Lamsoon & Ors, Re Hancock & Ors- Action Food Barns & Ors, Re Hancock

[1996] HCATrans 135

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A38 of 1995

In the matter of -

An Application for a Writ of Certiorari against THE HONOURABLE KEITH HANCOCK, a Senior Deputy President of the Australian Industrial Relations Commission, THE HONOURABLE ANNE HARRISON, a Deputy President of the Australian Industrial Relations Commission, PATRICIA LEARY, a Commissioner of the Australian Industrial Relations Commission and JOHN LEWIN, a Commissioner of the Australian Industrial Relations Commission

First Respondent

SHOP DISTRIBUTIVE AND ALLIED EMPLOYEES ASSOCIATION

Second Respondent

and

LAMSOON (AUSTRALIA) PTY LTD and OTHERS

Prosecutors

Office of the Registry
  Adelaide  No A44 of 1995

In the matter of -

An application for a Writ of Certiorari against THE HONOURABLE KEITH HANCOCK, a Senior Deputy President of the Australian Industrial Relations Commission, THE HONOURABLE IAN WATSON, a Deputy President of the Australian Industrial Relations Commission, JOHN O’CONNOR, a Commissioner of the Australian Industrial Relations Commission and DIANNE FOGGO, a Commissioner of the Australian Industrial Relations Commission

First Respondent

SHOP DISTRIBUTIVE AND ALLIED EMPLOYEES ASSOCIATION

Second Respondent

and

ACTION FOOD BARNS and OTHERS

Prosecutors

KIRBY J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 19 APRIL 1996, AT 9.31 AM

Copyright in the High Court of Australia

MR D.J. BLEBY, QC:   May it please your Honour, I appear for the prosecutors and the applicants in the present notice of motion in this matter and the other one, which they might conveniently be dealt with together, if the Court pleases.   (instructed by R. J. Manuel and Co)

HIS HONOUR:   Yes, Mr Bleby, thank you.

MR BLEBY:   I should also indicate that I appear for the Attorney-General for the State of the Victoria, who intervenes in response to a section 78B notice that was served by the prosecutors and the State of Victoria is, of course, also one of the appellants in matter M48 of 1995, which is referred to in the notice of motion.

HIS HONOUR:   The Registrar has certified that Stanley and Partners, solicitors for the Shop Distributive and Allied Employees Association, second respondent in both of the matters, does not wish to be represented at the hearing of the prosecutors’ notice of motion and does not oppose the orders sought in paragraphs 1 and 3 of each notice of motion, and I understand that the other respondents have previously signified that they submit to the orders of the Court, is that correct?

MR BLEBY:   That is my understanding, your Honour, yes.

HIS HONOUR:   Very well.  I take it that their earlier submission would apply in relation to the proceedings that are now before me?

MR BLEBY:   I infer that, too, also.

HIS HONOUR:   Yes, I think that would be a fair assumption.

MR BLEBY:   I should inform your Honour that my instructing solicitors have also been in contact with the solicitors for the Attorney-General for the State of Queensland, who is the appellant in the other matter which is referred to in the notice of motion, and my instructions are that they do not intend to appear but have no objection to the application.  I understand a similar position pertains in relation to the Australian Liquor Hospitality and Miscellaneous Workers Union, the respondent to both of those appeals. 

HIS HONOUR:   The Registrar informed me just before we came in that one of the parties to the proceedings that you wish to be linked to has, by facsimile, indicated a view that there may be different issues that are raised in the proceedings.

MR BLEBY:   I was not aware of that.

HIS HONOUR:   And that is a matter which could affect the relief that is claimed and/or the listing arrangements in the event that relief is granted.

MR BLEBY:   I presume your Honour has had a chance to read the papers.

HIS HONOUR:   I have looked at the papers, yes.

MR BLEBY:   It is a somewhat unusual application, of course; to seek the revocation of a remittal order that was made by consent.  The position is that at the time when the orders nisi were sought and the matter was remitted, my clients were quite unaware of the application for leave to appeal in what I will call the Ambulance Employees’ Cases, but had taken the view that they wished to, in effect, review the whole question of paper disputes and the doctrine of ambit associated with it, and were quite prepared eventually to come via the Industrial Relations Court to this Court if that became necessary.

What has happened since then, of course, is that this Court has given leave to appeal in the Ambulance Employees’ Case, and the issues, at least so far as the existence of an interstate industrial dispute are concerned, are very similar, although the logs of claims, of course, on which they rely are different.  They have a number of similarities, and indeed in the cases in which I appear there is solely just the service and rejection of a log of claims and nothing else which could possibly go towards the existence of the interstate dispute.

HIS HONOUR:   But do you tell the Court that issues would be raised in your application which overlap, to some extent in your judgment, the matters which are going to be heard by the Court pursuant to the special leave granted in the proceedings heard in Melbourne on 5 February 1996?

MR BLEBY:   Yes, your Honour.

HIS HONOUR:   Well, if that is so, and having looked at the papers in the special leave application in the Liquor, Hospitality and Miscellaneous Workers’ Union Case, it does seem to me at least arguable that some issues will overlap and, if that is so, then your contention is that even though there could be some advantage in utilising the Industrial Relations Court, that would effectively deprive you of the opportunity of having your say in the determination of the overlapping issues in this Court, and that by reason of a consent order which took you out of this Court and which the respondent contesting the proceedings is content not to contest before me today, that it should be revoked.

MR BLEBY:   That is precisely our position, your Honour.

HIS HONOUR:   Well, I would be content to make the orders but I think that it would be appropriate that the sequence of the hearing of the proceedings should be considered by the Chief Justice.  He may, in fact, determine that your proceedings be listed separately and later but, whilst the matter stands reserved in the other proceedings, so that where he lists it will be a matter for the internal arrangements of the Court.

MR BLEBY:   We understand that, your Honour, and would not have thought it would occur otherwise.  My instructing solicitors have prepared some minutes of order in both matters.  I suspect however that they need a lot of surgery because the matter seemed to have got in a slight procedural tangle in that it appears to me that the practise direction initially was not followed and how the proceedings began was merely a draft order nisi and an affidavit and of course the practise direction requires a notice of motion, and the form of the minutes of order now includes an order nisi of this Court, which may be inappropriate but it does cover the principal questions, but as far as the relationship to the other proceedings is concerned is that the application be heard at the same time as the appeals in those two matters, but your Honour may wish to vary that, of course.

HIS HONOUR:   Yes, I think I will vary that.  Let us get the record in order; would you formerly read, you do not have to do so actually, but formerly read the affidavit of your solicitor so that that is on the record.

MR BLEBY:   I do formerly read the affidavit.

HIS HONOUR:   You read the affidavit of Anthony Bernard Fuller, solicitor, sworn 11 March 1996?

MR BLEBY:   Yes.

HIS HONOUR:   Is there any other affidavit material?

MR BLEBY:   In the second one, the Action Food Barns matter, your Honour ‑ ‑ ‑

HIS HONOUR:   The affidavit of Mr Fuller is read in the Lamsoon Australia Pty Limited application.

MR BLEBY:   Yes, your Honour.

HIS HONOUR:   In the Action Food Barns there is an affidavit of Anthony Bernard Fuller also sworn 11 March 1996.

MR BLEBY:   Yes, there is a later one, your Honour, which makes a correction, in fact it is in identical terms except for a few words which make a correction to the earlier one.  I do not know if your Honour has that and I am not sure why it was filed in the full form.

HIS HONOUR:   Yes I do have that; that is sworn 16 April 1996; do you read that?

MR BLEBY:   Yes, I read that one, your Honour.

HIS HONOUR:   Have you got the form of orders that you ask the Court to make?

MR BLEBY:   I have, your Honour, yes, but as I said they may need some surgery.

HIS HONOUR:   Could you identify the affidavit of Geoffrey Robert Blyth and Donald Edward Farrell; were they read in the earlier proceedings before Justice Dawson, were they?

MR BLEBY:   Yes, your Honour, they were.

HIS HONOUR:   Perhaps they ought formally to be read again before me.

MR BLEBY:   Yes.  I formally read those, your Honour.

HIS HONOUR:   I notice that in your form of orders, you refer to the courts hearing counsel for the appellants in the State of Victoria v Riordan.

MR BLEBY:   Yes.

HIS HONOUR:   Were they notified of the proceedings before the Court?  Presumably they must have had some wind of it against their communication.

MR BLEBY:   They were, your Honour, and that is one of the reasons why I think the Attorney‑General for Victoria has taken interest in the proceedings and he certainly supports the application.

HIS HONOUR:   And would you remind me of his attitude?  You are appearing for him.

MR BLEBY:   I am appearing for him and he formally supports the application.

HIS HONOUR:   Yes.

MR BLEBY:   I indicated to your Honour that the Attorney-General for the State of Queensland indicated to my solicitors that they take a neutral position, have no objection.  So there is no formal appearance for Queensland.

HIS HONOUR:   I am told that the numbers here are incorrect and that the appeals are actually M9 of 1996 and B2 of 1996.

MR BLEBY:   I apologise for that.

HIS HONOUR:   Is M9 of 1996 the State of Victoria v Riordan?

MR BLEBY:   Yes.

HIS HONOUR:   And B2 of 1996 is Attorney-General for the State of Queensland.  Which is B22 of 1995?  Who are the defendants in those proceedings?

MR BLEBY:   Your Honour, it was Senior Deputy President Riordan and the Australian Liquor Hospitality and Miscellaneous Workers Union.

HIS HONOUR:   We have not heard from them, is that correct?

MR BLEBY:   No.  My solicitors have spoken to the solicitors for the union and they take no position on the application.

HIS HONOUR:   I see.  I think we will just delete that because it will not affect their rights that your rights are protected with a proceeding that immediately follows the hearing of their proceedings, if that is what the Court orders.

MR BLEBY:   Yes.  I think it is just that when these minutes were prepared nobody quite knew who was going to appear. 

HIS HONOUR:   I am informed that the date for the hearing of the proceedings to which you want to be related has not yet been fixed and it is

unlikely to be until later in the year, so that I am not sure what the Court’s practice is here as to fixing the commencing date of the sittings.  Just one matter I need your help on, the draft form says:

and upon hearing counsel for the appellants in the matter State of Victoria v Riordan and for the appellants in matter Attorney‑General for the State of Queensland v Riordan.

Are you appearing in that interest today?

MR BLEBY:   I appear for the State of Victoria, your Honour, but not the State of Queensland.

KIRBY J:   I see.  I cannot really then say that I have heard from counsel on behalf of the State of Queensland.  I think I will just delete that, but I note what you have told me concerning the attitude that has been signified to your solicitors.  I think this is clear enough.

The order will be upon application by the prosecutors; upon reading the affidavits; upon hearing yourself for the prosecutors; upon noting the certificate of the Deputy Registrar concerning the communication from the Shop Distributive and Allied Employees Association National Office on behalf of that party; upon hearing you for the appellants in the matter of the State of Victoria v Riordan, it is ordered that the order be revoked, the respondents to show cause before a Full Court of the High Court of Australia on a date to be fixed and notified by the Registrar why the writ should not issue on the grounds that are there specified and that the application be heard at such time in relation to the appeals in matter No M9 of 1996, that is Riordan v Victoria, and B2 of 1996, that is Attorney-General of Queensland v Riordan, as the Court determines, which time shall be notified to the parties by the Registrar and the provision in relation to costs.

MR BLEBY:   On reflection, your Honour, that provision relating to costs should not be there because there are no costs associated with matters ‑ ‑ ‑

HIS HONOUR:   That is so, yes, thank you for reminding me of that.  I will just delete the fourth order.  I will sign it in its present form but if you can get that re‑engrossed that can be then filed in the Registry and served. 

Perhaps I should direct that the order be served within five days of this date.

MR BLEBY:   If your Honour pleases.

HIS HONOUR:   Can you arrange for that to be done?

MR BLEBY:   Yes, your Honour, thank you.  I am just thinking, your Honour, today is Friday, I can get it back to my instructing solicitors today.  They would have to get it back here signed and then copies served.  It may be a little bit tight in the circumstances.  Could you make it perhaps seven days?

HIS HONOUR:   Very well.  I will arrange for you to have a photocopy of the amended version so that that can be done and the original, which I initial now, will be placed with the papers of the Court.

MR BLEBY:   Thank you, your Honour.

HIS HONOUR:   The reasons that I take the course that I do are sufficiently set out in the affidavit of Anthony Bernard Fuller which suggests the arguments of the applicant. 

Although I make no determination as to the precise relationship between the proceedings now before me and the proceedings in respect of which special leave to appeal has been granted in the State of Victoria and Riordan and State of Queensland and Riordan, there is sufficient in the material that has been placed before me to demonstrate that there is, or may be, some overlap between these proceedings and the issues that are raised in these cases.  Therefore, it is appropriate, in order to avoid the possible unnecessary use of public resources of the Industrial Relations Court of Australia, to allow the prosecutors and the respondents to have an opportunity to be heard before this Court decides any matters of principle that may directly affect their respective positions, and to provide this Court with a potentially wider set of facts upon which to rule on the arguments that are to be advanced before the Court, that the present matter should be brought back into the Court, and returned to it, where it originally began.  That may be done by revoking the earlier remitter, by consent, to the Industrial Relations Court.

I say that in respect of both matters now before me.  It is, therefore, convenient that the orders sought should be made.  I note that the respondent does not oppose the orders that are sought.  Therefore, it seems appropriate to make those orders in the amended form that I have indicated. I will give the Registrar the initialled document with the amendments that I have indicated.  It should be engrossed, as amended, and served within 7 days

AT 9.53 AM THE MATTERS WERE ADJOURNED