Re Media, Entertainment and Arts Alliance and Theatre Managers Association & Ors; Ex Parte The Hoyts Corporation Pty Ltd

[1993] HCATrans 109

IN THE HIGH COURT OF

Office of the Registry

Melbourne	No M37 of 1993
In the matter of -

An application for a Writ of

Prohibition, a Writ of

Certiorari and a Writ of

Mandamus against THE

HONOURABLE JUSTICE ALAN

BOULTON, THE HONOURABLE

DEPUTY PRESIDENT COLIN GEORGE

POLITES and COMMISSIONER

ADRIAN DANIEL FOGARTY,

members of the Australian

Industrial Relations

Commission

First Respondents

and

MEDIA, ENTERTAINMENT AND ARTS

ALLIANCE and THEATRE

MANAGERS' ASSOCIATION

Second Respondents

and

THE GREATER UNION

ORGANISATION PTY LTD, VILLAGE
THEATRES TASMANIA PTY LTD,
206 BOURKE STREET PTY LTD,
VILLAGE ROADSHOW CORPORATION
LTD, VILLAGE DRIVE-IN

Hoyts(4) 70 30/4/93

(ESSENDON) PTY LTD, VILLAGE
ROADSHOW OPERATION LTD,
VILLAGE CINEMAS (RYRIE) PTY

LTD and GEELONG DRIVE-IN

THEATRES PTY LTD

Third Respondents

Ex parte -

THE HOYTS CORPORATION PTY

LIMITED, DELARENE PTY LTD and

RAMPTON PTY LTD

Prosecutors

Office of the Registry

Melbourne	No M39 of 1993
In the matter of -

An application for a Writ of

Prohibition and a Writ of

Certiorari against

COMMISSIONER ADRIAN DANIEL

FOGARTY, a member of the

Australian Industrial

Relations Commission

First Respondent

THE HONOURABLE JUSTICE ALAN

BOULTON, THE HONOURABLE
DEPUTY PRESIDENT COLIN GEORGE
POLITES and COMMISSIONER

ADRIAN DANIEL FOGARTY,

members of the Australian

Industrial R~lations

Commission

Second Respondents

and

MEDIA, ENTERTAINMENT AND ARTS
ALLIANCE and THEATRE

MANAGERS' ASSOCIATION

Third Respondents

Ex parte -

THE HOYTS CORPORATION PTY

LIMITED, DELARENE PTY LTD and

RAMPTON PTY LTD

Prosecutors

Hoyts(4) 71 30/4/93

Registry	No CS of 1993
In the matter of -

An application for a Writ of

Prohibition and a Writ of

Mandamus against -

THE HONOURABLE JUSTICE ALAN

BOULTON, THE HONOURABLE
DEPUTY PRESIDENT COLIN GEORGE
POLITES and COMMISSIONER

ADRIAN DANIEL FOGARTY,

members of the Australian

Industrial Relations

Commission

First Respondents

and

MEDIA, ENTERTAINMENT AND ARTS
ALLIANCE and THEATRE

MANAGERS' ASSOCIATION

Second Respondents

Ex parte -

THE HOYTS CORPORATION PTY

LIMITED. DELARENE PTY LTD and

RAMPTON PTY LTD

First Prosecutors

and

DEAN ARNELL, MARTIN KESSAR,

JAMES GEORGES

Second Prosecutors

TOOHEY J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 30 APRIL 1993, AT 9.00 AM

(Continued from 28/4/93)

Copyright in the High Court of Australia

Hoyts(4) 72 30/4/93

HIS HONOUR:  In each of these three matters, the application

for an order nisi for prerogative relief is refused. In each case, the formal order is

application dismissed. Written reasons for

judgment will be available during the coming week.

MR KAUFMAN:  If Your Honour pleases. Your Honour, I have

been instructed, having contemplated the
possibilities this morning, to seek leave to appeal

against the refusal to grant the orders nisi, and

we will do so under section 34 of the Judiciary Act

and Order 70 rule 16 of the Rules of the Court.

It is my submission, Your Honour, that a

refusal to grant an order nisi is a final

disposition of the application. However, we do

accept, Your Honour, that there is some doubt as to

that, having regard to such cases as Hall v The

Nominal Defendant, 117 CLR 423, Sanofi, 39 ALR 405

and Licul v Corney, 50 ALJR 439, and it may well be

that leave of the Court is required to make an

appeal, Your Honour, having regard to section 34(2)

of the Judiciary Act. To a large extent,

Your Honour - it is a matter, of course, for

Your Honour.

HIS HONOUR:	What is a matter for me, Mr Kaufman?
MR KAUFMAN:	As to whether or not Your Honour would

entertain an application for leave to appeal

against Your Honour's decision or whether

Your Honour would see it as proper that we apply

for leave, if that be required, to a Full Court.

Your Honour, we would seek either way, whether we

are entitled to appeal as of right or whether leave

to appeal is required, to have the appeal or the

application for leave to appeal agitated before the

Full Court and dealt with by the Full Court. We

have made inquiries of the Registrar, Your Honour,

and he has informed us that if Your Honour were

disposed to give a direction for the matter to be

listed expeditiously that it would be able to be

dealt with in the next sittings of the High Court

in May.

We would be seeking, Your Honour, to prosecute

our appeal expeditiously at those sittings and to
move the Court to deal with the application for
leave, if that be necessary, or the appeal at that

time.

HIS HONOUR:  What are you contemplating, Mr Kaufman? That

you would file a notice of appeal and an

application for leave to appeal?

MR KAUFMAN:  Yes, in the alternative, Your Honour, yes.

Hoyts(4) 73 30/4/93

HIS HONOUR:  That does not require any action on my part,

does it?

MR KAUFMAN:  No, it does not, Your Honour. It may well be

that Your Honour could grant leave to appeal,

sitting as you are today, although I apprehend it

may well be that Your Honour is sitting in chambers

rather than as the Court, in which case that may

not be the proper way to proceed.

HIS HONOUR:  I would have thought, since there is some

doubt, as you expressed it, as to whether you need

leave to appeal, that that argument ought to be run

along with the appeal itself.

MR KAUFMAN:  Yes. Well, we are content with that,

Your Honour. That brings me to the nub of my

application this morning, Your Honour, and that is

an application for a stay of the decision of the

Commission and a stay of the operation of the award

which, as Your Honour is aware, will operate as

from tomorrow pending the appeal or the application

for leave to appeal, whichever is held to be

appropriate. Unless a stay is granted,

Your Honour, our appeal will be rendered nugatory,

having regard to the operative date of the award

and to the privative section of the Act,

section 123.

HIS HONOUR:  It may or it may not. That was a matter that I

raised with Mr Merkel in the course of argument and

it was not necessary, of course, to resolve that

particular question.

MR KAUFMAN:  No. As I think my learned leader submitted, it

would be a very difficult argument to sustain that
the award could be challenged once it is actually

made, but it is not beyond some doubt.

HIS HONOUR:  I would have thought it depended in a large

part upon the basis of the challenge but, at any

me.

rate, that is not a matter that is really before

MR KAUFMAN:  No, Your Honour. Your Honour, we would

seek - - -

HIS HONOUR:  I just wonder, Mr Kaufman, about my position in

being invited to order a stay in relation to these

applications which I have, in effect, disposed of.

I appreciate that the stay is now sought in

relation to a proposed appeal but do you not need

to get your appeal underway before - - -

MR KAUFMAN:  I think not, Your Honour. I would rely, in

particular, on the Burgundy Royale case,

161 CLR 681. I do have a photocopy that I can hand

Hoyts(4) 74 30/4/93

up to Your Honour. Your Honour can see at page 683

Justice Brennan speaks of "The inherent

jurisdiction of this Court" at the first full

paragraph and quotes from Marks' case.

HIS HONOUR:  But that is pending the hearing of an

application for special leave to appeal, is it not?

MR KAUFMAN:	Yes, Your Honour, and that is - - -
HIS HONOUR:	I mean, does that not assume that there is an

application on foot?

MR KAUFMAN: It would appear not from that, Your Honour. It

is not entirely clear from that passage, but - - -

HIS HONOUR:  If you look at the passage that you have marked

there is a reference to Federated Ironworkers'

case, and then the judgment continues:

The jurisdiction to grant a stay in the

present case depends on whether a stay is
necessary to preserve the subject-matter of
the litigation. If an application for special
leave to appeal would be futile unless a stay

is granted, the jurisdiction arises.

MR KAUFMAN:  Yes. We would say that we are fairly and

squarely within the parameters of that quotation,

Your Honour, that unless a stay is granted the

subject-matter of the appeal will disappear.

HIS HONOUR:  It is not the principle that I am concerned

with at the moment. It is the question of whether

a stay can be granted, as it were, in the absence

of any document - any proceeding before the Court.

You see, if you look at the top of page 683 where

Justice Brennan is reciting the history of the

matter, he says:

order to allow this Court an opportunity to	The stay was granted until 4.30 pm today in
consider whether a stay should be granted
pending the determination of the applicant's

applications for special leave to appeal - now, I take that, maybe wrongly, to mean that there

were applications which had been lodged and in

respect of which the stay was sought but I just

find it peculiar that the Court could grant a stay,

as it were, absent any proceeding before the Court

or any application before the Court to which the

stay was to be attached. Can I put it to you this

way: are you asking me to grant of, in effect, the

award until a notice of appeal has been filed and

dealt with?	I mean, what happens if there is no
notice?

Hoyts(4) 75 30/4/93

MR KAUFMAN:  Your Honour, I am prepared to undertake, as

counsel, and instructed to undertake, as counsel,

that a notice of appeal will be lodged and it will

be lodged expeditiously and all steps necessary to
progress the appeal will also be taken and taken

expeditiously, and that undertaken is given to the

Court.

HIS HONOUR:  Yes. I am not worried about that side of it.

What I am putting to you is the difficulty that I see - and you may convince me otherwise - that I am

being a.sked to grant a stay in circumstances where

there is now, at the moment, really no effective

proceeding before the Court.

MR KAUFMAN:	Yes, I understand, Your Honour.
HIS HONOUR:	I think you really have to get your notice of

appeal and your application in, do you not?

MR KAUFMAN:  I would have read, with respect, Your Honour,

the passage about the inherent jurisdiction of the

Court to preserve the subject-matter of litigation as extending to preserving subject-matter pending

the lodging of an appeal, otherwise, Your Honour,

the inherent jurisdiction of the Court does seem to

be hugely fettered in circumstances such as this

where a decision is given now and an event will

occur tomorrow to render any appeal nugatory unless

a stay is given.

HIS HONOUR: Yes. Well, you may well be right. It is just

not easy, on a quick reading of the judgment, to assess whether applications for special leave to

appeal have, in fact, been filed.

MR KAUFMAN:  Yes. I am just looking at Marks' case,

Your Honour, where a notice of motion was filed and

that does put it into a slightly different

position. But it was after the notice of motion

had been filed that the order for a stay was

sought.

HIS HONOUR:  But a question of inherent jurisdiction in the

sort of context that Justice Brennan is speaking
of, I think arises where there has been an

application for special leave but the application

itself has not been determined. Once there has

been a grant of special leave the matter assumes a

different proportion. But you are missing out a

step, I think - and I am looking at the situation

in which an application has been filed - the

application for special leave has not been

determined and in that interim period it is sought

to preserve the subject-matter of the litigation

pending the determination of the application for

special leave.

Hoyts(4) 76 30/4/93

MR KAUFMAN:  Yes, and I think that is why it was thought

that perhaps the application for leave could be

made orally to Your Honour sitting as you are this

morning, and that would invoke the jurisdiction of

the Court, and if that is possible, I so apply.

HIS HONOUR:  I appreciate that you are in some difficulty

because, of course, I have not given you reasons
for judgment, so I can hardly expect you to

formulate grounds of appeal at this stage. But it

does seem to me that you need something before the

Court by way of notice of appeal and application

for leave to appeal.

MR KAUFMAN:  Your Honour, perhaps that could be accommodated

if Your Honour were minded to stand this matter

down until sometime later today and those documents

can be prepared.

HIS HONOUR: Well, I can do that.

MR KAUFMAN:  And the application can be renewed after

documents have been filed.

HIS HONOUR:  I will be in Court all day but I can deal with

this during the lunch-hour, I suppose, or at the

end of the day.

MR KAUFMAN:  If Your Honour were minded to do so, that

might - - -

HIS HONOUR:  I will certainly hear you on that, Mr Kaufman.

But perhaps in anticipation of what might take

place later, what is it that you would be seeking

by way of stay?

MR KAUFMAN: 

Your Honour, we would be seeking that the

operation of the award or the coming into effect of
the award be stayed. That would involve, I would
think, a stay of the decision that it not be given

of the appeal or the application for leave to any effect or acted upon pending the determination

appeal.

HIS HONOUR: This raises a problem that, again, I aired with

Mr Merkel, that is, a reluctance to grant a stay

when the parties affected by the stay have not been

given notice of the application.

MR KAUFMAN:	Yes, Your Honour.
HIS HONOUR:	And when the matter came before me on Wednesday

and so far as the stay was concerned, while the

application itself is ex parte, I expressed the

view to Mr Merkel that, in the ordinary course, I

would not grant a stay of proceedings unless the

Hoyts(4) 77 30/4/93

party affected by the stay had been given notice

and an opportunity to object.

MR KAUFMAN:  Yes, and as Mr Merkel said, with respect,

Your Honour, this is not the ordinary course, given

the timing of the corning into operation of the

award and the possible effect of section 143 of the

Act.

HIS HONOUR:  Yes, but that becomes a bit circular because

the timing becomes - the matter assumes an urgency because of the time that elapsed from the decision

made on 1 April until the matter came before the

Court.

MR KAUFMAN:	Yes, it does, Your Honour, and again
HIS HONOUR:	And then the Court is put in the position of

being told that this matter is now extremely urgent

and unless something is done by the close of play

today the award comes into operation.

MR KAUFMAN:  Yes, and I think Mr Merkel did apologize and

explain that until it was known that the employees

affected by the decision were discontented with it

no action was commenced, and that came at a fairly

late stage after they had been able to analyse the

decision and, indeed, until my clients had analysed

the ramifications of the decision and what flowed

from that and that, to a large extent, Your Honour,

explains the delay. It was not until a couple of

weeks after the decision had been handed down that

we became aware that employees were concerned as to

its ramifications and when that occurred the Hoyts
companies took action to ascertain the views of

those employees around the country. That, of

course, involved travelling to Western Australia

and other States, and with it the lapse of time of

course occurred. It really was not until the views

of a significant number of employees became known

that the course of action could properly be

formulated.

Perhaps, Your Honour, to allay that

difficulty, an order of the sort contemplated by

Mr Merkel on Wednesday might be appropriate, that

if Your Honour were disposed to grant a stay that

it be until 4.15 or whenever in 7 or 10 days time and that the application for a stay be renewed on

notice. That would only involve a stay of a short

period of time and, as has been indicated, if the

award does operate, the employees concerned will be

entitled to the benefits of that award and entitled

to that payment. If Your Honour is so minded, I am

also instructed, although it is probably not

necessary to do so, to give an undertaking that

that back payment will take place and that

Hoyts(4) 78 30/4/93

appropriate records will be kept to enable the

amounts to be ascertained.

HIS HONOUR:  That is one way of approaching it. The other

is to alert the respondents - - -

MR KAUFMAN:	By this afternoon, Your Honour?
HIS HONOUR:	Yes.
MR J.W. NOLAN:	Your Honour, I do not mean to interrupt

unnecessarily but - - -

HIS HONOUR:  No, it is all right. I am grateful for all the

help I can get. You are - - -?

MR NOLAN:  My name is Nolan, and I am instructed by the

Union to appear in this matter.

HIS HONOUR:	Now, "the Union" being - - -?
MR NOLAN:	The Media, Entertainment and Arts Alliance, one

of the respondents to the application. Now, as I

understand it, my instructing solicitor wrote to

your associate yesterday afternoon, she having

become aware of the application that was made

before you on Wednesday, and that letter, as I

understand it, asked for the Union to be heard

before any order was made staying the operation of

the award because the Union's position is, frankly,

that it will fight any stay order very strenuously

and it would expect to be heard before a stay order

was granted. It believes it has very good reasons for opposing the issue of a stay and would seek to

put those reasons in some detail to Your Honour.

We would be available, of course, to do that

at short notice. We could do it Wednesday or

Thursday next week, for example, which, as I

understand it, would be before the award would take

effect.

HIS HONOUR: Is that right, Mr Nolan? You see, the matter

has been presented to me during the week on the

basis that it had assumed extreme urgency because

it was to come into operation tomorrow.

MR NOLAN:  Look, that might be right. I might have my

dates - - -

HIS HONOUR: Well, it is fairly vital.

MR NOLAN:  I might have my dates wrong, but I understood the

position to be that Deputy President Polites was

going to make the award but its date of operation

was prospective, but I might be in error in terms

Hoyts(4) 79 30/4/93

of my dates because it might well be early next

week rather than later next week.

HIS HONOUR:  We are not even talking about next week at the

moment, we are talking about this week. we are

talking about tomorrow. That is the basis on which

the matter was presented to me in Canberra on

Wednesday.

MR NOLAN:  I see. Well, in that case, if there was that

degree of urgency said to be attached to the

matter, one would have thought the Union would have

been notified by the applicants and, you know, the

argument had then.

HIS HONOUR:  You have probably heard the discussion between

Mr Kaufman and myself this morning.

MR NOLAN:  Only some of it, I regret to say, Your Honour, I

am sorry.

HIS HONOUR: Well, during the hearing of the application on

Wednesday I expressed the view that except in very

unusual circumstances I would not grant a stay of

proceedings in the absence of an appearance by

parties who stood to be affected by a stay.

MR NOLAN:	Indeed.
HIS HONOUR:	Now, in the light of my decision this morning,

that has gone by the board because I have dismissed

the applications. We have now moved into another

area of discourse, namely, the prospect of an

appeal and an application for leave to appeal and

it is in respect of those matters that a stay is

now at least being aired.

MR NOLAN:  I see. This is an appeal from Your Honour's

decision to dismiss the applications?

HIS HONOUR: That is right.
MR NOLAN:	I see.
HIS HONOUR:	The first thing that ought to be learned is

when the award is to come into operation. If it is

not going to come into operation until sometime

next week, the heat is off, so to speak.

MR NOLAN:	Yes, I understand that.
HIS HONOUR:	But if it is to come into operation tomorrow,

then you can understand why Mr Kaufman is wanting

to press his application.

MR NOLAN: Yes. Excuse me a moment. Sorry, Your Honour, I

was in error. It is, in fact, 1 May, I accept

Hoyts(4) 80 30/4/93

that, that the award comes into force. But,

certainly, I have no instructions to consent to any

stay, even on a partial basis. But can I simply

reiterate what I said before and that is if there

is to be any further attempt to stay the matter,

well, obviously, we would want to be heard and

would resist - - -

HIS HONOUR: Well, there is a further attempt anticipated.

MR NOLAN:  Yes, and we would resist the application very

strenuously, indeed.

HIS HONOUR: Well, at the moment there is no document before

the Court by way of appeal or by way of application

for leave to appeal and I have indicated to

Mr Kaufman that must be his first step. Now, I am

the one really who is presently seized of the matter and I suppose I am the one in the best

position, given the urgency, to deal with any

further application of a stay.

Perhaps the answer to the question is obvious,

but I take it that the Commission has not given any

indication of preparedness to defer the corning into

operation of the award by reason of the events that

have taken place in the last couple of days.

MR NOLAN:  No, I think the Commission's view was - and I

want not present at the hearing, but I think the

Commission's view was that while ever it was not

stayed it intended to do what it said it would do

in its decision.

HIS HONOUR:  I think the best thing we can do is this: my

decisions have been given. If Mr Kaufman files a

notice of appeal, an application for leave to

appeal, I will hear from him at l o'clock. Now, he

will presumably give you a copy of the document -

it will not tell you very much because you have not

got reasons for judgment at this stage - and I

think you had better be prepared to deal with the

opposition to the stay at l o'clock.

MR NOLAN:	We will be here with bells on, Your Honour.
HIS HONOUR:	Is there anybody else involved in this?
MR KAUFMAN:	I think the Theatre Managers' Association, a

separate organization, is also a respondent.	I
will have them notified, Your Honour.

MR NOLAN:  And I will see to it that they are notified too,

if I can get hold of their secretary. They are a

rather smaller organization. They will have

relatively few people affected. It is my client

Hoyts(4) 81 30/4/93

organization that has the substantial interest in

terms of numbers covered by the award.

HIS HONOUR:  All right. We probably cannot take it any

further at the moment. But, Mr Kaufman and

Mr Nolan, you might explore with each other the

possibility of a short-term stay to enable the

matter to be argued more fully, but that is

really a matter for the parties. So, I am not

really adjourning anything at the moment, I am

simply indicating that I will be available at 1
o'clock if you want to present an application for a

stay.

MR KAUFMAN:  Yes, I am indebted to Your Honour. That will

be done.

MR NOLAN:	May it please Your Honour.
HIS HONOUR:	The Court will adjourn.

AT 9.25 AM THE MATTER WAS ADJOURNED

UNTIL LATER THE SAME DAY

UPON RESUMING AT 1.17 PM:

HIS HONOUR:  I want to check what it is, in terms of

numbered matters, that we are dealing with.

Mr Kaufman, are they the same numbered matters that

were called on this morning or have they been given

fresh numbers?

MR KAUFMAN:  Your Honour, I have not filed them yet; they

just were given to me about 30 seconds ago.	I seek
leave to file them in the Court, if I may.

HIS HONOUR:  Yes, very well. In that event, just for the

record, we are still dealing with the three matters

in respect of which I announced a result this
morning, namely M37 of 1993, M39 of 1993 and CS of

1993. Again, I had better take appearances.

MR L. KAUFMAN:  I appear for the applicants or appellants in

all matters, Your Honour.	(instructed by Mark G.
Caldwell)

MR J.W. NOLAN:  Your Honour, I appear for both of those

organizations that are described as the third

respondents now, namely the Media - - -

Hoyts(4) 82 30/4/93

HIS HONOUR:  You need to be a bit careful about it. They

might vary from document to document. At any rate,

it is the Media and Arts Alliance and the Theatre

Managers' Association.

MR NOLAN:  Yes. Can I indicate to Your Honour that I got

the documents that Mr Kaufman proposes to file in
Court only a couple of minutes before 1 o'clock
and, indeed, copies of two of the three
applications that were made before you on Wednesday

only about five minutes ago, so I will have

something to say about that in due course, and, I

should indicate, no other material.

HIS HONOUR:	Yes, Mr Kaufman.
MR KAUFMAN:	Thank you, Your Honour.
HIS HONOUR:	What is it that you are seeking to do at this

point?

MR KAUFMAN:  I would seek to file applications for leave,

although I just notice one is headed "Application

for Special Leave", and they should be headed

"Applications for Leave", Your Honour, in respect

of each of the applications for orders nisi. I

also seek to file a notice of appeal in each of the

matters. They are done in the alternative,

Your Honour. Perhaps to try to keep matters in

order, if I could first be permitted to file the

notice of appeal and the application for leave,

which is headed application for special leave, in

matter M37 of 1993.

HIS HONOUR:  Very well. Just check each time that Mr Nolan

has a copy of those documents, if he has not

already got them.

MR KAUFMAN:  Yes, I handed him a copy just a moment before

Your Honour came on the bench.

HIS HONOUR:  You are perhaps a bit ambitious in spelling out

grounds of appeal when you have not seen the

reasons, but - - -

MR KAUFMAN:  We understand that, Your Honour, but thought it

desirable to at least put some - - -

HIS HONOUR:  I can see that, yes. What about the other two

matters?

MR KAUFMAN:  May I file in Court, Your Honour, a notice of

appeal and an application for leave, which is again

erroneously headed application for special leave,

in matter M39 of 1993.

HIS HONOUR:  Yes.

Hoyts(4) 83 30/4/93

MR KAUFMAN:  And again, Mr Nolan does have a copy of that,

Your Honour. Finally, may I be permitted to file

in Court a notice of appeal and an application for

leave, which is again erroneously headed an

application for special leave, in matter CS of

1993.

HIS HONOUR:  Yes, thank you. These are not numbered but I

will try to keep them in the order in which you

handed them up to me as they reflect the order in

which the matters were called on and dealt with.

MR KAUFMAN:  Your Honour, there are some supporting

affidavits which have just been sworn, if I may

file those as well. The affidavit in matters M39

and M37 is identical and if I can file an affidavit

of Paul John Johnson, sworn today, in each of those

matters. Again, Mr Nolan does have a copy of that.

And if I may file an affidavit, again of Paul John

Johnson which, apart from referring to different

applicants, is in identical terms in matter CS of

1993.

HIS HONOUR: All right, thank you.

MR KAUFMAN:  My instructing solicitor is to swear an

affidavit; he has not had an opportunity to do so.

HIS HONOUR:	To what effect?
MR KAUFMAN:	In support of the application for leave,

Your Honour, as required by the rules, and I would

seek to swear that unsworn and - - -

HIS HONOUR:  I will take that on the undertaking that an

affidavit in that form will be sworn and filed

during the day.

MR KAUFMAN:  Yes, it will, Your Honour, and I give that

undertaking. Again, Your Honour, this is in

matters M37 and M39, if I can hand that up first,
Your Honour.	And an identical affidavit with

additional applicants in matter CS of 1993.

HIS HONOUR:  Thank you. Is that the extent of the paper

work?

MR KAUFMAN:	Yes, I am happy to say, Your Honour.
HIS HONOUR:	Now, the only point at issue at the moment is

whether there should be a stay of the award

proceedings, if that is the right way of referring

to them, given the filing of a notice of appeal and

application for leave to appeal.

MR KAUFMAN:  Yes, Your Honour, and I do make that

application.

Hoyts(4) 84 30/4/93

HIS HONOUR:	What is the basis of my authority, Mr Kaufman?
MR KAUFMAN:	It is the inherent jurisdiction of the Court,

Your Honour.

HIS HONOUR:  Do you say that because there is nothing in the

rules?

MR KAUFMAN:  Yes, Your Honour. I am sorry, Your Honour,

Order 70 rule 8 is applicable which provides, in

subrule (1) that:

Unless the Court or a Justice otherwise

orders, an appeal shall not operate as a stay

of proceedings.

HIS HONOUR:	Yes.
MR KAUFMAN:	Could I hand up to Your Honour a copy of the

v Cheshire County Council. judgment of Justice Megarry in Erinford Properties

HIS HONOUR:  Presumably Order 70 rule 8 operates on the

basis that what is involved is an appeal. If there

is an application for leave to appeal, must you

then fall back on the inherent jurisdiction of the

Court?

MR KAUFMAN:  Yes, it would appear so, Your Honour, and

Burgundy Royale and the cases that refer to that

are authority for that, Marks' case and Griffin's

case and so on, Your Honour. In Erinford an

injunction was refused and an application for a

stay pending appeal was sought which, in effect,

was tantamount to asking the trial judge to grant

the injunction that he had refused to grant. If I

could take Your Honour to page 267 of that

judgment - I have a copy for my learned friend

which I can hand to him - at line C His Lordship

said:

I turn to the other way that Mr. Finlay

put his case, that of inconsistency: and as I

indicated to him during the argument, that,

rather than jurisdiction, seemed to me to be
his real case. Having held that it would be

wrong to grant the plaintiffs an injunction,

how can a judge, consistently with his

judgment, hold that it is right to grant them

a similar though more limited injunction?

And then going down to line F, Your Honour:

The argument seemed in the end to come to the

alleged inconsistency between granting,

pending appeal, the selfsame relief that has

been refused at the trial or on motion.

Hoyts(4) 85 30/4/93

Then, towards the bottom of the page:

On the other hand, where the application is
for an injunction pending an appeal, the

question is whether the judgment that has been

given is one upon which the successful party

ought to be free to act despite the pendency

of an appeal. One of the important factors in

making such a decision, of course, is the
possibility that the judgment may be reversed
or varied. Judges must decide cases even if
they are hesitant in their conclusions; and at
the other extreme a judge may be very clear in

his conclusions and yet on appeal be held to

be wrong. No human being is infallible, and

for none are there more public and

authoritative explanations of their errors

than for judges. A judge who feels no doubt

in dismissing a claim to an interlocutory

injunction may, perfectly consistently with

his decision, recognize that his decision

might be reversed, and that the comparative

effects of granting or refusing an injunction

pending an appeal are such that it would be

right to preserve the status quo pending the

appeal.

HIS HONOUR:  I do not think you need worry about that aspect of the matter. We have moved from the dismissal of

the application to the situation which is now

pending before the Court, notices of appeal or

applications for leave to appeal, the real question

is what is there about these matters that warrants

an injunction - a stay at this stage, and what is

the duration of any stay that can fairly be

justified?

MR KAUFMAN:  Yes, Your Honour. The circumstances that

warrant the granting of a stay are really those

that were indicated by Mr Merkel on Wednesday,

being that the award is to take effect from
tomorrow.	Once the award takes effect, it is

arguable that section 150 of the Industrial

Relations Act 1988 will preclude an application

being made to this Court to quash that award.

HIS HONOUR:  I thought the sequence of events was that

although the decision of 1 April expressed the

award to come into operation on 1 May, it may be

that section 150 only operates on the award as it

formally issues. What has happened since the

hearing on Wednesday? Have the parties been before

the Commission to settle the terms of the award?

MR KAUFMAN:  I am instructed that that is so, Your Honour;

that it was put to Deputy President Polites that he

ought delay the operative date of the award pending

Hoyts(4) 86 30/4/93

the proceedings before Your Honour last Wednesday,

and the Deputy President declined that. The

settling exercise, as I am instructed, is complete

and the Deputy President has indicated that he is

likely, as I understand it, to sign the award on

Monday. I was told after Your Honour rose this

morning that the Deputy President has under

consideration whether its operative effect should

be 1 May or the first pay period commencing after

1 May. But, Your Honour, the Deputy President has

not indicated that the award will not operate as

from 1 May, being tomorrow.

So it would appear that, as best we can

ascertain, there is a very real risk that the award

will be signed, or the order making the award will

be signed on Monday, operative from 1 May. It is

apprehended, Your Honour, that if that occurs,

having regard to section 150 of the Act and the
judgment of this Court in O'Toole's case, that the

order will not be capable of challenge in this

Court. It follows, Your Honour, that unless a stay

of the making of the award is granted, neither our

appeal nor an order nisi if granted on appeal, will

have any force. Both the appeal and an application

for the orders would be nugatory and it is in those

circumstances, Your Honour, that it is said that
the matter is of great urgency and if I can just

deal with the balance of convenience that is also

one of the matters to be taken into account, it is

submitted that the balance of convenience greatly

favours the granting of a stay - be it for whatever

period, short or long, is another matter,

Your Honour - for this reason: if a stay is not

granted and we are right about the award coming into operation and not being able to be quashed, the rights of the applicants/appellants will be

irrevocably lost. If a stay is granted and we are

wrong and the award does come into operation, it

will by its own force require that employees of my

clients who are entitled to the benefits of the

award will, as a matter of law, be entitled to

those benefits and any difference between the
amount that they were paid and the amount that they

are required to be paid will, as a matter of law,

be their entitlement.

And further, Your Honour, as I indicated this

morning, I am instructed to undertake to the Court

that such payments will, in any event, be made and

that records will be kept - - -

HIS HONOUR:  You mean once the matter has been determined;

you do not mean pending the hearing of an appeal or

application for leave to appeal.

MR KAUFMAN:  Yes, and pending - - -

Hoyts(4) 87 30/4/93

HIS HONOUR:  I am sorry, perhaps I did not make myself

clear. Are you saying, Mr Kaufman, you are

instructed to undertake that once the result is

known, if an appeal or application for leave to

appeal is unsuccessful, the award payments will be

made, whether or not by force of law they are

required to be made, but my question went a little

further. I was not clear whether you were saying

that pending the hearing of the appeal or

application for leave to appeal, your clients would

make payments in accordance with the award.

MR KAUFMAN:  No, Your Honour. They would not make payments

in accordance with the award - - -

HIS HONOUR:	That is what I wanted to be clear about.
MR KAUFMAN:	They would not make payments in accordance with

the award; they undertake to keep records to enable

back payments of the difference between what

payments are made and what payments the award

requires to be paid, Your Honour. That is the

undertaking that I am authorized to give.	I will
just confirm that. Yes, that is confirmed,
Your Honour.

HIS HONOUR:	Very well.
MR KAUFMAN:	And we also give the undertaking that any

appeal or application for leave to appeal will be

prosecuted as expeditiously as possible.

HIS HONOUR:  Yes, thank you, Mr Kaufman. Mr Nolan.

MR NOLAN:  Thank you, Your Honour. Unfortunately, as I

foreshadowed earlier, we have not had the benefit

of being privy to the grounds upon which the

employees in this case have sought to move the
Court in their application last Wednesday. Mention

was made of an application being made to you when

the matter was before Deputy President Polites by

senior counsel for the company but there was no

elaboration of the grounds or reasons upon which

the application was being made.

HIS HONOUR:  The applications can, of course, and ordinarily

are made ex parte. It is only the stay aspect that

I raised with counsel during the course of

argument, indicating that I was not minded to grant

a stay without some notification to your clients.

MR NOLAN: Absolutely, and indeed - - -

HIS HONOUR:  But now we are here, the applications have been

refused; there are appeals and applications for

leave to appeal on foot; what is being put to me is

that if I do not make some sort of stay order then

Hoyts(4) 88 30/4/93

the appeals will be virtually useless because the

award will come into force, section 150 of the

Industrial Relations Act purports to give awards an

immunity on the basis of the decision of this Court

in O'Toole v Charles David, which you may not have

read -

MR NOLAN:	I am aware of the case but I was only aware of the fact that that was raised a minute ago.
HIS HONOUR:	I am not suggesting that that provides a clear

answer to the particular situation we have here,

but on the one hand it indicates, I think, that, as

one would expect, the section cannot take the

jurisdiction of the Industrial Commission beyond

the limits of constitutionality, but there are

other areas where it is open to argument that the

award can no longer be attacked once it is made.

So what I would be interested to hear from you is,

in the light of those problems facing those for

whom Mr Kaufman acts, in the light of what has been

said, namely that there will be no prejudice to

employees of your clients, is there any good reason

why I should not grant some limited stay at this

stage?

MR NOLAN:  There are a number of very good reasons, but

there is one perhaps compelling reason against it,

and that is the one that Your Honour really raised

this morning in Your Honour's discussions with

Mr Kaufman which I heard when I came in rather late

in the piece, and that is that the decision of the

Full Bench of the Commission, of course, was handed

down on 1 April, fully a month ago, and the

question of the propriety of the Commission's
decision and the orders that would flow form it was

known to the applicants back on 1 April. Now,

nothing at all has been put to Your Honour to show

to Your Honour that there was some special reason

why the delay that has resulted in this application

being now heard at the eleventh hour is somehow

either justified or excused.

As I apprehend the situation, there is

certainly nothing, no evidence at all that would
explain that delay. And certainly if the argument

that is being put is directed to questions of

alleged denial of natural justice and some

difference with Commissioner Fogarty about his

refusal to disqualify himself, they are matters

that were plainly known on 1 April because the

decisions were directly relevant to - a decision
directly relevant to the application to

Commissioner Fogarty to disqualify himself was handed down with the major decision that decided

the award matter.

Hoyts(4) 89 30/4/93

HIS HONOUR:  I think the only explanation that has been

offered - and I say nothing about its

persuasiveness or otherwise - was that which you

may have heard Mr Kaufman express this morning when

I put the question to him, namely that, as I

understand it, it was the position of individual

employees vis-a-vis the proposed award that somehow

became a live issue in the few days before the

application was brought on.

MR NOLAN:  Yes. Well, of course, even if that were to have

some credibility, that assertion, it would be

irrelevant in the legal sense because those

employees, of course, were not heard before the

Commission in either the application to

Commissioner Fogarty that he ought to disqualify

himself or to the Full Bench in the Full Bench's

determination of the award. The fact of the matter

is no employee sought leave or sought to be heard

as an individual before the Full Bench on the

substantive award hearings.

Now, the Union finds itself in a position

where these proceedings have now gone on for some

four years, and Your Honour will have, I hope, had

the decision of the Full Bench of the Commission

before you on Wednesday -

HIS HONOUR:	You mean the decision of 1 April?
MR NOLAN:	Yes.
HIS HONOUR: Yes, I have.	It is among the papers and I have

read it.

MR NOLAN:  Your Honour will be aware of the fact that the

Commission made the point that the award

proceedings went for some, I think, four years,

occupied 5000 pages of transcript, and one might

ask rhetorically whether there was any stone that

was left unturned in those proceedings and, in the

light of the manifest thoroughness of the

Commission in determining the question, one can

really question any allegation about a denial of

natural justice or some failure to find a dispute

in a particular way. It is not said, as I

understand it, that the Commission could not make

the award on the basis of the dispute findings that

had been made antecedent to making the award;

rather the objection seems to have been made that

there was some other wider dispute that the

Commission should have paid regard to before it
went on to make any award at all. Well, of course,
that particular argument has been before this

Court - or an aspect of it, at least - and I think we await a decision of the Court on that. But that

issue, in my submission, is wholly irrelevant to

Hoyts(4) 90 30/4/93

the legal question of whether or not the Commission
could make the award, relying as it did on the

antecedent dispute findings it had already made and

about which there is really common ground in making

the award decision on 1 April.

So, looked at - I mean this is not a case

where some important right is being irrevocably

threatened, you know, a building being knocked down

or some dreadful result being visited that is in a

sense undoable. For the reasons that the

Commission itself has the power, of course, quite

apart from any decision of this Court to quash or

set aside an award that is made, the Commission

itself has power to entertain applications to

revoke or vary awards or orders that it makes. So

if one postulated, for example, the situation where

an employee did come forward and complain that

there was some dreadful unintended consequence of

the award having been made, there would be nothing

at all stopping that employee or Hoyts or, indeed,

the Union from making an application to vary the

award in a particular way.

So, to the extent that there was some

Draconian consequence - and I do not·concede for a moment that such a consequence is the result of the

award decision - it is well within the jurisdiction

of the Commission to entertain an application about

that and make a variation accordingly, having

regard to all the facts and circumstances presented

to it. So these awards are not set in

concrete - - -

HIS HONOUR:  I appreciate that. I think the argument rather

is that if I am wrong in the decision I have made,

and on appeal the Court were to take a different

view of some one or more of the arguments that were

put to me, it would then be, so far as the Court

was concerned, it really would be an exercise in

futility because the Court could - effectively

while it could declare what the position was, the

award has been made and short of some variation or

revocation of the award by the Commission, really

the Court's hands are tied. I think that is the

way that it has been put. Perhaps I could just ask

you: from the point of view of your clients, given

what has been said by Mr Kaufman, part of which

does not require any action on the part of his

clients, namely that if the appeal fails then the

award obviously operates by its own force anyhow,

that does not require any gesture on the part of

his clients - - -

MR NOLAN:  Except to make a virtue of necessity.

Hoyts(4) 91 30/4/93

HIS HONOUR: That is right. But he says, well, we undertake

to keep records so that any employee will not be

out of pocket and we will prosecute the appeal and

application expeditiously. Now, against that

background and bearing in mind what I have said

about tying the hands of the Court, is there any

way in which your clients would stand to suffer if

a stay were made for a week or more or, I suppose,

taking from your point of view the most gloomy

picture, until the hearing of the appeal or

application for leave to appeal.

MR NOLAN:  They stand to suffer, we would submit, in a very

real and tangible way in that this dispute has
really assumed the dimensions of a long drawn out

battle between the unions on the one hand and their

members and Hoyts and its associated companies on

the other. It does not require much imagination to

understand what that means in the field, as it

were, and Hoyts at every turn, so far as my clients

are concerned, have put everything in the way of an

award being achieved and that process has taken the

course that I have described to you earlier.	My
clients would therefore see this or see some
consent to the stay of the award as being yet

another milestone in that long and very regrettable

history of opposition between the parties.

HIS HONOUR:  Yes, I can understand that and therefore, I

think, if a stay is to be granted, that it can only

be on the basis that without a stay any rights of appeal that the companies may have are likely, or

possibly could be thwarted by the absence of a

stay. I think it really comes down to that quite

narrow proposition.

MR NOLAN:  I agree with that, and it is a proposition of

which we had no notice at all and it could have

been something conveyed to me by Mr Kaufman at

10.30 this morning.	The first time I heard it was
when it was put to Your Honour in this afternoon's
hearing.	We would have serious doubts about that
as a proposition that carries any water at all.	As
I say, I am familiar with the Court's decision in
O'Toole v Charles David, but I could have read it
this morning, but I was not aware at all of this
point and so I am at that disadvantage.

HIS HONOUR:	I appreciate that.
MR NOLAN:	I would say this, however, that obviously that

has been put to Your Honour on the ex parte

application and in Your Honour's decision,

Your Honour has not found that to be persuasive.

Now, I hear what - - -

Hoyts(4) 92 30/4/93

HIS HONOUR:  It does not arise on my decision because I have

simply refused the applications.

MR NOLAN:	Yes, I appreciate that, but I would have thought one of the grounds for the application was that if
you do not stay the order in the ex parte
proceedings, we are back in the same position.
HIS HONOUR:	It was canvassed in the applications; indeed, I

think I may have raised it in discussion with

counsel. I am sorry; go on.

MR NOLAN:  The whole proposition, in fact, seems to have

been distilled down to that one point. We would,

without the benefit of reading the decision,

perhaps relying on memory, say that that is not a
proposition that should, by itself, inject a new

consideration into the present application. We

would doubt very seriously that the decision of

this Court in O'Toole v Charles David could be drawn so far as to cover the situations or the complaints that appear to be raised in the papers

that I have seen. I hasten to add that, as I

indicated earlier, I have seen only the
applications made to you in matters Nos M37 and

M39, and only a minute or so before you came on the

bench. The complaints appear to us to go to the

very heart of the Commission's jurisdiction to make

awards at all, namely they raise issues of the

statutory obligation which the Commission had to

take certain steps, relying on the Commission's

power to make findings in relation to industrial

disputes and we would have thought, in those

circumstances, the privative clause could not act

to confer an immunity on awards made of that

kind - - -

HIS HONOUR:  You want to be careful about making that sort

of concession.	You might want to argue to the
contrary at a later stage.

MR NOLAN:  We are always in that difficulty, I fear, in

circumstances like this. All I am saying is that I do not understand the decision of O'Toole v Charles

David to go so far as to involve the proposition in

the full way that it has been advanced by the

applicants. But, as I say, the applicants have got

the right, if there was anything in it - and we

frankly doubt that - to go back to the Commission

and ask for a variation, revocation or some other

departure from the award if, indeed, on the merits,

such was justified. Now what, in effect, is being

sought by this application is an attempt to have

this Court second-guess material and proceedings
that have extended over many years before the

expert tribunal specially placed to - - -

Hoyts(4) 93 30/4/93

HIS HONOUR:  That is something that is really relevant to

the appeal. But could I just explore this with you

for a moment, Mr Nolan. The award, absent a stay,

will operate it is said from - - -

MR NOLAN:  Tomorrow, perhaps.

HIS HONOUR:  Tomorrow or Monday. If a stay were granted

for, let us say, 14 days for a moment, the matter

proceeded to a hearing and the appeal failed or the

application for leave failed, I think if I

understand Mr Kaufman rightly, and he will have to

confirm this, the employer companies say they would

observe the terms of the award as if it had come

into operation on Monday.

MR NOLAN: Well, only retrospectively, as I understand him,

because he said they would not pay the award from

Monday unless they were obliged to do so.

HIS HONOUR:  No, I think what he was saying - or my question

was directed at making payments during the	time
between now and the hearing of the appeal.	I was
not looking at the obligation to make those

payments long term. But if that undertaking were

given - in other words, what I am concerned about

is that if a stay were granted the employees should

not lose the benefit of the award if the appeal

were ultimately unsuccessful, for any period of

time at all beyond that when the award would

otherwise have come into operation. If there is a

clear undertaking to that effect, do you stand to

lose anything, apart from what I appreciate is the

inconvenience of having an award in suspense until

the appeal is heard.

MR NOLAN:  I think we stand to lose - I mean I do not think

what you have described is wrong in terms of the

inconvenience you describe, but we would say that

that is a substantial inconvenience, given the

protracted nature of the award hearings before the

Commission and the fact that the Union has waited

many many months, if not a couple of years, for

this result. Having regard to that very special

context, and I would have thought the abject

failure of the applicants to demonstrate even an

arguable case that there is some error going to

jurisdiction in the manner in which the Commission

has conducted itself, that the balance of

convenience would overwhelmingly favour the Union

respondents and the employees who are to be given

the benefit of the award.

This is not a matter where the Commission has

made some peremptory decision that has some
manifest and embarrassing error that can be

revealed relatively easily, this is a matter where

Hoyts(4) 94 30/4/93

the Commission has given long and painful
consideration to an award application, the members

of the Unions have waited a long long time, the

Unions have expended a lot of money on their award

application. I would have thought, frankly, in

terms of the balance of convenience and when one

weighs that against the paucity of what is advanced

now to challenge what has been deci9ed by the

Commission, the balance of convenience really is

all one way. So we have that concern, and of

course that concern is compounded by the fact that

we really, so far as we have notice of the issues,

they are the notice that we got in the course of

the hearing.

HIS HONOUR:  Thank you. Mr Kaufman, as I suggested to

Mr Nolan, really the matter comes down to a narrow

compass as far as I am concerned. I would not be

minded to grant a stay, except on the basis that

your clients might stand to lose rights which they

would otherwise have if the stay is not granted.

Could I just take up with you the matter I

canvassed with Mr Nolan a moment ago. When you

spoke of an undertaking in relation to the award,

are you saying that if a stay is granted and the
appeals or applications for leave to appeal are

unsuccessful that your client will pay in

accordance with the award as from - - -

MR KAUFMAN:	Its date of coming into operation.
HIS HONOUR:	That is the problem.  What do you mean by that?

Do you mean as from next Monday?

MR KAUFMAN:  Yes, Your Honour. If the appeals are

unsuccessful - - -

HIS HONOUR:  But the award will not come into operation on

Monday if I grant a stay.

MR KAUFMAN:  No, I understand that, Your Honour, but to put aside legal technicality, Your Honour, the

undertaking is that if the appeals are
unsuccessful, payment will be made as from next

Monday. I am instructed, Your Honour, that that is

right, unless the decision of the Deputy President,

just to throw in another complicating factor, is

that it was to operate from the first pay period

commencing after Monday.

HIS HONOUR:  The Deputy President will not make that

determination if I stay his hand at this stage.

MR KAUFMAN: That is so, Your Honour. If I can just be

excused for the moment, I will just get that

instruction.

Hoyts(4) 95 30/4/93

HIS HONOUR:  If there is to be an undertaking, for it to be

of any use it will have to be as from Monday.

MR KAUFMAN:	Yes, I am so instructed, Your Honour.
HIS HONOUR:	It is an undertaking that if the appeals or

applications for leave to appeal are unsuccessful,

your clients will pay in accordance with the award

as from Monday, 3 May 1993. What if one or other

of the appeals was successful on some ground - and

I do not have anything particular in mind - in

other words, that your clients did not obtain

quashing of the award but maybe some other form of

relief, what happens then?

MR KAUFMAN:  That would probably be a matter best left to

address with the appeal bench, the Full Court,

Your Honour, because depending on the result,

further applications would have to be made

accordingly and it may well be that if an order

nisi were granted, depending in relation to which

matter - yes, if the appeal was successful,

Your Honour's order would be quashed and an order

nisi would be granted in one of the matters,

depending in which matter, it would depend what, if

any, further stay was sought.

HIS HONOUR:	Something does come to mind. Say, for instance, an appeal Court held that
Commissioner Fogarty should have disqualified
himself.  Now, that decision would not abort the
proceedings to date, as I understand the Industrial
Relations Act.  The President would be empowered,
would he not, to replace the Commissioner with
another member who would then take up the
proceedings as far as they have gone and continue
with them as far as it necessary. What effect
would that have on the award?
MR KAUFMAN:	Yes, it may well be that there was nothing left

for that new member to do in that particular

situation. That is the first thing that comes to

mind, Your Honour.

HIS HONOUR:  There would still have to be an award made.

MR KAUFMAN: There would have to be an award made. That can

be done, and would be done, by

Deputy President Polites, as I understand it,

signing the award.

HIS HONOUR:  Could he say in three weeks time or four weeks

time, sign the award operative as from 3 May?

MR KAUFMAN:	Yes, he could, Your Honour.
HIS HONOUR:	That is clear, is it?

Hoyts(4) 96 30/4/93

MR KAUFMAN:  It is clear that the award can be operative

from any date subsequent to the finding of dispute

or the allegation of a dispute.

HIS HONOUR:  Thank you. Mr Nolan, do you want to say

anything about those particular matters I have just raised with Mr Kaufman?

MR NOLAN:  Could I say this: as far as the undertaking is

concerned, that is all very well as far as it goes,

but of course if the award comes into force, my

client has substantial rights conferred upon it to

allow it to have access to employees for the

purposes of canvassing union membership and also to

check time and wages records to see that those time

and wages records are being kept in a proper form.

Also it needs to be said that the award confers a

specific right on the employees to sue to recover

award entitlements and so on, so the undertakings that have been offered we would still be critical

of because they go some way towards addressing what

would otherwise be the case if the award was made,

but important rights that will crystallize upon the

making of the award, so far as the union's rights

of access and inspection and so on, of course are

not covered by that undertaking.

Can I say as well if Your Honour is minded to

grant a stay, and we would repeat our vigour and
opposition to any stay being granted, we would
nevertheless say that the stay ought to be granted
for the minimum possible time, consistent with the
matter going before a Full Bench of the Court to

hear the appeal from Your Honour's refusal of the

stay. So we would hope that if Your Honour was

minded to do that, there would be some very

confined period during which the stay would operate to see that things got cracking. We would not want

a situation where the matter just went off into the

lists and - - -

HIS HONOUR:	No, it is not my intention, if I grant a stay, to grant one open ended; in other words, I would
grant it for a limited time on the basis that the
companies would have to renew their application to
the Court against a background in which you would
have had access to my reasons for judgment in the
other matters and that, I think, is probably the
way it should be handled.
MR NOLAN:	We would say a very limited time, and that this

issue that I raise about the Union's rights that

would otherwise crystallize in the making of the

award really cannot be overlooked because the Union

has got the right, if the award is made, to go in

and inspect time and wages records and see to it

that the award conditions are being complied with

Hoyts(4) 30/4/93

properly and also, I would add, have some access to employees for the purposes of interviewing them and

canvassing the question of union membership and so

on.

Now, I have not seen the details of the

document but I would imagine those issues are

canvassed within the form of order proposed.

HIS HONOUR:  Yes, thank you, Mr Nolan. Did you want to say

something, Mr Kaufman?

MR KAUFMAN:  Your Honour, only in relation to that last

matter about right of entry. That right arises

under section 286 of the Act. Your Honour may be

familiar with the fact that there is in existence

an interim award binding upon the two subsidiary

companies and an award which is the 1983 award

binding upon Hoyts. The Union has that right of

entry pursuant to section 286, having regard to

those awards. So, it does not lose that right if a

stay is granted, Your Honour.

MR NOLAN:  Your Honour, I do not want to prolong this, but I

would have thought - well, I have not got that

interim award with me - only in relation to

matters, the subject of the interim award. There

is the difference.

HIS HONOUR:  Yes, thank you, gentlemen. There is a body of

authority which I do not have before me at the

moment, given the urgency of this application,

which points to the general reluctance of the Court

to order a stay of proceedings in matters of this

sort. To some extent, in so far as there is an

appeal, the prospective appellants rely upon the

High Court Rules, to the extent that they seek

leave to appeal, they rely upon the inherent

jurisdiction of the Court.

There is only one consideration that prompts

me to consider the granting of a stay and that is

capacity of the prospective appellants to mount the

the argument that absent a stay, once the award

comes into operation, section 150 of the Industrial

case which they wish to mount on appeal or on

application for leave to appeal. Now, whether in

fact they will be so limited is a matter that has

not been explored and, from Mr Nolan's point of

view, naturally enough because he has only been

brought into this matter at short notice. But it

is a consideration which I cannot completely

overlook and it is the only consideration that

prompts me to grant a stay.

Hoyts(4) 98 30/4/93

The stay that I propose to grant will be a

limited one. It will be limited to 14 days and it

is, in part, aimed at allowing my reasons for

judgment on the earlier applications to be

published and for the Unions to consider the
material that was filed in support of those

applications and to consider their position in

relation to the respective appeals or applications

for leave to appeal. I am prepared to grant that

limited stay only by reason of the consideration

that I have just referred to and in the light of an

undertaking given on behalf of the Hoyts group of
companies that they will, if the appeals are

unsuccessful, meet their obligations under the

award as if it had come into operation on Monday,

3 May.

Mr Kaufman, what is the stay that you seek?

MR KAUFMAN:	It is a stay, Your Honour, that the Commission be stayed from further proceeding in the matters,
the C Nos of which appear in the decision. I can read those to you.
HIS HONOUR:	You had better.
MR KAUFMAN:	In matter C Nos 32728, 33189, 33341 and 60381

of 1988;, 30084, 20037, 20364, 3017 and 35776 of

1989, and 31302 of 1992 and, in particular, from

making an award in relation to those C No matters.

That is the form of the stay, Your Honour, that is

sought.

HIS HONOUR:  I am prepared to grant a stay for 14 days in

those terms. I will not incorporate the

undertaking in the order for a stay but that, of

course, appears on the transcript. The order would

be for a stay until Friday, 14 May or until further

order.

Now, let me be quite clear about that. That does not mean that the stay runs on after 14 May.

It comes to an end on 14 May unless it has been

renewed by the Court.

MR KAUFMAN:  Yes. Would Your Honour grant liberty to apply

to make that - - -

HIS HONOUR:	I grant the parties liberty to apply, and that will work in both directions. In other words, if
the Unions wish to seek a revocation or variation of the stay before 14 May, for reasons that may
seem to them to warrant that action, then they can also apply under the liberty to apply provision.

Hoyts(4) 99 30/4/93

MR KAUFMAN:  Your Honour, just for the sake of completeness,

would Your Honour specify a time on 14 May, so that

there is absolute clarity as to that?

HIS HONOUR:	Twelve noon.
MR KAUFMAN:	Thank you, Your Honour.
HIS HONOUR:	Now, I think what should be done, because I

will be leaving Sydney this evening, is that the

form of injunction, which I have not spelt out with

particularity, should be reduced to writing. You

and Mr Nolan should look at it, only, of course,

with a view to satisfying yourselves that it is in

conformity with the views that I have expressed

here, and if that could perhaps be shown to me when

the Court rises this afternoon, and if there is any

problem, well, I will hear from you both later in

the day, but it would only be a question of whether

the terms of the proposed injunction are in

conformity with the views that I have expressed

this afternoon.

MR NOLAN:	Your Honour, one matter, and that is, as I said to Your Honour, we have still to receive any of the
material that was filed before Your Honour in M37,
M39 and C No 5.  We would want to have access to
that material as soon as possible.
HIS HONOUR:	I assume that that will be made available

forthwith or as soon as it can be copied,

Mr Kaufman.

MR KAUFMAN:	Yes, Your Honour.
HIS HONOUR:	And my reasons for judgment in those three

matters will be available during the coming week.

We will adjourn.

MR KAUFMAN:	Yes, thank you, Your Honour.
AT 2.10 PM THE MATTER WAS ADJOURNED SINE DIE

Hoyts(4) 100 30/4/93