R v Stanton; Ex parte

[1978] HCA 15

HIGH COURT OF AUSTRALIA

Barwick C.J., Stephen, Mason, Jacobs, Murphy and Aickin JJ.

THE QUEEN v. STANTON; Ex parte ASSOCIATED AIRLINES PTY. LTD.

(1978) 141 CLR 281

2 May 1978

Industrial Law (Cth)

Industrial Law (Cth)—Conciliation and Arbitration—Flight Crew Officers' Industrial Tribunal—Industrial matters—Industrial question—Dispute—Log of claims seeking award to govern terms and conditions of employment—Failure to accept—Notification of dispute concerning summary dismissal—Whether pertaining to remuneration or other terms and conditions of service or employment—Registered organization—Eligibility—Pilots engaged in commercial aviation—Employer not making or concerned to make profit—Whether intention to make profit essential to commercial activity—Conciliation and Arbitration Act 1904 (Cth), ss. 88H*, 88U (1) (b) (iii)**. * Section 88H of the Conciliation and Arbitration Act 1904 (Cth) contains the following definitions:— "'Dispute' includes—. . . (d) a question arising in relation to a dispute". "'Industrial matters' means all matters pertaining to the remuneration or other terms or conditions of service or employment of, or affecting or relating to work done or to be done by, flight crew officers employed or to be employed by employers." "'Industrial question' means a dispute or question as to industrial matters, including an inter-State industrial dispute". ** Section 88U (1) provides, so far as is material, that "The Tribunal (scil., Flight Crew Officers' Industrial Tribunal) is empowered—. . . (b) to consider and determine industrial questions in so far as the industrial matters concerned relate to . . . (iii) trade and commerce with other countries or among the States . . ."

Decisions

1978, May 2.
The following written judgments were delivered: -
BARWICK C.J. The Australian Federation of Air Pilots ("the Federation") is a body declared under s. 88Z of the Conciliation and Arbitration Act 1904 ("the Act") to be a body to which that section applies. According to the rules of the Federation, "any person being a British Subject who is employed or is usually employed either wholly or partly in the profession of pilot, flight engineer or flight navigator in Commercial Aviation, but excluding pilots, flight engineers and flight navigators seeking or holding, part time employment where such pilot, flight engineer or flight navigator offering his services on a part time basis is, in the opinion of the Branch Committee, permanently established in a career or interests outside the aviation industry and who holds a Commercial Pilot's Licence, Flight Engineer Licence, Flight Navigator Licence, or such equivalent as may be issued from time to time by the Department of Civil Aviation or other appropriate Authority is eligible for membership, together with such other persons who have been appointed officers of the Federation". (at p284)

2. Associated Airlines Pty. Ltd. ("the prosecutor") is a limited liability company, registered under the company laws of the State of Victoria. Its objects, according to its memorandum of association, include the object of engaging in the business of transportation whether by land, water or air and, indeed, in the stratosphere. It has operated for the past forty years. Its issued capital is held entirely, though not in equal parts, by The Broken Hill Proprietary Company Ltd. ("B.H.P.") and Conzinc Riotinto of Australia Ltd. ("C.R.A."). It operates two aircraft owned by B.H.P., an aircraft owned by C.R.A., an aircraft owned by Comalco Ltd. of which company's issued capital C.R.A. owns forty-five per cent, and an aircraft owned by Mines Transportation Pty. Ltd. which company is a wholly owned subsidiary of C.R.A. The operation of these aircraft exclusively by the prosecutor involves, amongst other things, the provision of all the services, stores and personnel necessary for the operation and maintenance of the aircraft. Thus, apart from the work of maintaining the aircraft, the prosecutor employs suitable qualified air crew on terms and conditions prescribed or agreed by the prosecutor, enforces safety standards to be observed by air crew, arranges rosters for them, employs hostesses, arranges catering for those carried in the aircraft, and accommodation and transportation for air crew during stopovers at interstate or overseas locations. (at p284)

3. The aircraft operated by the prosecutor in general carry passengers and goods as requested or directed by the owner of the aircraft for the business purposes of the owner. (at p285)

4. From time to time the prosecutor hires further aircraft from "outside" organizations to be used for the purposes of one or more of the owners of the aircraft to which I have already referred. On occasions, the aircraft of one of those owners is used for the purposes of one of the other owners and from time to time the prosecutor hires one of those aircraft to an "outside" organization for reward. (at p285)

5. For these operations, the prosecutor employs thirteen pilots, each of whom holds either a commercial or a senior commercial licence under the Air Navigation Regulations. These pilots have been in the prosecutor's employ for a considerable number of years and have made and still make their employment with the prosecutor their sole or principal sphere of employment. (at p285)

6. During the year ending in May 1977, aircraft operated by the prosecutor carried out 64 flights overseas and 256 flights interstate. No flights wholly within a State were flown. According to its accounts for that year the prosecutor, who renders accounts to and is paid by the owners of the aircraft for the actual cost of running and maintaining the aircraft and for depreciation, income tax and other expenditures and outgoings according to an agreed formula, made a profit from its activities in operating the aircraft which, after depreciation, amounted to $170. After deducting interest from that sum there was no profit. (at p285)

7. In May 1977 the Federation served upon the prosecutor a log of claims seeking an award to govern the terms and conditions of employment of pilots by the prosecutor. Failing acceptance of the log, the Federation notified the Flight Crews Officers Industrial Tribunal ("the Tribunal") of a dispute between itself and the prosecutor. (at p285)

8. Part IIIA of the Act erects the Tribunal and specifies its powers and functions. So far as presently relevant, the Tribunal is empowered to consider and determine industrial questions arising in industrial matters in so far as the matters relate to trade and commerce with other countries or amongst the States. As well, the Tribunal is empowered to prevent or settle by conciliation or arbitration interstate industrial disputes (s. 88U). (at p285)

9. Part IIIA, as set out in s. 88H, has its own definitions of an "inter-State industrial dispute", of "industrial matters" and of an "industrial question". These definitions are not all as wide as those in s. 4 (1) of the Act, a circumstance to which I shall later make further reference. (at p285)

10. The notification by the Federation of a dispute ultimately came before the respondent Commissioner exercising the powers of the Tribunal. The prosecutor there submitted that no industrial dispute, and particularly no interstate industrial dispute, had arisen for the reason that the prosecutor in its employment of aircraft pilots was not engaged in trade and commerce and that its activities with aircraft were not commercial because the making of profit is not its purpose in engaging in the operation of the aircraft nor is profit the result of those operations. As a corollary to this submission, the prosecutor maintained that pilots employed by it were ineligible to be members of the Federation because of not exercising their profession in commercial aviation. Hence it was said the Federation had no standing before the Tribunal to represent pilots in the employ of the prosecutor. (at p286)

11. On 7th October 1977, whilst the proceedings in relation to the Federation's log of claims had not been determined, the Federation notified to the Tribunal an industrial situation likely to give rise to an industrial dispute between the Federation and the prosecutor with respect to the following matters:
"1. On 3/5/1977 the Australian Federation of Air Pilots served a Log of Claims and Letter of Demand on Associated Airlines Pty. Ltd.
2. On 29/8/1977 Mr. Commissioner Stanton reserved his decision on the finding of a dispute in the matter (T.No. 19 of 1977). 3. Subsequently the employer respondent unilaterally reduced or changed to the direct disadvantage of the employee, certain long standing employment conditions. 4. On Monday 3/10/1977, Captain A. Frank, a pilot with twenty three years of service and an active member of the A.F.A.P was summarily dismissed without reason. 5. Threats against the continued employment of other A.F.A.P. members have been made during the period in question. 6. The A.F.A.P. is of the view that the abovementioned facts are likely to give rise to a situation of industrial disputation." (at p286)

12. Captain Frank is, and for a period of years, has been enrolled as a member of the Federation. (at p286)

13. Having heard both the notifications by the Federation, that arising out of the service of the log of claims and that of 7th October, the respondent Commissioner decided that the failure of the prosecutor to agree to terms of the Federation's log of claims had not given rise to an interstate industrial dispute but he decided in substance that it did give rise to an industrial question in which the industrial matters concerned related to interstate and overseas trade and commerce. Upon the notification of 7th October, he expressed himself as follows:

"I have found that the log of claims, you will recall, was an industrial question relating to interstate trade and commerce. I was not quite sure in my mind then whether I had the same view in respect of the dismissal of a pilot. However I must say that I have formed the conclusion that there is no difference and that the tenure of an employee's employment must also be regarded as being an industrial question relating to interstate trade and commerce in the circumstances, so it would be my intention to proceed with the hearing of the dismissal of the Pilot in respect of whether or not this tribunal considered that the employer's action was harsh unreasonable or unjust."

The prosecutor thereafter sought and obtained orders nisi for prohibition to restrain further proceedings by the Tribunal upon each of the notifications by the Federation. (at p287)

14. The principal basis for the prosecutor's submission before this Court that no industrial question, in which the industrial matters concerned related to interstate or overseas trade and commerce, has arisen between the Federation or Captain Frank and the prosecutor, is said to be found in the manner in which the prosecutor carries on business. I have already briefly stated in this connexion the essential circumstances. (at p287)

15. The prosecutor puts forward a further basis for this submission in that, so the prosecutor says, the industrial matter with which either question is concerned does not relate to trade or commerce, and particularly not to interstate or overseas trade and commerce. (at p287)

16. From the detailed facts as to the prosecutor's financial operations it emerges that the prosecutor exists and is run chiefly to provide transportation services to its two shareholders and that the gaining of profit for itself is not a principal purpose of its existence or of its activities. But its corporate existence, separate from that of its shareholders, cannot be ignored and the activities of the prosecutor cannot be regarded as no more than activities of those shareholders themselves: that is to say, what the prosecutor does in aerial transportation cannot be regarded, as it were, as the private activity of each of the companies who are the shareholders in the prosecutor. Regarded as a separate entity, the prosecutor charges for its services in operating the various aircraft, endeavouring no doubt to charge no more than will merely reimburse it for its expenditure in providing the services: none the less, it does not operate the aircraft in any relevant sense gratuitously. (at p287)

17. Further, it cannot be denied, in my opinion, that the prosecutor is carrying on a business, the business of aircraft operation and maintenance, its operation of the aircraft being predominantly of an interstate character. Further, it cannot be denied that it carries on that business for reward. The most that can be said is that its reward equals only the cost of its operations and that such a result is designedly achieved. If the activities of the prosecutor had to be described as either in public transport or in private transport, they might well be described as activities in private transport because members of the public do not have access to them. But such a description is, in my opinion, irrelevant for present purposes. On the other hand, the pilots employed by the prosecutor are exclusively engaged in flying aircraft, occasionally overseas but predominantly interstate, and necessarily under the Air Navigation Regulations must have commercial pilot's licences. (at p288)

18. The description given in the material before the Court of the prosecutor's activities and finances is of a highly organized commercial undertaking, having plant and equipment of a large capital value, holding spare parts of significant cost, submitting income tax returns and exhibiting all the indicia of a trader in transportation services. (at p288)

19. In my opinion, neither the gaining of profit nor the intention or purpose to gain profit is an indispensable ingredient of a commercial operation. Such a view is supported by the expressions used in In re Duty on Estate of Incorporated Council of Law Reporting for England and Wales (1888) 22 QBD 279 , by Pollock M.R. in Brighton College v. Marriott (1925) 1 KB 312, at p 320 , and by Dixon J. in Bank of New South Wales v. The Commonwealth (1948) 76 CLR 1, at p 381 . I conclude therefore that the prosecutor carries on the business, amongst other things, of aerial interstate transport for reward and in so doing is itself engaged in trade and commerce between the States. Transportation for reward is itself trade and commerce. So much Australian National Airways Pty. Ltd. v. The Commonwealth (1945) 71 CLR 29 establishes. Also, in so far as the prosecutor operates such transport overseas, it is engaged in trade and commerce with other countries. (at p288)

20. It follows, in my opinion, from the conclusion that the prosecutor is engaged in commercial activities, that the pilots and other air crew which it employs in its transport operations are eligible to be members of the Federation. There is no ground based on their employment with the prosecutor on which a branch committee could exclude them from membership. They are not pursuing a career outside the aviation industry. Thus, the Federation could represent these pilots and was a proper party to make and prosecute the notifications to the Tribunal which it made in May and October of 1977. (at p289)

21. I turn, then, to consider whether the situation of the served but not accepted log of claims and the circumstances of the dismissal of Captain Frank raised industrial questions in which the industrial matters concerned related to interstate or overseas trade and commerce. (at p289)

22. Sections 88u (1) (b) (iii) and 88u (2) must provide the jurisdiction of the Tribunal to consider and determine what has been submitted to it by the Federation. Those provisions are based on the legislative power given by the Parliament by s. 51 (i.) of the Constitution. No challenge is made to the validity of any part of those provisions. (at p289)

23. Section 88u (1) (b) (iii) requires the industrial question which the Tribunal is empowered to consider and determine to concern an industrial matter. Indeed, the exclusive definition of an industrial question in s. 88H is "a question as to an industrial matter". So far as presently relevant, an industrial matter is a matter "pertaining to the remuneration or other terms and conditions of service or employment of . . . flight crew officers employed or to be employed by employers". (at p289)

24. If there is such an industrial matter with which the question is concerned, it is only in so far as that matter relates to interstate or overseas trade and commerce that the question falls within the Tribunal's jurisdiction. (at p289)

25. Section 88u (2), so far as presently relevant, deems an industrial matter to relate to such trade and commerce in so far as the matter relates to employment of flight crew officers engaged in any such trade and commerce. I remark in passing that this sub-section does not expand or add to the exclusive definition of an industrial matter in s. 88H. It merely provides a relevant nexus between an industrial matter as defined and interstate or overseas trade and commerce. (at p289)

26. The two questions which the notifications raised are, first, what should be the terms and conditions of employment of pilots and air crew employed by the prosecutor; that means, having regard to the opinion I have already expressed, employed by the prosecutor in its business of interstate and overseas transport for reward? The second question is whether, in exercising its admitted right of dismissal of a pilot from its employment, the prosecutor acted in an industrially harsh or unreasonable manner likely to cause industrial unrest or disputation. (at p289)

27. We are not concerned in this application with any question as to the relief which the Tribunal might give in consequence of its consideration and determination of either of these questions. As to the question relating to the terms and conditions of employment, there could be little doubt that it could by its award fix those terms and conditions if it could entertain the question. There may be serious doubts as to the power of the Tribunal to make any order, even if it could entertain the second question. It is, however, the jurisdiction of the Tribunal to entertain the questions which is under challenge and which falls for our decision. The situations out of which those questions arise are capable, in my opinion, of being held to be prone to cause industrial unrest and disputation. Undoubtedly, such unrest and disputation in a business of interstate and overseas transportation has a direct effect upon interstate and overseas trade and commerce. (at p290)

28. It is clear enough that the matter of the terms and conditions of employment of the pilots employed by the prosecutor, raised by the log of claims, is an industrial matter and that the notification of May 1977 did raise an industrial question. But did the industrial matter concerned in each question relate to interstate or overseas trade and commerce? It seems to me that the terms and conditions of pilots flying aircraft engaged in interstate and overseas transportation necessarily directly relate to interstate and overseas trade and commerce. In my opinion, therefore, without resort to the provisions of s. 88u (2), the first question is within the competence of the Tribunal. (at p290)

29. However, the notification of October 1977 calls for further examination. As I have said, it raised the question whether Captain Frank ought in industrial fairness to have been dismissed. Does that question concern an industrial matter as defined? (at p290)

30. The definition of "industrial matters" in s. 88H differs from that of "industrial matters" in s. 4 in that the former does not contain any equivalent of pars (j) or (k) of the latter: nor are its opening words as wide as those of the definition in s. 4. That definition extends to all matters pertaining to the relations of employer and employee and in par. (j) to the non-employment of any particular persons and in par. (k) to the right to dismiss or to refuse to employ or the duty to reinstate in employment any particular persons. It was pointed out in Reg. v. Portus; Ex parte City of Perth (1973) 129 CLR 312 that the question whether an employer ought in industrial fairness to exercise an admitted right of dismissal is not itself a matter pertaining to the relationship of employer and employee. Such a question does not arise until that relationship is ended, or at any rate arises only in a situation in which the dismissal has occurred or may occur. It therefore seems to me that, having regard to the definition in s. 88H, neither the dismissal of a pilot nor the circumstance of a lawful dismissal is itself an industrial matter: it does not pertain to the terms and conditions of employment of, or to work done or to be done by, the pilot. Thus, at least for that reason the question whether it was industrially fair and proper to exercise the admitted right of dismissal is not an industrial question within the definition of "industrial question" in s. 88H. (at p291)

31. It was suggested, however, in argument that s. 88u (2) might be called in aid in determining whether the circumstances of the dismissal raised an industrial question. I have already called attention to the precise terms of that sub-section. It deems an industrial matter to relate to trade and commerce in so far as the industrial matter relates to employment of persons for the performance of duties as flight crew. But if the sub-section is to operate, there must first be an industrial matter. The sub-section adds nothing to the defined content of an industrial matter. The narrowness of the definition of "industrial matters", in my opinion, precludes the dismissal of a pilot being an industrial matter for the purposes of Pt IIIA of the Act. I am therefore of opinion that the second question is not one which the Tribunal could consider and determine. (at p291)

32. Accordingly, I would discharge the order nisi in so far as it relates to the notification of May 1977 but make it absolute in so far as it relates to the notification of October 1977. (at p291)

STEPHEN J. These proceedings originate in two notifications by The Australian Federation of Air Pilots of disputes, each of which concerns flight crew officers in the employment of the prosecutor, Associated Airlines Pty. Ltd. (at p291)

2. The first of these notifications relates to the prosecutor's failure to accede to a log of claims served upon it by the Federation. For the reasons expressed by the Chief Justice, whose reasons for judgment I have had the advantage of reading, I agree that the order nisi for prohibition should be discharged in so far as it concerns the proceedings relating to this first notification. (at p291)

3. There remains the second notification, whose terms and surrounding circumstances are described in other judgments. It gives rise to what is, essentially, a question of the meaning to be given to the phrase "industrial questions" in s. 88u (1) (b) of the Conciliation and Arbitration Act 1904. That paragraph empowers the Flight Crew Officers' Industrial Tribunal to consider and determine "industrial questions in so far as the industrial matters concerned relate to" certain specified subject matters. The words of the paragraph which I have quoted, straightforward enough on their face, lead, on examination, into that thicket of definitions which is s. 88H, where defined meanings ramify and intertwine, to the confusion of those who enter it. (at p292)

4. The matter for determination is whether questions about the alleged summary dismissal by the prosecutor of a Captain Frank, a member of the Federation, about allegedly disadvantageous changes made by it to the employment conditions of its flight crew staff and about alleged threats by it concerning the continued employment of other of its flight crew staff, also members of the Federation, are "industrial questions" within s. 88u (1) (b). (at p292)

5. The phrase "industrial question" is among those defined in s. 88H. In defining it two terms which are themselves defined terms, "dispute" and "industrial matters", are employed. To appreciate its effect s. 88u (1) (b) must be read after transposing for the words or phrases so defined the relevant part of these various definitions. By this means that portion of s. 88u (1) (b) which I have already quoted may be seen to empower the Tribunal to consider and determine, inter alia, "a dispute or a question arising in relation to a dispute as to all matters pertaining to the remuneration or other terms or conditions of service of flight crew officers in so far as the matters so pertaining relate to" certain specified subject matters. (I have here, in applying the definition of "industrial question" to s. 88u (1) (b), made use of par. (d) of the definition of "dispute" together with the presently relevant part of the definition of "industrial matters".) (at p292)

6. In his reasons for judgment Jacobs J. has described the situation as to proceedings which were already before the Commissioner, by reason of the first notification, at the time of this later notification. In the light of that situation each of the matters referred to in the second notification was, in my view, within the terms of s. 88u (1) (b) when expanded by reference to the definitions in s. 88H; each was a question arising in relation to a dispute as to a matter pertaining to the conditions of service of flight crew officers. The relevant dispute was that occasioned by the prosecutor's failure to accede to the log of claims and, for the reasons stated by my brother Jacobs, I would conclude that each of these matters, as alleged in the notification, arose in relation to it. (at p293)

7. This conclusion in no way affects what was decided in Reg. v. Portus; Ex parte City of Perth (1973) 129 CLR 312 . The question whether the prosecutor ought, as a matter of industrial fairness, to have dismissed Captain Frank is not in itself an industrial question. It is, however, a question arising in relation to an existing dispute (see par. (d) of definition of "dispute" in s. 88H) and thus falls within s. 88U (1) (b). (at p293)

8. I would for these reasons discharge the order nisi in respect of the second notification as well as in respect of the first notification. (at p293)

MASON J. I have had the advantage of reading the reasons for judgment prepared by the Chief Justice with which I agree. I would therefore discharge the order nisi in so far as it relates to the notification of May 1977 and make it absolute in so far as it relates to the notification of October 1977. (at p293)

JACOBS J. (at p293)

Notification of Industrial Dispute T. No. 19 of 1977 dated 13th May 1977. (at p293)

2. I agree with the reasons which have been expressed by the Chief Justice for his conclusion that the order nisi, in so far as it relates to the notification of May 1977, should be discharged. I do not wish to add anything upon this aspect. (at p293)

Notification of Industrial Dispute T. No. 43 of 1977 dated 7th October 1977. (at p293)

3. This notification was of an industrial situation which was likely to give rise to an industrial dispute. In pars 1 to 5 it set out certain facts as follows:
"1. On 3/5/1977 the Australian Federation of Air Pilots served a Log of Claims and Letter of Demand on Associated Airlines Pty. Ltd.
2. On 29/8/1977 Mr. Commissioner Stanton reserved his decision on the finding of a dispute in the matter (T. No. 19 of 1977). 3. Subsequently the employer respondent unilaterally reduced or changed to the direct disadvantage of the employee, certain long standing employment conditions. 4. On Monday 3/10/1977, Captain A. Frank, a pilot with twenty three years of service and an active member of the A.F.A.P. was summarily dismissed without reason. 5. Threats against the continued employment of other A.F.A.P. members have been made during the period in question." It concluded in par. 6 as follows:
"6. The A.F.A.P. is of the view that the abovementioned facts are likely to give rise to a situation of industrial disputation." (at p294)

4. It is to be observed that no award of remuneration or other terms or conditions of service or employment of, or affecting or relating to work done or to be done by, flight crew officers is here sought. The facts alleged do not raise an "industrial matter" within the meaning assigned to these words in s. 88H. In particular no order was sought for reinstatement of Captain Frank, and it may be remarked that when the matter came before the respondent Commissioner he stated quite clearly that he did not regard himself as entitled to make any such order. (at p294)

5. The notification T. No. 43 as an industrial situation which could lead to industrial disputation was, as the recital of alleged facts showed, a development from the "paper dispute" - the claims and failure to accede to them which were the basis of the notification T. No. 19. It had no independent existence in the sense that it could be resolved by the making of an award in respect of any industrial matter within the definition of those words in s. 88H. (at p294)

6. Nevertheless the facts stated raised questions which had arisen in relation to the industrial dispute T. No. 19. The definition of "dispute" includes, in par. (d) of s. 88H, "a question arising in relation to a dispute". (at p294)

7. The word "question" in this context cannot mean only a question which is, standing by itself, an "industrial question" within the definition of the latter words in s. 88H. These words are themselves defined to mean "a dispute or question as to industrial matters". The word "dispute" must be there read in terms of the definition as including a question arising in relation to a dispute. Therefore an "industrial question" includes not only an actual dispute as to an industrial matter but also a question arising in relation to such an actual dispute. (at p294)

8. The situation was thus as follows. There was before the Commissioner by virtue of T. No. 19 a dispute as to remuneration and terms and conditions of service or employment, clearly an industrial question. It was his duty under s. 88U to act in respect of that dispute by determining the remuneration and terms and conditions of service of flight crew officers. The questions of unilateral reduction or change in existing employment conditions, summary dismissal of one flight crew member and threats to discontinue the employment of other flight crew members, all members of the Australian Federation of Air Pilots, were all questions which could be found to have arisen in relation to the dispute as to remuneration and other terms and conditions of service. It was proper that the facts which raised those questions should be brought before the Commissioner dealing with the dispute as to remuneration and other terms and conditions of service. I cannot conceive that, if the allegations made were true (and it should be observed that they are disputed), the Commissioner could not, in relation to the settlement of the dispute T. No. 19, exercise at least a power of conciliation in order to avoid the "paper dispute" degenerating into a case of industrial disputation with consequent dislocation of work. Indeed it is appropriate to consider what would be the position if the roles of the parties were reversed and if the flight crew members employed by the prosecutor had either stopped work or engaged in other industrial action. I cannot conceive that the Commissioner would be unable to have such action formally brought to his notice as a question arising in relation to the primary dispute. (at p295)

9. I would discharge the order nisi in respect of notification T. No. 43 as well as in respect of T. No. 19. (at p295)

MURPHY J. I agree with Jacobs J. The order nisi should be discharged in respect of both notifications. (at p295)

AICKIN J. I have had the advantage of reading the reasons for judgment prepared by the Chief Justice. I agree with those reasons and with the conclusion that the order nisi should be discharged in so far as it relates to the notification of May 1977 and be made absolute in so far as it relates to the notification of October 1977. (at p295)

Orders

Order nisi for prohibition made absolute.