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

[1991] HCATrans 260

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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

Cape(2) 1 12/9/91

MITSUI IRON ORE DEVELOPMENT

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 THURSDAY, 12 SEPTEMBER 1991, AT 2.18 PM

Copyright in the High Court of Australia

MR R. CROW:	I appear for Cape Lambert Services Pty Ltd (in Liquidation). (instructed by Blake Dawson Waldron)
MR R.C. KENZIE, QC:	May it please 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)

HER HONOUR:  Yes, Mr Crow? I have read the affidavit filed

on behalf of the Liquidator.

MR CROW:  Thank you, Your Honour. Your Honour, the position

is that the company, now being in liquidation, is

required by section 493 of the Corporations Act to

cease to trade. It has done so as the affidavit of
my client, Geoffrey Lawrence Herbert states. In

accordance with that, the Company wishes to be

released from the undertakings so that the winding

up can proceed and it can terminate relationships

with the employees formerly engaged in the business

of the Company. It is prevented from doing that by the

undertakings which it has volunteered, I

understand, rather than having them sought, on the

last occasion the proceedings were before this

Court.

HER HONOUR:  The .difficulty, Mr Crow, is that the

undertakings were given in the context of an

application to lift the stay and there was some

difficulty about the absence of the other

prosecutors whom I understand are, in any event,

the shareholders in the Company which is in

liquidation. I think that is correct, is it not?

Cape(2)	12/9/91
MR CROW:	Yes, some of them.
HER HONOUR:	And the question would be, really, whether, in those circumstances the stay originally granted
should be lifted; the stay on the award. So, that
if the award has any application, notwithstanding
that your Company is in liquidation, it will have
application.

MR CROW: Well, Your Honour, we accept that the application

we bring today may have consequences for the stay

that the Court has made on that award, the

Recruitment Award, I think it is known as, and we

are content for that. We recognize that is a risk

and we are content for that to happen.

HER HONOUR:	You are content for it?
MR CROW:	Yes.
HER HONOUR:	But there may be other questions which extend

beyond you as to whether or not there is a

successorship to your business who is bound by the

award.

MR CROW:  Your Honour, my instructions are that that will

not be the case.

HER HONOUR:  If it is the case, it is of no interest to the

Liquidator.

MR CROW:  No. Your Honour, what I can say is this, that we

have served a copy of the summons and affidavit on

the remaining prosecutors. They were aware of

these proceedings. They are not here. One assumes

from that that they have no wish to be heard in

relation to it, therefore would not oppose it.

HER HONOUR:  They might not oppose your being relieved of the undertakings. They might well have something

to say about the original stay. But it is not your

problem, Mr Crow. It is your problem, Mr Kenzie,

is it not?

MR KENZIE:  Your Honour, we, frankly, have not seen it as our problem.

HER HONOUR: Well, I mean, in one sense, your application to

lift the stay is dismissed.

MR KENZIE: Yes. That was the application made on 5 July

which was dealt with - - -

HER HONOUR:  Yes, by the undertaking.

MR KENZIE: - - - by the undertaking, yes, Your Honour. As

we have apprehended it, the application made today

Cape(2) 12/9/91

by the first prosecutor is an application made to remove the undertaking and not to touch the stay.

We had not really seen it as our problem because we had not really come along today to suggest anything

in relation to the stay. We had come along to deal

with what we perceive to be the application that is

being made which was in relation to the

undertaking.

HER HONOUR:  Yes. Well, do you oppose it?

MR KENZIE:  We certainly do, Your Honour. We do so on a

number of grounds which, may I say, are independent

of the ground that Your Honour is now going to.

HER HONOUR:	I see, yes.
MR KENZIE:	We do want to say something briefly about that

at the conclusion of our submissions but there are

very substantial reasons why the undertaking should

not be lifted or removed which have to do with the

course of the proceedings before the federal

commission, the subject of our affidavit,

Your Honour. They are other matters.

HER HONOUR:  Yes. Perhaps I should ask Mr Crow. I take it

you have nothing to put beyond what is in your

affidavit?

MR CROW: Not really, Your Honour. Perhaps I could just

point out to Your Honour that the award that is the
subject of the stay, the Tugboat Recruitment of

Seafarers - Cape Lambert Services Pty Ltd Interim

Award 1991 is an award to which the only employer

respondent is Cape Lambert Services Pty Ltd.

HER HONOUR:	Yes.
MR CROW:	In those circumstances, one would have thought

they would be the party with the concern about the

reintroduction of the stay if that were the Court's

terms upon which this application were granted.

HER HONOUR:	True, it is the only party bound in terms but the provisions of the Act may extend the operation
or do extend the operation of an award to any
successor to the business of a party to an award.
MR CROW:	Yes.
HER HONOUR:	I do not know if there is one but -

MR CROW: Well, I am just not able to go further than to say

what I have said, Your Honour, that we are told

that is not going to happen.

HER HONOUR:	Yes.
Cape(2)	12/9/91
MR CROW:	Your Honour, I had submissions but, basically,

just to expand on the evident point that the

Liquidator wishes to proceed with the liquidation.

This is an impediment. There is no further work as

he sets out, and for those reasons the undertakings

ought to be released. Perhaps I might hear what my

friend has to say.

HER HONOUR:  I think that might be better, in the

circumstances, yes. Thank you. Yes, Mr Kenzie?

MR KENZIE:  May it please Your Honour, we did file yesterday

an affidavit of Mr Papaconstuntionos of

11 September 1991.	Has Your Honour had an
opportunity to - - -

HER HONOUR:	I have that and the affidavit filed today.
MR KENZIE:	Yes, there is a correcting affidavit,

Your Honour.	Has Your Honour had the opportunity
to - - -

HER HONOUR:  I have; both of them. I have read both of

them.

MR KENZIE: That will save a considerable amount of time.

Your Honour, may I also ask whether Your Honour has

available the affidavit originally filed by the
prosecutor in support of the rule nisi obtained on

27 June, it being the affidavit of Mr Small of

24 June 1991?

HER HONOUR: Well, if I have not, no one has, but I have not

immediately turned it up.

MR KENZIE:  Your Honour, may we provide to Your Honour a

copy that we have. It has a little bit of

underlining in it but I do not think it will

distract Your Honour.

HER HONOUR:  Yes, thank you.

MR KENZIE:  What we want to do, Your Honour, and as briefly

as we can is to remind Your Honour of some of the
material before the Court leading up to the

application.

Your Honour, there is material in the

affidavit of Mr Small dealing with the relationship

between Cape Lambert Services and the remaining
prosecutors and Your Honour will find that in

paragraph 4 on page 2 at the bottom of the page:

The participants in the Robe River Iron

Associates joint venture -

are set out and they include:

Cape(2) 12/9/91

(b) Robe River Mining Company Pty Limited -

and in paragraph 7 on page 3:

Robe River Mining Company Pty Limited

(hereafter called 'the Manager'), has been the

Manager for the Joint Venture since its inception under a contractual arrangement with the Joint Venture.

And then if Your Honour would be good enough just

to briefly refer to paragraph 20 on page 6:

In 1988 Cape Lambert Services Pty
Limited (hereinafter called 'C.L.S')was

incorporated as a wholly owned subsidiary of

the Manager.

And paragraph 21:

Following its incorporation C.L.S entered into

an agreement with the Joint Venture whereby

C.L.S. undertook to provide expertise and

labour to the Joint Venture for the operation

of the Joint Venture's tugs and line boat.

And there follow a number of paragraphs dealing
with the extensive history of the award proceedings

between the parties. I do not need to take

Your Honour to these in terms but I do want to

remind Your Honour generally of these paragraphs:

paragraphs 23 and 24 - and, Your Honour, may I
pause for a moment to remind Your Honour of the

contents of 24(b):

The joint venture has at an approximate cost

of $13.5 million commissioned the construction

in Japan of two technologically advanced tugs

specifically designed for the Joint Venture's

towage requirements at Port Walcott to replace

the 'Roebourne' and the chartered tug the

'Tai-O'.	The first of these tug will arrive
at Port Walcott on 25 June 1991 and the second
is scheduled to arrive in early August 1991.

There is evidence that those events have taken

place although there was some delay, but those

vessels have arrived and are operating.

Now, Your Honour, paragraph 25 sets out the

position of Cape Lambert Services in the

commission. At about point 3, the Company was:

arguing that the Commission should not award

any provisions which would prevent it from

crewing the tugs and the line boat in a way

Cape(2) 6 12/9/91

similar to that which was used when towage

operations commenced in 1972.

So, they were putting submissions to the Commission by reference to their existing operations and by

reference to evidence in relation to the two new

tugs that were going to arrive.

The history continues, Your Honour, through

the succeeding paragraphs which I do not read. In

paragraph 31 there is a reference to Cape Lambert

Services giving:

4 deckhands employed by it ..... notice of

termination ..... effective on 30 June 1991.

A further notice given to engineers in
paragraph 32, and then paragraph 37, which deals

with the proceedings before Mr Commissioner Fogarty

leading to the making of the awards, the subject of

the applications in this Court, Your Honour.	Then
paragraph 43 relates to the making by
Mr Commissioner Fogarty on 19 June of the two
awards, the subject of the proceedings.

Your Honour granted a rule nisi in relation to one

of the awards, the Recruitment Award; refused to
grant a rule nisi in relation to the other but
referred the matter to the Full Court; granted a
stay in relation to the former award at the

instance of all of the prosecutors.

Now, Your Honour, that happened on 27 June

1991, not - - -

HER HONOUR:  Mr Kenzie, am I right in thinking that the only

matter in issue in relation to the first award is a

question of natural justice?

MR KENZIE: 

Your Honour, there are issues of - - -

HER HONOUR: 

No, I am wrong in that.

MR KENZIE: There are other issues. 

HER HONOUR: 

Yes, thank you.

MR KENZIE: 

And apart from the matters going to the content

of the award, there is an issue relating to the
finding of "industrial dispute" in respect of
parties other than the first prosecutor.

Your Honour, the evidence before the court was that

those persons were never served and did not appear

in the proceedings but they were made subject to a
finding of "industrial dispute".

Your Honour, on 5 July the maritime unions for

whom I appear caused the matter to be brought on

Cape(2) 7 12/9/91

again before Your Honour, this following the

receipt of a letter which Your Honour will find or

may find if Your Honour has the affidavit of

Mr Fleming filed in support of the Unions' summons

at that time. I do have a clean copy of that,

Your Honour, which I can make available.

HER HONOUR:  It may not be necessary. Yes, it would be of

help, thank you.

MR KENZIE:  Your Honour, the very last document annexed to

that affidavit is a letter of 27 June 1991. This

is the day Your Honour granted a stay in relation

to the first award. This letter refers to the

proceedings and goes on to say that:

The company's view is that as a matter of law

the notice of termination of your employment

already given to you will be effective to

terminate your permanent employment on the

30th of June notwithstanding the provisions of

the Award. Your union will no doubt contend

to the contrary.

The company is prepared to employ you from 1

July 1991. the company for its part will regard this as casual employment for the duration of your swing and you will be paid accordingly.

If the Award is found as a matter of law to

require your employment to have been

continuous on a permanent basis, an adjustment

will be made so that you will suffer no

overall loss in income so that your accrued

entitlements will be calculated on the basis

that your permanent employment continues

without interruption.

And, as is obvious, that took place subsequent to

the granting of the stay and was referred to the

Court on 5 July.

HER HONOUR:  I suppose what that means, in effect, you would

say, is that the winding up cannot, in any event,

be completed until this matter is determined?

MR KENZIE:  Amongst other things, Your Honour, and certainly

the winding up would not be completed - I will put

it another way. The undertaking, in terms, amounts

to an undertaking to continue employment. That is

a matter relevant to the continued jurisdiction of

the federal Commission. The unions have been

seeking and are seeking a federal award from the

Commission.

Cape(2) 12/9/91

The existence of the undertaking is

jurisditionally relevant, if Your Honour

understands what I mean. It constitutes an

undertaking to continue the employment. The undertaking was given plainly with a view to

preserving the status quo pending the finalization

of the proceedings before Deputy President Polites.

HER HONOUR:  What is the purport of those proceedings before

Deputy President Polites?

MR KENZIE:  Your Honour, the proceedings before

Deputy President Polites are those proceedings which are referred to in the affidavit of Mr Small

in paragraph 25. Paragraph 25 is an incomplete

descriptions of the proceedings but is an

indication to Your Honour that the

proceedings -

HER HONOUR: Paragraph 25?

MR KENZIE: Paragraph 25.

HER HONOUR: Well, there must be a second affidavit, is

there?

MR KENZIE: That is paragraph 25 of the affidavit of

Mr Small, the first affidavit that I referred to.

HER HONOUR:	I see, thank you.
MR KENZIE:	Your Honour, the proceedings which had their

origin in earlier proceedings before

Commissioner Turbet, Cape Lambert Services -

paragraph 25:

is arguing that the Commission should not

award any provisions which would prevent it

from crewing the tugs and the line boat in a

way similar to - - -

HER HONOUR:  They are the new vessels, though?

MR KENZIE: Well, Your Honour, the award was to cover

whatever vessels Cape Lambert Services was

operating.

HER HONOUR: Well, it will say it has none.

MR KENZIE: That is so, it will say that it has none now,

Your Honour, but the undertaking that was sought

was designed to maintain the status quo, including

the position of employment which is in existence,

and it was contemplated when the undertaking was

given that that employment would remain in

existence until the finalization of the

proceedings.

Cape(2) 9 12/9/91

Now, Your Honour, I will have to take

Your Honour fully through the history but -

HER HONOUR:  You are saying this is just an elaborate game

to frustrate the making of an award?

MR KENZIE: It certainly appears that way, Your Honour, and

the inference is overwhelming, in our respectful

submission.

HER HONOUR:  Can I ask this though? One might well think

that was an inference open on the events to date

but has the situation not emerged that you have

some protection from the undertakings that you

would not have merely from the award?

MR KENZIE:  I am not sure what Your Honour means by that, if

I may say so.

HER HONOUR:  Well, if the award was operating according to

its terms, this move would, if you are correct,

defeat the jurisdiction of the Commission in any

event, if you are correct?

MR KENZIE: Yes, Your Honour, that is right. It would not

stop them going out of business and preventing the

step that was contemplated by the undertaking

taking place.

HER HONOUR:  Yes. Well now, it does not seem to me that I

should directly or indirectly bring about a

situation that is different from that which would

have obtained if the award merely operated

according to its terms.	You suggest that that is
what the undertaking does?

MR KENZIE:  Your Honour, what the undertaking was designed

to do when it was given six weeks ago was to

protect the -

HER HONOUR:  Well, you say what it was designed to do. mean, various people may have had different things I

in mind. The undertaking was given in a context

where what was in issue was the lifting of the stay

order that I had earlier made in Brisbane.

MR KENZIE: Yes, Your Honour, but it was given in

circumstances where it was designed and

specifically designed to operate until not the

termination of the proceedings involving the

awards, the subject of the challenge in this Court,

but until the termination of the proceedings before

Deputy President Polites.

HER HONOUR:  You may say that but I cannot assume that.

Cape(2) 10 12/9/91

MR KENZIE: It is on the record, Your Honour. It is in the

undertaking itself. If I may direct Your Honour's

attention to the undertaking?

HER HONOUR:  And even if it is, that must go well beyond

anything which is before the Court. This Court's

involvement has nothing to do wi~h the proceedings

before Deputy President Polites.

MR KENZIE:  Your Honour, it, in fact, does because the

proceedings before Deputy President Polites were proceedings in which the matters, the subject of the awards ultimately made by

Mr Commissioner Fogarty, were sought to be joined.

Deputy President Polites did not join the matters

to the proceedings. Upon the application of the

unions, he decided that they should be dealt with

separately by Commissioner Fogarty but on the

understanding that whatever provisions were

inserted into the awards by Commissioner Fogarty

would ultimately find their way into the final

award made by Deputy President Polites.

The situation was that the notifications which gave rise to the awards, the subject of these

proceedings, were put on well into the proceedings

before Deputy President Polites at a time when

notices of termination were given and that was well

into the proceedings. The unions, in respect of

those notifications, sought to have the matters
joined to the principal award proceedings before

the Deputy President.

HER HONOUR:	I see in paragraph 3 the express reference.
MR KENZIE:	Yes, Your Honour.

HER HONOUR: Although, what the purpose was was - the

purpose does not seem to me to affect the position

that an undertaking given in the context of an

application to lift a stay should not be enforced -

perhaps I should say that - in circumstances where

the consequences of the undertaking are different

from the consequences that would otherwise attend

the absence of a stay.

MR KENZIE: 

Your Honour, that will depend upon the course of

the proceedings before the Commission. It may be
different but if the - - -

HER HONOUR: Well, you are telling me that the significance

of the undertaking is that it gives the Commission

jurisdiction in another matter which is not

directly involved in the matter before me.

MR KENZIE: It is not directly involved. It is specifically

the subject of the undertaking.

Cape(2) 11 12/9/91

HER HONOUR:  I know it is the undertaking but the validity

of the proceedings before Deputy President Polites

are not involved in these proceedings. It is the

validity only of the award.

MR KENZIE:  Yes, Your Honour. May we put it this way: we

are here advancing reasons why the undertaking

should not be permitted to be removed at this

stage. All that we are saying is that there is a

very good reason why the undertaking should not be

permitted to be removed and that is because - - -

HER HONOUR:	But it is not related to the proceedings before the Court. Well, it is not directly involved in
the proceedings before the Court.

MR KENZIE: Well, Your Honour, we would submit this, that

whether or not it is directly related to the

proceedings before the Court, it constitutes a fact

and constitutes a promise - - -

HER HONOUR:  But Mr Kenzie, I am not here as an arm of the

Industrial Relations Commission. I mean, I am not

here to - no matter what I might think about the

inference, if any, that might properly be drawn and

the industrial consequences that might attach if the

inference was drawn, that is not my role any more.

MR KENZIE:  Your Honour, in our respectful submission, the

Court would be aware of the jurisdiction of the

Industrial Relations Commission and the public

interest in preserving that jurisdiction.

HER HONOUR:  But Mr Kenzie, the High Court cannot confer

jurisdiction on the Industrial Relations Commission

and what you are really suggesting is that I can by

refusing to release people from an undertaking.

MR KENZIE:  We put it quite the other way, Your Honour. The

jurisdiction of the Commission exists. It exists

because of an undertaking given voluntarily in

proceedings in which the proceedings before

Deputy President Polites were specifically

contemplated. That jurisdiction currently exists.

It is not a question of whether the High Court is

now called upon to cause it to exists. The

jurisdiction exists and it exists so long as the

undertaking, voluntarily given -

HER HONOUR:  But ·it would not exist or it may not exist if

the undertaking had not been given.

MR KENZIE:  Your Honour, all that we can say is that that

was a voluntary undertaking given and it is now

jurisdictionally relevant and it is a relevant

factor to take into account in determining whether,

Cape(2) 12 12/9/91

in the present circumstances, the undertaking ought

to be permitted to be removed.

HER HONOUR: Well, I do not know that it is a relevant

consideration. That is what I wonder about.

MR KENZIE:  Yes, Your Honour. Well, we do not say that the

course of the present proceedings will create

jurisdiction.	We say that the jurisdiction is
there.	We say that the jurisdiction - - -

HER HONOUR:  Yes, but what you say is that the jurisdiction will go away if released from an undertaking.

MR KENZIE: That is one of the consequences, Your Honour.

HER HONOUR:	Or may go away.
MR KENZIE:	Yes.

HER HONOUR: Well, I do not know that that is a relevant

consideration either.

MR KENZIE: Yes. Well, we do submit that it is,

Your Honour.

HER HONOUR: Well, why do you submit that it is?

MR KENZIE: If Your Honour draws the inference that

jurisdiction exists in the Industrial Commission to

resolve an industrial dispute, when Your Honour

sees the material, that includes a decision

by - - -

HER HONOUR:  Mr Kenzie, let us not play games. We are not

playing industrial games. This is a matter

involving the Constitution in one sense, is it not?

If there is an industrial dispute - let there be

no mistake, if there is an industrial dispute,
there is jurisdiction in the Commission. That is

so, is it not?

MR KENZIE: Yes.

HER HONOUR:  Yes. Now, the question is can there now be an

given for the purposes of securing a stay of the

industrial dispute save by reason of Cape Lambert

award? From the Court's point of view, that could

have bee~ the only purpose of it.

MR KENZIE: Yes. But, Your Honour, that would not explain

why the undertaking is specifically -

HER HONOUR:  Yes, well, it does explain why because the

undertaking would become irrelevant if the

industrial dispute were otherwise resolved.

Cape(2) 13 12/9/91

MR KENZIE:  Your Honour, all that we put in this regard is

that the prosecutor gave an undertaking in certain

terms and it, for its own reasons, and that

constituted a promise to the Court and it

constituted a promise to our clients and it was

intended to give rise to benefits to employees of

Cape Lambert Services and members of our

organizations. That was a promise that was then

given voluntarily. It was a promise that was given

in terms of the continuation of the proceedings

before Deputy President Polites. That is what

happened. Now, the question is whether that

promise should be permitted to be withdrawn.

HER HONOUR:  When was Deputy President Polites going to hear

the matter in any event?

MR KENZIE:  On 23 September, Your Honour, at which time

Deputy President Polites has indicated - and he has

been fully apprised of the circumstances including

this application - that he proposes to make an

award.

HER HONOUR:  He has been apprised, I presume, of my

indication on the last occasion that there was

nothing that I had done to prevent the continuation

of the proceedings before him?

MR KENZIE:  Your Honour, the Deputy President was informed

of the undertaking in its terms. There is no
transcript of the proceedings on the last occasion,

but there was transcript of the first proceedings.

The Deputy President was informed of the

undertaking and it was submitted to the

Deputy President that in all of the circumstances

it would be appropriate, on the next occasion when
these matters were before the Commission, that an

award be made, and the Deputy President, who has

been fully apprised of all of the circumstances and

has heard fully the organization's case - all of

its witnesses who have been cross-examined - has

indicated that he proposes to make an award on

23 September.
The making of that award will have certain
consequences.	It will be an award which will be an

Industrial which takes over from old section 61D, the successorship provision and, Your Honour, may we

award upon which section 149 of the

hand to Your Honour a copy of section 149 of the

current Act which, in fact, broadens the provisions

of old section 61D:

an award determining an industrial dispute is

binding on:

Cape(2) 14 12/9/91

(d) any successor, assignee or transmittee

(whether immediate or not) to or of the

business or part of the business of an

employer who was a party to the industrial
dispute, including a corporation that has

acquired -

et cetera.

HER HONOUR:  What were the terms of this award that I

stayed? I must say - I cannot restrain myself - I

am quite appalled to think that the time of the

High Court, the ultimate Court in the land, is

being taken up in the resolution or in efforts by

people to play out some industrial relations game.

I am quite appalled. The Court has other work to

do of far more constitutional significance than

this. ·

MR KENZIE:  Your Honour, may we say that our position was

that we sought an award; a rule nisi was obtained

in relation to that; a stay was sought - - -

HER HONOUR:  There appear to have been proceedings almost -

well, regularly before the Commission. There

appear to be proceedings before the Commission

constituted in various ways going on virtually all

the time. Proceedings going on - this is the third

occasion that the matter has been before me and I,

frankly, am appalled, I must say. I take the view that proceedings of this nature have the effect of

denying and delaying the business of the Court, the

dispensation of justice to other persons who invoke

constitutional protection. I say no more.

MR KENZIE:  Your Honour, all that we submit is that if the

undertaking is set aside, the effect will be that

proceedings, which have been on foot in the

Industrial Commission for many years, will be sent

back to square one. There will be no award made

and if the inference be able to be drawn that that

was the intention that lies behind the steps that

give rise to this application, then that intention

will have been perfected.

HER HONOUR: Well, if that is the case, the entire

proceedings are vexatious and brought for an

improper purpose. Not this application, the order

nisi is brought for an improper purpose and I am

put in a position where I can only assume that a

tactical decision has been made by the other

prosecutors not to appear.

MR KENZIE:  Your Honour, may we refer Your Honour to the contents of the affidavit of Mr Papaconstuntionos?

Cape(2) 15 12/9/91

HER HONOUR:	I omitted to make it clear that a letter has been received from the solicitors for the other
prosecutors which indicate - and I must say,
gentlemen, I do find this surprising in view of the
inference that has been suggested could be drawn.
This is from Minter Ellison:

We remain the solicitors on the record for

each of the Applicants/Prosecutors, including

Cape Lambert Services Pty Limited

(in Liquidation), in the substantive

proceedings in which Writs of Prohibition and

Certiorari will be sought from the Full Court

of the High Court of Australia against the

Respondents.

Now, gentlemen, let this be clear. I wish to know

how it is - and perhaps this is a problem for

Mr Crow - that the company in liquidation has a

solicitor for one set of proceedings, for the
substantive proceedings, and a different solicitor

for this?

MR CROW:  Your Honour, that came as a complete surprise to

me. I do not know how that is the case either. I

can only - I will have to seek instructions in

order to answer that question.	I had understood
that - - -

HER HONOUR: Well, the next question I will put to you, when

you are seeking instructions, is if you are

relieved from the undertakings, what is the purpose

of pursuing the order absolute? You presumably

have no interest in the proceedings if Cape Lambert

Services - - -

MR CROW:	Yes.
HER HONOUR:	I must say, as I look at this letter, the

implication is alarming.

MR CROW:  Yes. Well, it is obviously - it must be plain to

Your Honour that both me and my instructing

solicitors have not had prior involvement in these

proceedings. We have been brought into the matter

by the Liquidator whose concern is to effect his

liquidation.

HER HONOUR:	The liquidator was - - -
MR CROW:	Geoffrey Lawrence Herbert of the firm of Arthur

Andersen in Perth.

HER HONOUR: Appointed in what manner?

MR CROW:  He was appointed by resolution of the company on

29 August this year.

Cape(2) 16 12/9/91

HER HONOUR: Resolution of Cape - general meeting, I

presume.

MR CROW:  Yes. I have a faxed copy of the document. I will

just confirm that that is how it describes itself.

Yes, "general meeting of the company", yes,

Your Honour. So, Your Honour, I would have to find

out why it is that Minter Ellison have written that

letter to Your Honour.	I had - my
expectation - - -

HER HONOUR: Well, I wish to know if the - I will adjourn

this matter. I wish to know not only that. I wish

to know what interest there is in maintaining the

proceedings in this Court if you are released from

your undertakings? If Cape Lambert Services is

released, what interest there is in maintaining

proceedings in respect of the award. I quite

understand the interests of the other prosecutors

in relation to the dispute finding.

MR CROW:  Yes. Could I tend to answer that now,

Your Honour? There are two awards which were the

subject of the initial application in the

substantive proceedings. One of those is the

Preservation of Employment Award a stay of which was refused by the court and which continues to

have effect. Cape Lambert Services, prior to the

appointment of the Liquidator, instituted appeal

proceedings in the Commission against that award

and that appeal has been heard and a decision given

last - I think last week or early this week, and

those facts are recorded in the affidavit put on by

my friend in this matter yesterday.

The effect of the decision of the Commission

is to find that there was an arguable case of

denial of natural justice in the making of that

award but rather than to quash the award, to direct

a member of the Full Bench of the Commission to

hear Cape Lambert Services in relation to reasons

why, in its view, further proceedings ought not

have taken place or the award should not have been

made.

Now, the company is pursuing that in the

Commission and the Liquidator pursued it after his

appointment and one would expect - although I do

not have firm instructions - would pursue it in

this Court if it -

HER HONOUR: Well, that may be in relation to the

proceedings that have been referred to the Court.

I am asking what interest - if Cape Lambert

Services Pty Ltd is released from its undertaking,

what conceivable interest it could have thereafter

in pursuing an order absolute in respect of the

Cape(2) 17 12/9/91

Recruitment Award, that being the award that has

been stayed? It was stayed, the stay of which was

maintained in consequence of your undertaking.

Now, either you have an interest in the award or

you have not and it does not seem to me you have an

interest in the award if you are not carrying on

business.

MR CROW: That is right. I concede that readily,

Your Honour. Cape Lambert would seem to have, in

the light of its winding up, no further

interest - - -

HER HONOUR: Well then, is there any reason why I should not discharge the orders - well, I do not know? Have I

power to discharge the order nisi? The other

companies are not interested in that award, are

they? You tell me you are the only party to it.

MR CROW:  I made that submission, Your Honour, in respect -

perhaps I might just check the terms of the award,

Your Honour. Yes, the Recruitment Award is binding

only on Cape Lambert Services although, as I think

my friend explained, the other prosecutors were

found to be parties to the industrial dispute, in

settlement of which the award was made. But it
would not seem, to me, that anybody else would have

any interest in the outcome or the future of the

Recruitment Award.

HER HONOUR: Other than as a successor to the business?

MR CROW: If there be one, Your Honour, yes.

HER HONOUR:  I think this - - -

MR CROW: Perhaps the proceedings are a dead letter in

relation to the Recruitment Award in view of the fact that the company does not propose to engage

anybody or employ anybody upon whom the Recruitment

Award could have any bearing.

Might I also say this, Your Honour, whilst I am on my feet - - -

HER HONOUR: Well, if that is so, have I power to discharge

the order nisi? If they are a dead letter, should

you not withdraw them? Are the proceedings not

vexatious and an abuse of the process if they are a

dead letter?

MR CROW:  My difficulty, Your Honour, is that my

instructions were of limited scope and I am just

reluctant to ask the Court to do that without

express instructions.

Cape(2) 18 12/9/91

HER HONOUR: Well, you are asking me to do something else

but in a context in which there really are very

large questions unanswered.

MR CROW:  Yes. Your Honour, could I say this perhaps to

alleviate some concerns Your Honour might have as a

result of what my friend said? In proceedings in

the Commission before Deputy President Polites

yesterday in which my friend and I appeared, I

informed His Honour, on instructions, that the

Liquidator did not intend to participate further in

those award proceedings and, on that basis,
Your Honour, there will be no one before the

Deputy President on 23 September to put forward any

proposition that he has no jurisdiction to make an

award.

HER HONOUR: That is neither here nor there, is it?

MR CROW:  Nor, indeed, would there be anybody, Your Honour,

in due course who might challenge the validity of

the award on the basis of any - - -

HER HONOUR:	The successor to the business.
MR CROW:	Yes. Well, I just cannot help Your Honour any

further about that question because all my

instructions indicate that there will be no

successor to the business. Indeed, Your Honour, my
instructions coming from the Liquidator, he, of
course, is disinterested in what means the clients
of the company in liquidation may adopt to obtain

the services that the company previously provided

to it.

HER HONOUR: Well, I think I will adjourn this matter for

one day. You can get instructions on the matters I

have raised but, in particular, I wish to know

whether anybody, other than Cape Lambert Services,

has any interest in maintaining the proceedings in this Court to the extent that those proceedings go

to the Recruitment Award.

MR CROW:	Yes.
HER HONOUR:	And then I will want to know what your

application is in that regard. If the Liquidator
intends to maintain the proceedings, then other

questions will arise.

MR CROW:	Yes, I understand the position, Your Honour.
HER HONOUR:	Do you have anything else to say, Mr Kenzie?
MR KENZIE:	No, Your Honour.

Cape(2) 19 12/9/91

HER HONOUR: Will the parties be, perhaps, in some other

court on this matter tomorrow? They seem to have

been everywhere every day since I last saw the

matter.

MR KENZIE:  Not in this matter, Your Honour. Your Honour,

all that we need to say at this stage is that there
are other submissions that we would wish to mount,
if appropriate, in relation to the substantial
question of whether the undertaking ought to be set

aside, but they must abide my friend's

instructions.

HER HONOUR:	Do you wish to put them in advance of that?
MR KENZIE: We are really in Your Honour's hands.	It is not

inconvenient to do that now.	We do not want to
waste Your Honour's time.

HER HONOUR:  It is not a question of convenience so much. I

am quite puzzled about this to the extent that I do

not know - I mean, the ultimate decision, I

presume, about maintaining the proceedings must be

with the Liquidator.

MR KENZIE: Yes, Your Honour.

HER HONOUR:  Now, I think the other parties should be given

notice that the issue has arisen as to whether they have any interest in maintaining the proceedings in

so far as the proceedings involve the validity of the Recruitment Award, and I wish to know whether
the Liquidator proposes to maintain the

proceedings. Only when I know those matters can

one make any sense of what is going on, I would

have thought.

MR KENZIE: Yes. Well, in the light of that, Your Honour, I

think that we will await developments before

putting our submissions.

HER HONOUR:  Who will accept then the responsibility of

communicating with the other prosecutors?

MR CROW:  Yes. I assume that comment was addressed to me,

Your Honour.

HER HONOUR: Well, it does not matter but

MR CROW: Yes, we will certainly ascertain their attitude to

the Recruitment Award and I will also get some

instructions from the Liquidator.

HER HONOUR:  Yes. Well, it is not their attitude. I wish

to be persuaded that they have an interest in

maintaining it. What was the relief that was

granted? Prohibition?

Cape(2) 20 12/9/91

MR KENZIE: Prohibition and certiorari.

HER HONOUR:  Yes, in relation to the award, was it?

MR KENZIE: In relation to the award.

HER HONOUR:  I will adjourn this matter until 2.15 tomorrow.

AT 3.13 PM THE MATTER WAS ADJOURNED UNTIL

FRIDAY, 13 SEPTEMBER 1991

Cape(2) 21 12/9/91