Re O'Donnell & Ors; Ex parte The Hellenic Club of Canberra Limited

[1988] HCATrans 7

IN THE HIGH COURT OF AUSTRALIA

Registry	No C2 of 1988
In the matter of -

An application for a writ of prohibition against BERNARD

O'DONNELL, JOHN BARRY and

BARRY COOKE

First Respondents

THE FEDERATED LIQUOR AND ALLIED

INDUSTRIES EMPLOYEES UNION OF

AUSTRALIA

Second Respondent

Ex parte -

THE HELLENIC CLUB OF CANBERRA

LIMITED

Applicant

Hellenic

WILSON J

( In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON MONDAY, 15 FEBRUARY 1988, AT 2.16PM

Copyright in the High Court of Australia

C3Tl/l/RB 1 15/2/88

MR J.F. BOULTBEE: In this matter, I appear for the applicant/

prosecutor. (instructed by Callens)

MR W. HAYLEN:  May it please Your Honour, I appear for the

second respondent. (instructed by R.L. Whyburn

& Associates)

HIS HONOUR:  Yes, Mr Boultbee. I have read the papers. It

may assist you in coming straight to the questions

that arise.

MR BOULTBEE:  Thank you, Your Honour. Does Your Honour need

me to read the affidavits that are with the application?

HIS HONOUR:  No. I have read them, Mr Boultbee, but draw from

them the salient facts that you wish to rely on.

MR BOULTBEE:  Very well. Your Honour, there are, in fact, three

affidavits, two of which were filed only this morning.

Does Your Honour have those later ones?

HIS HONOUR:	Yes.
MR BOULTBEE:	And you have read them as well?
HIS HONOUR:	Yes.

MR BOULTBEE:  Thank you, Your Honour. The matter relates to

the proceedings before a Board of Reference

established by clause 42 of the Liquor and Allied

Industries Hotels, Hostels, Clubs and Boarding

Establishments Etc. (A.C.T.) Consolidated Award.	A
Board of Reference was appointed by clause 42 of that award pursuant to the power in section 50 of

Tl the CONCILIATION AND ARBITRATION ACT.

There was a dispute between the Hellenic Club,

the applicant, and one of its employees which involved the relevant Union. The Union referred the dispute to

the Board.	The dispute, shortly stated, Your Honour,
concerns the dismissal of an employee and the matter

before the Board was in effect a reinstatement

application. When the matter came before the Board,

as Your Honour has seen from the papers, the Board

consisted of the Deputy Industrial Registrar,

Mr O'Donnell, Mr John Barry, the employee's representative

and representative of the Union, and Mr Barry Cooke

representing the employer, that is the Hellenic Club.

HIS HONOUR:  What was thepurpose of the hearing on 22 December?

It does not appear to have been with a view to hearing the matter.

MR BOULTBEE: 

It seems, Your Honour, that it was a preliminary

hearing to establish the length of time for the
hearing and so on, but on that date the Board did not

embark on a hearing of any evidence, although one of

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the points which the applicant/prosecutor will make

is that Mr Barry in his position as advocate for the

employee and the Union did address the Board on some of the facts to which he was party and eventually the applicant/prosecutor will say that not only do we

have in this situation a member of the Board who is

in effect a judge, or a decision maker; that member
was also assuming the role of the prosecutor and, to
an extent, although not giving sworn evidence, advising
the Board from the bar table or from the bench of

matters of which he had personal knowledge.

HIS HONOUR:  But if that was the only thing you had going

for the application, Mr Boultbee, it would not be very

strong, would it, if, provided that when the matter

came on for hearing in February the the Union was

represented by another advocate and Mr Barry was - I

presume he sat on the bench at all times, has he?

MR BOULTBEE:	Yes, he did, Your Honour.
HIS HONOUR:	But 22 December would have been seen in that

perspective simply as a clarification of the issues

and there would not be serious objection perhaps to

Mr Barry simply elucidating the issues, provided that

the matter was then adjourned for the hearing to take

place in February. So it is really what

happened in February that is the critical thing.

MR BOULTBEE: That is right, Your Honour. In February, the

applicant before Your Honour was represented by counsel.

The Board was constituted as it had previously been

with Mr Barry sitting on the Board and Mr Barry

announced an appearance on behalf of the employee as

well. It did not get to the stage where any

embarking on the issues was done so it is not a case

where we can say that Mr Barry has been in the

position of a witness or addressed the Board on the

date of the hearing in February as to the issues, but

representative or the advocate for the employee and	simply that having announced an appearance as the
the Union whilst a member of the Board itself, we
would say that the appearance of natural justice being
done - there could be no appearance of natural justice
being done in line with the authorities such as
REG V WATSON, EX PARTE ARMSTRONG and the following
cases.

HIS HONOUR:  Yes. You would need to construe the principles of

natural justice in their application to a Board of Reference in the light of the particular character

and function of that body. Where a body is composed

of representatives of the adversaries, then obviously
the principles of natural justice must undergo some

modification because it could be said that the whole

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purpose of a Board of Reference or other body

constituted with an independent chairman and

representatives of the parties is designed in that

way in order to facilitate the function of the body

by allowing for a degree of negotiation as well as

T2 adjudication.

MR BOULTBEE:  Yes, Your Honour. It depends on the function

that the Board is at the time administering as to

whether the principles relating to natural justice

come into play. Your Honour referred to adjudication.

That is what we would say was the function that the

Board was to undertake in this hearing.

HIS HONOUR:	Was it not to resolve a dispute?
MR BOUTLBEE:	Indeed, Your Honour, there having been attempts

at negotiation between the parties as is referred to

in the affidavits and the letter from the Union to

the Industrial Registrar but it was in a situation

where a decision under clause 42 of the award was

the likely end result of the hearing before the Board,

such a decision being one which would affect the

rights of the individuals, namely the Hellenic Club

and Mr Wright,the employee concerned, and as such, Your Honour, the applicant would say that the Board

was acting judicially or would be acting judicially

in coming to that decision in such a way as to bring

the rules of natural justice into play.

I refer Your Honour to clause 42 of the award and to the functions of the Board thereunder and

under subclause (f):

The Board of Reference is empowered to deal

with the following matters:

(i)      The settlement of disputes on any matters

arising out of the award.

(ii) Matters specifically assigned to it by

the Commission.

Perhaps consistent with the power of the award maker granted by section 50 of the CONCILIATION AND

ARBITRATION ACT and where the matter is a dispute between a particular employer and a particular employee

and the Board is sitting to hear evidence, to hear
argument and to come to a decision on the dispute, a
dispute which arose from a dismissal, it is very much
the type of case which involves the rights of parties
and brings the matter within the realms of Lord Atkins'

statement in the ELECTRICITY COMMISSIONERS' case.

It would be different, Your Honour, were it a

matter of the Board of Reference making some decision

in relation to conditions or some provision relating

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to the workplace rather than a particular dispute
in which it is set up, as it were, in an adversarial

way with appearances being taken for the employer

and for the employee and evidence being called about

incidents relating to that employee in his employ,

it gives the whole hearing the character of a hearing

that will affect the rights of the individuals in

which the Board would, of necessity, be acting in a

judicial way.

HIS HONOUR:  I notice the Chairman remarked, Mr Boultbee, in

not be a member of the Board,that it was common
practice for members of the Board to act as advocates. giving his decision on the application that Mr Barry been the subject of any court decision?

MR BOULTBEE:  Not to my knowledge, Your Honour. I could well

stand corrected on that matter, but there are cases

where Boards of Reference have come before the court

and before the Conciliation and Arbitration Commission

but not one which adverts to that parctice that I know

of, Your Honour.

HIS HONOUR:  Has the question of natural justice, to your

knowledge, been discussed in the context of

participatory boards, if I can use that expression?

MR BOULTBEE:  Your Honour, there are some references in the

textbooks to natural justice applying before boards.

There has been a decision in this Court where there

was a writ of prohibition sought in relation to a

Board of Reference but on a different point,

Your Honour, on the question of ultra vires on the

basis of- - -

HIS HONOUR:  The judicial power -HEGARTY's case. But that is

quite different. It comes on an entirely independent

basis. I was just concerned as to whether the

question of natural justice and the application of

the principles to a Board have been discussed, bearing

in mind the representative character of two of the

members of the Board.

MR BOULTBEE:  Your Honour, in a case before the industrial court,

in the list of authorities, Your Honour - but it is

the case being one of DALGETY AND COMPANY LIMITED V

reported at (1922) 16 CAR 102 - that Your Honour

obliquely refers to the question of natural justice

and boards of reference. In that decision the court

looked at the type of matters which the court would take into account where an appeal to the court were properly before it from a decision of the board and

in the note of the case that appears in Mr Mills'

fifth edition at page 223, it is said that:

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A determination of a Board of Reference

will be disallowed or referred back for

further hearing if:

(a)	A proper quorum was not present;
(b)	Due notice of the hearing was not given

to all members of the Board and all parties

affected;

(c) The Board refused to hear material

evidence of the representatives of any party;

(d) The Board dealt with claims of which

the party affected had not due notice, or

(e) The Board acted on a misconception of the claims or of its functions and powers.

That, Your Honour, recognizes that - some of the

elements there are elements of natural justice which

the court recognized as matters which the Board would

have been in error if they had not taken those

natural justice steps.

I think that is as close as it gets to a decision

that boards of reference specifically must follow the

rules of natural justice. I would argue, Your Honour,

that because of its functions when performing the

function that it was performing in this case it would

be the type of tribunal to which the rules of natural

justice would apply and I would, Your Honour, take

Your Honour to the authorities, starting with case and perhaps, Your Honour, the statement of

Mr Justice Mason as he then was in KIOA V THE MINISTER,

159.CLR 550, and in that case, Your Honour, His Honour

was looking at the type of proceedings and the type

of tribunals which would attract the rules of natural

justice, in particular in relation to administrative

decision making, and I take Your Honour to page 583

where His Honour said:

It has been said on many occasions that natural

justice and fairness are to be equated -

and refers to some authorities.

And it has been recognized that in the context
of administrative decision-making it is more
appropriate to speak of a duty to act fairly

or to accord procedural fairness. This is

because the expression "natural justice" has

been associated, perhaps too closely associated,

with procedures followed by courts of law.

The developing application of the doctrine of

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natural justice in the field of administrative

decision-making has been very largely achieved

by reference to the presence of characteristics

which have been thought to reflect important

characteristics of judicial decision-making.

The effect of Atkin L.J. 's influential

observations in R. ELECTRICITY COMMISSIONERS;

T4	EX PARTE LONDON ELECTRICITY JOINT COMMITTEE CO.
was to focus attention on those elements in the
making of administrative decisions which are
analogous to judicial determination as a means
of determining whether the rules of natural
justice apply in a particular case.

I would rely on what His Honour says there. His Honour

goes on to look in some more detail as to where the

boundary lies but, Your Honour, I would submit that
because of the matters that I have mentioned and the

function that the Board was undertaking, it is very

much a matter where the Board is making an

administrative decision which has the elements

analogous to judicial determination for the reasons

that I have mentioned.

If it is seen that the obligation upon a Board

is as expressed by His Honour Mr Justice Mason as he

then was as being a duty to act fairly or to accord

procedural justice, it is my submission that there

can be no appearance of acting fairly or procedural

fairness where, as it were, the prosecutor or a party

is also a member of the decision-making body. Where

the decision will affect the rights of the parties it is, with respect, a classic example of a person

being a judge in his own cause as it were.

There are authorities to which I could take

Your Honour if Your Honour should so wish to the effect

that a prosecutor should not be a judge and that it is,

in the language of the older cases, a breach of

natural justice or inconsistent with the duty to act fairly, in the words of His Honour Mr Justice Mason.

HIS HONOUR:  I do not want to hear you on the general principles,

Mr Boultbee. Perhaps you might just tell me what

cases you had in mind, but do not go to them.

MR BOULTBEE:  Your Honour, there is the decision of DICKASON V

EDWARDS, (1910) 10 CLR 243, and that was affirmed

by His Honour Mr Justice Dixon in the AUSTRALIAN

WORKERS' UNION V BOWEN, 77 CLR. I would also refer

Your Honour to the number of cases in this Court

relating to the question of the appearance of a

possibility of bias or the appearance of the person

making the decision not being in a position to act

fairly. Those cases are, with respect, well known.

I have referred to REG V WATSON, EX PARTE ARMSTRONG,

136 CLR 248, and following that, Your Honour, there

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was LIVESEY V NEW SOUTH WALES BAR ASSOCIATION,
151 CLR 288, and the case of RE JRL EX PARTE CJL,
(1986) 66 ALR 239 and in particular again His Honour

Mr Justice Mason as he then was at page 244. They

are matters relating to judicial officers and the

judicial obligation to -

HIS HONOUR:	You need not dwell on them.
MR BOULTBEE:	If Your Honour pleases. Your Honour, there being

apparent,in my submission, a clear appearance of and

a possibility of there not being a fair hearing because

of the dual role of Mr Barry, it is, in my submission,

an appropriate matter for an order nisi for a writ of
prohibiton to issue in that it is a defect that goes
to the very constitution of the tribunal hearing the
matter and one which is not effecti,;· ,ly or

conveniently dealt with by way of tL:: limited procedure

for appeal that is set out in the award from decisions

TS	of the Board of Review.
Your Honour, there are authorities which establish that it is not necessary to exhaust one's appeal
remedies where one has a breach of natural justice
in a matter before a court or an administrative
tribunal. I would refer Your Honour to REG V HILLINGDON,
EX PARTE ROYCO, (1974) 1 QB 720, and REG v PADDINGTON
VALUATION OFFICER, EX PARTE PEACHEY, (1966) 1 QB 380.
Your Honour, I have neglected to bring those reports
down with me.

HIS HONOUR:  I am familiar with them, so you need not dwell on

them.

MR BOULTBEE: If Your Honour pleases. Would Your Honour wish

me to address Your Honour on the limited nature of
the appeal provision within the award within
clause 42(h) of the award? I take Your Honour to that

clause of the award.

HIS HONOUR: If there is some special construction that has been

worked out on that clause or similar clauses you had

better mention it.

MR BOULTBEE:  Very well, Your Honour. There have been some cases

relating to the appealed from decisions of boards.

First, there is only an appeal if it is provided in

the award itself. The Act does not provide any right

of appeal from a decision and the appeal provision is

limited to whatever is provided by the provision in

the award. It is said by Mr Justice O'Mara in

FEDERATED SHIP PAINTERS AND DOCKERS UNION OF AUSTRALIA

V OPERATIVE PAINTERS AND DECORATORS UNION OF AUSTRALIA,

53 CAR 380, that it is now the general practice

provided in awards that there will be an appeal to the

Cormnission but if Your Honour - the exact nature of

the appeal has not been determined.

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HIS HONOUR:  But it would seem to be at large in paragraph (h).

There is nothing restrictive there, is there?

"MR. BOULTBEE:  It is restricted to the review of a decision

and a decision, Your Honour, is one which in (g)

determines the matter, the matter being the type of

matter referred to in subclause (f)(i) or (ii) and

so the appeal, I think, of necessity, Your Honour,

only arises at the end of the matter. It would appear

that without there being any provision that it be a

rehearing, the appeal is simply an appeal on the

evidence that was heard by the Board and if that is

the case, Your Honour, the appeal will not cure in any

way the defect which is apparent in the Board in its

constitution in that if, in this case, Mr Barry were

to continue to sit on the Board for the hearing of the matter, there will be rulings and decisions on

evidence and other matters of which he will be part,

indeed -

HIS HONOUR:  Would it not be the case that taking the narrowest

view of the word "review" and limiting the right

given by paragraph (h) therefore to something
analogous to judicial review as distinct from appeal

by way of rehearing the complaint that you make about

the constitution of the Board is an admiral

illustration of the very kind of thing for which

judicial review is appropriate.

"MR. BOULTBEE:  Your Honour, the complaint we make about the

Board is indeed amatter which is well suited to

judicial review. The use of the word "review" in

subclause (h) - there is not a decision on this,

Your Honour, but I would invite Your Honour to consider

that it is not a use of the word "review" in

contradistinction to the word "appeal" and because of
the matters that the court has considered, or the

commission would consider, in appeals from boards of
reference, and those are the matters that I referred

Your Honour to in the DALGETY AND COMPANY case which

go beyond matters of judicial review of the type which

is provided by writs of prohibition against officers

T6

of the Commonwealth.

Your Honour, there are other decisions relating

to the appeal from a board of reference which cause
some concern and which would, in my submission, render

it inconvenient and ineffective to use the words used

by the Court of Appeal by Chief Judge Widgery, Lord

Chief Justice, in HILLINGDON's case and which would

render the use of the prerogative writ more beneficial,

effective and convenient. They are matters to which

I will simply refer Your Honour without taking
Your Honour to the cases. In the matter of the

Clothing Trades(Tailoring Section)Award, (1948)

62 CAR 475, a matter which is on the list of

authorities, there is suggestion that the court there,

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and the commission in this award, will in effect

construe the appeal provision very strictly and

construe it to the effect that only matters which are

clearly put before it by the provision in the award will

be matters to which the court or the commission

should have reference. At page 479 of that case,

Your Honour -

HIS HONOUR:  I think it is sufficient if you just give me the

reference.

MR BOULTBEE: If Your Honour pleases. Likewise, Your Honour,

another matter which renders, in my submission, it

inconvenient and ineffective to proceed by way of

appeal,if this be a proper matter for appeal to the

Commission,is that in the SHIP PAINTERS AND DOCKERS

AWARD case, 53 CAR 380 - I have referred Your Honour

to that before - His Honour Mr Justice O'Mara made

it clear that in such cases it would be a prerequisite

for an application for review that there be compliance

with the Board's decision in the meantime and in a

case such as. the present one which involves

reinstatement, Your Honour, that would be a harsh and

inconvenient method of proceeding where, in my
submission, there is a clear defect in the constitution

of the tribunal which is remediable by the appropriate

remedy, namely a writ of prohibition which this Court,

Your Honour - and if Your Honour needs to be taken

further on this point, this Court has exclusive
jurisdiction in relation to officers of the Commonwealth

to issue such writs.

HIS HONOUR:	More is the pity.
MR BOULTBEE:	I appreciate that, Your Honour. That is why we

are here, Your Honour.

Are there other matters that I might be able to

assist Your Honour with?

HIS HONOUR:  No, I think I would like to hear Mr Haylen.

MR BOULTBEE: If Your Honour pleases.

HIS HONOUR:  Yes, Mr Haylen.

MR HAYLEN:  Thank Your Honour. In this matter, the applicant/

prosecutor seeks a stay of proceedings of the Board

in matter No A36 of 1987 and it is that particular

matter which brings our presence here and our desire

to make some submissions to Your Honour.

I want to come shortly to some of the authorities

which, because of travel arrangements, you do not have

a list from us, Your Honour, but I have them here at

the bar table and I can hand them up shortly,which are

of importance,in my submission, in this particular case.

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But before I do so, I would like to take Your Honour

back to clause 42 of the award which is set out in

Mr Smith's affidavit of 11 February in paragraph 3.

Also I will take Your Honour to some observations by

the court as to the function and purpose of boards of

reference which, I suggest, are helpful. You will

see that the Board of Reference is established under

clause (a) of clause 42. In (b) its constitution is

set out and as Your Honour has commented, it is

representative of the parties likely to be in conflict;

the Union has a representative and employers have a

T7 representative.

(c) Nominations for membership of the Board

and requests for changes of membership shall
be forwarded to the Industrial Registrar.

And then this provision in (d):

A person appointed to represent either the

Federated Liquor and Allied Industries

Employees' Union of Australia or the Employers

may appoint a substitute to act in his stead

at any time.

Now, that provision appears to be very wide and it

could, in my submission, even envisage that at the

resumption of a particular matter complained of, there
may be another person constituting the tribunal as

representative of the interests of the Union.

Then there is (e):

Three members, one of whom shall be the

chairman - - -

HIS HONOUR:  Excuse me interrupting you, Mr Haylen, but there

is no suggestion on the materials before the Court

of anything other than that Mr Barry proposes to

continue to represent -

MR HAYLEN:  I agree with that. I think that is the way it

stands at the moment.

HIS HONOUR:  And does it not have to be determined on the basis

of the materials - I mean, obviously if Mr Barry was

prepared to appoint somebody else then it brings

these proceedings to an end.

MR HAYLEN: Ultimately I am going to submit that there are a

range of convenient alternatives which make a stay

undesirable and on the authority usually adopted by

a court, unnecessary. But I am perhaps developing it

slowly but I will come back to that point.

HIS HONOUR:  There might have to be some undertaking on which

to base refusal of the stay.

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MR HAYLEN:	We would have to give consideration to that too, yes, Your Honour. If I could come back to that
point as I develop it later. In (e):

Three members, one of whom shall be the

chairman, one a representative of the

Federated Liquor and Allied Industries

Employees' Union of Australia and one a

representative of the respondent employers

shall constitute a quorum.

And (f):

The Board of Reference is empowered to deal

with the following matters:

(i)      The settlement of disputes on any

matters arising out of the award.

(ii) Matters specifically assigned to

it by the Cormnission.

Then there is (g):

A decision of the majority of members of the

Board including the chairman present at a

meeting shall determine the matter before the

Board.

Now, I will stop there. It seems to me again that that

is a broad and not a narrow provision. "The matter

before the Board" in December and in February was the

procedure to be adopted. The question was what type

of, how long is this case going to take, who are the

witnesses, how long do we need, and how is it to

proceed and an argument took place as to the

appropriateness of one of the members, the Union

member, to act in both capacities as Board reference

member and advocate.

We say that that is a matter that was before the

A decision of the Board of Reference may be reviewed and altered by the Cormnission on the

application of a party to this award.

Board. That becomes important in (h) because -

Then there is a proviso as to how that is to be done.

Now, in my submission, there is an appeal or a review

open to the Cormnission against the decision of the

Board of Review, that decision being the procedural

manner in which it will deal with this particular

T8	application. It is not a review limited to a final
decision. Now, my friend, I think, refers to a 1948 case for the proposition that in the past - in that case, at least, a board of reference provision
was construed narrowly.

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May I just remind Your Honour of two

provisions of the CONCILIATION AND ARBITRATION ACT

as giving, in my submission, some background to a

proper constructions of these provisions.

Section 35 of the CONCILIATION AND ARBITRATION ACT

concerns an appeal from a member of the Commission

and there are powers given in subsection (8) to

stay and order and in subsection (9) the Commission

on appeal -

may admit further evidence; and

(b) may direct a member to furnish a report

to the Commission .....

and may ..... confirm, quash or vary the award

or decision under appeal;

(d) make an award or decision dealing with the

subject-matter of the award or decision under

appeal;

(e) direct the member whose award or decision

is under appeal, or another member, to take

further action in the proceedings.

Section 35, as this Court has noted in previous cases

arising under the CONCILIATION AND ARBITRATION ACT,

is quite broad in its operation as is section 88F

which I think is probably the only other, for the

purposes of this argument, relevant appellate section

under the -

HIS HONOUR:  But they both use the word "appeal". Do you

suggest - are you drawing an analogy between those

provisions and the breadth of the powers they give

to the Commission and the power to review under

paragraph (h)?

MR HAYLEN:  I think I am putting it this way, Your Honour. It

is appropriate to construe the meaning of that

clause in the award against the industrial practices
demonstrated by the Act.	The Act has appeals in

section 35 and section 88F which are wide and allow

new evidence, virtually a rehearing of the matter.

That is why it is artificial to construe,in an award

made under that Act, a review power of a Board of

Reference narrowly. One would, in my submission, be

entitled to construe it broadly.

HIS HONOUR:  If they had used the word "appeal" there would be

considerable substance in your submission but I

wonder if the contrasting words do not militate

against that submission.

MR HAYLEN: One of the difficulties, I suppose - the strongest

case is undoubtedly as Your Honour has said, and one

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of the difficulties is construing awards of people

who are often not skilled in those subtle differences.

In an award - I think I can say from the bar table

his is not a standard clause. Some Board of Referance

provisions are more detailed. This seems to be a

fairly shorthand version of a Board of Reference

provision and - - -

HIS HONOUR:  There might be good reason for limiting the powers

of appeal or review from a Board of Reference. The

role that they play in maintaining industrial peace

within an industry under an award is often the kind
of role where they are convened readily to deal with

a minor dispute that needs to be resolved quickly and

as to which any review would be inconvenient and

disruptive of the peace of the industry. In other

words, are there not many situations where the parties

get at odds and they want a decision and the important
thing is the decision and the Board of Reference is

the means whereby they get it and having given it, that

is it.

MR HAYLEN:  Your Honour saved me the trouble of going to

HEGARTY's case because I think at page 631 in

147 CLR the description Your Honour just gave of the

role of a Board of Reference is almost identical to

what appears there.

HIS HONOUR:  I am in good company.

MR HAYLEN:  Your Honour is. The role is talked about in terms

of being an informal body constituted to deal with

minor industrial problems and to take advantage of

that informality and the speediness of the proceedings

T9 to enable matters to be quickly resolved. I do not

think it necessarily flows from that, because of the

rather unique place industrial relations have occupied
in Austrian history, let alone legal and industrial

history, that one can say that the review procedures

that follow, the appeal or however you term it, should

be almost automatically narrowly construed. When the

old authorities say that whether or not there is an
appeal is a matter to be dealt with in the Board
of Reference clause itself, once a review ability is

found or procedure is found as is here and nothing

else is said, it does not say it is limited in any way.

There really in that context, in my submission, is

no ground for construing that review process naturally.

Rather there would be good ground for having a full review of the industrial difficulty rather than

artificially keeping one out.

If one follows the line of reasoning that there

is public benefit in a quick and speedy resolution

of industrial disputation, it does not sit well with

that that any review proceedings would be narrow. It

C3Tl0/l/RB	14	15/2/88
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would rather sit well with that approach that any

review or appeal proceeding would not be narrow but

would allow the whole of the issue, even if argued

somewhat differently, to be aired so that the real

issue would be dealt with rather than to avoid it.

HIS HONOUR:  I would like to think that your submission was

right, Mr Haylen, if it was to mean that we could

adjourn this application and allow the application

for review, pursuant to paragraph (h), to be brought

immediately to the Commission.	And that is the
effect of your submission.

MR HAYLEN: That is the effect of my submission, yes, Your Honour.

HIS HONOUR:  But will it hold water. When you look at (g),

what is a decision? A decision is that which "shall

determine the matter before the Board".

MR HAYLEN: That is right, Your Honour, "the matter before the

Board".

HIS HONOUR:  And is that not the matter for which the Board

of Reference has been convened to determine?

MR HAYLEN:  See this is not - there are no procedures laid

down in this clause binding upon the parties.	The
procedure has to be worked out by the parties
themselves.	The matter before the.Board, on the two

times it has convened, is what procedure to adopt.

That is the only decision that has been made, the

decision that is objected to by the applicant/

prosecutor.

HIS HONOUR: 

But surely the matter before the Board is the

dispute which has given rise to the convening of
the Board.

MR HAYLEN: That is "the matter" in terms of the ultimate

dispute to be dealt with but part of that matter is

the procedural steps to be taken in dealing with that

dispute.

HIS HONOUR:  Then it would be manifestly inconvenient, despite

what you have said about the importance of securing
a simple and effective operation of the Board of

Reference, to think chat every procedural decision

the Board makes in running can be immediately the

subject of a review by the Commission.

MR HAYLEN: All the more, Your Honour, if every such procedural

step becomes the subject of first instance proceedings

here in this Court.

HIS HONOUR:  There are not, thankfully, quite so many cases as

give rise to prerogative writs.

C3Tl0/2/RB	15	15/2/88
Hellenic

MR HAYLEN:	But see the power and the discretions residing in the Commission - - -
HIS HONOUR:	Yes, the point you make is that there is a'ready

access to a resolution of the problem by application

to the Commission.

MR HAYLEN: That is so. That is really - - -

HIS HONOUR:  Can you throw any light on the practice to which the

chairman referred as being "common practice" whereby

a member of the Board also acts as an advocate. Has

there been any vindication of that practice by the

Commission or otherwise?

(Continued on page 17)

C3Tl0/3/RB	16	15/2/88
Hellenic

MR HAYLEN:  It appears to be known but never the subject, so

far as I can recall in my reading, any particular

reference in cases, adverse or - - -

HIS HONOUR:  How does it work? I take it the member would not,

himself, give evidence?	Mr Barry even seemed to be
taking that view.

MR HAYLEN:  Yes. Can I say the practice is not widely known

except to those who participate in the ooards, and a

very small select band of people do that.

HIS HONOUR:	Yes.
MR HAYLEN:	It happens from time to time, I can say, Your Honour,

in other jurisdictions where, for instance, in the New

South Wales Industrial Commission where conciliation

committees are formed and they have nominated

representatives from employer and employees but

they will give evidence and will not be excluded and
the commission has heard appeals on that basis from

participating in the decision making. But they are

almost never, in my experience and knowledge of the
system, advocates. So, it appears that the giving of

evidence in that system is not frowned upon but the

practice is not to be an advocate. In the federal

jurisdiction it appears to be the other way around

but it does appear to be a well-recognized practice

not hitherto reviewed.

HIS HONOUR:  Yes. I am conscious of the caution with which

one takes the principles of natural justice and

applies them to a board such as this without some

realistic appreciation of the nature of the board and

the function that it has to perform and, obviously,

it is not to be equated with a formal court of justice.

MR HAYLEN:	Yes.
HIS HONOUR:	But the readiness with which the active

participation of a member of a board of reference in

the presentation of submissions and the absence of

authority to either confirm or reject that procedure

does seem to lead to a rather unsatisfactory situation

and I wonder whether there is not merit in directing

that the application be made to a Full Court. I am

reluctant to take the time of the Court. It is a

very serious matter to take up the time of the Court

with the review of practice in a board of reference
but provided the matter you alluded to earlier in
connection with a stay was satisfactorily resolved,

there may be some merit in the interests of justice

and the functioning of the award and by analogy,

the functioning of other awards, if the procedures

obtaining in a board of reference were clarified.

MR HAYLEN:  Yes. I thought under the Rules governing prohibition

it was also possible for final hearing of prohibition

C3Tll/l/PLC	17	15/2/88
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to be dealt with by a single member. I am not sure

if this is one of those cases where - - -

HIS HONOUR:	Yes, I do not recall any single Justice taking the responsibility for determining that.
MR HAYLEN:	I cannot say I can inform Your Honour otherwise

about that.

HIS HONOUR:  I might be mistaken but I do not think so.

The distinction between granting an order nisi and

referring the application to the Full Court, as I

understand it, is that it marks a degree of caution

on the part of the Justice as to whether the matter
warrants the attention of the Full Court and it leaves
it open for the Full Court to sunnnarily refuse leave

without the necessity of reserving a decision and

Tll preparing formal reasons.

MR HAYLEN:	Yes.
HIS HONOUR:	I would be just grateful to have your submissions

on that course if I were to take it.

MR HAYLEN:  Yes. Well, perhaps if I can just take a bit of

time to get some instructions on that.

HIS HONOUR: Certainly.

MR HAYLEN:  But, of course, one of our great concerns is

the very nature of the case before the Board of

Reference; it is a dismissal which took place some

time before 5 December last year and if there is a

stay, of course, that person's right to have a

contest as to the correctness of the decision to

terminate just sits and awaits the ability of the

Court to hear the matter. That concerns us greatly.

HIS HONOUR:  Yes, certainly delay in a case such as this is

undesirable and there is a problem in allowing the

matter to go further without a stay because if I was

to receive an undertaking from you that the membership

of the Board would be wried, in other words, that

Mr Barry would appoint a substitute, as the basis

on which I would decline to order a stay. what happens
when the matter comes to the Full Court? The question

may then be moot.

MR HAYLEN:	Yes.
HIS HONOUR:	And I see that as·a difficulty. But at any

rate I have distracted you from the course of your

submissions but I thought it possibly helpful to me

to share what was in my mind.

MR HAYLEN:  Yes. I will shortly ask for a little indulgence

so I can speak to my instructing solicitor but perhaps

if I can finish the major thrust of my submission.

C3Tl2/l/PLC	18	15/2/88
Hellenic

Can I just refer, Your Honour, very briefly, to to page 484, and this was where there was - - -

HIS HONOUR: This was the OMEGA case?

:MR HAYLEN:  Yes, I think that is the other title by which it is

commonly known, Your Honour. There there was an

application that prohibition should be granted on the

basis of a denial of natural justice before a single

member of the Conciliation and Arbitration Commission
and in circumstances where there was then an appeal to
a Full Bench of that Commission and the matter then
came before a Full Court of this Court, and this is

the judgment of His Honour Mr Justice Mason as he then

was, at the beginning of the first full paragraph about

a quarter of the way down the page. He said this:

In any event, what happened before

Marks J cannot constitute a basis for prohibition on the ground that there was a

denial of natural justice. The BLF exercised its right of appeal to the Full Bench. On an
appeal the Full Bench may admit further

evidence and it may confirm, quash or vary

the award or decision under appeal or make

an award or decision dealing with the

subject matter of the decision under appeal -

those sections that I have taken Your Honour to are

set out.

In TWIST V RANDWICK MUNICIPAL COUNCIL,

this Court held that the existence of a full

statutory right of appeal on facts and law

was indicative of a legislative intention

that the citizen's only right of redress

against the council's failure to give him an

opportunity to be heard before making a

demolition order was by way of appeal. I

refer to my judgment in that case. See also

AUSTRALIAN WORKERS' UNION V BOWEN. The present case has some similarities

to TWIST. There is here a full appeal on fact and

law under s. 35. Moreover, s. 35(9)(a) enables

the Full Bench to admit further evidence.

Further, by reason of their very nature and
their capacity to create unemployment, to
dislocate industry and to disturb the life
of the community including the essential
services on which the community depends, industrial

disputes call for speedy and final determination,

an object which is best achieved by recognizing

that the remedy of a party complaining that he

has been denied natural justice at first

instance is to exercise his right of appeal under

s. 35 to the exclusion of pursuing relief by way

of prerogative writ.

C3Tl2/2/PLC

Hellenic 19 15/2/88

MR HAYLEN (continuing): And I do not read further there.

The applicability of that approach depends upon the

validity of the construction of the clause in the award

that I contended for earlier.

Could I then take Your Honour very briefly to another MARKS' case, I think, now, only reported,

so far as I am aware, in 34 ALR and I could hand
Your Honour a copy of that - at page 208. This was
a decision of His Honour Mr Justice Mason, again, as

he then was dealing with an application for a stay

in circumstances where the applicant had failed in

an application for an order nisi and then applied

for a stay of proceedings. There is some discussion

at page 211 which I do not take Your Honour to but

just to remind Your Honour that there His Honour

drew the distinction between staying a proceeding

and staying an order. I suppose the only analogous

point here might be if one construes a stay order here
as really being a stay of the order directing that the

procedure to be adopted in the Board of Reference

would be the continuation of the Union representative

as both advocate and Board member, but perhaps that

is more than a little removed from the facts of the

present case. But at page 212 - - -

HIS HONOUR:  You could apply that to your case, I suppose, in that

if the stay were to be construed as staying the order

rejecting the applicant's application to Mr Barry to

disqualify himself - - -

MR HAYLEN:  Yes.

HIS HONOUR: - - - and the decision e;iven on that application,

the proceedings could go on but he would be unable to

sit, but it is a bit tortuous.

MR.HA.YI.EN: 

Yes. Well, perhaps if I could take Your Honour to

the top of page 212 where His Honour continues the
discussion on the basis that the applicant suggested

that the special circumstances which arose were that the

demarcation order that had been refused and was

challenged was important to the organization because
the job was likely to finish and the issue become a
dead issue before the Court could deal with it and the

benefit of membership that it would otherwise derive

from a favourable order would be lost.

At the top of page 212 His Honour said:

I acknowledge that there is some risk

that the Federation will lose the right which

it claims unless a stay is granted. I recognize

also that so long as the Commission's orders

remain on foot there is a likelihood that riggers

engaged in work of this kind will consider that

the FIA will gain representative rights in other

C3Tl3/l/PLC	20	15/2/88
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projects and will consequently join that

union in preference to the Federation, with

consequential loss to the Federation. However, in assessing the detriment which the Federation

may suffer I have to take into account several

factors. They are:-

(1) That the grant of a stay of an order in

the exercise of the inherent jurisdiction is

an exceptional course.

(2) That the Federation failed to obtain an

order nisi for prohibition.

(3) That the right claimed by the Federation is

but a right to represent six to eight employees of EPT only and to represent them in connection

with their employment at this site when that

employment will, in all probability endure for

no more than 16 weeks.

(4) That the prospects of the Federation

succeeding in obtaining a writ of prohibition

are not, in my opinion, strong.

(5) That in the ordinary course of events, the

Federation's application for prohibition will

be heard by the Full Court at the beginning of

March and that there are reasonable grounds for

thinking that the court could give its decision promptly. If my expectation in this respect is

misplaced the Full Court could, if so advised,

then grant a stay.

T13	Your Honour, similar observations, I think, were made by His Honour the previous Chief Justice in
RE LUDEKE EX PARTE THE BUILDERS LABOURERS FEDERATION
referred to, I think, in the practice books as
"Unreported decision of 9 October 1985" where His Honour
said that - - -

HIS HONOUR:	A decision of who, Mr Haylen?
MR HAYLEN:	The then Chief Justice Mr Justice Gibbs.
HIS HONOUR: Sir Harry Gibbs.

MR HAYLEN: Yes.- the likelihood of success was an issue;

whether a party suffers a detriment; whether a stay

be granted or not, and where does the public interest

lie. On the approaches in both those cases we say

that the dismissal in early December 1987 in

circumstances where there are proceedings on 22 December

and 10 February and the further delay which will follow

if a stay is granted really raises an issue of unfairness

to a person, especially in this type of employment.

The likelihood of success, we say, on the basis

of MARKS' case must be in doubt and the public interest,

we would submit, lies here against the applicant/prosecutor

because of the role of reference boards, as I have already

referred to and as summarized in HEGARTY' s case and, Your Honour,

C3Tl4/l/PLC	15/2/88
Hellenic	21

what I would submit as being perhaps an unwarranted

encouragement for these types of proceedings to be

cormnenced here in this Court at first instance

rather than pursuing of available appeal rights and

on that basis the public interest aspect would be

against the prosecutor.

If I could just have a moment, Your Honour,

I might see if I can obtain some instructions on the

other matters that Your Honour has raised.

HIS HONOUR: Although, Mr Haylen, before you do, I have

a real problem in inviting you even to consider an

undertaking because the issue - we might simply be
putting the parties to the expense of preparing for

a case in the High Court before the Full Court and by the time it is called on the action is moot and

nothing could justify the Court in proceeding to deal

with it, and it seems to me that is a problem.

MR HAYLEN:  Your Honour, that may arise in any event, can I

say, because this was an issue raised at a board of reference. It would seem to me there would be no - this is perhaps telling against me to a certain extent

on the stay but it seems to me also that there would

be no inhibition on the Union raising, under section 25,

a notification of dispute as to the employment of
the person in question and having that dispute dealt

with on the recent RANGER case by the Conciliation

and Arbitration - - -

HIS HONOUR:  By the Cormnission?

MR HAYLEN: Yes, by the Cormnission. That would mean that

there really is no live issue remaining before the

Board of Reference in any event. Perhaps it is a course that goes both ways. But that is a possibility that

allows the personal issue of the member concerned to

be ventilated but may leave the issue of the

procedure at large.

HIS HONOUR:  What is the nature of the issues before the

Board of Reference? It is, firstly, an adjudication

or a decision as to the facts surrounding the conduct

of the worker that led to his dismissal?

MR HAYLEN: Well, Your Honour, as I understand it, it is

the allegation of not properly accounting for money

and a denial of the facts.

HIS HONOUR: 

Yes. That has to be gone into, arld in the light

of the decision the Board is empowered to order
reinstatement, is it?

MR HAYLEN:  Yes. I think that is all I can put, really, for

my client, Your Honour.

HIS HONOUR:  Thank you very much, Mr Haylen. Yes, Mr Boultbee,

why should you have a stay in any event?

C3Tl4/2/PLC 22 15/2/88

Hellenic

MR BOULTBEE: Well, Your Honour, an appropriately worded stay

we should have to prevent the Board, as presently

constituted, from continuing to hear the matter or to

prevent a board constituted with the same defect

from hearing the matter. It may be that the result of

an order nisi being made might be to induce

Mr Barry to have a substitute sit on the Board.	Now,
Your Honour, should that happen and should that

substitute also purport to represent the Union before the Board or represent the employee before the Board,

then we are no further advanced. So, what is necessary

to prevent a hearing proceeding which would have the

same defect as the current hearing is a stay which,

by its terms, would prevent such a constituted board

hearing the matter.

Your Honour, in practical terms it may well be

that the making of an order nisi will have the effect of remedying the defect that is presently seen by the prosecutor, at least in the proceedings, and the matter

may end up being resolved by consent if an order nisi

is granted. But until either that happens or the

determination of the question at issue, that is, the

question of whether an advocate can also sit on the

Board, it is my submission that in order to protect

the interests of the prosecutor it is necessary for a

stay to go.

HIS HONOUR:  What do you say to the point Mr Haylen has made

about the right of an innnediate review by the

Connnission?

MR BOULTBEE:	Under the provisions - - -?
HIS HONOUR:	Under clause 42?
MR BOULTBEE:	Your Honour, I would submit that on a reading

of the other subclauses of clause 42 the correct
reading with respect of that clause is that decisions

are only decisions on matters. That is apparent from

(g) where:

A decision of the majority of members .....

shall determine the matter before the Board.

And (f) sets out the matters which are before the

Board and in (i):

A copy of each decision of the Board of

Reference shall be supplied to all parties

concerned.

It suggests throughout that a decision is a decision

that would not, in a sense, be interlocutory in nature,

a decision finally determining the matter, and it is

my submission that that is the reading of subclause'(h)

which should be undertaken. And the authorities, limited

C3Tl5/l/PLC 23 15/2/88

Hellenic

as they are on the question of appeals or reviews

by the Cotmnission or the Court, as it used to be, from

boards of reference indicate that it is taken by those

who looked at the question to date in those

Cotmnonwealth Arbitration Report decisions to which I have referred Your Honour to be a final determination

of the matter before the Board.

HIS HONOUR:  Yes. What do you understand by the use of the

term "advocate"? I mean, it would not be sufficient

to attract the rules of natural justice merely to say
that a member of the Board has, in the course of his

acting as a member of a board of reference, a role

which at times can be that of advocacy, but the

complaint really must go further, must it not, and

be that the member actively involves himself in the

presentation of the case for one of the parties?

MR BOULTBEE:	Yes, Your Honour.
HIS HONOUR:	Is that the point of which you would say

that really goes beyond the line however much

one may excuse the combination of roles in a member

of a board of reference when he purports to go to

that further exercise of function?

Tl5 MR BOULTBEE: I would say that, Your Honour, yes. And that

is consistent with the decision in THE AUSTRALIAN WORKERS'

UNION V BOWEN, (l948) 77 CLR, where His Honour

Mr Justice Dixon was looking at a similar question of

a prosecutor and a judge.- it was a domestic tribunal	there, Your Honour, the executive council of a union,
but His Honour, with respect, delivered a decision which ran along the lines that Your Honour is thinking
now, that it is at the stage where the advocate becomes
actively involved in presenting the case that it becomes
a matter where it is not appropriate, even in a
domestic tribunal, for the advocate to be involved
as part of the tribunal hearing the matter. Pages 630
and 631, Your Honour, the last paragraph on that page - and again, Your Honour, I repeat that it is a matter
where it was a domestic tribunal and His Honour makes
the point that in domestic tribunals it is quite often
the case and must be that members of a cotmnittee are also involved to an extent in the matter that comes
before the cotmnittee. But at page 631, at about
point 4, he says, in relation to the secretary of the
union, and makes a distinction in relation to him from other members of the executive council of the
union which had had some involvement in the matter:

at the hearing of the charges he assumed

the functions of a prosecutor and so to

speak presented the case in support of the

charges to the Council. It is true that the

rules make him a member of the Council as

general secretary and require the general

secretary's attendance. But they do not

make his presence indispensable and do not

C3Tl6/l/PLC	24	15/2/88
Hellenic

necessitate his participation in the decision

of questions in which his interest or concern

makes it improper.

I think His Honour goes close to finding that there

may have been even actual bias in that but the

appearance of bias or the appearance of the
inability to have the rules of natural justice

apply is sufficient, Your Honour. And, again, it is

in this particular matter before the Board of Reference

to which the prosecutor would say the rules of

natural justice should apply to prevent the same

person being an advocate and a member of the Board.

In other matters which are more in the conciliation function, I suppose, of the Board dealing with

alterations in conditions and so on, it would seem

not to be inappropriate for a member of the Board also
to be putting the point of view of the party on whose

behalf he has been appointed to the Board. But where specific rights of individuals and of the

prosecutor here are concerned, it becomes a matter

where there is a necessity to act judicially and that

is when the rules, in my submission, should come

into play.

HIS HONOUR:  Yes. Would you wish to say anything to

a proposed order that I direct that you make the

application to a Full Court and that I decline to
grant a stay? The arguments, as I see it, in support
of rufusing a stay, the primary one, is that the

subject-matter of the proceedings is not likely to

be destroyed. If the fribunal is allowed to proceed,

it meets the very proper considerations towhich
Mr Haylen has referred of the interests of justice

of the particular worker. If the application to the

Full Court succeeds and prohibition issues then,

of course, any decision that will have been made
or if the Board has already mace a decision by then,

will be set at nought but, on the other hand, if the

Board is reconstituted there may be no occasion

for you to continue with the application, but I

should give you an opportunity to be heard before I

Tl6 pursue that.

MR BOULTBEE:  Yes. Your Honour, that course has some attraction

for the reasons that Your Honour has mentioned but,

with respect, the same practical considerations can

apply if there is an order nisi granted - and the order

nisi that is sought, Your Honour, is in a particular

form that goes to the hearing of the matter by the Board as presently constituted - and, Your Honour,

it woul~ allow, in my submission, the hearing

to continue before a board differently constituted.

HIS HONOUR:  You mean, with a member of the Board continuing to act as an advocate?

C3Tl7/l/PLC	25	15/2/88
Hellenic

MR BOULTBEE:	I am sorry, Your Honour?
HIS HONOUR:	Do you mean it might continue with a different

member of the Board representing the Union and that
member might continue to do as Mr Barry had proposed

to do, namely, act as an advocate and take an active

part in the presentation of the case?

MR BOULTBEE: That would not solve the problem, Your Honour.

HIS HONOUR: I know, but is that the horrendous possibility

to which you are referring?

MR BOULTBEE: That remains a possibility, Your Honour. That

is one of the difficulties that still prevails. The

other difficulty, I suppose, is Mr Barry's involvement

on the Board at all. It is not a solution - I do not

think it comes up under either of the proposals -

under the proposal that Your Honour puts, nor would it

be permissible if the order nisi is granted.

If Mr Barry were simply to replace himself as an advocate

I am not sure that that would solve the problem that

has already arisen because of his earlier involvement

but that is not before Your Honour, really.

HIS HONOUR:  It would take a lot of the sting out of your

anxiety given that the hearing has not yet connnenced.

MR BOULTBEE:  Indeed, Your Honour, but the prosecutor is in

a situation where, as is shown from the transcript,

it invited, at the beginning, for Mr Barry to appoint

some other member to be a representative of the Union

on the Board from the beginning and for the proceedings

then to continue. That invitation was declined and

that is why we are here, with respect.

HIS HONOUR:  But nothing has transpired in the hearing since

that invitation was declined?

MR BOULTBEE: Except, Your Honour, that a ruling was made as

to legal represerttation by the -

HIS HONOUR: Well, I suppose if an advocate were appointed,

then the Board would remain as presently constituted

and if you renewed the application you would meet with
the same response but you cannot draw a great deal from

that I would not have thought.

MR BOULTBEE:  No, Your Honour. The complaint of the prosecutor

is the sitting of Mr Barry on the Board whilst he is an
advocate. The order nisi that is sought would prevent the

Board so constituted from hearing the matter and that with an appropriately worded stay and; Your Honour, it

would allow for reconstitution of the Board and for the

hearing to go ahead in the interests of the parties

in the way that has been mentioned. But, Your Honour,

C3Tl7/2/PLC	26	15/2/88
Hellenic

without a stay, at least to that effect, there is the

possibility that the same problem might result.

HIS HONOUR:  I think the refinements are manifold that one

could read into the situation but I have heard -
anything else you would like to say?

MR BOULTBEE:  No, Your Honour.

HIS HONOUR:  Thank you. Did you wish to say anything arising

out of that last discussion with Mr Boultbee?

MR HAYLEN:  No, nothing further, thank you, Your Honour.

(Continued on page 28)

C3T17/3/PLC	27	15/2/88
Hellenic

HIS HONOUR:  I think that the appropriate order is for me

to direct that the application be made to a Full

Court. I decline to order a stay for the reasons

that I shortly indicated a few moments ago.

Firstly, the inherent power of the Court to grant

a stay in a matter when it is at the stage that

the present matter is at is a power which must be

exercised with extreme caution. Secondly, it

will ordinarily be granted only where there is a

likely destruction of the subject-matter if a stay

were not granted. The present case does not fall
within that category. As I have indicated to

Mr Boultbee, if the application is made and were

to succeed in the Full Court granting prohibition,
then any proceedings of the Board as presently

constituted would require to be viewed in the

light of that writ of prohibition. If, on the

other hand, the constitution of the Board is varied,

then it may well be that the applicant has

achieved its object and that there is no further

cause for complaint.

So, the order of the Court is that the applicant

make his application to a Full Court and that there

be no order for a stay. Is there anything else

requiring to be considered?

MR BOULTBEE: Nothing, thank you, Your Honour.

MR HAYLEN:  No, Your Honour.

HIS HONOUR: That concludes the matter.

AT 3.43 PM THE MATTER WAS ADJOURNED SINE DIE

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Hellenic