice to Mr Mohamed and you would be back in the position that you are today, but I would not be inclined to make any order in the matter.  I would simply be inclined to refuse the application that you make on the material that I have at the moment which includes exhibit A.

MR KNOLL:   Your Honour, may I express a concern and it is one of inexperience.  This is, of course, my first appearance before this Court.  It is not clear to me whether the appropriate action is one of refusing the application, thus forcing my client to put on a new application or one that simply stands it out in the unlikely event that this quite unlikely event occur so that the remaining right of my client is preserved, and I simply seek the Court’s guidance on that point, as we have incurred costs and prejudice?

HIS HONOUR:   Well, in the Court of Appeal we never did that; never never.  Cases were disposed of.  I understand that in this Court cases are sometimes stood over generally but I will hear what Mr Mohamed has to say about that.  It would seem desirable that the file simply be closed because it does seem as if there is no real prospect that it will become again a live matter.  However - - -

MR KNOLL:   Yes.  Your Honour, if the issue is moot, we are perfectly happy to accept an undertaking by Mr Mohamed not to exercise his power to make that application.

HIS HONOUR:   Yes, thank you.

MR KNOLL:   And I will not take the Court formally to the remaining submissions.

HIS HONOUR:   No.  Thank you.  Mr Mohamed, you heard what I have just said with counsel and it seems, in the light of the notice of discontinuance, which is exhibit A and which is now to light, that the issue which the applicant wishes to agitate is now entirely moot but some concern has been expressed that you could, notwithstanding your notice of discontinuance in the Australian Industrial Relations Commission, apply to that Commission to restore the matter in that Commission for conciliation and arbitration by application to a Presidential Member of that Commission.  Is it your intention now or, so far as you can see, at any time in the future to make such an application to a Presidential Member of the Commission to restore the matter to the list?

MR MOHAMED:   No, I would have to say it is not my intention.  The reason I lost contact with Mr Moore was I thought the matter was over.  I moved on with my life – new employment.  Honestly, as far as I knew, this would never ever be raised again and when I had an investigator following me all over the place trying to get hold of me and saying, “What’s going on?”  Honestly, I have not been able to sleep.  You probably see my eyes.  I am tired.  I have been stressed out.

HIS HONOUR:   I think it is all going to come to a full stop today so that you will not have this and I think it is fair to say to the applicant that the investigator was not following you for any purpose other than to see where you were in order to serve the documents.

MR MOHAMED:   Yes.  I wish he would have done it a little bit more discretely.  Unfortunately, all my staff now know of this incident.

HIS HONOUR:   Yes.  Well, it is no dishonour to you.  You just got involved in some litigation that raises some points and the applicant has

now indicated to me that so long as you are clear that you do not intend to revive the proceedings, they will submit to an order dismissing them.

MR MOHAMED:   Your Honour, as you see, I am representing myself to avoid extra costs and further complications - - -

HIS HONOUR:   Yes.  You are doing quite well, I think.  You may resume your seat just for a moment.  Are you content with that statement?

MR KNOLL:   We are indebted to Mr Mohamed and content with that course.

HIS HONOUR:   Yes.  Well now, if I dismiss the application, normally I would order that you pay Mr Mohamed’s costs which include his costs of coming down today.  Why should I not make that order?

MR KNOLL:   Your Honour, the reason you should not make that order is set out in Mr Williams’ affidavit.

HIS HONOUR:   What particular paragraph?

MR KNOLL:   And I might take the Court to that paragraph.

HIS HONOUR:   If the costs were limited to Mr Mohamed’s costs of coming down today, is there - - -

MR KNOLL:   Yes, I appreciate your Honour’s point.  The issue is simply this:  we were not served with any notice of discontinuance.  It was filed with the AIRC before we put on our application.  It would have completely avoided all the costs we have incurred in putting on the application.  We therefore contend that the correct order for this Court to make is that there be no order as to costs because we have also been prejudiced.

HIS HONOUR:   Yes, I understand that.  Well, I will ask Mr Mohamed to inform me what he says in relation to that.  Mr Mohamed, the applicant says that they were not served with the notice of discontinuance and if they had been they would not have commenced these proceedings, that they have run up quite a lot of costs.  Why should I not simply dismiss the application and make no order as to costs?  They do not pay yours; you do not pay theirs and the whole matter is terminated.

MR MOHAMED:   Firstly, I am sorry, I do not fully understand what is going on.

HIS HONOUR:   Well, can I explain to you?  Normally, when a party loses in this Court, they pay the other party’s costs.  They have sought to enlist the jurisdiction of the Court to get orders against you.  I am now minded, in the light of the discontinuance in the Industrial Relations Commission, to dismiss their application.  Normally, that would carry the costs, but they say they were not served with your notice of discontinuance and had you only done that they would not have brought these proceedings and run up their own costs.  Therefore, it seems they have got a bit of an argument but you also have an argument.  So, they cancel each other out.

MR MOHAMED:   I do not know who that gentleman was who presented the documents to me.  I do not know whose side he acted on behalf of but we did carry on a fairly lengthy discussion outside while I perused these documents and I advised him at the time to the best of my knowledge that this was completed, that it was not going any further.  I do not know who submits which documents, when they went to submit them or anything else.  All I knew is I had done everything that I should have done and wished to go no further with the matter and I advised that person as well.  That was approximately two weeks ago, hoping that it will not go further.  Obviously, my solicitor also knows the same and had advised me that – I do not mean to offend anybody - but this was really a waste of time even being here and both himself and my barrister who I spoke to on the phone and briefly spoke to in front of her building on the way here said that, really, that even my presence coming here was unneeded, uncalled for, because it was all over.

HIS HONOUR:   Yes, but if you had not come here you would not have said the things which make it clear that the matter should now be terminated.

MR MOHAMED:   Yes, that is why I wished to appear to - - -

HIS HONOUR:   But is it not just, in the light of all the circumstances, that I should simply terminate the proceedings, both of you walk away from this Court with the whole proceedings over and neither of you gets costs from the other?

MR MOHAMED:   If that is what you - - -

HIS HONOUR:   I am inclined to think that that is the appropriate order.  That is the order that I will make unless you have a good reason why I should not.

MR MOHAMED:   I just want to finish it.  That is enough for me.

HIS HONOUR:   Very well.  Thank you.  Is there anything else you wish to say, Mr Knoll?

MR KNOLL:   No, your Honour, we must be content with that course, in the light of more recent events.

HIS HONOUR:   Application is made to the Court by motion for the issue of an order nisi for writs of prohibition and certiorari to bring into the Court orders of the Australian Industrial Relations Commission with which the applicant, Continental Ace Pty Ltd, is discontented.  The applicant asks that such proceedings be remitted to the Federal Court of Australia for hearing and determination. 

Very properly, counsel for the applicant brought to my notice a notice of discontinuance filed by Mr Husam Mohamed, the second respondent, in the proceedings in the Industrial Relations Commission.  It is the validity of these proceedings that the applicant wished to challenge.  The notice of discontinuance was dated 6 December 1999.  However, for reasons that are unexplained, it is said (without objection or contradiction) that the notice of discontinuance was not served upon the applicant.  Had it been served, it is submitted that the applicant would not have brought its proceedings in this Court.

When yesterday I was informed that the second respondent was unrepresented and that his former solicitors had lost contact with him, I directed the Deputy Registrar to contact those solicitors to request them to inform him of the proceedings before the Court today so that he would have the opportunity to be heard if he wished to avail himself of this.  The former solicitors did this.  Mr Mohamed has appeared before the Court. 

Under Part 43 Rule 47 of the Rules of the Industrial Relations Commission, provision is made that a matter deemed to be discontinued may be restored for conciliation and arbitration by application to a Presidential Member of the Commission.  The applicant expressed concern that, notwithstanding the notice of discontinuance, Mr Mohamed might at some future time seek to revive the proceedings.  However, Mr Mohamed indicated to the Court that no such application was in his present intention.  Nor did he foresee that any such application would be made.  This indication was accepted by the applicant.  I therefore have before me an application for orders nisi in relation to proceedings which are no longer current in the Australian Industrial Relations Commission.  Indeed, an affidavit read before the Court today indicates that that Commission has consigned its file to the archives.  In such circumstances, it would not be inappropriate, (indeed it may not be permissible), for any order to be made of the nature of that which is sought by the applicant.  The orders that are challenged appear now to be moot.  Accordingly, the application is dismissed. 

A question arises as to whether the application should be dismissed with an order that the applicant pay the costs of Mr Mohamed which would, in the circumstances, be limited to his costs of attendance before this Court today.  However, it was not contested that the notice of discontinuance was not served on the applicant.  Accordingly, the merits of the matter lie evenly between the parties.  I will therefore make no order as to costs.

The order of the Court is thus:  application dismissed.

Thank you for coming to the Court today, Mr Mohamed, at short notice.  Thank you for your assistance, Mr Knoll.

AT 10.18 AM THE MATTER WAS CONCLUDED