Re Fogarty & Ors; Ex parte Cape Lambert Services Pty Limited

[1991] HCATrans 262

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney	No S71 of 1991
In the matter of

An application for writs of

prohibition and certiorari

against MR COMMISSIONER

ADRIAN DANIEL FOGARTY (a

Commissioner of the

Australian Industrial

Relations Commission), THE

SEAMENS' UNION OF AUSTRALIA,

THE MERCHANT SERVICE GUILD OF

AUSTRALIA and THE AUSTRALIAN
INSTITUTE OF MARINE AND POWER

ENGINEERS

Respondents

Ex parte -

CAPE LAMBERT SERVICES PTY

LIMITED (in Liquidation)

First Prosecutor

PEKO-WALLSEND OPERATIONS

LIMITED

Second Prosecutor

ROBE RIVER MINING COMPANY PTY

LIMITED

Third Prosecutor

MITSUI IRON ORE DEVELOPMENT

Cape ( 2) 22 13/9/91

PTY.LIMITED

Fourth Prosecutor

NIPPON STEEL AUSTRALIA PTY

LIMITED

Fifth Prosecutor

SUMITOMO METAL AUSTRALIA PTY

LIMITED

Sixth Prosecutor

Application for release of

undertaking

GAUDRON J

( In Chambers )

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 13 SEPTEMBER 1991, AT 2.17 PM

(Continued from 12/9/91)

Copyright in the High Court of Australia

HER HONOUR:  I will take the appearances again, gentlemen.

MR R. CROW: If the Court pleases, I appear for Cape Lambert

Services Pty Ltd (in Liquidation). (instructed by

Blake Dawson Waldron)

MR J.L. TREW, OC:  Your Honour, the way in which the

prosecutors can be represented needs to be

regularized, but subject to that can I indicate

that I appear with my learned friend, MR H. DIXON,

for the second to sixth prosecutors. (instructed

by Minter Ellison)

MR R.C. KENZIE, OC:  Your Honour, I appear with my learned

friend, MR M.J. KIMBER, for The Seamen's Union of

Australia, The Merchant Service Guild of Australia

and The Australian Institute of Marine and Power

Engineers. (instructed by Jones Staff & Co)

MR TREW:  Your Honour, might I say something about

appearances, perhaps, before Your Honour asks me

questions about it?

HER HONOUR:	Yes.
MR TREW:	I understand that yesterday Your Honour drew

attention to a letter of 11 September sent by

Minter Ellison to the Deputy Registrar in Sydney.

HER HONOUR:  Yes. Perhaps if you would just speak to it at

this stage, Mr Trew.

MR TREW:  In that letter our instructing solicitors said

that their instructions on behalf of the first

Cape(2) 23 13/9/91

prosecutor had been terminated for the purposes of
matters arising out of Your Honour's order of
5 July and they also said, in the next paragraph of
the letter but, however, in so far as the

substantive proceedings were concerned, they would

be continuing to act for the first to sixth

prosecutors.

When that letter was prepared, I am instructed that nobody adverted to the fact that that caused a

procedural problem.

HER HONOUR: Well, it not only caused a procedural problem,

it gave rise to a very grave suspicion in my mind,

Mr Trew.

MR TREW:  Well then I should say a few things to allay

Your Honour that there was anything ulterior in it.

I am told that the application book had to be

prepared and filed by 12 September and the

solicitors were primarily concerned with having

that done, the solicitors who had had the carriage

of the matter up until that stage. At that time

the first prosecutor, I think, had gone into

liquidation and therefore there was a different

solicitor - - -

HER HONOUR:	Yes, into voluntary liquidation.
MR TREW:	Into voluntary liquidation it was, yes.
HER HONOUR:	And I presume that occurred by resolution of

the third prosecutor? It was said in the - - -

MR TREW: Third or second, I think, Your Honour, I am not

sure which one.

HER HONOUR:  Yes, it was said in the earlier affidavit that

it was a wholly-owned subsidiary.

MR TREW:  A wholly-owned subsidiary, yes. I forget which

prosecutor it was but it was one of them, that is

true.

HER HONOUR:  Yes, so it was a voluntary liquidation.

MR TREW: It was, Your Honour.

HER HONOUR:  By a decision of one of the prosecutors.

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

HER HONOUR:  One of the prosecutors who was represented by

Mr Buchanan on the last occasion that the matter

was before me?

Cape(2) 24 13/9/91

MR TREW:	I am having - I have only just come into the matter, Your Honour, so I am not quite sure who was
appearing when and where but I have heard
Mr Buchanan was in it somewhere and on this side of
the record.
HER HONOUR:	Yes.

MR TREW: There was a problem of certification of the

application book and the solicitors who had had the

carriage for the matter until that time, by

agreement with all the relevant parties and their

various solicitors, proceeded and certified the

application book for the purpose of the

proceedings. It was thereafter that was done that

the letter was then written and it was for that

purpose alone, Your Honour. There was nothing

ulterior in it at all, I am instructed.

The question of representation needs to be

regularized because the authorities indicate that a

plaintiff or prosecutor, where there are more than

one, must appear by the one lot of solicitors and,

of course, we have a position at the moment where

that is not the case.

HER HONOUR: Well, there is a more serious problem than that

though, is there not?

MR TREW:  The only ones that I can think of flow from the

proposition that I have just stated, Your Honour.

If there is something else I - - -

HER HONOUR: Well, it is by no means clear that there is any

identity of interest any more.

MR TREW: That flows from it, Your Honour, and what I

propose to say, I think, will deal with that

question. There are two decisions that we have had

a look at that indicate possibly different

principles. The first one is we have given

Your Honour's associate a reference but I think

Your Honour will have to use the photostats that we
have here.	But could I tell Your Honour the effect

of the authorities first?

There is a decision of the English Court of

Appeal that says that the usual rule is that

plaintiffs should appear or be represented by the

one lot of solicitors except in exceptional cases

where leave might be granted and leave would not be

granted in cases where a case went to trial, for

example, where there would be questions about who

made opening statements on behalf of plaintiffs and

who cross-examined et cetera. That is one of the

libel cases. It is Lewis v Daily Telegraph, (1964)

2 QB 601. If I could hand Your Honour a copy of

Cape(2) 25 13/9/91

the decision. The relevant passages appear from

page 619 on, Your Honour. There are about two or

three pages but there are only one or two sentences

I need go to.

At the foot of page 619, Your Honour will see

that Lord Justice Pearson sets out what appeared in

the 1964 Annual Practice. It is at about point 9.

HER HONOUR:	Yes, I have that.
MR TREW:	"There can only be one solicitor for the
plaintiffs, unless otherwise specially
ordered."

And then His Lordship continues and points out on

page 620 and 621, at the bottom and top of those
pages respectively, the great inconvenience that

would be caused if that procedure were not

followed. The other members of the Court of

Appeal, Lord Justice Russell, at page 622, and

Lord Justice Sellers, at page 623, agreed.

A member of the Victorian Supreme Court has

cast doubt on the possibility of there being a
discretion to grant leave and that is a decision of

Goold & Porter Proprietary Limited v Housing Commission, (1974) VR 102. Mr Justice Norris

looked at that case that I have just referred

Your Honour to and at page 103, at about line 7, His Honour referred to what Lord Justice Russell

had. said, and that there was a discretion, and then

he goes on and says:

But ..... on a review of the authorities by

counsel -

it seems -

to be the only reference to the possibility in

an action of this kind which is not a

consolidated action, of plaintiffs appearing

by separate counsel.

And then His Honour goes on in the next paragraph:

In the absence of any other authority

suggesting that there is a discretion, I am

disposed to the view that there is no

discretion in the case of an action which is

not a consolidated action -

et cetera. Now, what I wish to submit to

Your Honour is this: we submit that Your Honour

has power to grant leave for prosecutors in this

case to be separately represented in these circumstances. This is a case where - - -

Cape(2) 26 13/9/91

HER HONOUR:  I do not think that is the problem, Mr Trew.

The problem is does anybody now have any interest

in maintaining the proceedings?

MR TREW: Well, I want to come to that after I have sorted

out the appearances, Your Honour.

HER HONOUR:  And, certainly, any interest in maintaining the

proceedings or the stay in relation to the award.

MR TREW:	We are here, Your Honour, only to deal with the
first question Your Honour has asked about whether
there is - I was told that Your Honour wished to
know whether the prosecutors for whom I am
appearing or seeking leave to appear, as the case
may be, have an interest in maintaining the
proceedings and the answer is, yes, and I want to
deal with that at some stage.

HER HONOUR:  Yes. I wish to know specifically with respect

to the Recruitment Award to which your clients, the

prosecutors for whom you now appear, are not

parties.

MR TREW:  The answer to that is, yes, Your Honour, and if

Your Honour would wish me to deal with that

immediately I will.

HER HONOUR:  You see, I must say, for my part - well, it

depends, I suppose. The first question is - we can

come to that later because it is a question whether

the Liquidator has any interest in maintaining the

proceedings. There is a further question which I

wish addressed and that is how it is that the

second or third respondent took no steps to

acquaint me with the possibility that the

undertaking would be rendered nugatory by its

actions.

MR TREW:  Does Your Honour mean the second or third

prosecutor rather - Your Honour said "respondent".

HER HONOUR: Prosecutor, sorry, yes.
MR TREW:	Your Honour, I would wish to put the last question

to one side because I did not realize I was going

to be asked that question.	I will see if I can
answer that.	I am in a position to deal with the

other question because I was told that Your Honour

wished to. know whether the other prosecutors had an

interest in maintaining the proceedings. I am in a

position to do that at whatever time is convenient

to Your Honour. The only reason I raised the

appearances was that when it was brought to my

attention and we had a look at it it was obviously

something that had to be sorted out. Which way

would Your Honour prefer me to proceed?

Cape(2) 27 13/9/91

HER HONOUR: Well, there is no difficulty about the separate

representation, I should not have thought. Indeed,

I would have thought it must almost be inevitable in the situation that has now been brought about.

MR TREW:  It is only being sought in respect of this

present - - -

HER HONOUR:  Oh, that is all you seek separate

representation for?

MR TREW:  Yes.

HER HONOUR: Well, that is quite a different question, quite

a different question. I fail to see how the matter

can proceed other than by separate representation

at a later stage if it is to proceed at all. I

fail to see, if the first prosecutor has gone out

of business, what interest it has at all in

maintaining the proceedings.

MR TREW: That is not a matter that I wish to take issue,

with respect, Your Honour. If Your Honour is of
the view that it has to proceed with separate

representation - - -

HER HONOUR:  If it is to proceed at all with respect to the

Recruitment Award. If it is to proceed - - -

MR TREW: Well, I am dealing with it on that assumption.

HER HONOUR:	Yes.
MR TREW:	If that was Your Honour's view, I would not wish

to make any submissions to the contrary. The only

reason that I am submitting that limited separate

representation was an issue at the moment was in
the face of the authorities that I have had a look

at but if Your Honour were of the view that it

should proceed, if it does, with separate

representation, well, I do not wish to be heard on

that.

HER HONOUR:	You do not wish to?
MR TREW:	No.
HER HONOUR:	Well then, I suppose the convenient course is

to ask Mr Crow:  do you have any interest in

maintai~ing - on the basis that you are acting for

a company that is in liquidation and has ceased

business, do you have any interest in the

substantive proceedings at all?

MR CROW:  Yes. Well, Your Honour, after giving that careful

consideration overnight and seeking instructions

about it, my submission is that in fact the

Cape(2) 28 13/9/91

Liquidator does have and the first prosecutor does

have an interest in the continuation of the

substantive proceedings in relation to the

Recruitment Award.

HER HONOUR:	In relation to the Recruitment Award?
MR CROW:	Yes, Your Honour.
HER HONOUR:	Because you may be carrying on business?
MR CROW:	No, not for that reason, but because, whilst the

award remains alive, the first prosecutor is

exposed to the possibility that prosecution may be

taken against it for - - -

HER HONOUR:  Yes. So long as the award was stayed and it

gave an undertaking, it is entirely protected, I

should have thought, except for the future. You
seek to be relieved of the undertakings on the

basis that it can have no future operation because

you have gone out of business.

MR CROW:	Yes.
HER HONOUR:	I must say, nothing that has been said today

allays my fears with respect to this matter.

MR CROW:  I am not sure, Your Honour, what other submissions

I can put because those are the circumstances in

which - - -

HER HONOUR:  Perhaps you had better explain it. I mean, how

can it be?

MR CROW:  Your Honour, the Recruitment Award came into

operation at a time prior to its effect being

stayed. Perhaps that is beside the point because

the stay has effect from the outset. But,

Your Honour, there is a prospect that the stay

might be lifted.

HER HONOUR:  You asked to be relieved of your undertakings

and the only basis put forward is that you are not

carrying on business, and you put to me yesterday

that on your instructions there would be no further

engaging in business by the company. If that is

the case, then the first prosecutor will not be

recruiting people.

MR CROW:	Yes.
HER HONOUR:	So, the Recruitment Award is irrelevant. There

is nothing on which it can operate.

MR CROW:  Yes. Well, my client's concern, Your Honour, is

confined to the period in which -

Cape(2) 29 13/9/91

HER HONOUR:  Yes, but my concern is whether or not there is

something very close to an abuse of process

involved.

MR CROW:  Your Honour, with respect, we do not see it as

that. We are simply seeking to protect ourselves against the risk of a prosecution, should someone be minded to initiate one, in relation to a period

which has passed. We adhere to the submission we

make that the future is secure because we are out

of business and do not propose to resume it.

HER HONOUR:	If your future is secure because you are out of the business, the award is irrelevant; whether it
is stayed is irrelevant; whether it operates is
irrelevant; whether it is valid is irrelevant.
MR CROW:	Your Honour, in relation to the period that has

passed, if the stay is lifted there is that risk, in my submission. Maybe I am incapable of seeing

some logical conclusion and that is something that

we wish to avoid being exposed to.

HER HONOUR:  You also wish to avoid being exposed to the

undertaking that was given in the presence of the

prosecutor who caused - well, in the presence of

the legal representative who was then representing

the prosecutor of whom you were a wholly-owned

subsidiary.

MR CROW: Yes. Well, Your Honour, as I have tried to

explain, the Liquidator sees his duty - - -

HER HONOUR:  His position is quite different.

MR CROW:  Yes. I am sorry, Your Honour, I really cannot

help you any more. If I can think of some answer

to Your Honour's difficulty I will endeavour to

find it and put it to Your Honour.

HER HONOUR:  Yes, Mr Crow. Well, perhaps Mr Trew can find

some answer to this difficulty.

MR TREW:  Your Honour, my instructions are that there was

nothing known at the time the undertakings were

given that would have formed the basis for any

view, one, that the company was going into

liquidation or that the undertakings could not be observed. My instructions are that there is just

no basis at all for any suggestion that there has

been any abuse of process.

Now, if I could deal with the interest of the prosecutors in the continuance of these

proceedings.

HER HONOUR:  So far as they affect the Recruitment Award.

Cape(2) 30 13/9/91

MR TREW:	I am sorry, Your Honour, yes, I should -
HER HONOUR:	Because, I mean, the reference of the
MR TREW:	I think it is "permanent employment", yes.
HER HONOUR:	Yes, and the question of parties is clear

although I very much doubt that proceedings simply

directed to challenging a finding of your being

parties to the dispute would justify any sort of

stay.

MR TREW:  The submissions that I am making are directed to

this Recruitment Award, Your Honour. But before I

come to that could I say this, that the stay of

proceedings, if it were discharged, could have the

effect, as far as the first prosecutor is

concerned, of reviving the operation of the award,

as it were, retrospectively.

HER HONOUR:  What I am minded to do is not to discharge the

stay. I am minde, let there be no doubt about

this, to discharge the order nisi.

MR TREW:  Your Honour, we have not, in the time that we have

had to consider this, had time to consider whether

Your Honour has power to do that, and could I come

to that at a later stage when I deal with our

interest?

HER HONOUR:	Yes.
MR TREW:	The interest of the second to sixth prosecutors in

the Recruitment Award arises in this way: the

award affects the rights of the second and sixth

respondents in that it prohibits them - "prevents"

is the word I should use - it prevents them, except

in emergencies, from having their employees used by

the person bound by and subject to the award, at

the moment, the first prosecutor.

HER HONOUR: Well, it is the same issue. That is

irrelevant, is it not? If the first prosecutor is

out of business, it is irrelevant.

MR TREW: There is a second step to the submission,

Your Honour, and that is what I would like to come

to now.

HER HONOUR:  Yes.

MR TREW: It has been suggested, I understand, that any

other persons that provide tugboat services to the

second and sixth prosecutors may be bound by the

award under the succession or transmission

provisions of the Industrial Relations Act, and the

relevant section - - -

Cape(2) 31 13/9/91

HER HONOUR: That is another question, is it not?

MR TREW: Well, it goes to the interest - in the interest of

maintaining the proceedings.

HER HONOUR: Well, Mr Crow assured me yesterday that simply

was not possible, that there was no business to

transmit, he said.

MR TREW:  It is really, with respect to Your Honour, not a

matter of what the first prosecutor or its

representatives may consider about it but it is

whether if, as a result of proceedings taken to

enforce the award at a subsequent time against

successors or against persons providing tug

services, as to whether or not the circumstances do

constitute a succession within the meaning of

section 149, I think it is subsection (d).

HER HONOUR:	Mr Trew, if you put it on that basis, I can only assume that there was only one purpose in the
liquidation.
MR TREW:	That cannot be so, Your Honour. My instructions

are that there were sound commercial reasons for -

and I would like to say a little bit about these -

the relevant prosecutors for whom we appear
terminating the contract with the first prosecutor

because the offer it had received from other

parties was commercially very attractive and was

commercially much more attractive than the contract

that it had - in the contract with the first

prosecutor. I am told that the question - - -

MR KENZIE:  Your Honour, I object to this.

HER HONOUR:  No, I do not think you can, Mr Kenzie. It is

in answer to questions from me.

MR KENZIE:  I appreciate that, Your Honour.

MR TREW:  I am told that the question of transmission or

succession was raised yesterday and that is why I

am directing submissions now to the relevance of

that. That was not an issue, as I understand it,

Your Honour, that arose before yesterday.

Now, the prosecutors for whom we appear

challenge the making of the award, one of the

grounds being that they were denied natural

justice, they having a relevant interest that

entitled them to be heard.

HER HONOUR:  I do not think that is a ground specified in

the order nisi, with respect to the Recruitment

Award, is it?

Cape(2) 32 13/9/91

MR TREW: Yes, it is, Your Honour. If I could take

Your Honour to the particular ground. It is on

page 3 of the application book. It is in

ground l(b). Each of those paragraphs goes to that

issue, Your Honour.

Now, it is our submission that those prosecutors had a relevant interest entitling them

to be heard and they have an interest in

maintaining these proceedings to have the validity
of the award determined notwithstanding that the
first prosecutor may no longer be carrying on

business.

HER HONOUR: Well, only because of the possibility of a

successor to the business, is that right?

MR TREW: It is more than a possibility. It has been raised

by the respondents, Your Honour, so it must be seen

as a real risk.

HER HONOUR:	All right. Why should a successor to the business, if there be one or if one should come
along, be in any better position than the first
prosecutor who was the wholly-owned subsidiary of
one of the other prosecutors?
MR TREW:	Does Your Honour mean why should it not be in any worse position, rather, to - - -?
HER HONOUR:	Why should it not be in the same position

whether by virtue of undertakings or - you see,

every way I look at this matter the inference that

comes to me is that steps were taken so that and

with the hope that somebody was going to be free to

do something contrary to what had been undertaken

to me.

MR TREW:  With respect, Your Honour, that just is not

available and, on my instructions, that is not so.

HER HONOUR:  I mean, it may be that it can be achieved. It

is quite true that it may be that it can be

achieved and quite lawfully achieved but certainly

I do not see why it should be achieved by the

intervention of this Court taking steps contrary to

the steps already taken.

MR TREW: But, Your Honour, the complaint that the

prosecutors make is that something was done to them

that could continue to affect them that is

unlawful.

HER HONOUR:	Yes.
MR TREW:	And they are entitled, in our submission, to come

to this Court to seek that protection.

Cape(2) 33 13/9/91

HER HONOUR:	Yes, and they got it.
MR TREW:	Your Honour, all that has happened so far is that

the matter has been referred to the Full Court to

be determined.

HER HONOUR:	No, not with the Recruitment Award.
MR TREW:	Yes, Your Honour, the order nisi was made - was

granted.

HER HONOUR:	Yes, but with the Recruitment Award there was more than an order nisi.
MR TREW:	Yes.
HER HONOUR:	There was a stay.
MR TREW:	Yes, Your Honour, I appreciate that, but I am not

addressing submissions to the question of the stay at the moment. I am addressing submissions to the question of what is the interest of these

prosecutors in continuing these proceedings.

HER HONOUR:	Yes, all right, very well.
MR TREW:	And it is for the relief that they submit they are

entitled to get from the Court as a result of the

unlawful decision.

HER HONOUR:  Because the award might affect them if there is

a successor to the business of the first

prosecutor?

MR TREW: That is so, Your Honour.

HER HONOUR:  Is there anything else which grounds a

practical interest in the matter?

MR TREW: Well, it is a very real - - -

HER HONOUR:  Yes, I am not suggesting it is not but it is a

matter - if it is a risk, it is a matter that bears

on the first prosecutor's application.

MR TREW:	That is the ground we rely upon as the
justification for the maintenance of the
proceedings by these prosecutors.
HER HONOUR:	No other?
MR TREW:	No.

But, when I say that, the other matters upon

which the order nisi was granted, the prosecutors
would be arguing in support of that basis for
maintaining the proceedings.

HER HONOUR: Well, I do not follow that last statement.

Cape(2)	13/9/91
MR TREW:	Your Honour granted the order nisi on four or five

grounds. Each of those would be pursued - it is intended that each of those should be pursued in the proceedings when heard by the Full Court.

HER HONOUR:  Yes, but I am talking about your practical

interest in the Recruitment Award. Is there any

other ground that gives you - any other practical

ground, any other matter of industrial actuality

that -

MR TREW: Well, Your Honour, this is our interest.

HER HONOUR: - - - gives you an interest in having - that

brings you in any way within the possible scope of

the operation of the Recruitment Award?

MR TREW:  No, Your Honour, but in saying that I would wish

to underline that this award has the effect of

interfering with the financial and commercial

interests of the second to sixth respondents.

HER HONOUR:	Yes. Well, that is a matter that can all be worked out in the long run. That is the nature of
any award.

MR TREW: But, Your Honour, that is the basis upon which

the -

HER HONOUR:	But that is not a ground of invalidity.
MR TREW:	But that is the basis of the interest that the

prosecutors have in maintaining the proceedings.

HER HONOUR:  It is an interest which is wholly theoretical

unless there is a successor to the business of the

first prosecutor, is that right?

MR TREW: Well, asked in that way, the answer has to be, yes

but, in our submission, with respect, Your Honour,

that is not an adequate analysis of the position.

The respondents who are the very persons who have	the interest in maintaining that there is a
successor have raised it as a possibility. That
must take it beyond the realms of mere theory. One
must assume, on the basis of that - - -

HER HONOUR:  I think I raised it, actually, in truth,

Mr Trew.

MR TREW:  Is that so? I was not here, Your Honour, and we

could not get a transcript.	I understood it was
the respondents.	One must assume, in those

circumstances, Your Honour, that that is a very

real possibility.

Cape(2)	35	13/9/91
HER HONOUR:	But except that Mr Crow says, no.	He told me

yesterday - when I raised it, he said there is no

business to which anyone can succeed.

MR TREW:	Your Honour, all I can assume, with respect, is that must have been an incautious answer because
Mr Crow, with respect, is not in a position to make
that - really, that is an assertion of a position
of fact and the only way that can ever be resolved
is by parties other than the party that my learned
friend represents litigating it and having it
determined somewhere else. It is a matter, in my
respectful submission, that Your Honour cannot give
any weight to.

Your Honour raised a question earlier about

the discharge of the order nisi.

HER HONOUR:	So far as it goes to the Recruitment Award.
MR TREW:	I think it only goes to that, Your Honour.

HER HONOUR:  No, it does not. It goes to you being parties

to the finding of dispute.

MR TREW:  I am sorry, yes. I was wrapping those all up

together, yes.

HER HONOUR: Well, does that alter anything you have said?

MR TREW:  No, it does not, Your Honour, because the whole is

embraced by what I have been making submissions

about. In the time available to us, we have not

been able to develop any considered submission to

make about Your Honour's power and would wish to

have time to do so if Your Honour were minded to do

that. We have seen section 18 of the Judiciary Act

which would tend to indicate that Your Honour did

not have the power.

HER HONOUR:  I have power to vary, have I not? It has

certainly been done in the past. Individual judges

have varied order nisis as granted by them.

MR TREW:  Your Honour, I cannot answer whether that was done

within power because, as I have said to any considered submission and that may not affect

the ultimate question of there having been a
determination that the matter was to be determined

by a Full Court, it then remains for the Full Court

to determine its fate.

Section 18 of the Judiciary Act would tend to indicate that it was for the Full Court to do so.

I have not given Your Honour a reference to that

Cape(2) 36 13/9/91

section. Perhaps if I could read it to

Your Honour:

Any justice of the High Court sitting alone, whether in Court or in Chambers, may state any

case or reserve any question for the

consideration of a Full Court, or may direct

any case or question to be argued before a

Full Court, and a Full Court shall thereupon

have power to hear and determine the case or

question.

That would indicate, in our submission, that once

Your Honour had stated or reserved any question for

consideration or directed any question to be argued

before a Full Court, that - - -

HER HONOUR: Well, that goes to the second award.

Section 18 goes to the second award. What I have

done was issue a writ returnable before a

Full Court so far as it affects the Recruitment

Award. I have authorized the issue of a writ

returnable before the Full Court. It has not yet

been returned. So, there is, in fact, as I

understand the law of prerogative writs, nothing

yet before a Full Court. Perhaps nothing turns on

it. I would certainly give you time to argue - - -

MR TREW:  I have got to be frank with Your Honour, we are

and that is why I ask that if that is a live

just not in a position to give the help that

question, we would wish to have time to consider

that so that we could put proper submissions to the

Court about that.

Could I go back to the distinction Your Honour made between the dispute finding and the award.

They are tied together, in our submission. If

Your Honour has a look at page 165 of the

application book, in the second-last paragraph, the

way in which the dispute finding is tied up has a

very direct relationship to the award that was

subsequently made. The commissioner found that it

existed between the unions and the various

companies and it concerned arrangements that:

exist between -

them -

as to the engagement/employment -

et cetera. And if one falls, in our submission -

if the dispute finding is found to have been made

in circumstances where the prosecutors have not

been heard, it will follow, we would wish to

Cape(2) 37 13/9/91

submit, that the award must go as well, it having

been made in circumstances where there was an
improper exercise of power; the basis of the power

being the finding of the dispute, and we would wish

to - - -

HER HONOUR:  A very interesting use of the expression,

"improper exercise of power'', but it does not

matter.

MR TREW:  We would wish to develop that submission before

the Full Court.	They are the submissions I wish to
make.

HER HONOUR:  Thank you. Well now, Mr Crow, it seems. You

claim still to have an interest in the substantive

issues?

MR CROW:	Yes, Your Honour.
HER HONOUR:	And Mr Trew says that there is a business of

your prosecutor to which there might be a

successor?

MR CROW:  I am aware of my friend's description of my

submission yesterday in so far as the evidence is from Mr Papaconstuntinos that tugs are continuing

to be operated at Port Walcott so, perhaps, in the

sense that that is happening there may be an

available argument that there is a successor to the

business and what I said yesterday was my

instructions which perhaps involved conclusions of

law by my clients and, in that sense, perhaps it

was incautiously expressed.

Your Honour, the interest that my client

asserts it has in the maintenance of the
substantive proceedings in relation to the

Recruitment Award is the one that I have already

expressed. I am afraid, I cannot put it any

better, that - - -

HER HONOUR:  But the question, "If there may be a

successor?", then the purport of your application,

if successful, would be to put the successor in a

better position or in a different position with

respect to that business from the position which

your prosecutor occupied.

MR CROW: That wo_uld be correct, yes, because - - -

HER HONOUR: That would, would it not, bring about the

consequence which, if it was not intended, was most

advantageous to the prosecutors and in which the

Court had been, if not deliberately used, an

unwitting instrument?

Cape(2) 38 13/9/91

MR CROW:  With respect, Your Honour, that might be so if my

client had some interest or had sponsored in some

way the - - -

HER HONOUR: Well, of course, your client is the company in

liquidation.

MR CROW: It is, yes.

HER HONOUR:  And I take it from the date of liquidation. It

is no longer a creature of the other prosecutor.

MR CROW:  Yes. Your Honour, whatever entity is providing

tug services, my client, the Liquidator, is not

aware of and does not know whether there might be

some reason why that entity ought be burdened or

bound by the undertakings and other proceedings in

which the first prosecutor is presently embroiled

and there does not seem, in my submission, any

basis upon which whatever subsequent entity is

doing the work that my client formerly did ought be

substituted for my client in - - -

HER HONOUR: Well, is there any other basis on which you

have an interest in the substantive proceedings?

MR CROW:  The only basis, as I have said to Your Honour, is

that we are concerned of some risk that if the

award is not set aside or declared invalid, that in

relation to actions on our part prior - - -

HER HONOUR:  But you have not recruited. The whole purport

of a stay and the undertakings and effect was that

there was no recruitment.

MR CROW: There has been no recruitment since the

liquidation, Your Honour, and so we are not

afraid - - -

HER HONOUR: There has been no recruitment contrary to the

award since it was made, is that not right?

MR CROW: Those, again, are my instructions but I must now

express the same rider, that those instructions, no
doubt, contain with them some conclusion by those

giving them of a position of law. Now, for all I

know - and I have to be careful about this - there

may be some basis upon which it might be alleged

that we have been in breach of the award. I am

just not able to ascertain that through my client,

the Liquidator, but - - -

HER HONOUR: It is hardly a secure footing for the

prosecution of proceedings of this nature, is it?

MR CROW:  I am sorry about that, Your Honour, but that is

the case. What we say is in so far as we were

Cape(2) 39 13/9/91

engaged, that is the first prosecutor, in the

provision of tugboat services up to the point of

liquidation, people were doing the work for us.

Now, in the process of doing that, there may have

arisen a situation of which we have not been made

aware or, at least, not the Liquidator, which might

give rise to some prosecution.

Now, we are not jumping at shadows but equally

we need to protect our position against something

which is a definite risk and whilst we do not have

any present apprehension of a prosecution, that is

a possibility and that gives us an interest in

wanting to have an award set aside under which we

could be prosecuted which we say was improperly

made. But that is the extent of it. It is in

relation to past conduct which is over now,

Your Honour, it cannot be changed. Therefore, the

lifting of the stay, if that becomes a term of the

release of the undertakings, does not concern us

because we are out of business and we are not going

to make matters worse for ourselves.

Again, I say all this; it is speculative,

Your Honour. We do not know that we are at risk of

prosecution but -

HER HONOUR: Well, this is a real difficulty, is it not?

MR CROW:  Yes. I cannot improve - - -

HER HONOUR: Everything is speculative except for the fact

that a different situation has been brought about

from that which was the subject of an adjudication

which was determined on a particular basis.

MR CROW:  Yes. Your Honour, the appointment of the

Liquidator has come some time after the date upon

which the undertakings were given, Your Honour.

Now, I can only submit to Your Honour that in that interval circumstances have changed to a degree

where the shareholders of my client saw fit to pass

a resolution for the winding up of the company and

that has been done.

Your Honour, the Liquidator has come to the

Court to explain this position by way of an

application to be released from the undertakings,

rather than in some cavalier fashion disregard

those undertakings on some basis. Now, we say that

we are conducting ourselves as we think is in a

correct way in the circumstances. But as to why

the shareholders have resolved to wind the company

up, that is not a matter that the Liquidator is

concerned about.

Cape(2) 40 13/9/91

HER HONOUR:  You cannot oppose the lifting of the stay

order?

MR CROW:  I do not see how I can, Your Honour, in relation

to the Recruitment Award, no.

HER HONOUR:  Do you, Mr Trew? I should have asked you

because - - -

MR TREW:  The only matter that I would wish to submit in

relation to it, Your Honour, is that if it is

lifted it should be lifted with effect from now,

not retrospectively; to preserve any position that

pertained beforehand.

HER HONOUR: 

It would be lifted with effect from when the

undertaking, which has been rendered nugatory, was
given, because the effect of that undertaking, of

which there can be no doubt in anyone's mind, was

to bring about a particular legal consequence at a particular time. It was a most material matter to

the determination at that time.

MR TREW: 

I do not dispute that, Your Honour. That is

apparent from the face of the order, with respect,

but what I am concerned to make clear is that what

has happened since has happened because of what I

told Your Honour earlier.

HER HONOUR: Well, again, unless there was a successor to

the business in the interim that was - - -

MR TREW:  Your Honour, there is a real possibility that that

could be a live issue. I have not got the - this

Court in a case involving the Australian Transport

Officers' Federation dealt with the provision - a

circumstance where, I think it was, the Motor

Transport Authority was replaced by another and the circumstances there were that the Court held that

there was a successor, where there was a cessation

of one and another. So, there is an issue to be

addressed in relation to that, in our submission.

I would just be repeating myself if I continued.

If Your Honour pleases.

I am reminded of this, Your Honour, that our

instructions are that when the undertaking was

given there was no basis for suggesting that it

could not be maintained and honoured and that is a

most material matter, in our submission.

HER HONOUR:  Yes, and I suppose the undertaking was taken

into account in the decision to put it into

liquidation.

MR TREW:  I cannot answer that question, Your Honour. My

instructions are that there was an offer made by

Cape(2) 41 13/9/91

other parties which was commercially very

attractive and justified the termination of the

other contractual arrangements.

HER HONOUR:	By consent.
MR TREW:	I do not understand what Your Honour means by "by

consent"?

HER HONOUR: Well, it was an agreed position between the

first and the second prosecutors, according to the

affidavit.

MR TREW:  I believe it was not, Your Honour. The reason I

am saying that is I believe it was within the power

of the second or third prosecutor to unilaterally

do so.

HER HONOUR:	Yes, knowing of the undertakings.
MR TREW:	That may well be, but Your Honour is putting it on

another basis that I am resisting and there is a
difference, in our submission. If Your Honour

pleases.

HER HONOUR:  Yes, very well. Mr Kenzie.

MR KENZIE:  Your Honour may understand that there are

certain difficulties that we now have in responding

to a number of submissions which, over the last

couple of days, have been inconsistent in many

material respects.

Your Honour, as we apprehend the present

position, it is this, that all of the prosecutors

have maintained that they have an interest in the

maintenance of the substantial proceedings before

this Court. All of them, for different reasons, see themselves as at risk if the award operates. Mr Trew sees his clients at risk because of the

question of successorship; Mr Crow, because of

past conduct or possible past conduct, the

existence of which is not known and certainly not

in evidence; the logic of the position of the

prosecutors would be that they have a genuine

concern in relation to the maintenance of the stay

in the future. Mr Trew's position, which appears

to be contrary to his alleged interest in relation
to the substantial proceedings, is that he has no

interest in maintaining the stay. So, it appears

to us, with respect, that there is an inconsistency

in their position which only adds to the

difficulties with which we are faced.

We seek to resist the removal of the

undertaking for a number of reasons, Your Honour,

which we had commenced to say something about

Cape(2) 42 13/9/91

yesterday. We say that steps have been taken,

which appear to be voluntary on the face of the

only sworn evidence before the Court, that is, the

evidence of the Liquidator, which, in his three-

paragraph affidavit, suggests that what took place

was the termination of an agreement, being the

agreement referred to in the earlier affidavit of

Mr Small, and suggests that thereafter a decision

was taken to wind the company up.

Those decisions, on the face of the evidence

before the Court, do not appear to have been
anything other than voluntary. There is certainly

no evidence to suggest that they were not. Steps

were taken, Your Honour, by those who seek to

maintain the proceedings before this Court, in a

certain order in circumstances where an undertaking

existed, given within the last few weeks. The

steps that were taken were to attempt to disqualify

the party giving the undertaking from the capacity

to go on giving effect to it, and then to come to

this Court after the event to seek the removal of

the undertaking, without evidence.

Had it been done the other way around,

Your Honour, had the parties come to the Court

before these steps were taken, then may we

respectfully suggest that a number of questions

would have been asked of those who were seeking to

take the steps. Those questions must have

included, in the face of a voluntary undertaking

given to our clients, the purpose or purposes for

which these steps were to be taken. Explanations

would have been required of those who gave the

undertaking as to why they wanted to do it in

circumstances where the removal of that undertaking

would have a number of consequences including

consequences upon members of the organizations for

whom we act and for the organizations themselves.

Your Honour, had it been done that way,

Your Honour would have been concerned at the

employees who were designed and intended to take

the benefit of the undertaking. They were the

people who were the subject of an affidavit which

was put on by the maritime unions in the

proceedings which came before Your Honour on

5 July. I will not read the affidavits,

Your Honour.

HER HONOUR: Could I ask this: has a reinstatement award

been made? Are those proceedings still going?

MR KENZIE:	A dispute was found but that is as far as it has gone at the moment, Your Honour. There have been
proceedings before the commission and it has not

Cape(2) 43 13/9/91

proceeded to finality. It was taken on appeal by

Cape Lambert Services and - - -

MR CROW:  Your Honour, there was a negotiated compromise of

the appeal proceedings between Cape Lambert

Services and the unions responded to the

proceedings in the commission. Part of that agreement is referred to in the affidavit of

Mr Papaconstuntinos in paragraph 6 in so far as -

one of the terms is that the appeal be stood over

for mention on 3 February, and you will find that,

Your Honour, at about point 4 or S. But the

agreement was reached that the unions would not -
and Your Honour, as I understand it, there is no

confidence about the terms of this agreement, The

commission was informed about it - there was an

agreement between the company and the unions that

the unions would not proceed in the commission on
the finding of dispute that was under appeal in
relation to the reinstatement, and in those
circumstances the appellant would not prosecute the

appeal against that finding.

HER HONOUR:  And that, I take it, was also given in the context of the undertakings, was it?

MR CROW: Well, the agreement was reached, Your Honour,

between representatives of the parties without
reference to or discussion of undertakings given in

the High Court.

HER HONOUR:  I would have thought such an agreement was only

explicable.

MR CROW: But, Your Honour, I do not mean by that to imply

that nobody was mindful of the consequences of

them. I am trying to recall the chronology of
events, Your Honour, to recall whether the

application in this matter had in fact been served

at that time. I will check this, Your Honour, but

I understand that this application had actually

been initiated later in the week.

Your Honour, just to finalize that

description, the appeal was stood over for mention

to 3 February 1992 for the purpose of having the

appeal withdrawn on that date in the event that the

winding up of the company had been completed.

MR KENZIE:	Your Honour, I am loath to say too much from the bar table in view of what I am to say about
evidence in the matter, but I do have instructions
in relation to the question Your Honour asked and
in relation to paragraph 6 of Mr Papaconstuntinos'
affidavit which refers to the events that my friend
has just gone to, that is, the appeal being listed
for hearing before a Full Bench of the commission
Cape(2)	13/9/91

on 2 September. That is the occasion when the

Full Bench was informed of the liquidation of

Cape Lambert Services and I am instructed that

Your Honour's order was, in fact, tendered in the

proceedings on that day and it was in the context

of that and submissions in relation to that that
the events described in Mr Papaconstuntinos'

affidavit took place. As I say, they are my

instructions, Your Honour, given to me by my

solicitor who was present at the time.

Also tendered at that time was the letter of

27 June which was the letter that I took

Your Honour to yesterday, the letter indicating

that there would be termination following the first

proceeding before Your Honour.

HER HONOUR:	Yes.
MR KENZIE:	The letter being the letter referred to in

paragraph 1 of the undertaking, Your Honour.

Your Honour, I was addressing the impact of

the removal of the undertaking on employees and

directing Your Honour's attention - I do not think

I need to read very much of it or, indeed, any of

it to Your Honour - to Mr Fleming's affidavit which

was before Your Honour on 5 July. That affidavit

dealt, amongst other things, with the impact of the

events which had taken place up to 5 July.

Your Honour, I think it was one of the two

affidavits I handed - I think Your Honour had the

Fleming affidavit.

HER HONOUR:	Yes, I have that.
MR KENZIE:	Your Honour, the affidavit, amongst other

things, referred, in paragraph 7, on page 3, to:

The major award proceedings ..... before Deputy

President Polites -

and a large number of days that had been taken in

the proceedings up to then. In paragraph 11 there
was evidence given as to the effect of the order

staying the Recruitment Award on the members of the

unions. I will not read all that, Your Honour, but

there was substantial evidence of the alleged

impact of the stay and, Your Honour, for example,

on page 6 the dismissals and, the effect of the

dismissals were dealt with in relation to the

employees:

Loss of wage and salary entitlements .....

Loss of company superannuation .....

Future benefits under long service leave

awards -

Cape(2) 45 13/9/91

and the like. So that, Your Honour, there was well

and truly an issue before the Court on 5 July

calling for some form of protection in the event of
the stay remaining and it was protection that
related to the members of the unions and it was
also related to the chronology, if you like, of the

proceedings before Deputy President Polites, and I

will come to the relationship between the two, very

briefly, in a moment, Your Honour.

Now, in those circumstances, Your Honour, the voluntary undertaking was given. Your Honour, the

chronology thereafter supports the inference, and

in our respectful submission, overwhelmingly

supports the inference, that steps were taken by

the prosecutors recently with a view to bring about

an advantage to them by making the undertaking as

irrelevant or unworkable as they could.

While the undertaking remained on foot, the

first prosecutor had agreed to be an employer.

That was a very material consideration,

Your Honour, especially for the employees who were mentioned in the affidavit and who were to be the

subjects of the award in the principal proceedings

before Deputy President Polites referred to

specifically in the affidavit. In other words,

those proceedings were to give rise to a general

award which, at the end of the day, was to be the

award. At the end of the day it would have

incorporated, and it was certainly capable of

incorporating, awards which were made during the

course of those proceedings, including the awards

made by Commissioner Fogarty, the subject of the

proceedings before this Court.

Your Honour accepted the undertakings on

5 July and it was well and truly open to

Your Honour to accept the undertaking

notwithstanding the fact that it was expressed to

operate "until the decision of

Deputy President Polites" on the matters described

in the affidavit.

Your Honour, as to the relevant authorities in

relation to the capacity of the Court to accept an

undertaking at an interlocutory and not a final

stage, could we refer Your Honour to Thomson v

Trade Practices Commission, 148 CLR 150, and the

passage that we were wishing to take Your Honour to

very briefly is at page 165 point 1. Could I hand

to Your Honour a copy of the report?

HER HONOUR:	Thank you.
MR KENZIE:	Your Honour, the Court was there dealing with

the position in relation to an undertaking or an

Cape(2) 46 13/9/91

injunction, the final stage of a proceeding, and

said:

As an undertaking is given in lieu of an

injunction and is enforceable in like manner,
the principles which govern the grant of an
injunction by a court must guide it in
deciding whether it should accept an

undertaking. Limitations which affect the

court's jurisdiction or power to grant a final

injunction must be observed in the acceptance

of an undertaking when it is offered as a

substitute for a final injunction. The court

cannot escape such limitations by the

expedient of accepting an undertaking in lieu

of an injunction. The court cannot put itself

in the position of enforcing conduct which it

has no capacity to command or compel. No

doubt the Federal Court has power to accept an

undertaking at an interlocutory stage when the

undertaking is reasonably related to the

orderly procedure of the Court or to the

subject matter of the litigation -

and that, Your Honour, is the passage that we wish

to direct Your Honour's attention to here.

Your Honour, the undertaking was an

undertaking to continue to employ people so that

the Recruitment Award would not be brought into

play in circumstances where it was challenged. If

there were no terminations, there would not be any

recruitment, bringing the award into play.

The selection of the Polites' proceedings in

the undertaking was referable to the time of the
operation of the undertaking and it was a perfectly

acceptable and appropriate period of time to

select, having regard to the relationship between

the two proceedings. Your Honour had power to

accept the undertaking. It was given for a

particular purpose and the purpose was achieved,

namely, the maintenance of the stay which would

otherwise certainly have been at risk.

Now, Your Honour, the undertaking is now

sought to be removed in circumstances where, to say

the least, the prosecutors' position presents one

with difficulties. If one starts with the view

that there was something to be gained by the

exercise ·at hand, one would certainly form the

view, in my respectful submission, that the

suspicions had not been dispelled by what has been
put from the bar table. In our respectful

submission, the Court would not entertain the

prospect of removing the undertaking in

circumstances where the conduct of the prosecutors

Cape(2) 47 13/9/91

has not been explained and substantiated by

evidence capable of being examined and tested.

HER HONOUR: Well, I do not know about that. I mean, I am

still in the position where you seek to obtain - or

your submissions yesterday indicated you wished to

obtain an advantage or you saw yourself as

obtaining an advantage that would not exist if the

stay were lifted with effect from the date that the

undertaking was given although, I must say, for my

part, I do not understand that because if there

ever was an industrial dispute, it must be capable

of resolution by an award with retrospective

effect.

MR KENZIE:  Your Honour, I think the way we put it is not

that the jurisdiction necessarily depends upon the

undertaking but, on any view, the existence and
maintenance of that undertaking is relevant because

it is destructive of the proposition that the relationship of employer and employee somehow

ceased to exist with the result that the

jurisdiction of the commission is relevantly

affected. But, Your Honour, we do not wish to be

understood as submitting that the jurisdiction of

the commission depends entirely upon the

undertaking. It cannot be denied, however,

Your Honour, that the undertaking is an undertaking

to employ and to continue to employ.

It is possible that questions could arise as

to whether the undertaking would be - - -

HER HONOUR:	But is not your strongest position in relation to the maintenance of the undertaking that you have
acted in reliance upon the undertaking and it will rebound to your detriment if the first prosecutor
is now allowed to depart from it?
MR KENZIE:	Your Honour, there is no doubt of that, in our

respectful submission. It goes without saying.

Your Honour, certainly, in those circumstances, the

undertaking should not be removed unless

Your Honour was satisfied, on strong evidence, as

to the circumstances in which the steps were taken,
in the order that they were taken, and at the time

they were taken.

HER HONOUR:  No, no. If you put it on that basis,

Mr Kenzie, on the basis that you have acted to your

detriment or you have acted in reliance upon the

undertaking and detriment will flow if the

undertaking is not adhered to, then the question is

what is adequate to ensure that no detriment is in

fact suffered?

Cape(2) 48 13/9/91

MR KENZIE:  Your Honour, in our respectful submission, it is

difficult to conceive of anything other than the
continuance of the undertaking, and certainly

nothing else has been suggested because, as we

understand it, the position of the prosecutors is

that it was open to do what they did regardless of

the interest or detriment to the organizations or

their members and that it why no alternative

undertaking has been suggested or proffered.

Now, Your Honour, we contend that in the present set of circumstances, at least, it would be

entirely unfair for Your Honour to remove the

undertaking which has benefits on the organizations

and its members.

HER HONOUR: Well, I do not know that it has benefits. I

would not refuse to release the first prosecutor

from the undertaking on the basis that it has

benefits for the respondents and their members. I

would only refuse to do it on the basis, I think -

I think this must be the case - that you have acted

on the faith of it and detriment would ensue. To

be more precise, it seems to me the detriment that

you point to in your submissions may or may not be

the proceedings current before

Deputy President Polites, but certainly would seem

to be the basis on which the proceedings before the

appeal relating to the reinstatement award was

disposed of.

MR KENZIE: Yes, that is so. And, Your Honour, one would

ask this question:  why is it that the Liquidator

seeks the removal of the undertaking in

circumstances where the Liquidator is presently, on

the evidence, acting on the basis that he has an

obligation to conduct himself in accordance with it

and - - -

HER HONOUR:  There is no doubt, is there, though that - I

mean, that is something of a red herring,

Mr Kenzie.	terms of wages et cetera depend on the resolution The entitlements of your members in
of the matter as it affects the employment award.

MR KENZIE:  Your Honour, under the undertaking, they are

entitled to continue to be employed and to

receive - - -

HER HONOUR:  Yes,. but whether their entitlements bring in

train, holiday pay and so forth and so on can only

be determined by the proceedings in the application

book so far as they concern the second award, the

non-recruitment award.

MR KENZIE:  Yes, Your Honour. However, there is a limited

award that applies to Cape Lambert Services and the

Cape(2) 49 13/9/91

effect of the undertaking is that Cape Lambert

Services would be employing those persons and

paying them pursuant to that award. It is not a

comprehensive award, Your Honour.	The undertaking
does not operate in the abstract.

HER HONOUR:  But if the undertaking is not released, then

Cape Lambert Services is going to be left with wages and liabilities for a period of which people

are, in fact, not employed. Is that not correct?

MR KENZIE: Are employed but not working, Your Honour.

HER HONOUR:  Are employed but not working, yes.

MR KENZIE: Yes, and that by the election of those who have

taken the steps, Your Honour. And that arises

because they have elected to take the steps that

they did: cancel the agreement; go into voluntary

liquidation and then attempt to visit the

consequences of that on the employees who the
undertaking was designed to protect and, that, in

our respectful submission - - -

HER HONOUR:  Yes, but that really begs the question in any

event. The first prosecutor is not, since the

appointment of the Liquidator, the creature of the

other prosecutors or any of them. And the

Liquidator has responsibilities in accordance with the general law.

MR KENZIE:	Yes, Your Honour, and including the discharge of the obligations on the part of the prosecutor in
accordance with the law. If it was a contractual
obligation, the Liquidator -
HER HONOUR:	But why should he be put in a position where

further obligations will accrue in circumstances in

which there is no work being done?

MR KENZIE: Because all the suggestions from the evidence

available is that this is a result - a deliberate

move to bring about the result.

HER HONOUR:	Yes, that may be so. For the moment, let us assume that it was not. Let us make that
assumption for the moment, that it was a fortuitous
circumstance which rebounded to the benefit of the
prosecutors by reason of decisions otherwise taken for good commercial reasons.

MR KENZIE: Yes. Your Honour, in those circumstances, of

which, of course, there is no evidence - but, on

that assumption there would be a balance that the

Court would have to deal with and the Court would

be entitled to take into account a number of

considerations. The Court would be entitled to

Cape(2) 13/9/91

take into account the way in which things were

done. The Court would be entitled to take into

account whether, perhaps, questions of contempt

were raised.	The Court would be entitled to look
at the balance but we accept that.	What we say to

Your Honour is that that is an assumption that

could not safely be made in the circumstances of

this case.

HER HONOUR:  But why do you resist that release and the

lifting of the stay? It is because you seek

thereby to obtain a benefit that would not

otherwise be available to you even if the award had

run its course and the proceedings had never been

brought.

MR KENZIE:  Your Honour, we meet Your Honour's question by

saying that that is not an undermining of our

position. It would not matter if that were the

case. In fact, the likely situation is - indeed,
the inevitable situation is if the undertaking

goes, the employees who were to take the benefit of

it will be discharged tomorrow.

HER HONOUR:  Yes, but that would be the same if there had

never been a stay of this award and Cape Lambert

Services had been put into liquidation.

MR KENZIE: It would, Your Honour, but our respectful

submission is that that is not a consideration of

relevance. In fact, what happened was that the

prosecutors initiated proceedings to protect their

interests as they saw fit. They got a stay, and in

order to maintain it, they gave a voluntary

undertaking. Now, that happened and things were

done in consequence of it.

HER HONOUR:  Well now, you have to put it in terms of things

done in consequence. What is the detriment that

would be suffered by reason of the acts you have

done?

MR KENZIE:  Your Honour, at the very least, one can say that

the reinstatement matter referred to in paragraph 6

of the affidavit would have been prosecuted and

dealt with, in our respectful submission, with the

result that the organizations could have looked
forward to some speedy or speedier resolution and

one does not know, of course, but a resolution which would have provided or may have provided award entitlements to the members, the same people

who will take advantage of the general award at the

end of the day in any event.

Your Honour, in addition, one is faced with

the fact that under the undertaking, until such

time as the Court otherwise intervenes or

Cape(2) 51 13/9/91

Deputy President Polites decided, there would be certainty of employment for those employees and I

concede there is no direct evidence of matters

relating to individual employees save for that in

Mr Papaconstuntinos' affidavit when he deals - - -

HER HONOUR:  Would there have been certainty of employment

or might there have been certainty of employment

independently of the undertaking? That is the

point where, it seems to me, you are on very weak

ground?

MR KENZIE:  It is not apparent to us that there would have

been, Your Honour. I am not sure of the basis upon

which it could be suggested that there was

certainty.

HER HONOUR: Well, you see, then where is the detriment,

other than in terms that there might have been a
speedier resolution of the reinstatement award

which would, I take it, make matters pertaining to

the other award, to some extent, irrelevant?

MR KENZIE: Yes. Your Honour, I think there is an answer to

Your Honour's question.	May I just take some brief
instructions?

HER HONOUR:	Yes.
MR KENZIE:	Your Honour, I think the materials bear this

out. The position of the company from 27 June was

that the individuals were to be offered, from
1 July 1991, casual employment for the duration of

the swing. That emerges from the letter of

27 June, and was the matter that immediately gave

rise to the second proceedings.

Paragraph 1 of the undertaking that was given

is in these terms, "That it will engage each of the

persons who were employed as permanent employees

immediately prior to 30 June 1991, for each of the

swings they would normally have worked, but subject

to any binding decision to the contrary, it will

treat them as employed on the terms and conditions

set out in the letter".

HER HONOUR:  You see, as I understood it, what was

contemplated was that the Reinstatement Award

might, in fact, constitute a binding decision to

the contrary.

MR KENZIE:  Yes. I will just take some instructions in

relation to that, Your Honour.	I am not of the
answer.

HER HONOUR:  If made. And you say it has been delayed and

those proceedings have been rendered irrelevant and

Cape(2) 13/9/91

the costs of pursuing them have been thrown away, I

suppose.

MR KENZIE: All of that. There is no doubt that the

reinstatement proceedings that were before the

Full Bench on 2 September were proceedings which amounted to a challenge to what the company was

saying in relation to its letter of 27 June and the

basis upon which persons would be employed after

1 July. The unions' position was that the people

who were affected and in question would be entitled

to permanent employment. That was the matter that

was sought to be agitated on 2 September. It was

not agitated in circumstances where the liquidated

nature of the company was put before the commission

and relied upon and that is the situation that led

to the matter not going forward on 2 September.

Your Honour, I think that is a fair

encapsulation of the position and, on any view, it

would appear that if the undertaking that is now

sought to be set aside, that will involve a

departure from the situation as put before the

Full Bench on 2 September and that, in

circumstances where the employees and the unions

have been deprived of their right to agitate the

matter.

Now, there are other matters that go to the

question. One of the consequences of the absence

of evidence from the Liquidator, other than the

three-paragraph affidavit, is that there is simply

no evidence of any incapacity to pay or any
difficulty in relation to payment or anything which
goes to the reasonableness or unreasonableness of a

continuation of the undertaking.

HER HONOUR:  But that speaks for itself though, does it not?

MR KENZIE: Well, yes, Your Honour.

HER HONOUR:  I mean, it is patent that the undertaking will

result in obligations and liabilities accruing to

the first prosecutor in circumstances where it has

no work to give to your members.

MR KENZIE: Yes, Your Honour, but a factor which would be

relevant to Your Honour's consideration as to

whether to set aside the undertaking is whether,

for example, the first prosecutor or those who

participated in the decision were in a position to

keep the agreement on foot or otherwise.

HER HONOUR: But, surely, that cannot be right. That could

only be right if one could continue to assume that

the first prosecutor is the creature of the other

Cape(2) 53 13/9/91

prosecutors as, of course, the letter tended to

indicate.

MR KENZIE:	Your Honour, we were rather going to the question of the decision to terminate the agreement referred to in paragraph 2 and we were suggesting
that that was done by way of election on the
evidence, and there is no evidence to suggest that
there is any hardship resulting from the continuation of the undertaking in circumstances
where you had no evidence as to the reasons why
that decision was taken. For all you know, it
might have had significant economic impact bearing
upon the question as to whether the undertaking is
set aside.  But you do not know. And the reason
you do not know is because, quite surprisingly, in
our respectful submission, there has been no evidence called and put before Your Honour as to
the circumstances in which any of this was done.
Nothing to aid Your Honour in coming to grips with
the difficult question that now arises as to
whether it is reasonable to keep on foot an undertaking which, if you look at it one way, can
be seen to be an undertaking that provides money
for people who are not actually doing anything.
HER HONOUR:	Which, prima facie, makes it unreasonable, unless you can point to some detriment, more
particularly. I mean, certainly there is an
absence of evidence; there is certainly a paucity; but let us assume that this might have the effect of defeating creditors.
MR KENZIE:	We would invite Your Honour not to speculate.

There are inferences available but speculation,

with respect, is not. Your Honour, the undertaking

will run its course when Deputy President Polites

gives his decision. Now,

Deputy President Polities, on the affidavit of

Mr Papaconstuntinos, has indicated in circumstances

where the present proceeding have been made known

to the commission, that he proposes to make an

award, and could I remind Your Honour of Mr

Papaconstuntinos' affidavit, paragraph 13, which

details the proceedings in the commission on

Wednesday of this week. Page 5 of

Mr Papaconstuntinos' affidavit. The paragraph on

page 5 shows that the Deputy Present was apprised
of the present proceedings and, at the bottom of

the page:_

Counsel for the Liquidator informed the

commission that it did not wish to take any

further part in the proceedings and the
commission then stated that, subject to the

Liquidator indicating a different view, the

commission was prepared to make an award

Cape(2) 54 13/9/91

binding the company to resolve the industrial

dispute when the proceedings resumed on

23 September 1991.

So we are looking at the maintenance of the undertaking, voluntarily given, for a very short period, in circumstances where there has been no explanation proffered to you as to why the timing

was as it was or why the decision was taken in the

way that it was, no doubt conscious of the

consequences. So, Your Honour, there are factors,

in our respectful submission, which would make it
entirely undesirable for the undertaking to be

interfered with and certainly interfered with at

this stage when it is only going to be in force for

a comparatively short period of time.

Your Honour, they are our submissions. We are

in a similar position to Mr Trew in relation to

Your Honour's power to discharge the order nisi.

We would say - - -

HER HONOUR:  Or vary it. Vary it to the extent of deleting

the reference to the Recruitment Award

MR KENZIE: Yes. Your Honour, we are aware that the rules

at least do contemplate the finalization of matters

commenced by way of order nisi by a single Justice

and although this is not definitive, there are

clearly cases where a single member of the Court

has - - -

HER HONOUR:  I need not trouble you on that. I would not,

in any event, vary or discharge the order nisi so

far as it affects the Recruitment Award without allowing Mr Trew to be heard and you would then

have an opportunity to be heard in reply. So I

need not trouble you on that.

MR KENZIE:  I am grateful to Your Honour. They are our

submissions, Your Honour.

HER HONOUR: Anything in reply, Mr Crow?

MR CROW:  Just one short matter, Your Honour. I would like

to deal, if I could, with this suggestion of

detriment by the union parties, and particularly in

relation to the suggestion that the application for

a reinstatement award was compromised before the

commission in reliance on the undertakings. Now,

Your Honour, there is no evidence in the affidavit

put on by the respondents that that was a basis

upon which the proceedings - - -

HER HONOUR:  No, but prima facie at least, it does seem that

various proceedings have been run and maintained in

the commission in a context where it was assumed

Cape(2) 55 13/9/91

that the undertaking would operate. And perhaps it

does not matter whether that is clear or not, there

seems to be a real possibility that, in

circumstances in which clearly the onus must be on

you to show that it is right and proper and just in

all the circumstances that you be released of the

undertaking.

MR CROW:  Your Honour, surely, with respect, in

circumstances where it has been put as part of the
case of the respondents that they have suffered

detriment by reason of the undertakings - - -

HER HONOUR:  Prima facie it seems to me that the sheer

wasting of money in terms of employing counsel to

run cases in the commission, time of union

officials wasted, would be detriment.

MR CROW:  I hear what Your Honour says - - -

HER HONOUR: According to ordinary principles of estoppel.

MR CROW:  But at least can I say this in relation to the

suggestion that those reinstatement

proceedings - - -

HER HONOUR:  And one simply does not know - I am sorry to

interrupt you - but one simply does not know what arrangements have been made by these people up at

Port Walcott on the faith of the undertaking.	I
mean, arrangements might have been made about
housing, education, all sorts of things;

opportunities may have been foregone; one simply does not know. But one must presume, I imagine, that these employees in a remote part have

organized their lives and conducted themselves on

the basis of the undertaking.

MR CROW:  Your Honour, surely in circumstances where my

client makes application, supported by affidavit,

it is - - -

HER HONOUR: It is a bare affidavit, though, is it not, a

bare affidavit?

MR CROW:  It deals with the matters of concern to my client

and his motives - - -

HER HONOUR:  And they are not in question. But on the other

hand, there is nothing in your affidavit that
suggests that anybody other than the prosecutor
whose wholly owned subsidiary the first prosecutor

is or was will be in any way affected.

MR CROW:  Your Honour, in my submission, the onus is on the

respondents to demonstrate - - -

Cape(2)	56	13/9/91
HER HONOUR:	But it cannot be.	The prosecutor gave the

undertakings. The undertakings were given in the

context of proceedings and there can be no doubt
that but for the undertakings the proceedings would

have taken a different course. There is detriment

in itself.	The proceedings would have taken a
different course.	The respondents may well have

put different matters to the Court and all sorts of
things if the undertaking had not been offered.

You wish to be relieved of it; it seems to me the

duty must be on you to show that no harm will

accrue in circumstances where, prima facie, it

looks as though it has.

MR CROW:  It cannot be said that it is within my client's

knowledge what consequences the undertakings may

have had on people who may - - -

HER HONOUR:  No, but look at it in ordinary principles.

Surely by reference to ordinary principles, quite apart from any undertaking to the Court, if you

have acted in such a way as to create an assumption

in the minds of people and they act on the faith of

that assumption and they would suffer detriment if
the assumption were not adhered to, you would be

held to the assumption or you would be held to a
course of action which compensated for the

detriment - on ordinary principles, quite apart

from any undertaking to the Court. Prima facie, an

assumption has been created. It is true that one

does not know precisely what the consequences are.

If you wish, I can adjourn it and give both

the union and the first prosecutor - I dare say it

does not affect the other prosecutors - to pursue

the matters. 23 September is of course looming,

but I am more than happy to allow that course

to - - -

MR CROW:  We do not ask Your Honour to do that. If

Your Honour takes that view, my submission simply

was that evidence ought to have been provided, but

if Your Honour is against me on that, I have

nothing further to say on the point.

HER HONOUR:	Mr Trew.
MR TREW:	Your Honour, it is necessary to keep in mind a

number of distinctions, we submit. The award

dealing with retention of people in employment is

on foot a'nd there is no stay in respect of it.	The
award in respect of recruitment is the one in
respect of which the stay has been granted.	The
stay was granted in circumstances where no
undertaking was given.	The stay was only

maintained when an undertaking was given. It

follows, in our submission, that if the undertaking

Cape(2) 57 13/9/91

is no longer given, the stay can go. And it is our

submission that that is the way in which Your

Honour should approach this.

HER HONOUR:  One would normally do that. But there is now

this real possibility of detriment aliunde these

proceedings.

MR TREW:  Your Honour, that must be seen in the

circumstances that the stay was in existence
without that undertaking, so the problem was there.

And that has got nothing to do, in our submission,

with people acting to their detriment on the basis

of particular undertakings. The stay was only

continued in circumstances where the undertaking
was proffered and, in our submission, that is a

proper distinction to make and the analysis

continues, we submit, that if the undertaking is no

longer to continue and if the party - - -

HER HONOUR:  We are, of course, talking nine days, ten days.

MR TREW:  That is if the decision is made, Your Honour. The

principle is the matter that has been so far

debated to which I am replying, and it is our
submission that the proper approach is, when an
undertaking is given in the circumstances in which
it has been given here, that when the party who has

given it seeks to be relieved of it, it follows

that the consequence - and the only consequence, we

submit - is that - - -

HER HONOUR: Unless the undertaking has been reasonably

acted upon in areas going beyond the particular

matter.

MR TREW: It is our submission, Your Honour, that that

analysis is not applicable to this situation, the

circumstances being quite different in that the

stay initially was granted in the circumstances

where there was no undertaking and it was only
continued when there was one.	And that puts it in

a completely different context, we would submit.

HER HONOUR:  Yes, prima facie it would bring about a

situation that, all things being equal, the stay

would be lifted with effect from the date when the

undertaking was given. All thing being equal, that

would be the situation that would have existed.

But the -question is, all things being equal, when

one knows that there are other proceedings going on

in another jurisdiction.

MR TREW:  But it is our submission that that cannot bear

upon the simple proposition that stay remains on

the basis of an undertaking, and we submit the

corollary is, if undertakings are to be withdrawn,

Cape(2) 58 13/9/91

stay goes, in relation to the Recruitment Award.

And it is in relation to the Recruitment Award that

it is important to bear in mind, in our submission,

that that is what this is meant to retain.	They
are our submissions, Your Honour.

HER HONOUR:  You do not wish to address the question of

detriment in any other terms, other than - - -

MR TREW:  They are the only submission I wish to make, Your Honour.

HER HONOUR:  Thank you. I shall reserve my decision in the

matter. As I indicated, if I should come to the conclusion that some question as to the terms of

the order nisi is involved, I will give you a

further opportunity to be heard.	I will adjourn
sine die.

AT 4.03 PM THE MATTER WAS ADJOURNED SINE DIE

Cape(2) 59 13/9/91