Re Media Entertainment and Arts Alliance & Anor; Ex Parte Arnel

[1993] HCATrans 125

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IN THE HIGH COURT OF AUSTRALIA	•
Office of the Registry

Melbourne	No MS0 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 -

DEAN ANTHONY ARNEL and ORS

Prosecutors

Hoyts(7) 1 20/5/93

TOOHEY J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 20 MAY 1993, AT 12.21 PM

Copyright in the High Court of Australia

HIS HONOUR:  If I might hold on to that copy affidavit that

Mr Nolan gave me, because it does exhibit the

decision that is to be dealt with now.

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

friend, MS D.M. LINNANE, for the applicants for the order nisi, who are the individual employees on the

list I have handed up to Your Honour, not the

employer companies. (instructed by Mark G.

Caldwell) (instructed by Sciacca & Associates)

HIS HONOUR:  In the ordinary course, this would be an ex

parte application, but there is a stay sought.

MR MERKEL: Well, Your Honour, I do not really need to seek

the stay. It seems, in view of Your Honour's
decision that there is a stay already -

HIS HONOUR: Well, that is a matter for you, but if you are not pressing a stay then I can treat it - I am not

sure that I should treat it as an ex parte

application even so, bearing in mind the

involvement of the Union in this matter, but could

I just, again with a view to trying to refine the

matters, make this comment to you, Mr Merkel. It

seems to me that there are three things that I can

do with this application. I can, of course, grant

it, that is grant an order nisi, in which case I

imagine that this would then be listed along with

the appeals.

MR MERKEL:  I am not sure about that, Your Honour, because

the appeals would be - it may be that the Full

Court dealing with the appeals may take it upon themselves to deal with and dispose of the matter

on a final basis one way or the other and if that

were the case this would be listed at the same

time, but if the Full Court were merely to take the

course of dealing with them as appeals strictly

so-called, the result would not be the final

hearing.	We would be very much in the hands of the
Full Court as to that. But may I say this,

Your Honour: if Your Honour granted it, we would

reserve the possibility for it to come on in case
the Full Court decided to dispose of the whole

matter because, in effect, there will not be a

great deal of argument on the appeal that would not

be put on the final hearing.

HIS HONOUR:  Well, that is right. Your appeal would seek to

demonstrate that my decision refusing the orders

nisi was wrong and, without trying to second-guess

what the Full Court might do, that clearly must

take you into arguments of substance.

MR MERKEL:  Yes, Your Honour.

Hoyts(7) 2 20/5/93

HIS HONOUR:  And it may be that in the end the whole matter

will be dealt with at that time.

MR MERKEL: That is so, Your Honour, that is a possibility.

And if that were the case, then this matter would

come on and would have to be considered at the same

time.

HIS HONOUR: Right.

MR MERKEL:  But if the matter were dealt with only as an

appeal strictly so-called, then this matter would

not come on unless Your Honour refused the order,

in which case this would be in the same position as

Your Honour's other orders.

HIS HONOUR:	Assuming you appealed, you mean.
MR MERKEL:	Assuming we appealed it, Your Honour.
HIS HONOUR:	Well then, there is a third option which seems

to me might be the most satisfactory one in the

circumstances, that is, for me to exercise my

powers under Order 55 rule 2 and direct that this

application be referred to the Full Court.

MR MERKEL:  Yes, Your Honour.

HIS HONOUR: That leaves everybody's options open, and once

the Full Court is seized of the other matters, then

it seems appropriate, assuming it goes into the

substance of the matters, that the Court deals with
the application because it is almost inextricably

caught up with the matters that are the subject of

the appeal.

MR MERKEL:  Yes, Your Honour. In fact, it seemed to me that

that is the best course so that that whole question

is entirely left open because all of the

material - - -

HIS HONOUR: Well, if that is something that you do not wish	to argue against and are not seeking a stay by	reason of the stays that already exist, I will
certainly look to Mr Nolan, but it seems to me that
Mr Nolan really does not have an interest at this
stage.

MR MERKEL: That is so, Your Honour. Can I indicate, and

that is what we were hoping to do over the

adjournment, but if Your Honour was disposed to

grant leave under order 55, then the matter would

become much easier. But may I say this: there were

going to be three different bases of seeking the

order nisi, but we would be content with the leave

under order 55 in view of Your Honour's intimation.

Hoyts(7) 3 20/5/93

HIS HONOUR:  It is not so much leave as a direction, is it

not?

MR MERKEL:  Yes, I think direct that the application be made

to a Full Court.

HIS HONOUR:  Does not the rule contemplate that the single

Justice directs that the application be brought

before the Full Court?

MR MERKEL:  Yes, Your Honour is correct. There are, in

effect, three points that arise. The first is that

in the hearing before the Commission the employees,

before the making of the final award, sought to be

made parties to the application for the new dispute

finding, which was the first matter before

Your Honour. Although Your Honour's reasons may,

in fact, cover that, they may not necessarily cover

it. But we would seek to raise that for the

employees concerned and that is an added reason why

it would be preferable for that to be the subject

of a direction rather than trouble Your Honour with

it.

The second is the additional applicants before

Your Honour today would seek to raise the same

ground as in the third matter which Your Honour did
not grant leave for, so that if there are any
idiosyncrasies attaching to any of the particular
applicants, the issue will come before the Court on

behalf of employees who are not subject to some

discretionary challenge of the kind that was made

to Mr Arnel, for example. But that certainly would

not raise a new issue, but again it would be

appropriate for that to be the subject of

direction.

HIS HONOUR: Sorry, do you mean an independent direction, or

it would be simply caught up in the direction that

the application come on before the Full Court?

MR MERKEL:

Yes, Your Honour, but I think in the order

Your Honour would make, the application would have

to be fairly carefully defined, which is what we

will seek to now do. It is just that this

application before Your Honour raises the one

matter out of the three aspects which is totally

new and not considered by Your Honour before, which

again would be the subject of the direction, and

that is that the employees appeared before the

Commission to be heard on the merits of the

proposed award. The Commission in its decision

declined to hear them on that aspect. It was not just limited to the section lll(l)(g) aspect, but

rather than try and - - -

HIS HONOUR:  But is that not caught up in ground 2?

Hoyts(7) 4 20/5/93

MR MERKEL:  Yes, it is, that is grounds 1 and 2,

Your Honour, but it is the earlier two aspects that

flow from the matters Your Honour has already disposed of that I wanted to embrace in these

employees' application, the subject of the

direction. That is why we need to redraft the

grounds.

HIS HONOUR:  Would you be at any disadvantage if the

application in its present form was directed to be

referred to the Full Court?

MR MERKEL:	No, Your Honour.
HIS HONOUR:	I am not trying to discourage you from

reformulating your order, but it is a bit hard to

see how you would be at any disadvantage and, if

you were, how that would not be capable of being

cured on the spot.

MR MERKEL:  No, Your Honour, we are content with the

direction as the way of resolving the matter. What

I would seek to do, Your Honour, is possibly over

the luncheon adjournment have typed out the form of
order that would be embraced by the direction, so

that there is no doubt as to what Your Honour was

directing.

HIS HONOUR:	I see, yes.
MR MERKEL:	I think at the moment it is a bit confused and

the grounds are a little confused because the

employees' case is not the same as the others,

Your Honour.

HIS HONOUR:  But with that qualification, you are content

with a reference to the Full Court?

MR MERKEL:  Yes, Your Honour, and for the reasons we have

indicated, there is no point in seeking any stay

order on that direction.

HIS HONOUR:  Thank you, Mr Merkel. Mr Nolan, you really do

not have anything to say at the moment, do you?

MR J.W. NOLAN:  I think we have become a spectator,

Your Honour - a very interested one, though.

HIS HONOUR:  It is clear that all that is to be done is that

there is to be a direction in accordance with

Order 55 rule 2, so the matter will come on, as it were, afresh to the Full Court and no ancillary

relief sought at this stage.

MR NOLAN:  Yes.

Hoyts(6)	5	20/5/93
HIS HONOUR:	Very well.	You would like a bit of time, would

you, Mr Merkel?

MR MERKEL:	Yes, Your Honour.
HIS HONOUR:	I can adjourn till 2 o'clock or after that,

subject to catching a plane later in the day.

MR MERKEL:  No, Your Honour, I think we should be able to

have the documents in order by 2 o'clock. Can we

liaise with Your Honour's associate if there is a

problem.

HIS HONOUR:  I will adjourn, say, to 2.15 which would be a

conventional time and if there is any problem, you

can keep in touch with my associate.

AT 12.32 PM THE MATTER WAS ADJOURNED

UNTIL LATER THE SAME DAY

UPON RESUMING AT 2.19 PM:

HIS HONOUR:	Thank you, Mr Merkel.
MR MERKEL:	Your Honour, the other matter, if we handed up

to Your Honour a copy of the proposed order on the

matter arising this morning.

HIS HONOUR:  Up until the middle of page 2 is the document

the same as it was before? When I say as it was

before, I mean the draft order nisi. It may not

matter, Mr Merkel.

MR MERKEL:  I think, Your Honour, it may have changed by

adding the words:

or from making an Award in the said matters -

were added. That is on the third last line of that

main paragraph on page 2.

HIS HONOUR:	Yes, I see that.
MR MERKEL:	I think what would have been added, Your Honour,

are paragraphs (i) and (iii) at the bottom of

page 2 would have been different from the order

nisi.

HIS HONOUR:  It is entirely different, is it not?

Hoyts(7) 6 20/5/93

MR MERKEL:  What it does, Your Honour, is it brings in the

added two matters that I mentioned to Your Honour

this morning, the dispute finding and the

lll(l)(g)(iii) matter, and adds the grounds, so

that what - - -

HIS HONOUR:  So really from about part-way down page 2 until

the middle of page 3 is all new. Is that right?

MR MERKEL: Except I think, Your Honour, subparagraph (ii)

would, in effect, be the same as what was in the

middle of page 2 of the order nisi.

HIS HONOUR:  Yes, I can see that. Let me just look at it

please, Mr Merkel. Did Mr Nolan have any views on

this document, or was it not shown to him?

MR MERKEL:  He has not seen this in the present form,

Your Honour, but my understanding was that the idea

that this would come on together with the other

matters in the sittings in Brisbane and be dealt with, in effect, consistently with those matters

was one that I think he regarded as the appropriate

way for the matter to proceed.

HIS HONOUR:  Now, this document, and by that I mean the

proposed application, omits any reference to a

stay, does it?

MR MERKEL:	Yes, Your Honour.
HIS HONOUR:	I suppose there is an overlap, Mr Merkel, is

there, with the matters that are raised by the

appeals and applications for leave to appeal?

MR MERKEL:  Yes, Your Honour. There would be a complete

overlap on the section lll(l)(g)(iii) - that is the

third matter that came before Your Honour. On the

section 101, there would be a substantial but not

necessarily a complete overlap if the employees

were seen to have a different right to the

employers.	The middle matter, Your Honour, about
whether they are entitled to be heard on the merits

of the award is not a matter that was covered by

Your Honour's orders.

Subject to that, what we would anticipate is

that if it was found that Your Honour's conclusion
that there was no arguable case on the section 101

or the section lll(l)(g)(iii) point was correct,

then the direction in respect of those matters in

this motion would follow the same course subject only to whether there was any difference arising

because the employees were the applicant as against

the employer. What I wish to make clear,

Your Honour, by this motion is that we are not

Hoyts(7) 20/5/93

seeking to, in effect, overcome what Your Honour

has decided.

HIS HONOUR:  That is what was going through my mind.

Perhaps I was unduly suspicious.

MR MERKEL:  No. We are conscious, Your Honour, that the

purpose of this was, in effect, to ensure that the

matter was able to be disposed of consistently at

the one time, and we would accept that subject only
to that question of whether the employees stood in

a different position to the employers on those

matters - and that would not happen with lll(l)(g)

because there were two employers making that

application - or something arose as a result of the

decision yesterday which was additional to that

which was considered by Your Honour, paragraphs 1

and 3 would follow the same fate as the appeals.

But were it otherwise, Your Honour, then - - -

HIS HONOUR:  What about paragraph 4?

MR MERKEL: Sorry, I was thinking of the issues raised by

paragraphs 1 and 3 of page 2, Your Honour.

HIS HONOUR:	What about the grounds?
MR MERKEL:	Can I take Your Honour to paragraph 2, pages 3

and 4.	I think I can say this in respect of all
the grounds.	The grounds that arise under

section lll(l)(g)(iii) subject to yesterday's order

would stand or fall with the appeals. The grounds

relying on section 101 would stand or fall with the

appeals subject only to the two issues, the

employees being in a different position, and

yesterday's decision raising any new issue, which
are not matters Your Honour considered, but

otherwise they would fall with the appeals.

HIS HONOUR:  Those are matters that really will have to be

resolved in due course by the Full Court when the

other matters come before it or unless, by reason of any order made by the Full Court, this application is dealt with at some separate time.

MR MERKEL:  Yes. I suppose the one thing that comes to my

mind, Your Honour, as a possibility that could

complicate it is that if for some reason the Full

Court refused to grant leave on a discretionary

ground that meant the matters were not considered

as matters of substance, then Your Honour's order

in these matters would leave open the question as

to whether the Full Court was then required to

consider those 101 and 111 grounds as a matter of

substance. That is a possibility, Your Honour.

Hoyts(7) 20/5/93

HIS HONOUR: Well, except that the direction is that the

applicants apply by notice of motion.

MR MERKEL:	Yes.
HIS HONOUR:	The Court could simply refuse to entertain the

application in the light of any decision that it

had made on the appeals or applications for leave

to appeal.

MR MERKEL:	Yes, Your Honour.
HIS HONOUR:	It is a bit hard to foreshadow all the possible

eventualities, Mr Merkel, but because it is a

direction that these matters go to the Full Court,

I am content that there be an order in the terms of

your draft.

MR MERKEL:  Thank you, Your Honour.

HIS HONOUR: There will be an order accordingly.

AT 2.29 PM THE MATTER WAS ADJOURNED SINE DIE

Hoyts(7) 20/5/93