Re Campbell & Anor, Ex parte Public Transport Corporation

[1995] HCATrans 359

TRANSCRIPT
OF PROCEEDINGS
AUSCRIPT
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IN THE HIGH COURT OF AUSTRALIA

MELBOURNE OFFICE OF THE REGISTRY

No M69 of 1995

RE:     DENNIS WALTER CAMPBELL and   ANOTHER

ex parte:

PUBLIC TRANSPORT CORPORATION               

DAWSON J (In Chambers)

AT MELBOURNE, WEDNESDAY THE 29TH DAY OF NOVEMBER 1995

DR C. JESSUP QC:   I appear with my learned friend, MR G.A. DEVRIES, on behalf of the prosecutor.

MR H. BORENSTEIN:   I appear for the 2nd and 3rd respondents.

HIS HONOUR:   Dr Jessup, can you draw any distinction in this case?

DR JESSUP:   Is your Honour proposing to call the other matters, or deal with Campbell first?

HIS HONOUR:   No, I deal with this one separately.  A problem does arise in this one which does not arise in the others, does it not?

DR JESSUP:   A problem in what sense, your Honour?

HIS HONOUR:   The Judicial Registrar is respondent, is he not?

DR JESSUP:   Yes, and it would be remitted back to the same court, yes.

HIS HONOUR:   Well, as you are well aware, there are two matters pending in the High court raising the question of whether or not prerogative relief can be granted by a court to the same court.

DR JESSUP:   To itself.

HIS HONOUR:   To itself, and it would seem, subject to anything that you want to put that this would raise the same problem. 

DR JESSUP:   Yes.

HIS HONOUR:   Can you draw any distinction between the Judicial Registrar and the Court?

DR JESSUP:   No, your Honour, certainly not for those purposes.

HIS HONOUR:   He is a delegate of the Court, is he not?

DR JESSUP:   Yes.

HIS HONOUR:   And, indeed, must be so for his validity to be established.

DR JESSUP:   Yes.

HIS HONOUR:   Well, what would you want me to do with this in those circumstances?

DR JESSUP:   We would ask your Honour to make an order nisi in the form exhibited to the affidavit.

HIS HONOUR:   I would not do that because that is not what I have done pending the decision of one or other of the matters in this Court.  What I could do is to refer the matter - or have you make the application on notice of motion and it would then await the determination of the other matters; and upon those being determined one way or another, either you proceed with the application or it would be remitted to the Industrial Relations Court, if that were possible.

DR JESSUP:   If your Honour were to make an order in the form which we propose, an order nisi, the question of whether a court could grant prerogative relief to one of its own Judicial Registrars would not arise because the matter would then be dealt with by this Court, and free of that complication.

HIS HONOUR:   Yes, but then what needs to be determined is whether the avenue that is made available to this Court to refer matters to the Industrial Relations Court is open or not.  I would ordinarily refer this matter, you see, but I cannot do so - or I will not do so because the question remains whether I can validly do it, so I simply want to keep that question open.  You do not lose anything by that because the matter merely takes its place in the list in any event.  You would not lose in terms of time.

DR JESSUP:   Well, your Honour, albeit that you might ordinarily have remitted the matter were it not for those questions, we of course are notwithstanding your Honour's order made in the Education Department matter propose to submit that this was not a matter appropriate for remitter in any event, for the reasons that we have explained in the other matter and also for the fact that whether or not the court can review a decision of its own registrar, that is a discretionary consideration which you ought to take into account in not remitting it. 

HIS HONOUR:   Yes.  There are avenues of reviewing a Registrar's decision short of prerogative relief, are they not?

DR JESSUP:   Well, in fact not, your Honour, if your Honour takes the approach which has been taken by the judge in that court.  Might we hand up to your Honour a copy of an unreported decision of Wilcox CJ ?

HIS HONOUR:   What does it say?

DR JESSUP:   This case, Construction, Forestry, Mining and Energy Union v BHP Refractories Pty limited, was on all fours with the present case, your Honour, in that it concerned a ruling given by a Judicial Registrar in the course of a hearing before the Registrar as to whether the Registrar had jurisdiction.  The Chief Justice held that that was not an exercise of the power delegated under section 377 and therefore was not reviewable.  Could I take your Honour to the bottom of page 2:

A notice of motion seeks review of this decision.  The subject matter of the application for review of the matter ...(reads)... I do not think there is yet proper subject matter for the application.

HIS HONOUR:   Yes, I see.  But then in that event the application for prerogative relief may be premature too.

DR JESSUP:   No, your Honour, because whenever it is clear that a Tribunal is acting in excess of jurisdiction, a prohibition will lie and will normally go.

HIS HONOUR:   That is true, but not in all cases.

DR JESSUP:   No, not in all cases, your Honour, there are exceptions, but in our submission this is not one of them.  This is a case in which the proceedings went before the Judicial Registrar to a point where the fact of redundancy was tolerably well established, and she said that notwithstanding that, because the implied limitation does not operate in quite the same way with respect to the external affairs power, as it does with respect to conciliation and arbitration power, then I am not limited by that implied limitation.  She also said that absent a clear and unequivocal ruling by the High Court, she is simply not going to decline jurisdiction when the Act under which she was working says that she does have jurisdiction.

This of course, your Honour, raised a completely different set of provisions of the Act, and this does not raise the question of the validity or otherwise of an award of the Commission, it raises a question of the validity to the extent of their application to state governments of statutory provisions, in section 170DEA and similar provisions which give employees a right to contest the fairness of their dismissal directly without any award being involved at all, and that legislation is based on the external affairs power, as your Honour will know.

Now, the remedy which is granted in such a case is reinstatement, so it is an order which operates in specie upon the act of termination.  It reverses it, in effect.  If that is impracticable, compensation may be ordered instead, but absent some circumstance of impracticability then reinstatement is the only remedy available and is the remedy given in the normal course.

HIS HONOUR:   Dr Jessup, you may succeed, if the course which I propose is taken, in convincing a Full Court of these arguments, but I do not propose to remit the matter because of the difficulty that arises in doing that.  What I am proposing to do is to direct you to make your application by motion upon  notice, and you do not suffer in any way by that order.

DR JESSUP:   We do not, your Honour, it is purely a different procedure.

HIS HONOUR:   That is right, and you have a chance to argue these matters before a Full Court.

DR JESSUP:   Yes.

HIS HONOUR:   And it also leaves open the question of remitter to the Industrial Court, but that presumably will be resolved by the time this application comes on for hearing before a Full Court.

DR JESSUP:   Yes, your Honour.

HIS HONOUR:   Very well.  Mr Borenstein, you heard what I said to Dr Jessup?

MR BORENSTEIN:   Yes.  I have nothing to say about that, your Honour.

HIS HONOUR:   Well, I make that direction, that this application be made on motion to a Full Court, the notice of motion to be taken out within 14 days?

DR JESSUP:   Yes, that will be possible, your Honour.

HIS HONOUR:   I make that order. 

AT 10.14 AM THE MATTER WAS ADJOURNED
INDEFINITELY