Re Griffin & Ors; Ex parte Professional Radio and Electronics Institute of Australasia

[1989] HCATrans 35

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney	No Sll of 1989
In the matter of -

An application for a writ of prohibition and a writ of

certiorari against PAULINE MARCUS

GRIFFIN, a Commissioner of the

Australian Conciliation and

Arbitration Commission

and

OVERSEAS TELECOMMUNICATIONS

COMMISSION

and

THE MINISTER FOR TRANSPORT AND

COMMUNICATIONS, RALPH WILLIS

Respondents

Ex parte -

PROFESSIONAL RADIO AND ELECTRONICS

INSTITUTE OF AUSTRALASIA

Prosecutor

C3Tl/l/PLC 13 24/2/89

BRENNAN J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 24 FEBRUARY 1989, AT 2.16 PM

(Continued from 22/2/89)

Copyright.in the High Court of Australia

MR J. L. TREW, QC:  Your Honour, I appear with my learned

friend, MR J.P. PHILLIPS, for the applicant.

(instructed by Carneys)

MR R. J. BUCHANAN, QC: May it please Your Honour, I appear

with my learned friend, MR P. M. KITE, fbr the

second respondent. (instructed~by Blake Dawson)

MISS S. KAVALLARIS: Solicitor, Your Honour,for the

M1n1ster for Transport and Communications.	I
might add I have also been instructed by Commissioner Griffith that she does not wish
to appear in these proceedings.

(instructed by the Australian Government Solicitor)

HIS HONOUR:  Mr Trew, you have an application to make

for stay, as I understand it?

MR TREW:	Yes, Your Honour.
HIS HONOUR:	And also, I think, we are to discuss the

form in which the order should be made.

MR TREW:	Yes, Your Honour. On reflection, I conceded too readily on the other occasion that there
should perhaps only be a notice of motion. It
is my submission that there should be an order
nisi and a stay and if Your Honour is against
me on the order nisi it is our submission that
there should· be, i n  t h e a 1 t e r n a t i v e , a no t i c e o f
motion directed to the Full Court and also a
stay.
Your Honour, I have some further matters that I wish to put to Your Honour about the
distinction made in section 35 between a decision on the one hand, and orders and awards on the
other hand, and if I could just go to those shortly, the various provisions in the Act reinforce that
distinction in my submission.  I directed
Your Honour's attention, on the last occasion,

~~ to section 40 and I need not go further to that

~ but section 56 is another provision where the

:/::."" distinction is relevant.

That provides for the form of an award and

it provides that·it:

shall be framed in such manner as best to

express the decision -

and it is our submission that it is implicit

in that that it distinguishes between the decision

itself and the award that gives effect to it.

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MR TREW: (continuing):. It is our submission that that is

carried through in those three exhibits, 4, 5

and 12, that I discussed with Your Honour on

the last occasion.

Section 59 deals with a variation of an award and it is implicit in that, in my submission,

that the same distinction continues. Section 192

deals with awards that are there to be available

at registries or orders varying awards and there

is no reference there to decisions. It is my

submission that it is implicit in that that a

decision is of a different status - that is the

thing precedes the making of the instrument that

can be enforced. Section 193 deals with evidence
of awards and how they are to be proved and

section 193 is then read with section 195, particularly

section 195(3). That provides that:

A printed paper purporting to be a copy

of a reprint of an award as varied and to

be printed by the Government Printer is,

in all courts, evidence of the award as
varied.

The other two subsections in that subsection deal with variations being consolidated into

the form of a new print of the award and the

significance that we place on subsection (3)

is that a regard is had to what the document

purports to be.

Then that distinction, in our submission,

is carried through in the regulations. Before

I go to those, though, the power to make those is found in section 198, which provides a usual

form~ it authorizes regulations:

not inconsistent with the Act -

amongst other things :	(a) for regulating the practice and procedure
of the Court.

T2

I fear I may not have adequately dealt with regulation 8 when Your Honour asked me a question

about that on the other occasion. It is to be

contrasted with section 40 in that section 40 requires a decision that is made, or an award or order that is made, to be embodied in an instrument.

But regulation 8, as it were, picks up the gap and makes it clear that if a decision is made

that decision must then be reduced to writing

and it must also be embodied in an award. It

is our submission that regulation 8 itself contemplates

two steps: the Act itself requires the decision

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that is mad~ to be in writing but, there being a

decision, the regulation requires that it be

embodied in an award as well.

HIS HONOUR:	Yes.
MR TREW:	Then, regulation 9 requires that:

every award or order ..... be kept by the the proceedings.

It says nothing about decision - no doubt because

a decision would, in any event, be part of the

papers. But the award or order that is the ministerial

act made subsequently, in our submission, it is not

obvious, perhaps, immediately, that that should

be kept with the papers but the regulations continue

that distinction.

I think there is only one other regulation

that I want to refer to, regulation 39, and
that deals with a different set of circumstances,

namely settlement of awards and orders made by

the Commission constituted by more than one member.

That requires that the Registrar might be directed

to bring in minutes and settle minutes of the

award. But the premise upon which regulation 39

is based, in our submission, is that the Commission

constituted by more than one member makes a decision

and then, if it so directs, rather than it or
a member of the Commission itself settling the

form of the order, that is delegated to the Registrar.

There is no similar provision that I am

aware of relating to a single member of the Commission

but, no doubt, that is explicable on the basis

that where he does it, he, as it were, acts as

his own registrar and the scheme of the regulations

is that the registrar is only relevant, perhaps,

in the case where there is more than one member

of the Commission.

HIS HONOl:JR:  The proposition, then, in this case, is that

Commissioner Griffin first made a decision to

amend the award but th award has not been amended?

MR TREW:	That is right.
HIS HONOUR;	And then made a subsequent decision to make

a change to the first decision which, if carried

into effect, will result in a different amendment

to the award from that which was first contemplated?

MR TREW:  That is so,. yes.

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HIS HONOUR:  But it seems that neither decision affects the

variation of the award?

MR TREW:	That is our submission. And because there is only a ministerial act required to embody the
decision in an award, it is appropriate in our
submission that an order nisi should go. Perhaps
if I could now make some submissions as to the
discretionary considerations.

Irrespective of what view Your Honour might

have as to whether or not there is an appeal,

there are decisions of the Full Bench of the

Commission that there is no right of appeal.

We have found a couple more and there are four

in all that, as far as we have been able to find

consistently since between 1957 and 1971, all

determine the same way that a mere decision is

not the subject of an appeal to a Full Bench

of the Commission.

HIS HONOUR:  And that is all consistent with that 1962

case, Mr Trew?

MR TREW: All consistent with that, Your Honour, and over

the luncheon adjournment we gave Your Honour's

associate a reference to the other two. The

one that I told Your Honour about in the Industrial

Information Bulletin the other day is also in

the Commonwealth Arbitration Reports. Would

Your Honour like me to just recite those decisions

now?

HIS HONOUR: It would be helpful, I think.

(Continued on page 18)

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MR TREW:	I told Your Honour the other day about the
demarcation dispute in 99 CAR.  The one I told
Your Honour was in 26 Industrial Information
Bulletin  involves the Printing and Kindred
Industries Union. That is also reported in 141 CAR 1071 and in addition to those~ there
are these other two we have been able to find:
THE MUNICIPAL TRAMWAYS TRUST V THE VEHICLE BUILDERS
EMPLOYEES FEDERATION, (1957) 88 CAR 407 ; and
the other one is THE UNION OF POSTAL CLERKS V THE POSTMASTER GENERAL, (1970) 137 CAR 746, and
the relevant passage is at page 752.
HIS HONOUR:	Can you tell me whether those last two cases

have anything to say about the question of whether

the test is as I think the PRINTING AND KINDRED

INDUSTRIES case shows, the test is whether or

not legal rights are affected?

MR TREW:  No. Your Honour is referring to the acid test,

as I recall it?

HIS HONOUR:	Yes.
MR TREW:	No, the other decisions do not deal with that
proposition at all. In so far as that stands
as a reason for such decisions, it stands on its
own.  The decision in 99 CAR is not referred
to in the other two - one of them it could not
have been, of course - but it was simply on the
basis of it was a decision -  the distinction
was made between "decision" and 11 award 11 simply.

The relevance of those in as far as questions

of discretion are concerned, in our submission,

is that for a very long time the Arbitration

Commission has held the view that there is no

right of appeal. That matter is appropriate

to be determined by this Court authoritatively -

and by that I mean by reference to the Full Court.

It cannot be certain that the - in fact, in our

submission, there would be considerable doubt

- that the Arbitration Commission would reverse those four decisions spanning, as they do, so

many years.

Nextly, there is a real danger of an order

or award being made in excess of jurisdiction
as a result of the decision made by the Commissioner
the other day and, in relation to that decision,
we submit that the applicant has a good arguable

case - indeed, we submit, a very strong case

that the decision has been made beyond jurisdiction

and that the applicant has been denied natural

justice. If the order nisi and the stay were

not granted there is a likelihood, in our submission,

that an award would be made taking effect from

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26 March denying the relevant employees $10

a week because it is only a ministerial act that

is required and the circumstances in which the

original decision was made were that it was made

substantially by consent, that consent was as

to the substance, namely the quantum, although

there was an argument about when it should operate

from.

HIS HONOUR:	How does the stay take effect in the way in which you think it ought in order to lead to
an alteration of the award, including the $10?
MR TREW:	The order nisi is expressed to stay the decision.
It might be more appropriate to express it in
terms of "or any proceedings consequent thereon" and the result of staying that decision of
15 February would be that the ministerial act
required to embody the decision of September last year in an award could be made without the complication of the decision of 15 February.

(Continuing on page 20)

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HIS HONOUR:  That would be tantamount to directing

Commissioner Griffin to sign an award which included

the $10.

MR TREW:  Yes. In terms, with respect, I would not concede

that it is that but I do not deny that that really

is the result that in practice would be sought.

HIS HONOUR: The award will not be amended unless

Commissioner Griffin signs an order.

MR TREW:	That is true.
HIS HONOUR:	So that unless Commissioner Griffin signs an order

which includes the $10, the $10 will not be included

in the award.

MR TREW:	That is true.
HIS HONOUR:	So that the proposal that you make here is that an order should be made which, in form,
stays the decision of February, the effect of
which then would be that Commissioner Griffin would be required to sign an order amending the award by including the $10?
MR TREW:	The reason I do not concede that, Your Honour, is that it does not follow as a matter of law
from the fact of the stay.  I do not want to
suggest other possibilities but there are other
possibilities, in our submission. But, as I
have said on a number of occasions, the practical
effect, unless these other events occurred, would
be that that decision would then be embodied
in an award.

HIS HONOUR: Is there anything to preclude your application

to Commissioner Griffin to reconsider the decision

of 15 February?

MR TREW::. Yes, Your Honour. The complaint of the applicant

is that it has been denied natural justice.

HIS HONOUR:	I appreciate that.
MR TREW:	And it would be inappropriate, in our submission,
for the same Commissioner to reconsider it in the circumstances in which the first decision
was made.  And, in any event, it is not a matter,
in our submission, for the applicant to ask for any decision to be reconsidered. It did not bring the proceedings before the Commission.

HIS HONOUR:  I appreciate that. I am thinking of the

extraordinary circumstances, or the exceptional circumstances, I think is the appropriate test,

-which must be shown by an applicant for a stay

order in proceedings of this kind.

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MR TREW:	Your Honour is, no doubt, referring to, I think it ~as
the decision of Mr Justice Mason in the MARKS'
case. That expression was certainly used in
relation to an exercise of the Court's inherent
jurisdiction and if Your Honour were against me on the order nisi it would then be appropriate
to consider that test. It is our submission
that that test is met.  The extraordinary
circumstances are, firstly, the nature of the
decision and the circumstances in which it was made and the consequences that that will have from 26 March next. It is our submission that
if the order nisi were granted, the test of
extraordinary circumstances is not applicable. The test is not as high, in our submission, if
the Court is relying upon, I think it is
Order 55 of the Rules to grant the stay.

Mr Justice Mason, in saying in MARKS's case

that the jurisdiction was extraordinary - I think

it is 53 -

HIS HONOUR:  55 ALJR 395, is the case that I have in mind.

Is that the same case?

MR TREW: Yes, I have it in 34 ALR, Your Honour. It is

a decision of 16 February 1981.

HIS HONOUR:	That is the case.
MR TREW:	Yes, His Honour there was contrasting the ability
to grant a stay under the Rules with the ability to grant a stay in exercise of the Court's inherent
jurisdiction and it was that circumstance, in
our submission, that led His Honour to describe
the necessity for there to be extraordinary
circumstances.- "exceptional", I think His Honour - there is a reference to TATE's case in this Court
after a reference to Mr Ryan's submissions.
I have it at page - - -
HIS HONOUR:	Yes.
MR TREW:	In the next paragraph His Honour said:

There is, however, an aspect of the

order now sought which is exceptional and

gives to the application a unique quality.

And His Honour then discusses in that paragraph

the nature·of the application. The other matter

of His Honour's reluctance is set out at the

end of that paragraph where the order created

rights was:

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otherwise declaratory in the sense that,

unlike an injunction it did not require

a party to do or abstain from doing

anything. And then in the rest of the decision

His Honour looked at the particular circumstances

of that case for resisting it.

So it is our submission that the expression "exceptional" is appropriate in considering the

Court's inherent jurisdiction but the test is

not so high when dealing with the Court's

jurisdiction under the rules and, in either event,

the circumstances, in our submission, lead to
the conclusion that there should be a stay of

that order. The only complaint that can be made

here is the circumstances of that order. That

does not preclude anybody else or other circumstances

being considered by the Commission.

HIS HONOUR:  The curious thing is that the so-called order

which you might be - or the decision which you seek a stay of is not a decision which either

creates rights or merely declares them, it is

one which annihilates what you would submit to

be a contingent right already granted.

(Continued on page 23)

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MR TREW:  Yes. And the stay is necessary, in our

submission, because without the stay	the ministerial
act can occur which will annihilate	the other
rights that were regularly obtained.

HIS HONOUR:	I understand the way you put it.
MR TREW:	They are my submissions, Your Honour.

HIS HONOUR:  Yes, thank you. Mr Buchanan.

MR BUCHANAN:  Your Honour, we have reduced to writing,

in a summary form, the submissions which we
would put to the Court. Can I hand a copy to

Your Honour?

HIS HONOUR:	Does Mr Trew have a copy of this?
MR TREW:	Yes, I have a copy, Your Honour.
MR BUCHANAN:	Yes, I have provided my learned friends

with a copy, Your Honour.

HIS HONOUR:  You might like to develop that argument,

Mr Buchanan.

MR BUCHANAN:	Your Honour will see that in paragraphs 1 and 2 we accept that there may be an argument
that there has been a denial of natural justice
which arises  by reason of the circumstances
in which the decision of 15 February was made
but it is our contention that notwithstanding
that.the matter is appropriate to be dealt with
in the first instance by the Commission. The
reasons for that, Your Honour, are these: that
in our contention this is a decision refusing
to make an order or award within the meaning of section 35(2)(a) of the CONCILIATION AND
ARBITRATION ACT.

There are a number of different ways in

which one can come to that position. Firstly,

Your Honour will have noted from Mr Roberts'

affidavit in paragraph 14 that Commissioner Griffin

expresses herself to be refusing the application

of the $10. Secondly, the notion of a refusal
to make an award has a particular relevance

to matters which arise in the Commission under

section 28. Before I take Your Honour to

section 28, can I refer to section 30(3) of

the Act. That provides:

If, during arbitration proceedings under

this Act in relation to an industrial dispute,

the parties to the dispute or any of them
reach agreement on terms for the settlement

of all or any of the matters in dispute,

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the provisions of section 28 apply in like

manner as they apply in relation to disputes -

HIS HONOUR:  What section are you reading there?

MR BUCHANAN: Section 30(3). If one then goes back to

section 28, it can be seen that it provides,

firstly, in subsection (1) that:

If, before an industrial dispute has been

referred to arbitration -

there is agreement, one of two things can happen:

either there can be a memorandum made between

the parties and the Commission requested to

certify it or the Commission can be requested

to make an order giving effect to the agreement

and subject to the section a member of the

Commission may either certify the memorandum

or make an order or award accordingly. Under

subsection (2) there is a duty not to refuse

to make such an award or order except in the

limited circumstances which are described in

paragraphs (a), (b) and (c), including the

circumstances if it is not in the public interest

T6 that the award or order should be made.

Your Honour, our first contention is that

what Commissioner Griffin did on 15 February
was to refuse to make an order of variation

as sought by the parties before her in September

and against that refusal an appeal will lie

under section 35(2). We also refer to the provisions

of section 59 of the Act which relate particularly
to aplications for variation and, Your Honour,
in particular, subsection (3) which applies
so far as they are capable of application to

the provisions of the Act in relation to applications,

amongst other things, for the variation of awards.
;~	We contend that under that section also,

~·the process of appeal is available in relation

_:j.:'.to a refusal to make a variation which is sought

· ·by parties relying upon section 28. Your Honour,

assuming that to be so, the Commission is then,

itself, given a power to stay the decision by

section 35(8). And, Your Honour, we then su~gest,

in paragraph 6, that those questions, including the question of whether an appeal is available,

is a matter which may, in the first instance,

be considered by the Commission or, on reference

from the Commission by the Federal Court, under

section 107 of the Act.

Section 107 embodies a procedure whereby

if a question of law arises before the Commission,

the Commision may refer that question for the

bpinion of the court and it is clear from

C3T7/2/ND 24 24/2/89

subsection (3) that such a question may include

a question whether the Commission may exercise
powers under the Act in relation to a matter.

We would submmit that that would include the

question if the Commission desired to refer

it whether, in the circumstances of this matter,

an appeal was available against

Commissioner Griffin's decision of 15 February.

So, Your Honour, we contend, in short, that

there are available, under the Act, adequate
procedures for a review of the decision and
for the granting of any stay which the Commission

might, in its discretion, feel was appropriate.

HIS HONOUR: Section 107 operates only if the Commission

refers a question, does it not?

MR BUCHANAN:  Yes, it does, Your Honour.

HIS HONOUR: It is hardly an adequate protection for a

party who suggests that it has been denied natural

justice.

MR BUCHANAN: No, but, Your Honour, it is open to the

Commission itself to consider the question of whether an appeal is available. If the Commission

is troubled by the legal aspect of that it has

a discretion to refer that question for

determination by the Federal Court.

HIS HONOUR:  On the four occasions to which my attention

has been drawn by Mr Trew, the Commission did
not find itself troubled and was able to

determine -

MR BUCHANAN:	That is so, Your Honour.
HIS HONOUR:	- - - adversely to the proposition that they

have got jurisdiction in a case of this kind.

MR BUCHANAN:  Your Honour, they were cases involving the

question of whether a mere decision amounted

to an order or award. We accept, for the purpose

of our submissions,that there is a distinction

to be made between a decision, on the one hand,

and an order or award on the other. But what

we submit is this, that there is a clear right

of appeal given under the Act in respect of

a decision which refuses an order or award.and we submit that Commissioner Griffin's decision of 15 February last can be characterized as

such a decision.

If there is an argument which arises to

·the contrary, it is a matter which the Commission

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itself may deal with as it has done on previous

occasions. If the Commission desires to do

so it can refer that question to the Federal

Court although, of coarse, it is not obliged to.

(Continuing on page 27)

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MR BUCHANAN (continuing):  Your Honour, given the existence of

those rights, we submit that the application is

premature. In relation to the question of whether

a stay should go, we have referred to MARKS' case and also Your Honour's judgment in REG V MERRIMAN and we would, with respect, rely upon the

authorities of those judgments for the proposition	that the grant of a stay in the present matter
would be exceptional and that exceptional circumstances
of that kind do not arise. For those reasons,
Your Honour, we submit, finally, that an order nisi
ought not be made nor should a stay of the decision
of 15 February 1989 be granted.

HIS HONOUR: Is this a case, though, of prematurity? The case

that you have referred me to, REG V BAKER and WILKIE,

EX PARI'E JOHNSTON, was a case, I see, where it was

held to be premature for a party to apply for
prerogative relief to this Court where the

prohibition was to be directed to the Family Court that ha~ not considered the facts or law involved, in other words, that was a question of grant of

prohibition directed to a court. Here we have the

question of a prohibition directed to an

arbitral body. Does that make any difference?

MR BUCHANAN: In my submission, no, Your Honour. In that

case there was also consideration of the fact that

a right of appeal would exist consequent upon a

determination by the Family Court at first instance.

We would, Your Honour, adopt what we perceive to be

the general principle stated in this case, that

an application for prerogative relief is premature

and unnecessary where adequate rights of appeal

or review exist elsewhere and we submit with respect

that such rights do exist under the Act in relation

to the present circumstances and that it was

unnecessary for the applicant to seek to move this

Court in the way that it has. But, Your Honour,

if that is putting the position too highly,then

we would submit in the alternative that an order nisi

ought not be granted and that the applicant ought

to be directed to move on notice and in those

circumstances a stay ought not be granted for the

reasons set out in MARKS and MERRIMAN.

HIS HONOUR: That there is no exceptional circumstances?

MR BUCHANAN:	No exceptional circumstances. Thank you.
HIS HONOUR:	Thank you, Mr Buchanan. Miss Kavallaris.
MISS KAVALLARIS:	My instructions, firstly, on the first

point that Mr Buchanan raised about the question

of natural justice: my instructions are that the	decision of Connnissioner Griffin can be supported
·and it is not the proper forum that those submissions
be made in this Court. As to the rest of the

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rest of the submissions made by Mr Buchanan from

paragraphs 2 to 9 of his outline, I adopt those

submissions and I would just wish to raise just

two further matters, Your Honour. The case of

TWIST V RANDWICK MUNICIPAL COUNCIL was authority

regarding the right of an appeal from the council

on the question of demolition of property where

there had been no right to be heard before the
council. There was a full right of appeal to the

district court on all the merits and there

was no restrictions on that appeal and the High Court

held there that there was - no reflief was granted

place at council level was remedied on appeal to	because the lack of natural justice which had taken
the district court. And in the circumstances of
this case, if there had been a denial of natural
Mr Buchanan said, a right of appeal to the Full justice before Commissioner Griffin there is, as
Bench and fresh evidence can be led. So any
wrongdoing at the lower level can be rectified on
appeal.
Your Honour, also, as you are probably aware, the.new Act comes into effect on 1 March and it
carries over~in the transitional provisions pursuant
to section 11, the current proceedings before the Arbitration and Conciliation Commission and section 45
provides for rights of appeal and specifically makes reference to where there has been no decision made
that you can appeal to the Full Bench and so the
rights of the parties are maintained and any defect
can be remedied in that new Act. For those reasons, Your Honour, we would seek that there be
no stay granted and also no order nisi be granted.

(Continued on page 29)

C3T8/2/PLC 28 MISS KAVALLARIS 24/2/89

HIS HONOUR:  You said at the opening of your submissions, I

think, that the decision can be supported.	You mean
as a matter of industrial desirability?

MISS KAVALLARIS:  Yes, Your Honour.

HIS HONOUR: That really does not concern this Court, I think.

MISS KAVALLARIS:  My other instructions are - and I do not

wish to press them, Your Honour, is that the applicants

put matters to the Conunissioner in September and then the matter came on before Cormnissioner Cohen where

other facts seem to arise and they put submissions to

Conunissioner Cohen and Conunissioner Griffin read all

those submissions before she made her decision on

15 February. But I would not press it any further than

that, Your Honour.

HIS HONOUR: Well, that may be so. You are not putting any

affidavit on to establish what material there was?

MISS KAVALLARIS: No, Your Honour. It is evident on the material

that has already been filed and Conunissioner Griffin

says in her decisions of 15 February that she has read

all the material that was before Conunissioner Cohen.

HIS HONOUR:  Yes. Thank you. Have you anything to say in reply,

Mr Trew?

MR TREW:  Yes, I have a couple of things, Your Honour.

As to the outline of my learned friend,

paragraph 3, that in our submission is not a correct

analysis of what happened, even if one were talking

about awards. It is a change of part of an award or

if one were to try and characterize it in the language

of the section, at the very most all it could be would

be a decision not to make part of an award, which is

different.

Now, of course, if that were so, the right of

appeal from the making of an award, even though it

were only part, would be there. But that analysis, in

our submission, is wrong and it really does not come to

grips, in our submission, with the first submission I

made, namely that an award has not yet been made.

As to the point about the section 107, I think I

am right in saying this, but I had better qualify it

in case there has been a case, but as far as I know there has never been a referral under section 107 -

this is in paragraph 6 of the outline - by the

Conunission to the Federal Court or the courts that

preceded it.

I do not want to say anything more about MARKS'

case. MERRIMAN's case, that was a case where there was

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a clear right of appeal and it can be distinguised

on that simple basis, in our submission, and there was

a further reason that Your Honour declined to grant

the stay there, because of the unsettling effect of

a stay, and those circumstances do not apply here.

A reference was made to section 45 of the Act

that is to come into force at the beginning of March.

I have a copy of that here. Its terms are different

to section 35, but only in terms. The substance of it,

in our submission, is the same as section 35, it raises

the same problems, but I would wish to qualify what I

have said about that. I have not studied this Act very

carefully, I have just had a look at that section and,

on the face of it, it does not seem to create a

different situation, in our submission. My learned

friend, Mr Buchanan, has not relied upon it in his

submissions.

HIS HONOUR:  What is the section number?

MR TREW: Section 45 of the INDUSTRIAL RELATIONS ACT. It is

No 86 of 1988.

HIS HONOUR: Yes.

MR TREW:  And there is, I think, only one matter that I should

refer to. I should have referred to it in my earlier

submissions. This Court in one case has considered

the questions of the meaning of section 35 but in a

way that does not really help, but I thought I should

tell Your Honour about it in any event. It is

REG V LUDEKE, EX PARTE THE CUSTOMS OFFICERS ASSOCIATION,

155 CLR 513. It was a natural justice case and it was

an application by an intervener in proceedings before

Mr Justice Ludeke complaining that because His Honour

had restricted the rights of that party as an intervener

they had been denied natural justice. (Continued on page 31)

C3T9/2/RB 30 24/2/89

MR TREW (continuing): And they sought leave to intervene before

His Honour to argue a jurisdictional point that had

previously been argued before him and he had decided

it adversely to them, and the Court held that natural

of the Chief Justice and Mr Justice Mason, refer to	justice was not denied and in two of the judgments
the meaning of section 35(2), and the pages upon
which they do so are:  Mr Justice Gibbs was 519 at
point 6 and Mr Justice Mason was at page 526 point 7. The circumstances in which the reference is made to
section 35(2) is on the undisputed basis that
what His Honour had done in the first case was make
an order and in the second case had made an order.
So the question of what constitutes an order or an award just was not examined in that case.

HIS HONOUR:	Is that all you wish to say, Mr Trew?
MR TREW:	That is all I wish to say, Your Honour.
HIS HONOUR:	Mr Trew, there are a couple of points which I

wish to raise with you in regard to the draft order.

The draft order seeks "an order of prohibition against·

the respondents from further proceeding in matter

C22326". If an order were made in that form, would

it not have the effect of precluding the making of

any order to vary the award?

MR TREW:  It should be restricted, yes. Yes, I had not

appreciated that, Your Honour.	So, it would have
to be limited in a form - - -

HIS HONOUR:	From .. proceedings on the decision" - - -
MR TREW:	On the decision of 15 February, yes.
HIS HONOUR:	And the sole ground on which you seek the relief

is that which is specified on the bottom of page 1,

namely, the denial of natural justice in the failure therein specified?

MR TREW: Yes.

HIS HONOUR: Yes, thank you, Mr Trew.

MR TREW:	And, Your Honour, there is perhaps one additional
thing, that the stay perhaps should be that the decision - or rather, "further proceedings in relation to the decision" rather than, "the decision".
There seemed to be some doubt raised by
Mr Justice Mason in MARKS' case about staying a
decision rather than proceedings.
HIS HONOUR:	You do not have anything to say about those matters,

Mr Buchanan?

MR BUCHANAN:  No, thank you, Your Honour.

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HIS HONOUR:	Or you, Miss Kavallaris?
MISS KAVALLARIS:	No, Your Honour.
HIS HONOUR:	I will consider my decision in this matter for

a very brief time and I think it would be appropriate

to adjourn until 3.30 or so soon thereafter as I

may be heard.

AT 3.04 PM SHORT ADJOURNMENT

UPON RESUMING AT 3.37 PM:

(Reasons for judgment were delivered}

HIS HONOUR:  I direct that the Professional Radio and

Electronics Institute of Australia apply by notice of motion to a Full Court at the Sittings appointed

to commence on 2 May 1989 for the issue of a writ

of prohibition directed to Pauline Marcus Griffin,

a Commissioner of the Australian Conciliation and

Arbitration Commission, the Overseas

Telecommunications Commission and the Minister for

Transport and Communication, the Honourable Ralph

Willis, prohibiting them and each of them from

further proceeding on a decision by the said

Pauline Marcus Griffin in matter C No. 22326 of

1988 made on 15 February 1989, and a writ of

certiorari to remove the said decision of

15 February 1989 for the purpose of it being

quashed upon the ground that the respondent

Pauline Marcus Griffin had no jurisdiction to

make the said decision in that she denied the PREIA

natural justice in that she did fail to provide it
with an opportunity to be heard and to present

evidence prior to reaching her said decision and

I further order -

(a} that the. applicant be at liberty to file

such further affidavits as it may be

advised within 14 days;

(b) that copies of this order and of the

notice of motion and of the applicants'

affidavits be served upon the respondent,

Commissioner Pauline Marcus Griffin,

by leaving true copies thereof for her
with the Industrial Registrar at

80 William Street, Sydney, New South
Wales;

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(c) that copies of this order and the

notice of motion and the said

affidavits be served upon the

respondents, Overseas Telecommunications

Commission at its registered office and upon the Minister for Transport and Communications;
(d)	that the respondents should be at

liberty to file affidavits as they

may be advised within 14 days after

the service of affidavits upon them;

(e) that there be liberty to all parties

to apply generally on 72 hours notice.

And I certify that this was a matter proper for

the attendance of counsel at Chambers.

AT 3.52 PM THE MATTER WAS ADJOURNED SINE DIE

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