He, Ex parte Re Lewin & Ors

[2003] HCATrans 630

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry         
  Melbourne  No M30 of 2003

In the matter of -

An application for Writs of Mandamus and Certiorari or Constitutional relief against THE HONOURABLE COMMISSIONER LEWIN, THE HONOURABLE SENIOR DEPUTY PRESIDENT POLITES, THE HONOURABLE DEPUTY PRESIDENT HAMILTON AND THE HONOURABLE COMMISSIONER LARKIN AS MEMBERS OF A FULL BENCH OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION AND THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

First Respondents

ENVELOPMENTS PTY LTD

Second Respondent

Ex parte –

DAMING HE

Applicant/Prosecutor

HAYNE J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 28 MARCH 2003, AT 9.33 AM

Copyright in the High Court of Australia

__________________

MR D. HE appeared in person.

MR G.C.P. McKEOWN:   May it please the Court, I appear on behalf of the second respondent.  (instructed by Middletons)

HIS HONOUR:   I have a certificate from the Deputy Registrar that she has been informed by the Australian Government Solicitor, the solicitor for the first respondents in this matter, that the first respondents do not wish to be represented at the hearing and will abide by any order save as to costs of the High Court and, if remitted, the Federal Court.

Mr He, the Judiciary Act provides that I can, whether or not either party asks for it, send this case to the Federal Court for that court to deal with it.  That is what is commonly done with applications of this kind, they are remitted to the Federal Court for that court to deal with them.  That has two consequences:  first, it means that this Court gives its principal attention to the appellate work and constitutional work which is its primary function, but the second consequence is that if the matter is sent to the Federal Court and if either party is dissatisfied with the result of the hearing by a single judge, they have the appellate rights which exist under the Federal Court arrangements leading ultimately, if there is a point of sufficient importance, to the possibility of application for special leave to appeal to this Court.  Ordinarily, the most efficient means of this Court dealing with its business would be for it to remit this application to the Federal Court for you to make it there.

What I want to do this morning is, first, to deal with whether I should remit it to the Federal Court.  The second respondent, Envelopments, say that there is not a sufficiently arguable case to warrant me remitting it to the Federal Court.  I should say to you and I should say to the other side as well that at the moment I am not of a mind to embark on the sort of hearing that I would have to undertake to decide whether this case is or is not arguable, rather, my present inclination is to remit it to the Federal Court where that court can sort out whether this case has any merit, good merits, bad merits, whatever.  But, question one, why should I not remit this case to the Federal Court?

MR HE:   The first thing is, here is the direct appeal court from the Full Bench of Australian Industrial Relations Commission and the Federal Court have a similar level that is jurisdictional power like Full Bench of Australian Industrial Relations Commission and another thing is in my constitutional relief application it is mainly about judicial argument, not about fact.  The facts that I presented in my affidavit ‑ ‑ ‑

HIS HONOUR:   Yes, I have read that.

MR HE:   ‑ ‑ ‑ this not contested in the arbitration and appeal to the leave.  So this actually is focused on the – it is a law matter, a matter of law and, first of all, the Full Bench, expressed their opinion.  They say that they are not there to enforce the occupational health and regulation.

HIS HONOUR:   The occupational health and safety regulations.  Yes, they said they were not there to enforce those.

MR HE:   Yes, but they did not mention about they are not there to enforce the Workplace Relations Act because the Workplace Relations Act compelled them to follow this Workplace Relations Act, and especially with 170CK what I specially referred.  I against the second respondent in my former workplace about the hazardous work practice and I get a warning and also, finally, be terminated.  So according to 170CK this person – that if an employee participate and proceeding against the employer about violate the law and regulation, they should not be terminated by any reason. 

So the second respondent actually contravened 170CK(2) of the Workplace Relations Act and the Full Bench and the Commissioner had combined to enforce Workplace Relations Act but the Full Bench said in the hearing that we are only deal an unfair, unreasonable or unjust dismissal.  I mentioned that my termination was unlawful termination because according to 170CK.  So this get a good arguing point.  If this ‑ ‑ ‑

HIS HONOUR:   As I say, I am not at the moment inclined to decide whether your point is arguable, whether your point is good, whether your point is bad.  The only question at the moment is why should I not send this case to the Federal Court?  Let us assume for the moment that you have a good arguable case – I have not decided that but let us assume it – why should I not send the case to the Federal Court?

MR HE:   Yes, your Honour.  This High Court have original judicial power, so because the Full Bench raise this issue, judicial issue, so I believe the High Court is the right place to processing this.

HIS HONOUR:   Yes.  Is there anything else that you want to say in support of your position, which I understand to be that you are entitled to be in the High Court, you say the High Court is the right place to be and the nature of the issues that arise are issues that this Court should decide.  Does that capture what you want to tell me?

MR HE:   Yes, that is it, thank you, your Honour.

HIS HONOUR:   Yes, perhaps if I hear what Mr McKeown has to say in opposition to that, or if anything.  Mr McKeown, I understand that you say that there is not an arguable case, but what do you say to the proposition that I should remit the case?

MR McKEOWN:   Has your Honour been provided with an outline of the submissions?

HIS HONOUR:   Yes.

MR McKEOWN:   Your Honour, in terms of paragraph 10 of the outline, what is the position is that if this honourable Court is not of the view the motion be dismissed then the second respondent does not take objection to the remittal and in fact it submits that in terms ‑ and there is a case reference, your Honour, there to a decision in terms of the common practice, if I can put it that way, your Honour, and that is a decision of Justice Kirby in the Australian Meat Industry Employees Union; Ex parte AFC Abattoirs Pty Ltd, that it is – and that decision, at page 59 of the decision, your Honour, where his Honour refers to the fact of it being a common practice, so to speak.

It is appropriate in terms of – as your Honour has already indicated that the work the High Court is involved in in terms of appellate and constitutional issues, this is basically in essence Mr He is seeking to review the Full Bench’s decision.

HIS HONOUR:   I know that is the way you would seek to characterise it. 

MR McKEOWN:   Yes, your Honour.

HIS HONOUR:   That may be right, it may be wrong, I do not need to form a view about it.  Can I just explore with you a moment why I am reluctant to embark on the question of whether there is an arguable case at all.

MR McKEOWN:   Yes, your Honour.

HIS HONOUR:   To do that I would need to form a view on a variety of matters, including, for example – and I simply take an example ‑ Mr He’s complaint about what happened in the Full Bench and whether the transcript of proceedings in the Full Bench is accurate.

You may say that does not bear directly on the sorts of issues that arise in a matter like this.  That may be right, that may be wrong, but it is important I think that in a matter of this kind where Mr He wants to ventilate issues of this kind that it is done sufficiently fully that the parties might at the end of the day feel that each of them has had a proper day in court.  For me to undertake that sort of task would occupy a deal of time and, quite frankly, until the 36‑hour day and the 12‑day week has been invented, for which I hope but have no profound expectation, there are other things which should perhaps occupy me.

I think I understand the second respondent’s position, Mr McKeown, but is there anything you want to say against the underlying premise of it that I should not embark on dealing with your contention that there is no arguable case?

MR McKEOWN:   Yes, your Honour.  If I could just refer your Honour to – and I can hand up a copy of the decision ‑ ‑ ‑

HIS HONOUR:   Of Justice McHugh?

MR McKEOWN:   Yes.

HIS HONOUR:   Yes, I read that and I am conscious of that.

MR McKEOWN:   Thank you, your Honour.  Just in terms of that, your Honour, I did go to the transcript of that particular case which is available on the Internet and I would submit that likewise his Honour Justice McHugh indicated reluctance to embark upon that very exercise.  But, your Honour, I would submit that this is a case in which there are some very unusual aspects.  Your Honour has raised the aspect in terms of the transcript and, your Honour, that in itself – the position from the

respondent’s viewpoint is that even if one takes the materials as filed by the applicant, it is submitted that it will not meet even the very low threshold of an arguable case.

HIS HONOUR:   I understand that.  I understand that you say it does not meet it and you say (a) why should you be vexed by another day in court, (b) why should the Federal Court be vexed by this matter; that is the nub of your contention.  The riposte to it is, if you are being vexed, if in truth Mr He’s claim proves to be unfounded, you will get an order for costs.  If his claim proves to be well‑founded, he will succeed.  It is better that these things are fought out with a proper degree of time and attention to detail where each party can develop their arguments in full.

MR McKEOWN:   Yes, your Honour.  The only additional point I would make is that the very issue of the transcript – and again it probably does fall back to your Honour’s point in terms of the time frame in which you have to deal with the matter – the very issue of the transcript is an indication, in my submission, that there would never be satisfaction reached in terms of – I understand your Honour’s point in terms of costs.

HIS HONOUR:   Yes.

MR McKEOWN:   Thank you, your Honour.

HIS HONOUR:   Yes, Mr McKeown.  Mr He, having heard both parties, I am minded to remit the case to the Federal Court.  Is there anything else you wanted to say about remitting the case to the Federal Court?

MR HE:   Yes, I would not repeat what I have already said.

HIS HONOUR:   Yes, there is no need to repeat what you have said.  I understand that.

MR HE:   Yes, your Honour.  The Federal Court do not, like High Court, have this judicial power and another thing if this case developed against particular member of the Commission, so this out of Federal Court judicial ‑ ‑ ‑

HIS HONOUR:   Yes, thank you, Mr He.  Is there anything else?

MR HE:   Yes.  Like your Honour said, that this – if I am not agreed with the Federal Court decision we may go to the Full Court of Federal Court and that means I understand this.  They do not have the final and original judicial power.

HIS HONOUR:   If the case is remitted to the Federal Court, then the Federal Court is exercising the jurisdiction of this Court, but you have the appeal to the Full Court of the Federal Court and from there, by special leave, you can appeal to this Court.

MR HE:   Yes, but I believe that Parliament have not given the full power of the Federal Court like the High Court has power to the Federal Court ‑ ‑ ‑

HIS HONOUR:   Yes, under section 412(3) of the Workplace Relations Act the Federal Court is given jurisdiction with respect to matters remitted to it under section 44 of the Judiciary Act and therefore the Federal Court would have jurisdiction in the matter, it seems to me.

MR HE:   Yes, do not have this original judicial power.  The High Court has the original – because I have pass the Full Bench.  So the Full Bench is the same level as the Federal Court parallel.

HIS HONOUR:   Yes, thank you, Mr He.

In my opinion in this matter there should be an order remitting the matter, in usual terms, to the Federal Court.  What is remitted is the application for constitutional and other relief.  I do not embark on the consideration of whether order nisi should issue, rather, I remit the application for relief to the Federal Court of Australia.  That order will take the usual form.  I will certify for the attendance of counsel.  I will adjourn.

AT 9.57 AM THE MATTER WAS CONCLUDED