In the Matter of an election for an office in the Communications Workers' Union of Australia Postal & Telecommunications Branch, NSW

[1997] IRCA 295

DECISION NO:295/97

INDUSTRIAL RELATIONS COURT OF AUSTRALIA

INDUSTRIAL LAW - Election inquiry - costs of notice of motion - no point of principle

IN THE MATTER OF AN ELECTION FOR AN OFFICE IN THE COMMUNICATIONS WORKERS' UNION OF AUSTRALIA POSTAL AND TELECOMMUNICATIONS BRANCH, NEW SOUTH WALES

MOORE J

SYDNEY

14  NOVEMBER 1997

THE INDUSTRIAL RELATIONS  )                 General Distribution
  )
COURT OF AUSTRALIA  )  No. NI 594 of 1994
  )
NEW SOUTH WALES DISTRICT REGISTRY )

IN THE MATTER OF AN ELECTION
 FOR AN OFFICE IN THE COMMUNICATIONS
 WORKERS’ UNION OF AUSTRALIA
POSTAL AND TELECOMMUNICATIONS
BRANCH, NEW SOUTH WALES

JUDGE:        Moore J

PLACE:        Sydney

DATE:          14 November 1997

THE COURT ORDERS THAT:

1. The application for costs is dismissed.

NOTE:             Settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court Rules.

THE INDUSTRIAL RELATIONS  )                 General Distribution

)
COURT OF AUSTRALIA  )  No. NI 594 of 1994
  )
NEW SOUTH WALES DISTRICT REGISTRY )

IN THE MATTER OF AN ELECTION
 FOR AN OFFICE IN THE COMMUNICATIONS
 WORKERS’ UNION OF AUSTRALIA
POSTAL AND TELECOMMUNICATIONS
BRANCH, NEW SOUTH WALES

JUDGE:        Moore J

PLACE:        Sydney

DATE:          14 November 1997

REASONS FOR JUDGMENT

On 11 November 1997 I made several orders including an order dismissing a notice of motion that had been filed on behalf of Mr Cook on 23 July 1997.  I reserved on the question of costs.  This judgment deals with that issue and must be read in conjunction with the reasons for judgment I published on 11 November 1997.

Before addressing the question of costs I propose to deal with one matter raised by counsel for Mr Cook, Mr King, in submissions he made on 12 November 1997 when I heard argument on the question of costs.  During his introductory remarks responding to submissions that had been made by Mr Haylen QC, counsel for the Communications Workers' Union of Australia, Mr King said the following:

"MR KING:     ... Your Honour, there is a preliminary issue that I should, with respect, raise with your Honour and that is this; when this matter was argued your Honour very clearly distinguished two issues and left at one side a third issue.  The two issues were jurisdiction and the second was appropriateness and then [sic] was distinguished from the third issue that the actual orders to be made upon a hearing on the merits.

Now, your Honour, with respect, this judgment goes further than considering the first issue which was the subject of the argument before your Honour raised by my learned friend.  The only argument that was before your Honour was jurisdiction.  We put no submissions, with respect, about appropriateness. The only question that was argued before you Honour was whether or not your Honour had power to consider any of the matters brought forward in the notice of motion."

[emphasis added]

Mr King went on to say that the failure of Mr Cook to appear in October 1996, a matter mentioned in my judgment of 11 November 1997, was because Mr Cook and those advising him did not know the notice of motion had been listed on that day. Shortly after that submission, Mr King went on to say in an exchange with me:

"HIS HONOUR  ... You started by saying that you had an understanding, presumably when this matter was debated, that the court was going to deal with two aspects of three of the aspects that arose in the notice of motion.

MR KING:     No, you Honour.

HIS HONOUR  Not so?

MR KING:  No. There were three aspects and the critical question for consideration, the cutting off at the pass approach, was whether the court had jurisdiction and issues of appropriateness on my understanding were put to one side."

[emphasis added]

Mr King was thus submitting that the issue of appropriateness had not been agitated on 15 August 1997.  Shortly thereafter reference was made by Mr King to Smith v New South Wales Bar Association (1992) 176 CLR 256, and a request was made to "re-open the judgment and deal with issues of discretion". The plain import of these submissions was that the judgment I had given on 11 November 1997 dealt with issues that had not arisen at the hearing on 15 August 1997 and that by dealing with any issue other than jurisdiction, I had denied Mr Cook procedural fairness.

As I recounted in my reasons for judgment of 11 November 1997, the hearing of Mr Cook's notice of motion resulted from a letter written by Mr King's instructing solicitors, Paul Etherington & Associates, dated 17 June 1997.  Following receipt of that letter, the inquiry was initially listed before me for what became a directions hearing on 10 July 1997.  At that hearing an issue arose about how the issues sought to be agitated by Mr Cook in a notice of motion filed in Court on 27 September 1996 and expanded upon at the hearing should be dealt with.  In the result I decided on 10 July 1997 that I would deal with the question of whether I had jurisdiction to deal with the matters that Mr Cook wished to raise in his notice of motion and whether, in the circumstances, it was appropriate that I should embark upon their consideration.  I proposed to put to one side the consideration of the issues sought to be raised by Mr Cook on their substantial merits.

The following is apparent from the transcript of 10 July 1997.  Firstly, counsel for the Australian Electoral Commission ("the Commission") proposed a course for dealing with the notice of motion.  He said:

"... the AEC very much disputes the power of the court to conduct such a wide-ranging inquiry or indeed the appropriateness of doing so ....  we do say that there are serious questions as to the jurisdiction of the court to entertain the application.  We say there are serious questions of discretion as to whether or not the application should be contained [scil - entertained]  and that is before we even get to the merits ..."

[emphasis added]

This raised the question of how the hearing of Mr Cook's notice of motion should proceed.  A little later I said in a discussion with Mr King:

"HIS HONOUR:  I must say I am attracted to Mr Johnson's suggestion that some fairly well defined framework ought to be devised to deal with the issues and probably in the logical order of any jurisdictional or discretionary arguments about whether I should embark upon a consideration of what it is you are inviting me to consider and if I decide to then a framework for that consideration and if I decide not to, well - - -"

It was a course I finally decided upon. After some further discussion involving Mr King and Mr Johnson, I said:

"HIS HONOUR" ... Unless this course is opposed it would seem to me appropriate to fix a hearing date to deal with any jurisdictional arguments and any arguments why as a matter of discretion I should not do what I earlier indicated I might do [in my judgment of 10 May 1996] and I am now being asked to do by Mr Cook.

MR KING:     Your Honour, may I respectfully suggest that a little more time be allowed than the time necessary to decide those preliminary issues in case your Honour is in favour of determining the further questions because if those further questions are able to be identified and defined between now and that time it may be that most if not all of the evidence is on, unless we hear something from the AEC.  Your Honour could then go on to those questions as well.

HIS HONOUR:  I must say I must have misunderstood what Mr Johnson was saying or there is some confusion about it.  I rather thought he was suggesting a process that would result in the evidence being put on in relation to discretionary and jurisdictional matters.

MR KING:     I see.  I had not appreciated that.

MR JOHNSON:  That is so, your Honour, rather than every aspect of the correctness or otherwise of the questions raised.

HIS HONOUR:  You see, there is an issue, Mr King, about whether an undertaking was given or not.  I frankly cannot remember at all what is said to be the undertaking and the circumstances in which it arose, save for what you have told me this morning.

MR KING:     Yes.  My concern about that, your Honour, is that in considering questions of jurisdiction and questions of appropriateness or discretion, your Honour would need to assume that, at least on a prima facie basis, the correctness of the assertions that we are making.

HIS HONOUR:  But Mr Johnson is contemplating a procedure that would enable you to put on whatever evidence you wanted to put on in support of the continuation of the inquiry which, presumably, would include evidence that, as you put it at least prima facie, an undertaking of a particular character was given and I cannot recall what the evidence was.

MR KING:     Your Honour, I do not have a difficulty with that, save and except for this, that I, with respect, would submit it is not appropriate for questions of fact to be decided in limine in relation to an issue of discretion as to whether or not the inquiry should proceed.  If the merits are to be gone into as an issue relating to discretion, then we would expect that the AEC itself should put on its material in relation to the merits, not just us. Otherwise, I would see it, your Honour, with respect as a question of us formulating the issues and you Honour then saying, well, this is not appropriate or, yes, I do have power to decide these issues and it is appropriate to decide it and now I will decide it.

HIS HONOUR:  It may well be, ultimately, I will have to approach the basis on the assumption that, at least arguably, there was an undertaking to the extent that you now seek to raise that.  Perhaps, there ought to be some evidence to at least sustain that conclusion but I would have thought on [scil - not] a determination of the question of whether, as a matter of fact, an undertaking was given and, if so, what is terms were.

MR KING:     Yes, thank you, your Honour.  That is a helpful indication."

I took this exchange to be settling the question of what evidence would be necessary to enable submissions to be made on the next occasion about the Court's powers and whether, as a matter of discretion, it should embark on a hearing of the notice of motion and on the basis that I would later consider the issues raised in the notice of motion if it became necessary.  I was indicating it was not necessary for Mr King to prove in any final sense the existence and terms of the undertaking upon which his notice of motion was, in part, based.

After this directions hearing, the matter was heard on this limited basis on 15 August 1997.  In the intervening period Mr Cook filed his notice of motion of 23 July 1997 identifying all the issues he sought to raise. Other notices of motion were also filed including a notice of motion of the Australian Electoral Commission, filed 11 August 1997, seeking an order that the inquiry be terminated. 

At the hearing on 15 August 1997 the first party to put submissions in any substantial way was the Commission.  Mr Johnson continued to appear for the Commission and an issue arose about the evidence that was being relied upon. Mr King indicated he relied on an affidavit that had been sworn by Mr Dominello, his instructing solicitor, on 27 September 1996.  Mr King indicated there might be other material that he relied on and reference was made to a notice to produce that had been served on the Australian Government Solicitor who had been acting for the Commission.  Mr Johnson identified the affidavits that he proposed to read in support of his application that the inquiry be terminated and then said that was the evidence as he understood it.  There then  followed an exchange between Mr King and myself.  It is recorded in the transcript:

"MR KING:     Well, I just need to clarify precisely what this evidence is going to , you Honour.  My friend has a strike-out application. There are two issues before the court today.  One is, as I understand it, jurisdiction.  The other is, for want of a better word, appropriateness.  Now, on the issue of jurisdiction I can understand and appreciate that it is perhaps necessary to have at least a note of material, the form material, but on the question of appropriateness it may be a different question because appropriateness assumes there is jurisdiction.

HIS HONOUR:  Well, I do not quite know what you are saying.  Is there other material you want to rely upon or - - -

MR KING:     When the matter proceeds, or if the matter proceeds, there may be some further evidence.  Most of the evidence is on because it is already before the inquiry, but there may be some short further evidence, and I think I foreshadowed on the last occasion that we wish to reserve our position in relation to the merits of the question, once this issue of jurisdiction has been dealt with.  If it is against us, then of course, it is irrelevant, but if it is for us, then there may be some further evidence.

HIS HONOUR:  I do not have the transcript - at least I do not think I have the transcript of the last occasion, but my recollection is that today was listed for two purposed and not for a third.  The two purposes for which it was listed was to entertain submissions that Mr Johnson foreshadowed.

MR KING:     Yes.

HIS HONOUR:  That the court did not have jurisdiction to do what your client was urging me to do.  Secondly, even if the court did have jurisdiction, it should as a matter of discretion, not embark upon the task I was being urged by your [scil - client] to do.  The third matter, which was expressly not to be dealt with today was whether, if I were to embark upon a consideration of what it is your client is asking me to do, what the ultimate result should be.

MR KING:     Yes.

[emphasis added]

There was then an exchange with counsel for the Communication Workers' Union of Australia in which he identified what orders it sought and the evidence upon which it relied.  Mr Johnson then commenced his submissions in substance. After developing a lengthy submission about the powers of the court, Mr Johnson said this:

"So, your Honour, however wide the power under s 223 is it does have its limits, and your Honour we do not agree, if I might say with respect, that this ought to be treated as a strike-out action, rather we would say that what we are doing today is asking the court to look, as preliminary issue, at whether or not jurisdiction to embark upon Mr King's motion and whether it is appropriate to do so.  We certainly do not say, your Honour, that we have to take on any kind of general steel onus of proof, or to do any more than to persuade your Honour on the balance of probabilities that this is not an appropriate course to be taken."

[emphasis added]

There were then further submissions by Mr Johnson about the question of power.  Mr Johnson then indicated he wished to raise questions concerning appropriateness.  Mr Johnson submitted that was linked to the question of whether it was "necessary" for the purposes of s 223(1).

Mr Haylen QC then commenced his submissions.  He observed in opening that the word "necessary" in s 223(1) was a word that had to be given full effect to and the Court has to be satisfied that the further questions concerning the conduct and results of the election are in that sense necessary.  He then developed submissions about questions of power and why the inquiry should be terminated. In the course of dealing with that latter matter he stated that the notice of motion of Mr Cook was first filed in September 1996 and was listed for directions in October 1996.  He then said:

"When that was listed for directions by your Honour, all other parties I believed to the inquiry then attended except the applicant.  It was stood over generally and as far as we are aware, there has never been any explanation tendered for the failure to pursue or attend when the courts listed for directions that notice of motion."

At no stage in the proceedings on 15 August 1997 did Mr King put in issue that asserted fact or seek to qualify it.  Indeed I later asked Mr Haylen to clarify when in October  the matter came before the court and he replied in due course:

"... the motion that was the first motion of September 1996 I am instructed, was listed on 14 October 1996.  There was no appearance for Mr Cook and the matter was stood over generally. "

Mr King commenced his submissions in the following way:

"Your Honour, in my respectful submission, there is no jurisdictional impediment to the court considering the questions raised and bearing in mind the proceedings which have been before the court and conducted before your Honour, there is no valid reason why considerations of those questions should be curtailed in limine as proposed by Mr Johnson, as I understand it, supported by Mr Haylen."

While Mr King chose to use the words "curtailed in limine" I take that to be a reference to the submissions that had been developed that it was not appropriate that the notice of motion proceed any further.  Mr King then developed submissions on the issues raised.  I canvassed with Mr King whether the words "as the court considers necessary" qualify the whole of  s 223(1).  Mr King responded:

I was saying, your Honour, the words "the whole of the clause [sic] and such further questions" qualify the word "determine," in line 2;
           [I]nquire into a determine the question and such further      questions.
The question of appropriateness, your Honour, only arises at a later stage, and it may be assumed, although I do not wish to concede this for present purposes, that it does arise upon a finding that the court considers necessary, a consideration for a determination of some further question.  Mr Johnson delved into the fact to some extent, to suggest that their may be a certain result in this case, but in my respectful submission, your Honour would not look at what result this inquiry would come to, but rather be guided by the words that were referred to correctly, with respect, by my learned friend Mr Haylen in Re Healy, 40 IR 110, that it may be quicker and more satisfactory to allow a matter to proceed rather than to curtail it on some basis in limine."

Mr King concluded his submissions by saying:

"As to the question of determination of the inquiry, in my respectful submission that has nothing to do with the questions presently before the court.  Your Honour would only terminate the inquiry if your Honour formed the viewed that there was no basis for the court to go on to determine this case that there was a further question which the court might consider necessary to be determined."

In view of the history of the matter as just discussed, the submission made by Mr King on 12 November 1997 that I referred to at the commencement of these reasons was, in my opinion, entirely mistaken and inappropriate.  I accept that after he made it and I indicated that my recollection of what I had been called upon to determine differed from his, he conceded that his recollection may have been faulty.  I also accept that the earlier hearing, in August 1997, had taken place several months before he made that submission.  I also accept that, remotely, Mr King may not have fully appreciated the scope of the issues that were being debated in August 1997, though having regard to the observations he made in the first extract from the transcript of 15 August 1997 I have referred to,  it is difficult to see how he could have misunderstood the matter.

A submission necessarily involving the contention that a Court has denied a party procedural fairness should not, in my opinion, be lightly made.  In the present case the complaint made by Mr King in his opening remarks on 12 November 1997 had, in my opinion, no foundation in fact. The submission can only have resulted either from a faulty recollection or a careless indifference to what had occurred on 15 August 1997 or both.  It should not have been made without Mr King having checked the transcript to ensure that there was a proper basis for it being made. Its making is to be regretted. In the result, a considerable amount of time has been involved in dealing with an issue that should never have been raised.  To the extent that I was being invited to re-open the matter on the principles discussed in Smith (supra), there is not basis for my doing so.

I turn now to consider the question of costs.  I am satisfied that the notice of motion of Mr Cook filed on 23 July 1997 was a "proceeding" for the purpose of s 347.  The meaning of the word "proceeding" in s 347 was considered at length by a Full Court of this Court in Shackley v Australian Croatia Club Limited (1996) 141 ALR 736. It seems to me that a notice of motion in an election inquiry may properly be viewed as a proceeding as might also be the application giving rise to the inquiry itself. The fact that both the inquiry and the notice of motion are of a special character, in the sense that the application for an inquiry involves an investigation by the Court of specified matters or, in relation to a notice of motion, arises in a proceeding of that special character, does not result in them not being a proceeding. Section 347 applies to the power that the Court otherwise has to award costs: see Canceri v Taylor (1994) 1 IRCR 120 and (1994) 123 ALR 667.

The critical issue thus becomes whether the notice of motion was instituted without reasonable cause.  It is clear from my reasons for judgment on 11 November 1997 that at least aspects of the notice of motion were essentially untenable.  However, the same cannot be said of the issue sought to be raised in paragraph (ii) of order 1.  It is plain from what I said that the Court arguably has power to deal with that matter.  It was also arguable that the Court might decide to further investigate that matter having regard to the observations I made in my judgment of 10 May 1996.  It follows that at least one matter raised in the notice of motion was an arguable one and, in those circumstances, I cannot concluded that the notice of motion in its entirety was instituted without reasonable cause: see Kanan v Australian Postal and Telecommunications Union (1992) 43 IR 257 at 264. In those circumstances I am precluded by s 347 from making an order for costs in this proceeding.

I certify that this and the preceding seven (7) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

Associate:       

Alexandra George      

Dated:  14 November 1997   

APPEARANCES

Counsel for the Communication Workers Union

of Australia:  Mr W Haylen QC  

Solicitor for the Communication Workers Union

of Australia:  R L Whyburn & Associates  
Counsel for Mr Cook:  Mr P King

Solicitor for Mr Cook:  Paul Etherington & Associates

Dates of Hearing:  12 November 1997

Date of Judgment:  14 November 1997