Re Australian Teachers Union; Ex parte Her Majesty's Attorney-General for the State of Queensland

[1992] HCATrans 198

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane	No B27 of 1992
In the matter of -

An application for a writ of

prohibition and a writ of

mandamus against THE

HONOURABLE DEPUTY PRESIDENT
KEITH HANCOCK and THE

HONOURABLE DEPUTY PRESIDENT

JOHN WILLIAM MACBEAN of the

Australian Industrial

Relations Commission and

COMMISSIONER JUSTINE

OLDMEADOW of the Australian

Industrial Relations

Commission, and the

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

First Respondents

AUSTRALIAN TEACHERS UNION

Second Respondent

Ex parte -

HER MAJESTY'S

Teachers 1 25/6/92

ATTORNEY-GENERAL FOR THE

STATE OF QUEENSLAND

Prosecutor/Applicant

DEANE J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON THURSDAY, 25 JUNE 1992, AT 9.33 AM

Copyright in the High Court of Australia

MR P.A. KEANE, OC, Solicitor-General for Queensland: May it

please Your Honour, I appear with my learned

friend, MR J. MURDOCK, on behalf of the applicant

prosecutor.	(instructed by the Crown Solicitor for
Queensland)

Your Honour, this is an application for an

order nisi .for a writ of prohibition and mandamus,

directed to the Full Bench of the - - -

HIS HONOUR:  Mr Solicitor, I have read the papers. The

papers have not been served, is that right?

MR KEANE:  No, that is so, Your Honour. There is a further

matter we should draw to Your Honour's attention in

that regard. May I seek leave to read and file an

affidavit of Vernon George Finlay, sworn today,

25 June 1992. Your Honour, under the rules, of

course, ordinarily the applications proceed

ex parte.	We had intended to do that when we filed
Mr Finlay's affidavit on the 22nd.	As appears from

paragraph 2 of the affidavit we have handed to

Your Honour, on that day the Crown Solicitor

received a facsimile advice from the solicitors for

the Australian Teachers Union, advising, or seeking

notice, of any application to challenge the

jurisdiction of the Full Bench so that the Union

could be heard on the question of whether, pending

the final hearing of the application, the

proceedings, or part of them, should be stayed.

The Crown Solicitor responded to that

yesterday, indicating that this application was to

be made today but that no application for a stay

would be made today, but that if an application

were to be made in the future, should it become

necessary, notice would be given. Your Honour,

under Order 55 rule 10, an order nisi operates as a

stay if Your Honour so orders.	We would not ask
Your Honour to so order today.

HIS HONOUR:  Very well, I note that the order nisi, which I

am prepared to make, will not operate as a stay of

proceedings before the Commission.

Teachers 2 25/6/92

Mr Solicitor, looking at the form of the order

nisi, on page 2 it asks for prohibition and

mandamus; the mandamus being requiring the first

respondents to revoke the finding of a dispute.

MR KEANE:	Yes, Your Honour.
HIS HONOUR:	Well now, I presume they have never been asked

to revoke the finding, which means mandamus would

not - - -

MR KEANE:	They have, Your Honour.
HIS HONOUR:	They have, have they?

MR KEANE:  They have indeed. The course of proceedings

appears in paragraph 6 of Mr Finlay's affidavit,

and indeed is recited in the judgment of the

Full Bench. They were asked, under section 101(1)

of the Act, to revoke the finding as to the

existence of a dispute that had been made.

HIS HONOUR:  I see. I follow, yes.

MR KEANE:  It is in relation to that refusal that we seek

mandamus. Your Honour, may we mention, in relation

to the terms of the order nisi, that we have had

some second thoughts about its finer drafting.	Can
we hand to Your Honour a draft in terms that we would ask Your Honour to make the order and draw
Your Honour's attention to the alterations?

HIS HONOUR:	Yes.
MR KEANE:	The first change we have made from that which we

had exhibited, Your Honour, is in paragraph 2 on

page 3. Your Honour will recall that the draft

which was exhibited, referred, in subparagraph (a)

and the subsequent subparagraphs, to the finding of

the dispute imposing a special burden. We think it

better, with respect, to phrase it the way we have

in the draft we have handed to Your Honour.

HIS HONOUR:	Yes.
MR KEANE:	And, Your Honour, the other addition we have

made is on page 5, in paragraph 3, and we hope that

does address, at least in the second sentence, and

make somewhat clearer the point of difficulty that

Your Honour raised with us.

HIS HONOUR:  In order to cover everything - I do not want to

help with your drafting, but the ordinary form of

order is prohibition and certiorari to quash. It

may well be you might think it desirable to cover

all eventualities and go for all three, but that is

a matter for you.

Teachers	25/6/92
MR KEANE:	Your Honour, I think we will follow the cautious

course.

HIS HONOUR: Well, as I say, if you are criticized for going

for three writs as being over-ambitious on the

hearing, I will not say a word in your defence.

MR KEANE:  We will not blame Your Honour.

HIS HONOUR:  Very well. I will amend the draft order nisi

initialed by me by adding after "Commission"

two-thirds of the way down on page 2, "comma, why a

writ of certiorari" et cetera.

MR KEANE:	Yes, Your Honour.
HIS HONOUR:	And those words are to be understood as

containing the ordinary prayer for a certiorari to

remove and to quash, otherwise I make orders in

terms of the draft order, initialed by me and

placed with the papers.

MR KEANE:  Thank you, Your Honour.

HIS HONOUR: Well now, that covers everything, does it not?

MR KEANE: It does, Your Honour.

HIS HONOUR:  We will now adjourn.

AT 9.41 AM THE MATTER WAS ADJOURNED SINE DIE

Teachers 25/6/92