Re Construction Forestry Mining Energy Union; Ex parte W.J. Deane & Sons Pty Ltd

[1993] HCATrans 315

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IN THE HIGH COURT OF AUSTRALIA·

Office of the Registry

Sydney	No Sl54 of 1993
In the matter of -

An application for a writ of prohibition, a writ of

mandamus and a writ of

certiorari against THE

HONOURABLE SENIOR DEPUTY

PRESIDENT JOSEPH MARTIN
RIORDAN and THE HONOURABLE

DEPUTY PRESIDENT IAN ROBERT

WATSON of the Australian

Industrial Relations

Commission and COMMISSIONER

PETER ASHBY LAWSON of the

Australian Industrial

Relations Commission and

THE AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

First Respondents

CONSTRUCTION FORESTRY MINING

ENERGY UNION

Second Respondent

Ex parte -

W.J. DEANE & SONS PTY LTD,

NORTHERN BUILDERS PTY LTD, ARTHUR DAVIS CONSTRUCTIONS PTY LIMITED, DENIS

CONSTRUCTIONS PTY LTD, KOTARA BUILDING CO PTY LTD, MICHILIS CONSTRUCTIONS PTY LTD, TILSE
BUILDING, REG FLANNERY
CONSTRUCTIONS and

K. BROWNSMITH PTY LTD

Prosecutors/Applicants

Deane 1 18/10/93

McHUGH J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 18 OCTOBER 1993, AT 10.15 AM

Copyright in the High Court of Australia

MR P. MENZIES, QC: If Your Honour pleases, I appear with my

learned friend, MR T.J. ANDERSON, for the

prosecutors. (instructed by Paul Hines)

HIS HONOUR:	Yes, Mr Menzies.
MR MENZIES:	Your Honour, these are applications pursuant to

section 75(v) of the Constitution.	They arise in
this way - - -

HIS HONOUR:  Mr Menzies, I have read the material and I have

no problem about the principle but there are some

problems, as I see it, in terms of the relief

sought. Could I identify them for you?

MR MENZIES:  Yes, Your Honour.

HIS HONOUR: Before I do, I might also say I think, in the

event that I grant you an order nisi, it would be

prudent to have a certified copy of the rules of

these unions as part of the evidence.

MR MENZIES: Yes, Your Honour.

HIS HONOUR:  The first thing I draw your attention to is on page 2 of the draft order sought. The writ of

prohibition is directed against the first and

second respondents.

MR MENZIES:	It should only be against the first.
HIS HONOUR:	I think that is correct but you have joined the

Commission itself as the last of the first respondents. Is it a proper respondent, or should

it be Commissioner Grimshaw here?

Deane 18/10/93

MR MENZIES: Commissioner Grimshaw has not been named and I would have thought it would be appropriate that he

be the respondent, or he be included, and not all

the - - -

HIS HONOUR:  Yes, I would have thought so. In so far as the

first group of persons are concerned, namely, the

members of the Full Bench, what is there to

prohibit in respect of them?

MR MENZIES:  I do not think there is anything to prohibit in

respect of them, Your Honour. It should be

Commissioner Grimshaw as the respondent.

HIS HONOUR:  Yes, I would have thought so. Now, the second

thing is you seek a writ of mandamus directed to:

the First Respondents to revoke the finding of

a dispute.

Now, a mandamus in that form could only issue if it was a purely ministerial act as opposed to a

judicial act. But there is no question of them

having a ministerial duty to revoke, is there?

MR MENZIES:	No.
HIS HONOUR:	They have a general jurisdiction to hear and

determine.

MR MENZIES: That is so, Your Honour, yes.

HIS HONOUR: That strikes me as a problem. Then, in

relation to the writ of certiorari, it is directed

to - - -

MR MENZIES:	It ought be directed to Commissioner Grimshaw.
HIS HONOUR:	Yes.  Certiorari goes for an excess of

jurisdiction but I do not see there is any grounds

but they certainly had jurisdiction to determine	their jurisdiction. Their decision may be wrong for assuming that the first respondents exceeded
what they did.

MR MENZIES: Yes, Your Honour.

HIS HONOUR:  Mr Menzies, if you would redraft the order nisi

in accordance with the discussion that has just

taken place, I would be prepared to grant an order

nisi in this matter, and perhaps the matter could

be handled in my chambers if counsel attended at

some time. I will be in Sydney all this week, so

any time that is convenient.

MR MENZIES:  Your Honour, hopefully some time this morning

we will have it sorted out.

Deane 18/10/93

HIS HONOUR:  Yes. In relation to the 28 days for the second

respondents to file and serve, I would prefer they

had a little longer than that.

MR MENZIES:  Your Honour, nothing is happening. The

proceedings have not been brought back so there is,

in fact, no urgency.

HIS HONOUR:  No. In addition, your order would need to make

allowance to give you a right of reply to any

affidavits that they put. Perhaps if it was

extended for 35 days for the respondent, and how

long - 21 days for you?

MR MENZIES: Yes, thank you, Your Honour.

HIS HONOUR:  Yes. There is no prospect of getting a hearing

in this matter until well into next year, I would

have thought.

If those matters are attended to and the order

nisi is put in proper form in the draft order, I

will be happy to grant an order nisi in this

matter. And I will certify for the attendance of

counsel as well.

MR MENZIES:	Thank you, Your Honour.
HIS HONOUR:	Yes. Well, on that basis, we might adjourn

then.

AT 10.21 AM THE MATTER WAS ADJOURNED SINE DIE

Deane 4 18/10/93