Re Media, Entertainment and Arts Alliance & Ors; Ex parte The Hoyts Corporation Pty Limited

[1994] HCATrans 224

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M16 of 1994

In the matter of -

An application for a writ of prohibition THE HONOURABLE

JUSTICE ALAN BOULTON, THE

HONOURABLE DEPUTY PRESIDENT

COLIN GEORGE POLITES and

COMMISSIONER GRAHAM HOLMES,

Members of the Australian

Industrial Relations

Commission

First Respondents

MEDIA, ENTERTAINMENT AND

ARTS ALLIANCE and THEATRES

MANAGERS ASSOCIATION

Second Respondents

And in the matter of -

An application for a writ of

certiorari against THE

HONOURABLE VICE-PRESIDENT

MICHAEL FRANCIS MOORE. a

.Member of the Australian

Industrial Relations

Commission

Third Respondent

DEAN ANTHONY ARNEL, CRAIG

Hoyts(9)	1	4/3/94
MASON CJ
(In Chambers)

McGRATH. JACKIE HUGHES,

ANDREW TAYLOR, MOREENA

PARKER, NORMAN NEWSTEAD,

CATHERINE SMITH, SERIN YOO.

LORNE HARVEY, JAMES GEORGES,

KATE MOON and SHANE McVAUGH

Fourth Respondents

Ex parte -

THE HOYTS CORPORATION PTY.

LIMITED, DELARENE PTY. LTD.

and RAMPTON PTY. LTD.

Prosecutors

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 4 MARCH 1994, AT 10.18 AM

Copyright in the High Court of Australia

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

learned friend, MR L. KAUFMAN, for the applicants.

(instructed by Mark G. Caldwell)

MR J.A. LOGAN: If Your Honour pleases, I appear for the

fourth respondents. (instructed by C.A. Sciacca &

Associates)

HIS HONOUR:  The Court has received a letter from the

solicitor for the Media, Entertainment and Arts

Alliance. That letter has been shown to me. I

shall hand it down - - -

MR MERKEL:	A copy has been given to us, Your Honour.
HIS HONOUR:	I should ask you, Mr Merkel, is it correct that

your instructing solicitor refused to disclose the

nature of the application to the writer of this

letter?

MR MERKEL:  No, Your Honour. I sought instructions on that

matter and my instructions are that she was told

that the basis of the application at that time was

being worked on and that the grounds had not been

clarified but the documents would be sent to her as

soon as they were available.

HIS HONOUR:  I take it that the documents were not sent to

the author of the letter on or before 4 March when

the letter was written.

MR MERKEL:  Would Your Honour just excuse me. I think she

said that she had got the documents, Your Honour.

HIS HONOUR:  Incomplete. She said she was served by

facsimile transmission "with voluminous (although

incomplete) material".

Hoyts(9) 2 4/3/94

MR MERKEL:  I can only say, Your Honour, that I am

instructed that the documents that were served by

facsimile would have been all the documents, and

this is the first we have heard that they were

incomplete.

HIS HONOUR:	You say that the documents were complete.
MR MERKEL:	Yes, Your Honour, that is my instruction.

Something may have occurred at the fax at the other

end but we have not heard from the solicitor, other

than via this letter, that there was any complaint

or difficulty concerning receipt of the documents.

HIS HONOUR:	Yes.
MR MERKEL:	Your Honour, there are three grounds on which

the order nisi is sought.

HIS HONOUR:  First of all, what is the affidavit on which

you move?

MR MERKEL:  The affidavit on which we move is the affidavit

of Mr Mark Caldwell, sworn on 3 March 1994, and the

exhibits to that affidavit.

HIS HONOUR: 

Yes.

MR MERKEL: 

Your Honour, the three grounds that arise are

the power purportedly exercised under section 34 to
appoint Commissioner Holmes in place of

Commissioner Fogarty has not been properly or

validly exercised.

HIS HONOUR: 

Why has it not been validly exercised?

MR MERKEL: 

We say that the material before the Vice-

President when he exercised the power indicated

that Commissioner Fogarty was to make a decision

after receiving advice on 15 March as to whether he

would resume his duties on that day or shortly
thereafter.	The Vice-President added to that by

saying that he had a conversation with the
Commissioner and formed the view, or the
impression, I think as he put it, that it was more

likely than not that the Commissioner may not

resume his duties on that day.

When one looks at section 34, Your Honour, the

definition of "unavailability" has two features to

it which must be satisfied. The first is that it

is "unable to continue dealing with a matter", not

a proceeding in the matter; and secondly,

Your Honour, it must - - -

HIS HONOUR: Elaborate that point. What is it?

Hoyts(9)	4/3/94
MR MERKEL:	If one looks at section 34(3) it relates to a

replacement of a member of a bench dealing with a

matter, and the inability dealt with in

section 34(3) requires that the member be "unable

to continue dealing wlth a matter" and he or she
thereafter ceases to be a member of the Full Bench

dealing with the matt~r. The matter, Your Honour,

is in contradistinction to a proceeding in a

matter. So the unavailability to deal with a

particular application that may be made in the

course of dealing with a matter is not a ground for

removal of the member as a member of the bench. So

the first point we make is that there is no basis

to conclude that the Commissioner is unable to

continue dealing with the matter.

The second point we make is that the words

used are "is unable to continue dealing with a

matter"; it is not, as the Vice-President seemed to

view it, in his opinion more likely than not not to to be able to continue dealing with the matter. We

say it is a question of objective ascertainment and
the Vice-President's opinion is not determinative

and we say that the evidence is quite clear,

particularly if you look at Commissioner Fogarty's

letter, Your Honour, which is the last document in

exhibit B, written on 21 February, which must be

about the same time as he had the conversation with

the Vice-President.	He indicated in his letter
that he was -

unavailable to participate as a member ..... in

any proceedings before -

14 March -

and I am bound to draw to your attention that

my availability for work as a Commissioner

beyond that date (and, therefore, as a member

of the Full bench) will be dependent upon the

views of my medical adviser upon reviewing my

condition and upon the outcome of any

application for further leave which I may need to make should that advice compel me to do so.

we say that the conclusion is compelling that until
that matter is resolved, the question of

Commissioner Fogarty's ability to continue as a member of the bench, or using the language of the

statute, "to continue dealing with the matter", is

uncertain.

We would submit, Your Honour, that that does

not form a basis for a conclusion that the

Commissioner is unable to continue dealing with the

matter.

Hoyts(9)	4/3/94
HIS HONOUR:	It strikes me as a pettifogging point, worthy

of presentation perhaps in a police court.

MR MERKEL:  We can only say, Your Honour, that the statute

contains a clear provision and we would submit that

given the bench is proposing to sit on Monday, then

the question no doubt during the week of the

Commissioner's availability will be clarified. But

we say the statute contains that provision

and - - -

HIS HONOUR: It is clear enough, is it not, that

Commissioner Fogarty is unavailable to sit next

Monday?

MR MERKEL:  I think there is no doubt that that is correct,

Your Honour, and that is why we say that if it was

unable to deal with a proceeding or a particular

application in the matter, that is quite different

to the section.

HIS HONOUR:  I do not understand the practical significance

of the emphasis that you put on "matter".

MR MERKEL:  Your Honour, the practical significance of it

is that section 34 is, in effect, a last resort

situation where a Full Bench which is required to

be constituted of three members, which is required

under section 30(2) and is to be appointed at the

outset to start hearing a matter, cannot in effect

have its membership changed for any reason other

than unavailability, and once the membership is

changed, that changes it thereafter. Because if

Your Honour looks at section 34(4) the section

requires that the reconstituted bench shall have
regard to, and act upon, all that has occurred
before, including prior determinations, so it is a
final removal of a member of the bench. And given
the significance of the bench hearing a matter and

dealing with it as constituted, we say that

section 34 should only be used in extreme

circumstances where it is clear that a member
cannot continue dealing with the matter at hand,

which is the resolution of the industrial dispute

by conciliation or arbitration.

HIS HONOUR:  What is the prejudice to you if

Commissioner Holmes takes the place of

Commissioner Fogarty?

MR MERKEL:  We would say the problem, in reality, is

Commissioner Holmes would have to come to the

matter without any prior experience or background

of any kind, have to overcome the disability of

being a stranger to the matter - - -

Hoyts(9)	4/3/94
HIS HONOUR:	That might be a great advantage in this case.

It has taken six years, has it not, for the

proceedings to get this far, largely as a result of

the activity of your clients.

MR MERKEL:  Your Honour, I can only say that the question of prejudice may or may not arise. I cannot indicate

that Commissioner Holmes would bring a different

view to the matter than Commissioner Fogarty. But

we do say, Your Honour, that there is a problem.

We do submit that the way in which the matter has

been dealt with, bringing it on in effect for final

determination next_ Monday, rather than awaiting the

situation of Commissioner Fogarty during the week,

is somewhat untoward. But I cannot add anything

further to the submissions we have put on

section 34.

The second question that arises is that it is

our submission that the Court made an order in MS0

and we have submitted to the Vice-President, and he

appears to have recognized, that before the

Commission propos to deal with the matter it is

necessary, whether we be right or wrong about the

section 34 point, that that order be varied so that

Commissioner Holmes be substituted for

Commissioner Fogarty because at the moment there is

an order of the Court - - -

HIS HONOUR:  You would not need to substitute

Commissioner Holmes for Commissioner Fogarty, would

you? In other words, if the order had been to the

Industrial Commission, if that had been the form of

the order, that would have been satisfactory.

MR MERKEL:  Yes. If the order had been to the Industrial

Relations Commissioner, there is no doubt that what

Your Honour says is correct.

HIS HONOUR:  As a matter of fact, I have never understood

why it is that historically so many of the

applications to this Court have been couched in

terms in which the relief sought is directed to

individual members of the Commission.

MR MERKEL:  We have found the problem arising as a matter of

practice in two different ways. I am not sure that

it will answer Your Honour's question, but

sometimes where the relief sought does not depend

on who hears the matter or is based upon a right of

action against all Commissioners, one frames it in

more general terms. But where -

HIS HONOUR: Jurisdictional, for example?

MR MERKEL:  It would relate to any member of the

Commission. But where the relief is sought,

Hoyts(9) 6 4/3/94

particularly in respect of mandamus concerning a

decision of a particul~r bench, then the practice

has developed, rightly or wrongly, that the order

is sought against the members of the bench.

HIS HONOUR:  I have not understood why that should be so,

Mr Merkel. It seems to me if there has been a

refusal by various members of a particular bench to

do something which, in law, they are bound to do,

that is to be considered as a refusal by the court

or tribunal to do what it is bound to do.

MR MERKEL:  Your Honour, I certainly have no quarrel with

Your Honour and the problem that is thrown up by

the present case would suggest that the form of order does give rise to problems. If the first point is without - - -

HIS HONOUR:	What happens, for example, in relation to a member of the Commission who is the subject of an
order - we will say an order directed to three individuals constituting a Full Bench - and he or
she dies or retires, now that must have occurred on
a number of occasions in the past.

MR MERKEL:  Yes. We say that it would be indistinguishable

from the present case.	If the order were
formulated in this way,	then an application which
would be no more than a	formality would have to be
made to the court. All	we say, Your Honour,
is - - -

HIS HONOUR:  But this difficulty could be readily overcome

by this Court making an order varying the order

that was granted in MS0.

MR MERKEL:  Your Honour, I have no doubt that that is the

way in which the matter has to be dealt with.

HIS HONOUR:  Now are the parties in a position to consent to the making of such an order?

MR MERKEL:  The answer is that we had written to the

Commission, and properly sent to the parties,

indicating that this Commission as constituted on

Monday could not properly sit other than by

variation of the order. We expected, and the Vice-

President himself indicated, that, look, he needed

to make appointment under section 34 so that this

Court could then deal with the matter as an

actuality, rather than a hypothetical situation.

All I would say, Your Honour, is that I think the position of my learned friend, as written to the Commission, is that the employees are neutral, but they just want a properly constituted bench to deal with the matter.

Hoyts(9) 7 4/3/94

The position, rightly or wrongly, that Hoyts

has taken is that section 34 has not been complied

with. If that point is without merit, then there
could be no basis we could possibly put forward for
the order not to be varied. We do not suggest that
there is any want of jurisdiction or power for the

Court to vary it but the difficulty does arise,

Your Honour, that we do say that, given the

Commissioner's position next week, it is clear that

his position will be clarified and one can only say

that the convening of the Full Bench, without any

endeavour by any party before it apart from us to

raise the question of whether the order needs to be

varied, can only be said to be somewhat unseemly in

all the circumstances.

But we would submit, Your Honour, that if

Your Honour determines our point under section 34

has no merit whatsoever, in the sense that we are

wrong, then it would be a matter of formality.	But
we would say, with respect, when the material of
Commissioner Fogarty as put before the bench is examined, we do say that there is a vice beyond

this particular case that could arise if the

section were operated upon as a matter of practice,

where the President formed a view that a member may

be unable to continue, and then juggled benches in

that way. We say section 34 seeks to give parties

a fundamental right to have that bench deal with

the matter - - -

HIS HONOUR:  I see the importance of the point and I can

see that it may well have significant practical

consequences in some cases. But when you look at

the facts of this case, when the Commission has

indicated that it is willing to list these matters

next week and we know that Commissioner Fogarty is
not available next week, it seems to me that the

point really is a very technical point that you are

raising and, at the moment, I do not see merit in

it, Mr Merkel.

MR MERKEL:  Your Honour, may I say this: I cannot really add

anything further to what I have said to Your Honour

on the section 34 point, but we do say that the

reality of the matter is that both points, looked

at together, require an application for variation

to be made to the Court. If that is so, the Court

would have to consider whether section 34 is

complied with, if it be a technical point or not.

The question must arise and have to be considered, and we say that accepting what Your Honour has put

to me, and with respect we would seek to say it is

a point of more substance than Your Honour has put,
but either way, we say that it is an important
point and the statute is there. If the wording

were that "The President formed the view", then

Hoyts(9) 4/3/94

that would be a different sit11ation, but we do say

section 34 does seek to afford parties a right, and

the Full Bench an obligation to deal with the

matter, except in the inability situation.

We say they both go together, Your Honour, and

all we would indicate is that it is a matter that

would have to be considered by the Court and we
would say that it is appropriate for that to occur as soon as possible. We are entirely in the hands

of the Court as to when that would happen.	It is
just, we believe, that Commissioner Fogarty's position of ability or inability will, by

definition, be clarified in the course of next week

and we would say it would be unfortunate if that

decision were not before the Court because that

decision would be determinative of the matter.

I would indicate clearly, Your Honour, if the

Commissioner indicated next week that he is unable

to continue dealing with the matter, then the

position would be a matter of consent. We would

consent to the variation. But we say, on the

present material, the situation just has not yet

arisen and we say the Commission, with the greatest

of respect, has appeared to cut a corner. I do not

criticize the Vice-President, because he was faced

with the dilemma where he said, look, if I do not

make the appointment, there is nothing to take back

to the Court. So he made the appointment but, with

respect, possibly cutting a corner in doing so,

leaving it ultimately to the Court to determine

whether he has rightly or wrongly cut that corner. That is all I wish to say on the first two points.

The third point, Your Honour, does raise a

matter of quite basic importance and it goes to the

th

jurisdiction of the Commission to continue dealing

with the matter. The facts are within a very

narrow compass and the relevant facts are these,
that notwithstanding the proliferation of dispute

Commission, the dispute between the union and the findings that gave rise to the matters before the

three employers is a dispute arising basically from

the union log to Delarene and Rampton, but also

from disputes with Hoyts, who is the minor employer

of the three, as to the terms and conditions that

govern employment of employees at the Hoyts

Theatres.

On 5 February the union delivered a fresh log

seeking a general prescription of terms and
conditions of employment of the employees of all

three employers. Your Honour, we have prepared a

document which tries to compare the previous log on
Delarene and Rampton, which forms the basis of the

dispute, with the new log. I do not want to

Hoyts(9) 9 4/3/94

unnecessarily complicate the matter, but can I

indicate, Your Honour, that the conclusions one

comes to in respect of the new log of claims - and

I should say a dispute was found in respect of this

log on the application of the union - is that many

of the major claims, such as claims for a higher

weekly rate, have increased; some claims, such as

superannuation, which is claim 7, have reduced;

some have altered, for example they are seeking now

a prohibition against any age discrimination in

employment, which would be relevant to the junior

wage question; and claims 45 to 52 are additional

claims which are not found in the previous log.

The effect of the service of a log of this

kind was considered by the Court in the Boot Trade

Federation case, 114 CLR 548. I wonder if I could

just possibly read to Your Honour one passage.

HIS HONOUR:	Yes.
MR MERKEL:	In that case there were a number of issues, but

basically there was a dispute between a union and

employers over long service leave. Just reading

the last two paragraphs of the headnote:

In 1950 the union delivered a log of

claims in which a claim was made for long

service leave both as to its members and non-

members: in 1951 an award was made in which

this claim was rejected.

The employers sought to resurrect the claim and the majority judgment of the Chief Justice

Sir Garfield Barwick, Justices McTiernan, Taylor and Owen dealt with this particular point at

page 553 at point 9. If I could just read this

passage, Your Honour:

The prosecutors next made reference to a

log of claims which had been served upon the

employers by the union in February 1950 in

which, inter alia, a claim was made for long

service leave for all employees in the

industry including employees who were not

members of the union.

Then, Your Honour, there was an award in which the

claim was rejected.	Then could I go down to
point 4 on page 554:

Further, we think that the dispute which arose upon the rejection of the 1950 log came to an end, at the latest, when the 1959 log of

claims was served upon the employers. It is

clear, we think, from the terms of that log

and the accompanying letter, that it was a

Hoyts(9) 10 4/3/94

claim for the prescription of general conditions of employment which should exclusively operate to regulate the employment

of employees in the industry. Implicitly, at

least, it amounted to an abandonment or

withdrawal of the earlier log and it contained
no claim for long service leave. That being
so, it is, we think, impossible to assert that
the dispute which arose upon the rejection of

the 1950 log still continued.

Now, I should say, Your Honour, the present case is

a clearer one in this sense, that the later log in

Boot Trade Federation did not contain a claim for

long service leave and the absence of that claim

made it implicit that that claim in respect of the

earlier log was no longer being proceeded with.

Your Honour has, in the present case, the

service, at a point of time no doubt carefully

chosen by the union, of a log exactly in terms as

described by Their Honours, namely, "prescription
of general conditions of employment which should

exclusively operate to regulate the employment of

employees in the industry". The log was served on

many of the major employers in addition to the

three Hoyts companies, and Your Honour, we say that

it is fairly clear from the decision in that case,

but also decisions of this Court in other cases

that are consistent with it, that the Commission

having gone on to find the dispute on 28 February,

on the application of the union, and that dispute
finding now standing as a dispute finding in

respect of general terms and conditions of the

employees under section 101(3) of the Act, we say

it does follow that the earlier dispute betweens

the union and Hoyts and the other two employers has

com~ to an end.

HIS HONOUR:  But you have not raised this point in the

Commission yet.

MR MERKEL:  No, Your Honour. We were confronted with this

dilemma, that the position, rightly or wrongly,

that we had taken is that the Commission proposing
to deal with the matter on Monday is not properly

constituted or would not properly deal with it

until the order of this Court is varied, and

Your Honour has no jurisdiction to deal with the

matter.

HIS HONOUR:	But it is premature for this Court to consider the point before it has been raised and pronounced
upon by the Commission.

MR MERKEL:  I accept what Your Honour puts. The difficulty

we have is it is linked to the other two points and

Hoyts(9) 11 4/3/94

we do say, Your Honour, it is a point of obvious

importance and, again, I can only say it would have

to be - - -

HIS HONOUR:  It may be of obvious importance to you, but in

terms of the way in which this Court handles these

matters, it would be quite inconsistent with past

practice for this Court to take the point up at

this stage.

MR MERKEL:  I cannot say any more on the point. I draw

Your Honour's attention to it. Possibly it may be

relevant as to the course that occurs hereafter

but, primarily, Your Honour, our submission is that

the Commission as constituted on Monday should not

be proceeding to deal with this matter until the
order of this Court is varied. And I have

indicated to Your Honour the position that we take

concerning that and we would - - -

HIS HONOUR:  Can I raise this question with you: is it

necessary for the Full Bench to be reconstituted by

replacing Commissioner Fogarty, on the assumption

that Commissioner Fogarty is unavailable?

MR MERKEL:  Yes, it is, Your Honour. The reason for that is

that the Full Bench was appointed under section 107

on application to the President and that brings

into play section 30, and section 30 comes into

play, in effect, as a result of the power being

exercised under section 107. So that upon

application to the President and a reference to the

Full Bench, the proceeding must be dealt with, and

that is section 107(7), and the matter then

proceeds before that Full Bench.

Then under section 30(2) the Full Bench is

required to consist of:

at least three members ..... established by the

President as a Full Bench for the purposes of

a proceeding.

And that is what has occurred here, Your Honour.

HIS HONOUR:  Yes. So that the ordinary principle that a

collegiate bench may continue to deal with a matter

before it, notwithstanding the inability of one of

its members to participate, is qualified by

subsection (2) of section 30?

MR MERKEL:  Yes, Your Honour, and there is a decision of

this Court in respect of an earlier form of the

section in Kelly's case, 88 CLR, where that is

discussed.

HIS HONOUR: That is what I had in mind.

Hoyts(9) 12 4/3/94

MR MERKEL:  Their Honours adverted to the very situation,

that if there were· four, and only a requirement of

three, there would be no difficulty arising.

HIS HONOUR:  But the problem is subsection (2) of

section 30?

MR MERKEL:  Yes, Your Honour. We would submit that in those

circumstances it is appropriate for the proceeding

not to go before that reconstituted bench until the

application is made to this Court to vary.

Now, I am not sure what the employees'

position is, but until now, no one has indicated

that they propose to do that, but we say it is a

condition precedent to the bench proceeding. I

should say, Your Honour, that the concern we have -

and again, Your Honour, it may be put to us it is

yet again a technical point but we would, with

respect, say it is not - is that the Act does

contain a provision which seeks to, in effect, save

awards which are made, even when the bench is not

duly constituted. So that if this bench goes ahead

and sits on Monday and makes an award as proposed

on Monday, then that award - - -

HIS HONOUR:	What is the section?
MR MERKEL:	Section 150(2), Your Honour. So it is not a

matter of the award being a nullity.

HIS HONOUR:  I suppose one thing is perfectly clear and that

is that if there is a technical point available

enabling your clients to attack the award, they

will take advantage of it.

MR MERKEL:  I would rather Your Honour had not expressed it

in terms of "technical" or "advantage", but Hoyts

has had an alternative case, Your Honour, which

this Court has heard a lot about and the bench has

not found it to be favourable.

HIS HONOUR:  What do you say about subsection (2) of

section 150?

MR MERKEL:  What we would say is that if the bench is

improperly constituted, and no step is taken, then

there may be two problems arising: one is that if
they sit on Monday it would be, on our submission,

in breach of the order of this Court, which the

Court should not countenance; and secondly,

Your Honour, it may be that whatever they do on

Monday may not be able to be challenged, it may be

immune from challenge and we would say that,

clearly, Your Honour is undesirable. That gives

rise to the problem Your Honour considered in this

Court in O'Toole v Charles David.

Hoyts(9) 13 4/3/94

So we would say, Your Hor.our, that the matters of compliance with the statute and orders of this

Court are of significance and ought to be dealt

with in the proper manner.

I only add this, Your Honour, that there is

absolutely nothing that anyone could suggest that

could possibly occur in this matter between next

Monday and the following Monday or the following
Monday after that that could affect anybody's

rights. I should indicate, Your Honour - - -

HIS HONOUR: Nothing seems to have happened that has

affected anyone's rights for six years.

MR MERKEL:  And I should say, Your Honour, in a manner that

is not demonstrated to have caused prejudice or

problems in the workplace. But I should add to

Your Honour that a not totally dissimilar problem

confronted Justice Toohey when the last
applications for orders nisi were made. His Honour

granted a stay, being concerned at the O'Toole v

Charles David point, but His Honour was offered an

undertaking, which His Honour accepted, that the

employers would pay all employees, in the event

that that application for leave was unsuccessful,

which has occurred, the amounts payable under any

award made by the Commission on the basis of its

earlier decision as if that came into operation on

3 May 1993. The companies agreed to keep and

maintain records to give effect to that

undertaking.

So the situation, together with the offer that

we have had in our order nisi, is that the

undertakings to the Court do protect the employees

and we would submit that this is an unusual case,

for many reasons, but not least of all because of

the undertakings ensuring the protection of the

employees, so that they cannot be disadvantaged by

any delay that comes about by reason of the award

But we would say the proper way for the matter

not being made.

to proceed is for the order nisi to be granted -

and I accept what Your Honour says about the

prohibition sought in respect of the

jurisdictional issue. The difficulty we have is

that until we get what we would submit is a

properly constituted bench, we cannot make that

application to the Commission, but once the

situation of unavailability to sit is clarified,

then the matter can proceed in the proper way.

So we would submit, Your Honour, that for

those reasons the order nisi which we seek should
be granted, albeit if it be limited to the first

Hoyts(9) 14 4/3/94

two grounds for the reasons Your Honour the

Chief Justice has put to us.

HIS HONOUR:  Thank you, Mr Merkel. Mr Logan, what do you

say about this?

MR LOGAN:  Your Honour, the fourth respondents do not oppose

the making of an order nisi as sought. As far as

the undertakings are concerned, the fourth

respondents regard those as satisfactory

protection to their position as employees. The

concern of the fourth respondents is that the bench

in the Commission be lawfully constituted and a

doubt having arisen as to that, hence the lack of

opposition to the grant of the order nisi.

HIS HONOUR: 

But why is it not a satisfactory method of

dealing with this matter that I make no order at
all, except to indicate that the Court will, as

soon as is convenient, deal with an application for

variation of the order made in MS0?

MR LOGAN: 

If the material were to raise the long term

unavailability of Commissioner Fogarty -

HIS HONOUR:	Is not the situation this, that by some date next week it should be known whether
Commissioner Fogarty is unavailable thereafter?
MR LOGAN:	Yes, Your Honour.
HIS HONOUR:	Now, that being so, it is obviously open, I

would have thought, one makes that assumption, for
an appointment to be made under section 34 of

Commissioner Holmes, provided that the order of

this Court made in MS0 is suitably varied.

MR LOGAN:  The fourth respondents would want to keep the

fruits of the order obtained in MS0.

HIS HONOUR:  I am not suggesting you would not keep the

fruits of the order; what I am suggesting is that
the order would be differently worded.	The order

would either take the form of being directed to the

Commission as an institution or body or it would

take the form of being directed to the two

continuing members of the Commission and

Commissioner Holmes, although I would have thought

that the first alternative I have suggested is the

appropriate one. Now, if the order were varied in

that way, namely an order of mandamus directed to

the Commission as a body, it would then be a matter

of making an appointment under section 34(2) if

need be again, once more information is available

with respect to the unavailability of

Commissioner Fogarty.

Hoyts(9) 15 4/3/94

Now, that would bring about a situation in

which, say, by the end of next week it would be possible for the parties to put a consent order before this Court, varying the order for mandamus

made in MS0, and once that is done, if there is

still some doubt about the validity of the

appointment of Commissioner Holmes, another

appointment can be made. Now, why does that not

solve the problems in this case? It leaves out of

account, of course, the third ground Mr Merkel has

put forward but there is no way any of the parties

in this case are going to persuade me that that is

an issue that this. Court ought to take aboard at

this stage of the proceedings.

MR LOGAN: 

No, I appreciate that, Your Honour. It solves

the problem in the short term and leaves to
another day the third issue.

HIS HONOUR:  Yes. But that is a matter initially to be

resolved by the Commission.

MR LOGAN:  Yes. That is a way of coming to it, Your Honour.

I do not know that I could add anything further to

that.

HIS HONOUR:  And it may also have the advantage that by the

time the Commission resolves that point it is

possible that the new Act will come into operation,

with the result that if you want to pursue that

point, you will be able to do so with all the

advantages of having the hearing in the Federal

Court, rather than this Court.

MR LOGAN:  Yes, Your Honour. I do not know that I can add

anything further on that.

HIS HONOUR:  Now, Mr Merkel, what do you say to all that?

MR MERKEL:  I do not have any difficulty with that course at

all, Your Honour. We take it, from what

Your Honour has said, that the Commission would

adjourn the matter until the matter was resolved

next week.

HIS HONOUR:  I would expect that that is what the Commission

would do.

MR MERKEL:  Yes, Your Honour. I do not have any problem at

all with that course. It seems to be a way of

resolving the difficulty.

HIS HONOUR:  It seems to me to be a practical way of solving

it. I would hope that the parties would be able to

put forward a consent order to be made by the Full

Court. It may even be possible for you to submit a

Hoyts(9) 16 4/3/94

document. You had better look into that to see

whether that is possible.

MR MERKEL:  Yes, Your Honour, we will make inquiries and see

if that can be done. But I think we have made our

position -

HIS HONOUR:  See if that can be done, and I think all that I

need do is to say that, if need be, I will restore

this application to the list on the application of

one or more of the parties.

MR MERKEL: If Your Honour pleases.

HIS HONOUR:  You can convey what I have said to the Full

Bench of the Commission.

MR MERKEL: That will certainly be done, Your Honour.

HIS HONOUR:  The Court will now adjourn sine die.

AT 10.59 AM THE MATTER WAS ADJOURNED SINE DIE

Hoyts(9) 17 4/3/94