Re Aggett & Ors; Ex parte Australian Airlines Limited

[1992] HCATrans 359

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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

AUSTRALIAN FEDERATION OF AIR

PILOTS

Second Respondents

RONALD WALTER AGGETT AND ORS

Third Respondents

Ex parte -

AUSTRALIAN AIRLINES LIMITED

Prosecutor

TOOHEY J

(In Chambers)

Airlines 1 10/12/92

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 10 DECEMBER 1992, AT 10.59 AM

Copyright in the High Court of Australia

MR C.N. JESSUP, QC:  May it please Your Honour, I appear

with my learned friend, MR G.J. HATCHER, on behalf

of Australian Airlines Limited to seek an order

nisi for certiorari and prohibition. (instructed

by Blake Dawson Waldron)

MR J. BREWSTER: If Your Honour pleases, I seek leave to

appear for the second respondent. (instructed by

Mahony Galvin Rylah)

HIS HONOUR:  Do you want to be heard on that aspect,

Dr Jessup?

MR JESSUP: It is a matter for Your Honour. If Your Honour

thinks you would be assisted by my learned

friend - - -

HIS HONOUR:	I think I will be, clearly, in the light of the material that has just been filed.
MR JESSUP:	Yes, Your Honour.

HIS HONOUR: Perhaps that is the first thing we should

consider, Dr Jessup, is whether or not, in view of

the material contained in the affidavit of Robert Bruce Carpenter, which I take it you have seen, the	affidavit of 9 December, it is appropriate that the
matter should proceed at this stage.

MR JESSUP:  Your Honour would want to hear from my learned friend on that. We do not accept what is in the

affidavit, of course, but Your Honour may wish to

hear from my learned friend in that regard.

HIS HONOUR:  Yes, I think I ought to deal with that aspect

of it first.

MR JESSUP:  I profess not to be able to understand why that

affidavit might ground the kind of application

which is foreshadowed but no doubt my learned

friend will be able to assist Your Honour in that

regard.

Airlines 2 10/12/92

HIS HONOUR:  Yes, thank you. Mr Brewster. I shall hear

from you at the moment on what I would take to be

an application that the present proceedings be

adjourned.

MR BREWSTER:  Yes. I rely, Your Honour, on the affidavit of

Mr Carpenter.	Does Your Honour wish me to formally
read that?

HIS HONOUR:	No, I do not.
MR JESSUP:	Your Honour. Might we just make this point,

Your Honour, that if it were contentious, we would hope Your Honour would not accept what is contained

in paragraph 2 of that affidavit as not being given

from the knowledge of the deponent.

HIS HONOUR:  It purports to recite what has been said in other proceedings by your client.

MR JESSUP: There would be better evidence of that,

Your Honour. There would be transcript or whatever

it is that would be evidence of that, and it is

certainly contrary to our instructions.

HIS HONOUR:	You mean the entirety of the paragraph?
MR JESSUP:	No, Your Honour, not at all, but the contentious

part of it; the last couple of lines. Our

instructions are that it has never been indicated

that ttthere will be progressive integration into

Qantas of all existing pilots in the grouptt if by

that it is meant to include subsidiaries of

Australian Airlines Limited. It is one of those things, Your Honour, that is said in very sweeping terms but, in fact, the aspect of it - it conceals within those sweeping terms, Your Honour, aspects

which would need to be looked at more carefully and as to which we would ask Your Honour not to receive

in the absence of better evidence of it.

HIS HONOUR:	Yes, well I will hear what Mr Brewster
MR JESSUP:	I have got my instructing solicitor in Court,

Your Honour, but the lady who is instructing us

today is not the lady who was involved in these

proceedings. We have ourselves appeared in these
proceedings from time to time, so we do know what

we are talking about, to an extent, but the

transcript of the most previous occasion when we
did appear is not yet available. Neither my

learned junior or I can recall informing the

Commission in the terms indicated in that

paragraph. If the transcript, when it becomes

available, discloses that we did, well that must

have been something said in error, but we do not

believe that was the case - - -

Airlines 3 10/12/92

HIS HONOUR:  Are you using "we" in the Royal sense,

Dr Jessup, or to yourself and junior?

MR JESSUP: Myself and my junior.

HIS HONOUR:	The paragraph does not purport to say that the information came counsel.
MR JESSUP:	No, it does not.
HIS HONOUR:	Or, indeed, that it necessarily came from

proceedings in which counsel were involved.

MR JESSUP: That is so, Your Honour. It could have come

from any one of a number of possible documents in

the Commission but none of them is apparent to

ourselves or to those instructing us. Now,

Your Honour, of course we could have dealt with

this matter more satisfactorily, but the affidavit

was only sworn yesterday. I am instructed a copy

of it was received by my instructing solicitor some

time after 4 o'clock last night and it is a matter

of fact as to which we would hope that Your Honour

would not simply accept the say so on this

affidavit. It is very contentious because on our

instructions there has never been any statement,

nor is there an intention, which goes so far as the

subsidiaries of Australian Airlines Limited. All

of that -

HIS HONOUR:  Could I just ask you to break that up because

the paragraph reads:

In other proceedings before the Australian

Industrial Relations Commission the Prosecutor

has indicated to the Commission that Qantas

Airways Ltd has become the owner of the

Prosecutor - - -

MR JESSUP: That is true, Your Honour.

HIS HONOUR:  - - -and all its subsidiary airlines?

MR JESSUP: No, Your Honour, that is not true. Qantas has

acquired all of the shares in Australian, full stop. Now, Australian has subsidiaries but all

Qantas has done is to acquire the shares in

Australian Airlines Limited.

HIS HONOUR:  What are the consequences of that, so far as

the subsidiaries are concerned?

MR JESSUP: Qantas is the ultimate proprietor, no doubt,

Your Honour, to the extent of the shareholding of

Australian Airlines.

HIS HONOUR: Let us look at the next factual statement:

Airlines 4 10/12/92

that all new pilots appointed in Australian

Airlines and any of its subsidiaries will be

employees of Qantas -

I take it - and perhaps I should not take it, but

is the first part of that in issue, that all new

pilots appointed in Australian Airlines will be

employees of Qantas?

MR JESSUP:  We are instructed that that is so, and we are

instructed also that - no, we cannot make the next

statement, Your Honour, simply because the other

proceedings have not concerned the subsidiaries at

all. Neither ourselves, ·that is my junior and

myself, nor our solicitors can assist on that
aspect because it concerns subsidiaries which were

simply not ever part of the other proceedings which

Mr Carpenter refers to.

HIS HONOUR:  Yes. Of course, those proceedings are not

identified but you, clearly enough, had something

in mind.

MR JESSUP:  Oh yes, we know what proceedings he is referring to, Your Honour, yes.

HIS HONOUR: All right. Well, then let us get on to the

last factual statement in the paragraph:

that from January 1993 there will be

progressive integration into Qantas of all

existing pilots in the group.

I take it from what you said that that is not

disputed if "group" is confined to pilots in

Australian Airlines.

MR JESSUP:  We believe that is the case with pilots in

Australian Airlines, Your Honour, although we would

not want to be tied to it in the terms in which it

is there expressed. However, for present purposes,

we will not take issue with it so far as Australian

is concerned.

HIS HONOUR: 

But it just seems unsatisfactory that the

matter should proceed with that sort of factual
dispute because if, in fact, the pilots in the

subsidiaries of Australian Airlines are or were to

become employees of Qantas and be part of some

overall scheme, then clearly the application would

be viewed in one way.  By "one way", I mean it

might well be desirable that the matter stand over

until we know what the Commission proposes to do in

respect of the finding of industrial dispute and

the prospects of making an award. But if that is

not the position, in other words, if employees of
Eastern Airlines are employees of Eastern Airlines

Airlines 

10/12/92

and no one else, then clearly enough the

application is to be approached in a different way.

MR JESSUP: 

In our submission, the way to approach it is this: our client is the respondent to a finding of

dispute which it asserts is beyond jurisdiction.

We cannot file a writ in this Court to challenge

that finding.  We cannot take the matter to the

Federal Court to challenge that finding. The only

way we can initiate proceedings is to secure an

order nisi from a Judge of this Court. We come
here under the rules which provide that it is an ex

parte application to secure that order nisi, and

once we have done so we will then have proceedings

in this Court.  It will then be appropriate for the

respondent to those proceedings to apply on proper

notice for an adjournment or whatever else may be
necessary, but if notice is given, which is

correct, and the material filed is reliable, we

would have the opportunity to file an answering

affidavit, after taking proper instructions, and

then this Court could decide whether to proceed or

to adjourn or however it may be. But we would

submit, Your Honour, that to attempt to deal with

that point as a factual question in limine, as it

were, is unsatisfactory in this sense that until we

have an order nisi, we do not have proceedings at all. Whilst I suppose in a sense Your Honour can

adjourn anything, it will not be a matter standing
in the list of this Court until we have a

proceedings of some kind.

Now, in our submission, this is not the

appropriate occasion to canvass the strength or
weakness of our client's case, other than on the
material which would normally be taken into account
for securing an order nisi, that is the material

which was before the Commission in relation to the

finding of a dispute.

If my learned friend wished to be heard on the question of our application for a stay, saying it

would cause irreparable harm or something of that

kind, of course that would be a different matter.

But as I understand it, what he is saying is that

due to circumstances which have substantially post-

dated the finding of dispute, that proceedings

should not even commence in this Court to challenge

that finding.  So, in our submission, it is only

unsatisfactory, Your Honour, if you are to attempt to resolve on affidavits which have been served as

late as 4 o'clock last night, this factual question

instead of simply proceeding in the normal way and

determining whether there is a prima facie case for

an order nisi.

Airlines 6 10/12/92

HIS HONOUR:  But from the point of view of the Prosecutor,

what are the consequences of adjourning the present
application for an order nisi as opposed to

granting an order nisi and then the Court being

faced with an application to adjourn those

proceedings by reason of the matters that are

canvassed in Mr Carpenter's affidavit?

MR JESSUP: 

We would then have proper material and we would be able to respond on proper material.

HIS HONOUR: 

Yes, but the availability of proper material

bears just as much on the adjournment of the
present application as it does on an adjournment of

an order nisi, does it not?  I mean, in the sense

that if the matter was stood over at this stage,
the factual matters that you speak of could be

canvassed by affidavit, and is that any different

from the Court hearing from the parties after an
order nisi has been made?

MR JESSUP: Yes, Your Honour, in this sense: if we are

right, then the Federation for whom my learned

friend appears will not be able to claim on

affidavit that the subsidiaries have ever been said

that they will be integrated into Qantas and those

further proceedings will not take place.	Now, we
have filed material which is complete and

comprehensive; the Federation has put in an

affidavit which is sweeping and non-detailed and late and it is an ex parte application. We have

come to Canberra in order to seek our order nisi;

that has not been without expense. If we are

right, Your Honour - I should say Your Honour will

be aware that we cannot ever secure the costs of

this application under the Industrial Relations

Act, so if we are right in what we say on our

instructions that there has never been any mention

that the subsidiaries will be integrated, then we

will depart from here, we will wait for a dignified

interval, and after there is no further affidavit

material from the Federation we will come back and

have to do it again. Whereas if we are wrong, then

the Federation will not be deprived of its

opportunity to apply on proper material.

In essence, Your Honour, we are saying that if

they wish to cause the Court to depart from the

normal procedure, they should have filed an

affidavit which deals with these matters

specifically. In addition, as the correspondence

in Mr Carpenter's affidavit indicates, the matter

has been listed again in the Commission on

26 January and I think that our own affidavit says

as much, and the Commission specifically adjourned

that proceeding with a view to seeing what the

outcome of this proceeding would be. Now, if

Airlines 7 10/12/92

Your Honour adjourns this proceeding to see what

the Commission is going to do about its proceeding,
the prospect is that neither this Court nor the

Commission will ever get to the stage of deciding

to proceed.

HIS HONOUR:  Except that I assume the Commission waits on

the outcome of this application uncomplicated by

the matters that are referred to in Mr Carpenter's

affidavit.

MR JESSUP: Yes, it does, Your Honour.

HIS HONOUR:  In other words, if tbe Commission had been told

what we have been told in the affidavit it may have

approached the matter differently. But who knows?

MR JESSUP: It was not told, Your Honour, notwithstanding

that as I recollect it, the events referred to in

Mr Carpenter's affidavit predated the last occasion

when this was before the Commission. My learned

junior's recollection is the same, Your Honour.

HIS HONOUR:	Namely?
MR JESSUP:	Namely that the events to which Mr Carpenter is

referring in paragraph 2 predated the last occasion

when this matter was before the Commission and upon

which it was adjourned pending this application.

HIS HONOUR:  Are you saying, Dr Jessup, that the last

occasion before the Commission nothing occurred
because of the pendency of the present application
other than to adjourn any further hearing before

the Commission?

MR JESSUP: That is so, Your Honour. Mr Carpenter, in

paragraph 2, refers to "other proceedings" before

the Commission. Now, the last time that those

other proceedings were before the Commission, and

therefore the last time that any statement to which

he refers could have been communicated to the

Commission, predated the occasion when this case was before the Commission and upon which the

appropriateness of an adjournment was debated

before the Commission. So the Federation could

then, had they wanted to, have said everything that

they have said in Mr Carpenter's affidavit.	Now,
that is our recollection.	I think the last time

when this was before the Commission is referred to

in our client's affidavit as 24 November.	It was
in fact 27 November, Your Honour.

HIS HONOUR:  When you speak of the Commission, Dr Jessup, on

that occasion, are you speaking of

Commissioner McDonald as opposed to the Full Bench

or somebody else?

Airlines	10/12/92
MR JESSUP:	I am speaking of another single commissioner who

is now dealing with it, Commissioner Palmer. The

other matter referred to in Mr Carpenter's

affidavit, on my learned junior's diary, was in the

Commission on 11 November, Your Honour.

HIS HONOUR:	What do you mean by the other matter?
MR JESSUP:	The matter which Mr Carpenter refers to in

paragraph 2 of his affidavit.

HIS HONOUR:  You mean in the terminology of "other

proceedings"?

MR JESSUP:	Yes.
HIS HONOUR:	What are those proceedings?
MR JESSUP:	Those proceedings are applications made by

Ansett and Australian and, I think, Ipec and East

West, for an order to be made that the Federation

should not have representational rights for pilots

in those airlines. Those proceedings have been

proceeding now for a long time, I think in the

order of two years, and they stand adjourned at

present.

HIS HONOUR: Perhaps at this stage I should hear from

Mr Brewster. Thank you, Dr Jessup.

Mr Brewster, there are some factual problems

here. Perhaps you could explain them. What are

the other proceedings referred to in paragraph 2 of

your affidavit?

MR BREWSTER:  I do not know the precise nature of those.

They involved, I understand, Australian Airlines.

HIS HONOUR: 

But you accept that it was one or other of the

hearings that Dr Jessup has mentioned, the one of
11 November which he regards as the other

proceedings, or the more recent hearing on

27 November?

MR BREWSTER: 

The proceedings which gave rise to the statements referred to in paragraph 2, is that the

proceedings to which Your Honour refers?

HIS HONOUR: 

I am referring to what the affidavit describes

as "In other proceedings", which it does not

identify either by number or by date or by subject-

matter.

MR BREWSTER:  I understand those were proceedings in

September in which my learned friend, Dr Jessup,

was involved.

Airlines 9 10/12/92

HIS HONOUR:  But do you mean something that was part of the

proceedings that led to the finding of industrial

dispute and the appeal and the unsuccessful

appeals?

MR BREWSTER:  No, completely separate proceedings.

HIS HONOUR: Relating to the representational rights of the

Federation or to something else again?

MR BREWSTER:  I am unable to assist Your Honour there.

HIS HONOUR: It is pretty unsatisfactory, because the

paragraph 2 is really the basis of the application

for adjournment, is it not?

MR BREWSTER:  Yes, that is one of the bases; there is

another one that I will take Your Honour to.

HIS HONOUR:	Perhaps you had better just deal generally with the reasons why I should adjourn the present
application.
MR BREWSTER:	The first, Your Honour, is this, that if

Your Honour grants an order nisi, the case in the

Commission will stop.

HIS HONOUR:  Not necessarily. That depends on whether I

order a stay or not.

MR BREWSTER: That is true, Your Honour.

HIS HONOUR: It is not without significance. It does not

follow that if I were to grant an order nisi I

would order a stay of the proceedings in the

Commission.

MR BREWSTER:  Our submission is this, that in relation to

the matters contained in paragraph 2, that an order

nisi would be premature.	I have referred
Your Honour to the authority which was quoted by

the Full Bench, set out at page 239 of the material

before Your Honour, page 10 of the judgment of the

Full Bench, Re Manufacturing Grocer's Employees

Federation of Australia; Ex parte Australian

Chamber of Manufactures, 160 CLR 341. Quoting the judgment of the Court at page 354 it says:

"Generally speaking in a case of this kind the

Court should not be called upon to grant

prohibition until the proceedings in the

Commission have advanced to such a stage that

there is a real likelihood that the Commission

will make an award or order in excess of its

jurisdiction:

Airlines 10 10/12/92

HIS HONOUR:  But is that not the position here if, in fact,

the Prosecutor is right and can make good its

contention that there was no industrial dispute?

MR BREWSTER:	By the time the Commission comes to make an award or order, Your Honour, the factual backdrop
may be different. It is impossible to say. We submit that there is a real likelihood that any
award or order, when made, will be in excess of the
Commission's jurisdiction.
HIS HONOUR:	You say there is a real likelihood that it will

be or will not be?

MR BREWSTER:  The Prosecutor cannot say, we submit, that

there is a real likelihood that if and when the

Commission makes an award or order, that it will be

in excess of its jurisdiction.

HIS HONOUR:  If you put to one side the material in

Mr Carpenter's affidavit, and without prejudging
the order nisi application, that is really what the

Prosecutor does say.

MR BREWSTER:  Yes. But we say two things, Your Honour:

first of all there is the material in

Mr Carpenter's affidavit.	Now, I concede that it
is not the best evidence.	The best evidence

available now would have been to annex a transcript

of what was said on behalf of the Prosecutor

but - - -

HIS HONOUR: It would have been, but - - -

MR BREWSTER:  Taking what is conceded by my learned friend

is that, first of all, Qantas has acquired all the

shares in Australian; we know that Australian has

all the shares in Eastern; so a layman would regard

it as one organisation. That all new pilots

appointed in Australian Airlines will be employees

of Qantas and that, as I apprehend his concession,

that pilots in the subsidiary airlines may be

employees of Qantas, but no final decision has yet

been made in relation - - -

HIS HONOUR:  I do not know that it went that far. I rather

took Dr Jessup to be saying he was not in a

position to make any statement or concession about

the position of Eastern Airlines pilots.

MR BREWSTER: Perhaps I interpreted that as meaning no

decision had been made. We have an allegation in the affidavit, admittedly not in the best form it
could be in, which may be true or may not be true,

according to Dr Jessup. He does not dispute, as I

understand him, the possibility of its truth. Then

we have a dispute as to whether there will be an

Airlines 11 10/12/92

integration of the employees of subsidiaries into

the Qantas umbrella. But leave aside the last two

lines, which are definitely contentious, if new

pilots flying for Eastern are to be employed by

Qantas, and if that were a factual situation that

existed when the Commission made any award, there

would be the direct employer/employee nexus and the

alleged jurisdictional difficulties would not

exist.

HIS HONOUR:  That may well be. The whole situation has

become a bit circular, unfortunately.

MR BREWSTER: 

In my submission, the appropriate course is to

await the proceedings, the further proceedings in
the Commission, and to determine at the time any
award or order is made whether it is in excess of
jurisdiction, rather than to make an order nisi now

and have contemporaneous proceedings in this Court

as premature.  My learned friend can apply for a

prerogative writ when an order or award is made and
then, one would assume, the Commission will have

indicated the factual basis on which the award is

made.

HIS HONOUR: 

I do not find ~hat approach particularly

persuasive, to say wait until an award has been

made. I can see more significance in an argument

that the Court should wait until it knows precisely

what application is to be made to the Commission,

in other words, if I were shown material indicating

that an application had been made to the Commission

to join Qantas and had factual material to indicate
that the employees of Eastern would be treated by

Qantas in the same way as the pilots in Australian,

that might cast a quite different light on the

whole proceedings. But it is all so vague at this

stage.

MR BREWSTER:  Your Honour knows this: Your Honour knows that

an application has been foreshadowed to join

Qantas.

HIS HONOUR:  What is involved, technically, in making an

application to join Qantas as a party? What has to

be filed before the Commission?

MR BREWSTER:	I am unable to assist Your Honour in relation to the mechanics of the Commission.
HIS HONOUR:	I just wonder why it is written in terms that - I see, it is really written on the basis that there
will be no application until 26 January.

MR BREWSTER:  Yes. As I understand it, Your Honour, the

proceedings on 26 and 27 January would involve the

holding of a conference, a settlement conference,

Airlines 12 10/12/92

and if that were unsuccessful, that arbitral

hearings would be set down at a later date.

HIS HONOUR:  Could I put this to you, Mr Brewster: what

prejudice, if any, would your clients suffer if an

order nisi were made but no stay of proceedings

were granted?

MR BREWSTER:  We would have proceedings in this Court,

Your Honour, involving expense, which may or may

not be necessary or appropriate.

HIS HONOUR:  In the ordinary course, the application would

be ex parte.

MR BREWSTER:	Yes, I understand that, Your Honour.
HIS HONOUR:	Your presence here is really brought about by

the events that we have been discussing, rather
than the strength or otherwise of the application

for an order nisi.

MR BREWSTER:	Yes.
HIS HONOUR:	Ordinarily you would not be heard on that

matter.

MR BREWSTER: 

No, we would not seek to be heard on the

question of whether the Prosecutor has an arguable
case that the decision of the Full Bench was wrong.

But we say that an order nisi at this stage is

premature for the reasons set out in the affidavit.

One other reason that I will take Your Honour to,

page 240 of the materials before Your Honour, that

is the final page of the Full Bench's decision, the

possibility of my client, the Federation, being a

formal party to the dispute was raised by the Full

Bench and a statement made in the final two lines

of that paragraph:

It is a matter for the parties and

Commissioner McDonald whether the question

should be further explored in the proceedings

before him.

We do not know, again it is in an unsatisfactory

state, whether on the 26th before

Commissioner Palmer the question of whether the

Federation is a formal party to the dispute will be

agitated. At the moment there was a finding at

page 125 of the material before Your Honour by

Commissioner McDonald:

That a real industrial dispute exists between

the pilots of EAL on the one hand and the two

companies, EAL and its parent AAL, on the

other hand.

Airlines 13 10/12/92

No finding that the Federation was a party to that dispute. That may or may not change. Again, we

would say that prohibition or even an order nisi

for prohibition is premature until the factual

basis on which an actual order or award is made has

been determined.

HIS HONOUR:	I am not sure that you have answered the question I put to you a while ago, Mr Brewster.
What prejudice or detriment would your client
suffer if an order nisi were made today and no stay
of proceedings were granted.
MR BREWSTER:	I appreciate, Your Honour, that if there is no

stay the Commission may proceed to hear the matter.

It would be the existence of proceedings in this

Court and the costs and inconvenience occasioned by

that, that at some stage we would be back - - -

HIS HONOUR:  I do not suppose there is much in it, though,

is there? I mean, either the matter is adjourned

today and the - I suppose the alternatives then are

that the application is pursued at a later date or

is abandoned or an order nisi is granted and there

is an application for an adjournment either by

consent or opposed.

MR BREWSTER:  But we will be back. If an order nisi is

made, Your Honour, we will be back before the Court

one way or the other, whereas if it is refused at

this stage, we might not be back before the Court.

HIS HONOUR:  By refused you mean adjourned or - - -

MR BREWSTER:  No, refused, Your Honour. I think the

affidavit does mention adjournment at some stage,

or the annexures, but we would say that the

application is premature and should at this stage

be refused.

HIS HONOUR:	Not by reason of the strength or otherwise of the application, but simply because it is
premature?
MR BREWSTER:	Yes.

HIS HONOUR:  I see. Thank you. Dr Jessup. In the

circumstances, Dr Jessup, what I should do is hear

from you as to the granting of an order nisi and in

the course of dealing with that, answer the

arguments that Mr Brewster has advanced that in the circumstances, the matter should be adjourned. But

the way the argument has proceeded thus far, the

two have got caught up a bit.

Airlines 14 10/12/92

MR JESSUP:  Your Honour, have you read at least the

affidavit that has been filed on behalf of our
client, the affidavit of Helen Sue McKenzie?

HIS HONOUR:  Are you using "affidavit" to include annexures

or just the affidavit?

MR JESSUP:	No, the affidavit itself.
HIS HONOUR:	I have read the decision of the Full Bench and

also of Commissioner McDonald.	I am not sure that
I have read the - - -

MR JESSUP:  I think those are the.main documents,

Your Honour. The affidavit which is at page 1 of

the book of documents that have been filed really

just takes one through the proceedings of the

Commission. If I might draw Your Honour's

attention to the most important or the high spots,

if you like, of the evidence: in paragraph 8 of the

affidavit there is reference to a letter from the

Federation of Air Pilots to the Prosecutor

indicating:

that a meeting of pilots employed by Eastern ..... had unanimously resolved to require the Prosecutor "to enter into negotiations with

the AFAP ..... on the matter of career

progression of Eastern Pilots into Australian

Airlines".

Your Honour, that letter is at page 8 of the material and if I might then ask Your Honour to go

to paragraph 11 of the affidavit. After a certain

amount of to-ing and fro-ing in consequence of that

letter which is set out in the affidavit:

A dispute was notified to the Industrial

Registrar by the AFAP.

That is at page 10 of the materials. Your Honour,

the Federation is not alleged to be a party to the
dispute but, because it was the notifier, we have

taken the liberty of naming it as a respondent in

this application. Your Honour may not take the

same view and may not want to name it as a

respondent in the order nisi, but we thought the

safer course would be to have it there as a

respondent so that it could be heard if it wished,

more as a notifier, Your Honour, than as a party.

HIS HONOUR:  Yes. I do not want to get too much involved in

the position of the Federation but does this aspect
of the matter arise because of an inter-union

dispute as to representation?

Airlines 15 10/12/92

MR JESSUP: Perhaps more intra, Your Honour. There would

appe~r to be some difficulty within the Federation

as to different groups of its members and the

question of whether the Federation was authorized

to make a claim on behalf of these pilots for

career progression, which would necessarily be to

the prejudice of their members in - - -

HIS HONOUR:  We are not talking about constitutional

coverage of the Federation?

MR JESSUP:  Oh no. That is well established. Your Honour,

Mr Commissioner McDonald made a decision, and

Your Honour has already indicated that you have

read that. His actual finding of dispute is

incorporated within that decision and it appears

at page 125 of the material before you. That is

the finding of dispute. If I might just draw

Your Honour's attention to the important aspects of

it. At paragraph 1 on that page the Commissioner

says:

That a real industrial dispute exists between

the pilots of EAL on the one hand and the two

companies ..... on the other hand.

Then he refers at the top of the next page, that is

page 8 of the decision, to what Mr Justice Stephen

said in Fitzsimons' case, and I will take

Your Honour to that in a moment. He concludes:

that an industrial dispute can be found to

exist between a group of pilots in a (legally

separate) subsidiary company (EAL) and the
parent company (AAL) - against both of whom

they have made the career progression claim,

which has not been met.

Then on the next page, Your Honour, page 9 of the

decision at paragraph 4, the Commissioner said: relevant registered organisation) to notify	it was right an proper for the AFAP (as the
the dispute to the Commission and to "have carriage" of the matter in the Commission but,
as the letters to both AAL and EAL make clear,
the real disputants on the employee side were the pilots of EAL and the only roles required of the AFAP (up till the time of notification
to the Commission) were that the President and
Mr Decourcey were requested to convey the
pilots' resolution to AAL and EAL respectively
and the AFAP was the designated body with whom negotiations".

In paragraph 5 the Commissioner said:

Airlines 16 10/12/92

the matter in dispute concerns "a mode of

recruitment" -

and he refers to Cram's case. That decision and

finding were appealed. In the course of the appeal

the Full Bench apparently felt uncertain as to what
were the actual matters in controversy in the

dispute and they sent it back to the Commissioner

for a report on that question. That report appears

on page 188 of the material. The significant part,

Your Honour, is at the top of the next page, 189,

in which the Commissioner identifies the core

requirements of a career progression claim and they

are set out in those four paragraphs.

HIS HONOUR:  Those four numbered matters I take to be what

is claimed.

MR JESSUP:  Yes. Never put in that way, of course, by the

claimants, but we accept them as findings of fact,

as it were, as distilled by the Commissioner from

all of the material that was before him. It is

paragraph 2, Your Honour, which is the critical one
because it requires Australian to take into

employment pilots employed by Eastern and that was

later identified by the Full Bench as being central

to the whole matter.

The Full Bench's decision is at page 235 and

might I take you first to page 236 in the first

complete paragraph.	The Full Bench note that
Eastern:

is a wholly owned subsidiary of AA. AA does

not employ anyone on behalf of EA nor does it

recruit -

from Eastern.

There has never been any form of career

progression either formal or informal, between

EA and AA. On the other hand EA and AA are

not at arm's length and our attention was

drawn to a number of uncontested assertions

made in the proceedings before Commissioner

McDonald as to the nature of their

relationship. EA operates as a feeder airline

for AA's operations though, in some respects,

forms part of the AA network itself. Bookings
on EA flights can be coded as if they were AA

flights. EA aircraft have AA livery though

with the addition of the word "Eastern".

The relevance of this relationship

assumes some significance in considering, as

we shortly do, the decision of the High Court

in R v Coldham; Ex parte Fitzsimons. However

Airlines 17 10/12/92

before doing so, it is desirable to consider the nature of the claim made by employees of

EA on AA apart from any principle that might

be derived from R v Coldha.m. EA pilots were

demanding they be afforded career progression

into employment with AA. It appears from

Commissioner McDonald's report of 9 June that

it is likely that this would have been

understood by EA and AA as requiring that the

former maintain some form of register of

pilots employed by EA recording their

seniority with that company and requiring the

latter to recruit pilots in the employ of EA

and by reference to·their seniority. The

claim made o~ EA by its pilots would have no

effective operation in the absence of an

obligation on AA to recruit from pilots

employed by EA and if that obligation is one

that is not capable of being created by the

making of the claim then, in our view, the

scheme contemplated by the claim fails in its

entirety. It is therefore that element in the

scheme, the obligation of AA to recruit, that

is central to the claim and any dispute said

to arise from its rejection.

On the next page, the Commission deals with era.m's

case. era.m's case was a decision of this Court

concerning the Coal Industry Act and, specifically,

a claim for certain priorities and preferences in

relation to taking people into employment. Could I

take Your Honour to page 4 of the Full Bench's
decision, that is the next page from that which I

was dealing with. In the passage starting in the

middle of that page, extracted from the decision of

this Court in era.m's case, "A dispute about the

level of manning", that paragraph and the

following, Your Honour, indicate that disputes as
to the level of manning, and for that matter,

priorities and preferences in the taking of people

they can have an impact on the people who are in	into employment, can be industrial dispute because
employment, that is to say, they are legitimate
subject-matters for disputes because looking
inwards qua the employment, as it were, they can
create consequences and therefore they pertain to
the relationship because, for instance, the number of people you have, as in a manning dispute, will make the work of those who are there either harder or easier and the type of people you employ will
also have an impact on existing employees.

The Full Bench subsequently recognized, in a

passage I will draw Your Honour's attention to,

that that is a different point from saying that

people standing outside the employment can be in

dispute with the employer over whether they should

Airlines 18 10/12/92

be taken into it. It is also different, as the Full Bench observed at the bottom of that page, that the dispute is said to be with individuals rather than with a union acting in a

party/principal capacity in the metal trade sense.

Now, at page 237, the Full Bench turned to

consider the case of R v Coldham, Ex parte
Fitzsimons, and that also concerned air pilots, but

this time it was the Ansett group which was

concerned in that case, a group which apparently

did have a custom or some practice of promoting in

a career line from its subsidiaries into the main

airline.

HIS HONOUR:  I wonder is it right to say they were

subsidiaries, rather than - it was the one company

operating through a variety of business names, was

it not?

MR JESSUP:	Your Honour is quite right, yes.
HIS HONOUR:	Because that is really, I would assume, one of the points of distinction between that case and the
situation here.
MR JESSUP:	It was, Your Honour, yes. Your Honour is right.

I really meant to draw attention to the fact that there was some career progression between airlines in Ansett which is not part of the fact situation

or the background in relation to Australian.

Your Honour will have observed that it was the

judgment of Mr Justice Stephen in that case which

was largely relied upon by the Full Bench.

HIS HONOUR:	Yes, I have noted that.
MR JESSUP:	I will not read again those passages, except

this: on the next page, on page 6, in the second

complete paragraph, His Honour said - this is

Mr Justice Stephen:  What would be odd would be its effect in

imposing obligations upon employers in

relation to some workers not employed by them

and in conferring rights upon workers against

that demands may be made upon, and awards made

some employers other than their own employer.

binding upon, those with whom the makers of

the demands have no employer-employees

relationship:

And Burwood Cinema and Metal Trades are referred

to. We will say something shortly about

Airlines 19 10/12/92

His Honour's reliance upon those cases, and he

concludes:

that a demand for an integrated seniority

list ..... would, if refused, give rise to an

industrial dispute -

And in the last sentence in the indented passaqe on

page 6 His Honour said:  - -

The demand would relate to an industrial

matter and would not be deprived of that

character by the fact that A.T.I.O. -

that is Ansett -

chose to conduct its affairs by means of a

group of subsidiary companies rather than

through divisions of the one corporate

entity."

Murphy J also expressed the view that even if

the businesses were separate (or even

conducted by separate employers) the dispute

nonetheless could concern an industrial
matter.

They referred, at the top of the next page, to the way in which the other members of the Court in

Fitzsimons's case dealt with it. There is an

extract from the judgment of Mr Justice Mason at

the top of page 238. What that extract does not

show is that His Honour did not say anything about

the hypothetical case of different subsidiary

companies. The Chief Justice agreed with

Mr Justice Mason and His Honour Mr Justice Gibbs

agreed with both Mr Justice Stephen and

Mr Justice Mason, although he:

made it clear that he considered that the	question whether the employer carried on more	than one airline "business" was immaterial to
the result. Jacobs J was in "substantial
agreement" with Stephen J and Mason J.

Now, the Full Bench continued:

We are similarly of the view that, in the

circumstances of this case, the fact that AA
is not the employer of the employees making

the demands does not mean that the making and

rejection of the claim does not constitute an

industrial dispute as defined.

In reaching this conclusion we have been

substantially influenced by the observations

of Stephen J which appear to have been

Airlines 20 10/12/92

accepted by two other members of the Court

(Gibbs J and Jacobs J) -

We will be submitting in due course that

Mr Justice Gibbs is not to be taken as having

associated himself with the judgment of

Mr Justice Stephen. In the second-last sentence in

that paragraph, Your Honour, the Full Bench said:

Were it not for the judgment of Stephen J and

the concurrence with it by other members of
the Court, we would doubt whether the claim in
the present case is an industrial dispute as

defined.

The Commission's reservations in that regard, of

course, are shared by the Prosecutor and we would

say, with respect, that the Commission itself, if

one looks at it from the point of view of people

who are regularly operating in the area and

experienced in industrial law, the Commission did

have the right instinct about this but they were

derailed, if we may say so with respect, by what Mr Justice Stephen said in Fitzsimons' case. We will take Your Honour to that case· now.

It is important to realize, of course, that

all of what Mr Justice Stephen said about the

position of subsidiary companies was obiter and

that should be taken into account, even apart from

a consideration of who concurred with him and who

did not.	Can I take Your Honour, first, to
His Honour's decision in that case.	We have handed

Your Honour a photocopy. At page 159 of the

report, commencing at the top, he makes it clear

that the prosecutors are there concerned about

separate businesses rather than separate companies.

Then he criticizes, in the paragraph commencing at

about point 2 on page 159, the attempt to treat the

concept of business as a precise one. Then on

page 160, the first complete paragraph: Not only do the prosecutors fail, in my

view, to make good the proposition that four

separate businesses exist; they succeed in

demonstrating the unsatisfactory nature of the

concept of a "business" when sought to be used

as it is in their submissions.

Then His Honour proceeds for the rest of the top

half at least of that page with dealing with the

unsatisfactory nature of business as a discrimen.

It is not until about half-way down page 161, at

about point 6, where His Honour says:

Any extension of this concept beyond that

of the employees of a particular employer so

Airlines 21 10/12/92

as to include the employees of a number of

employers engaged in the one industry, and who

would presumably be competitors, would

normally present very obvious practical

difficulties associated with diversity of

employment conditions, job qualifications and

functions, and industrial policies. No such

difficulties are involved in the present
case -

And then he proceeds to deal with the question of separate companies generally, from there through to

about the foot of page 163, and at page 164
His Honour said, starting at point 2:

It is in the light of considerations such as these that I have concluded that a demand

for an integrated seniority list for pilots

engaged in the four airlines would, if

refused, give rise to an industrial dispute

even if each airline was a distinct legal

person, a subsidiary company of A.T.I.O. The

demand would relate to an industrial matter

and would not be deprived of that character by

the fact that A.T.I.O. chose to conduct its

affairs by means of a group of subsidiary

companies rather than through divisions of the

one corporate entity. This conclusion serves

to demonstrate how unrewarding must be the

prosecutors' search for a want of industrial
subject matter if directed only to showing
some high degree of separation between the

various "businesses" of A.T.I.O.

Mr Justice Mason, who also delivered a

substantial judgment, gave his reasons at page 168,

commencing at about the middle of the page and

running down that paragraph which finishes at the

top of 169. In that particular passage His Honour

is dealing with what the Act refers to as an

"employer" and to whether it may be assimilated

with "business". Then at 170, the first complete

paragraph on page 170, for the balance of that

page. On page 173, Mr Justice Jacobs says he is in

substantial agreement, both with Justices Mason and

Stephen.

Now, of course, Mr Justice Mason said nothing about the position of separate companies.	What
Mr Justice Stephen said about that was not
necessary for the decision in the case.	If we were
pushed to do so, Your Honour,	we would submit that

Mr Justice Jacobs cannot be taken to have been

making part of his ratio decidendi, as it were,

those parts of. Mr Justice Stephen's judgment which

were unnecessary for decision in the case and that

when His Honour says that "I have agreed with two

Airlines 22 10/12/92

other judges", what he must be taken to have said

is that he is in agreement with so much as is

common between them as is part of the ratio

decidendi of those judgments.

On page 174, Mr Justice Murphy deals with the point in about the middle of the page. His Honour

said:

Much argument was based on s.4 of the Act

but the definition of "industrial matters" in

s.4 differs significantly from that in s.88H.

I agree with the construction Mason J. has put upon these provisions in his reasons. Even if the businesses were separate (or even if they

were conducted by separate employers), the

statutory provisions do not support the

argument that the dispute does not concern an

industrial matter.

It is that passage in parenthesis which is said to

attract the participation of Mr Justice Murphy, if

you like, in the reasoning of Mr Justice Stephen

but, again, perhaps even more apparently, it being
parenthetical, one cannot take that .as being part

of Mr Justice Murphy's reasons for actually

deciding the case.

The Chief Justice, on page 156, agreed with

Justice Mason and Justice Gibbs said:

I have had the advantage of reading the

judgments prepared by Stephen J. and Mason J.

and could not usefully add anything in support

of that conclusion. For myself, I should

prefer to express no final view on the

question whether the employer carried on more

than one airline "business" - that being

immaterial to the result - but in other

respects I am in general agreement with what

my brethren have written.

Certainly what His Honour said there could not be

taken to be deciding the point with respect to

separate subsidiary companies and what one has is

that Mr Justice Stephen, by way of obiter, although

clearly so, and Mr Justice Jacobs in not altogether
clear concurrence with His Honour, and

Mr Justice Murphy parenthetically saying so, went

that way. Mr Justice Mason did not, the Chief

Justice did not and Justice Gibbs did not. Now,

quite clearly, Your Honour, the matter is wide open

to be decided by this Court.

The facts of no case previously decided by

this Court have been presented as they are here and

we would submit, Your Honour, that with respect to

Airlines 23 10/12/92

His Honour Mr Justice Stephen, that he was wrong

and rather that the instinct of the Full Bench was

right. May we tell Your Honour why we say that.

Your Honour will appreciate that from the

Industrial Relations Act am industrial dispute,

which is what the Commission here found to exist,

has to have two elements in it, really: first of

all, it has to be an industrial dispute and,

secondly, it has to pertain to the relationship

between employers and employees. And that comes

from the definition of "industrial dispute" in

section 4 which provides that:

"industrial dispute" means:

(a) an industrial dispute -

So one goes back to all the constitutional cases

and so forth -

(ii) that is about matters pertaining to the

relationship between employers and employees;

Now, there are two issues which arise here,

Your Honour. The first is whether one can have an

industrial dispute with parties of the kind that

are ~lleged here, that is parties who are not

employers and employees apropos each other at the

time when the dispute comes into existence.

Secondly, whether the subject-matter of the dispute

is such as can be that it pertains to the

relation'ship of employers and employees, that is,

is the subject-matter of this dispute - does it so

pertain, when the subject-matter of it is, as

identified by the Full Bench, a claim by employees

of employer A to be employed by employer B, that
claim being made against employer B.

HIS HONOUR:  But is that the same proposition put

differently?

MR JESSUP: It might be, Your Honour. It might be the same

proposition come at from a different direction. It

really does not matter. But clearly issues of

parties merge into issues of subject-matter in

cases of this kind. It is a little like some of

the reinstatement cases in which it is often said

that the dispute is now between an employer and a

former employee and, in this case, we have a

dispute between an employer and a hopeful employee.

It would be our submission that an employer who

refuses the demand of someone on the street, as it

were, to be employed by the employer, that that

does not create an industrial dispute any more so

than an industrial dispute would be created if the

employer offered someone a job and that person

said, "No, thanks." and walked away.

Airlines 24 10/12/92

HIS HONOUR:  Dr Jessup, I do not think I need to hear you

any more on the question of whether an order nisi

would ordinarily issue in this case, although could

I just take you to the grounds in the draft order.

MR JESSUP:  Yes, Your Honour.

HIS HONOUR: It recites:

UPON THE GROUND THAT any dispute to which the

Prosecutor was or is alleged to be a party was

and is not an industrial dispute ..... in that -

1.    the individuals·alleged to be in dispute with the Prosecutor were not in the employ of the Prosecutor; -

I understand that.

2.    the matter alleged to be in dispute did

not pertain to the relationship -

(a) between employers and employees;

Now, is that intended to be a different ground? In

other words, is 2(a) different from ground 1 and,

if so, in what respect?

MR JESSUP: Yes, it is, Your Honour, because if one looked

at the cases, sometimes they are put in terms of
subject-matter and sometimes they are put in terms
of parties, although nine times out of ten one

would think that parties who make a claim will

normally make it about themselves or persons for

whom they are privy and, therefore, the

subject-matter and the parties will coalesce to an

extent. But it might be important to deal with

them separately in this case, Your Honour, or at

least to have the order nisi so expressed as to

permit them to be dealt with separately if they

should need to be because of what

Mr Justice Stephen said about the Burwood Cinema

case. He said it is no novelty to have an

industrial dispute created by a party which stands

outside the relationship. If that is right, we

would take the next step and say, "Oh yes, but it

still must pertain to the relationship". Even if

it can be raised by a third party, as it were, we

would say that it still must pertain to the

relationship.

HIS HONOUR:  Then what do subparagraphs (b) and (c) of

paragraph 2 add?

MR JESSUP: 

They are simply there out of an abundance of

caution, Your Honour. Because we are here dealing
with flight crew officers, there are special

Airlines 25 10/12/92

provisions in the Act which give the Commission an

extended jurisdiction. Your Honour will recall

that the Full Bench did not find it necessary to

rely upon them and did not do so. But once this

Court is seized with the matter, we accept that it

would be open for the respondents to say, "Well,

the Full Court may have been wrong, but in fact

they had jurisdiction under this other subsection."

HIS HONOUR:  Thank you. Then the next matter I wish to ask

you about is, if I were minded to grant an order
nisi, in light of what I have been told by

Mr Brewster and by yourself and the uncertainty

that surrounds the future of what is already before

the Commission, why should I grant a stay of those

proceedings?

MR JESSUP:  Your Honour, for this reason, and might I say

some things in response to what my learned friend

said.

HIS HONOUR:  The question of a stay and an adjournment in a

sense, again as the argument has developed, are

wrapped up, so you could deal with those in

whichever way you think fit.

MR JESSUP: Neither t:19 individuals who are alleged to be

parties to this dispute, nor the Federation, has

made any claim against Qantas itself. They say

that Qantas will be sought to be added as a party

but they will have to establish that they, or some

of them, are in dispute with Qantas. The only

allegation that has been made before you is that

new employees employed off the street after

14 September will be employed by Qantas. There are

therefore some hundreds of existing pilots in

Australian, and however many there are in Eastern, I think they are all listed in the annexure to the proceedings, who are affected in one way or another

by the alleged industrial dispute.	Now, that
dispute is the jurisdictional foundation of

proceedings which have been listed for hearing, not

for conference, on 26 January. They were listed

then, as we have said in our affidavit, by the

Commissioner just to cover the prospect that we

might not get an order nisi from this Court.

The Commissioner has not, of course, had put

to him the prospect that we might get an order nisi

but not obtain a stay. But, clearly, we would be
putting to the Commissioner, whether a stay is

granted or not, that the granting of the order nisi

casts at least a sufficient shadow of uncertainty

about the jurisdictional basis of the proceedings

for him not to proceed. Whether he accepted that

submission or not would be a matter for him. But, in our submission, if Your Honour does not grant a

Airlines 26 10/12/92

stay, then our client would have no option but to

prepare for the proceedings on 26 January as though

they are going to go ahead on the merits and that

would really defeat the whole purpose, in our

submission, because we are not here concerned with

a case such as Manufacturing Grocers which was

drawn to Your Honour's attention by Mr Brewster.

That was a case in which the High Court said, well,

in a case of this kind where there is an industrial

difference, but where the question is whether the

Commission can make an effective award which was

within jurisdiction, it is best to wait and see
what the Commission does.

But that is d~fferent from the case we have

here, Your Honour, in which we say it is not a

question of award at all; it is a question of

dispute and jurisdiction even to have the

arbitration proceedings which have been listed.

Now, we submit, Your Honour, that in the normal

course, this Court would recognize that if there is

a prima facie case for an order nisi, then parties

to the dispute ought not to be subjected to the

continuation of proceedings which are, prima facie,

or arguably, anyway, beyond jurisdiction.	So we
would seek a stay for those reasons.

HIS HONOUR:  But the granting of a stay would have the

effect, would it not, that any application to join

Qantas - any matters that have arisen bearing upon

the existence of an industrial dispute and the

making of an award by reason of Qantas' acquisition

of Australian Airlines would be withheld from the

Commission until the determination of an order nisi

which, even if determined in favour of the

Prosecutor, might in the end solve nothing because

the whole factual situation will have changed.

MR JESSUP:  That is true, Your Honour. We can only say, in

response to that, three things: the first is that

if Qantas is to be joined, it will not be joined

simply on the facts that have been put to

Your Honour this morning, simply that it has bought

the shares in Australian and new employees will be

employed by it. It could only be joined if it were

to be bound in its own name to a career progression

award which would involve people from Eastern, of

course, flying to London and San Francisco and

wherever else you go.

Secondly, Your Honour, either the Federation

or the present individual pilots that are

respondents to this application can create a

dispute with Qantas if they think they have a

jurisdictional basis for doing that. They can do

it with Qantas the same way as they have done it here. Then the Commission can decide whether to

Airlines 27 10/12/92

proceed with that dispute or whether it is

substantially covered by the facts of this matter. Thirdly, Your Honour, again I come back to

what I said earlier. On the facts now before you

it is an ordinary case in which, in our submission,

a stay ought to be granted and if new events do

emerge, properly put before this Court on

affidavit, then that stay can be rescinded or

varied or lifted or something. But on the status

quo which is before Your Honour at the moment, we

would submit that this matter ought to be dealt
with as an ordinary case.

Now, Your Honour has observed that the factual material before you is unsatisfactory and, really,

it poses more questions than it answers. But the

important thing about it is the relationship

between Qantas as an employer and this dispute

which was found in March of this year is highly

problematic on the material. It is not as though

it has been suggested that Qantas will take the

place of Australian as an employer. If that were

suggested, we would be seeking to have Qantas

joined as an applicant here and our argument would

be the same. What is suggested somehow is that, by

reason of Qantas coming upon the scene, quite apart

from Australian's previous policy and quite apart

from their prosecution of these proceedings, Qantas

will issue a directive which simply brings all of

the subsidiaries in by way of career progression.

If that is done, it raises all manner of questions which affect such basic things as our

present instructions to be making this application

and so forth, because it is just inconsistent with

it. So we can only ask Your Honour to follow the

normal course.

HIS HONOUR:  Thank you, Dr Jessup. Mr Brewster, do you want

to say anything in response on matters which touch

upon the granting of a stay or the adjourning of

the matter generally?

MR BREWSTER:	My client is concerned that the proceedings should continue in the Commission and it is, as my
friend says, that perhaps giving an order nisi
might be an inhibiter to those proceedings
continuing.  My client is concerned that we might
have a situation where these proceedings, in
general, will be delayed extensively whilst a question is argued in this Court before the Full
Court of this Court and, ultimately, a decision given down, whether discharging the order nisi or
making it absolute, which may then turn out, months and months down the tract, to be completely
academic, to have just delayed the making of a

Airlines 28 10/12/92

properly grounded award. There are, of course,

concerns that industrial unrest that may be
occasioned by excessive delay.

But we say that the Commission should proceed.

We say that this application is premature and

Your Honour should not grant an order nisi, but if
Your Honour does, in my submission there can be no

real prejudice from refusing a stay and then that

no possibility of this Court making decisions that

turn out to be a waste of time and academic.

HIS HONOUR:  Thank you, Mr Brewster.

HIS HONOUR: This is an application for a writ of

prohibition and a writ of certiorari directed to a

number of respondents, including members of the

Industrial Relations Commission. In the ordinary course, the application would be heard ex parte but

it has been complicated by the presence of counsel

application be adjourned because of certain

for the second respondent, the Australian the

developments that have taken place, not necessarily
since the determination of the appeal by the

Commission, but matters which are said to make the

adjournment of the present application desirable.

Those matters are the subject of an affidavit

sworn by Robert Bruce Carpenter on 9 December 1992.

The matters themselves are deposed to in a rather

unsatisfactory manner, making it very difficult for

me to make any factual finding other than that

Qantas Airways has become the owner of the

Prosecutor, Australian Airlines Limited. What

consequences flow from that so far as the pilots of

Eastern Airlines are concerned, and in particular

what policy of integration might be adopted which

could have a bearing upon this application, are

matters that I am unable to determine on the

present state of the material. The question then

arises that, if I were minded to grant an order

nisi, ought I to adjourn the making of such an

order until more is known about the factual

situation and, in particular, as Mr Brewster has

suggested, until the matter has been before the

Commission again.

Whichever course is taken, there is a

possibility, I suppose, that time will have been

lost and money expended unnecessarily. But the

Prosecutor is before the Court and counsel is here to support the making of an order nisi. And, on the arguments presented, my view is that

notwithstanding what was said by Mr Justice Stephen

in Reg v Coldham; Ex parte Fitzsimons (1976)

137 CLR 153, the matters sought to be raised by the

Airlines 29 10/12/92

order nisi are sufficiently arguable to warrant the

granting of an order. In those circumstances, it

seems to me that the order should be made rather

than that the parties, in particular the Prosecutor

be sent away and the matter probably aired at a

later time. I appreciate that circumstances may

develop which make the determination of the order

nisi unnecessary. But whichever course is adopted,

it does seem that an appearance before the Court,

either before a single Justice if the present

application is simply adjourned, or before the Full

Court if an order nisi is granted, may be required unless, of course, the parties are able to resolve their differences by consent.

I propose therefore that there will be an

order nisi in terms of the draft, subject to some

matters that I will raise with Dr Jessup in a

moment. I say that subject to the question of the

stay which the draft order seeks and for which

Dr Jessup has contended.

It seems to me inappropriate, certainly at this stage, to grant a stay. Notwithstanding the

unsatisfactory nature of the factual material that

is before me, it certainly appears that

developments have taken place, and will take place,

that may cast this whole matter in a different

light by reason of the acquisition by Qantas of

Australian Airlines shares. I do not think the

Court should do anything that precludes the

Commission from being seized of the matter in

respect of the joinder of Qantas, if indeed Qantas

is joined, or by reason of any further developments

that may take place and which are sought to be

aired before the Commission. The Commission is

equipped to assess the implications of what has

taken place so far as the present finding of

industrial dispute is concerned and in particular

whether the matter should proceed any further

notwithstanding the order nisi. For that reason I propose that there be no

stay. I am prepared, if asked, to give liberty to

apply in respect of that matter. It follows, of

course, from what I have said that I am not

prepared to accede to the application that the
present proceeding before the Court be adjourned. There will be an order nisi in terms of the

draft.

Dr Jessup, can I just raise some matters with

you.

MR JESSUP: Yes, Your Honour.

Airlines 30 10/12/92

HIS HONOUR:  There is a blank in relation to the affidavit

of Helen Sue McKenzie.

MR JESSUP:  Of 3 December, Your Honour?

HIS HONOUR: That is 3 December. There is then a blank in

relation to the date on which this matter should be

heard. I think the best I can do is simply name

2 February 1993 at the hour of 10.15 o'clock in the

forenoon, being simply the first day of the

sittings of the New Year. I do not suggest for a

moment that the matter is likely to come on at that

time.

MR JESSUP: Counsel will be heard some time thereafter,

Your Honour.

HIS HONOUR:  Yes, if they are heard at all. That part of

the draft that begins at the foot of page 2, "AND

IT IS FURTHER ORDERED" down to "C No. 20379 of

1992" - - -

MR JESSUP: Might that be amended, Your Honour, to say, "AND

IT IS FURTHER ORDERED that the Prosecutor have

liberty to apply to a Justice of the Court",

something along those lines?

HIS HONOUR:  Yes, but to apply for what? Apply to a Justice

of the Court - - -

MR JESSUP: For a stay of further proceedings and then - - -

HIS HONOUR: Yes, I think it is best picked up at that third

last line, "for a stay of further proceedings" and

then from there until the end of that line. Just

to make the matter clear, the order will include a

provision in these terms, and I will give you a

chance in a moment, Dr Jessup, to say something

about the precise wording:

AND IT IS FURTHER ORDERED that the Prosecutor

have liberty to apply to a Justice of the

Court on 48 hours notice for a stay of further proceedings in respect of the matters

contained in the said finding of dispute and
of the making of any award or orders in
matters nos. C No. 33228 of 1991, C No. 30488

of 1992 and C No. 20379 of 1992.

MR JESSUP:	Yes, Your Honour, I have a note of that.
HIS HONOUR:	Then there is a point that you raised in relation to the role of the second respondent.
There is no question, of course, that the second respondent should be served with the order; the
only question you raised is whether the second
respondent is properly a party.

Airlines 31 10/12/92

MR JESSUP:  Yes, I do not think it is properly a party,

Your Honour.

HIS HONOUR:  Subject to anything that Mr Brewster may say,

it would be necessary to mould the provision at the top of page 3 so that (i) stayed. If the the third respondents then became the second respondent,

(iii) would become (ii) substituting "second" for

"third".

MR JESSUP:	Yes.
HIS HONOUR:	And then there would be a new (iii), something

in these terms, "by leaving a copy thereof at the

registered office of the Australian Federation of

Air Pilots".

MR JESSUP: Yes, Your Honour.

HIS HONOUR:  In turn, that would involve deleting the

Australian Federation of Air Pilots as second respondent, moving the third respondents to the

role of second respondents.	Is that the way you
would see it would work out?

MR JESSUP:  Yes, Your Honour. When we re-engross it,

Your Honour, we will go through the body of the

order and take out the references to the

Federation.

HIS HONOUR:  Yes. The balance of the order, "that the

Second Respondent and the Third Respondents", that

will need some amendment because there will be no

third respondent.

MR JESSUP: That is true, Your Honour.

HIS HONOUR:  And likewise they will have to be deleted at

the end of that paragraph, but I will leave -

MR JESSUP:  In connection with the - I was going to suggest

that given the date of the next hearing before the

Commission and what Your Honour has done about the

stay, you might wish to make that a longer period

of time, but perhaps the better course would be

simply to leave that under the liberty to apply, so

that if the liberty were exercised, any further

affidavits would be filed in support of that

application, rather than under this paragraph.

HIS HONOUR:  How would that then affect the layout of the

order?

MR JESSUP:  It would not, Your Honour. I was about to

suggest that the 28 days perhaps ought to be

stretched out to 60 days or something, so that it

would then cover the next hearing - - -

Airlines 32 10/12/92

HIS HONOUR:	The events that occur at the end of January?
MR JESSUP:	Yes, cover the events occurring at the end of

January but, on reflection, Your Honour, it would

seem that that would be - the 28 would be a more

appropriate number of days with respect to the

order nisi as such, and the events at the end of

January really will not trouble this Court unless

the Prosecutor exercises its liberty to apply.

HIS HONOUR:  It does not necessarily follow. I think that

is certainly the way events are likely to work out,
but I suppose it is possible that without the

Prosecutor seeking a stay under the liberty to

apply provision, the second respondent might wish

to place matters before the Court arising out of

the next hearing before the Commission.

MR JESSUP: That could not be excluded, Your Honour, yes.

HIS HONOUR:  What about the position of the Federation, it

having been served with papers?

MR JESSUP:  We would be happy if they were added as having

leave to file affidavits in the same terms.

HIS HONOUR:  Yes, that will need to be done too. So we have

to add, "that the second respondent and the

Australian Federation of Air Pilots". When

realistically the matter does come before this

Court, it is not going to come before the Court before, say, March, I imagine, so there is nothing

much to be gained by fixing a period that is unduly

short.

MR JESSUP:  No, Your Honour.

HIS HONOUR: Sixty days from now would take us into

February.

MR JESSUP: Probably the 8th, I think.

HIS HONOUR:  At any rate it would be early February. It may

be better to make it 60 days.

MR JESSUP: Yes, Your Honour.

HIS HONOUR:  The 14 days by way of response can stand. I

have given liberty to apply only in respect of the

stay but I suppose that is the only liberty to

apply really that is necessary once the order nisi

is granted. If there was to be an application for

an adjournment or something of that sort, that

could be made anyhow.

MR JESSUP: That could be made in any event, Your Honour,

yes.

Airlines 33 10/12/92

HIS HONOUR:  I cannot see - I am not averse to including a

general liberty to apply provision but I do not at

the moment see it would serve any purpose.

MR JESSUP:	I think, Your Honour, the opportunity is there for other events which may arise in any event. It
is just that Your Honour having determined at this
stage not to grant a stay, that ought to be the
subject of specific liberty to apply, but in other·
respects it is implicit, as we understand it.
HIS HONOUR:	Perhaps I will give Mr Brewster an opportunity

to be heard on the form of the order so far as it

relates to his client, but perhaps when the Court

adjourns you and Mr Brewster could confer as to the

precise wording of the order because if there was

any difficulty I could be available to come back if

necessary.

MR JESSUP:  Of course, Your Honour. May I draw

Your Honour's attention - it will not have escaped

you, I should not think - we have suggested that
you should make an order for service on all of the

individual respondents by leaving -the papers at the

Federation simply because they were represented by

them in the proceedings before the Commission and

we assume most of them would be members of the

Federation or at least close to it. I do not think

there would be any problem with that, Your Honour.

HIS HONOUR:  The terminology changes because it will not be

the registered office of the second respondent.

MR JESSUP:  Of course.

HIS HONOUR:  But that is not really your concern. The

concern is whether or not it is a proper method of

service, I suppose.

MR JESSUP: There has to be some alternative method of

service in the circumstances, Your Honour. It is

really a bit like a solicitor having an office for

service, I suppose. This is a registered

organisation which did notify on their behalf, make

claims on their behalf and represent them in the

proceedings below, so we thought that there would

hardly be any controversy attracted by that fact.

HIS HONOUR:	The real question, I suppose, is that the Court should be sure that service in that manner would
reach those respondents.

MR JESSUP:  Yes. I doubt that there would be any difficulty

with that, Your Honour.

HIS HONOUR:  I will ask Mr Brewster about that. Thank you,

Dr Jessup. Mr Brewster, is there anything in the

Airlines 10/12/92

form of the order, as I have discussed it with

Dr Jessup, that you wish to take up with me, and in

particular the matter that Dr Jessup has just

raised about service upon the pilots who now

constitute effectively the respondents?

MR BREWSTER:  No, there is nothing I want to say about that,

Your Honour.

HIS HONOUR:	You would be happy, would you, that an order for service upon the pilots by leaving a copy of the material with the Federation would reach the
pilots?
MR BREWSTER:	Yes.

HIS HONOUR:  Good, thank you. Is there anything else in the

form of order that -

MR BREWSTER: While I cannot envisage the circumstances that

might arise, I would ask that Your Honour give

general liberty to the parties and to the

Federation to apply, just in case something arises

that we have not envisaged.

HIS HONOUR:	Certainly. Any objection, Dr Jessup?
MR JESSUP:	No, Your Honour.

HIS HONOUR:  Very well. As well there will be a provision

in general terms, liberty to the parties and to the

Australian Federation of Air Pilots to apply on 48

hours notice.

MR BREWSTER:  As Your Honour pleases.

HIS HONOUR:  Thank you. Court will adjourn.

AT 12.42 PM THE MATTER WAS ADJOURNED SINE DIE

Airlines 35 10/12/92