Hoyts Corporation Pty Ltd & Ors v Media, Entertainment and Arts Alliance

[1993] HCATrans 129

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne Nos M41 and M44 of 1993

B e t w e e n -

THE HOYTS CORPORATION PTY

LIMITED, DELARENE PTY LTD, AND

RAMPTON PTY LTD

First Applicants

DEAN ARNEL and JAMES GEORGES

Second Applicants

and

THE HONOURABLE JUSTICE ALAN

BOULTON, THE HONOURABLE DEPUTY PRESIDENT COLIN GEORGE POLITES

and COMMISSIONER ADRIAN DANIEL

FOGARTY, members of THE
AUSTRALIAN INDUSTRIAL RELATIONS

COMMISSION

First Respondents

Hoyts(6) 20/5/93

MEDIA, ENTERTAINMENT AND ARTS ALLIANCE and THEATRE MANAGERS ASSOCIATION

Second Respondents

Office of the Registry

Melbourne Nos M42 and M45 of 1993

B e t w e e n -

THE HOYTS CORPORATION PTY

LIMITED, DELARENE PTY LTD and

RAMPTON PTY LTD

Applicants

and

THE HONOURABLE JUSTICE ALAN

BOULTON, THE HONOURABLE DEPUTY
PRESIDENT POLITES and
COMMISSIONER ADRIAN DANIEL
FOGARTY, members of THE
AUSTRALIAN INDUSTRIAL RELATIONS

COMMISSION

First Respondents

MEDIA, ENTERTAINMENT AND ARTS ALLIANCE and THEATRE MANAGERS ASSOCIATION

Second Respondents

THE GREATER UNION ORGANISATION

PTY LTD, VILLAGE THEATRES
TASMANIA PTY LTD, 206 BOURKE

STREET, PTY LTD, VILLAGE

VILLAGE DRIVE-IN (ESSENDON)

ROADSHOW CORPORATION LTD,

PTY LTD, VILLAGE ROADSHOW
OPERATIONS LTD, VILLAGE
CINEMAS (RYRIE) PTY LTD and
GEELONG DRIVE-IN THEATRES PTY
LTD

Third Respondents

Hoyts(6) 20/5/93

Office of the Registry

Melbourne Nos M43 and M46 of 1993

B e t w e e n -

THE HOYTS CORPORATION PTY

LIMITED, DELARENE PTY LTD and

RAMPTON PTY LTD

Applicants

and

THE HONOURABLE JUSTICE ALAN

BOULTON, THE HONOURABLE DEPUTY
PRESIDENT POLITES and
COMMISSIONER ADRIAN DANIEL
FOGARTY, members of THE
AUSTRALIAN INDUSTRIAL RELATIONS

COMMISSION

First Respondents

MEDIA, ENTERTAINMENT AND ARTS ALLIANCE and THEATRE MANAGERS ASSOCIATION

Second Respondents

Applications to remove a stay

TOOHEY J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 20 MAY 1993, AT 11.03 AM

Copyright in the High Court of Australia

Hoyts(6)	20/5/93
HIS HONOUR:	Mr Nolan, you are effectively the applicant in these matters today.
MR J.W. NOLAN:	Yes, that is right, Your Honour.

(instructed by K. Nomchong and Scarfone & Co)

MR R. MERKEL, QC:  Your Honour, I appear with my learned

friend, MR L. KAUFMAN, for the employer companies

in both matters. (instructed by Mark G. Caldwell)

I appear with MS D.M. LINNANE for the employees in

the matters that they are parties to. (instructed

by Sciacca & Associates)

HIS HONOUR:  Those described as second appellants?

MR MERKEL:  Yes, Your Honour. Can I just indicate to

Your Honour before the matter commences that as a

result of a decision made yesterday by the

Commission, there is a further application for an

order nisi by employees. I mention it at this

stage, Your Honour, because it is a matter for

Your Honour as to the most convenient course, whether Your Honour should hear the application for

that order nisi or deal with my learned friend's

application for the removal of the stay.

The way in which the order nisi arises,

Your Honour, is that the employees made certain

applications to be heard before the Commission

which the Commission has in effect refused, and

they seek an order nisi on the basis of that. The question of a stay on their application would only

arise, Your Honour, if Your Honour was disposed to

remove the stay on the other applications. There

would be no need for any further stay if

Your Honour was not disposed to accede to my

learned friend's application. So we are in effect

in Your Honour's hands as to which is the most

convenient course.

HIS HONOUR:  Yes, I have thought about that, Mr Merkel. I

think it is better to keep the new application to
one side for the moment.	The matters are

sufficiently complicated without introducing that

application at this stage.

MR MERKEL:  Yes, if Your Honour pleases. Can I just

indicate, so I will not interrupt my learned

friend, the basis on which we have filed in effect

responding affidavit material to my learned

friend's affidavits. We do object to his affidavit

material on several grounds, and we do not ask

Your Honour to rule on them or not to look at them,

but we would wish at the outset to state the

objection so that our responses and the relevance

of them can be seen in the proper light.

Hoyts(6) 4 20/5/93

We say that the grounds on which we object,

Your Honour, are threefold: firstly, in so far as

they are based on information and belief they do
not state properly the grounds of that belief. In

other words, there is a rolled-up reference to

unidentified persons, and we say that does not

comply with the rules. But can I say that the

authorities suggest that if it meets the

requirement under the rules that objection may go

to weight rather than admissibility. I certainly

do not want to waste a great deal of time on it

with Your Honour, but we do raise that objection.

The second we raise on grounds of relevance;

and the third - and this again depends on how

Your Honour may approach this application - we

object to the filing of material that relate to
events which arose prior to the making by

Your Honour of the order last Thursday on the

ground that that material was available, or ought

reasonably to have been available and was not

adduced in evidence before Your Honour, and ought

not to be able to be adduced now, in effect, to
have a second rerun of a case my learned friend

elected to put in a different way last Thursday. Having raised that I do not ask Your Honour to

rule on it at the moment because it will be a

matter of argument, but the importance of it is

that we, as Your Honour could expect, have joined

issue with my learned friend in the short time we

have had available to do so the allegations he has

put against Hoyts. But we would not have to rely

on that material or, in effect, wander down that

path of irrelevance which we say it is, if those

affidavits were not treated by Your Honour as

relevant. So we do not want by our joining issue

that, in effect, to be treated as us accepting that

it is relevant, but because we are cognizant of the
time this has already taken we have made a special
endeavour to have all the material available today

so the matter could be disposed of by Your Honour

today rather than seek any further time.

HIS HONOUR:  The material is certainly assuming alarming

proportions, particularly in the manner in which it

is arriving right up until the death knock, as it

were. At any rate let us get on with the

application, Mr Merkel.

MR MERKEL:	May it please Your Honour.
HIS HONOUR:	Mr Nolan, I do not want to interrupt you

unduly, but just so that this application can

assume some manageable form, there is in existence

a stay confined to the award coming into operation.

That stay was granted on the basis that it was

Hoyts(6) 5 20/5/93

likely that the prosecutor might sustain some

irreparable damage by reason of its inability to

prosecute the appeals and applications for leave to

appeal. That is our starting point, and as you

would appreciate, in the ordinary course an

application to vary or discharge a stay must be

based on material that has arisen or events that

have occurred since the stay was granted.

Looking at the affidavits in the time that I

have had available it seems to me that what is

being said on behalf of your clients is that the

absence of an award is causing prejudice to

employees; that there are rights that they would
otherwise have under the award that they do not

have at the moment. Is it fair to say that that is

the basis of the application to lift the stay? I

am not trying to stop you developing your argument,

but I just want to try and keep it within some sort

of reasonable compass.

MR NOLAN:  Indeed, Your Honour. That is certainly the

essence of what is put, but perhaps the
significance of that contention is illuminated by

reference to what the Union perceives to be

activities that have occurred in the field that
make that concern all the sharper, if you like, and

in particular, certain events that are recounted

having occurred to a delegate of the Union in

Melbourne have perhaps added some focus to that

concern and we would say made it a substantial

concern.

HIS HONOUR:  But what am I going to do about the affidavits?

There are allegations on the one hand, there are

denials on the other. I am certainly not going to

sit through that sort of situation.

MR NOLAN:	I appreciate that, Your Honour.
HIS HONOUR:	And obviously, in the absence of deponents being required to attend for cross-examination, I
am left with simply the allegation on one side and
a denial on the other.
MR NOLAN:	Yes, I do appreciate the concern, Your Honour, and I do not think it is the intention of any of us
to turn these proceedings into protracted
proceedings where cross-examination and so on would
take place.  We put our concerns on this basis,
that there is a credible and prima facie concern on the part of the Union, and there are substantial
rights provided in the proposed award, in
particular the Union preference clause, and the
availability of paid union meetings and overarching
and protecting those rights, not to mention the

Hoyts(6) 6 20/5/93

right to increase wages, are the protective

provisions of the Industrial Relations Act.

HIS HONOUR:  But those provisions would operate in any

event, would they not?

MR NOLAN: Well, they operate in relation to certain general

activities, but they bear specifically as well on

the award rights, so that in respect of specific

award rights, if claims are made in relation to

them, or claims are made which rely upon them, and

those claims are the subject of any prohibited
behaviour, then the employee is entitled to take
proceedings under the anti-victimization sections

of the Industrial Relations Act and entitled to

certain remedies that flow from that if those

proceedings are successful, and it is a feature of those proceedings that the onus is reversed and as long as the elements of the offence are made out,

the obligation falls upon the employer to

demonstrate that he or she was not actuated by

prohibited reason.

HIS HONOUR:  But are you suggesting that that right of

action is lost? If, for instance, the appeals
applications for leave to appeal proceed and are

unsuccessful, have the employees lost anything in

the meantime? I mean, they have lost time of

course, but have they lost any rights?

MR NOLAN: 

It seems to me we have the difficulty there of

the creation of what are effectively criminal
offences retrospectively by the coming into
operation of the award where the award then speaks

back to a date which has long since passed. It
would be unlikely, in our submission, that one

could then characterize conduct that was, at the time it was undertaken, free of any restraint of

that kind, as suddenly having conferred upon it

some criminal character as a consequence of the

retrospective operation of the award.

So that is an area, if you like, that cannot

be addressed by the stay and cannot be put right by

undertakings because the employer really cannot

give an undertaking that he will treat himself as

having committed a criminal offence. That just

does not hold water, in our submission.

HIS HONOUR:  But the employer can give an undertaking that

it will do certain things, for instance the

undertaking that has already been given in relation

to the payment of wages in accordance with the

award as from the early date in May.

MR NOLAN: That is right, but he could not give an

undertaking that would put him in a position where

Hoyts(6) 20/5/93

he was liable for an offence, for example, where

otherwise it simply would not have been an issue.

That is one area of concern that we have identified

because absent the award, in relation to certain

activities that are governed by this final award,

the protections secured by section 334 of the

Industrial Relations Act simply do not operate.

The preference clause, for example, is an

obvious practical example of the right being denied

for the period of the stay. If the award was made,

the employees concerned would be entitled to a

preference of employment if they were Union

members. For the period of the stay they are not

so entitled and if the award was made and the
employees insisted on their rights under the
preference clause, they would have to be accorded,

and refusal to accord those rights would have

certain consequences that simply do not apply while

that provision of the award is stayed. So there

are, we would say, identifiable and tangible rights

that arise under the final award that are not

covered by the interim award that have not been,

and in some senses cannot be, fully secured by the

operation of undertakings, for example.

HIS HONOUR:  That may be. Of course, that is one of those

things that perhaps has to be taken into account,

its being balanced - I am not sure that "balanced"

is the correct expression here, because the stay

has been granted on the basis that Hoyts stand to

suffer some irreparable harm vis-a-vis the

proceedings. Your proposition is that the

employees stand to suffer some irreparable harm of

a quite different sort.

MR NOLAN: Yes, that is right ..

HIS HONOUR:  Is there an area in which an extension of

undertakings by the employer could meet this

concern? For instance, I notice in the affidavit

there is reference to superannuation benefits that

might be affected by reason of the stay of the	award coming into operation. That ought to be
capable of being met by some undertaking on the employers' part.

MR NOLAN:  Yes. That is not a matter that is intractable.

It could be met by some kind of undertaking.

HIS HONOUR:  What is there that cannot be met by an

undertaking if the employer was prepared to give

it? The employer may not be prepared to, in which

case I have to deal with it on that basis.

Hoyts(6)	20/5/93
MR NOLAN:	Those areas that I earlier identified which

create these entrenched rights one would suggest

just cannot be addressed by undertakings.

HIS HONOUR:  Let us say someone is dismissed during the time

lapse between now and the appeals coming on for

hearing. Do they lose their right to take whatever

action is available to them under the award if the

award in the end does come into existence?

MR NOLAN:  There are different remedies, you see. Under the

interim award they have got certain rights if they

are dismissed unfairly, but our point here is that

they have enhanced and more secure rights, if you

like, if they are dismissed arising out of a matter

that, if the award had operated, conferred a

protection on them. So that the position has been

taken by the Federal Court, in anti-victimization

proceedings, that if you are able to establish a

case under section 334, your rights to

reinstatement are, in effect, almost automatic,

whereas in the general jurisdiction of the

Commission and in unfair dismissal proceedings in the Federal Court relying on the unfair dismissal clause in the interim award, other discretionary

factors weigh more heavily in the balance in terms
of providing the employee with the remedy of

reinstatement, for example.

HIS HONOUR:  Is there any suggestion that anyone has been

unfairly dismissed?

MR NOLAN:  Not at this stage, but there is certainly a

suggestion in the material that the Union

delegate's hours have been reduced and that is a

matter that will need to be given some

consideration. And, of course, there is also the

suggestion that the various hours of people will be

affected and re-rostered and so on.	Now, if the
award - - -

HIS HONOUR: Will be or have been?
MR NOLAN:	There is a suggestion that there will be in and

may, in fact - this may in fact already have

occurred.

HIS HONOUR: Well, should not that really be a matter for

decision if it happens?

MR NOLAN: Well, that might be so, Your Honour, but the

position is that the argument seems to be put by

Hoyts that if the award comes into effect, they

will take certain decisions to take hours away from

people and re-roster hours and so on, yet their

undertaking to the Court and the material in the

affidavits filed this morning suggest that no such

Hoyts(6) 9 20/5/93

step will be taken pending the decision on the

appeal.

Now, if the award was in force, the employees

covered by the award would be - if they were

entitled, for example, under the rates of pay

clause to a certain rate of pay when they were 18,

and they were disadvantaged as a result of a
reliance on that specific award term, they would

have a case, arguably, under section 334, that at

present they have not got because that particular

part of the award has not come into effect.

So there is an important right, we would say,

that is entrenched and protected in a very severe

way by the legislation with the reversal of onus

and so on, that simply does not exist.

HIS HONOUR:  But the problem is that there either has to be

a stay or no stay. I do not see, really, any

halfway house other than that that comes about

through undertakings given by Hoyts.

MR NOLAN:	Yes.
HIS HONOUR:	I cannot really grant a stay or vary a stay

that I think caters for those matters. I mean, I can either lift the stay because the situation is

prejudicial to employees or because the employer

will not give undertakings that might relieve that

prejudice, or I leave it there on the basis that,
notwithstanding all these problems, the reasons
that prompted me to grant the stay in the first

place really operate to continue the stay until the

appeals are heard.

MR NOLAN: Well, I have to agree, Your Honour, that to the

extent that the O'Toole v Charles David point, if

you like, overshadows or is significant - - -

HIS HONOUR: Well, that is right, it does.

MR NOLAN:	- - - it tends to overshadow every other consideration, but I was going, in the course of my
submissions to you this morning, to look at some
other authority that has perhaps got some bearing.

HIS HONOUR: It may not.

MR NOLAN:	I am sorry?
HIS HONOUR:	I mean, not if it involves going back over that

argument again.

MR NOLAN:  I appreciate that, Your Honour, but I was going

to - - -

Hoyts(6) 10 20/5/93

HIS HONOUR: This is not a rehearing, this is an application

to discharge the stay by reason of events that have

occurred, and I am certainly not prepared to have a

further rehearing of the O'Toole v Charles David

argument. I mean, that has to stand until the

matter reaches the appeal court or the Full Court.

MR NOLAN:  Yes, Your Honour. I rather took an indication

from Your Honour's reasons on the last occasion, as

distinct from what you had said on the first

occasion, that Your Honour had, to some extent,

leavened the reliance on the O'Toole v Charles

David ground, because Your Honour did make mention

of other relevant matters that may occur, including

a decision of the Commission that might be made and

the apparent reconsideration that was being given

to the question by the Commission.

HIS HONOUR:  I do not think that is a correct reading of the

reasons. What they do say as I recall is that

there are other considerations which perhaps can be

put in the balance. In other words there might be,
notwithstanding what the appellants say about the
damage they are likely to sustain, there might be
other considerations that would prompt the Court
not to extend the stay. But I think all I was

pointing out was that those considerations seem to

be able to be met by the undertaking that was being

given and by the fact that the Commission was

continuing to deal with aspects of this dispute,

because the stay only really operates to prevent an

award coming into existence.

MR NOLAN: Absolutely.

HIS HONOUR: Well, again it seems to me, Mr Nolan, that it

is fair enough to raise these problems that either

do exist or may exist by reason of the continuance

of a stay. To the extent that they can be met by

expanded undertakings given by the employers, then

it seems to me that that is an approach that should

be pursued. If in the end there are areas that

either cannot be covered by an expanded undertaking

or the employer is unwilling to give expanded

undertakings, then I have to decide whether that is

a sufficient reason for discharging the stay.

Now, in the light of that, is there anything

to be gained by you and Mr Merkel considering the

scope of undertakings that might be given?

MR NOLAN:  We would be silly to reject an opportunity to

canvass that, so I would obviously be happy to have

those discussions.

HIS HONOUR:  Time is a factor here, an important one, but it

is not the only consideration by any means.

Hoyts(6) 11 20/5/93

Mr Merkel, do you see anything to be gained by a

discussion?

MR MERKEL:  Yes, Your Honour. We formulated undertakings on

what we perceived to be the problem, and my learned

friend's affidavit material, belatedly but

nevertheless now has raised some further issues.

We see it as highly productive for us to have a very short time, Your Honour.

HIS HONOUR:  Tell me how much time you think you will need.

There is no point in underestimating the time that

you want.

MR MERKEL:  If my learned friend is reasonable, no more than

five minutes, because I have formulated an

undertaking in anticipation of the problem.

HIS HONOUR:  That seems to me to be an underestimation no

matter how reasonable Mr Nolan might be.	He has to
read and digest the material.

MR MERKEL:  Your Honour, could we possibly have maybe 15 minutes - - -

HIS HONOUR: That sounds more realistic.

MR MERKEL:  - - - and if we need further time we could tell

Your Honour's associate.

HIS HONOUR:  I will adjourn for 15 minutes. If you need

more time let me know. If it is becoming apparent

that you are not likely to - perhaps reach

agreement is not really the proper way to see it.

It is a matter of undertakings that may be

acceptable to Mr Nolan which may prompt him not to

pursue the application; or given the undertakings

he may, nevertheless, wish to argue that the stay

should be lifted. Then I have to look at it in the

light of the undertakings that have been given.

MR MERKEL:  Yes, Your Honour. Possibly if we resolve it

more quickly, if we could tell Your Honour's

associate; and if we need more time and it looks

productive, if we could also inform Your Honour's

associate; otherwise 15 minutes.

HIS HONOUR:  Very well, I will adjourn the Court for

15 minutes.

AT 11.27 AM SHORT ADJOURNMENT

Hoyts(6) 12 20/5/93

UPON RESUMING AT 11.48 AM:

HIS HONOUR:	Yes, Mr Merkel?
MR MERKEL:	Can I indicate the position we have reached,

Your Honour, which is that we have given my learned

friend a form of undertaking which we indicated we

would offer to the Court. As I understand it, he

is content with that undertaking subject to one

quite unrelated matter which he reserves his right

to raise with Your Honour. We do not have

objection to that, so could I hand up to

Your Honour the form of undertaking and indicate to
Your Honour that we are instructed to give that

undertaking on behalf of the applicant companies.

HIS HONOUR:  I have not read it yet, but is it an additional

undertaking to that already given?

MR MERKEL:  Your Honour, it really technically would be in

replacement of the earlier undertaking but, rather

than try and confuse the issue, it seems simpler to

treat it as an additional undertaking. We have

made it in effect operative from the date

Your Honour made the order last week.

HIS HONOUR:  How does that tie in with the second

undertaking, the undertaking to observe, if

necessary, the pay conditions as if the award had

come into existence on, I think, 6 May?

MR MERKEL:  I think it sits comfortably with it,

Your Honour, because the second undertaking would oblige us without any question of loss and damage to pay the amounts the employers would have been

entitled to had the award been operative.

HIS HONOUR:  I may have misunderstood what you said. I

thought you were suggesting that this would now, as

it were, overtake the earlier undertakings.

MR MERKEL:  Yes, I had not been very clear, Your Honour. We

offer it as an additional undertaking.

HIS HONOUR:  So it would be in effect undertaking No 3.

MR MERKEL:  Yes, Your Honour. What I meant to say is there

is duplication or overlap but, rather than confuse

that issue, we would leave the current undertakings

in place and add this as a third undertaking.

HIS HONOUR:  Yes, thank you, Mr Merkel. Mr Nolan?

MR NOLAN:  Your Honour, that certainly relieves the burden

of Your Honour listening to a lot of the material,

Hoyts(6) 13 20/5/93

save one matter that we wish to raise that we say

is a cogent matter that goes to the question of the

stay. That is the decision of the Commission given

yesterday. That decision is contained as an

annexure to the affidavit of my instructing

solicitor dated yesterday's date that has been

filed in the Court.

HIS HONOUR:  Is this the affidavit of Mr Caldwell?

MR NOLAN:  No, of Ms Nomchong. I have got a spare copy

here.	The small one simply appends the
Commission's decision.	I will hand that up to

Your Honour, because I only wish to go to the

decision. This was a decision handed down by the

same Full Bench that handed down the award, that is

Justice Boulton, Deputy President Polites and

Commissioner Fogarty.

HIS HONOUR:  You appreciate no doubt, Mr Nolan, that this is

the decision the subject of the further challenge

which is not presently before me in the form of

argument.

MR NOLAN: Absolutely, yes. Perhaps I ought to say,

Your Honour, that in that connection what I say to
Your Honour might perhaps be in some sense taken on

board pending our further argument about the order nisi application because it may be that what I say

about the significance of this decision for the

stay will be affected by Your Honour's decision on

the order nisi argument. I have in mind the

different approach that is taken. If there is no

order nisi granted, then the justification for the

stay is thereby diluted and so on.	Does
Your Honour require me to read it?

HIS HONOUR:  No, I do not, and I have read it in the time

available which probably means no more than

glancing quickly at it before I came into Court in

connection with the proposed application.

MR NOLAN:  We do not need in that case to go to it in

detail, but can I say this: that the Commission

deals, we would say, in a cogent and comprehensive

way with the issues put to it in the

section lll(l)(g) application that postdated the

award decision, and if there was any doubt about

the Commission's view about the final award, that

doubt, we would say, is now entirely put at rest by

the Commission's unequivocal statement in

yesterday's decision.

We refer in particular to the passage on page 6 where, at about half-way down the page, the

Commission, in discussing the representations made

Hoyts(6) 14 20/5/93

to it by the employees in the course of their

lll(l)(g) submission, makes the point:

At no stage during the proceedings and before the Commission's decision was made have individual employees sought to be represented separately and apart from the unions. If

there were submissions which such employees

wished to make in opposition to the making of

an award in a particular form, apart from the

evidence given and the submissions by Hoyts

and other parties or interveners, then the

employees should have sought leave to appear

or intervene in the proceedings at an earlier

stage and before a final decision was made.

Moreover, in this regard we note that some 37

of those employees who signed petitions gave

evidence on Hoyts behalf in the proceedings.

The Commission goes on to say:

Secondly, the submission made by the employees

deals with some possible implications of the

award determined by the Commission. The award

was determined by the Commission on the basis

of the submissions and evidence presented in

the arbitral proceedings.	As the Commission
said in the decision -

and they quote themselves in the earlier decision.

In the course of determining the award provisions the Commission had regard to many considerations including the effect of any new

award provisions. Apart from this, we express our concern about some of the matters referred

to in the employees' submission. For example,

the submission refers to anticipated action by
management to restrict trading hours and

reduce manning levels and "revised" rosters to

accommodate the new award and says that "those

18 years of age and over are angry that the

work market at Hoyts". It seems clear that	new award will price them out of the casual	some of the concerns of the employees are
based upon possible actions by Hoyts against
their interests following the making of the
award determined by the Commission. However,
we repeat what was said in the decision of 1 April 1993 that the Commission determined rates and conditions which are fair to the
employees concerned and which provide for the needs of flexibility and efficiency in the
conduct of Hoyts' cinema operations. We do
not accept that the matters referred to are
necessary consequences of the award we have
determined and we would be seriously concerned

Hoyts(6) 15 20/5/93

about any vindictive policies adopted by

management against the interests of existing

employees based on the making of the award.

Then further down the page the Commission deals

with the complaint about Commissioner Fogarty and

indicates that Hoyts did not seek to make

submissions about the agreement following its

handing down on 17 September, of course, last year,

I interpolate, and they deal with that matter.

Now, over the page at the very conclusion of the decision, the Commission says this, at about 8

point 5:

We consider that it would be unfair and

unreasonable to the other parties and persons concerned and contrary to the public interest

for there to be any further delay in relation

to the making of the award occasioned by the
timing of the latests lll(l)(g)(iii)

applications. Having considered the

applications and the submissions made, we are
of the view that public interest

considerations overwhelmingly support the

Commission proceeding to make an award as
determined in the decision of 1 April 1993.

So very briefly, then, Your Honour, they are the conclusions reached by the Commission in this subsequent application that was made to the

Commission and we would say that those conclusions

should be very significant in Your Honour's

consideration of whether or not the stay ought to

be lifted.

HIS HONOUR: That I am not sure that I appreciate, Mr Nolan.

I understand the considerations to which the

Commission refers are considerations that might

well be argued against the appeal or application

for leave to appeal, but having regard to the

foundation upon which the stay was granted it does

not seem to me at the moment that it really takes

the matter one way or the other.

MR NOLAN:  Could I just refer to one authority, if I might,

which might shed some light on that. I am fully

aware of the point Your Honour makes and understand

it. Can I just refer to the decision of His Honour

Justice McHugh in the proceedings before him

recently in Hobart and that has been referred to

already in a different context, I think, and it is

at 112 ALR 177.

HIS HONOUR:  We were not alerted to the need to have it in

Court, Mr Nolan. Is there some particular passage

you want to read?

Hoyts(6) 16 20/5/93

MR NOLAN: Yes, I do. Perhaps I could just read very

briefly the passage that I seek to draw to

Your Honour's attention, then I can hand up my copy

which has got the passage highlighted. His Honour

says, at page 187, and this is in a discussion

. concerning an application for the stay of an award· that had been made by the Federal Commission, and I have to observe that there was no argument of the

kind that has gone on here about whether or not the

award could be impugned - - -

HIS HONOUR: Well, the foundation of the attack was

constitutional, was it not?

MR NOLAN:	Indeed.
HIS HONOUR:	So that O'Toole v Charles David would not stand

in the way on any view of that case.

MR NOLAN: That is certainly correct, Your Honour, and that

explains why the matter was not raised in this

context.

HIS HONOUR:  But it might also explain why a stay was not

granted, if indeed that was the position, because the prosecutor could not point to any irreparable

loss while the matter was proceeding to an appeal

because if the award is attacked on constitutional

grounds, then clearly that challenge cannot be

affected by the corning into operation of the award.

MR NOLAN:  That is certainly true. I appreciate that point

fully, but all I seek to demonstrate here is that

even on a stay of proceedings, as against a stay of

an award, His Honour makes some general

observations that do not appear to be confined to

purely constitutional matters, if you like, and

what he says is this, at the bottom of page 187:

Moreover, the applicants have failed to

make a case for a stay of the proceedings

generally. First, the applicants have not

made any application to the Commission for a

general stay of those proceedings.
Ordinarily, a party seeking a stay of

proceedings in the Commission should seek a

stay from and exhaust its rights in that

tribunal before approaching this court for a

stay of proceedings.

HIS HONOUR: Are you suggesting that that is a relevant

argument in the present case? I mean, it does not

look as if the prosecutors would have got very far

before the Commission.

MR NOLAN: Well, they have essentially done that in their

appeals that have led to the decision yesterday by

Hoyts(6) 17 20/5/93

the Commission, I would suggest, and that is the

argument that I make, that the decision yesterday

really amounted to a decision of the kind that

would respond to an application couched as an

application for a stay, because for all practical purposes the same kind of application was made to the Commission.

HIS HONOUR:  I took Justice McHugh to be saying, "Well,

before this Court should be called upon to consider

the granting of a stay, the parties should exhaust

their rights elsewhere", in this case before the

Commission. That has really been done, has it not?

MR NOLAN: That is right, but he goes on to say this - and

this is my point, that after talking about the

parties' obligations to make that approach he then goes on, over at the top of page 188, to say this:

The principle expressed in the Burgundy

Royale case is equally applicable to an application for a stay of proceedings in the

Commission. Indeed, the case for requiring an

application for a stay to be first made to the

Commission in industrial arbitration

proceedings is stronger than the case for

making an application to the Full Court or

Court of Appeal of a State for a stay of

proceedings in a civil case.	As Brennan J
pointed out in Re Griffin:

The speedy resolution of the legal

aspects of industrial disputes is a desirable,

if not essential, element of an effective

conciliation and arbitration system.

Ordinarily,. the Commission will have a

far greater knowledge of the facts and

circumstances affecting the dispute than a

justice of this court can hope to gain in an

application for a stay of proceedings pursuant

to the inherent jurisdiction or O 55, r 10 of

the High Court Rules. Further, if the

application is refused by the Commission
before this court is asked to grant a stay,
the court will have the benefit of the

Commission's reasons for refusing the stay.

HIS HONOUR:	Are you suggesting that in relation to the decision handed down on 19 May, the employers
should go first to the Commission in relation to a possible stay of that decision?
MR NOLAN:	I am not really because - - -
HIS HONOUR:	That would be a bit unreal, would it not?

Hoyts(6)	18	20/5/93
MR NOLAN:	Yes.	For practical purposes it would be

meaningless while the stay was on. So we would not

suggest that they ought to be required to do that.

What we do say is that in Your Honour's

consideration of whether or not the present stay

that has been applied ought to continue, the

decision of 19 May 1993 will be an important new

factor that Your Honour will have to assess in

Your Honour's decision as to whether or not the

stay ought to continue.

Our submission really is this, that the

Commission has, for all practical purposes, been

asked to in a sense revisit its decision and do

what, if the proceedings were couched in a

different way, would amount to a stay of the

decision that was already made to bring down the

award. The Commission has declined to do that and

declined to do that for reasons that are, we would

submit, cogent and have paid due regard to the

extraordinarily complicated history of this matter

and the industrial situation as the Commission is

equipped to assess that and qualified to assess

that in the way adverted to by His Honour

Justice McHugh in the ANF case.

HIS HONOUR:  I see the force of that, and it might be very

persuasive if it were not for the foundation upon

which the stay was granted.	We keep coming back to
that.	I think inevitably that - - -

MR NOLAN:  I fear that is the - we are between a rock and a

hard place on that.

HIS HONOUR:	I think you are.
MR NOLAN:	The difficulty we have of course is that we say

that the issue in a sense is a phantom because the

arguable case fell to the ground. So far as it is

said that there is something that can be protected
by section 150, in a very important sense it really

assumes the qualities of an illusion because - - -

HIS HONOUR:  It may or may not, but the fact is that there

is an appeal on foot and the stay is granted for

one reason only, and that is to preserve the

viability of the appeal. Whether the appeal has

merit or not is a matter not for me but for the

Full Court. So it does seem to me that while that

is the foundation of the stay, none of these

considerations really go to disturbing that

foundation.

In the absence of the sort of undertaking that

has been given, it might be that the Court would

take the view that, notwithstanding the prejudice

to the appellant, if they are not prepared to give

Hoyts(6) 19 20/5/93

undertakings which could reasonably be asked of

them, then they may have to pay the price. But

given the undertakings, it seems to me that that

cuts that ground from under your feet, as it were,

and we are back to the possible non-viability of

the appeal unless the stay is continued.

MR NOLAN:  Yes, I appreciate the position that we stand in,

which I think is ordinarily described as between a

rock and a hard place, on that issue. I have

already said quite a deal on our view of O'Toole v

Charles David.

HIS HONOUR:  I do not really see any purpose to be served by

going over that ground again.

MR NOLAN:  Yes. Could I perhaps just refer to one authority

on the Court being able to stay an award that is

made in circumstances where there was arguably a

non-constitutional ground raised? I do not seek to

canvass Your Honour's decision, but there was one

authority -

HIS HONOUR:	Why are you offering it to me?
MR NOLAN:	It is just that there was a question raised by

Your Honour on the last occasion at the very end of the argument about the distinction between an award or an order having been made as against a stay of

proceedings, and that was perhaps an issue that was

not really fully explored.

HIS HONOUR:  Except that here it is clear that we are

talking about an award, are we not?

MR NOLAN:	Yes.
HIS HONOUR:	And we are talking about the operation of

section 150 about which there is no argument in the

sense that there is no argument as to its

application to what has taken place here. There is

an argument as to what the effect of section 150

is.

MR NOLAN:	At the end of the day.
HIS HONOUR:	I mean, if you had some authority that

suggested that section 150 simply did not apply in

this situation, then I would be minded to hear from

you. But if it really goes back to an argument as

to the operation of section 150, that is a matter
that I have dealt with and I do not think it is

profitable to attempt to deal with it again.

MR NOLAN: Yes, I appreciate that, Your Honour. There is

just one matter. I referred to this in passing to

give Your Honour a citation, simply because it

Hoyts(6) 20 20/5/93

raised this issue of the award as against the

proceedings. Perhaps I can hand up a copy of the

authority and very briefly mention - - -

HIS HONOUR:  What is the case, Mr Nolan?

MR NOLAN: This is one of the many Builders' Labourers

cases. It is Federated Iron Workers Association;

Ex parte Builders' Labourers, (1981) 55 ALJR 395.
It is a decision in stay proceedings by His Honour

Justice Mason, and I will hand up what is only a

short decision. These were orders made by the

Commission that dealt with a demarcation dispute

between the FIA and the builders' labourers, and

there were certain criteria referred to.

HIS HONOUR:	I think it really is taking me back into the area of debate that we were involved in last time,
Mr Nolan.
MR NOLAN:	I fear it might, but that is an authority, in any

event, we would submit Your Honour ought to have. clause in one of those earlier stay cases, the

decision by Justice Brennan in Re Merriman and

Others, 53 ALR 440. That appears to be the only

stay case that I have found where the privative

clause was mentioned. Might I hand that up.

HIS HONOUR:  Any cases that were before O'Toole v

Charles David may not have assumed - in those

cases, the point may not have assumed the

importance which it has assumed since.

MR NOLAN:  That may be so. Of course, Justice Brennan

observes there that if the Commissioner's opinion

which was necessary to form his dispute finding was

wrong, section 60 would not have had anything to

say. But it was not articulated there, of course,

that there was this difference that has been

identified in the discussion we have had about

O'Toole v Charles David.	So we are not to say that
it fell into one basket or the other.

HIS HONOUR:  That is the problem with some of the earlier

decisions. It is not clear to what extent the

point was, in fact, argued that was argued before

me.

MR NOLAN:	Yes, I have found, in fact, one other authority that perhaps sharpens the point in a much more
satisfactory way.  I could give Your Honour that
authority if Your Honour wanted it, but it does
tend to trespass back into the debate we had before
except it is - - -

Hoyts(6) 21 20/5/93

HIS HONOUR:  If you are offering it to me for my own

education I am prepared to take it.

MR NOLAN:  I have certainly got an education as a result of

this matter. It is a decision of this Court in R v

Murray and Others; Ex parte Proctor and Others,

(1948) 77 CLR 387, and in particular it is

valuable, we would say, because it contains a

couple of passages: one in the judgment of

Chief Justice Latham that reproduces a joint

judgment of the Chief Justice and Justice Dixon as

he then was in an earlier case that crystallizes

the principle, if you like, and that extract is at

page 395. But more significantly, we would say, in

the separate judgment of Justice Dixon at page 399

at about point 6 on the page - - -

HIS HONOUR:  I only want you to give me the reference,

Mr Nolan, otherwise we are simply back where we

started from earlier.

MR NOLAN:	Yes, may it please Your Honour, those are our submissions arising from the decision of the
Commission which we say injects this new and
important ingredient into the matters and would, we would say, persuade Your Honour to alter the decision on the stay.

HIS HONOUR:  Yes, thank you. Mr Merkel, I think again with

a view to refining the argument, it is clear from

my discussion with Mr Nolan that I take the view

that the basis on which the stay was granted was

the possible irreparable loss of the right to

appeal and that, be it right or wrong, is the

foundation of the stay.

MR MERKEL:	Yes, Your Honour.
HIS HONOUR:	In the light of that, and in the light of the

undertakings that have been given, I am minded to

continue the stay.

MR MERKEL:  Yes, well, Your Honour, we do not really have

anything to add.

HIS HONOUR:  What do you say about the decision of 19 May -

not so far as it bears upon the further application

for prerogative relief but so far as Mr Nolan

relies upon it in relation to a lifting of the

stay?

MR MERKEL:  Your Honour, there was nothing in that decision

that we would say creates a new circumstance that
should militate against continuation of the stay

or, to put it the other way, that would result in

the lifting of the stay. All that has happened,

Your Honour, is that the Commission has made it

Hoyts(6) 22 20/5/93

clear it proposes to make the award but it has not

put any new ground or any new matter that would

change the situation from that as it was before

Your Honour. My learned friend has raised a number

of matters of potential prejudice, which have been

dealt with, and we would say that, given those

circumstances, the decision really indicates the

award will be made and any variation in

circumstance that was a matter that Your Honour

possibly contemplated is now removed. So we say

that that only reaffirms the threat that was the

basis of our application for a stay.

HIS HONOUR:  Yes. Mr Nolan, do you wish to reply to

anything that Mr Merkel said?

MR NOLAN:	I do not think it is necessary, Your Honour.
HIS HONOUR:	I think it is apparent from the discussion that

has taken place with counsel that, having regard to

the basis upon which the stay was granted earlier,

no sufficient reason has been offered why that stay

should now be removed, particularly having regard

to the undertakings already given and the further

and wider undertaking given by the prosecutors.	In
those circumstances, I do not think it is necessary, bearing in mind that this comes before
me under a liberty to apply provision, that I
formally dismiss the application, but rather that an order ought to be made. Subject to anything that counsel may say, it should be a fresh order

dating from today, in the terms of the earlier

order but incorporating the additional undertaking

that has been given.

Did you want to say anything about an order

framed in those terms, Mr Nolan?

MR NOLAN:	There would not seem, on the face of it, to be any - - -
HIS HONOUR:	My reason for suggesting that it be made as

from today is simply so that there is an order in

force which incorporates the three undertakings

that have been given.

MR NOLAN: Well, I think Mr Merkel has already dealt with

the date of effect of the undertakings, namely that they be effective as of last Friday, so we need not

be concerned with that. I do not want to distract

things but there was one matter that was unable to

be resolved following Your Honour's decision last

week, and that was the form of the order in one of

the matters, and that is something that we would

still seek to have some discussions about or,

perhaps, if necessary make submissions about, but I

Hoyts(6) 23 20/5/93

do not know that we need all of a sudden be

distracted by that.

HIS HONOUR:  Let us come to that in a moment. So far as the

suggestion that there be an order which

incorporates the three undertakings, do you see any

problem with that?

MR NOLAN:	No.
HIS HONOUR:	Your concern is that it be clear that the

undertakings - or the two that have already been
given - operate from the day on which the earlier

order was made.

MR NOLAN:  Yes, and I understood today's undertaking was

intended to operate from that day as well.

HIS HONOUR:  I do not know whether that represents a problem

for the making of a fresh order. It may be just a

matter of language, and I can leave that to you and

Mr Merkel. If there is a problem, you could perhaps come back to me after lunch.

MR NOLAN:	Yes.
HIS HONOUR:	Do you see any difficulty, Mr Merkel?

MR MERKEL:  No, Your Honour. What I had in mind, unless it

is different to what Your Honour had in mind, is

that a fresh order be taken out as at today which

would incorporate all three undertakings, and it
would be upon those undertakings that Your Honour

would refuse the application for a removal of the

stay, because there is nothing really before

Your Honour to continue the stay; it would operate

of its own force. But it seems a matter of form,

Your Honour. It just seemed that refusal to remove

the stay seemed a more appropriate order, given
that the stay continued under last week's order

until the hearing of the application.

HIS HONOUR: Yes, that may well be right too, Mr Merkel.
MR MERKEL:	But I have no difficulty with the order

incorporating all three undertakings, Your Honour.

HIS HONOUR:  I will leave it to you and Mr Nolan to sort it

out. It ought to be done while you are both here in Canberra and if there is a problem, I can come back into Court after lunch and deal with it.

Hoyts(6) 24 20/5/93

MR MERKEL:	Yes, Your Honour.
HIS HONOUR:	Thank you for that.

AT 12.21 PM THE MATTER WAS ADJOURNED

UNTIL LATER THE SAME DAY

UPON RESUMING AT 2.17 PM:

HIS HONOUR:  Yes, Mr Merkel.

MR MERKEL:  Your Honour, thank you for the indulgence. We

have had - - -

HIS HONOUR:  We have lost Mr Nolan, somewhere along the

trail, have we?

MR MERKEL:  I think so, Your Honour, but I have reached

agreement with him on the appropriate form of order

on the matter from this morning. Unfortunately we

have not had it typed out, but he agreed that the

three undertakings being given to the Court, the
appropriate order would be that the application by

the second respondents that the stay granted herein

on 13 May be removed be refused by Your Honour.

Looking at the form of order that was made on

13 May, Your Honour, what we were proposing to

suggest as the appropriate order would be that upon

the applicant companies having given the

undertakings set out in the order of 13 May, and

upon the companies this day giving the further

undertaking in the written form handed up to

Your Honour, Your Honour make the order that the

application by the second respondents that the stay

granted on 13 May 1993 be removed, be refused.

HIS HONOUR:	Yes, well, that seems appropriate, Mr Merkel.
MR MERKEL:	Thank you, Your Honour.
HIS HONOUR:	I take it you have not got that in handwritten

form at the moment, or a spare copy of it?

MR MERKEL:  I will get it handwritten, Your Honour, and hand

it up.

HIS HONOUR: Well, do not worry about it now, but when will

the order be drawn up?

Hoyts(6) 25 20/5/93

MR MERKEL:  We can get it drawn during the afternoon,

Your Honour.	We can get it faxed from Melbourne to
Your Honour.	But that is a fairly short order. We

probably can attend to that - - -

HIS HONOUR: Well, it does not really matter, but it might

be helpful to have a photocopy of the handwritten

document, if you propose to leave Canberra, so

there is something available here.

MR MERKEL:  We will do that now, Your Honour.

AT 2.19 PM THE MATTER WAS ADJOURNED

UNTIL LATER THE SAME DAY

UPON RESUMING AT 2.29 PM:

HIS HONOUR:  If I have not made it clear, in relation to the

stay, there will be an order in the terms suggested

by Mr Merkel, and I take it that the.re will need to

be an order in like terms for each of the six

files.

MR MERKEL:  Yes, Your Honour. We have handwritten what I

read to Your Honour out. That is being photocopied

at the moment, and if we can hand that up to

Your Honour's associate as soon as it is back. It

should be in a moment, Your Honour. There is no

need for Your Honour to -

HIS HONOUR: There is nothing else that I need do?

MR MERKEL:  No, Your Honour.

HIS HONOUR:  In that case, thank you. The Court will

adjourn.

AT 2.30 PM THE MATTER WAS ADJOURNED SINE DIE

Hoyts(6) 26 20/5/93