Re Dennis Paul Turner and Vivian Mary Turner trading as D.P. and V.M. Turner; Ex parte Homestead Award Winning Homes Pty Ltd

[1993] HCATrans 301

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IN THE HIGH COURT OF AUSTRALIA

Registry	No Cl8 of 1993
In the matter of -

An Application for a writ of

prohibition and a writ of

certiorari against THE

HONOURABLE JOHN WILLIAM

MACBEAN of the Australian

Industrial Relations

Commission and THE

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

First Respondents

and

DENNIS PAUL TURNER and

VIVIAN MARY TURNER trading

as D.P. AND V.M. TURNER

Second Respondents

Ex parte -

HOMESTEAD AWARD WINNING

HOMES PTY LTD

Prosecutor/Applicant

Homestead 1 11/10/93

McHUGH J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON MONDAY, 10 OCTOBER 1993, AT 11.03 AM

Copyright in the High Court of Australia

MR D.M.J. BENNETT, QC: If the Court pleases, I appear for

the applicant. (instructed by Gallens Crowley &

Chamberlain)

HIS HONOUR:	Yes, Mr Bennett.
MR BENNETT:	I hand Your Honour a copy of the relevant

sections of the Industrial Relations Legislation

Amendment Act. Your Honour will see that

section 127A defines a contract - - -

HIS HONOUR:  Yes, I have read the legislation.

MR BENNETT: There are other proceedings before the Court,

but they advance slightly different questions.

HIS HONOUR:	Yes.
MR BENNETT:	I was only just going to tell Your Honour what

the three differences are between our proceedings

and their proceedings: the first is that in ours a

company is a party, whereas in theirs it is really

a contract being done for the benefit of a company,

so the corporations power is effected differently;

secondly, we have an additional point in relation

to section Sl(xxxi) of the Constitution.

HIS HONOUR:	Yes.
MR BENNETT:	And there is another point in their case that

does not arise in our case, that their contract has

expired, whereas ours has not.

HIS HONOUR:  Yes, I noticed that. Now, can I just ask you -

I am prepared to grant an	order nisi in this
matter. There are just a	number of things that
concern me about the form	of the document:
ground 1 and, to a lesser	extent, ground 2 strike
me as rather odd.

MR BENNETT:  They are not intended to add anything,

Your Honour. They were put in really by way of

pleading I am told.

HIS HONOUR:	Yes, well I
MR BENNETT:	The grounds are the three grounds in

paragraph 3.

HIS HONOUR:  Yes. Now, this is probably a technical matter,

but it does not seem to me that the Commission has

actually made a finding that the contract should be

reviewed. They have made a finding that they would

hear and determine the matter.

MR BENNETT:  Yes, and for that reason it is really a matter

of prohibition rather than certiorari.

Homestead	2	11/10/93
HIS HONOUR:	Yes.	Are you pressing the certiorari point?
MR BENNETT:	No.

HIS HONOUR:  The other thing that occurred to me is, you

want to restrain them from proceeding further in

matter No 50019 of 1993. Is it necessary for you

also to restrain them from proceeding further on

the decision of 17 December, is it?

MR BENNETT:  I would not have thought so, Your Honours, it

covers it.

HIS HONOUR:  Now, you seek a stay. I would not be prepared

to grant you a stay, but what I would be prepared

to order is that the parties have liberty to apply

on 48 hours notice.

MR BENNETT:	My client?
HIS HONOUR:	I would not be prepared to grant a stay on an

ex parte application, but I would be prepared to

order that the parties have liberty to apply on

48 hours notice, if there is any problem.

MR BENNETT: Yes, it is unlikely there would be but, in my

submission, bearing in mind that the rules do

contemplate a stay on an ex parte application and

do provide for applications by a respondent.

HIS HONOUR:  I appreciate that but I noticed in the other

matter, Justice Dawson did not make a stay order.

MR BENNETT:  I do not know if one was sought or not,

Your Honour.

HIS HONOUR:	It was, in the original draft anyway.
MR BENNETT:	Yes.
HIS HONOUR:	The other thing is the question of affidavits.

You only give 28 days for the respondents to file

their affidavits. Why should it not be the

conventional 60 days?

MR BENNETT:  The other matter is set down for hearing, as I

understand it, before the Full Court on 1 and

2 February, which are the first hearing days of

next year.

HIS HONOUR:	Yes.
MR BENNETT:	The 60 days from 11 October would take us

virtually to the beginning of vacations.

Homestead 3 11/10/93

HIS HONOUR:  Yes, well you would need time to reply as well.

Your draft order does not deal with the question of

your right to reply.

MR BENNETT: Perhaps, Your Honour, I would ask for 35 days.

It would then - a further 35 days for us to reply.

HIS HONOUR:  How long would you seek?

MR BENNETT: Well, a further 35 would then take it to

HIS HONOUR:  Yes, I know, but how long would you seek in

reply?

MR BENNETT:  I see. I think a further 28 days would

probably be sufficient.

HIS HONOUR:  Yes.

MR BENNETT: Thirty-five for them and 28 for us.

HIS HONOUR:  Yes. What is the relevant rule?

MR BENNETT: Order 55 rule 1, Your Honour, and in relation

to affidavits rule 13 seems to deal with that.

HIS HONOUR:  Yes. Well, thank you, Mr Bennett.

In this matter I am prepared to grant an order

nisi for a writ of prohibition. Leaving aside the

formal parts, I will order that the respondent show

cause, before a Full Court of this Court, why a

writ of prohibition should not issue out of the

Court directed to the first respondent prohibiting

him from proceeding further in the Australian

Industrial Relations Commission in matter No 50019

of 1993, upon the grounds that - and they will be

the grounds set out in paragraph 3 of the draft

order nisi.	I further order that the parties have
liberty to apply on 48 hours notice.	I will make
an order for service in the terms sought in

paragraph 3 of the draft order.

I order that the second respondents have leave

to file and serve any affidavits in reply on which

they may wish to rely within 35 days of the service

of this order upon them and that the prosecutors

have leave to file and serve any answering

affidavit or affidavits on which they may wish to

rely within 28 days of the serving and filing of

any affidavit or affidavits by the second

respondents. I certify that this is a proper

matter for the attendance of counsel at chambers.

Is there anything further, Mr Bennett?

Homestead 11/10/93

MR BENNETT: There are a number of formal matters in

relation to the document, but perhaps they can be

dealt with in the Registry rather than before

Your Honour.

HIS HONOUR:  Yes. Thank you very much. I will adjourn the

Court.

AT 11.13 AM THE MATTER WAS ADJOURNED SINE DIE

Homestead 11/10/93