Cook, Ex parte- Re Moore

[1995] HCATrans 282

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney   No S122 of 1995

In the matter of -

An application for a Writ of Certiorari and a Writ of Mandamus against THE HONOURABLE JUSTICE MOORE

First Respondent

ALAN JARMAN

Second Respondent

COMMUNICATION WORKERS UNION OF AUSTRALIA

Third Respondent

AUSTRALIAN ELECTORAL COMMISSION

Fourth Respondent

Ex parte -

QUENTIN REDVERS COOK

Prosecutor

GUMMOW J

(In Chambers)
TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 27 SEPTEMBER 1995, AT 9.30 AM

Copyright in the High Court of Australia

__________________

MR P.E. KING:   If your Honour pleases, I appear for the prosecutor/applicant.  (instructed by Paul Etherington & Associates)

MR W.R. HAYLEN, QC:   If your Honour pleases, I appear for the third respondent.  (instructed by Geoffrey Edwards & Co)

MR B.D. HODGKINSON:   If your Honour pleases, I appear on behalf of the second respondent.  (instructed by McClellands)

MR G.T. JOHNSON:   May it please your Honour, I appear for the Australian Electoral Commission.  (instructed by the Australian Government Solicitor)

HIS HONOUR:   It was your client, Mr Johnson, was it, that filed the affidavit yesterday?

MR JOHNSON:   Yes, it was, your Honour.  It was actually faxed to the Registry.  We were unable actually to get it filed.  I was proposing in due course to ask your Honour for leave to file it in Court.

HIS HONOUR:   Yes, that can be done.  Have you got - - -

MR JOHNSON:   Yes, I do, indeed, your Honour.  Copies have been sent by facsimile to the other parties.  I have some spare hard copies if anybody needs them.

HIS HONOUR:   Have you seen this, Mr King?

MR KING:   I have not seen this affidavit, your Honour, but I will just check it.  It has previously been filed, has it?

MR JOHNSON:   It has only been filed in Court now.  It was faxed to the Registry yesterday and also faxed to Mr King’s instructing solicitors.

HIS HONOUR:   It suggests there has been another election.  It might make one wonder why we are here.  That is so, is it, Mr Johnson?

MR JOHNSON:   That is right, your Honour, yes.  The notice of motion that was before his Honour Justice Moore, which is relevantly extracted by his Honour at the top of page 3 - the relevant portion actually starts at the foot of page 2:  His Honour says:

A notice of motion was filed -

that is by Mr Cook -

on 8 May 1995, seeking orders though only two are presently relevant.

They are:

“1.  That the current office holders of the State Committee of Management in the Communications, Electricians & Plumbers Union (“CEPU”) remain in office until a final determination has been made in this matter, or until further order of the court.

2.   In the alternative to the above, that the ballot relating to the State Committee of Management in the CEPU be suspended until a final determination has been made in this matter, or until further order of the court.”

Now, that election has now been held and what the affidavit of Mr Ktenas goes to is simply the fact that the election has occurred, and the final annexure of that affidavit, annexure D, is the declaration of the poll.  If your Honour goes to page 2 of annexure D, all the candidates are set out in the left column and the votes that they received on the right, and then Mr Masters, the returning officer, declares nine people elected.

HIS HONOUR:   That was on 4 August.

MR JOHNSON:   That is right, and his Honour’s decision was back on 1 June, so things do seem to have altered in that respect since the notice of motion was before  his Honour.

HIS HONOUR:   Yes.

MR KING:   There is no doubt that is the case, your Honour, but that does not make this application academic.

HIS HONOUR:   Why not?

MR KING:   Two reasons:  firstly, the powers of the Court under section 221 relate not only to a prospective power which would have been relevant at the time we brought the application but also relates to offices held once an election has occurred.  That is the first point.  Whilst the notice of motion itself related to the offices - - -

HIS HONOUR:   The question is, what is it you seek prohibition to stop?

MR KING:   We do not seek prohibition.  We seek to quash the order of the judge that there was no jurisdiction and then we seek an order of mandamus that he proceed to hear the question.  The second reason, your Honour - - -

HIS HONOUR:   But the question is now moot.

MR KING:   No, because assuming that there was jurisdiction, there would still be powers not under the particular provision, (c) I think it is, but possibly under (d), to make a substitute or put in a substitute officer pending the outcome of the final inquiry.

HIS HONOUR:   Someone had better make an application to the Court to do that.

MR KING:   Yes.  The second point, your Honour, is that - - -

HIS HONOUR:   But they have not done it.  That is all I am saying.

MR KING:   Yes.  The second point is that since this application was brought in May and his Honour’s decision in June, there has been one further application under section 221 before his Honour which has not proceeded.  It has been stood over generally.  A third one has been mooted, relating to a separate question, but the issue of jurisdiction may be relevant to each of those because part of our case on this application is that his Honour took such a narrow view of the court’s jurisdiction in relation to interim relief and the power to make interim orders that it effectively frustrates and has frustrated the other possible applications.  So, it is not moot, in my respectful submission, for those two reasons.     More importantly, perhaps, it does go to the issue of the Court’s jurisdiction.

HIS HONOUR:   But can I ask you this, Mr King.  Section 416 of the Act would appear on the face of it to allow the situation where you went back to the judge and asked him to refer a question to the Full Court, a question of law, which this seems to be, on the construction of section 221.  One of the questions that arises on a prerogative writ application is whether there is some alternative procedure available and that does seem to be one.  The question then is whether it has been followed or whether an application should now be made.

MR KING:   Your Honour, one can only submit that the question - - -

HIS HONOUR:   I am not asking you to make up your mind about it now.  I am just drawing it to the parties’ attention, that is all.  When this matter is next before me I will want to know whether, as to this third application you are contemplating, you would be going that route, and I would also want to know whether, in relation to the past application, that was only an interlocutory application, that now could not be relisted to achieve that result.

MR KING:   Yes.  Is your Honour contemplating a remittal to the Full Court of the Industrial Relations Court?

HIS HONOUR:   That is another question.  I will have to ask counsels’ assistance on that as to whether the remitter power contemplates an application for prerogative relief against one member of the Industrial Relations Court being sought here and then remitted to a Full Bench of that court to produce the result that they prohibit their colleague.

MR KING:   That was one of the considerations I was going to bring to your Honour’s attention.  The other two - - -

HIS HONOUR:   That very fact is something that highlights the importance of any other available procedure which encourages one to look at 416.

MR KING:   Yes, I take your Honour’s point.  Would your Honour prefer us to consider that possibility?

HIS HONOUR:   Yes, I would.  I will hear what the other counsel say and then I will relist it again.

MR KING:   If the Court pleases.

MR HAYLEN:   If your Honour pleases, I think, simply put, it can be said for the third respondent that quite apart from compliance with Order 55 rule 30, in relation to mandamus which would seem to be well out of time and no special grounds specified ‑ ‑ ‑

HIS HONOUR:   Yes.  What does Order 55 say?

MR HAYLEN:   In relation to mandamus, it is two months, your Honour, from the date of the decision:, Order 55 rule 30.

HIS HONOUR:   Is there some dispensing power?

MR HAYLEN:   In the body of rule 30 the application for a writ of mandamus is to:

be made within two months of the date of the refusal to hear or within such further time as is, under special circumstances, allowed by the Court or a Justice.

HIS HONOUR:   That is within two months of the date of the refusal.

MR HAYLEN:   That was 1 June.  We are something like 7 weeks or so before it is attempted to be commenced in this Court.

HIS HONOUR:   Seven weeks would be within time, would it not?

MR HAYLEN:   No, 7 weeks out of time.

HIS HONOUR:   Out of time, yes.

MR HAYLEN:   Yes, and the application, on its face, does not attempt to meet the special circumstance requirements of rule 30 at all and seems to be in blissful ignorance of that requirement.  Otherwise, your Honour, it seems to us that the unreasonable delay and the futility just stand against the matter being dealt with.  In terms, the two orders that were sought before Justice Moore of the Industrial Relations Court seek to suspend an election which is now concluded and, secondly, seek to preserve in office the then current office bearers.  They were the office bearers of 8 May 1995; now no longer the office bearers because the ballot has been declared, so a combination of delay, futility, non-compliance with the Rules of the Court seem to stand against relief being granted here at all.

HIS HONOUR:   Yes.  What would you say on the question of remitter, if you want to say anything on it?

MR HAYLEN:   Yes, it is not an easy question, your Honour.  It seems, on one view of it, that it may be said that it is contemplated that there would be remittal available against a member of the court because they were appointed, I think - I have to check on this - under the terms of the reform Act.  I have noted the comments of the Full Court in a recent case that call attention to the undesirability of it.

My client, of course, is the organisation.  It has an interest in making sure that the affairs of the organisation are not unduly interfered with while inquiries of this nature are conducted.  There has been a timetable now fixed by Justice Moore for the holding of the inquiry.  That timetable has yet to expire for the filing of evidence but it includes the fixing of hearing dates beginning on 9 November and I think - - -

HIS HONOUR:   Is there any liberty to apply reserved in that timetable, do you know?

MR HAYLEN:   Yes, there is.

HIS HONOUR:   On what sort of notice, do you know?

MR HAYLEN:   I think it was 48 hours.  It is of that order, your Honour.  It is not long.  It seems to us that there are a variety of other avenues available to the applicant here if the substance of the relief sought is to be pursued.  That election, now concluded, is still available to be subject to an inquiry by the court, a separate inquiry.  The time limit runs until February next year under the regulations governing the institution of inquiries.

HIS HONOUR:   What would be the consequence of an inquiry as to an election where the election is now spent, as it were, because there has been a fresh one, without a further inquiry as to the fresh one?

MR HAYLEN:   Your Honour, I think it was put this way.  The point was made below that they were two different elections.  The inquiry before Justice Moore under the Act was a particular, as required under the Act and the rules, nominated election.  It did not involve the position that Mr Cook sought to bring before the court by this notice of motion that was rejected by his Honour. 

Secondly, the ground for bringing that notice of motion was the irregularities demonstrated in the matter before Justice Moore were likely to arise in the new election that has just been completed.  Well, that election is over now.  It must be known or able to be known whether or not the

irregularities actually did happen or not.  If they did, there is an election inquiry available.  Otherwise, there are the processes that your Honour has referred to.  If there is a live issue but in another context about jurisdiction to make interim orders - - -

HIS HONOUR:   It looks like an important question for the Industrial Relations Court but it is one - - -

MR HAYLEN:   Yes.  I am not sure that it is actually, your Honour.  We rather regard it as a simple construction point.

HIS HONOUR:   Yes, it is a construction point.

MR HAYLEN:   And one that was not too difficult to dispose of.

HIS HONOUR:   So it is eminently qualified, one would have thought, for a reference to a Full Court.

MR HAYLEN:   Exactly, your Honour, yes.  But, in a summary way, that is our approach to the matter, your Honour, and we think it would be desirable, really, to dispose of the matter here on the grounds that we have in summary put.

HIS HONOUR:   What, you would say an order nisi should be refused?

MR HAYLEN:   Exactly, your Honour, yes.

HIS HONOUR:   Rather than granted and returned before a Full Court of this Court?

MR HAYLEN:   Yes.

HIS HONOUR:   Or would you say that the question of the order nisi should be remitted?

MR HAYLEN:   Our primary position would be, on the basis of the argument we can have before the Court, the Court would had no difficulty simply in refusing this application.  In the alternative, it should be remitted.

HIS HONOUR:   Yes, all right.  What does the second respondent say?

MR HODGKINSON:   Your Honour, largely we support without repeating that which has been put by my learned friend, Mr Haylen.  We make just a couple of very brief points.  Firstly, your Honour, the positions in the first election, the subject of the inquiry, are different positions to those that are the subject of the election declared on 4 August.  So that it is not a case of the first election being overtaken in terms of the positions within the organisation by the second election.  It is a scheme whereby full-time officers stand every four years; part-time persons stand every two years and the second of the elections was in respect of the part-time positions, and I characterise them that way.

HIS HONOUR:   And what is the connection with all of that, of the positions the subject of the interim relief application?

MR HODGKINSON:   They were the then proposed, now declared, election for the part-time positions.

HIS HONOUR:   Yes, so that has been overtaken.

MR HODGKINSON:   That has been overtaken.  But the consequence, your Honour, of the approach adopted by the applicant/prosecutor here is to extend the existing inquiry into the area of the new election which itself will require further consideration as to evidence and the like which will prejudice, in my respectful submission, the already set hearing dates.  Now, that may have to happen if there is a point of substance but at the present time that point of substance has now been overtaken, as it was originally presented, by the declaration of the ballot in relation to what I have described as the part-time positions and if that has caused trouble, as my learned friend, Mr Haylen, said, the allegations supporting that are now either known to have come to fruition, that is, there are said to be irregularities in that election or there are not, and an inquiry can be commenced and possibly applications for joinder or the like.

Alternatively, as your Honour has rightly pointed out, there is a mechanism within the Industrial Relations Court for the dealing with this point if it is to be a point pursued so as to impact on the already existing inquiry.

Now, the inquiry has had some complexity which has resulted in it taking a reasonable amount of time to get to the hearing date stage and, indeed, Mr Justice Moore refers to some of that complexity in his judgment.  We would like to see the inquiry concluded so that the orderly business of the union and its office holders can continue without the uncertainty that is created by the fact that the inquiry has not concluded.  So that in those circumstances, your Honour, we strongly suggest that this order nisi ought be dismissed.

HIS HONOUR:   The hearing before Mr Justice Moore is set down for what date?

MR HODGKINSON:   For 9 November and for the following week ‑ ‑ ‑

HIS HONOUR:   That is Thursday, the 9th?

MR HODGKINSON:   Yes, your Honour, and through to the end of the following week, and indeed his Honour has indicated that if the Monday and Tuesday of the following week are required, he will hold them in reserve, as it were, so that the inquiry can be completed in that time.  Thank you, your Honour.

HIS HONOUR:   Thank you, Mr Hodgkinson.  Mr Johnson.

MR JOHNSON:   Your Honour, the Australian Electoral Commission did not advance any submissions to Justice Moore as to whether or not - on a point of construction - and your Honour will appreciate that the Commission’s position is very much a neutral one.  But it did feel obliged to draw to the Court’s attention, as it has done, the matters deposed to in Mr Ktenas’ affidavit, and we would suggest to your Honour that there is an issue, as Mr Haylen has suggested, as to whether or not the extent of the delay and the absence of reason for the delay, or the absence of any explanation for the delay in the affidavit material, and the question of futility might stand in the way of remittal, particularly since the notice of motion has not only been overtaken but new people are now installed in the positions that were the subject of that ballot.

Also, your Honour, could I just say by way of clarification it is not suggested that this new election makes the actual election inquiry under section 218 of the Industrial Relations Act before Justice Moore academic.  As emerged from the discussion your Honour had with Mr Haylen ‑ ‑ ‑

HIS HONOUR:   No, it makes the side issue, as it were, which is the subject of the interlocutory application, academic.

MR JOHNSON: Exactly. Your Honour, all that I wish to draw your Honour’s attention to is section 412(2) of the Industrial Relations Act which provides that:

For the purposes of section 44 of the Judiciary Act 1903, the Court is taken to have jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth holding office under this Act -

And there are provisions, of course, in this Act creating the Industrial Relations Court.  Those provisions occur around section 361.  Section 361 is the creation of the court and 362 relates to the appointment, removal and resignation of judges.

HIS HONOUR: Yes. But section 412(2), on its face, you would have to read it as saying, “The Court is to have jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against the Court”, which looks odd.

MR JOHNSON: Except, your Honour, it is only for the purposes of section 44. It is probably just to place beyond doubt the question of whether or not the Industrial Relations Court is a court that is a federal court within the reach of section 44. Read that way, it makes sense.

HIS HONOUR: Yes. Section 44 picks it up if the recipient court has certain characteristics which are specified in 44. But then one has to look at 415(2)(d) which may be a clue as to what the relevant officers of the Commonwealth are, may be officers of the Commission.

MR JOHNSON:   Yes.

HIS HONOUR:   Anyhow, that will be a question to be decided.  All I propose to do, Mr King, is give you an opportunity to put on any material you want to explain the delay and stand this application over until I get back to Sydney in a fortnight.

MR KING:   Yes.  Thank you, your Honour.  I will not deal with the other matters.

HIS HONOUR:   No, best to give it some thought, I think.  Gentlemen, the week of Monday, 16 October, can you agree between yourselves a mutually convenient date.  But, of course, if it goes ahead ‑ ‑ ‑

MR KING:   Is the 17th a convenient date for the Court, your Honour?

HIS HONOUR:   If the application is pressed, it will have to be dealt with on that morning, so it will take more than half an hour obviously.

MR KING:   Does your Honour propose to consider whether an order nisi should be made that day?

HIS HONOUR:   That is right.  It has to be dealt with one way or the other on the 17th, I think.  You should bear in mind also, Mr King, there will not only be the question of any order nisi but there would be the question of remitter.

MR KING:   Yes.

HIS HONOUR:   And if the view were reached that it would not be appropriate to remit it to - it would have to be a Full Court of the Industrial Relations Court, but that it had to stay in this Court so that the order nisi had to be returned before a Full Court of this Court, you would not get a hearing before a Full Court this year. 

MR KING:   Yes.  That in fact may not be any different to the Industrial Relations Court, your Honour.

HIS HONOUR:   I do not know about that.  All I can say is we have got many other pressures on our time.  They have one pressure.  We have pressures from all corners of the country.

MR KING:   If the Court pleases.

HIS HONOUR:   How soon can you put on the affidavits you want to put on to remedy the point as to delay?

MR KING:   Tuesday, 3 October, if that is convenient, taking into account that Monday is a public holiday.

HIS HONOUR:   I will say Wednesday, the 4th, just to be sure. 

I direct that any further affidavits to meet the complaint of delay under Order 55 rule 30 be filed and served on or before 4 October.

I stand the application for the order nisi, together with any question as to remitter, over before me on Tuesday, 17 October at 9.30 am.

Is there anything else?

MR HAYLEN:   Nothing further, your Honour.

AT 10.00 AM THE MATTER WAS ADJOURNED
UNTIL TUESDAY, 17 OCTOBER 1995.