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

[1993] HCATrans 116

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M41 of 1993

B e t w e e n -

THE HOYTS CORPORATION PTY

LIMITED, DELARENE PTY LTD, AND

RAMPTON PTY LTD

First Applicants

DEAN ARNELL 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

Hoyts(S) 1 13/5/93

First Respondents

MEDIA, ENTERTAINMENT AND ARTS ALLIANCE and THEATRE MANAGERS ASSOCIATION

Second Respondents

Office of the Registry

Melbourne No M42 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

ROADSHOW CORPORATION LTD,

STREET, PTY LTD, VILLAGE

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

Third Respondents

Hoyts(S)	13/5/93
Office of the Registry

Melbourne No M43 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 for an extension

of stay

TOOHEY J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 13 MAY 1993, AT 4.12 PM

Copyright in the High Court of Australia

Hoyts(S)	13/5/93
HIS HONOUR:	Mr Merkel, just before I take your appearance,

I should note that there is a certificate from the

Deputy Registrar to say that:

I have been informed by Holding Redlich,

solicitors for the third respondents, the

Greater Union Organizations Pty Ltd and
others, that they do not intend to appear on

the hearing of the application for an

extension of the stay -

in what is referred to as "the abovenamed matter,

No M42 of 1993". Mr Merkel.

MR R. MERKEL, OC: If Your Honour pleases, I appear with my

learned friend, MR L. KAUFMAN, for the three

employers - that is, the Hoyts Corporation Pty Limited, Delarene Pty Ltd and Rampton Pty Ltd.

(instructed by Mark G. Caldwell)

HIS HONOUR:	And in each of the three matters?
MR MERKEL:	Yes, Your Honour.

MR J.E. MURDOCH: If Your Honour pleases, I appear for the

second applicants, Dean Arnell and James Georges.

(instructed by Sciacca & Associates)

HIS HONOUR:  And that is in only one of the matters,

Mr Murdoch, is it? Can you tell me the number?

MR MURDOCH: It is M41.

MR J.W. NOLAN:  May it please the Court, I appear for the

second respondents in all the matters.	(instructed
by K. Nornchong and Scarfone & Co)

HIS HONOUR:  Yes, Mr Merkel.

MR MERKEL:  Your Honour, can I just apologize for the matter

corning on at this time.	As Your Honour is
aware - - -

HIS HONOUR: 

I cannot blame you entirely, can I?

MR MERKEL: 

Your Honour, can I just say that before bringing

the matter on before the Court we have had to
prepare material in the light of Your Honour's

reasons and had to file fresh proposed amended

notices of appeal and an affidavit in support of
the applications for leave and for an extension of

the stay, and that material was only finally ready

and able to be filed late last night, when copies

were sent to my learned friend and we have brought

the matter on at the earliest occasion. I am sorry

it has come on at this time, Your Honour.

Hoyts(S) 

13/5/93

Your Honour, we do seek an extension of the

stay granted last Friday by Your Honour, until the
hearing and determination of the applications for

leave to appeal or the appeal, or until further

order. Can I indicate - has Your Honour seen the

affidavit material that has been filed that has, in

effect, brought matters up to date?

HIS HONOUR:  Yes, I have. I cannot say I have digested the

exhibits, particularly, because it was not entirely

clear to me how much of those would prove in the

end to be relevant.

MR MERKEL:  I think Your Honour is correct. Most of them

are background as to what is occurring, so that the

Court is fully apprised as to what has happened

since Your Honour granted the stay last Friday.

What has occurred is as follows: that the earliest

date that this Court can deal with the applications

is in the Brisbane sittings commencing on 28 June.

Your Honour will be cognizant of the fact that we

had given undertakings to prosecute the application

and the appeal with expedition and diligence -

HIS HONOUR:  I do not think you need stress that point,

Mr Merkel. There is no reason to think the

appellants or prospective appellants are not

proceeding as quickly as possible.

MR MERKEL:  Yes. The earliest date that the Court was able

to give us was the June sittings in June. We say
that the reason that Your Honour granted the stay

on the last occasion - to preserve, in effect, the
subject-matter of the appeal and not put the
appellants at risk of being, in effect, successful

on the appeal but not having anything to succeed

upon - still applies today. If anything,

discretionary considerations which were not before

Your Honour on the last occasion are before

Your Honour today in respect of the plight of the

employees at the Hoyts Cinemas who my learned

friend Mr Murdoch represents.

I do not wish to, in effect, take up his cudgel, or put his position, but we do say that

there is a fundamental problem for the employers as

well as the employees arising out of, in effect,

the interregnum that is occurring in the Commission

at the moment. In substance what we say,

Your Honour, is that the undertakings which we are

instructed to give for the continuation of the stay

which is set out in the affidavit - and they are

set out at paragraph 11 of Mr Caldwell's

affidavit - - -

HIS HONOUR: There are several of those.

Hoyts(S)	13/5/93
MR MERKEL:	Yes, Your Honour, it is the affidavit of 12 May

in M45 of 1993.

HIS HONOUR:	Yes, I have that, thank you.
MR MERKEL:	What we say, Your Honour, is that the two

undertakings that we are instructed to give on

behalf of the employers will ensure, Your Honour,

that no loss could be suffered, or prejudice arise,

by reason of the stay that Your Honour would grant.

On the other hand, Your Honour, if the award

takes ·effect it is impossible to, in effect, wind

back the clock and undo the harm that could be

caused by that award taking effect and a different

situation prevailing in the work place.

HIS HONOUR:	Do you say is possible or is not possible?
MR MERKEL:	We would say that it is not possible to wind

back the clock and indeed, Justice Dawson in the

State Public Service Federation decision of

His Honour's, which is unreported, when His Honour

granted a stay, true it is not of an award, but in

respect of certification proceedings. which would

have made an award or a certified agreement

imperative, said that the confusion and

uncertainty, in the event that that may ultimately

be set aside, creates in effect the very problem

that the Court should avoid.

Now His Honour was concerned with a

discretionary consideration, not the question of,

in effect, the appeal being nugatory and we say

there are three strong factors for the stay being

continued: the first is, that because the complaint

essentially relates to statutory duties or

statutory grounds rather than constitutional

grounds, if the awards are made, section 150 would

give them immunity from challenge in our

proceedings and therefore we would have a high

likelihood and a high risk of having the success,
if any, rendered nugatory.	And we say that has

always been a compelling reason for the courts to

ensure that the status quo is preserved when an

appeal or a right to appeal, if leave be granted,

would be rendered nugatory; the second reason,

Your Honour, is that given the circumstances set

out in the affidavit material which Your Honour has
before you of the employees, the state of

uncertainty and dislocation of a large number of

people is such to compel, on the discretionary

ground alone, that there be a stay.

Now again, I do not want to traverse my

learned friend Mr Murdoch's submissions, but

Your Honour will see that the Unions have not

Hoyts(5) 6 13/5/93

consulted with employees and it is not easy to see

in whose interests they are acting in respect of

this matter.

There is certainly no evidence, Your Honour,

that failure to make an award in the Hoyts Cinemas
could cause disruption or problems for Union
members either in Hoyts, or indeed, in the industry

generally, because the Union has been fighting very

fiercely to try and say this is a confined matter

between it and Hoyts. So that, we have on the one

hand a serious risk of prejudice to a large number

of employees, and to the disruption within Hoyts,

and on the other hand, it is hard to discern what

interest the Union would say is threatened or

harmed by the awards not being made, but having

operative effect from 1 May if they are able to be

validly made and the employees, including such

members as may exist, are being fully protected by

our undertakings.

HIS HONOUR:  Mr Merkel, I take it nothing has happened to

alter, from the Commission's point of view, its

intention that the award come into operation on

1 May unless otherwise stayed?

MR MERKEL:  Your Honour, events have occurred in the

Commission which I will take Your Honour to.

HIS HONOUR:  I ask you that because of this reference to

programming in some of the material.

MR MERKEL:  I was going to take Your Honour to that, but I

effect, allow applications to be made by the

think the reality is that at the moment the

employees or the employer, and if it allows those

applications to be made, and it indicates it would

not make the award pending the hearing of those

applications, then the risk that I have raised

would not occur.

But, at the moment, Your Honour, the situation

with the Commission, as it required submissions to

be put in by all parties on what it should do,

including the making of the award or hearing of

applications of the kind that have been

notified - - -

HIS HONOUR:  When you say, you mean the making of the award

literally, or the date at which the award should

come into operation? You mean something more

fundamental than that, do you?

MR MERKEL:  Yes. The Commission is considering whether it

will, in effect, reconsider its decision not to

hear the employees and the employer and it is

Hoyts(S) 13/5/93

possible the Commission may itself programme the
matter for further hearing, in which event the

matter, we would say, could be properly brought

back before this Court as a new circumstance that

may appropriately result in the lifting of the

stay. But until that has occurred the risk that we

had before Your Honour has not changed, and that is

that if the Commission hands down a decision not to

hear the employees or the employers further, then

it would logically and, indeed, necessarily make

the award there and then, because the award has

been settled and it is only a matter of signing it.

So we would say that nothing has been said as

far as I am aware at the Commission that would

suggest that risk has been removed. It is just

there is a possibility that the Commission may take

a different approach and if it does we say then it

is appropriate to come back to this Court, and

either party could do so, for a lifting of the stay

if it were appropriate, but in the meantime the

protection that we seek, that circumstance, has not

changed.

Now, I have not been privy to the proceedings

in the Commission and I am not fully aware of all

the transcript. I believe what I say is an

accurate summary, but I could certainly be
corrected by my learned friends who, I think, were

in the Commission when the proceedings occurred

there and I say what I have said to Your Honour

subject to that possibility.

So that, Your Honour, the third factor that we

rely upon is that the reason, in effect, why the

matter has not been able to be brought on in the

immediate time available, that is within the

14 days, is not a matter lying at the fault or

arising because of any problem created by the

applicants.	We say it is a question for the Court
and of course the Court is not able to suddenly

allocate time. But we say that it is relevant to

the discretion that the stay Your Honour granted

was not able to result in, in effect, the matters

being brought before the Court because of the

Court's inability to deal with the matter, and we

of course say that that is obviously

understandable, but we would submit that unless

there is a compelling reason why irreparable harm

could be done the other way, that is a factor

relevant to Your Honour's discretion for

continuation of the stay.

So we would submit that the reasons that led

Your Honour to grant the stay even for 14 days

still prevail and we say that the stay on the same

ground should be continued.

Hoyts(S)	13/5/93
HIS HONOUR:	The stay you are seeking, Mr Merkel, is not by

reference to any finite date, but by reference to
the disposition of the appeals or applications for

leave to appeal or until further order?

MR MERKEL:  Yes, Your Honour, because, in effect, having

been given the date that the matter will be able to

come on in the sittings in Brisbane, starting on

28 June, there is a finite date which, subject to

our undertakings - and of course, the matter would

be brought back if, for any reason, our

undertakings were not adhered to - we say that is

the appropriate way to deal with the matter,

bearing the mind that the circumstances that could

change, either in the field if events were to arise

in the workplace that justified the lifting of the

stay, or in the Commission. Either party is at

liberty, on fairly short notice, to seek to have

the stay removed and, we say, that would protect

the situation of all parties if events arise which

make the stay inappropriate. So, it is on those

grounds we would seek a continuation of the stay,

Your Honour.

HIS HONOUR:	Mr Murdoch.
MR MURDOCH:	Your Honour, I do not disagree with anything

that has been put by my learned friend, Mr Merkel.
Could I assist the Court by saying that what the

Industrial Relations Commission did was, following the request last Thursday by myself for the

employees, and Mr Douglas, QC, for the employers,

that the matter be listed before them that day to

hear the parties on an application to have the

Commission stay the award. The Commission said

that they would make some directions. Written

directions were issued. They required the parties,

the company and the employees, to make written

submissions by close of business yesterday.

HIS HONOUR: Could I just interrupt you, Mr Murdoch. Do

upon the three matters that are before the Court? these submissions, or rather, the directions bear

MR MURDOCH:  Only in the sense that they explain to

Your Honour why there is a need for the Court to

take action today, ie, before tomorrow.

HIS HONOUR:  I may not have made myself very clear. Do the

directions relate only to the position of certain

employees, what I might call a third of the files,

or do they relate to the other files as well and

the matters that are involved in those files?

MR MURDOCH:	The other matters as well, yes, Your Honour.
Hoyts(S)	13/5/93
MR NOLAN:	Your Honour, if I may interrupt - I do not understand Mr Murdoch to have any leave to
intervene in those other matters, or to propose
that he be given leave to intervene, and I might just indicate that we would object to leave to
intervene being granted to him in the other matters.

HIS HONOUR:  Just a moment, Mr Nolan. I simply directed a

question to Mr Murdoch for information, and I am

interested in his answer. If the answer is thought

to be inaccurate or incomplete, you can tell me

that in due course.

MR NOLAN:	May it please Your Honour.
MR MURDOCH:	Your Honour, simply to inform the Court, the

position was the Commission gave the directions the

submissions had to be in by close of business

yesterday. The submissions relate to the parties

putting a position on whether the Commission should

entertain an application to consider why the

Commission should stay the award; and secondly,

why the Commission should exercise its discretion

in that regard. So the Commission, under their

direction, have not yet said that they will

reconsider the matter. They are at the stage of
considering submissions as to whether they will

reconsider it.

HIS HONOUR:  Do you have any idea when the Commission

proposes to announce its decision in that regard?

MR MURDOCH:  No, but it would be unlikely to be in the next

24 hours because the parties - the employees have

asked that the Commission hear them.

HIS HONOUR:  I see. Following that up, has the Commission

indicated that it will hear from the employees?

MR MURDOCH: There has been no indication that I have been

informed of since the submissions were filed

yesterday.

HIS HONOUR:	So what was your role in the recent hearing before the Commission?
MR MURDOCH:	I attended and asked the Commission to hear me

for the employees on why the Commission's award

should not come into effect tomorrow. The

Commission said they would not hear - - -

HIS HONOUR:  I am sorry, why tomorrow?

MR MURDOCH: That is when the stay expires.

HIS HONOUR:  You mean if the stay were not extended?

Hoyts(S) 10 13/5/93

MR MURDOCH:  Yes. The Commission said they could not hear

me because the matter was not	listed; I asked them
to list the matter; they said	they would not.
However, following that they

HIS HONOUR:	Would not then or -
MR MURDOCH:	Would not, and they were intending to issue

some directions, which they did later that day.

HIS HONOUR:  Are those directions wide enough to catch up

the employees whom you represent?

MR MURDOCH:	Yes.
HIS HONOUR:	In the sense that they permit those employees

to make submissions as to the future conduct of the

Commission?

MR MURDOCH:  In the sense that they can make submissions

that the Commission should hear an application.

The Commission have not said they will hear - - -

HIS HONOUR:  No, I appreciate that. I just want to

understand the scope of what is presently before

the Commission which, at least as you explain it,

and subject to what else may be said, would seem to

touch all of the matters that were before me on the

application for orders nisi.

MR MURDOCH:	Yes.
HIS HONOUR:	Thank you.
MR MURDOCH:	The submission of the employees, may I tender

that?

HIS HONOUR: These are the submissions made to the

Commission, are they?

MR MURDOCH: Filed yesterday, yes.
HIS HONOUR:	What use do you think I should make of those,

Mr Murdoch?

MR MURDOCH:  The use I ask you to make of those is that part

of the submission is a section at the end on which
there are 445 signatures of employees, indicating

that they support the submission as to why the

Commission should hear the employees on why the

award should not commence to operate. The

relevance of that is that if Your Honour has to

consider convenience in relation to why there

should be a further stay, this is a situation where

the employer wants the stay and it is clear from

the signatures of the employees that at least 445

Hoyts(5) 11 13/5/93

of them have signed to say they support a case to

the Commission to stay the award.

HIS HONOUR:  Yes. I do not know that I need the document,

do I, and if that is the only use you wish to make

of it, I am content to have your statement from the

bar table to that effect?

MR MURDOCH: It adds nothing to the affidavits. Yes, thank

you. Your Honour, I do rely on the affidavit of

Dean Anthony Arnell, which has been filed.

MR NOLAN:  Your Honour, might I just indicate that I was

handed this affidavit at 2.35 this afternoon, which

was, of course, some while after this matter was

initially proposed to have commenced, and really,

we object to the whole of this. We are put in, I

would submit, an intolerable position, in that an

affidavit that deposes to matters that we cannot

possibly make any checks about, is handed to us

this afternoon, and then sought to be relied on in

proceedings. It is really, in our submission,

unconscionable that that occur.

HIS HONOUR: Let us just have a look at it, Mr Nolan. In

which of the files is that affidavit to be found?

MR MURDOCH: In M41.

HIS HONOUR. Yes. Now, without going to the detail of it,

in what way do you rely upon this affidavit?

MR MURDOCH:  Your Honour, it recites the immediate interest

of the employees in relation to their fear that the

award will rob them of their livelihood. It

explains that the employees are casuals, that the

award has a bias against employees 18 years of age

and over, and that that component, plus the

introduction of a Sunday penalty rate, will lead to

certain categories of existing employees becoming

commercially unemployable.

HIS HONOUR:	To what extent is that matter answered by the undertaking which the employers are prepared to
give?

MR MURDOCH: With respect to the employer's undertaking, in

our view the undertaking only goes to employees

being paid. The vice that the employees complain

about is the vice that the award will make them

unemployable, and because they are casuals, as

Mr Arnell explains, it is a matter as to whether

the employer picks them up on particular days after

they have turned 18. It is an issue as to whether

the bias in the award in favour of very young

employees - 15 and 16 year olds - will disadvantage

people such as Mr Arnell.

Hoyts(5) 12 13/5/93

The award previously did not have adult rates

at 18 and did not have a Sunday penalty. That,

briefly, Your Honour is why there is a concern

about their livelihood. It is an unusual case

because usually employees are seeking to maximize the award rates. Here they are frightened of the

level of the award rates and the structure of them

because of the fact that they are casuals and if

commercially certain age groups are too dear their fear is they will not be hired. That is explained

in the Arnell affidavit.

HIS HONOUR:  So the problem is one, at least as you explain

it, of the employees in one sense standing to
benefit from the award in that they become entitled

to rates higher than those which they are presently

receiving but that very factor, you say, may

operate against their continued employment?

MR MURDOCH:  Yes, particularly because they are casuals with

no tenure. The hiring is on an ad hoc type basis

and if they are too dear it will, in their belief,

jeopardize their employment.

HIS HONOUR:  I will not go into the detail of the affidavit,

Mr Murdoch, at least at this stage, but the

proposition I understand and I will see what

Mr Nolan has to say about that.

MR MURDOCH:  That is the heart of it. I apprehend the part

that Mr Nolan objects to is the latter part of the

affidavit in which Mr Arnell says that he had a

particular conversation with a Union official.

HIS HONOUR:  I think that has taken me a bit beyond the

scope of today's application and unless you want to

press for anything further than you have already

told me - - -

MR MURDOCH:  No, Your Honour.

HIS HONOUR:  - - - I am content with what you have said.

MR MURDOCH:	Thank you.
HIS HONOUR:	Yes.  Now, Mr Nolan.
MR NOLAN:	May it please the Court, we understand our primary role, I must say, as addressing what would
otherwise have been on a lifting of the stay
tomorrow, thanks to Your Honour's order on 30
April. And of course, Your Honour's order was
made, and made as I recall by reference to the
transcript, specifically in relation to this point that was raised that the fruits of the appeal, in a
sense, would be lost because of what was said to be

Hoyts 13 13/5/93

something that flowed from the decision of the

Full court in O'Toole v Charles David.

Our contention is much as we put it to

Your Honour on the day, without the benefit of that issue being one that we were aware of, but now with the benefit of having read the decision and related materials and other decisions of the Court on the

same point, there is really nothing in that

proposition.

If I may I will come to that in a moment, but

can I say first of all in relation to these

statements that have been made from the bar table,
the situation as it has been portrayed to

Your Honour is not one that is accepted by my clients for one single solitary moment, and I

regret to say that the position that I adverted to

as being a likely outcome of Your Honour's earlier

stay appears to have borne fruit in that the

company, it appears to my clients, has gone around

and portrayed the award in a particular way, and to

use the colloquialism, perhaps "put the wind up" a

number of employees and so panicked them into a

situation where some of them have taken the action

that has been described by Mr Murdoch.

We would submit that Your Honour is not in a

position in proceedings like this to make any sort

of assessment of that situation, as it were, on the

ground, and Your Honour is equally able to draw the

inference that there are yet many hundreds of

employees who have not subscribed to a petition,

leaving aside for a moment the status of that

petition which we would, of course, have a lot to
say about in other circumstances, who may be taken

by inference to welcome the award and await eagerly

its implementation in the terms intended by the

Commission.

Of course, the Commission is the expert

tribunal charged with the award-making function and

has made its award, not as we said on the last
occasion in a peremptory or careless or casual way,

but with the benefit of something like 5000 pages of transcript where all of these issues about the impact of a possible decision on casuals and so on

could have been explored to the nth degree and with

the benefit of full submissions by all those who

sought to put submissions. So the status quo, if

you like, the starting point for this whole contest

at this level, is the fact that the Commission has

come down with a considered arbitration of the

final award, having made an interim award by

consent last July, which finalizes those matters

that remain between the parties and it cannot be

said, or it is no proposition that we would say

Hoyts(5) 14 13/5/93

finds any relief in this Court, that just because

one side or the other is not happy with the
outcome, that they can come along and in effect

have this Court second-guess what the Commission

has done after long and painful consideration of

the competing issues.

So nothing that has been said this afternoon,

we would submit, raises any issue of any legal

significance that moves one iota the conclusions

that Your Honour, we would say very properly,

reached, on the last occasion, when Your Honour

refused the application for orders nisi on the

grounds that there was simply no arguable case put

up by the prosecutors and appellants that the

Commission had acted any way at all outside its

jurisdiction.

In relation to the O'Toole v Charles David

point, can I hand up to Your Honour a brief outline

of argument.

If I may, just very briefly, go through the points that are made. We would say, first of all,

that, of course, the proposition before Your Honour

today is not one that obliges my clients to make

out a case, as it were, but rather that what

Mr Merkel has put has really stood the ordinary approach taken by this Court on its head.

The ordinary approach is one that we refer to

in paragraph l(a) of the outline where, we would

submit, there can be no doubt at all that this

Court has adopted a very firm policy of refusing to

stay any award, order, or decision of, or

proceedings in the Industrial Relations Commission,

except where special circumstances are said to

exist.

In that connection I do not need, I think, to take Your Honour in detail to the decisions

referred to, but certainly the authorities for that

proposition that pre-dated 1988 are drawn together

in His Honour Justice Brennan's decision in Re

Griffin and His Honour there goes to the questions

of the nature of the Commission's function in
settling industrial disputes and matters of concern

to the Commission and to the good and cogent policy

reasons why this Court will refrain from

interfering in the decisions of the Commission.

HIS HONOUR:  Was that a case in which the existence of the

privative provisions of the Act were considered, or

was considered.

MR NOLAN: Certainly not considered in that case. That is

certainly so. But I will get to section 150 in a

Hoyts(5) 15 13/5/93

moment, and I would say that section 150 or its

predecessor was not considered in Griffin or the

other cases dealing with the stays for the very

good reason that it has very little bearing on the

relief that is usually sought in this Court against
the Commission, and I will come to that in due

course, if I may.

The starting principle, if you like, is the

one embodied in Griffin's case and that is that the

Court will not act to stay a decision of the

Commission or an award of the Commission unless

very special circumstances exist.

HIS HONOUR:  Do you have a spare copy of that?

MR NOLAN:  Yes. I put it on the list of authorities that I

supplied to the Court, Your Honour.

HIS HONOUR:	Thank you.
MR NOLAN:	Now, why I selected Griffin - does Your Honour have that?
HIS HONOUR:	Yes, I do.
MR NOLAN:	Can I just say this: why I selected Griffin in particular is that it is usually the authority that
is quoted on this point and also, usefully, it
gathers together the previous decisions of the
Court on this self-same point and there Your Honour
will see in the headnote there are listed a series
of cases where exactly the same decision has been
taken and I do not need to read those to
Your Honour, they are all set out there. And His
Honour Justice Brennan, of course, refers to the
function of the Commission. Over at page 40, I
think, is probably the passage best to pick up
where, at about point 4 on the page, His Honour
talks about:

The speedy resolution of the legal

aspects of industrial dispute is a desirable,

if not essential, element of an effective

conciliation and arbitration system.

And talks about the legal questions being of a

familiar kind. And he goes on to talk about the

very good policy reasons which really persuade this

Court, in most cases, against granting a stay of

proceedings or a stay of an award. And all those

authorities to which I referred earlier are

collected at page 42 of His Honour's judgment.

We would say, just putting that section 150 point aside for the moment, that is the starting

point upon which this Court embarks upon an

Hoyts(5) 16 13/5/93

application for a stay of the Commission's

proceedings, or an award of the Commission.

The same reasoning is evident in His Honour

Justice McHugh's decision in those more recent

cases, and indeed, a further application for a

stay, I understand, was made yesterday to

His Honour Justice McHugh in those Victorian award

cases, and once again the application was rejected.

So, we go on to say that there are no such

special circumstances that are apparent here.	The
parties, of course, were given all reasonable

opportunities to put material to the Commission in

this lengthy case, that led to the Commission's

award, and were aware of the competing contentions

concerning the terms of the final award, and it

needs to be said that the employees for whom

Mr Murdoch now appears, were not heard by the

Commission, did not seek to be heard by the

Commission before the award was made.

The last observation in paragraph 1 derives

from the case decided only a month ago by this

Court, that the Commission really is. the master of

its own procedures and exercises a wide discretion

regarding the manner in which it processes matters

which come before it, and we do not understand the

prosecutors to be complaining now that the

Commission somehow or other has acted otherwise

than in accordance with its statutory duties in

responding to these very recent applications that
have been made, and giving them due consideration.

But, the Commission's response has to be balanced,

of course, against this long running award case,

where it was seized of all the relevant issues, and

issued a reasoned and, we would say, proper

decision.

So really all that is left is this issue of point raised by Your Honour and referred to the O'Toole v Charles David point which was the

specifically on the last occasion. We looked at

that at paragraph 2 of our submissions and we say
that the award really is not rendered immune by

section 150. In 2(b) we say this: that the

challenge to the award is advanced on grounds which

rely upon relief against members of the Commission

under section 75(v) of the Constitution. An award

made by a member of the Commission acting in excess

of jurisdiction or in a manner attracting

section 75(v) is not protected from challenge

because of section 150.

Can I refer first of all to those passages in

O'Toole v Charles David which we say support that

Hoyts(5) 17 13/5/93

proposition. I gave that authority to the Court in

my list authorities.

HIS HONOUR:	I have it, thank you.
MR NOLAN:	Can I direct attention first of all to the decision of His Honour the Chief Justice at
pages 248 to 153 where this particular issue is
discussed.  I will not, of course, read all of
that, but at page 250 at about point 8 on the page
His Honour says this:

The provisions of s 60 do not qualify the

jurisdiction to grant mandamus, prohibition or

an injunction against an officer of the

Commonwealth, though, subject to

considerations affecting constitutional

validity, the section validates awards of the

Commission but only in accordance with the

Hickman principle -

there, of course, referring back to His Honour

Justice Dixon as he then was, in Hickman's case.

We would say that bald statement is sufficient

for us to make our point, but the point is made

again in the judgment of His Honour

Justice Brennan. The consideration of section 60

as it was of the old Conciliation and Arbitration

Act commences at page 269, and can I refer to a

couple of passages. At page 270 at the top of the

page, the first full paragraph, His Honour says

this:

It is accepted thats 60 does not (for the

Parliament cannot) circumscribe the

jurisdiction of this Court conferred bys. 7
75(v) of the Constitution in all matters in
which a writ of mandamus or prohibition or an

injunction is sought against an officer of the

Commonwealth.	By appropriate proceedings
under s 75(v), a person whose interests are

affected by a purported award may attack its

validity directly. If the attack is

successful, the purported award may be

declared invalid. No court other than this

Court and the Federal Court has been invested with jurisdiction under 75(v), and the Federal

Court is prohibited from exercising that

jurisdiction against an officer of the

Commonwealth holding office under the Act or,

nowadays, under the Industrial Relations

Act ..... It follows that no direct attack can

be made on the validity of a purported award

save in this Court. The submissions of the

applicant and the Attorney-General go further,

submitting thats 60 is effective to shield a

Hoyts(S) 18 13/5/93

purported award from collateral attack whether

on the ground that the purported award is

beyond constitutional power or on the ground

that the purported award is beyond statutory

power.

The grounds are of separate consideration so, that,

we would say, once again, states the position

baldly?

But over at page 275, His Honour

Justice Brennan considers the Hickman principle.	I
will not read all this out to you, I think it is
unnecessary to do that, but makes clear what is

intended there and, in fact, Justice Brennan
interestingly refers to it as the "Hickman-Coldham
principle", of course, because the more recent
case, Coldham's case, also considered whether or
not the decision of the Commission there complained

of was immune because of the existence of the old

section 60. So, His Honour discusses there what

the position is, about section 60, talks about the

old Metal Trades Employers case and then goes on at

the bottom of the page:

The prohibition against challenging or calling

in question an award goes no further.	If a
purported award is not supportable as an exercise of statutory power and does not
satisfy the conditions mentioned, it is

invalid for all purposes and is not an "award"

within the meaning of that term in section 119 of the Act. Section 60 does not withdraw from the Federal Court the power and the duty to

determine in section 119 proceedings whether

the instrument propounded as an award is an

"award" for the purposes of that section.

Now, in the joint decision of Their Honours Deane,

Gaudron and McHugh, which starts at page 276, the

discussion of this point which today concerns us

commences at page 285, about half-way down the

page. Their Honours commenced by saying:

Central to the issues raised by the

questions reserved for the consideration of
the Full Court of the Federal Court in the
present case is the effect of section 60 of
the Act. That section provided -

and they go on to set it out, but for our purposes the relevant passage really commences on page 290. Their Honours, perhaps picking it up about half-way

down the page, after discussing the legislative

power to establish the specialist tribunal

specified in section 51(xxxv) of the Constitution,

Hoyts(5) 19 13/5/93

go on to discuss the scope of its powers and so on,
and about half-way down the page they say this:

On the other hand, if adequate procedures for challenge to the validity of the orders of

such a tribunal are available, provision that

the orders of such a tribunal should bind

while they stand seems to us to be properly

capable of being seen as necessary and

incidental to the effective exercise and

discharge of the jurisdiction and functions of
a tribunal entrusted with the settlement and

prevention of interstate industrial disputes

by conciliation and arbitration. Such a

provision would neither confer immunity from

reasonable challenge nor exceed what was

incidental to the conferral of such
jurisdiction and functions in that it was

necessary to avoid a situation in which the orders of a tribunal established to promote

interstate industrial harmony would themselves

constitute an open-ended possible source of

aggravated interstate industrial dispute.

So, if I can pause there, that is really the

nub of the discussion that Their Honours embarked

upon, where they considered the possible scopes, or

the outer limits, of the validity of section 150,

or something like it. In other words they were

saying, "It is possible, perhaps," although it was

not necessarily strictly for the decision, "to

construct an ouster clause, to have validity and

constitutional validity in circumstances where, in

effect, the award challenged was challenged well

after the time when the award was made". So in

other words, had the award been made in 1930 and

some defect discovered 30 years later, there might

be some point in saying that the incidental power,

at least, could be drawn wide enough to allow for

an ouster clause to hold as valid something that at

its formation was invalid.

There was a very real exception to that and

that was the procedures being available at the time

to challenge the validity of the orders of the

Tribunal. And it was never suggested by

Their Honours, or any of the other judges in the decision, that an appropriate challenge under section 75(v) of the Constitution against the members of the Commission, as officers of the

Commonwealth, could not be made in a timely fashion

where an award was made in excess of jurisdiction

or otherwise contrary to the statutory mandate.

So that is really the area into which the discussion passed. It certainly was not concerned

with possible awards that could be immunized by

Hoyts(5) 20 13/5/93

section 150 and possibly be constructed in such a

way that relief under section 75(v) of the

Constitution was just not available.

HIS HONOUR:  Mr Nolan, how do you fit what you have just

been saying, and I appreciate by reference to
judgments of the Court in O'Toole that the headnote
to that case on page 232, after the holding
reference, then goes on:

A purported award will as a matter of construction attract the protection of s 60(1) if it represents a bona fide attempt by the

Commission to exercise its powers, it relates

to the subject-matter of the legislation and

is reasonably capable of reference to the

power given to the Commission.

MR NOLAN:  Yes, well, that proposition has to be read with

the qualification that if it is otherwise an award

made within the constitutional power of the

Commonwealth, and is not made in a way that could

be impugned by recourse to section 75(v) of the

Constitution. That is the answer to the question.

And there is some difficulty in the discussion of

O'Toole v Charles David and the other cases like it

in coming to grips with exactly what kind of ouster
clause would survive challenge in a practical

sense.

And so far as the academic discussion is

concerned, it seems that the kind of clause that

would survive challenge would be a clause where the

statutory provision did not exhaust the limits of

the constitutional power but allowed a situation

where the decision maker made a decision that was

outside the nominal statutory bounds of his or her
power, but was yet within the scope of the

constitutional orbit of the power under the

Constitution. So that a statute could be

constructed in a way where, for example, the

statutory power said, as this statute says, for

example, that an award shall only be made -

simplifying matters - where there is an

employer/employee relationship. But there was a

further statutory provision that said, like

section 150 but with appropriate qualifications,

that where a decision was made in relation to an
award the fact that the award touched a

relationship which was otherwise than an

employer/employee relationship, but the award

nevertheless still fell within the scope of the

broader constitutional power, it was then a valid

award and immune from challenge under 75(v) and

Sl(xxxv).

Hoyts(5) 21 13/5/93

So, it is possible to construct a statutory

scheme, if you like, that allows section 150, or

something like it, some work to do, but is still

subject to the qualification that section 150

cannot take away from this Court its supervisory

jurisdiction under section 75(v) or, alternatively,

deprive any person from a challenge to the

constitutional validity of a particular power, and

5l(xxxv) is a power that is employed here, you see.

HIS HONOUR:  Much of the discussion in O'Toole's case was

concerned with the powers of the Federal Court.

MR NOLAN: That is right and, of course, there was the issue

that was raised that section 60, in a sense, built

a Chinese wall for the Federal Court but not for

this Court, and that was the issue that consumed a

lot of the discussion in O'Toole's case. So, to
the extent that there was some exploration, if you
like, of the outer limits of the scope of an ouster

clause, that discussion is really to be found in

that passage that I have quoted to you from the

joint judgment of Your Honours Deane, Gaudron and

McHugh. As I have said, that is very much an

obiter discussion of what the likely limits of such

a power might be, but even that discussion goes

nowhere at all near the concerns that Your Honour

has in this case, because it postulates a position

where an award has been longstanding, there was an

available challenge at the time that was not taken,

and so on. Even then, it reaches only tentative

conclusions about the likely shape of such a clause
but, perhaps to seal the matter so far as Their

Honours were concerned, they go on to say over at page 292 this, and it is about half-way down the

page:

It is, of course, settled law - if it ever

needed to be settled - that the Parliament

cannot legislate to oust the original

jurisdiction of this Court, pursuant to

s.75(v) of the Constitution, in all matters in

which a writ of mandamus or prohibition or an

injunction is sought against an officer of the

Commonwealth. Consequently, s 60 could not

preclude the jurisdiction of this Court to

entertain an application for a writ of

mandamus or prohibition or for an injunction

directed to a member or members of the

Commission as officers of the Commonwealth. Once again, absolutely no qualification as to the

availability of relief under section 75(v), which

is exactly what is sought here.

Now, His Honour Justice Dawson says something

in similar terms at about page 303 point 7, where

Hoyts(5) 22 13/5/93

he talks about section 60 "and its predecessors"

having a long history. He says:

It is now settled that privative clauses such

ass 60 cannot be taken at face value.

And then over at page 306, at about point 6, he says:

Under 75(v) of the Constitution this

Court has jurisdiction in all matters in which

a writ of mandamus or prohibition or an

injunction is sought against an officer of the

Commonwealth and no privative clause such ass

60 can affect that jurisdiction. The members

of the Commission are officers of the

Commonwealth. If in proceedings under that

provision the question of the validity of an

award arises, the Court must be able to

determine that question, both in relation to

constitutional validity and otherwise.

So we would say that those statements are quite

unambiguous on the point, and really what is

addressed in terms of the scope of possible

protection that might be offered by an ouster

clause is really completely a different line of

territory to what is suggested here.

Now, if we need to reinforce that point, can I

just refer to those predecessor cases; Coldham's

case, and I have a copy of that.

HIS HONOUR:  There should be one here, it is 153 CLR.

MR NOLAN:  Yes, at page 419. I should explain first of all,

this was a case where there was an issue about the

coverage by rules of the unions disputing, in this

particular dispute, the Australian Workers' Union

and I think the Builders' Labourers' Federation.

It was said that the Commission had made a

decision about the rules' coverage of the relevant

union and it was tried to be argued in aid of that

decision which was attack that it was immunized by

the old section 60. The then

Acting Chief Justice Mason and Justice Brennan

wrote a joint decision which is the first decision
that deals with the old section 60 point, and at
the top of page 419 they say this:

But a clause likes 60 cannot affect the

operation of a provision which imposes
inviolable limitations or restraints upon the
jurisdiction or powers of the Tribunal. In
the face of such a provision, a clause like

s 60 is ineffective to prevent prohibition

Hoyts(5) 23 13/5/93

going when the Tribunal transgresses those

limitations or restraints.

Over at page 427 there is an even balder statement by Their Honours Deane and Dawson in their joint judgment at about 427 point 3, where it is said:

It is not, however, effective to preclude this

Court from exercising the powers directly

conferred upon it bys 75(v) of the are officers of the Commonwealth and, if the

Commission purports to exceed its powers or

fails to perform its lawful functions, they

are, as such officers, subject to the

jurisdiction which the Constitution confers on
this Court in all matters in which a writ of
prohibition or mandamus is sought against an

officer or officers of the Commonwealth. The earlier case I referred to, of course, is the

locus classicus on this point, Hickman's case, back

in 70 CLR, but I do not do more than refer

Your Honour to those portions that are there set

out. I will not read those pages. They are

reproduced, in effect, in O'Toole for all practical

purposes and discussed there. In other words, nothing changes and the proposition holds good

right through to O'Toole's case.

More than that, we go on to say this: that there is a concensus in the decisions in the

literature that a so-called ouster clause cannot

immunize a federal tribunal from the supervisory

jurisdiction of the High Court under section 75(v)

of the Constitution. In that connection can I hand

up the textbook, Aronson and Franklin, "Review of

Administrative Action" which, indeed, is the very

text referred to by His Honour the Chief Justice in

O'Toole's case where he says this issue is

comprehensively discussed in Aronson and Franklin,

and commend to Your Honour that portion. But the

discussion of ouster clauses generally commences at

page 687 and goes over to 695 and perhaps even over

to 701.

Now, I do not propose to read all that to

Your Honour, but can I say this, that what is

discussed there is consistent with what I have put

to Your Honour and there can be no doubt whatever
that there is no fetter upon this Court under the

Constitution under section 75(v), which operates as a result of section 150 of the Industrial Relations Act. And more to the point, can I hand up to

Your Honour as well a useful case note on O'Toole's

case by now Professor Maccallum, which deals with

the issues discussed in O'Toole's case, many of

Hoyts(5) 24 13/5/93

which, as Your Honour has quite rightly observed,

are really only relevant to that issue as between

the Federal Court and the High Court.

But I refer in particular to the passages at

page 162 to 163, that should be, where

Professor Maccallum talks about awards and

collateral attack and, if I can just perhaps

paraphrase what is said and pick up the proposition

I put to you earlier, what Professor Maccallum says

is that the way to make these awards more certain

perhaps and to employ with some practical utility a

clause like section 150, would be for the

Parliament to legislate to the extent of the power under section 5l(xxxv), and then make provisions

within that broad legislative mandate for the

statutory operation of the Commission.

So that if its statutory jurisdiction was

exceeded, any excess that fell short of the orbit

of the constitutional power could be protected by a
clause that was constructed along the lines of

section 150, but of course there is nothing at all

in this article, and that is consistent with the

decisions I read to you, that does otherwise than

confirm the proposition that there is no fetter on

section 75(v) of the Constitution by a clause such

as that in the now section 150.

So we would say that that discussion really

deals in a comprehensive and satisfactory and final

way with any suggestion that this award cannot be

challenged in appeal proceedings before the

High Court and that was the only issue that

persuaded Your Honour on the last occasion to grant

the stay in the first place. We have now had the

opportunity to explore that issue in some detail

and we would say that that issue simply goes away,

and that being the case, the reason for the stay

goes away and any reason advanced for its

prolongation goes away, because all these other

issues that have been attempted to be put are

really matters that have no bearing at all on the
decisions of the Commission in the exercise of its

proper and appropriate jurisdiction, applying

procedures as it is properly equipped to do in the

determination of this award and the events that

flow from it.

This is not a case where the Court should try

to second-guess the industrial relations in this

area; that is the role for the Commission and as I

said to you on the last occasion, in the event that

there was some wholly unexpected consequence that

resulted from the making of this award, this is not

the place to have that unexpected consequence

remedied; it is the Commission. And the Commission

Hoyts(5) 25 13/5/93

has the power to revoke or vary any award made by

it; it could revoke it or vary it back to its date

of operation, in effect; it could completely repeal

the award. It has got tremendously flexible powers

to deal with emerging situations and it, of course,

is seized with the industrial expertise and the

intimate knowledge of what has transpired between

these parties in a way that this Court could never

hope to be and in a way, of course, the Court here

is not constituted in any event to be.

So we would say the issue of O'Toole v Charles

David; the last prop that really has been under

this stay, is taken away and that the stay should

be lifted forthwith and allowed to expire according

to its terms tomorrow and that we have also raised,

I should say, the question of costs. We would be

happy to address that matter in written submissions

if we are successful, because we say that there is

something to be said, notwithstanding the general

prohibition against costs in section 347 of the

Industrial Relations Act, about costs in the

particular circumstances of these proceedings. But

we would be content, if we were successful, of

course, to address that matter in writing in an

appropriate way. Thank you.

HIS HONOUR:  Thank you, Mr Nolan. Mr Merkel, did you wish

to reply?

MR MERKEL:  My learned friend has totally misconstrued what

O'Toole's case and Coldham and, indeed, Hickman says about privative clauses such as section 150.

My learned friend's error is easy to identify. He

has said section 150 cannot, in effect, outlaw the

jurisdiction of the Court under section 75(v) to

entertain a writ of prohibition. Section 150 does

not do that. What section 150 says is that if an

officer of the Commonwealth exercises the power

subject to the three Hickman conditions, then in

the absence of their being no constitutional

foundation for the exercise of the power,

section 150 and other privative clauses like it

immunize that decision from challenge.

Your Honour, that was made absolutely clear in

the passages in O'Toole's case. If my learned

friend's submissions were right, section 150 would

be unconstitutional, but it is not. What O'Toole's

case says is it is constitutional but it is read

down to only immunize decisions or awards of the

Commission which are within constitutional power

but beyond statutory power, provided that the

Hickman conditions are met.

Hoyts(5) 26 13/5/93

We say that that does not run into any

conflict with section 75(v). Section 75(v) only

enlivens the jurisdiction of the Court to grant
prerogative relief when, as a matter of law, the

Court finds the prerequisites to prerogative relief

established.

Can I make good that point, Your Honour,

because it is very clear from passages in

O'Toole's case itself, at page 251 of the

Chief Justice's decision, at point 3 - and
Your Honour, of course, section 60 only applies to decisions of officers of the Commonwealth. It has no other operation in the Act, so if my learned

friend's submission is right, section 60, or 150 as

it presently is, is unconstitutional. But that has
not been held. His Honour says at page 251 at
point 3:

Section 60 precludes any challenge to the validity of the award on non-constitutional

grounds which falls within the Hickman

principle;

In other words, the award must be treated as valid

if it satisfies the three provisos expressed in

that principle.

Now, Your Honour, that flies directly in the

face of what my learned friend has put to

Your Honour.	He does not suggest that our points
are constitutional points.	He really says that

this case, in effect, reads section 60 or

section 150 out of the Act as having no operative

effect. Quite the contrary, this case gives it

full operative effect on any case that is not

challenged on constitutional grounds, and where the
provisos of Hickman are met; a bona fide exercise

of the power reasonably capable of reference to the

power.

Can I take Your Honour also to the passage at

page 275 point 6 of Justice Brennan. His Honour

says:

The prohibition against challenging or

calling in question an award goes no further.

If a purported award is not supportable as an

exercise of statutory power and does not

satisfy the conditions mentioned, it is

invalid for all purposes and is not an

"award" -

But, Your Honour, if it is not supportable in

exercise of the statutory power and satisfies the

Hickman conditions, it is immune from challenge

under section 150.

Hoyts(5) 27 13/5/93

HIS HONOUR:  I wonder then how does one fit the remarks of

Justice Brennan in Re Griffin, Mr Merkel, into that

sort of context, because His Honour there in that

passage that is referred to by Mr Nolan, speaks of

the particular position of the Commission?

MR MERKEL: Which passage? Sorry, Your Honour, I did - - -

HIS HONOUR:  It is on page 40. Do you have the judgment

itself?

MR MERKEL:  Yes, I have it, Your Honour, it is the - - -

HIS HONOUR:  It is 167 CLR. The particular passage was at

page 40.

MR MERKEL: Sorry, Your Honour, I think I have the

Australian Law Report version.

HIS HONOUR:  I do not think the detail matters so much as

the emphasis placed on the position of the

Commission, and then over on page 42 there are more

substantial reasons for refusing a stay:

A stay of a Commissioner's decision is

exceptional.

And then His Honour refers to various cases and says:

There are sound reasons for this rule.

And then speaks of decisions being made in the

climate of industrial relations and so on. I mean,

if O'Toole's case has the scope that you suggest,

one would think that it would be necessary to grant

a stay in virtually every case in which a decision

was under challenge, unless the basis of the

challenge lay in the Constitution.

When Your Honour says it is necessary to grant

a stay, Your Honour, section 150 only applies to
the final award.	A lot of these prohibition cases

HIS HONOUR: Well, does it not?

MR MERKEL:  Yes, Your Honour. Section 150 only applies to

an award, not to any decision of the Commission.

There is some language used in cases from time to time that mix the issue up, Your Honour, but

section 150 - and that is why it is important - - -

HIS HONOUR:  Yes, was that the position under the previous

Act?

Hoyts(5) 28 13/5/93

MR MERKEL:  I think so, Your Honour. Unfortunately, I do

not have it here but I believe it is so,

Your Honour. It is only the award that is

protected; not decisions of the Commission as such.

But, Your Honour, the other passages that I was

about to take Your Honour to in the joint judgment
of Justices Deane, Gaudron and McHugh, make it very

clear, at page 293, point 3, in O'Toole. Really,

this is the nub of the point, Your Honour.	Does
Your Honour see the sentence:

The correct way of reading down the section is

to confine its validating operation to that

which it was within the legislative competence

of the Parliament to enact.

HIS HONOUR:  Yes.

MR MERKEL: Just stopping there, Your Honour, it is for that

reason, namely, that it does not and cannot outlaw

the Hickman principle that it is a valid enactment

of Parliament. As Their Honours said, over at

page 292 at point 6, the section:

could not preclude the jurisdiction of this

Court to entertain an application -

My learned friend is confusing whether this Court

has jurisdiction excluded to entertain an

application under section 75(v), which no Act could

do because that would be in conflict with 75(v),

with the question of when an application under

75(v), properly made, would be granted. This case

is concerned with saying it cannot be granted if it

satisfies the Hickman test and the challenge is not

on a constitutional basis. That is what

Their Honours go on to say. They say:

So read down and subject to the possible

qualifications deriving from s 60(2), s 60(1)

does not validate an award made in the absence

of any relevant industrial dispute in the

defined sense.

That is the constitutional sense, Your Honour.

Nor does it immunize an award from attack on

the ground that it lacks constitutional

foundation by reason of the fact that no such

industrial dispute existed when it was

purportedly made.

And, Your Honour, it is also crystal clear

that that is how it operates from the passage my

learned friend did not read in Coldham's case at

418, and really this is the nub of the point which

Hoyts(S) 29 13/5/93

we say O'Toole's case elaborates upon. At 418 in

the top paragraph:

The jurisdiction of the Court conferred bys.

75(v) of the Constitution to grant mandamus

and prohibition directed to an officer of the

Commonwealth cannot be ousted by a privative

clause. However, it has been established by a

long course of judicial decisions in this

Court that a privative clause in the form to

be found ins. 60 of the Act will validate an

award or order of the Commission -

If I can just interpolate - that is an order or

award of Commonwealth offices -

HIS HONOUR:  That would suggest that the old section 60 was

wider in its scope since there is reference to

award an order.

MR MERKEL:  Sorry, Your Honour. The order probably is

picked up in the definition of award.	I do not
think there is any difference.	The definition of

an award in the Act - Your Honour, an award is

defined in the definition as an award or order

reduced in writing under section 143(1), and

143(1), Your Honour, deals with an award or order

affecting an award.

HIS HONOUR: Well, that sort of takes us full circle to the

point that I raised with you, does it not, that - -

MR MERKEL:	Not really, Your Honour, I think there is a big difference between Commission decisions and
directions, and orders of the Commission that may
have a binding effect, as if they operate as an
award and must be complied with.  An award or order
would create obligations, Your Honour.
orders is not coincident with its power to make

In other words the Commission's power to make

decisions. I think for example a bans order,

Your Honour, would be an order that would be

reduced to writing and have operative effect under

143, but a number of other decisions of the

Commission would not be orders and therefore would

not get that protection as a privative clause.

HIS HONOUR:	Yes.
MR MERKEL:	So that there is a big difference, and as

Your Honour will see in that passage I was about to

take Your Honour to -

HIS HONOUR:  I am sorry, where was that?

Hoyts(S) 30 13/5/93

MR MERKEL:  Page 418 in Coldham, Your Honour, and this is really the point, Your Honour, that:

section 60 of the Act will validate an award

or order -

that is the same as our present statute,

Your Honour -

so far as it can do so constitutionally,

provided that three conditions are fulfilled -

So that in a sense, Your Honour - what is said in effect is that if there is no constitutional

challenge, then provided:

the purported exercise is a bona fide attempt
to exercise the power, it relates to the

subject matter of the legislation, and is

reasonably capable of being referred to the

power (i.e. does not on its face go beyond the

power) ... " to use the words of Kitto J.

So, Your Honour, the whole debate -

HIS HONOUR:  Can I just take you over to the next page, the top of page 419, Mr Merkel:

But a clause like s.60 cannot affect the operation of a provision which imposes inviolable limitations or restraints upon the jurisdiction or powers of the Tribunal. In the face of such a provision, a clause like s.60 is ineffective to prevent prohibition

going when the Tribunal transgresses those

limitations or restraints.

MR MERKEL: 

Yes, Your Honour, but an inviolable limitation

or restraint are in effect discussed by
Mr Justice Brennan in O'Toole as being in effect

implicit in the three conditions.  So that, for

example - it is the word inviolable, Your Honour -

what His Honour says, in effect, in the Hickman

test is that the bona fide attempt relates to the
subject-matter and reasonably capable of being
referred to the power are, in effect, the

inviolable restrictions.

That is what His Honour, in effect, says flows from the three conditions. His Honour, in O'Toole

suggested it may be a superimposed fourth condition

implicit in the three. But the effect of O'Toole,

Your Honour, is very clear and that is that in the

absence of a constitutional challenge to the exercise of the power such as there being no

industrial dispute, that certainly would not be

able to be immunized by a privative clause but, in

Hoyts(S) 31 13/5/93

the absence of a constitutional challenge of that

kind, provided the award or order satisfies the

three conditions, then it is immunized from

challenge under section 60. That is the underlying

ratio of O'Toole; it is Hickman's case and it is

Coldham's case, because my learned friend's

submissions, if they were right, would render this

whole debate futile. The Court would really be

debating about operation being given to a provision

that is unconstitutional and that is not what the

debate is.

we· say that he has not put any basis which

challenges the submissions we have put to

Your Honour that would suggest that our grounds are constitutional grounds and, certainly, Your Honour,

on the basis of what has been put forward, no one

could suggest that there is no possibility of the
three conditions being met in respect of the

matters that we are dealing with. Indeed, quite to

the contrary. One can only see my learned friend

putting the submission, if the award was made,

exactly the opposite of what he is putting here.

But these are not matters on which parties can be

estopped or give undertakings about, they go to

jurisdiction.

So, we say, Your Honour, that he has picked up

general words out of context and ignored the

underlying ratio and, with respect, Your Honour,

that ratio was accurately stated in the headnote

that Your Honour took my learned friend to.	We say
that that much is clear.

In Griffin's case, His Honour Justice Brennan

was talking about discretionary considerations, and

can I deal with that Your Honour, as a discrete

aspect because this is an exceptional case that

Your Honour now has before you.

Your Honour, my learned friend has had two

weeks, when he is fully aware of this stay being

the subject of an application today. It is of

great significance, Your Honour, that there is not

a skerrick of material put before Your Honour by

the Union to show any possible harm that could flow

from Your Honour granting a stay.	We would put it
even more strongly, Your Honour.	He has not even

put in submissions as to how there could be

possible harm by the stay being granted.

Now, that, Your Honour, stands in a unique

category in this area where the reason why the
Court is reluctant to interfere is because the

industrial relations deals with the real world and

events that have often difficulties created by a

Hoyts(S) 32 13/5/93

judicial intervention when a matter is fully under

the cognizance of the Commission.

Your Honour has exactly the opposite situation

where, Your Honour, on the only evidence before

you, sees? the award and the making of it is likely
to create the very kind of problems which we say
these proceedings were designed to protect the

applicants from, and my learned friend has put

nothing to suggest the contrary.

Now, he did, Your Honour, say that, "Well, 460 means that there are some who may want the award".

Can I say to Your Honour that my instructions are

that the total number of casual employees is of the

order of 600, so that the fact that 460 have come

out so strongly and positively - and there is no

evidence of any support for the award -

Your Honour, we say does not really give rise to

any inference other than that the overwhelming

discretionary consideration is for the grant of the

stay.

The other point, Your Honour, is to look at

the subject-matter with respect to which this

jurisdiction is sought to be exercised.

Your Honour, we accept that Your Honour has ruled

against us, but the very essence of the role of the

Court in granting a stay to preserve the status quo

pending appeal is the necessity for the judge who

has refused an order, such as in the Erinford

Property situation to accept any judgment may be found to be wrong. Should a person be denied or

deprived of the possibility of having an effective

appeal, if there is one, or a right to seek

application for leave to appeal, if the right

exists -

HIS HONOUR:  I do not think you need labour that point,

Mr Merkel.

MR MERKEL:  Yes. So, Your Honour, we do submit, with

respect, that nothing has been put to suggest that

if we get our leave or our appeals to succeed, that

we would not be deprived under the O'Toole

principle. We say there is a very serious, and we

say, a very likely risk that O'Toole would operate

to validate the award if it is made. We say that

the additional reasons we have put before you,

Your Honour, really show that the exceptional

circumstance or special case sought to be

established as the test, which my learned friend
puts forward in his own submissions, has been made

out on the evidence before you.

So, we say, Your Honour, that this is a case

where it is appropriate to grant the stay and, if

Hoyts(S) 33 13/5/93

events occur of the kind my learned friend has

suggested - and it is hard to imagine what they

could be - where the stay can give rise to any

difficulty, we, Your Honour, say that a very short

period of notice would entitle any party to bring

the matter on b~fore Your Honour and that would

enable the Court to remove the stay if it was

having any untoward effects or unforeseen results

and consequences. My learned friend is in a unique

position to be able to do that on short notice.

So, we do say, Your Honour, that this is an

application, with respect, that ought to be

granted.

HIS HONOUR:  Yes, thank you, Mr Merkel. Do you want to say

anything in reply, Mr Murdoch?

MR MURDOCH:  Only quickly, Your Honour. My learned friend,

Mr Nolan's submissions on revocation or variation

of the award in the future under section lll(l)(f) do not assist my clients because if, over the next two months, they are not rostered or rostered less,

revocation of the award will not overcome that in

the future.

Secondly, my learned friend, Mr Nolan's submission, paragraph l(b), that the parties were

given all reasonable opportunities, is not so in

the case of my clients. Mr Arnell's affidavit deals with that in paragraph l(ii) in which he says:

Prior to receiving notification of the

decision of 1 May 1993, Hoyts employees had

received no notification nor knowledge that an

award might be made which would so

fundamentally threaten their security and

tenure of employment. Now that they are so

aware, they wish to be heard.

MR NOLAN:  Your Honour, if I may. There is an authority of

the Court that deals unambiguously with the fact

that there was an order that was sought to be

stayed and that is to be found in the decision of

then Justice Mason in an Ironworkers and BLF case,

55 ALJR 395. What was sought to be stayed there

were two orders made by the Conciliation and

Arbitration Commission, and those orders, of

course, have the status of awards, thanks to the

statutory definition.

Also, in Coldham's case, of course, the very

issue there was a demarcation order that had the effect of an award, once again, because an order and an award are interchangeable. And, of course,

in the decision in Griffin itself, it is perhaps a

Hoyts(5) 34 13/5/93

bit had to pick up, but the fact of the matter is

what was going to be done was that the order or award that was made to increase the pay for the

workers was going to be varied to take $10 off the
weekly amount. So, in each of those cases there is

no doubt about the fact that it was an award that

was sought to be stayed.

HIS HONOUR: Well, I think the circumstances dictate that I

should dispose of this application now.

I granted a short stay some time ago to allow

the parties to consider more fully their position,

in particular the respondents who had not been

served with notice of the applications for orders

nisi for prerogative relief. That difficulty has

now been overcome and I have had the benefit of

hearing argument from all those likely to be

affected.

This Court has said on more than one occasion

that the power to grant a stay of proceedings is an

exercise of inherent jurisdiction or, as it has

sometimes been put, is an exercise of extraordinary

jurisdiction. In a case in which I gave judgment

some time ago, Manfal Pty Ltd v Trade Practices

Commission, (1990) 65 ALJR 256, I said at page 257:

Whether the question is one of

jurisdiction or power, it is clear that the

Court will not stay proceedings below, pending

the hearing of an application for special

leave to appeal, unless satisfied that a stay

is required to preserve the subject matter of

the litigation ... or that refusal of a stay

would make it difficult for this Court, in the

determination of the appeal, to grant the

relief sought.

Now, here, we are not concerned with special leave

to appeal but with proceedings now on foot, by way

of appeal and by way of application for leave to

appeal.

The reluctance of the Court to grant a stay of

proceedings is perhaps emphasized in relation to

proceedings of an industrial nature, as is

exemplified by the remarks of Justice Brennan in Re

Griffin; Ex parte Professional Radio and Elecronics

Institute (Aust.) (1988) 167 CLR 37.

In the light of those decisions and other

authorities, it seems to me that a 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

Hoyts(5) 35 13/5/93

effectively to argue the basis of their challenge

to my refusal to grant an order nisi in each of the

three matters in question.

I have heard discussion as to the implications of the decision of this Court in O'Toole v Charles

David Pty Ltd, (1991) 171 CLR 232, and also earlier

decisions of the Court touching the operation of

section 150 of the Industrial Relations Act 1988

and its predecessor. It seems to me that the

position cannot be stated to be beyond argument as

to the consequences of section 150 of the current

legislation in a situation such as we have here,

namely, an award of the Industrial Relations

Commission, once such an award comes into

existence.

In particular, I am not persuaded that the

refusal to grant an extension of the stay will not

operate to the prejudice of the prosecutors and, in

particular, operate to their prejudice in such a

way that they may be precluded from mounting the
challenge that they seek to mount to my refusal to
grant an order nisi in each of the three matters.

It is on that footing that I am disposed to extend the stay. That disposition is translated into a decision to extend the stay by reason of an

additional factor, namely, that it does not appear

that anyone will suffer any prejudice by reason of
the extension of a stay, for two reasons: one, the

undertakings given by the prosecutors which they

are prepared to repeat, namely, that they will

prosecute their appeals or applications for leave

to appeal with all expedition and that they will

treat an award as having come into existence in

accordance with their earlier undertaking should

their appeals or applications for leave to appeal

be unsuccessful.

The other feature which, I think, can be put

presently before the Commission some apparent	in the scales in this regard is that there is
reconsideration of the Commission's position - I do not put it any higher than that - with the parties
having been invited, and having responded to the
invitation, to make submissions as to the future
conduct of this matter. If it appears that, by
reason of anything done or not done by the
Commission, or by reason of any other circumstance,
some prejudice is likely to result to the Unions or
to anyone affected by the existence of a stay, then
that can be met by a liberty to apply provision.

Having decided that there should be an

extension of the stay, I can see no practical

reason why it should not be in the terms suggested,

Hoyts(5) 13/5/93

namely until the determination of the appeals and

the applications for leave to appeal or until

further order.

Subject to anything that may be said to me, my

proposal is that there be incorporated in the order

of the Court those undertakings that were given

earlier and which are referred to in paragraph 11

of the affidavit of Mr Caldwell. Other than that,

I am prepared to hear from counsel as to the terms

of a stay.

MR MERKEL:	Your Honour, I am instructed to give those undertakings and in view of what Your Honour has
indicated, it would appear that the stay be in respect of the making of the award and that any of
the parties have liberty to apply to the Court on
possibly 24 hours or 48 hours' notice.
HIS HONOUR:	I think if it just liberty to apply, Mr Merkel,

then the Court would make itself available as best

it can, commensurate with the urgency of the

matter.

I do not know that you have responded directly to my proposal that the undertakings be

incorporated in the order, so that the order would

read, "Upon the" - - -

MR MERKEL:  Yes, Your Honour, I had assumed that that is

what would happen and that the undertakings - - -

HIS HONOUR:  We now have on foot appeals and applications for leave to appeal. It should be clear that the

undertakings are given in respect of all

proceedings by way of appeal. I do not think there

is any problem there, because the stay was actually

a stay of proceedings in the Commission by

reference to identified matters. I would suggest

that the parties collaborate as to the terms of the

order and if you get a difficulty, you could return

assume that there would not be any difficulty in	to me, if necessary some time tomorrow, but I would	spelling out the terms of an order to give effect
to what I have decided this evening.

MR MERKEL:	I think that is correct, Your Honour.
HIS HONOUR:	Has anyone else - Mr Murdoch, do you wish to be

heard in terms of the order?

MR MURDOCH:	No, thank you, Your Honour.
HIS HONOUR:	Mr Nolan?

MR NOLAN:  Your Honour, I have not had an opportunity to

discuss this with my client but, of course, on the

Hoyts(S) 37 13/5/93

last occasion I said to Your Honour that the effect

of the stay provided an opportunity for the

employers here to really go around and, to use the

vernacular, play "Chicken Little" with the

employees and press upon them the dire consequences of the award coming into effect, and that obviously

has had some effect because employees in God only

knows what circumstances have subscribed to

declarations and so on to go to the Commission,

apparently complaining about what they understand

to be the effect of the award.

HIS HONOUR: 

Mr Nolan, I did say that if considerations

arose which operated to the prejudice of anyone or
otherwise warranted a lifting of the stay, then the

liberty to apply provision should deal with that.

It is not something that I can presently incorporate in the terms of any order, at least as

I see it.

MR NOLAN:  I appreciate that, yes. What I was going to

suggest is that if these undertakings are given, it

would be equally open to the employers to undertake

to give all possible co-operation to the Unions in

providing access to employees to explain, from the

Union's point of view, the positive benefits and

various matters to do with the award so that there

might be some even-handedness in this whole

process. I mean, the Union has been shut out - - -

HIS HONOUR:  But does not the Union have that right, in any

event?

MR NOLAN:	It has a very limited right to inspect time and wages records and so on.
HIS HONOUR:	No, no, we are not speaking about time and

wages. We are speaking, what, about access to the

place of employment?

MR NOLAN:	That is right, to hold meetings with employees and talk to them about the award.	It is all one
way.

HIS HONOUR:  It would be very difficult to incorporate that

in an order but failure by the employers to provide

the sort of access that you are speaking, might -

and I only say "might" because clearly there are

two sides to this - warrant an application to

either lift or vary the stay.

MR NOLAN: Well, perhaps they could be asked if they would

given an undertaking to that effect now.

HIS HONOUR:  I am prepared to ask Mr Merkel if he is in a

position to give that undertaking.

Hoyts(S) 38 13/5/93

MR MERKEL:  Your Honour, it is a matter first raised, as far

as I am concerned, by my learned friend a few

moments ago. It seems to us, Your Honour, that

Your Honour's intimation as to the consequences of

non-access is a matter that Your Honour clearly

could have regard to in the future. I do not have

instructions to extend the undertakings,

Your Honour, but at the moment it does seem to us

to be a hypothetical problem. Nothing has been put

forward to date that suggests that there is any

misconduct or anything improper on the part of the

employers in respect of this matter. It seems to

be a matter my learned friend has raised and there

is no reason at all why it should not be dealt with

between solicitors or between the Union and the
employer direct, and we do not see any reason why a

problem should arise, Your Honour.

Indeed, we are very conscious of the

indulgence that has been granted and we would

expect, Your Honour, that there will not be a

problem.

HIS HONOUR:  Mr Nolan, it is something I cannot readily,

even if I were minded to, incorporate in the terms

of an order.

MR NOLAN:	Yes, I appreciate that.
HIS HONOUR:	I think it is likely to give rise to more

problems than it would solve. You have made the point; you have heard what Mr Merkel has to say.

If there are difficulties and the existence of a

stay is thought to operate to the prejudice of the

Union or employees of the prosecutors, then the

liberty to apply provision is there to bring the

matter back to the Court if it is thought

warranted.

MR NOLAN:  Yes, thank you, Your Honour.

HIS HONOUR:  If there is nothing else, we will now adjourn.

AT 5.50 PM THE MATTER WAS ADJOURNED SINE DIE

Hoyts(S) 39 13/5/93