Cook, Ex parte- Re Moore and Ors

[1995] HCATrans 303

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 TUESDAY, 17 OCTOBER 1995, AT 9.33 AM

(Continued from 27/9/95)

Copyright in the High Court of Australia

__________________

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

MR W.R. HAYLEN, QC:   If your Honour pleases, I appear for the third respondent, the Communication Workers Union and, today, because their counsel is not available, I appear for Mr Jarman, the second respondent.  (instructed by Geoffrey Edwards & Co and 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:   Now, Mr King, I have received written submissions.  Have your opponents seen those?

MR KING:   Yes, your Honour.

HIS HONOUR:   There are several batches.  Have they got all of them?

MR KING:   I would imagine so, your Honour, yes.

HIS HONOUR:   All right.  Now, it is your position, I take it from your written submissions, that the remitter power to the Industrial Relations Court in this particular matter would not apply.  Is that right?

MR KING:   It is or, alternatively, ought not to be exercised.

HIS HONOUR:   Yes.  I am much concerned about this remitter question.  Looking at the transcript from the last occasion, Mr Haylen, I think the attitude of you and Mr Hodgkinson was that you were neutral on the point,  was that right, or you would favour a remitter?

MR HAYLEN:   I think we favoured remitter but on the simple basis that the legislation appeared to encourage remitter.  It was a question of the nature of the issue.  This being a statutory construction point, it was a suitable matter for remitter, notwithstanding the nature of the relief but no more than that, your Honour.

HIS HONOUR:   Your position on the merits, if I can put it that way, was firstly, that the intervening election for the part-time positions made things moot and Mr King disputes that; secondly, that there was procedural irregularity in the time of the making of the present application to this Court and, thirdly, there was the question of alternative remedy, namely, to put a question of law to the Full Court.

MR HAYLEN:   Or commence a new election inquiry specific to the ‑ ‑ ‑

HIS HONOUR:   Yes, and fourthly, to commence a new election inquiry in relation to the part-time position election which was held last August, I think, the details of which were given in Mr Johnson’s affidavit.

MR JOHNSON:   That is right.

MR HAYLEN:   That is so, yes.  Your Honour, just while we are on that, I wonder if I might file in Court the affidavit of Phillip John Pasfield.  What has occurred in the meantime and is dealt with partly in the affidavit, I think of Mr Cook, is that there has been an inquiry by Mr Battese into an election for assistant secretary of the New South Wales branch of the organisation and Chief Justice Wilcox has granted a stay on that election and has ordered that the hearing of that inquiry be dealt with by Justice Moore at the beginning of the inquiry that Mr Cook is using as the vehicle for these current proceedings.  That is listed, I think, 9 November, for some 7 or 8 days.

HIS HONOUR:   Have you seen this affidavit of Mr Pasfield, Mr King?

MR KING:   I have just seen it, your Honour.  If it reflects what my friend has informed your Honour, that is the position.  Your Honour, I should add that we have - - -

HIS HONOUR:   Just a minute.  The affidavit of Phillip John Pasfield, sworn 17 October may be filed in Court.

MR HAYLEN:   Thank you, your Honour. 

MR KING:   Your Honour, we have one further affidavit to file, if the Court pleases; an affidavit of David James Hampson, sworn today’s date, a copy of it previously being served.

HIS HONOUR:   Have you seen this, gentlemen?

MR HAYLEN:   We have, your Honour.

HIS HONOUR:   Is there any objection to that being filed in Court.

MR JOHNSON:   No, your Honour.

HIS HONOUR:   The affidavit of David James Hampson, sworn 17 October 1995, may be filed in Court.  Now, as I indicated, I am much concerned both about the appropriateness of granting an order nisi as distinct from dealing with an application for an order absolute in the first instance, as it were, and, secondly, there is the question of remitter.  The effect of Order 55, rule 2 is that I can direct an application in the first instance to the Full Court which would have the effect of an application for an order absolute in the first instance to the Full Court rather than embarking upon and making an adverse or favourable decision on the question of order nisi at the first step.  What I would be minded to do would be to refer the application and Order 55, rule 2 to the Full Court.  Two questions will then arise in the Full Court.  The first one will be a remitter, and it is in everyone’s interest that there be a Full Court decision on that question of remitter where the Industrial Relations Court is the court to which the remitter would be made and a member of that court is the person sought to be restrained by the prerogative writ.

The second question which would then arise, if it were decided not to remit, would be the merits of the application itself for the mandamus and, if need be, the certiorari.  But I need to be assisted in two respects.  Firstly, is the material now complete that would be before the Court on an application?

MR KING:   Yes, your Honour.

MR JOHNSON:   No further material from the AEC, your Honour.

MR HAYLEN:   Yes, I think that would be our position as well, your Honour. 

HIS HONOUR:   Well, I need to know, really.

MR HAYLEN:   Yes, I am just trying to think, your Honour.  Yes, I think - apart from a matter that Mr King may be able to deal with, I think Mr Hampson in the affidavit just filed regards himself as an applicant in the inquiry.

MR KING:   That is not the case, your Honour, that is an error, and I think we can agree about that.

HIS HONOUR:   Can you agree about that?   It will be noted on today’s transcript anyway.

MR HAYLEN:   Yes, there is no further material, your Honour.

HIS HONOUR:   The second thing is the time it will take to hear it.  The remitter question is important but sharp, I suppose, really, and the written submissions on your side dealing with it, Mr King, which obviously can be utilised and your written submissions on the substantive side of things can be utilised too, obviously?

MR KING:   Yes, your Honour.

HIS HONOUR:   Would an hour and a half be a reasonable estimate for the argument on the remitter?

MR KING:   Yes, your Honour, there is not much more than we can say other than what is in those written submissions.

HIS HONOUR:   Yes, and for the balance - if the Court got into the balance?

MR KING:   Your Honour, we submit that that point is not one that will take any longer than the first point and, indeed, probably less time in view of what the - if we are right that what the High Court said in Dingjan’s Case has application in this case then, we submit, it will certainly not take any longer.

HIS HONOUR:   It could comfortably be done, in all aspects, within a day?

MR KING:   Definitely, your Honour.

HIS HONOUR:   If it is needed to cover all aspects at the same time?

MR KING:   Yes.

HIS HONOUR:   I probably should indicate this before I make any order. There was a reference last time the matter was before me on 27 September to the phrase in section 412(2) of the Industrial Relations Act, namely, officers of the Commonwealth holding office under this Act. Counsel will recall that. It may be, and I express no concluded view about it, that the members of the Industrial Relations Court hold office, as it were, not just under that Act but their tenure is provided for and protected by 72 of the Constitution as well as judges of the Court created by the Parliament. That, on one view of it, could take them outside 412(2) and would make remitter impossible.

MR KING:   Yes.

HIS HONOUR:   Your initiating process, Mr King, is your motion dated 20 September, is it not?

MR KING:   Yes, your Honour.

HIS HONOUR:   Thank you. 

MR KING:   Your Honour, may I just add one thing in that regard.  I was informed by those instructing me that the draft order nisi was not complete.  Your Honour, may I hand up an updated draft order nisi which I would ask your Honour to have regard to and not the one annexed to Mr Dominello’s initial affidavit.  A copy of that has been served on my friends.  It has been noted to be in chambers, your Honour, simply because of today’s situation.

HIS HONOUR:   Yes.

MR HAYLEN:   Your Honour, there is one further matter that perhaps we should raise with the Court.  In the proceedings before Justice Moore, the applicant is Mr Battese.  It is not Mr Cook.  Mr Battese, as we understand it, has not been made party to these proceedings.  I am not sure how the proceedings before Justice Moore will be affected if proceedings in this Court in their current form continue without the applicant in those proceedings be also involved in these proceedings.  How the prosecutor here would see the matter proceeding in such a way that it gets the relief, at least discussed, that would be effective.

MR JOHNSON:   Your Honour, if I could perhaps raise another matter incidental to that.  As a result of the election conducted by Mr Masters that was revealed to your Honour in Mr Ktenas’s affidavit, various persons have now been elected and, your Honour, they are not parties to this proceeding and, at least as far as we are aware, they have not had the papers served upon them.  They may have, I just do not know.  We do not know, your Honour, the extent to which their individual interests are effectively represented by Mr Haylen or by Mr Wright.  That is another matter of which we just have no knowledge.  I thought perhaps I should raise that, your Honour.

HIS HONOUR:   Yes, but the mandamus is sought in respect of the decision of Justice Moore of 1 June.

MR JACKSON:   That is right, but one consideration is whether or not that motion that his Honour was dealing with has now been overtaken by ‑ ‑ ‑

HIS HONOUR:   That is right, yes.  But there is evidence about that, is there not?

MR JOHNSON:   Yes, there is.

HIS HONOUR:   Said to be evidence about it. Well, is there anything you want to do to change the Constitution - - -

MR KING:   No, your Honour.  Mr Battese did not oppose the application before Mr Justice Moore and that is why he has not been joined as a party.  I can indicate to your Honour that - and Mr Battese in fact is in Court today - I am informed by those instructing me he generally supports the application we are bringing but he does not seek to be joined.

HIS HONOUR:   Thank you.  You really need to amend the motion, do you not?

MR KING:   I do, your Honour.

HIS HONOUR:   So, it would be upon the grounds - well, that would be all right.

MR KING:   So long as it was taken to encompass an Order 55, rule 2 procedure, your Honour, I think that - - -

HIS HONOUR:   Yes.  The point is that the affidavit of Mr Dominello should have the draft order nisi that you have handed up attached to it. 

MR KING:   There is a form of draft order nisi, your Honour, but it is not complete and we rely on the one that I have handed to your Honour.

HIS HONOUR:   Yes.

MR KING:   Perhaps your Honour might mark it for the sake of good order.

HIS HONOUR:   That is right.  Exhibit A is the draft order nisi now sought by the prosecutor.

EXHIBIT A: Draft Order Nisi now sought by Prosecutor.

HIS HONOUR:   Do I need to make any order about costs today?

MR KING:   No, your Honour.

MR HAYLEN:   No, if they can be reserved, your Honour.

HIS HONOUR:   Do you agree with that, Mr Johnson?

MR JOHNSON:   Yes, your Honour.

HIS HONOUR:   Well, should be made costs in the cause.

MR KING: Your Honour, in section 347 of the Industrial Relations Act ‑ ‑ ‑

HIS HONOUR:   There is a special provision about costs.

MR KING:   - - - there is a special provision about it.  I adopt what your Honour says.  That would be the normal course, costs in the cause.  It may be better though, in those circumstances if your Honour simply - it would be our submission, ultimately that there should be simply no order as to costs as happened in Gray’s Case.

HIS HONOUR:   That is right.  I can see that.

MR KING:   Yes.  It may be that simply costs reserved would protect the position of everybody, your Honour.

HIS HONOUR:   Any question of costs is reserved.

MR KING:   Thank you, your Honour.

HIS HONOUR:   I think, strictly, you have to have a fresh motion.  Can that be filed and served within a week or 10 days?

MR KING:   Yes, your Honour.

HIS HONOUR:   Or 14 days?

MR KING:   A week, your Honour.

HIS HONOUR:   I will read what I propose:

(1)  Direct that the application by the prosecutor made by notice of motion filed 20 September 1995 to a Justice of this Court be made by notice of motion to a Full Court and that that motion be filed and served within 7 days.

(2)  Direct that the affidavits filed in the matter to date stand as the evidence upon the motion of the Full Court.

And there has been no objection to those affidavits, I should indicate, so that is one the transcript.

(3)  Any question of costs is to be reserved.

Does that seem to deal with it, gentleman.

MR KING:   Yes, your Honour.

MR HAYLEN:   It does, your Honour.

MR JOHNSON:   Yes, your Honour.

HIS HONOUR:   Now, it is likely to be February or March; more likely March at the moment.

MR KING:   Your Honour, does that also dispose of the issue under Order 55, rule 30?  I have assumed it does but it may not.

HIS HONOUR:   Yes, you may well be right.  It may need some special treatment.  What I propose would be to amend order (1):

Direct that the application by the prosecutor made by notice of motion filed 20 September 1995 to a Justice of this Court (which included an application for extension of time under Order 55, rule 30) be made by notice of motion -

et cetera.

MR HAYLEN:   That leaves the whole of the question - - -

HIS HONOUR:   That is right.

MR HAYLEN:   Yes, thank you, your Honour.

MR KING:   Your Honour, there is only one other matter and that is, I suppose from our point of view, a practical problem.  It is likely, although not - one cannot foresee anything in relation to this matter - that Justice Moore would have concluded the formal aspects of his inquiry probably before the end of the year.  It is in those circumstances, your Honour, that I would ask whether there would be any possibility of reserving to the Registrar consideration of an earlier hearing of the Full Court.  I appreciate, of course, your Honour, that the Court has a very busy schedule.

HIS HONOUR:   Well, there simply are no spaces.  The December sittings is largely consumed with constitutional matters that we have had to stand over for circumstances you will appreciate.

MR KING:   Yes, of course.  The possibility - - -

HIS HONOUR:   Anyway, what you want is an early decision, not just an early hearing.

MR KING:   Yes.  Your Honour, I cannot take it any further than that.  It may be that my solicitor should write to the Registrar and - - -

HIS HONOUR:   They can take whatever steps they want to in that regard.

MR KING:   Yes.

HIS HONOUR:   Well, I should read them again then now in final form:

(1)  Direct that the application by the prosecutor made by notice of motion filed 20 September 1995 to a Justice of this Court (which included an application for extension of time under Order 55, rule 30) be made by notice of motion to a Full Court and that that motion be filed and served within 7 days of today.

(2)  Direct that the affidavits filed in the matter to date stand as the evidence upon the motion of the Full Court.

(3)  Any questions of costs be reserved.

Yes, thank you, gentlemen.

AT 10.02 AM THE MATTER WAS CONCLUDED