Re Marshall & Ors, Ex parte Mighell

[1995] HCATrans 306

TRANSCRIPT
OF PROCEEDINGS
AUSCRIPT
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IN THE HIGH COURT OF AUSTRALIA

MELBOURNE OFFICE OF THE REGISTRY

No. M59 of 1995

IN THE MATTER OF:

AN APPLICATION FOR WRITS OF PROHIBITION MANDAMUS AND CERTIORARI AGAINST THE HONOURABLE JUSTICE SHANE RAYMOND MARSHALL, A JUDGE OF THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA, DEREK GRAHAM NICHOLSON and AUSTRALIAN ELECTORAL COMMISSION

ex parte:

MIGHELL and MARSHALL

DAWSON J (In Chambers)

AT MELBOURNE, FRIDAY THE 20TH DAY OF OCTOBER 1995

DR C. JESSUP QC:   I appear with my learned friend, MR H. BORENSTEIN, on behalf of the Prosecutors.

MR A. O'DONOGHUE:   I appear for the third named respondent, the Australian Electoral Commission.

MR B. SHAW:   I appear for the second named respondent, Mr Derek Graham Nicholson.

HIS HONOUR:   Dr Jessup.

DR JESSUP:   Your Honour, this is an application for prerogative relief in relation to a decision made by a Judge of the Industrial Relations Court in a proceeding from which there is no appeal to the Full Court of that Court because it arises in an election inquiry.

HIS HONOUR:   You do have some appeals on foot, do you?

DR JESSUP:   We do have some appeals on foot.

HIS HONOUR:   But they will not take you the whole distance?

DR JESSUP:   They will not, your Honour, no.

HIS HONOUR:   No.

DR JESSUP:   And, relevantly, they will not take us any useful distance at all if there is an election to be held pursuant to the orders of his Honour.

HIS HONOUR:   Yes.

DR JESSUP:   Your Honour, there are a couple of matters which need to be dealt with this morning in our submission.  There is a consent to remit it to the Court.

HIS HONOUR:   There is some difficulty about that, is not there, or maybe?

DR JESSUP:   Yes, your Honour.  This will not be the first occasion upon which a decision of a Judge of that Court has been challenged this way and the proceeding is remitted back and dealt with by a Full Court of that Court.

HIS HONOUR:   I think I have been guilty of remitting something in those circumstances.

DR JESSUP:   Yes, your Honour.  The matter to which we refer is Re Keely ex parte Kingham, and the Full Court ultimately dealt with that and the Full Court observed that it was a curious procedure that it should come back to a Full Court.
HIS HONOUR:   What is the citation?

DR JESSUP:   In effect on a jurisdictional challenge.

HIS HONOUR:   Yes.  What is the citation of that case?

DR JESSUP: That, your Honour, is 129 ALR 255, and we will just draw your Honour's attention to the passage in which the Full Court reflected upon the oddity of the procedure but, nonetheless, it seems to be quite squarely open. On page 257 their Honours said:

This is the first occasion on which the High Court has remitted to this Court an application for prerogative writs against a member of the Court.  The remittal makes the case a legal curiosity.  As Drummond J recently pointed out in ...(reads)... all members of the Court considered as a group.

And their Honours made some further observations in that regard.

HIS HONOUR:   The trouble is that last week Gummow J had this situation before him and he chose to refer to, or direct that the application be made on motion to a Full Court in order that this question could be raised and considered there.

DR JESSUP:   Yes.  We are aware of that, your Honour, and that is one of the reasons why we thought that this morning's proceedings might be more than a formality.  Our clients are particularly concerned that the status quo does not get affected during the period that these jurisdictional and forensic matters are being resolved.  If you were to remit it to the Industrial Relations Court without further ado in the normal course, your Honour, we would be wanting to address you with respect to a short stay because of what is happening in relation to the new election that has been ordered.  If, on the other hand, your Honour is inclined to take the same course as Gummow J then we would ask your Honour to deal with the application for a stay as though the matter is at least for present purposes remaining in this Court.

May we explain why the matter of stay is of particular concern to us.  As your Honour will have seen from the papers Marshall J has ordered that a new election be held and today is the last day for submitting nominations and nominations doubtless are in and doubtless there will be a very serious contest.  The Electoral Officer has directed, I think, 20 November as the date upon which ballot papers will be despatched and then there is a period of some 3 weeks or so after that during which the members will consider their vote and return their ballot papers.  That period between now and 20 November, your Honour, is a crucial one because ballot papers have to be printed and the candidates in the election have to engage in active canvassing of votes amongst their constituencies which involves, as your Honour may well understand, a good deal of printing of literature and that type of thing.

Now, if there is an election, that is to say if there is no stay and the election proceeds, then it may be that that election will turn the office holders of the union over and they are important offices, your Honour, the Secretary and the Assistant Secretary of the Branch.  His Honour below has made an order the effect of which will be that our clients who, if I can use the expression, are the successful one in the election under challenge should operate de facto in a holding over sense whilst the new election is taking place.

Now, of course, if the new election produces a different result then that would be turned over through 180 degrees and if ultimately we are successful in this Court or wherever it is going to be held it will go back 180 degrees again, but the validity of acts done in the meantime is by no means a clear matter under the Act, your Honour.  It would appear to us that the Act probably does not express in terms the question of the validity or validating orders in relation to an election ordered by the Court which is subsequently found ought not to have been ordered, and in those circumstances, your Honour, it is our submission that by far the more convenient course would be to stay so much of his Honour's orders below as directed that a new election take place.

Now, if your Honour is to keep the matter in this Court and take the same course that Gummow J took we would ask for such a stay to be made pending the hearing and determination of the matter.

HIS HONOUR:   Have I got any jurisdiction to make a stay in those circumstances?

DR JESSUP:   Against?

HIS HONOUR:   To make a stay, to order a stay?

DR JESSUP:   Yes, your Honour, you have got a, as we understand it the Court has got a long-standing jurisdiction to make a stay in aid of an application for an order nisi, as it were.

HIS HONOUR:   Yes.

DR JESSUP:   And that is the basis ‑ ‑ ‑ 

HIS HONOUR:   It has when it has made an order nisi, not before making an order nisi?

DR JESSUP:   Well, in our submission there must be an inherent jurisdiction, your Honour, to protect the subject matter of the litigation.  There is a particular reason here because it is not simply as though the parties before you are the only ones who might be concerned.

HIS HONOUR:   Well, what you put forward is inconvenience rather than protecting the subject matter of the action, is not it?

DR JESSUP:   Well, not ‑ ‑ ‑ 

HIS HONOUR:   Inconvenience and expense, that is what you are saying?

DR JESSUP:   Yes.  Well, I suppose that is so, your Honour, it depends on what you call the subject matter.  We would contend that the subject matter is the holding of offices, as it were ‑ ‑ ‑ 

HIS HONOUR:   But that can be cured.

DR JESSUP:   Not retrospectively, your Honour.

HIS HONOUR:   Well, yes it can.  I mean, if it turns out that the election was validly held, the one that you say was validly held was validly held, then the further election will be a nullity presumably?

DR JESSUP:   That is the problem, your Honour, but in the meantime in actual fact, those ‑ ‑ ‑ 

HIS HONOUR:   If not then the further election will be valid and those who are elected will take office.

DR JESSUP:   There is no doubt about that, your Honour.

HIS HONOUR:   Well, there is no question about the subject matter of the action disappearing, is there?

DR JESSUP:   Well, there is, in our respectful submission, in this sense, your Honour, that if the further election should turn out to be a nullity those people who have been acting pursuant to that election in the meantime will have done things, will have administered the unions, and there is a very real question as to the effectiveness or validity of what they have done.  Perhaps it is stretching the usual notion of the subject matter of the litigation, your Honour.

HIS HONOUR:   I think it is.

DR JESSUP:   But in our submission it does at least attract the inherent jurisdiction of the Court.

HIS HONOUR:   That is the only jurisdiction on which you can rely, is not it?

DR JESSUP:   Yes, your Honour.

HIS HONOUR:   And that is limited to preserving the subject matter of the action.  There is other jurisdiction when an order nisi is made under the rules but you cannot rely on that if I take the course that you are addressing yourself to at the moment.

DR JESSUP:   Yes.  Well, your Honour, in those circumstances may we submit that this would be the most appropriate course, that you should grant the order nisi in this Court;  if you are then inclined to make the order which or follow the course that Gummow J followed you would then refer to the Full Court the question of remitter in circumstances where the order nisi had been granted;  alternatively, if your Honour decides to take the other course you would refer it to the Industrial Relations Court but the order nisi having been granted in the meantime.  So at least we have a proceeding, as it were, and something on foot to which we can attach our claim for a stay.

HIS HONOUR:   Just before you sit down, the assumption is, of course, that this Court will not deal with a matter such as this if it could possibly avoid doing so;  from your submissions I understand you appreciate that.

DR JESSUP:   I have not made any more optimistic assumption, your Honour.

HIS HONOUR:   Good.  Now, the second respondent, Mr Shaw.

MR SHAW:   Thank you, your Honour.  The second respondent opposes the granting of the motion.  The reasons are for obviously the fairly well established law in respect of the granting of stay orders, that there need to be very special circumstances as your Honour has pointed out, and that those special circumstances in my submission in this case can only arise if the subject matter of the appeal would in fact not be preserved and therefore the appeal process itself would be rendered nugatory in the event of a stay not being granted.

Now, in my submission that simply is not the case here, that the election which is under challenge was in fact an election for office, the offices of the union, those offices will remain in existence, a further election may indeed result in an overturning of the office bearers, and should then the appeal be successful clearly there would be a re-overturning.  In my submission, however, that is simply a fact of life.  Marshall J in the Court below referred to that when the stay application was made to him and, indeed, took that approach;  on the contrary, in my submission if there is a stay the parties on ‑ ‑ ‑ 

HIS HONOUR:   What do you say about power on my part to grant, or to order a stay?

MR SHAW:   In my submission your power to grant a stay is indeed limited to the inherent jurisdiction of the Court, it is not suggesting that you have absolutely no power to do so, but it is submitted that the power is indeed subject to fairly absolute restrictions which are restricted to situations in which the subject matter of the appeal would effectively disappear if the stay were not granted, and in my submission that is simply not the case here.

If I might say further in the submission of the second main respondent the parties who lost the election, the losers, if I can adopt the opposite expression of Dr Jessup, would in fact be prejudiced if the stay is granted as those who won the election and who are now in office and may be in office as a result of an invalid election they would have the facilities and offices of the unions available to them for whatever period it might take until the appeal is heard in order to entrench themselves with the electorate;   and, indeed, the election which as we have heard has already commenced in the sense that nominations have been open for some time, they close today, by taking place when it does on 20 November which is the earliest date the Electoral Commissioner could arrange it does at least ensure that the electorate, if I may call it that, the members of the union will be able to express their view in as close as possible to the way it was expressed earlier in the election but in a form which at least in the opinion of a single Judge in the Court below is in the context of a validly conducted election.

[9.46am]

The question of costs to the prosecutors and obviously to the losers of the earlier election is a factor, but in my submission it is no more than inconvenience and indeed it may well be, if the opinion of the judge in the court below is upheld, on later hearing of this matter, that it is only a question of timing in any event that those costs would be incurred, regardless, obviously, in my submission that is the opinion which my clients express and believe will occur. 

In my submission, in the words of - certainly at this stage of the proceedings -the words of Marshall J in the application for a stay which is dealt with by him in reference to the possibility raised by the prosecutors in this matter of possible industrial action arising, were a stay not granted, is applicable to this question of costs as well that that is just a burden which may occur as a result of what certainly is at this stage, and as far as the litigation that has been conducted so far, a consequence of the winners are nominating for incompatible positions within the union.

The second-named respondent has consented to the matter being remitted to the Industrial Relations Court, to a Full Court of the Industrial Relations Court, and in my submission that is indeed what should occur.  That is the application after or before this court today or part of it and as the second- named respondents have consented, then that indeed is in my submission the order the court should make in respect of that issue.  The issue of a stay has indeed been dealt with by the court below, in my submission, nothing new that causes this court to come to a different conclusion has been raised.  And indeed with the restrictions on your power, it is submitted that the stay should not be granted.  If the court pleases.

HIS HONOUR:   Thank you, Mr Shaw.  Mr O'Donoghue.

MR O'DONOGHUE:   Very briefly, your Honour, simply to reiterate the third-named respondent's position as to the new election as indeed is recorded by Marshall J in his stay judgment, namely, that we do not make any complaint about the possibility that we may have to conduct an election which may put it to be null and void.  Indeed we are in the same position in the CFMEU case your Honour has already been referred to.  It did not get as far as this one might before the decision was overturned, but that was a case where expenditure was occurred in the new election which was found by the Full Industrial Relations Court to be a nullity. 

As to the question of remittal, we simply are in the Court's hands as to whether the Court wishes to take the approach adopted by Gummow J or to remit the matter to the Full Court.  As your Honour pleases.

HIS HONOUR:   Thank you.  Dr Jessup?

DR JESSUP:   Your Honour, might we in reply refer you to the approach taken by Mason CJ in Grassby v The Queen.  This was a case in which it could not be said that the grant of the stay was necessary to preserve the subject matter of the litigation.  It was committal proceedings that were sought to be stayed and the essence of his Honour's decision is that he was moved by the circumstance that if a stay were not granted, the sub-stratum of facts with relation to the litigation below would change and the proceedings might be materially different as a result of that when they came on. 

Now, there is some analogy in the present proceedings, your Honour, in the sense that when eventually the proceedings come on it, if a stay is not granted they might take a very different colour from those which they took before Marshall J in that by then there will have been an election of possibly new people assuming office.  And, in effect, the court will be in the odd position of hearing arguments before it about an election once removed from the most recent one which was held.

HIS HONOUR:   Nothing so very odd about that, Dr Jessup.

DR JESSUP:   Well, it will be quite a different set of facts before it, quite a different set of facts which then exists from those which the court is considering, your Honour. 

HIS HONOUR:   I will consider this matter and give a decision at 2.15 this afternoon.

SHORT ADJOURNMENT

[2.16pm]

HIS HONOUR: This is an application for orders nisi for writs of prohibition, mandamus and certiorari directed to a judge of the Industrial Relations Court, Marshall J, who held an inquiry under section 219 of the Industrial Relations Act 1988 (Cth). As a result of the inquiry, Marshall J declared invalid the election of certain officers of the Victorian branch of the Electrical Division of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia. He directed the union to conduct new elections as soon as possible.

The convenient course would be to remit the application to the Full Court of the Industrial Relations Court which, by reason of section 412(2) of the Act, would then prima facie appear to have jurisdiction to determine the matter: see Re Keely; ex parte Kingham (1995) 129 ALR 255 at page 257. However, in proceedings before Gummow J in Sydney earlier this week difficulties were raised about taking such a course involving, as it does, the court granting prerogative relief against one of its members. Gummow J directed, pursuant to order 55 rule 2, that the application before him be made by notice of motion to a Full Court in order to enable the difficulties to be resolved one way or another. In the circumstances, I think that I ought to adopt the same course since the same difficulties arise in this matter.

The applicants seek a stay of the orders made by Marshall J. An application by them for a stay was made to Marshall J and was refused. However, since I propose to refer the application to a Full Court I have no power to order a stay under Order 55 rule 10. Whilst there is an inherent jurisdiction to order a stay to preserve the subject matter of the litigation or in analogous circumstances - see Grassby v R (1989) 63 ALJR 348 - in this case no question arises, in my view, of preserving the circumstances upon which the litigation is founded. The most that can be said is that, if a stay were granted, the inconvenience and expense of a new election might be avoided. Even apart from the question of power on my part to order a stay, I would not regard those considerations as sufficient to warrant my acceding to the application for a stay (see Manfal Pty Limited [in liquidation] v Trade Practices Commission (1990) 65 ALJR 256 at 258).

The order which I make is to direct the applicants to make their application by notice of motion to a Full Court; a notice of motion to be filed and served within seven days of today.  Is there anything else, Dr Jessup?

DR JESSUP:   Nothing else, your Honour.

AT 2.19 PM THE MATTER WAS ADJOURNED
INDEFINITELY