Dalrymple Bay Coal Terminal, Ex parte- Re Australian Industrial Relations

[1996] HCATrans 252

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B30 of 1996

In the matter of -

Application for Writs of Prohibition and Certiorari against the AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION, THE HONOURABLE JUSTICE DEIRDRE FRANCES O’CONNOR, President of the said Commission, IAIN JAMES KERR ROSS, a Vice-President of the said Commission, COMMISSIONER PATRICIA LILLIAN LEARY, a Commissioner of the said Commission and the CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

Respondents

Ex parte -

DALRYMPLE BAY COAL TERMINAL PTY LIMITED

Applicant/Prosecutor

Office of the Registry
  Brisbane  No B39 of 1996

In the matter of -

An application for Writs of Prohibition and Certiorari against THE HONOURABLE JUSTICE O’CONNOR OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION  and VICE-PRESIDENT ROSS OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION  and COMMISSIONER LEARY OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION and THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

First Respondents

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

Second Respondents

Ex parte -

HER MAJESTY’S ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND

Prosecutor/Applicant

GAUDRON J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 27 AUGUST 1996, AT 11.02 AM

Copyright in the High Court of Australia

_________________

MR R.J. BUCHANAN, QC:   May it please your Honour, I appear with my learned friend, MR A.K. HERBERT, for the prosecutor in the matter first called.  (instructed by Minter Ellison)

MR J.S. DOUGLAS, QC:   May it please your Honour, I appear with MR M.O. PLUNKETT on behalf of the prosecutor in matter B39 of 1996, the Attorney-General for Queensland.  (instructed by B.T. Dunphy, Crown Solicitor for the State of Queensland)

MR R.C. KENZIE, QC:   May it please your Honour, I appear with MR S.J. HOWELLS for the Construction, Forestry, Mining and Energy Union.  (instructed by R.L. Whyburn & Associates)   We are named as the last-named of the prospective respondents and have been served in accordance with the provisions of the Rules.  It being an application for rule nisi in a chambers application, I may formally need leave to appear at this stage and if I do, I seek it, your Honour.

HER HONOUR:   Thank you.  If you do need it, it is granted.  I am sure there is no objection.  I hold a certificate from the Deputy Registrar who certifies that he has been informed by the Australian Government Solicitor, the solicitor for the first, second, third and fourth-named respondents in the first called matter, that those respondents do not wish to be represented at the hearing of this matter and will abide by any order, save as to costs, of this Court and, if remitted, of the Industrial Relations Court of Australia.  There is no certificate in the second matter.  I rather apprehend it probably has not been served.  Is that right?

MR DOUGLAS:   I think it has been.

HER HONOUR:   It has been?

MR DOUGLAS:   Yes.  I am told it has been.

HER HONOUR:   Very well.  Is there an affidavit of service available?

MR DOUGLAS:   No, there is not, sorry.  Perhaps we should arrange for that to be filed.

HER HONOUR:   Yes, I think you should.

MR DOUGLAS:   Thank you.

HER HONOUR:   Yes, Mr Buchanan.

MR BUCHANAN:   Your Honour, we move on the affidavit of Barry Bayley May which was sworn on 11 July 1996.

HER HONOUR:   I have read that affidavit.

MR BUCHANAN:   Thank you, your Honour. We seek an order in the terms set out in attachment BBM21 to that affidavit, which is a draft order nisi. We rely upon the grounds set out in that draft order. Your Honour will have seen that there are two grounds which, broadly speaking, are to this effect: firstly, that section 128 of the Industrial Relations Act 1988 is not a valid enactment and, secondly, that if it is a valid enactment, the order made which is under challenge here exceeds the power inferred by that section. Each ground has a number of aspects. The grounds which attack the validity of the section are, as your Honour will have noticed, pleaded in the alternative.

I think perhaps I should direct your Honour’s attention to the terms of the section, section 128. Your Honour, it has these characteristics. Firstly, it authorises the federal commission to make an order directly restraining a State industrial authority. If such an order is made then section 128 commands the authority not to deal with the matter. In those events, any subsequent order made by the State authority is declared by the section to be void.

The order which the federal commission makes has no independent content upon which section 109 of the Constitution could operate. It is not an order having the character of an award, for example, which the Act would indicate was to be given an exclusive operation. We wish to argue that such an order is either an order involving the exercise of judicial power in that it involves a direct prohibition upon the exercise of jurisdiction of an authority set up under State legislation. Alternatively, it involves the exercise of some form of executive or quasi-legislative power which is an attempt by the Federal Parliament to take a step which section 107 of the Constitution will not permit it to take. In other words, it attempts to interfere directly with the operation of State laws and with the conduct of tribunals set up under such laws.

It goes well beyond anything which section 109 of the Constitution contemplates for the resolution of inconsistencies and in circumstances where the power which is given by section 51(xxxv) of the Constitution is not an exclusive power, we wish to submit that it is beyond the authority of the Federal Parliament to attempt to restrain either the State legislature or a State agency in that way.

HER HONOUR:   Certainly the latter argument was put in Moore and rejected, was it not, or it was not determined?

MR BUCHANAN:   It was not determined, your Honour.  It was left open.  Your Honour, we searched for some close analogy to support the judicial power point, and I am conscious of the fact that it is an argument which, in earlier years, was considered and rejected.  We have not been able to find an analogy which is absolutely precise, although there are various ones which approach the situation.  For example, some supreme courts of States can restrain proceedings in tribunals or courts within their supervisory jurisdiction for the purpose of protecting the process of an inferior court or tribunal.  Some courts, for example the Federal Court or the Family Court, can restrain proceedings in foreign courts for the purpose of protecting their own processes but not by directly restraining the other court, rather by restraining the parties.

There is at least one case that we found where a non-judicial tribunal, the Trade Practices Tribunal, was given power to restrain parties from giving effect to agreements, and that was found not to involve an exercise of judicial power, but it did not involve restraint on proceedings. So, your Honour, notwithstanding the earlier expression of view now many years ago, the question seems to us, with respect, to be still open and at least to be a possibility, so far as the characterisation of the power is concerned. If it is judicial, then of course the section is invalid. If it is not judicial, we have to address other matters. But it will assist in characterising the nature of the power to have it established that it was not judicial power but rather some sort of executive power. If it is executive power, then our contention is, your Honour, it is a power which the Federal Parliament could not exercise in its own name and neither can it authorise one of its agencies to exercise such a power. Thirdly, in any event, the power goes well beyond what is necessary for the exercise of the arbitral power under section 51(xxxv).

Your Honour, if we fail on all of those arguments ‑ ‑ ‑

HER HONOUR:   Which of those arguments were considered by the Full Federal Court in the Media Entertainment and Arts Alliance Case?

MR BUCHANAN:   The third one, your Honour; the idea that it goes beyond what is necessary for the exercise of the arbitral power.  As we read the decision, not either of the other two.  At least not put in the way that we wish to argue it. 

HER HONOUR:   One of which was considered in Moore?

MR BUCHANAN:   But not decided.

HER HONOUR:   But not decided, and the other of which has been rejected in times past.

MR BUCHANAN:   In times past, your Honour, and before the Boilermaker’s Case.  Oh yes, if the matter was easy, your Honour, we would not need to be here.  But, your Honour, if we fail on those arguments, then the order made will still be a nullity for the reason that it goes beyond what the section permits.  In this area we would be appealing to the reasoning in earlier cases rather than attempting to distinguish it or deflect it.  I am bound to say to your Honour that I am confident there is a sound argument that one could distinguish the approach in the Industrial Relations Court but ‑ ‑ ‑

HER HONOUR:   I do not understand that - yes ‑ ‑ ‑

MR BUCHANAN:   I do not think that we would be unduly hindered by the judgment in the Industrial Relations Court on the argument that the order had exceeded the statutory power.

HER HONOUR:   That is to say that is a separate argument from anything that was put in the Media Case, yes.

MR BUCHANAN:   Yes. The factual circumstances are different and the character of the order is quite different and the reasons that persuaded the Industrial Relations Court that the order which it was considering was not a nullity, we say, would not apply here. But we do regard, with respect, the constitutional arguments as not being completely without substance. There has been a more recent acknowledgment about the overall framework and workings of the Constitution which appears to us, with respect, to give perhaps a greater respect to the operation of State legislation than may have been the case when some of the earlier decisions were made and section 128, on our contention, is directly in conflict with section 107 of the Constitution. If we are right about that, then we would succeed on the constitutional point.

HER HONOUR: If it is within legislative power, it is within legislative power and section 107 has nothing to say to the matter. Is that not right?

MR BUCHANAN:   The difficulty, your Honour, is that section 128, both by authorising the restraining order and then by commanding the State industrial authority what it shall not do, tells it not to exercise the jurisdiction which the State legislation gives to it.

HER HONOUR: Yes, but what I am saying is either it is within legislative power or it is not. If it is within legislative power then section 107 has nothing to say to it and if it is outside legislative power, then section 107 is not brought into consideration. Is that not right?

MR BUCHANAN:   Yes, your Honour. We say it is not within legislative power for the reason that section 107 preserves the full operation of the State legislation, save and except the operation of section 109 of the Constitution.

HER HONOUR: Save and except for section 128 if it is a valid law and various other laws and all other laws which are valid and which - - -

MR BUCHANAN:   The argument, your Honour, is that is it is not valid if it - - -

HER HONOUR:   Yes, I understand the argument.

MR BUCHANAN: Section 109 has not been engaged in this case at all. Section 128 attempts to set up a legislative scheme which pre-empts section 109 and it does it by directly interfering with the operation of State legislation and prohibiting that which the State legislation expressly permits and requires. In our submission, your Honour, that is contrary to what the Constitution permits and exceeds the grant of power given by section 51(xxxv) and exceeds the position of the Commonwealth within the framework of the Constitution. Your Honour, those are the - - -

HER HONOUR:    - - - grounds for the order nisi.

MR BUCHANAN:   Those are the grounds and the nature of the arguments put very briefly, of course.

HER HONOUR:   There are two other aspects, are there not? 

MR BUCHANAN:   Yes.

HER HONOUR:   There is the application for a stay.  What do you have to say to that?

MR BUCHANAN:   Your Honour, the grounds for the stay lie in the potential for further disputation of a kind which earlier occurred and the purported restriction of the authority of the State tribunal to deal with it if it does occur.  Since the cessation of the earlier action, nothing - I cannot advance anything to your Honour by way of any factual circumstance which would make the apprehension any more live than a potentiality, so it is not an immediate problem but it is, in our submission, a problem with the ever present potential to flare up at very short notice.  Should it do so, the State tribunal should not be deprived of its ordinary processes.

HER HONOUR:   Should it do so, it would be a matter that would be within the purview of the Industrial Relations Commission as well, would it not?

MR BUCHANAN:   It may not be, your Honour.  The Industrial Relations Commission has not yet determined that it will deal with any of these things.  As your Honour will have seen from the affidavit, there was an earlier occasion on which it declined to deal with the matters embraced within the log of claims.  That is now under - - -

HER HONOUR:   There are questions actively being considered by the Commission, are there not?

MR BUCHANAN:   Yes. One of them is whether it should deal with the log of claims. Certainly, while that is happened, your Honour, there is no reason for the State tribunal to be deprived of its own authority. If the federal Commission takes some step at any stage upon which section 109 can operate, then that will do all the work which is necessary. It will not be necessary and is not necessary to attempt some direct restraint of the State tribunal. Your Honour said there were two matters - - -

HER HONOUR:   The second, of course, is remitter.

MR BUCHANAN:   Is remitter, yes.  Your Honour, we rely upon the difficulty which we say is occasioned by a decision of the Industrial Relations Court.  We wish to challenge that decision both directly and indirectly.  We submit, with respect, that the points - - -

HER HONOUR:   But only one of the points was considered in that case.

MR BUCHANAN:   Yes.  The other reason that we advance, your Honour, is that we submit, with respect, that the grounds that we wish to argue are of sufficient substance that they should engage the interest and the attention of this Court because they, we would like to think, are matters which raise true constitutional questions.

HER HONOUR:   Yes.  Of course, the policy, though, of the remitter provisions is that they need not necessarily engage the attention of this Court.

MR BUCHANAN:   No, and I do not suggest that for a moment but your Honour can see that one such issue has been to the Industrial Relations Court and the result is that a further attempt will be made to bring it to this Court and to seek this Court’s leave to deal with the matter on appeal. These are matters which, as we would put it, are important questions unlikely to go away for so long as the federal Commission elects to exercise the powers which section 128 purports to give it.

HER HONOUR:   Yes, thank you.  Yes, Mr Douglas.

MR DOUGLAS:   If your Honour please.  On the first question raised by my learned friend about the constitutionality of the section, the issue we would content for, apart from the issue of the judicial power, is that it is not reasonably incidental to the conciliation and arbitration power, particularly in circumstances where no award exists, namely, where there is either only a matter before the proceeding or a dispute or an alleged dispute.

HER HONOUR:   That is a matter though that was argued in the Media Alliance Case, is it not?

MR DOUGLAS:   That is so, yes.

HER HONOUR:   And that is a matter in which you are the applicant for leave to appeal, are you not?

MR DOUGLAS:   That is so, yes.

HER HONOUR:   The judicial power point was not involved in that case?

MR DOUGLAS:   It was not involved in that case.  We are seeking to add it in the application for leave to appeal.

HER HONOUR:   When is that application expected to be - - -

MR DOUGLAS:   We have not been told by the Registry yet when - - -

HER HONOUR:   When was it lodged?

MR DOUGLAS:   I think last week, your Honour.

HER HONOUR:   When was the decision given?  Recently, I take it.

MR DOUGLAS:   It was recently.  It is exhibit DAC1 to Mr Carey’s affidavit:  26 July 1996, so about a month ago.  I will come back to that decision shortly.

HER HONOUR:   Yes.  You want to have this Court look at the matter twice, do you?

MR DOUGLAS:   We want to have this Court look at the matter at the same time, at one time.  We think it would be appropriate to have this matter heard together with the - - -

HER HONOUR:   Would that not rather depend on leave being granted?

MR DOUGLAS:   It would.  So, my proposal was, which I was going to come to shortly, was that - my submission was going to be that your Honour should, in any event, not remit it for reasons I will advance.  If your Honour was not disposed to decide that at this stage, adjourn the decision of that issue until the Court hearing the leave to appeal application is seized of the MEAA matter.  I will come back to that shortly, your Honour.

The constitutional issues about the scope of the conciliation and arbitration power are of course important and merit the attention of this Court. The second issue raised by my learned friend deals - perhaps the third issue - with the proper interpretation of section 128 in any event. That is another reason, we say, it is desirable for this Court to look at it again because when one analyses the decision in Moore’s Case one sees what we say led the Full Court of the Industrial Relations Court into error because the decision in Moore’s Case itself is rather Delphic on one critical issue about the identity of the matter in the federal Commission with the matter in the State Commission.  Our contention is that at least two of the Court out of the five in Moore’s Case took the view that there had to be an identity of matters in each commission and that as a part of that identity of matter, there was a requirement that there be an identity of parties and our view was that the Chief Justice Sir Harry Gibbs and Justice Dawson said things that advanced that view.  On our analysis of the decision, it is obvious that Justice Murphy took a contrary view and quite probable that Justice Deane took a contrary view.  Confusingly, for everybody, Justice Wilson agreed with both Justice Dawson and Justice Deane.

HER HONOUR:   But there was no identity of parties in that matter, was there?

MR DOUGLAS:   No, there was not.

HER HONOUR:   At the very least, it must stand as authority for its outcome and that was - - -

MR DOUGLAS:   I think its outcome really was that the orders - - -

HER HONOUR:   Yes, orders did not issue.

MR DOUGLAS:    - - - were not focused, if you like; did not deal with the issues that arose - - -

HER HONOUR:   So, the question of parties was not critical to the reasoning or to the outcome.

MR DOUGLAS:   No, it was not, so they are all obiter dicta probably.  But the obiter dicta are confusing and while that confusion remains, any decision of the Full Court of the Industrial Relations Court will be arguably the subject of an application for leave to appeal which should have reasonable chances of success because of the Delphic nature of the decision of the High Court in Moore.  In our submission, it is appropriate then to leave this matter here to enable the High Court to reach a considered view about those issues which do come up for decision both here and in the MEAA matter.

So, from the constitutional point of view, we submit it is an important issue. Simply from the interpretation of section 128 it is an important issue which can only really be resolved by this Court. We do not seek a stay in our application for an order nisi. It does not affect my client’s interests at the moment anyway.

HER HONOUR:   You are in the proceedings as an intervener only, are you?

MR DOUGLAS:   Yes, and we are interested, of course, because of the operation of a State tribunal which we contend should be allowed to continue operating.  So, in our submission, it is an appropriate case for the grant of an order nisi raising those issues. 

If we could say something brief about the judicial power issue.  One of the matters considered by the Full Court and by Justice Isaacs in the earlier decisions which reached the view that this was not a grant of judicial power was the extent to which orders affected rights.  That was in the context where the section at the time, section 20 of the Conciliation and Arbitration Act, gave power in cases where there was a dispute or an award. Here we have an extra dimension in section 128(1)(c) where an order can be made where the Commissioner is seized of the matter, where it is before it. In any event, the Commission’s orders, in our submission, do affect rights. They affect the rights of parties to go before a State tribunal. They preclude them from being exercised. When you look at some of the language in more recent decisions such as Brandy, the Court does seem to focus to some extent on to what extent an order made in circumstances like this affects rights and duties and that can be a determinant of whether or not there is an exercise of judicial power.

In our submission, when the federal Commission makes an order like this, even though it is directed against the State Commission, it affects the rights of parties before the State Commission to prosecute their proceedings before it and has the hallmark of an exercise of judicial power.  They are our submissions.  In our submission, your Honour should grant an order nisi.  If your Honour is concerned about whether it should stay within this Court, your Honour should not decide that at this stage but leave it for the Court that determines whether or not leave to appeal in the MEAA matter should be granted.

HER HONOUR:   Yes, thank you.  Mr Douglas, in the normal course, when would Brisbane expect to have a special leave hearing?

MR DOUGLAS:   I think probably about September or October.

HER HONOUR:   I know it is an application for leave but it would ordinarily be - - -

MR DOUGLAS:   Yes, it is normally heard at the same time as - - -

DEPUTY REGISTRAR:   It would be by video link - the next video link day.  So, that will just depend on how much business we have in Brisbane.  I do not think a day has been set aside yet.

HER HONOUR:   Thank you.  Yes, Mr Kenzie.

MR KENZIE:   Your Honour, our position in relation to the rule nisi is that with the exception of the arguments sought to be mounted by both prosecutors in relation to the question of whether section 128 involves the grant of judicial power, we do not seek to argue that there are not reasonable arguments available and do not seek to put any contentions as to the granting of a rule nisi. Our position in relation to the issues as to judicial power are that we have been unable to identify any changes to the legislation which could reasonably be said to have impacted on the earlier decisions of the Court in the Western Australian Timber Workers’ Case and, more particularly, the Australian Timber Workers’ Case which was decided in 1935 at a time after the predecessor to section 128 had been amended to include references to proceedings as well as awards and disputes and the like.

So, our position in relation to that is that the Court would not be persuaded that there are reasonable grounds for believing that the Court’s earlier pronouncements in relation to judicial power would result in a different decision today.  Otherwise, we have nothing useful at this stage, I think, to add in relation to the rule nisi questions, your Honour.

As far as the question of the stay is concerned, your Honour, we are instructed to firmly submit in opposition to a stay for both reasons of principle and reasons that concern the merits.  Your Honour will be well aware of the pronouncements, including recent pronouncements of this Court in relation to the difficulties associated with obtaining a stay of orders as opposed to a stay of proceedings, and could I assist your Honour in relation to some of those matters?

What is being sought here, of course, is not the normal sort of stay of proceeding which is frequently addressed and attendant upon the grant of a rule nisi in Order 55 terms.  It is an application for the stay of an order actually made at the conclusion of contested proceedings, giving rise to different considerations entirely.  This has been recognised in a number of proceedings.  Your Honour, we have given the Court some authorities and I know now is not the time to labour this but if I could mention a couple of them.  The first of them is the decision of Justice McHugh in the first ANF Case (1993) 67 ALJR 377 and, your Honour, at page 383 of that decision, his Honour addressed the difficulties which had been recognised in earlier proceedings associated with the granting of a stay of an order as opposed to a stay of proceedings. In the second column on page 383D, following a discussion of the position under Order 55 rule 10, his Honour says:

An order for a stay of an order, award or judgment must be made under the inherent jurisdiction of the Court.  It is only in exceptional circumstances that this Court will make an order sterilising the operation of an order or award of the Commission before the Court has determined the validity of an order or award made by the Commission.

Reference to Justice Dawson in Pillar’s Case which talks about the extreme sort of cases in which a stay might be granted in such a set of circumstances.  I think I do not need to go any further into that decision. 

There is also the follow-up discussion in the second ANF Case 67 ALJR 571 where Justice McHugh again, at page 572 in the second column, just above line F, said this, following again a reference to Order 55, dealing with a different situation:

The power of the Court to grant a stay of an award of the Commission or to stay proceedings made under an award, is a power which is rarely exercised by this Court.  Indeed in Re Marks; Ex parte Australian Building Construction Employees’ and Builders Labourers’ Federation Mason J pointed out that the power to stay an award or order as opposed to a stay of proceedings under an award or order appears to be unknown.

Your Honour, there are other proceedings in which the difficulties associated with obtaining a stay have been referred to.  The only case in which we have been able to see that a stay of this sort of order has been granted was a case decided by Justice Toohey, one of the Media Alliance Cases, in which his Honour was prepared to grant a stay of an award because the position of one of the parties may have been adversely affected irreparably.  I will give your Honour a reference to that, it is not on our list.
It is the decision of Justice Toohey in 67 ALJR 631. His Honour was persuaded to grant a stay in that case, I can tell the Court, because he was persuaded that no damage would be done to the other side. I can hand a copy of that decision to your Honour.

HER HONOUR:   We have it, thank you.  You wish to direct my attention, Mr Kenzie?

MR KENZIE:   Yes, your Honour, page 630, the second column of the first page, his Honour refers to “The reluctance of the Court to grant a stay of proceedings”, towards the bottom of the page, and his Honour said, following that, that the:

stay can only be warranted on the ground that a failure to grant a stay would lead to a situation in which the prosecutors, the now appellants or prospective appellants, might find themselves unable effectively to argue the basis of their challenge to my refusal to grant an order nisi.

His Honour then said that there was the risk of that in that case.  It was really analogous to the subject matter of the proceedings being affected by a failure to give a stay.  Your Honour, I do not read it all but on that page his Honour was also persuaded to take that course because of an additional factor:

namely, that it does not appear that anyone will suffer any prejudice by reason of the extension of a stay -

your Honour, that is the only case we have been able to discover in which a stay of an order was granted and otherwise, your Honour, the barriers in front of our friends are very real.

Your Honour, could I pass very briefly to what we have to say about the matters of merit.  Firstly, without asking your Honour to open the decision of the Full Bench, the decision of the Full Bench involved an exercise of discretion referred to at page 6 of that decision.

HER HONOUR:   What issue does this go to?

MR KENZIE:   Your Honour, this goes to the issue of whether, as a matter of industrial merit, the Court ought to intervene in the matter by effectively preventing the matters to proceed in the federal Commission as contemplated by the Full Bench in its decision.

HER HONOUR:   It goes to the question of remitter?

MR KENZIE:   No, your Honour, it goes to the question of whether there ought to be a stay of the order.

HER HONOUR:   A stay, thank you.  I do not think you need address me further on a stay.  If the applicants wish to say something further in reply that is new, then we will come back to you.

MR KENZIE:   Thank you, your Honour.  Could I deal briefly with remitter?  Our position in relation to remitter is this, your Honour:  it would be inappropriate to take the course other than the primary course suggested by the amendments to the Judiciary Act and the Industrial Relations Act recently made.  The matter should be remitted.  The Court should not take the course of refusing to remit or the alternate course of adjourning the present matter to wait and see how the other Media Alliance Case fares when it comes on by way of application for leave.

Factually, there are differences between the two proceedings.  Mr Buchanan has candidly said that the MEAA Case he will regard, factually, as distinguishable for the purposes of prosecuting this matter.  There are differences in terms of the legal issues that have been addressed in both matters.  The judicial power issue has not yet been addressed and will not be addressed unless these proceedings are remitted by IRCA or leave is granted and the High Court is given the opportunity to address the matter in the same proceedings.

No date has yet been fixed for the leave application, apparently. By definition, the matter will be dealt with to finality by the IRCA before it could be dealt with to finality by the High Court. The statutory mandate in section 98 of the Industrial Relations Act is for industrial matters to be dealt with quickly.  It would be wrong to simply put this matter on the shelf awaiting the leave application in the MEAA Case when it can be remitted now and receive the attention of the Court.  Failure to remit would, in a sense, appear to involve a pre-empting of the leave application.  Your Honour, if the matter was remitted to the Industrial - - -

HER HONOUR:   Equally, a remitter might be seen as a - - -

MR KENZIE:   I do not put that as my primary submission, your Honour.  Could I say this though, that if the matter was remitted and leave was ultimately given to the MEAA to appeal, then if the circumstances were appropriate, if further material emerged, there would be nothing to prevent an application for removal at that stage if the matter had not been dealt with by the IRCA but it would be inappropriate to do nothing, effectively, at this stage except adjourn the present matter, your Honour.

HER HONOUR:   How is it that your client would be prejudiced by that process?

MR KENZIE:   Your Honour, we seek to have a resolution of this matter with as much rapidity as the circumstances will allow.  The Full Bench, in its decision, was very much activated by the desirability of allowing the

industrial participants in the federal proceedings to effectively utilise the federal Act to prosecute their industrial claims and that is why, as a matter of discretion, they were persuaded to make the section 128 orders. There are industrial reasons for getting as promp a resolution as possible in this case as well as many other industrial - - -

HER HONOUR:   If there were no stay, there would be nothing to prevent that.

MR KENZIE:   I suppose our submissions are inevitably intertwined with the outcome of the stay application, your Honour.  Your Honour, as a matter of first principle, we would submit that there are practical reasons for obtaining the decision of the Industrial Relations Court in relation to this matter which will include a decision on matters which have not yet been before the Industrial Relations Court.  Matters have been remitted and consistently remitted to the court on the basis that there is a value in this Court having the reasons of the Industrial Relations Court when it considers questions including constitutional questions.

HER HONOUR:   Yes, but this is, of course, somewhat different to the extent that a number of the issues will be duplicated in a matter which is the subject of a leave application.

MR KENZIE:   To that extent my submissions are diminished, but only to that extent, your Honour.  There are other issues that will not otherwise be dealt with by the Industrial Relations Court.  So long as there are those issues, so long as the court is available as a specialist tribunal to deal promptly and certainly more promptly than this Court can do with the matter, that opportunity ought to be availed of and the matter should not go off into limbo, depending upon the state of the list in the leave applications, your Honour.

HER HONOUR:   Yes, thank you.  Mr Buchanan and Mr Douglas, there will be an order nisi.  As at present advised though, the arguments of Mr Kenzie with respect to stay seem quite compelling.  Is there anything you wish - that does not concern you, Mr Douglas.

MR DOUGLAS:   No. 

MR BUCHANAN:   There was something that I was going to say, your Honour, and perhaps I can put it very briefly.  I will not try your Honour’s patience too much.  I wanted to say this, your Honour:  that the order which was made is not an award.  It does not create rights or entitlements.  What it does is purport to remove the jurisdiction of another tribunal to act and that - - -

HER HONOUR:   Yes, but even so you are not asking for a stay of proceedings.

MR BUCHANAN:   No, but we are asking for a restoration of the status quo, your Honour, which would permit that tribunal to discharge its own functions.

HER HONOUR:   There is a lot of jurisprudence in this Court to the effect that that can only be done under the inherent power of the Court which means it can only be done when it is necessary to preserve the subject matter of the proceeding.

MR BUCHANAN:   It is a very special - it is a very unusual order, your Honour, which has a very unusual operation.

HER HONOUR:   If you could point to something other than the inherent jurisdiction ‑ ‑ ‑

MR BUCHANAN:   No, I cannot, your Honour, and I have to accept that the Court has said, I think using various language, it is an extraordinary step or a very special step.  More recently - I do not know whether “necessary to preserve the subject matter of the litigation”, but the effect of this order is to deny to the Queensland tribunal the right to perform its own functions under the statute which constitutes it.  The effect of granting a stay would simply be to permit it to go about its ordinary business.  It would not prevent access to the Federal Commission or utilisation of the steps under the federal Act.  It would simply lift the present prohibition upon it performing its own functions.  That is all I wanted to say about that, your Honour.

There was something very brief I was going to say about remitter.

HER HONOUR:   I will certainly hear you on remitter now.

MR BUCHANAN:   Only this, your Honour, that there is no question, as my learned friend put it, of your Honour refusing to remit.  The Court retains a full discretion under the ordered arrangements, presumably in the context of an intention that the Court would exercise its discretion according to the circumstances of the matter.  That is what we ask your Honour to do here.

HER HONOUR:   Thank you.

MR DOUGLAS:   I have nothing further to say, your Honour.

HER HONOUR:   Gentlemen, as you have heard, there will be an order nisi granted in both applications.  So far as concerns the application for a stay of proceedings, it is to be noted that in cases of this kind the power to grant a stay is to be found in the inherent jurisdiction of the Court.  It is a jurisdiction which is exercised only in exceptional cases and, as is usually said, where it is necessary to preserve the subject matter of the litigation or where the refusal of a stay would make it difficult in the determination of the proceedings in this Court.  The application for a stay will be refused.

As to the question of remitter, given that the issues are to some extent duplicated in this matter and in the matter of the Media Alliance, which is the subject of a leave application, the appropriate course seems to me to be to stand the question of remitter over pending the outcome of the leave application. 

It will be necessary, gentlemen, if leave is granted, for you to inform the Full Bench hearing the leave application that there is an order nisi and that the question of remitter has been stood over pending the outcome of the leave.

MR DOUGLAS:   Should we arrange for that file to be with the Court on the leave application?

HER HONOUR:   I do not know that that is necessary, but if you would inform the Court of the status of this proceeding.

Alternatively, if leave is refused, would you arrange for the matter to be relisted by the Registrar within seven days of that matter being determined.

MR BUCHANAN:   If your Honour pleases.

HER HONOUR:   Is there anything else that need be done?  Thank you.   Court will now adjourn.

AT 11.51 AM THE MATTER WAS CONCLUDED