Re Boyne Smelters Limited & Ors; Ex parte Federation of Industrial Manufacturing and Engineering Employees of Australia Union of Employees

[1991] HCATrans 340

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney	No Sl43 of 1991
In the matter of -

An application for a writ of

mandamus and a writ of

certiorari against the

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION, The

Honourable JUSTICE LUDEKE,

The Honourable DEPUTY

PRESIDENT HARRISON and
COMMISSIONER BACON OF THE
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

First Respondents

BOYNE SMELTERS LIMITED

Second Respondents

Ex parte -

FEDERATION OF INDUSTRIAL
MANUFACTURING AND ENGINEERING
EMPLOYEES OF AUSTRALIA UNION

OF EMPLOYEES

Prosecutor

MASON CJ

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 21 NOVEMBER 1991, AT 9.59 AM

Copyright in the High Court of Australia

Boyne 1 21/11/91

MR RI. HANGER, QC:  May it please Your Honour, I appear

with my learned friend, MR G.C. MARTIN, for the

applicant prosecutor. (instructed by Carberry's)

If Your Honour pleases, I read the affidavit

of Christopher Michael Carberry filed 5 November

1991.

HIS HONOUR:  Yes. Now, Mr Hanger, you need not read that

but I will just note up my notebook. Yes, I have

noted the affidavit.	Now, I have read the
affidavit.

MR HANGER:  Thank you, Your Honour. Your Honour, the case

arises out of the termination of the services of a

number of employees by Boyne Smelters.

Your Honour, it raises again the issue, to some

extent, of the Industrial Relations Commission in

relation to reinstatement but not directly. It is

a case in which the prosecutor has taken up and

followed the observations of this Court in

Wooldumpers.

Could I take Your Honour, if you have read the

affidavit, shortly, to the judgment of

Mr Justice Munro and then to the Full Bench

decision?

HIS HONOUR: 

Yes, but before you do that could you indicate

to me in what respect you say that the Full Bench
has made an error of law?

MR HANGER: 

Your Honour, it has made an error in so far as

it treated the statement made by Mr Martin in the

course of argument as the basis upon which the

parties were before the court. Mr Martin made a

statement to which I will refer you at page 174 of

the transcript and made that with qualifications,

namely, that he wanted to put it into writing and

clarify it. And at page 184 of the transcript he

withdrew that statement and said, "Here is a draft

variation to an award for which we are applying"

and the Commission in the Full Bench seems to have

overlooked completely the fact that what was being

sought was a draft variation - a variation to an

award to insert in the award a reinstatement clause

rather than seeking the reinstatement of specific

employees.

Can I refer you to those two pages without

beating about -

HIS HONOUR: This is the lengthy - - -?

MR HANGER:  The lengthy transcript, Your Honour. The first

reference is at page 174, a couple of lines above

the centre of the page, Your Honour:

Boyne 2 21/11/91

what I say is this: that I wish to reduce to

writing the demands, or should I say requests, of the union, but without being bound to these terms, I would put it as follows: the union

seeks first an award creating an obligation

on Boyne Smelters Limited to reinstate those

persons named in the notification; secondly,

that the award contain a provision that Boyne

Smelters Limited provide to each of those

named employees an amount equivalent to that

which he would have received -

et cetera -

thirdly, that each employee ..... rights as to

leave of all types, superannuation and other

non-wage benefits be regarded as unaffected by

the dismissal ..... that's the claim.

Then, at the bottom of the page:

Your Honour, I would expect that upon

reflection, those demands could be better

expressed, and I seek to reserve the right to

do that, upon notice of course to the

commission and to the company.	But those are
the basic demands.

HIS HONOUR:  Now, those demands were different from the

demands which formed the subject of

Mr Justice Munro's first finding of dispute.

MR HANGER:	Yes, Your Honour. Yes, the first finding
HIS HONOUR:	Because the first finding of dispute was

designed either to secure a new award or a

variation of the existing award which contained two

provisions in it. They may have turned out to be

alternative but one was a demand for permanent
employment and the other was for reinstatement in

the effect that there was dismissal contrary to the

demand for permanent employment.

MR HANGER:  Yes, Your Honour. And then when the matter was

further formulated or properly formulated at

page 184, Mr Martin said, about five lines down -

this is just after an adjournment:

I have some matters, your Honour. Your Honour

directed that the draft award - or an award

variation sought by the union be made

available.

Et cetera, et cetera. Then he tendered the

document, the draft award variation, and His Honour

said:

Boyne 21/11/91

And is this intended to be substituted for

what you read on to the transcript?

And the answer to that was:

Yes.

Yes, very well. Well, if you present that,

I'll mark it exhibit M14.

HIS HONOUR:	Yes.
MR HANGER:	Now, Your Honour, that was obviously substituted

for what he had said at page 174.

HIS HONOUR:	Now, have we got that document?
MR HANGER:	Yes, Your Honour, it is exhibit M14 but, in

fact, I think it is quoted on the first page of the

judgment of the Full Bench.

HIS HONOUR: Is it? I see.

MR HANGER:  Actually, you say do you have it. I am not sure

that the exhibits are part of the record that has

been put before Your Honour. In fact, they should

have been but I am not sure, but I have copies of

them.

HIS HONOUR: 

Yes, I have the exhibits to the affidavit but I

am not sure how the exhibits to the affidavit
correspondend with any exhibits in the proceedings.

I do not think they do correspond.

MR HANGER: 

No, and I do not think that the record of the

proceedings which is exhibited contains the

exhibits tendered in the proceedings.

HIS HONOUR:  Now, I think I probably need exhibit 6. No,

exhibit 6 is a transcript; it must be 7. So, this

would be the draft award variation that is quoted

on page 1 of the Full Bench decision?

MR HANGER:  Yes, Your Honour, that is right. Your Honour,

it is our submission that the draft award variation

falls within the ambit of the finding of dispute

and I do not know that that has really been

disputed at any point in time. The difficulty in

the decision of the Full Bench is that the members

of the Full Bench relied on that passage in the

middle of page 3 to which I referred you which

really ceased to become relevant once the draft

award variation had been substituted for what was

said in that passage.

HIS HONOUR:  Can we have a look at your grounds?

Boyne	4	21/11/91
MR HANGER:	Your Honour, CMC7, in fact.	Can I hand up a

draft order which sets out the grounds anyway.

HIS HONOUR: There was a copy included in the file, but I

think we may have left it behind.

MR HANGER:	Yes, it was.
HIS HONOUR:	Well, you do not, in these grounds, actually

particularize errors that excite the Court to grant

relief by way of prerogative writ, do you? After

all, this Court's jurisdiction is not to be equated

to that of the Federal Court under the AD(JR) Act.

MR HANGER:	No, Your Honour.
HIS HONOUR:	In other words, to attract the remedy of

certiorari you have got to establish, have you not,

an error of law that goes to jurisdiction or an

error of law that appears on the face of the record

and to attract relief by way of mandamus, you have

got to establish that there was an actual or

constructive refusal to exercise jurisdiction.

MR HANGER:	Yes, Your Honour.
HIS HONOUR:	Now, do you not need to express your grounds

appropriately?

MR HANGER:  Is Your Honour concerned, in particular, with

ground 4 or each of them?

HIS HONOUR:  I would have thought myself that ground 2 does

not give sufficient particularity. And I would

have thought ground 3 should be expressed in terms

of refusal to exercise jurisdiction rather than

refusal to exercise a power available to the

Commission.

MR HANGER:  Yes, quite so, Your Honour.

HIS HONOUR:  I mean there are many instances where a court

or a tribunal refuses to exercise a power which it

has which can be exercised in the exercise of

jurisdiction but which would not, on refusal,

attract the remedy of mandamus and certiorari.

You may have some difficulty with certiorari

unless you can establish that there was an error of

law appearing on the face of the record because,

essentially, certiorari lies for absence of

jurisdiction or excess of jurisdiction. Now, you

are not complaining about absence of jurisdiction

or excess of jurisdiction, you are complaining

about a refusal to exercise jurisdiction.

MR HANGER: Refusal, that is so, Your Honour.

Boyne	21/11/91
HIS HONOUR:	So, you have got to bring yourself within that or, alternatively, establish that there was an
error of law on the face of the record.
MR HANGER:	Yes, Your Honour.
HIS HONOUR:	Now, if you like I will adjourn for a short

period of time and you can formulate some

alternative grounds. That is probably the best

thing to do.

MR HANGER:	I would be grateful for that.
HIS HONOUR:	Mr Hanger, I am minded not to grant an order

nisi but to direct that the application be made to

a Full Court.

MR HANGER:  Yes, Your Honour, very well. I have, in fact, a

notice of motion. If Your Honour would want it

made by notice of motion, we have prepared for

that.

HIS HONOUR:  Yes. Well, that is what I would direct you to

do: to make the application by way of notice of

motion to the Full Court, and I think you ought to

set out the grounds that you are now reformulating

in that notice of motion or in the affidavit in

support.

MR HANGER:  Thank you, Your Honour.

HIS HONOUR: Well, I will adjourn. You let me know when you

are are ready.

AT 10.13 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.15 AM:
HIS HONOUR:	Now, Mr Hanger, if they were wrong in

proceeding on the assumption that the dispute was

about the reinstatement of named workers and the

real dispute was about the creation of an

obligation in the award of a duty in the employer

to reinstate dismissed employees, how do you manage
to build up a case for an award that there should

be reinstatement in fact as distinct from the

creation of an obligation to reinstate?

MR HANGER:  Your Honour, that might be something further

down the track as we have never shirked from

saying, later on, if the Commission is, in deciding

Boyne 6 21/11/91

whether or not there should be an award creating an

obligation to reinstate - - -

HIS HONOUR:  So, all you are concerned with at the moment is

to secure a new award or an amendment to the award
that would involve an obligation on employers to

reinstate?

MR HANGER:	Yes, Your Honour.
HIS HONOUR:	You are not concerned with actual reinstatement

as such?

MR HANGER:	No, not at the moment, no.
HIS HONOUR:	I follow.
MR HANGER:	I mean, I made that clear to the Full Bench at

the time too.

HIS HONOUR:  Yes. Now, I cannot say that I regard these

grounds as meeting all the objections that I raised

with you but at least they do identify what you say
the errors are and you might give consideration, I

think, in the meantime to whether or not you ought

to reformulate them. But for the present, what I

will do is direct that you make your application

for orders nisi by notice of motion to the

Full Court and I note the formulation of the

grounds as stated in the document which I shall

initial with today's date and place with the

papers.

MR HANGER:  I should add, Your Honour, 1 would stay in; 2

and 3, a substitute, and 4 goes out.

HIS HONOUR: Yes. Well, I note that: the document which I am initialing has 2 and 3; 1 in the original draft

order nisi will remain and No 4 in that original

order nisi will be deleted.

MR HANGER:

Would Your Honour certify for counsel?

HIS HONOUR: Yes, I will certify for counsel. Now, is there

any other order I need to make? I suppose I ought

also to order that you file and serve the notice of

motion and all affidavits and exhibits upon the

respondents named in the draft order nisi within

seven days of today's date by leaving copies with

the Industrial Registrar of the Commission at its

office in Melbourne and that copies of the

documents be served on the second respondent by

leaving copies at its registered office.

You might, I think, indicate, when the

documents are served, in the form of a letter, that

the expectation of the Court is that the second

Boyne 7 21/11/91

respondent should file and serve any affidavits in

reply within 28 days of the service of the notice

of motion. But I cannot really make an order to

that effect because the respondents are not before

me.

MR HANGER:  No. Costs reserved of today, Your Honour?

HIS HONOUR:  I do not think you need to reserve costs. They

will be dealt with at some appropriate stage,

Mr Hanger. Court will now adjourn sine die.

AT 11.20 AM THE MATTER WAS ADJOURNED SINE DIE

Boyne 21/11/91