Re Amalgamated Metal Workers Union of Australia & Ors; Ex parte The Shell Company of Australia Limited

[1991] HCATrans 166

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IN THE HIGH COURT OF AUSTRALIA •

Registry	No S70 of 1991
In the matter of -

An application for a writ of prohibition and a writ of

certiorari against THE

HONOURABLE JUSTICE JOHN

TERENCE LUDEKE and THE

HONOURABLE JUSTICE RUSSELL

JOHN PETERSON (Deputy
Presidents of the Australian

Industrial Relations

Commission) and COMMISSIONER

BEVAN ROSS JOHNSON (a

Commissioner of the

Australian Industrial

Relations Commission

First Respondents

and

THE AMALGAMATED METAL WORKERS
UNION OF AUSTRALIA,
ELECTRICAL TRADES UNION OF
AUSTRALIA, AUSTRALASIAN
SOCIETY OF ENGINEERS, THE
FEDERATED IRONWORKERS'
ASSOCIATION OF AUSTRALIA,
ASSOCIATION OF DRAUGHTING
SUPERVISORY AND TECHNICAL
EMPLOYEES, THE AUSTRALIAN
WORKERS' UNION, TRANSPORT

WORKERS' UNION OF AUSTRALIA

Second Respondents

Shell 1 27/6/91

Ex parte -

THE SHELL COMPANY OF
AUSTRALIA LIMITED, SHELL
REFINING (AUSTRALIA),
PROPRIETARY LIMITED, SHELL
CHEMICAL (AUSTRALIA)
PROPRIETARY LIMITED,

SPRAYPAVE PTY LTD, W.A.G.

PIPELINE PROPRIETARY LIMITED,

SOUTH COAST GAS COMPANY PTY

LTD

Prosecutors

GAUDRON J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON THURSDAY, 27 JUNE 1991, AT 9.00 AM

MR D.F. JACKSON, OC: If Your Honour pleases, I appear with

my learned friends, MR R. BUCHANAN, QC and

MR B. WALKER, for the applicants. (instructed by

Blake Dawson Waldron)

HER HONOUR: Yes, thank you, Mr Jackson. I have read the

affidavit.

MR JACKSON:  Yes. Your Honour, could I just say that in

respect of one of the documents in the affidavit,

it was - as the fashionable word now is -

"corrupted" in some respects in the sense that some

of the pages seem to have been missing and they

relate to material matters. I wonder if I could

perhaps hand Your Honour a copy of the full

exhibit, as it were?

HER HONOUR:	Thank you.
MR JACKSON:	Your Honour, I will come to that document in

just a moment. I wonder if I could indicate very

briefly what is involved in the matter to the

extent perhaps - and, Your Honour, I also have

here, I should say, a copy of some draft orders

that we would submit are appropriate. I wonder if

I could take Your Honour very briefly to the nature

of the matter and if, at any point, Your Honour is

familiar with the particular aspect to which I am

referring, perhaps Your Honour might stop me.

Your Honour, could I just say first of all

dispute in which the second respondents seek to obtain an order of the Commission in relation to the disposition of what is described in the

that the application concerns the Industrial

documents as "the surplus" in two funds. The two

funds are the Shell Australia Contributory Pension

Fund and the Shell Australia Superannuation Fund.

The superannuation fund is the successor, as it were, to the former fund and, as the material

Shell 27/6/91

demonstrates, about 99 per cent of members have

moved from the first to the second but there still

remains the first fund.

The document which I handed up a moment ago,

Your Honour, is the trust deed of the earlier fund,

the Shell Australia Contributory Pension Fund.

Your Honour will see from it - - -

HER HONOUR: 

Could I just ask this: the second aspect of

the dispute as found, does that relate only to the
Shell Australia Superannuation Fund?

MR JACKSON: 

I am sorry, Your Honour. Is Your Honour

talking about interstateness or the surplus?

HER HONOUR:	The surplus.
MR JACKSON:	Your Honour, it seems to relate to both in this

way, and I am sure I could take Your Honour to the

terms of the finding of dispute. It is tab 3, Your

Honour, in what should be the volume numbered 1.

Could I take Your Honour, in that regard, to

paragraph 2(b) which describes the subject-matter

of the dispute. It consists of demands relating to

the surplus of assets in both funds.

HER HONOUR:	Yes, thank you.
MR JACKSON:	Now, Your Honour, I was going to go very

briefly to the trust deed of the first fund.

HER HONOUR:  I do not know that that is necessary. The

matter that concerns me-is ground 1 in the document

you have handed up today.

MR JACKSON: Yes, Your Honour. Your Honour, the point I want to get to is this: what one has is a case where the demand that is made is one which, in our

submission, goes beyond the conception of

"industrial dispute" in terms of the Industrial

Relations Act and to the extent necessary beyond

the power in section Sl(xxxv).

Now, Your Honour, the terms of order 1, in a

sense, are a summary of the contentions which are

elsewhere made, and the contentions which are made, of course, are those which follow in the succeeding

paragraphs. Paragraph 1, I suppose, is the

compendious way of putting it. Perhaps I am not ad

idem with Your Honour.

HER HONOUR:  No, I think we are not ad idem. I have read

your paragraph 1, both of this document and of the

earlier, to be challenging the entire dispute

finding so that it goes also, I think, to the

$14.70.

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MR JACKSON:	Your Honour, I am sorry, that $14.70 is not

challenged and to the extent to which paragraph 1 takes it beyond that, I take Your Honour's point.

It should not be included and we would remove that from it, or perhaps amend it slightly.

HER HONOUR:  Or you could amend the earlier part: "from

proceeding further on so much of the decision as

relates to ..... and its finding of dispute No (2)".

Would you like to confirm that that is -

MR JACKSON:	Yes, that is perfectly satisfactory, yes.
HER HONOUR:	Mr Jackson, I can indicate that subject to your

document or subject to a suitable document being

lodged with the Registry indicating that the matter

is confined to dispute finding (2) of the

Commission, I would grant an order nisi in the

terms sought including a stay as requested.	Do I
need to certify for counsel?

MR JACKSON:	Your Honour, I think the answer is, yes.
HER HONOUR:	Yes.  And I would certify for counsel. Is

there anything else you would want?

MR JACKSON:  No, Your Honour, that is all, I think.

AT 9.07 AM THE MATTER WAS ADJOURNED SINE DIE

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