Re Media, Entertainment and Arts Alliance; Ex parte The Hoyts Corporation Pty Ltd; Ex Parte The Hoyts Corporation Pty Ltd

[1992] HCATrans 321

..

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• -, .. ~JA

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne	No M27 of 1992
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

MEDIA, ENTERTAINMENT AND

ARTS ALLIANCE

Second Respondent

Ex parte -

THE HOYTS CORPORATION PTY

LIMITED

Prosecutor

Hoyts(2) 103 4/11/92

Office of the Registry

Melbourne	No M43 of 1992
In the matter of -

An application for a Writ of

Certiorari and a Writ of

Mandamus against THE

HONOURABLE DEPUTY PRESIDENT

MICHAEL FRANCIS MOORE, THE

HONOURABLE DEPUTY PRESIDENT

COLIN GEORGE POLITES and
COMMISSIONER JAMES WILLIAM

LESLIE SIMMONDS, Members of

the AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

First Respondents

THE HONOURABLE JUSTICE BARRY
JOHN MADDERN, PRESIDENT OF
THE AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

Second Respondent

MEDIA, ENTERTAINMENT AND

ARTS ALLIANCE

Third Respondent

Ex parte -

THE HOYTS CORPORATION PTY.

LIMITED, DELARENE PTY. LTD.

and RAMPTON PTY. LTD.

Prosecutors

MASON CJ

BRENNAN J
DEANE J

DAWSON J

TOOHEY J

GAUDRON J
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 4 NOVEMBER 1992, AT 10.01 AM

Copyright in the High Court of Australia

Hoyts(2) 104 4/11/92

MASON CJ: Yes, Mr Merkel.

MR MERKEL:  If the Court pleases. Can I just briefly go

back to one matter that was not made clear

yesterday and that is that the genesis of the two

disputes, one at Hoyts and one at Village GU, was

the different way in which each sought to pursue

their industrial relations after the Canberra

agreement was not continued in 1988 by Hoyts.

The steps taken by Hoyts in the Commission

after disputation were ultimately the variation

application to the 1983 award. If I can just ask

Your Honours to note, that was exhibit MGC6 in the

proceedings in relation to clause 31, and that was

made on 7 February 1989.

The approach taken by Village GU and the union

was the log of claims by the union on 19 February

1991 which is at page 145 of the application book.

That sought to replace the 1983 award in its

entirety. At page 189, at lines 15 to 20, it is

made clear by the union that that is what they

wished and, indeed, in clause 5 of the award, at

page 48, it was the replacement of the 1983 award.

The underlying fight or struggle between the

three competing groups, that is Hoyts Village GU

and the union, was that the Canberra agreement and

the award sought was contrary to the wage

principles and Hoyts were seeking to maintain those

principles in its employment, Village GU and the

union taking a different course in their dispute.

Can I just then give Your Honours some

references. In the union and the Village GU

proceedings concerning the award, there are a

number of passages which identified how that

dispute was closely related to the situation at

Hoyts and arose out of Hoyts not renewing the
Canberra agreement.	The pages in the application

book where that was clear, are at pages 177, 178,

183, 193, 201 and 202; and can I just ask

Your Honours to note particularly at page 221, at

lines 3 to 8, the union made it clear - and if I

can just take Your Honours briefly to that

reference. Towards the end of the proceeding for

the by consent award under section 112, Ms Gooley,

for the union, said to the Commissioner, line 3:

Commissioner, the parties before you today believe that the registering of this award is

in the public interest. It reflects a major

restructuring of the conditions that

previously governed this industry -

that was the Canberra agreement -

Hoyts(2) 105 4/11/92

and it assures that the regulation of the

cinema industry returns, as is appropriate, to

this commission.

The proceedings then in relation to the section 113

application by Hoyts were based upon the grounds

set out in the application, and whilst it is true

that the formulation of the dispute was not set out

in those grounds and was not as I had indicated it

in our outline of submission, the underlying

factual basis for that finding was contained in the

application and in the lead up to it that I have

taken Your Honours to.

Again, in the proceedings on the section 113

application, all the Commission was dealing with

was a preliminary application by the Commission

that the applicant was incompetent under

section 113 to make the application to set aside

the award. Again, if I can just give Your Honours

the references to the transcript which linked the

situation at Hoyts with Village GU, at page 281

lines 3 to 13; page 284 line 20; page 289

lines 15 to 20; page 300 lines 20 to 40, and

page 301 lines 1 to 10 - it was clear in the

submissions of all parties that the two matters

were closely linked, and the question of the

definition of the dispute did not arise because, of

course, it would only arise if there was an

application on foot under section 113 which

required the findings of dispute under section 101.

The other matter that was raised yesterday by Your Honour Justice Gaudron was, was the issue of

the dispute ever raised in the Commission, in
effect, prior to we have raised it recently. It

was raised by us in the Commission, that is Hoyts,

in respect of proceedings for certification of

employee agreements late in October. But, could I

give Your Honours a reference from two pages of

transcript on 20 May 1992, and could I hand up
copies of those pages.	They are pages 340-341 of

the clause 31 application book wherein proceedings

and at pages 340 and 341 submissions were put by

in the arbitration between the union and Hoyts.

the union and Hoyts which closely linked the two

disputes.

We say that before the Commission both matters

have always been closely linked in all proceedings.

What has not occurred until recently is the formulation of the dispute and the dispute that

Hoyts would seek to have the Commission find. That

the application under section 113 was limited to

the preliminary point on standing is very clear

Hoyts(2) 106 4/11/92

from page 311 and the finding of the Commission at

page 317.

In that background we have identified in our

outline the two separate bases on which we say we

are entitled to be heard under section 101. The

three cases that could be said to stand in our

paths I would seek to briefly address Your Honours

on. They are, firstly, Reg v Portus; Ex parte

Australian Air Pilots' Association, 90 CLR 320. I take Your Honours to these cases in the context of saying that we are entitled to mandamus unless it

would be futile, because there is no industrial

dispute capable of being found and we cannot be

said to be an alleged disputant for the purpose of

section 101.

The first basis on which it could be put

against us that that is the case is the decision in

Portus to the effect that an employer cannot serve

a log on another employer but could, in respect of

industry conditions, serve a log only on the union.

There was, as I said yesterday, a strong dissent by

Justices Webb and Kitto. To the extent that this

question needs to be directly decided in the

present case, we would submit that the law has

changed and we would apply either for this Court to

reconsider Portus or to overrule it if it were
necessary, but we say in view of the changes to the
law and what has occurred since Portus,

reconsideration is open to the Court.

Could I go just briefly to the judgment of the

Chief Justice Sir Owen Dixon. His Honour poses the

critical question at page 327 at point 7 where His

Honour says after referring to Metal Trades:

But what industrial interest has one trader or

entrepreneur in the wages or conditions which

a rival trader or entrepreneur pays or affords differing standards. For reasons we would	Now, His Honour then gives two examples of to his employees?	endeavour to summarize in the written submissions
we handed up late yesterday, we have sought to
suggest that that, with respect, is not the correct question; the correction arises not as a result of the relationship between two employers, but the
relationship between two employers with their
respective employees, in seeking to prevent
industrial disputation over wages and conditions
from one employer's establishment, flowing over to
that of another.

And we say, in that context, given the wide

definition in section 4 and the constitutional

Hoyts(2) 107 4/11/92

ambit under section Sl(xxxv), the narrow view which

His Honour took, and we say a very legal view of an

industrial dispute, is one that this Court ought

not to apply, particularly in the context of

inevitability of flow on and that kind of

situation. So that His Honour took an extremely

narrow view, but then held in any event that it was

open to the employer to create a dispute with the

union which led to the anomaly that that could only

be with the union and its members, not those who

would be employees.

By contrast, we would say that Their Honours

Justices Webb and Kitto took a wider approach which

is more consonant with the way in which this Court

has approached it more recently, and took a very

strong view, particularly if one looks at 331, at

the top of the page Justice Webb said:

I can see no reason why an employer,

whatever may be his motive or purpose in so

doing, cannot validly make demands on other

employers in the same industry, at all events

if they have the legal power to concede

demands of the kind and the demands actually

made are in respect of industrial matters -

His Honour then goes on to define why those matters are industrial. Justice Fullagar agreed with the

Chief Justice, and Justice Kitto at page 333

identified why at point 2:

a three-cornered dispute exists in the

airline-operating industry -

The disputants were the employers and the employee

organization. His Honour then said in the middle

of the page:

The substantial question in the case is

whether such a dispute, brought about, as I

have said, by the non-acceptance of a demand

made by one employer in an industry upon a

union of employees in that industry and other

employers therein, can be an industrial

dispute -

His Honour then, we say, gives compelling reasons

at pages 334 to 335 why that should be so. We say

that those reasons represent the industrial reality

and are very consistent with the popular conception
of what would be an industrial dispute in these

circumstances.

We say that two matters not adverted to by

Their Honours were the width of the power to prevent disputes to which a flow-on situation is

Hoyts(2) 108 4/11/92

particularly applicable and we say Their Honours
were dealing with a narrower definition of

industrial dispute than that that we find in the

present Act. So that we say that it should not be

held as a matter of law to not be open to the

Commission to find a dispute between different

employers and the union in respect of industry

regulation of terms and conditions of employees of

those disputants.

The second case I need to go to is Reg v Moore

ex parte State of Victoria, 140 CLR 92. We say

that Moore's case does not arise for consideration

directly in the present case. What had occurred is

that the private employers were picked off by the

union for the Metal Industry award and then they

moved, after having established the benchmark in

that award, to vary the Metal Trades award as a

flow on and it was a situation where the court

accepted that once the private sector had given

way, it was inevitable that the public sector would

likewise give way under the Metal Trades award.

The public sector employers sought to

intervene in the application in the·private sector

to vary the Metal Industries award, and the

question arose as to whether they were able to be

parties as opposed to mere interveners, and the
court held that they were not parties to the
particular application or the narrow formulation of

the dispute as then defined, namely the variation

to the Metal Industry award.

The reason why we say this decision does not

arise in the present case is because, as with

Isaac's case, it relates to the right to intervene in the proceedings for variation of an existing

award. It says nothing about what may occur as a

result of the variation and a dispute that arises

after the variation. So we say that it really

whether a party can seek to be made a party to a	relates to a narrow and procedural point, namely	dispute for the purpose of variation of an award,
and what was held in Moore, and this is
particularly clear at page 104, after
Mr Justice Gibbs, as he then was, referred to the
problem that arises at point 2, to say:

To say this is not to imply any criticism

of the actions -

of the Commission, that is, where the Commission

has allowed these disputes, to be fragmented.

His Honour then at point 5 said:

the Commission has power to hear both disputes

together.

Hoyts(2) 109 4/11/92

What the Commission had found and what the Court

accepted is that there were two disputes. One was

the wider one involving the Metal Trades award.

The other was a narrow one involving the metal

industry.

What the Court said is that it is a procedural

matter for the Commission as to how they go about
it, but that may be a question for another day,

whether, in fact, fragmentation of two parts of one

dispute is possible as a matter of law, and in

reality there was always only one dispute on the

basis on which we had ultimately put our case. The

important matter there is that in so far as there

was a wider dispute, and in so far as it was able

to be found that the metal industry sector were

parties to the wider dispute, in resolution of that

wider dispute the Commission could receive an

application to set aside the variation.

So we say that Moore's case really relates to

the narrower question of whether in the present

case Hoyts could have intervened in the application

between Village GU and the union for an award under

section 112. Of course, they were not served with

notice of it, nor with the log of claims. So on the narrow formulation of the paper dispute they

were not parties. We say that does not deal with

the question that arises after variation and an

application under section 112.

Finally, Reg v Isaac; Ex parte SECV,

(1940) 140 CLR 615, we say again relates to a

different and a much narrower question. There, the

parties were all original disputants to the

original finding of dispute, and then when the

union, in effect, picked off certain employers for

variations the electricity commission sought to

intervene in those proceedings as a party, not just

as an intervener to be heard, saying it was a
disputant and was entitled to be heard.	The Court

took the view that it was not a party to the

proceedings for variation and therefore had no have as an intervener. It was very clear, for
right to be heard as a party to those proceedings.

example, that the Court was taking a very legal

approach to the role of the Commission. At

page 621 point 2, His Honour Mr Justice Gibbs said:

Since, for the reasons I have given, the fact

that SECV is a party to the original dispute

does not make it a party to the application

for variation, and any variation made will not
affect it in any legal sense, it has no right

to be heard on such application.

Hoyts(2) 110 4/11/92

We say that, with respect to His Honour, to define

the right to be heard in an application for the

prevention and settlement of an industrial dispute

to parties who will only have a legal interest is,
in effect, to move the analysis from the
justiciable rights of action arena to the
industrial arena which we say is, in fact, what has

occurred in Moore's case and Isaac's case.

But again, even though Their Honours

commented - Mr Justice Gibbs particularly - in

Isaac how unsatisfactory that situation was, we say

that, likewise, does not touch the issue in the

present case because the present case involves an

application where Hoyts is a party to a proceeding

in the Commission and the question for this Court,

we would submit, is whether it has a right to be

heard in respect of its application to which it is

a party and we say the only disqualification that

could occur is if it is incompetent.

We say that Isaac's case does not really deal with that in both respects: one is the SEC sought

no relief and did not have a proceeding; and two is

that section 113 arises after the event of the

making of the award, it has nothing to do with

rights to intervene or be parties in the

proceedings that led to the making of the award.

So that we say that on the first main ground

on which we say that the mandamus should go, we

have not been heard as to whether we are an alleged

disputant and we have been prevented on the basis

of incompetence as an applicant and we say that

that is not a ground properly open to the

Commission to exclude us.

The second ground on which our mandamus was

sought was set out in our outline, namely that no narrow view should be taken of who may be parties

under section 113. Indeed, section 101 requires

the Commission to determine whether it is an

alleged or has an alleged disputant before it.

That precludes a narrow view elsewhere in the Act because section 113 has its own scheme and I should

indicate to Your Honours that another source of

power to set aside an award is section lll(l)(f)

which provides that:

Subject to this Act, the Commission may .....

(f) set aside, revoke or vary an award -

and that takes you to section 113. So we say there

is no reason to import section 33 in any limiting

way and we say, in any event, we are within

section 33(b).

Hoyts(2) 111 4/11/92

BRENNAN J: 

Does your argument lead to this, that to make an

award as between the parties bound by the award
which you seek to have revoked was a denial of

natural justice to you?

MR MERKEL: 

Your Honour, we do not go that far, because we

cannot say we were denied natural justice if we

were not notified of the dispute and the Commission

was not notified of any dispute other than that
which it saw on the paper log, but it would be a

denial of natural justice in substance if we were

not given recourse to the Commission which has its

wide powers and discretions to in effect set the

wrong right, if it be a wrong as far as our

interests are concerned.

BRENNAN J: But your argument basically, as I understand it,

is that there is a dispute to which there is a

number of parties. One of them is your client. If

this award stands, it affects the industrial

interests of your client, and here is an award

which was made, as it were, behind your back in

settlement of the dispute and in derogation of your

industrial rights.

MR MERKEL:  Yes, Your Honour.

BRENNAN J: It seems to have great implications for the way

in which industrial disputes can be settled in

part.

MR MERKEL:  Your Honour, can I answer that in two ways.

Firstly, we say that the question raised by us has

the clock starting in a relevant sense upon or

after the making of the Village GU award.

BRENNAN J:  It must, because you had your award made without reference to Village and GU, did you not?

MR MERKEL:  No, Your Honour. In fact, Village GU have

been - I am not sure whether they are parties or	interveners. In fact, they sought to be parties
and they were given leave, but there was no
question about whether they were parties or interveners, but in our proceedings they have been
there since 1989. We contrast that to the shutting
out that has occurred in respect of their proceedings, because it all occurred without us
knowing.

We do not have to put it as high as saying we

were denied natural justice or had a right to be

heard in respect of a log we were not notified of

and which the Commission could not find us parties

to but, upon the making of that award, a new

situation was created. As set out in our

application and in our submissions, the basis upon

Hoyts(2) 112 4/11/92

our application founds itself upon and after the

making of the award in the situation that gives

rise to.

We would say it is a denial of natural justice

for us to be shut out but, more importantly, it is

a denial and a frustration of the underlying policy

of the Industrial Relations Act, as it prevents the

real dispute being ever settled and it maintains

the permanence of fragmentation. Having left Isaac

and Moore's case, it cannot be right that

Their Honours can have come to that result with

reluctance and stating it to be unsatisfactory when

you have a statute with as much discretion and with

as much ambit as one could wish to enable the

Commission to prevent and settle industrial

disputes. So we say that the legal conception is

not appropriate, and that is a conception pursued

in those cases.

The last question that I need to address is

the question as to whether, if we are right in our

submissions thus far, we should be excluded from

prerogative relief by way of mandamus which we

seek. Can I hand up to Your Honours a case that

was not on our list of authorities, it was the The

King v Commonwealth Court of Conciliation and

Arbitration; Ex parte Ozone Theatres (Aust.) Ltd,

(1949) 78 CLR 398. We say that this case is on all

fours and the principles, in our submission, should

govern the resolution of the present case.

The case concerned an application to alter the basic wage which was a jurisdiction, in effect,

which was the forerunner of section 106. Only the

court as it then was could exercise the power, not

a single commissioner. And because the alteration

sought varying rates based upon geographic

locations in or within States, and for other

reasons, the court said it had no jurisdiction to

deal with the matter and it was then said that by

way of discretion, a single commissioner could have

dealt with it, and the court was confronted with a

submission that: do not grant mandamus, these

matters should be left to the commission, and they

are not without resort to the commission.

Their Honours discussed the relevant sections

at page 397 which was section 25 and Their Honours

at point 8 at 397, after referring to the nature of

the application to alter the basic wage, made the

point in the joint judgment at point 8:

The description by the applicant of the

application in these terms does not determine the question whether the application is truly

so described.

Hoyts(2) 113 4/11/92

So, at the outset, Their Honours looked at the

matter as one of substance, not, in effect, in the

way defined or formulated by the parties, and the

real question was whether there was a statutory

duty to hear the matter and that was stated at the

top of page 398, line 5. Their Honours said:

The substantial question is whether such

alterations would be alterations of the basic

wage -

We say that is the identical formulation we would say in the present case, the substantial question

is whether we are entitled to have our application

under section 113 dealt with pursuant to

section 101.

GAUDRON J:  But have you not got an easy remedy in your own

hands? Even on that score, why do you not apply to have the dispute finding varied to make you a party

to it and then move under section 113?

MR MERKEL:  Your Honour, we have done just that.

GAUDRON J: But you have not, have you? You·have not in

this case.

MR MERKEL:  We say that the provisions of section 113(4)

constitute our application as a notification of an

alleged dispute.

GAUDRON J: But you have never told the Commission that it

did that, did you?

MR MERKEL:	We did not in terms, Your Honour, state that.
GAUDRON J:	No.  You never put it to the Commission that

there was another dispute to which everybody was

party or that the old disputes had coalesced or

that one had enlarged.

MR MERKEL: 

Your Honour, it is correct to say that we did

not formulate, in terms of the Act, the alleged
dispute before the Commission, but we - - -

GAUDRON J: 

And did you elaborate your argument about

section 113?

MR MERKEL:  The argument on section 113 was not put in that

way, Your Honour, to the Commission, but there are two reasons for it, Your Honour; the first is that

the point was not reached because they said this is

an incompetent applicant and it was dealt with on

the principles of Moore's case and Isaac's case;

the second is that in any event the factual basis

for the application was stated in the application.

All that was lacking before the Commission was the

Hoyts(2) 114 4/11/92

legal basis on which it is said that the dispute

should be found under section 101. But we do

emphasize that we should not be shut out, in

effect, because counsel - - -

GAUDRON J: But you are not, are you? You are not because

if you go back to the Commission with a application

to vary the dispute finding or with a notification

of dispute, the door is then opened. There can be

a decision as to whether or not there is a new

dispute there; whether the dispute has enlarged in

some way and everything can be taken from there
because even on the argument you put now, that
question has to be determined by the Commission

before you can get in on to section 113 anyway.

MR MERKEL: Well, Your Honour, three things: one is that we

say that if we go back and ask for a wider dispute

to be found, then we would have to make application

under section 113 to set aside the Village GU

award.	So we would be, in effect, going back to
where we are now, Your Honour.	We say that we have
to - - -

GAUDRON J: Without waiting for a judgment of this Court and

without having taken all the time involved in the

argument and - - -

MR MERKEL:  Your Honour, with respect, we would submit that

we would be here because we would believe,

Your Honour, that the view taken by the Commission, based upon Air Pilots, Moore and Isaac, we would

say that it is not open to us as a matter of law to

seek to set aside the Village GU award and we would
say that it would almost certainly have us return

here.

GAUDRON J: It may on the basis that - but you, of course,

have not served a demand in the way that was done

in Portus. What you have said is that something

has evolved.

MR MERKEL:  And we say that is evolved in the McNeil case

sense that I took Your Honours to yesterday, but we

say, Your Honour, that Ozone's case is authority

for two propositions, one is that we say that that

kind of discretion is not one that ought to be

exercised in mandamus proceedings, the

disqualifying conduct for a mandamus, which is

breach of a public duty, if that be what has

occurred, goes to some form of misconduct,

something more than an argument that could have

been formulated in a different and a better

way - - -

GAUDRON J: Well, that may be so, but I must say I find it

somewhat alarming that the first step in a case

Hoyts(2) 115 4/11/92

such as this is to approach this Court, and the

last step is to tell the Commission what your case

is. I mean, you may be right, but it is a most

peculiar development.

MR MERKEL:  Your Honour, we would say that we have told the

Commission what our case is. It was put on a

narrower formulation in the proceedings. But this

is not a case where we come to this Court with

facts that were not before the Commission. The

factual basis on which we put our argument was

before the Commission. The Commission is almost

bound by Air Pilots to find against us on the

widening of the dispute. But the real point is

that our relief that we seek is under section 113.

What we are saying, Your Honour, is that we are not

putting ourselves in the situation of a potential

circle because if this court grants the relief, if

we are entitled to mandamus, and the question is,

as a matter of discretion, should it be refused, we

say the very that Your Honour has put to us will be

the subject of a dispute proceeding, a dispute
finding proceeding under section 101.

To remove us from this Court because we did

not put an argument in a legal formulation that it
could have or should have been put in on the

incompetence application, to go back and do it all

again for the purpose of getting to a section 101

dispute finding, is precisely what we say the

mandamus should be designed to avoid because we say

the dispute is formulated and it has evolved as

Your Honour puts it - - -

GAUDRON J: But it is your case that it has involved. It is

up to the Commission to determine that.	It is not
up to this Court to determine it.	We do not know
all the facts.

MR MERKEL:  Your Honour, that is precisely correct and we

say that is precisely the function the Commission

would have under section 101. But Ozone's case, we
would submit, is authority for a narrower

discretion in mandamus proceedings than that which

Your Honour would suggest that should flow from the

absence of a legal formulation before the

Commission.

GAUDRON J: Well, I am not too sure about that, because the

basis of mandamus is refusal to exercise

jurisdiction. In one sense your argument is that

it is a constructive failure to exercise

jurisdiction but that - because your argument, in

effect, depends on your establishing that something

has happened to make a dispute - at least this part

of your answer does - so you are talking about, at

best, a constructive failure in circumstances where

Hoyts(2) 116 4/11/92

you never asserted, in terms, the basis of

jurisdiction. So it may be not so much a matter of

discretion as whether you actually bring yourself

within the notion of constructive failure.

MR MERKEL:  Your Honour, we would, with respect, say that it

went further than constructive failure because the
application was granted on the basis that there was

no capacity to bring an application and therefore

we were denied the duty owed to us by the

Commission, public duty owed by the Commission in

this area to activate section 101 and deal with the

matter under section 101.

We say that is an actual failure, and what I

wanted to say to Your Honours is that the

discretion was described in the Ozone judgment at

page 400 where Their Honours said, after referring

to well recognized grounds at point 3:

For example the writ may not be granted

if a more convenient and satisfactory remedy

exists -

and we say there is none, a remedy -

if no useful result could ensue -

and we have addressed that -

if the party has been guilty of unwarrantable

delay or if there has been bad faith on the

part of the applicant, either in the

transaction out of which the duty to be

enforced arises or towards the court to which

the application is made. The court's

discretion is judicial and if the refusal of a
definite public duty is established, the writ

issues unless circumstances appear making it

just that the remedy should be withheld.

We say that the most that can be put against us is

that a legal formulation, not a factual

formulation, ought to have been put to the

Commission. We say it is not just that the very

step that Your Honour puts to us as the alternative

which would merely take us back to a section 101

dispute finding should be denied us, particularly

when it is so likely that in the light of the Air

Pilots case and the decision we have taken

Your Honours to, the Commission has already held

there is no competence in Hoyts to seek the relief

it ultimately seeks.

So we say that in the end what is put against

us is a procedural bar and we say, given the width

of the jurisdiction of the Court and the way in

Hoyts(2) 117 4/11/92

which Ozone approached the practical application of

that jurisdiction, it would be unjust to deny us

mandamus in the present case. And indeed,

Their Honours at page 408 said that, in effect, the

request that they should be denied mandamus in that
case would, in effect, leave a gap in the

jurisdiction. We say that ultimately it is almost inevitable that this matter will come back to this

Court on whether we are capable of being parties to

a dispute.

BRENNAN J:  If that is the basis on which you are putting it

now and it has not been put to the Commission, what

do you say about the operation of section 150, the

one which protects awards from challenge?

MR MERKEL:  Your Honour, we would say that would reinforce

our situation.

BRENNAN J: But is not the proposition to be put against you

that the Commission, acting in ignorance of the

case as presently mounted, bona fide purported to

exercise their powers?

MR MERKEL:  Your Honour, we are not challenging the validity

of the award. We are challenging the right to be

heard on an application under the Act to set aside
the award.

BRENNAN J: Well, was the Commission's decision to refuse your locus standi an award within the meaning of

section 4?

MR MERKEL:	Your Honour, we would say we think not in the sense that the finding of the Commission was a
finding that we were incompetent to be an
applicant.  I will look at the decision, but I did
not think it actually required any formal order
such as that which a court would make.
BRENNAN J:
not? That is an order affecting an award.

But it would be an order within 143(1), would it

MR MERKEL:  I am sorry, what was the section, Your Honour?

BRENNAN J: Section 143(1). It may be that it is not an

order affecting an award; I do not know.

MR MERKEL:  We would say, Your Honour, that the finding was

that we did not have standing and therefore the

application was dismissed - that was at 313.	We
have two answers, Your Honour.	The first is that

we would query whether it is an award as defined but, secondly and more importantly, Your Honour,

section 150 could not and has never been treated as

being capable of denying this Court its

jurisdiction under section 75.

Hoyts(2) 118 4/11/92

BRENNAN J:	No, and the reconciliation between 150 and 75(v) has been the subject of decisions.
MR MERKEL:	Yes, Your Honour, and we would submit that if

our submissions are correct, then for the same

reason in Ozone's cases, there was an order - and I

do not think section 150 is new in the Act. If it

were an award, we say section 150 does not touch

upon the jurisdiction of the Court under section 75

which we seek to enliven in the present

application.

We would say ultimately the problem that we

have been confronted with is that there is a

substantive issue, and this is not a case where the

Commission would, in effect, be denied the

opportunity of dealing with the substantive issue

in the way the Act requires it to do. What really

is being put against us, or what may be said

against us, is go back and ask for a wider dispute

finding to be made under section 101. We would say

the Commission would immediately refer to its
decision and say that, "You have no standing as a

matter of law to set aside the Village GU award",

which is the relief that we would be seeking in a

wider dispute finding. So we say that we would

only go back to section 113, which is where we are

now.

I should emphasize that the points put against

us on the formulation of the argument before the

Commission only relate to the first ground of our application for mandamus; they do not touch upon the alternative and separate ground that we do have

standing and the Commission was wrong and has

refused to exercise its jurisdiction. We say there

could be no discretionary basis upon that ground

which was fully argued and assumes that we are not

a party to the dispute as its first starting point.

It is for those reasons, in our submission,

that it is appropriate that the prerogative relief

sought should be granted. If the Court pleases.

MASON CJ: Thank you, Mr Merkel. Yes, Mr Nolan.

MR NOLAN:  Can I say, before turning to the written outline

of submissions, that certainly it is our very

strong contention that none of this, really, in

relation to the argument that the application

should have been treated as a dispute notification

by the Commission was put to the Full Bench of the

Commission and all one needs to do is read the

decision of the Full Bench to appreciate what was

before it. I will come to that in a moment.

Hoyts(2) 119 4/11/92

In those circumstances, really, as has been observed correctly by Your Honour Justice Gaudron,

this argument has been given its first outing

before this Court. Had this argument been put

below, of course, my client would have been in a
position to consider it and meet it and call such

evidence as it saw fit and address the issues

before the Commission.

It had no opportunity to do so because it

never ever understood itself to be in a position to

meet such an argument, as none was ever advanced.

It is not an answer to that objection to say,

"Well, the matter might ultimately end up in this

Court, therefore it ought to be dealt with now.".

One only has to look at the distinctions that have

been sought to be made between what is said to be

the present interpretation of the notion of

industrial dispute and attention paid to the
prevention power that said it was not paid to those

matters for various reasons in those older cases.

That, apart from anything else, one would have

thought, is the sort of material that ought to be
before the Commission to allow it to determine the

matter in a primary way before the relief that is

sought here is sought from this Court.

In so far as the contention is made that all

the relevant facts are really before the

Commission, we contest that strongly. I think it

only needs to be appreciated that we had no

opportunity to meet a case that was not put against

us below to realize that there may have been a

range of facts that we would want to put in issue,

other facts that we would want to adduce in

evidence before the Commission, were we to meet

this case and not the other case that was put

below.

So far as some throw away lines have been

heard in the course of this argument, to the effect

that there was some flow on that was inevitable as

between the Hoyts award and the other award, there

is no evidence in the record of any of that. There

is one passage that you have been referred to

where, in the Village GU award, it is said that if there is an award ultimately made with Hoyts, then

there may be some reconsideration of some of the

terms of the GUO Village award. That is as far as
it goes. There is absolutely no evidence such as

was the evidence before the Court in Isaac's case,

and I think in Moore's case, of the inevitable flow

on by dint of a long history of a relationship

between the relevant awards as between the Metal

Industry award and the Metal Trades award on the

Hoyts(2) 120 4/11/92

one hand, and the various Electricity Authority

awards on the other.

The position has not been reached in this case

where any such evidence has been considered apart

from broad assertions to the affect that there is

some inevitability about the relationship between

the two awards. There is just no evidence of that.

Can I now turn to the written outline of

argument and I have to say it was prepared because

the case that we thought we had to meet was rather

a different one than has evolved. We point out

that the applicant contends that it has the right
to make the application, notwithstanding that it is

a non-party to a relevant industrial dispute, and

it ought to have been heard before the Commission.

Can we say this at point 1, the Industrial

Relations Commission may only relevantly perform a

function or exercise a power on its own motion, or

on the application of a party to an industrial

dispute, or a person or organization bound by the

award, and in that connection we draw attention to

section 33 and we say that this section 33 is

really the gateway through which parties pass into

the commission process, forgetting for the moment

about some other more particular sections, such as

section 118A which operates to determine

demarcation interests and so on. So far as the

general dispute settling functions of the

Commission are concerned, section 33 provides the

gateway, and we would say the only gateway and

entry point, into the Commission's processes.

Section 113, so far as it deals with variations to

awards, really is subsidiary to section 33 and

operates upon awards that have already been made

following applications envisaged under section 33,

namely applications by parties to an industrial

dispute or organizations or persons bound by an

award or indeed, by the Commission on its own

motion.

We would say that it is quite absurd to

contend that any person who is bound by any award

who may make an application to set aside someone

else's award, what the scheme of the Act has in

mind is the award-making process commencing via

section 33, and subsequent variations occurring by

application by the parties to the award that has

been made, or at least the parties to the dispute

that led to the award being made, but even there

there is a qualification apparent in the cases.

So, we say that the Industrial Relations

Commission was correct to deny the applicants

Hoyts(2) 121 4/11/92

standing to make the application they made and in

that connection reference is made to various

passages of the application books where the

Commission's judgment deals with the applications

made.

MASON CJ:  Mr Nolan, you have given us the references to the

relevant passages in the application book.	We can
read them for ourselves.

MR NOLAN:  Yes, thank you, Your Honour. So, we say, first

of all, the Commission was correct in denying

standing; that they were correct in observing that

section 33 is intended to be an exhaustive

prescription of the manner in which the functions

and powers of the Commission may be invoked. They

were correct in contending that the opening words

of section 33 "Subject to this Act", make clear

that the operation of other provisions of the Act

are unaffected by section 33, and that section 113

does not limit or modify the operation of

section 33 in relation to the setting aside of an

award. They were correct in observing that the

applicant companies do not satisfy any of the

elements of section 33 such as would give them

standing to make the application since they were
not parties to the original dispute or, it may be

observed, became parties along the way.

We say that the principles applied by this

Court on the question of standing in industrial dispute proceedings should be followed and we, at

point 2(a) in the submissions, advance that

proposition which, we say, is drawn from Moore's

case and the page references are there set out. At

2(b) we refer, and I will not go to these cases,

but we collect a number of cases from the

tribunals; the Industrial Relations Commission and

its predecessor and the New South Wales Industrial

Commission, which have approached this very matter

of the manner in which applications may be made to invoke the jurisdiction of the tribunal and we say	they have done so in a consistent manner and that
is exemplified in that range of cases that we make reference to.
We say in point (c) that there is no separate dispute created by the lodging of the application
which could impinge on the award. There was no
application to the Commission for a separate finding of dispute, nor any application for the joinder of any putative dispute with the dispute which created the award, and the references in the
application book are there made, and we make a
reference to the matter that has now dropped off, namely that the letters to the members of the
Commission, asking them to act on their own motion

Hoyts(2) 122 4/11/92

neither should have been treated as notifications

of a dispute; they were certainly not expressed as

such.

DEANE J:  Mr Nolan, what would you say about whether the

Commission would have power to vary this award in

the current proceedings between Hoyts and the

union?

MR NOLAN:  Which award are we talking about there,

Your Honour? The GUO Village award?

DEANE J: Yes.

MR NOLAN: There has been no - I am afraid I am not quite

sure that I understand the question.	You are
saying that in the Hoyts -

DEANE J:	You have section 94 which encourages uniformity.
MR NOLAN:	Yes.
DEANE J:	You have pending proceedings in which the union

and Hoyts are parties and the other parties bound
by the Greater Union award are either parties or

interveners, and you have a power of the Commission

to vary the award of its own motion.

MR NOLAN:	Yes.
DEANE J:	What I was asking you was, what would you say

about whether the Commission would have power to

vary the award in the current proceedings? In the

Hoyts' proceedings.

MR NOLAN:  I suppose it would be possible for some matter to

arise in the Hoyts' proceedings which would sway

.	the Commission that it ought to revisit the other
award, but it would do so on its own motion I would have thought.

DEANE J: Will it not be relevant in the Hoyts' proceedings

to examine standards in the industry as a whole,

and conditions in the industry as a whole and what

is allowed under the awards binding other

employers?

MR NOLAN: Certainly that would be a topic of consideration

but, of course, in relation to the Commission's

obligations, so far as they exist, to try to

endeavour to get uniformity, in my submission,
section 94 is subject to a number of
qualifications. For a start, it refers to

section 95 and section 95 in terms says there is to

be no automatic flow on in the terms of certified
agreements and the Commission's obligation to seek

uniformity is expressed so far as possible, and so

Hoyts(2) 123 4/11/92

far as the Commission considers proper for
uniformity throughout an industry in relation to
hours of work, holidays and general conditions in
the industry.

Now it has long been a principle of industrial arbitration that matters that are arrived at in an

award setting by consent between parties are not,

without very good reason, pressed on non-consenting

parties. So whilst it might be open to the union

on the one hand to say "Look, we have got this

agreement with Greater Union and Village that is

much more favourable than the one that the Hoyts

company wants", it is equally open to Hoyts to say

"There are long established principles of

industrial arbitration that say that we cannot have

pressed on us matters that were agreed by consent

between those parties to that consent award".

It is not just industry award matters that may

be brought into consideration. Other broader, more

general prescriptions may be considered. I have in

mind things like the termination change in

redundancy - - -

DEANE J:  I do not want to divert you. What is the answer:

yes or no?

MR NOLAN:  The answer is yes, but subject to all those

qualifications that I - - -

DEANE J: But you do not think it would do it.

MR NOLAN:  I beg your pardon?

DEANE J: Yes, but you do not think the Commission would

exercise the power to do it.

MR NOLAN: That is right, because of the reasons I

mentioned, namely that there are real issues about

the extent to which consent award terms ought to be

taken into consideration by the Commission in

relation to arbitral proceedings where other

parties are involved. I suppose this really does

demonstrate the vice of what is sought here,

because why should Hoyts be said to be the only

party that has that sort of general inchoate

interest in rates and conditions?

Why should they not be able to, for example, intervene in other areas where casual employment,

for example, is offered to young people in the

retail area and other areas where they are

presumably competing for labour? None of this has

been established before the Commission, although

this is advanced in this Court as though it is

something that ought to just be accepted without

Hoyts(2) 124 4/11/92

question. No case has been made out at all below,

and there is no evidence that there is any

predetermined relationship or any relationship at

all between the two awards.

DEANE J:  I was not really suggesting you should give all

the reasons why the power should not be exercised,

but what I was next going to ask you is: if the

Commission has jurisdiction in the Hoyts

proceedings or has power to vary the award of its

own notion - and obviously that is a question which

could arise in those proceedings - why can Hoyts

not ask it to exercise that power?

MR NOLAN: 

Because the power to vary the Greater Union award

would not be referable to the Hoyts proceedings.
It would be referable to the Greater Union

proceedings and could only arise where the
Commission on its own motion decided that it ought

to revisit the Greater Union award. That is why I

say it would be highly unlikely that that would
occur, because they are really separate matters and

would be seen to be separate matters, albeit that

the occasion for revisiting - - -

DEANE J: 

The answer is that you cannot ask the Commission

to do it. What, can you drop hints or have you

just got to stand mute, hoping that it will occur

to the Commission that in this industry there

should be general conditions applicable to

everyone, particularly in the context where it is

suggested there is a departure from guidelines?

MR NOLAN:  It is a matter for the Commission to administer

its guidelines and, of course, Hoyts have available
to them every argument that they can put about the

terms of their award. After all, it has been put

to you that the genesis of this dispute arose when

Hoyts decided to bail out of the industry

agreement. They went on their own way, by their

want to put their finger back in the pie so far as	own choice. Now they come back saying that they	settled relations that have been agreed to by
consent between Greater Union and the union are
concerned.

DEANE J:  I think you have answered my query. I should not

delay you further.

MR NOLAN:  Can I go on to just refer briefly to point 3 in

the outline of argument. We say here that were

they treated as potential interveners in the

substantive dispute proceedings, such rights of

intervention as they might enjoy would depend on a

threat to their rights and interests. They made

no application to that effect, either, that they

should be treated as interveners and, in any event,

Hoyts(2) 125 4/11/92

we would say - and I will not go to all those

subparagraphs - that they were not even in a

position to raise themselves to that level, namely

the level of an intervener in substantive

proceedings under section 43, let alone a party

principal to the dispute proceedings. We set out

there the various and the authorities for that

proposition.

We then go to the "own motion" proceedings.

The "own motion" issue has been dropped so I do not

need to read that part of the outline but it simply

remains for me to conclude, to say that the basic

point is that Hoyts are a stranger to any dispute
between the union and the employer parties to the

GUO Village Award and the dispute, indeed, which

led to that award being made and that mandamus

ought to be refused.

In any event, the remedy sought, so far as the

"own motion" proceedings were concerned, would be

futile because consideration was given to the

applicant's letters by the various members of the

Commission, albeit not to their satisfaction,

apparently. But we reiterate that these matters

have not been before the Commission.

MASON CJ:  I think you have mentioned that point more than

once.

MR NOLAN:  Yes, Your Honour. Those are the submissions of

the third respondent. May it please the Court.

MASON CJ: Yes, thank you, Mr Nolan. Mr Bell.

MR BELL: If the Court pleases, the outline of argument

advances three reasons in relation to the remaining

grounds why the relief ought not to be granted.

The first is that section 33 of the Act applies to

which that argument is put is set out sufficiently applications made under section 113. The basis on	in the outline and has been addressed already by my
learned friend, Mr Nolan, so I will not repeat it.

The second argument advanced is that relief

ought to be refused because the grounds upon which

the prosecutors presently rely did not advance
those grounds before the Commission. In reference

to that submission, might I rely upon one case

which is not on my list of authorities, and copies

of which I now tender to the Court. The case is

Reg v The Bristol and Exeter Railway Co, 4 QB 162.

I rely on this authority for the proposition that

it is necessary before the relief of mandamus can

be obtained for the party seeking the relief to

make a demand in terms upon the statutory body

holding the power concerned. No relief in terms

Hoyts(2) 126 4/11/92

has been made by the prosecutors in the instant

case, and therefore the principle established by

The Bristol and Exeter Railway Company case has

been breached, and release ought to be declined on

that basis.

The case is on all fours in that the relief

sought in The Bristol and Exeter Railway Company

case was mandamus in order to compel the

performances of a statutory duty binding that

company to carry out certain works. No demand was

made. An order nisi was obtained. When the matter

came on before the court, an objection was made by

the Solicitor-General on the basis that no demand

was made. That objection was met by an argument

that the Act spoke for itself and that no demand

was necessary. Lord Chief Justice Denman, at

page 862, dealt with that argument in this way at

point 4:

It is clear that this objection must

prevail. The meaning of what you said in Rex

v The Brecknock and Abergavenny Canal Company

case is that there must have been a distinct

demand of that which the party moving desires

to enforce. The rule was considered to be

such before that case was decided.

Justice Patteson agreed, and even

Justice Coleridge, as he then was, agreed.

To establish that the argument was not put, it

is necessary to refer to no more than the

transcript of the proceedings, the references for

which I give in paragraph 6 of the outline of

argument. I also rely upon the contents of the

affidavit of Christopher Lovell, which was filed in

this Court, which shows that the first time upon

which the claim was put and the manner in which it

is now ventilated was 27 October 1992 in other

proceedings, some six months after the decision was

made which is the subject of the present

proceedings.

The third argument advanced is that even if

the sufficients interest test of standing were to

apply, the prosecutors would not have an interest

that was sufficient to justify granting them

standing in an application to set aside an award.

All that I wish to say in addition to what is

in paragraph 7 of the outline in that regard, is as

follows: first I would refer the Court to the

manner in which the dispute occurred in respect of

which the award was made and without taking the

Court to the specific pages of the appeal book

where that is set out, may I refer the Court to the

Hoyts(2) 127 4/11/92

demand that was made on 19 February 1991, on the

Village and GUO employers at AB 145. That demand

is in respect of the terms and conditions of

employment relating to the employees of those

employers.

Might I next refer the Court to the dispute

notification which is dated 5 March 1991 and which

will be found at AB 158. The notification is in

the same terms and between the same parties.

Might I next refer the Court to the dispute finding that was made on that dispute notification

on 8 April 1991, at AB 175. It is a dispute

finding in respect of that log and that

notification between those parties and does not

include Hoyts.

And might I finally refer the Court to the

proceedings concerning the making of the consent

award, the final decision for which can be found at

AB 47 and ask the Court to note that the President did exercise favourably the powers that he had

under section 106, reference to which can be found

at AB 224 prior to the Commissioner making the

consent award.

Besides making those submissions, might I

correct two things which my learned friend,

Mr Merkel said. First he said that the Village GUO

employers were parties to proceedings with Hoyts

which are relevant to the proceedings before this

Court. That is not so. The material before the

Court and, in particular, the exhibit to the

affidavit of Mr Lovell which is the transcript of

the proceedings in which the intervention right was

granted, shows unequivocally that no party status

has ever been conferred on the Village GUO

employers in any proceedings - I should say any

relevant proceedings - and that the only right

conferred on the Village GUO employers in the instant proceedings is an intervention right.

Secondly, the impression may have been created

because of the way the argument has been put, that

there was some step taken by the Village GUO

employers in order to hide the fact of the consent

award proceedings from the Hoyts' employers. That

is not so. The evidence before the Commission

which is included in the application book shows

that the Hoyts' employers did know that the

proceedings were occurring, did know that agreement

had been reached, though they did not know of the

rates at which the agreement had been reached.

That evidence may be found at AB 296.

Hoyts(2) 128 4/11/92

It hardly needs to be said that proceedings of

the Commission are listed in the newspapers. If
the Court pleases.

MASON CJ:  Thank you, Mr Bell. Mr Rose.

MR ROSE:  If the Court pleases. Your Honours will have, I

assume, a copy of the outline of our submissions.

MASON CJ: Yes, we have.

MR ROSE:  Our starting point, if the Court pleases, was in

the grounds originally put forward in this Court by

the applicants, at page 4 of the application book,

and at paragraph 3 where it said that the ground

was:

An industrial dispute, as defined by

section 4(1) of the Act ..... arose as a

consequence of the making of the Theatrical

Employees (The Greater Union Organisation and

Village Roadshow) Award 1991 and/or the said

application of the Prosecutors which dispute

was notified to the Commission·by the pursuant to section 113 of the Act.

And as we have said in our outline, it seemed to us

that the mere existence of the 1991 award did not

create an industrial dispute despite the fact that

it may have affected Hoyts in various ways.	The
adverse effects were simply not sufficient to

create a dispute and we add the proposition that

the mere making of the application under

section 113 did not either alone, or combined with

the existence of the award, create a dispute.

But, in this Court the case for the prosecutor

does seem to have blossomed out somewhat and to be

taking in a lot of the background and the

developments up to the making of the application and what we say on page 2 of our outline is that

if, and we make no submissions as to whether the

circumstances do justify the conclusion, but if the

various circumstances all amount to a situation

where there was a dispute, either an actual one or

a threatened or likely or probably one, if there

was a dispute, then it was a dispute in some

elliptical sense, I would infer, about the terms

and conditions of union members' employment with

the other employers and it may be that non-union

members' entitlements are involved too, which

raises problems, of course, concerning the

Grazier's case.

Hoyts(2) 129 4/11/92

What we have said in the first dot point as

the constitutional proposition is that such a
dispute could be an industrial dispute within the

meaning of section Sl(xxxv) and, of course, of the

Industrial Relations Act. I have listed the

decision in the Social Welfare Union case as a

basis on which that argument could proceed with a

view ultimately, in full consideration of this

issue, to examining whether the dissenting

judgments of Justices Webb and Kitto in the Air

Pilots' Association case should be followed in

preference to the view taken by Chief Justice Dixon

and Justices Fullagar and Taylor.

I say such a dispute where an employer has

made claims against other employers and a union

could be a dispute in some circumstances - I would

not submit that in all circumstances it can be -

but the point I do wish to make is that it does

seem, in my respectful submission, premature for

this Court to be entering at this stage in this

particular case into those issues.

As has already been put by my friend,

Mr Nolan, the Commission had clearly put before it any of this argument as to there being a dispute,

an industrial dispute. It seemed to have been put

there before the Commission in terms of an

application under section 113, and all of this

argument, that there was in the whole situation

there an industrial dispute, does seem rather

novel.

In my respectful submission, it is a matter appropriate for the Commission to consider and

proceed in accordance with the Act to find a

dispute pursuant to a notification if one is made,

and then any constitutional issues as to whether

the Air Pilots' Association case requires or should

lead to a decision that there is no industrial

dispute can then be properly considered in the light of the circumstances as found. In terms of the proposition that it is not

appropriate for this Court to issue mandamus, there

is the classic statement in R v Blakeley and

Others. We have provided copies to be handed up.

At the bottom of page 91 going over to page 92,

there is the proposition that:

In the case of mandamus it might often affect the grant or refusal of the remedy -

that is in talking about the previous matter -

but this would be only because mandamus is

discretionary and because of the rule that a

Hoyts(2) 130 4/11/92

clear demand for the exercise of the

jurisdiction based on proper materials must be

made to the inferior tribunal before mandamus

to exercise jurisdiction will be granted.

In my submission, it is appropriate that a clear

demand be put to the Commission that it should have

an opportunity to consider these factual issues as

to the alleged dispute and if any constitutional
issue concerning the Air Pilots' case is to be

ventilated, it should be done so after those steps

have been taken.

DEANE J:  Mr Rose, can I divert you for a moment on to

perhaps a side issue, but it seems to me that there

may be something to be said for the view that if

you have an industrial dispute before the one of the parties to an industrial dispute is

neither a party nor bound arises for consideration

such as section 94, then it may be open to that

party under section 33 to ask for variation under
section 113.

On the other hand, the cases to which we have been referred clearly seem to support the

proposition that you cannot have an independent

industrial dispute about whether an award to which

the party seeking variation is not a party should

be varied. Do I make the two positions that I am

trying to distinguish between clear?

MR ROSE:  As I understand Your Honour, if the question is

whether, in this case, Hoyts could request the

Commission to move of its own motion to set aside the - - -

DEANE J:  No, that was not what I had in mind. What I had

in mind was if, for example, in the dispute to

which Hoyts and the union are undoubtedly parties,

union and Village both pressed upon the Commission	in which Village Great Union is an intervener, the
that the conditions operating in Village and
Greater Union should be taken into account in
fixing the conditions to bind Hoyts, there would be something to be said for the view that, in the
context of that dispute, section 33 would authorize
any party to that industrial dispute, providing
appropriate orders were made to add parties or to
bring in the others, to vary the award pursuant to
section 113. But what I was suggesting to you is
that is a completely different situation to a more
or less discrete application by a non-party to an award on the basis that a dispute has arisen about
whether that award should be varied.

Hoyts(2) 131 4/11/92

MR ROSE: In our submission, Your Honour, we would see

section 33 as limiting the persons who could bring

an application under section 113.

DEANE J:  Even in terms of a pending industrial dispute to

which they were a party and which was not

objectionable on the basis it was a dispute about

an award to which they were not a party should be

varied.

MR ROSE: If there is a probable dispute, et cetera, the

course open to them is to have a finding made of
either a new dispute or that the dispute has been

enlarged and then to take these proceedings under

section 113 and so on in that context. But to go

straight to the proposition that someone outside

33(b) can make an application to set aside an

award, that is a proposition which, in my

submission, the Act does not provide for.

McHUGH J: Take a case where you had a State award and a

federal union and an employer bound by a State

award obtained a consent award without the State

union being made aware. Why could not the State
union bring an application to set aside the consent

award? It has been done in the past and, indeed,

there are cases on it.

MR ROSE:	I am not aware, I am sorry, Your Honour, of those.
DEANE J:	I was not referring to 33(b)(ii), I was referring

to 33(b)(i).

MR ROSE:  Our submission is that the structure of the Act

requires that there be a finding by the Commission

as to a dispute before those powers in 113 can be

exercised because 33(b) really should be taken to

refer a party to an industrial dispute found by the

Commission, that is so far as section 113 is

concerned.

DEANE J:  I do not want to delay you longer, I just wanted

to raise this.

MR ROSE:  I might, with respect, Your Honour, just make the

comment, perhaps, that though there may be reasons

as to why the Act might appropriately be amended to

provide for these more flexible proceedings, my

submission would be that there would be

constitutional power to do that. As at present

expressed it maintains the limits that are

submitted. I think, if the Court pleases, that

concludes the submission that I wish to make on

behalf of the Attorney-General.

That leaves the question which I foreshadowed

earlier of an application for leave to make

Hoyts(2) 132 4/11/92

submissions on behalf of the Minister.	The Court
already has an outline of those.	I think the

second paragraph is a matter which in the event has

not arisen, so it really leaves the first

paragraph. I would say that if the Minister were

granted leave, our arguments in that respect would

be along the lines of those already put by Mr Bell.

MASON CJ: Yes. I do not think it is necessary in the

circumstances to grant you leave formally. We have

taken the argument aboard and you have been taken

into it by questions from the Bench anyhow.

MR ROSE: If the Court pleases.

MASON CJ: Yes, Mr Merkel?

MR MERKEL: If the Court pleases. Reliance was placed by

all of my learned friends on the absence of

evidence or a demand to exercise jurisdiction. The

application at page 229 sets out the grounds which

we have relied upon before the Commission and in

this Court and the demand in specific terms was

that the Commission exercise its jurisdiction under

section 113 in accordance with the Act. So that we

say that the point made in Bristol's case and

Blakeley's case does not arise. There is no

principle that the precise legal formulation of it

has to be made in a particular way, it is the

demand itself and it was made.

Could I just refer to a case in respect of the matter Your Honour Mr Justice Deane raised about

the Commission moving of its own motion. Reg v

Galvin Ex parte Australian Textile Workers, (1955)
92 CLR 173 is an example of what Your Honour raised

where an application was made on the basis of an

incompetent applicant and prohibition was sought

and it was denied on the basis that the Commission

could move of its own motion and therefore it was

not relevant whether the applicant was competent or
not.	My learned friend Mr Nolan relied on
Grimshaw's case in his written submissions.	Can I
just indicate, that related to an - - -

DEANE J:  Mr Merkel, perhaps I should make express to you

the fact that what I was raising with Mr Rose does

not seem to me to favour or as~ist you in this case

and that if the distinction I was adverting to is

relevant, it seems to me that the decision of the application as a discrete application to vary the

award and not as something arising in the course of

the industrial dispute which was before it between

your client and the union. I am not suggesting you

have to deal with it but if it is relevant, that is

the impression I get from reading the appeal books.

Hoyts(2)	133	4/11/92
MR MERKEL:	Yes.	I will only say two things, Your Honour.

Firstly, that the Commission was also dealing with

an application, it mentioned, to move of its own

motion and the grounds for that were the

substantive grounds which were industry-wide

grounds. We say not enough attention has been

given by our learned friends to the grounds stated

in the application which deal with the matter

Your Honour raised, that this was put on a far

broader basis. All that was absent was the legal

formulation but not the factual basis.

Grimshaw's case, I just wanted to mention,

related to a person's right to intervene being

enforced by prohibition. We say we are a party to

a proceeding and we stand in a very different

position. My learned friend, Mr Bell, indicated

that what we had said was not correct about

Village GU.	Can I just read into the transcript of
our argument, on 1 February 1989?	Mr Gee,

appearing for Village GU before the Commission in
the arbitral proceedings, sought leave to appear on
behalf of Village and Greater Union and that leave

was granted. Now, I do not think it has ever been

determined any further than that and that was the

basis of what we put to Your Honours.

On Hoyts' knowledge of the proceedings, we

have not said that they were hidden from us, but

can I just refer Your Honours to where that is

dealt with in the application book? It is dealt

with at page 14 in paragraph 21 of Mr Caldwell's

affidavit and at pages 292 and 299 of the

transcript before the Commission.

We would submit, in respect of the matters

raised with my learned friend, Mr Rose, about the

anomaly created under section 33, he, in his

submissions, has sought to say that a party to a

dispute should be limited to the dispute, the

subject of the proceedings, and we say that there

is no reason to read that down in that way and the
anomaly of his reading is demonstrated in the
present case because both sets of proceedings, the
replacement of the 1983 award and the variation,

arose out of the same dispute and all three

employers were parties to the 1983 award the the
dispute that gave rise to it. It would be

anomalous for section 33 to exclude one of those

parties from a hearing on an application to vary or

replace the very award which they were party to and

that is the final conclusion of my learned friend's

argument.	The last matter is my learned
friend - - -

McHUGH J:  My recollection is that those sections, or their

predecessors, were given a wider meaning. There

Hoyts(2) 134 4/11/92

was a dispute once - and I think it ended up before

Justice Gaudron when she was on the Commission,

between one of the unions - I think it was the

State branch and the Federal Miscellaneous Workers'

Union - had a State award in South Australia, with

an employer, and then the rubber workers and the

employers went off to Melbourne and got a consent

award which ousted the jurisdiction of the State

and the Commission ended up setting aside that

award, to my recollection.

MR MERKEL:  And we would say that is a good example,

Your Honour, of why a narrow reading of section 33

would seem to be frustrating the policy of the Act

rather than advancing it.

The final matter: as my learned friend,

Mr Rose's submission suggested, that we should go

and get a dispute finding and then seek to set

aside the award. That is putting the cart before

the section 113 horse which requires us to make

application and then go to a dispute finding

process. So we submit that that submission

misconceives the link between 113 and 101. If the

Court pleases.

MASON CJ:  Thank you, Mr Merkel. The Court will consider

its decision in this matter.

AT 11.33 AM THE MATTER WAS ADJOURNED SINE DIE

Hoyts(2) 135 4/11/92