Mayne Nickless Ltd v Kirchner & Anor- Mayne Nickless Ltd v Justice Munro

[1996] HCATrans 211

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M21 of 1996

B e t w e e n -

MAYNE NICKLESS LIMITED

Applicant

and

ALLAN GERRARD & GRAHAM KIRCHNER

Respondents

Office of the Registry
  Melbourne  No M22 of 1996

B e t w e e n -

MAYNE NICKLESS LIMITED

Applicant

and

THE HONOURABLE JUSTICE MUNRO OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

First Respondent

and

ALLAN GERRARD, IAN C. BURGESS, GIUSEPPE BERTOLINI, KENAN HASIM, ALDO LANCELLOTTI, HALUK KIRAN, LES DREW, JENIFER FRANCIS, JIM DUNCAN, LES CONSTANTINOU, ANDREW HALL, MARCO GARBELLOTTO, REFIK BATURALI, SAM SAGGESE, GEORGE WAWRUSZAK, KEVIN SPENCE, MAX CLELAND, ROSS SMITH, MAURICE STORACI, NICK EGLEZOS, CHARLIE ALBISI, NICK IOANNOU, GEOFF BROADBENT, FRANK GIANNONE, DAVID SUPER, SAVERIO VANGELI, SAL MORABITO, and A. GERBER

Second to Twenty-ninth Respondents

Applications for leave to appeal

DAWSON J

McHUGH J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON MONDAY, 5 AUGUST 1996, AT 11.24 AM

Copyright in the High Court of Australia

______________________

DR C.N. JESSUP, QC:   If it please the Court, I appear in these matters with my learned friend, MR D.J. O’CALLAGHAN, on behalf of the applicant in each case.  (instructed by Freehill Hollingdale & Page)

MR H. BORENSTEIN:   If the Court pleases, I appear on behalf of the respondents in each of the cases, except for the Commission in the prerogative writ matter.  (instructed by McMullin, Coate & Co)

DAWSON J:   I have a certificate from the Deputy‑Registrar.  She has been informed by the Australian Government Solicitor, solicitors for the first respondent in the above matters, the first respondent does not wish to be represented at the hearing of the application for special leave to appeal, and will submit to any order of the Court save as to costs.  Yes, Dr Jessup.

MR JESSUP:   If the Court pleases. These are matters which arise out of a proceeding under section 127A of the Industrial Relations Act before the Industrial Relations Commission.  When that section was in its form as then unamended by the Industrial Relations Reform Act 1993 which came into effect in March 1994, what that Act did was to remove the jurisdiction under section 127A from the Commission and to grant it to the Industrial Relations Court. At the time when that Act came into effect the present applications were pending before the Commission and the Commission had made an interim order under section 127B.

The applicants, the respondents to this application, had proceeded in the Industrial Relations Court, not under its new jurisdiction, but under its traditional jurisdiction, to enforce the interim order made by the Commission.  Our clients put two propositions to the Court.  The first was that the interim order was beyond the power of the Commission to have made in any event because it did more than merely preserve the position of a party to the contract.  And the second was that the interim order lapsed by reason of the Commission having its jurisdiction removed from it, there, therefore, no longer being a basis for any interim protection being given by the Commission.

DAWSON J:   Are we concerned with both points or just the second?

MR JESSUP:   Yes, you are, your Honour. As to the question of the jurisdiction of the Commission to make an order at all, that became the subject of an application under section 75(v) of the Constitution which came to this Court and was remitted to the Industrial Relations Court and, in due course, dealt with by the Full Court which was the Full Court below qua this present application. In the meantime, an application for an injunction in the Industrial Relations Court to enforce the order made by the Commission proceeded before a single judge of the Industrial Relations Court and there was an issue which, by agreement between the parties, was separated out for preliminary determination, that is to say whether the effect of the Industrial Relations Reform Act was to bring the order to an end by operation of law, it being an interim order and the Commission no longer having jurisdiction.

That matter was litigated and dealt with by the Industrial Relations Court at first instance. It was dealt with adversely to our client. Our client then appealed to the Full Court and both matters were dealt with by the Full Court at the same time, again, adversely to our clients, and we seek leave to appeal under section 432 of the Industrial Relations Act in relation to both matters.  Now, if we might deal first with - - -

DAWSON J:   Is it leave to appeal or special leave to appeal?

MR JESSUP:   Leave, your Honour.

DAWSON J:   Leave?

MR JESSUP:   Yes.  As we have said towards the end of our outline, as we understand the position in accordance with your Honour’s observation in Morris v The Queen, where you establish a prima facie case of error, that is the test with respect to leave to appeal, and for reasons which seem to have been unexplained by any of the extraneous materials qua the legislation or any of the parliamentary materials, it is leave and not special leave in this case.  If we may deal first with the question of the continuing validity of the interim order, notwithstanding the removal of the Commission’s jurisdiction, this was dealt with by the court below under section 8 of the Acts Interpretation Act on the basis that the Commission did not, in fact, have its jurisdiction removed to deal with pending applications. 

The court below held that the Commission continued to have jurisdiction to deal with this application to a conclusion, and if that be the case, then it continued to have jurisdiction to make an interim order.  And, of course, we would have to accept the second part of that proposition.  Section 8 of the Acts Interpretation Act is set out in the judgment of their Honours below at pages 60 and 61 of the application book.  Your Honours will see on page 61 that the court below relied on paragraph (c) of section 8 saying that there was here a right which was preserved by that section, notwithstanding the repeal of the section which gave the Commission jurisdiction.

Now, the right which the court recognised and held to exist was a right to make the application, a right to have the Commission exercise its jurisdiction to review the contract. Now, we filed some supporting materials and what we have done is to photocopy under tab 9 of those supporting materials the sections in their erstwhile form. They have not changed greatly as a result of the court having jurisdiction, but this is the form in which they took, and your Honours will see that section 127A(2) is the main section which gives a party to a contract power to apply to the Commission to review the contract on certain grounds, unfair, harsh or against the public interest.

DAWSON J:   This is under tab which, Dr Jessup?

MR JESSUP:   Tab 9, your Honour.

DAWSON J:   Thank you.

MR JESSUP:   Most of it is set out in the judgment below, but these are the complete provisions.  127A(2) sets out the grounds upon which the application for review can be made.  Now, that section was the subject of consideration by this Court in Re Dingjan.  Re Dingjan was dealt with comprehensively by the Full Court below, but oddly, not in relation to this point. The Full Court dealt, at the same time, with another case in which the parties were different. In relation to this point the Full Court did not advert to the significant observations which were made about section 127A in Re Dingjan.  For convenience, if we may take your Honours to paragraph 16 of our outline, or our summary of argument in M21. 

Your Honours will recall that Re Dingjan was a case in which, when the Commission had jurisdiction under section 127A it was contended that it formed part of the judicial power of the Commonwealth and was invalid. This Court held that was not so, that it was an administrative procedure akin to the making of an industrial award, and that what the Commission was concerned to do under that section was not to declare and enforce existing rights, but rather, to look into a contractual situation and to change the relationship which is embodied in that contractual situation.

DAWSON J:   Was that a majority in Dingjan that considered that point?

MR JESSUP:   That was an unanimous ruling on that point, your Honour.  Justice Gaudron was the only member of the Court who considered the point and other members of the Court agreed with her.  She dealt with it very shortly at pages 360 and 361 of 183 CLR.  We have set out the main part in paragraph 16 but the whole of the relevant consideration by her Honour is in an extract or a photocopy behind tab 6 in our materials.  We have not photocopied the whole of Dingjan’s Case because it is lengthy and this is the only point which arises on our argument.

On pages 360 and 361 your Honours will see that speaking for the whole Court as in the result she did, her Honour said this was an administrative function which was concerned with altering relationships, not with enforcing rights. It therefore follows, we contend, that what the Commission was doing under section 127A was not enforcing, establishing or quantifying rights but reviewing the fairness, the harshness, and the consistency with the public interest of a contractual relationship with a view, possibly, to changing the rules altogether, with a view, maybe, to setting the contract aside. What the Commission ultimately has to do is set out in section 127B(2):

An order may only be made for the purpose of placing the parties to the contract as nearly as practicable on such a footing that the ground on which the opinion is based no longer applies.

That is, the opinion that the contract is harsh, unfair, or against the public interest.  Now, the orders which the Commission might make are an order setting aside the contract in whole or in part, or an order varying the contract and they are set out in subsection (1).  So, what the Commission might ultimately do at the end of the day falls within a very wide range of possibilities and at the time when the application is made, and in present circumstances, that means at the time when this law applied, the applicants could not say what it was that they would be entitled to at the end of the day.  Their application did not do that.  They merely applied to review the contract on those grounds, and at the end of the day, any one of a range of things might have happened.

Now, this stands in contrast, we submit, to a situation in which albeit that the right needs to be established in point of law, possibly even quantified, that the right exists before parties come to court, and that is, of course, the essence of a judicial determination.  Even if it is for damages for personal injury or the like, the right to the damages exists, subject to quantification.  Now, there are two leading Privy Council decisions on this.  We have referred to them in paragraphs 19 through to 22 of our outline.  The first is the Director of Public Works v Ho Po Sang, a Hong Kong case, in which the lessee of land had applied for a building certificate.  He had been given an indication by the primary decision maker that the certificate would issue and the residents in the area who opposed the granting of a certificate petitioned the Governor in Council and the lessee put in a cross‑petition.

At that point in time, that is, after there had been a prima facie determination by the administrator and during the course of an appeal process, the law was changed such as would deny the applicant his rightful certificate under any circumstances.  What the Privy Council said is set out in those passages which we have extracted in paragraph 19.  In essence, their Lordships said that whether or not he got a certificate rested entirely “in the future”, to use their words.  And that case, we would submit, with respect, is on all fours with this case.  The other English case is the Free Lanka Insurance Case which concerned the right of an injured person to have direct access to the insurance policy of the tortfeasor who injured him or her, and, again, their Lordships said that as at the time when that person was injured by tortious conduct then the operation of the law on that day would, as a right, produce a particular result subject, of course, to quantification in relation to the actual damages.  Now, we have a difficulty.

KIRBY J:   Conceding that the matter is distinctly arguable, and conceding, also, that this is a leave case, not a special leave case, is this not simply a one‑off case between particular parties exploring well worn areas of legal principle and unlikely to be repeated at no general significance to people in arrangements of this kind?  It seems a very particular case, the statute has been change.

MR JESSUP:   Your Honour, no one can know whether it is a one‑off case.

KIRBY J:   We have not heard of any others.

MR JESSUP:   It might be optimistic to say that it is, therefore, one‑off, your Honour, but we accept, generally speaking, that this is a point of statutory construction in relation to the operation of an act on particular circumstances and we might have difficulty, if it were special leave, but it being leave, we submit that this is a point, which, if correct, would mean that our clients will not be, if I can use the vernacular, dragged through this litigation.  The present respondents are 28 or 29 in number.  The proceedings are representative.  Our clients dispute whether they should be representive or not.  There is a host of issues dealing both with collective and individual questions which we would have to litigate in this Court if we could not deal with it on this preliminary point.  As we understand it, your Honour, it was those sorts of considerations which led to the parties and Justice Northrop originally distilling out this issue to be determined as a preliminary question and, in our submission, if it is going to be determined, it should be determined correctly.

McHUGH J:   Dr Jessup, how do you deal with Esber’s Case?

MR JESSUP:   We have a difficulty, your Honour, and we are coming to Esber, and Esber is a problem for us.  We accept that.  However, in our respectful submission, it is either distinguishable or wrong and may we explain to your Honours why, with respect, we say it is distinguishable.  That was a case, as your Honour will recall, where an original administrator had made a decision adversely to the applicant in the AAT.  We would submit that you can take a view of the operation of the AAT that, although it does have to arrive at the correct and appropriate decision on the materials before it, nonetheless, you cannot escape the fact that it is correcting an error which was made on a previous occasion, and the view is, in our submission, open, and for the present purposes we so contend, that if a person has a decision already made by an administrator, then the person has a right to have the correct decision made as at that date. 

Once we give the quasi judicial forensic type process to administrative decisions and provide for a tribunal which sits on top of the administrator, then what the tribunal is essentially doing is deciding what the applicant should have got at the time when the law was in a state which would have entitled him to it.  Now, this is a different case altogether, your Honour, because the law changed here when the proceeding had only just been lodged before the primary tribunal concerned to deal with it.  The second thing we - - -

DAWSON J:   I am not entirely sure that I understand what is the right that is said to be preserved here.

MR JESSUP:   Neither are we, your Honour.

DAWSON J:   Is it the right under the interim order?

MR JESSUP:   No, because undoubtedly they had rights under the interim order if it is valid, but the question of whether the interim order came to an end by operation of law depends upon whether the main proceedings came to an end because the Commission lost its jurisdiction.

DAWSON J:   You cannot have an interim order in proceedings which no longer exist - - -

MR JESSUP:   That was our submission, and it was accepted by - well, my friend seems to accept that and that was not argued.  What the Court said was that you have a right to make an application and that that is the right.  Now, if you look at section 8 that cannot be so - section 8, again, on page 61 of the application book.  Legal proceedings and applications are the domain of paragraph (e).  A right to maintain or prosecute an application could not, we submit, come under paragraph (c), and, further, we say that is the clearest distinction which their Lordships made in the Ho Po Sang Case, that it is not good enough simply to have a right, even a right in train to appeal to an administrative officer to make a decision in your favour.

McHUGH J:   A reasoning of the Court in Esber on the section 8(c) point was obiter, was it not?

MR JESSUP:   We would like to be able to say that, your Honour, but there were two parallel bases for the decision in Esber and wrestle as we might with the wording of the Court, we could not really say that one was more important than the other.  However, we do, with the greatest of respect, if we need to go so far, we do seek to commend to your Honours what the present Chief Justice said in his dissent, which we cannot really improve on, as making this distinction between an existing right and the opportunity to apply to an administrative decision maker. 

The other thing about Esber - their Honours in the majority in Esber referred to the two Privy Council decisions without critical comment.  It was not as though they were saying, “We’re changing the law in Australia.”, and they referred to the Aboriginal Land Council decision of Justice Hope in the Court of Appeal and what his Honour said we have set out at the foot of page 7 and at the top of page 8 of our outline and that again is exactly the point which we seek to make here.  There was not any indication, in our submission, that in Esber the Court was seeking to change the law as it was clearly established.  Now, I notice the yellow light - in fact, I notice the red light is on - so, perhaps, I might deal with the other case.  I do not know if I get another yellow light for that, your Honours, but the prerogative writ matter, M 22 - - -

DAWSON J:   You are not seeking to take the full 20 minutes in the other case, are you, Dr Jessup?

MR JESSUP:   Not at all, your Honour.

DAWSON J:   Very well.

MR JESSUP:   It is a much shorter case, even at the worst of times.  In M 22 the question rose as to the scope of the Commission’s power to make an order under section 127B(3) which gives the Commission power to

make an interim order if it thinks it desirable to do so to preserve the position of the party to a contract. 

Now, if your Honours would go to page 33 of the application book you will see what the Commission did.  Page 33 sets our the terms of the interim orders which were actually made, and A(1) on page 33 - it is a fairly detailed provision.  One needs to go down and underline only those parts of it that actually have legal effect, but what one comes up with is that:

notwithstanding any action by or on behalf of the Company to terminate the contract......the term of the contract extends beyond such termination......until the completion of the hearing and determination of the application......as though the contract remains on foot as an executory contract.

So the interim order seems to have been made in a way which would treat the contractors remaining on foot, but in an executory sense.  We do not complain about that provision.  We complain about (3) on page 34:

That in the event of the services of the Owner Driver being terminated other than under clause 9.3 -

which your Honours do not need to be concerned about -

the company......shall take measures that are reasonably practicable having regard to the -

circumstances -

(i)(a)  to find an acceptable alternative engagement or employment -

or, (b):

to give the Owner Driver priority and preference for engagement or employment in vacancies -

Now, what has happened is this:  the Commission has said, “The first thing we are going to make an order that keeps the contract on foot.  Secondly, we are going to make you do more than the contract provides.  We are going to make you give the owner driver work in preference to others.”  In preference to others who may be no part of the litigation and who may have contracts which bear no resemblance with these contracts.  So, what we say the Commission has done is to raise the position of that party to the contract above any position it would have occupied during the pendency of the contract, and to that extent, it has not merely preserved the party’s position but improved it. 

Now, whether or not the driver was entitled to work under the contract or to be allocated work and how such limited work would be allocated out between different drivers who might want it, no doubt those would be matters which could be partly contractual, partly administrative, but one way or another, under the contract there would be a result.  What the Commission has done is not simply under Part 1 of the order to maintain the contract in existence so that those consequences would work through, but has elevated the position of a driver, a party to these proceedings, outside the contract to get priority in relation to certain work, and we would submit that the Commission has gone beyond anything which subsection (3) permits, and we seek leave upon those grounds.  May it please your Honours.

DAWSON J:   Thank you, Dr Jessup.  Yes, Mr Borenstein?

MR BORENSTEIN:   If the Court pleases.  Can I say at the outset, in my submission the test for leave is not that which my learned friend contends for.  My learned friend refers to your Honour Justice Dawson’s judgment in Morris.  Your Honour may recall that in that judgment you were at pains to point out the burdens on the Court which justified, or which underlay, the concept of giving special leave in exceptional cases only.  Similar comments were made by Justice Kirby on the last occasion that the Court sat here on leave day in another industrial matter and, in that matter, and we have given the Court a reference to it in our summary, the Court, which included Justice McHugh, applied a test which was that there was sufficient prospect of success to warrant the grant of leave. 

Now, that is a test which approximates much more closely to the tests which are applied in the State appellate courts for leave to appeal against interlocutory judgments there, and one would have thought, having regard to the considerations which your Honour Justice Dawson identified in Morris, that all the more so should a higher hurdle applied in this Court than simply demonstrating a prima facie error.

DAWSON J:   What is eliminated is the consideration that the matter had special significance beyond the parties.

MR BORENSTEIN:   Yes.  I accept that, but that apart, your Honour, it would be a curious situation for a Court working under the burdens which are identified in Morris to simply give leave on the basis of a prima facie error without any regard to any other factors of the case.  That brings me to the second point, and it is this; as Justice Kirby - - -

DAWSON J:   For my part, it is a matter of some subtlety, I suppose, but I do not see a difference between prima facie error and a likelihood of success.

MR BORENSTEIN:   Well, if that is so, your Honour, then I have no quibble with the terminology.  Certainly, as I perceive what my learned friend was putting, he did, but I accept what your Honour says.  The second point is this:  that this is a matter which does not extend beyond the circumstances of this particular case.  It has no significance beyond this case.  It is a matter which deals - - 

DAWSON J:   That is what we have just identified as being irrelevant.

MR BORENSTEIN:   Yes, but lest it form any part of the Court’s consideration I just simply make that point because it is a point that Justice Kirby did raise.  Now, the response that we make on the question of the preservation of the proceedings before the Commission, the preservation of the right under section 8(c) of the Acts Interpretation Act is that Esber directly applies to this case and governs this case, that the circumstances in Esber are, to all intents and purposes, the same as in this case.  In Esber’s Case the majority held that section 8(c) was appropriate and adequate to protect the right of a litigant to pursue to completion litigation which had been commenced. 

That is precisely the position which obtains here.  My clients had commenced their litigation in the Commission to pursue a cause of action given to them by the statute.  The cause of action was the right to seek redress in respect of unfair provisions in their contracts.  That was the cause of action.  The sections, as your Honours have seen, identify what must be established by the applicants in those proceedings in order to secure, firstly, a declaration from the Commission that their contracts are unfair in a particular way and, then, secondly, in section 127B the Commission is given power to provide redress.  Now, in my submission, that is analogous to the sort of situation one might strike in many pieces of litigation, in many causes of action. 

Your Honours will have seen from the judgments, both of Justice Northrop at first instance, and in the Full Court, that reference is made to other provisions in this same Act where similar processes are undertaken and, in my submission, those references are apposite, because they demonstrate that there is a right in the sense of section 8 in my clients to have their litigation completed, it having commenced.  That is again on all fours with the position in Esber.  My learned friend says that the proceedings in the Administrative Appeals Tribunal are not a hearing de novo.  In my submission, and it is noted in our outline, that flies in the face of established authority about the role of the AAT and, indeed, in Esber itself it is noted, both in the majority judgment and, particularly in the judgment of the present Chief Justice, that the role of the AAT is to exercise the administrative function de novo, anew, on the basis of the material that it has produced to it. 

So, we submit, that the AAT in Esber’s Case was performing precisely the same function as is being performed by the Commission in relation to my clients and it is submitted that there is no point of distinction, and it is further submitted that there is no basis for overruling Esber and, indeed, as we have indicated in our summary, Esber has been followed in this Court quite recently. 

We also draw a distinction with the case of Ho Po Sang.  My learned friend’s argument below and here are heavily focussed on Ho Po Sang and Ho Po Sang was a case in which the process that was pending was a decision by the Governor which is described in the relevant statute, which is adumbrated in the decision itself, as being a decision which the Governor makes in his absolute discretion which is final and not appellable.     Now, that process, and awaiting the outcome of such a procedure is clearly different to the sort of process which his Honour Justice Northrop described in the present case as being a quasi judicial process.  Indeed, I have given in the outline a reference to the passage from the judgment of Justice Deane in the Queensland Insurance Case, which was later picked up by the Court in Citicorp, which sets out the view of the Court as to the nature of the process in the Commission and the entitlement of an applicant in the Commission to have that process discharged by the Commission. 

So, it is submitted, Esber governs the situation.  We are on all fours with Esber.  We have a pending piece of litigation.    There is no indication to the contrary in the amending legislation that suggests that our right of action should be terminated and, indeed, as was pointed out by the Full Court below, the right of appeal from decisions of the Commission under these sections, which was introduced at the time the sections were introduced, was allowed to remain in the Act after these sections were changed by moving the future jurisdiction to the Court.  In my submission, that is a clear indication from the legislature that they intended that any pending matters that might result in a right of appeal would be preserved, otherwise there would be no point in preserving the right of appeal from a jurisdiction that had been totally aborted and wiped out.

McHUGH J:   The Court applied Esber in Victrawl, did it not?

MR BORENSTEIN:   Yes, it referred to it, yes.

McHUGH J:   Referred to it.

MR BORENSTEIN:   Yes, both in the majority and in Justice Brennan’s judgment.  There is a reference to that in the summary, your Honour.  So we say that that really deal with the appeal in M 21.

In relation to M 22, your Honours, it is submitted that at the very highest for my learned friend, the best that he could in that proceeding which is a proceeding for prerogative relief, is to point to a possible error within jurisdiction.  There is no question that what the Commission was endeavouring to do was to make an order of the kind referred to, and permitted, under section 127B(3).  It was endeavouring to preserve the position of the parties, plural, both the principal contract and the sub‑contractors, and the Court needs to understand that to understand the form of the order.

The Commission was asked at a point of time shortly before these drivers were to be terminated or retrenched to make an order preserving their employment, and what the Commission did, after lengthy argument, and after some - - -

DAWSON J:   What is being sought in that one is certiorari or prohibition?

MR BORENSTEIN:   Prohibition, your Honour.

DAWSON J:   Prohibition, yes.

MR BORENSTEIN:   And, I think, certiorari.  What the Commission was asked to do was to make an order preserving the employment.  What the Commission did was to balance the concerns of the employer about having to continue to employ people it did not want to employ for commercial reasons and the position of the employees in relation to their employment, so what it did was, it made an order in parts.  The first part of the order was to preserve the actual contractual relationship in an executory form, and then in the other parts of the order, as your Honours would see, it went on to make some other arrangements that operated within that context.  One of the arrangements was that there would be consultations and so on in relation to proposed retrenchments and another part of that arrangement was that while these things were being sorted out, if there was work available within the organisation of the principal contractor, that that work would be made available to these drivers.

Your Honours will see at page 59 of the appeal book that the Full Court dealt with this matter and accepted that it was open to the construction, that one needed to read the order as a whole, and that is, of course, something that the applicant here does not do, and the Court was able to put a construction on the order that is entirely within the parameters of section 127B(3).  Now, that being so, it cannot be said that this is not an order that is not reasonably referable to the power and purpose which is given, and that it is not exercised bona fide, and, so, if one is thrown back to having to defend the order one relies on the Hillman principles and one says to the applicant, “You haven’t demonstrated that there has been an excess of jurisdiction such as to warrant intervention by prerogative relief.” 

We say, in any event, it is quite clear that reading the order as a whole, as one must, that what it was seeking to do was to preserve various aspects of the relationship.  It preserved the contract as such.  It converted it into an executory contract to accommodate the concerns of the employer and then it made a supplementary provision to say that while it is executory, if work is available these people, who would otherwise be working, shall get it.  Now, that is the sum total of the order.

DAWSON J:   In any event, it was a matter of discretion to refuse prerogative relied, was it not?

MR BORENSTEIN:   Yes, of course, your Honour.  In my submission, and we ask for this, we say to the Court that the Court ought not to give prerogative relief.

DAWSON J:   We are not being asked for prerogative relief, are we?

MR BORENSTEIN:   Well, I understand, your Honours, that your Honours are asked to entertain an appeal from the decision of the Full Court.

DAWSON J:   And then to make such order as it ought to have made?

MR BORENSTEIN:   Yes, now that is what I understood.

DAWSON J:   Yes, but the appeal is the hurdle, first of all?

MR BORENSTEIN:   Yes.  What we would say is that in a case like this, (a), there is no error demonstrated, but, (b), in any event, as we have pointed out in our summary, this is an order which was capable of appeal, under the Act is still capable of appeal because the appellate provisions are still in the Act, and this is an issue which was not raised until the day of the trial before

Justice Northrop.  We would submit that it is a totally inappropriate matter for the Court to exercise its discretion.  So, we would say that whatever else, at the end of the day this is not a point that the applicant would succeed on in this Court.  We say principally that the order is clearly valid as explained by the Full Court and for those reasons it is submitted that neither of these matters are matters which warrant the grant of leave.  If the Court pleases.

DAWSON J:   Thank you, Mr Borenstein.  Dr Jessup?

MR JESSUP:   We would, of course, be content to have your Honours apply whatever formulation, prima facie case or apparent error, or however it may be put. 

DAWSON J:   Is there any difference?

MR JESSUP:   There is not, your Honour, no.  The second point we seek to make is that it is, in our submission, going too far to say that Victrawl applied or followed Esber.  Esber was noted in a fairly passing sort of way in a couple of footnotes, one in the joint judgment and one in the judgment of Justice Brennan, as he was.  Third, my learned friend’s reference to what Justice Deane said in the Queensland case is quite out of context in this sense, that he was referring to the right to have jurisdiction exercised in the context of section 111 of the Act, which would have excused the Commission from exercising its jurisdiction.  Quite a different use of the word “right” from that which, on the cases as consistently applied in section 8.  Fourthly, my learned friend referred to Hillman’s Case.  If he was intending to refer to Hickman’s Case and to suggest that the privative provision in the Act protects the interim order, it does not, of course.  The privative provision applies only to awards and this was not an award. 

Finally, with respect to my friend in inviting your Honours to predict that this application that we make might ultimately be refused as a matter of discretion, that was not the way the Full Court dealt with it below.  We, having had a Full Court decision on this point, it is res judicata for the purposes of these proceedings.  If we are ever to establish that the Commission did not have jurisdiction it must be as a result of an appeal pursuant to leave given on this application.

DAWSON J:   Thank you, Dr Jessup.  Upon the authority of Esber v The Commonwealth, the Court does not consider that a case of prima facie error has been made out.  Leave to appeal in matter M21 is accordingly refused.

In the other matter the Court does not consider that the refusal of prerogative relief was inappropriate at an interlocutory stage and leave to appeal is accordingly refused.

AT 12.06 PM THE MATTER WAS CONCLUDED