Re Aggett & Ors; Ex parte Australian Airlines Limited

[1994] HCATrans 376

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IN THE HIGH COURT OF AUSTRALIA	•
Office of the Registry

Melbourne	No M76 of 1992
In the matter of -

An application for a writ of prohibition and a writ of

certiorari against THE

HONOURABLE MICHAEL FRANCIS
MOORE, the Vice-President of

the Australian Industrial Relations Commission, THE

HONOURABLE SIMON JOHN

WILLIAMS, a Deputy President

of the Australian Industrial

Relations Commission,

COMMISSIONER RUPERT GEORGE
SWEENEY and COMMISSIONER

KENNETH JOHN McDONALD,

Commissioners of the

Australian Industrial

Relations Commission

First Respondents

and

RONALD WALTER AGGETT AND ORS

Second Respondents

Ex parte -

AUSTRALIAN AIRLINES LIMITED

Prosecutor

MASON CJ DAWSON J GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 10 JUNE 1994, AT 9.38 AM

Copyright in the High Court of Australia

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MR C.N. JESSUP, QC:  May it please the Court, I appear with

my learned friend, MR B.J.F. MUELLER, on behalf of

the prosecutor. (instructed by Blake Dawson

Waldron)

MR H. BORENSTEIN: If the Court pleases, I appear for the

second respondents. (instructed by Mahoney Galvin

Rylah)

MASON CJ:  The Deputy Registrar has certified that the

Australian Government Solicitor has advised that the first-named respondents do not wish

representations to be made on their behalf at the

hearing and will abide by any order as to costs.

MR JESSUP:  If the Court pleases, the matter has been listed

this morning with respect to the question of

whether it should be remitted to the Industrial

Relations Court. Our client does not desire to

make any submission on that question but my learned

friend has filed a written submission on it.

MASON CJ: Yes. Mr Borenstein.

MR BORENSTEIN:  Your Honour, my clients do not consent to

the remitting of the matter to the Industrial

Court. We have outlined our -

MASON CJ: Our jurisdiction to remit is not conditioned on

consent, is it?

MR BORENSTEIN:  Not at all, Your Honour. We have outlined

our submissions in writing to the Court on 26 May.

MASON CJ: It is basically a question of statutory

construction, is it not?

MR BORENSTEIN: That, Your Honour, in addition to an

interpretation of two of the decisions of the Court

where the Court has indirectly pronounced on the
issue which is central to this matter.	It was the

view of my clients that the Industrial Relations

Court might feel in greater difficulty in dealing

with that matter than this Court would,

particularly in view of the very recent decision in

the Shell case where at least one of the passages
in the judgment of the majority might suggest that
the claim here is a legitimate claim and yet three

of the members of the Court, based on their

interpretation of the new definition of "industrial

dispute", felt that the situation had not been
expanded as the majority suggested.

In that sort of fine balance of opinion, and

particularly having regard to the history in

Fitzsimons' case, it is felt that it is a matter

that does require resolving in this Court and that

Airlines 10/6/94

this Court would be more readily able to do it than

the Industrial Relations Court which would need to,

so to speak, interpret what Your Honours intended

in the Shell case.

MASON CJ: But I do not think it is merely a matter of what

we said in the Shell case. I think it is a

question that calls for some thorough examination

of the question as a critical question on which

attention is focused and, in that sense, I think

the Court could profit from a consideration of the

question by the Industrial Relations Court. That

is how it seems to me as a prima facie matter,

Mr Borenstein.

MR BORENSTEIN:  Yes. I cannot say any more, Your Honour, in

relation to that.

MASON CJ: In the circumstances, the Court considers that the appropriate course is to remit the matter to the Industrial Relations Court of Australia, and the Court will make an order to that effect. The

Court will also make orders that the matter shall

proceed in the Industrial Relations Court as if the

steps already taken in the matter in this Court

have been taken in that court. The Court further

orders the Deputy Registrar of this Court to

forward to the proper officer of that court

photocopies of all documents filed in this Court.

What about costs. Yes, Dr Jessup?

MR JESSUP: No, Your Honour. If the Court pleases.

AT 9.43 AM THE MATTER WAS ADJOURNED SINE DIE

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