Glasgow v State of Victoria

[1998] HCATrans 318

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M64 of 1998

B e t w e e n -

ALLAN STUART GLASGOW

Applicant

and

THE STATE OF VICTORIA and MURRAY NEIL COMRIE, CHIEF COMMISSIONER OF POLICE FOR THE STATE OF VICTORIA

Respondents

Application for removal under section 40(1) of the Judiciary Act

GUMMOW J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 11 SEPTEMBER 1998, AT 10.46 AM

Copyright in the High Court of Australia

MR G. GRIFFITH, QC:   If the Court pleases, I appear with MR K.H. BELL, QC, for the applicant.  (instructed by Holding Redlich)

MR D. GRAHAM, QC, Solicitor-General for the State of Victoria:  May it please the Court, I appear with my learned friend, MR T.J. GINNANE, for the respondent.  (instructed by the Victorian Government Solicitor)

GUMMOW J:   Yes, Mr Griffith.

MR GRIFFITH:   Your Honours, we have prepared short written submissions in reply to the respondent's submission.  May I hand them to the Court?

GUMMOW J:   Thank you.

MR GRIFFITH:   And whilst they are being distributed to your Honour, could I indicate that there has been a short affidavit filed by - - -

GUMMOW J:   There seems to be a plethora of affidavits.

MR GRIFFITH:   I am sorry about that, your Honour.  I was going to indicate your Honours need not go to the affidavits.

GUMMOW J:   Yes.

MR GRIFFITH:   But there has been an affidavit filed, 10 September, making inconsequential corrections, your Honours.

Your Honours, the essence of the applicant's claim is that the Perpetual Trustee issue is one which may currently be resolved, whether one says there is decisive difference in current police regulations and laws as to their employment or not by a decision of this Court, and the position ‑ ‑ ‑

GUMMOW J:   But they never arise on a proper construction of this Act.

MR GRIFFITH:   In our submission, your Honours, it does arise.

GUMMOW J:   I know you say it does but the controversy may be quelled in the Full Court so decisively that there is no grant of special leave.

MR GRIFFITH:   Your Honour, in our submission, at  the level of the Full Court, the applicant is left not far removed from the position of a formal submission on the Perpetual Trustee - - -

GUMMOW J:   No, no.  You only get to Perpetual Trustee if you take a particular view of construction of this federal Act.

MR GRIFFITH:   Yes, your Honours, but - - -

GUMMOW J:   That which is based in the external affairs power, is it not?

MR GRIFFITH:   It is, your Honour, yes.

GUMMOW J:   Well, I do not think they had Prince’s Case in mind when they were drafting that.

MR GRIFFITH:   No doubt they did not, your Honour.

GUMMOW J:   In any event, is not that relevant provision of the Act discussed in Qantas v Christie in some detail?

MR GRIFFITH:   Yes, your Honour. We submit that there is an issue, your Honour, that transcends the issue of whether or not there is an unfair dismissal claim in respect of this particular applicant and that is whether, in respect of employees of police forces, there is constitutional access by reference to the definition of "industrial dispute" under section 4 of the Workplace Relations Act which is a point, your Honours, of general and continuing importance because it is determinative as to whether or not organisations and members of police forces throughout Australia are entitled to access by reference to the constitutional definition - - -

GUMMOW J:   Is this a Melbourne Corporation point?

MR GRIFFITH:   No, your Honour.  At the moment, it is - - -

GUMMOW J:   It is just a construction point, is it?

MR GRIFFITH:   I should say, your Honour, yes.  It involves the issue of whether they are employees, your Honour, because the definition of "industrial dispute" which we have extracted in the bundle we handed to your Honours in the folder is by reference to whether or not the persons are employees.  So, one gets back, your Honour, to the question of whether at this day and age, by reference, we say, by way of example to the Victorian laws, a policeman is to be regarded as an employee.  The view taken by the learned trial judge, your Honour, which we say is one which might be expected to be maintained at the level of a Full Court by reference to the authority of Perpetual Trustee and Quince is that a police person, even not in terms of engagement, by authority of that case, is not to be regarded as an employee.

GUMMOW J:   That is all about master and servant, any way.

MR GRIFFITH:   Yes, your Honour, but the access to the Act generally, not just for the purpose of the - - -

GUMMOW J:   All I am saying is that the common law cases of which everyone seems to be concerned with are cases on the common law action per quod, submission ‑ ‑ ‑

MR GRIFFITH:   Your Honour, we would say that that is a clear answer and one says that the dead hand of Perpetual Trustee still runs but our submission is one cannot expect such an enlightened approach at a level below this Court and one cannot expect, we would submit, your Honours, that a decision of the Full Court would be of any relevant assistance on that point which your Honour makes with absolute clarity and we say is something which, in our submission, would detain a Full Bench of this Court not very long to determine.

Your Honours, the second point of the constitutional immunity is a point pleaded by the State of Victoria as an absolute bar to the application of the Workplace Relations Act in respect of this claim and, we would suppose, your Honours, with respect to any issue concerning dismissal.

Your Honours, we have attached the reference of powers legislation in the bundle we handed to your Honours which indicates that under section 5 of that Act there is an exception in respect to matters of termination of employment.  So, although it is the case now that the Industrial Relations Act, now the Workplace Relations Act, has been amended to exclude unfair dismissal in the case of employees of a State.  It still remains the case, your Honours, that they are entitled, if they are employees within the definition of "industrial dispute", to approach the Workplace Relations Act mechanisms to have issues pertaining to their employment dealt with, including matters of termination.  But the excluded provision of section 5(b) in respect of members of the police force has the effect that for persons in the position of the applicant - and, your Honours, this application is put on the basis with respect to members of the Victorian Police Force generally - the reservation on the reference of powers means that unless the immunity does not apply to members of the police force, then access to the Act generally to members of the State Police Force is denied.

Your Honours, in our submission, that raises squarely as a necessary issue, whether it be dealt with first or second in order, to the determination of the issues which arise in this matter, is the issue of constitutional immunity which, of course, was taken by the State of Victoria and argued before the court in the two cases.  It is their defence, your Honours.  We say it is a defence which can only be put to rest as an open issue, touched upon but not disposed of in the ultimate page of the Australian Education Union Case, and one which is appropriate now it has been raised as a four-square defence, your Honours, which must be overcome by the applicant to be successful in this matter.  Again, your Honours, our submission is that one cannot expect on this unfinished business, as it were, in our submission, for a decision of the Full Court to be of any relevant assistance.

Your Honours, there are particular points made by the respondents in their submissions as to why, in their submission, because of the amendment of the Workplace Relations Act to exclude unfair dismissal in respect of employees of the State, they say it is not an issue of continuing importance.  In our written submissions, your Honours, in reply to those submissions, we make the point which I have already covered in my oral submissions that there is the general issue of application and entitlement to the provisions of the Workplace Relations Act if you are a member of a State or Territory police force, which does arise.

Your Honours, the other point made of materiality in the submissions filed in reply is that there are disputed questions of fact.  With respect, that is not so.  In this matter, your Honours, the only issues before the Court of materiality are the current or then applicable terms of regulation and, we would say, employment which applied to the applicant as a member of the police force.  Your Honours, the submission made by reference to the statement of disputed issues of fact merely identifies the point of law which we submit is that which arises for determination.  It is at two levels, your Honours.  We say, firstly by reference to the changed terms of public engagement where, for example, prison warders, who would have, one would have supposed, at the time of the Perpetual Trustee decision as, of course, also been regarded as officers of the State, are now privatised private employees, whether in the circumstances of engagement of police force of the State of Victoria by reference to current legislation one can say either that that changed legislative circumstance means that the Perpetual Trustee principle is no longer applicable.  Well as we squarely put it, your Honours, one should revisit that principle and take the view that, for example, expressed by his Honour Justice Dixon in that case where he has indicated where, if it were raised.....even at that time he would be disposed to take the view.  A similar view taken by the primary judge in this case. 

In our submission, your Honours, having regard to the circumstance of the issue in Quince and Perpetual Trustee where the issue was merely one of damages for loss of use of an officer of a police force, it is appropriate and right for the Court to revisit that issue.  Your Honours, in the circumstances that we submit that there is no reasonable expectation that any engagement or consideration of these two issues by justices of the Full Court would be of assistance of the court, it is now appropriate to be removed to this Court on those two discrete and, we say, general issues of importance.

Your Honours, we do not confine our submission to this issue, to the reference to the particular Victorian legislation.  Our general submission is the issue of the status of police forces throughout Australia is the matter which is right for general consideration in this Court - - -

GUMMOW J:   That will depend upon statute in each case, I should - - -

MR GRIFFITH:   It might, your Honour, but we say our submission by reference to the Victorian legislation, which is sufficient to, we say, establish the base to argue on an issue which necessarily relies in circumstances of this application as a matter of general, fundamental and continuing importance as to whether or not members of the Victorian Police Force - and one would suppose, just as the decision in Perpetual Trustee has been regarded as the prevailing rule with respect to members of the police force generally throughout Australia, but whether a decision of this Court was confined by its terms to the Victorian legislation, nonetheless, in our submission, does not disguise the fact that this is a matter very ripe to be revisited by the Court and to have the Court express a view which does have a decisive effect on the operation of the Workplace Relations Act provisions generally and, that, your Honours, notwithstanding the very qualified terms of the reference of powers which as we have indicated in the extract given to your Honours, is very qualified by reference to members of State police force, and using similar language to that which has been used by this Court in the Education Union Case.

Having identified those issues, we can really not take the matter any further other than to submit to the Court that they ready, they are appropriate and there is no issue of fact or issue of further assistance to deny an order being made for the Court to consider these issues by removal under section 40(1) and (2) in respect of the immunity issue and under section 42 in respect of the police as employee issue.  If the Court pleases.

GUMMOW J:   Yes, we do not need to call on you, Mr Solicitor.

The issues for which the applicant seeks removal to this Court under section 40 of the Judiciary Act do not call for such removal in advance of the determination of the pending appeal to the Full Court of the Federal Court of Australia.  Accordingly, the application for removal is refused.

MR GRAHAM:   If the Court pleases, the question of costs arises. We would submit that an order for costs should be made in favour of the respondents. We note in the written outline of submissions of the applicant that there are no reasons advanced why an order for costs should not be made in favour of the respondent in the event that the application is refused. That is on page 8, paragraph 8. We are conscious of the provisions of section 347 of the Workplace Relations Act which made a somewhat confusing provision. Does the Court desire that I should read it or does the Court feel sufficiently familiar with its terms? The point we make is that the proceeding before this Court is a proceeding under section 40 of the Judiciary Act 1903. It is not a proceeding in a matter arising under the Workplace Relations Act.

GUMMOW J:   No.

MR GRAHAM:   So, we say that section 347 does not - - -

GUMMOW J:   I thought it was a reflection of that which produced the written statement which you read to us from the other side.

MR GRAHAM:   I was conscious of something that was said by the Court in a recent judgment in Sutton’s Case which reflected a different view amongst some members of the Bench.

GUMMOW J:   Yes, indeed.

MR GRAHAM:   We seek an order for costs, your Honour.

GUMMOW J:   Yes, I understand.

MR GRIFFITH:   Your Honour, it is a reflection with the clarity of Narcissus.

GUMMOW J:   Yes, all right.  Refused with costs.

MR GRAHAM:   May it please the Court.

AT 11.02 AM THE MATTER WAS CONCLUDED