Re Printing and Kindred Industries Union; Ex parte Vista Paper Products Pty Limited

[1992] HCATrans 267

IN THE H~GH COURT OF AUSTRALIA

Office of the Registry

Sydney	No Sll0 of 1992
In the matter of -

An application for writs of

prohibition and certiorari

against the Full Bench of

the Australian Industrial

Relations Commission

comprising VICE PRESIDENT

MOORE, DEPUTY PRESIDENT

POLITE$ and COMMISSIONER

MERRIMAN

First Respondents

DEPUTY PRESIDENT RIORDAN

Second Respondent

PRINTING AND KINDRED

INDUSTRIES UNION

Third Respondents

Ex parte -

VISTA PAPER PRODUCTS PTY

LIMITED

Prosecutor/Applicant

GAUDRON J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 14 SEPTEMBER 1992, AT 10.15 AM

Copyright in the High Court of Australia

Vista(3) 1 14/9/92

MR R.G. KAYE:  If Your Honour pleases, I appear for the

prosecutor. (instructed by Brian Robinson & Co)

MR s.c. ROTHMAN: If the Court pleases, I appear for the

~nion respondent with my learned friend,

MR R. REITANO. (instructed by Turner Freeman)

HER HONOUR: Yes, Mr Kaye.

MR KAYE:  Your Honour may recall this matter came before

Your Honour on or about 15 May at which time
Your Honour granted leave to the prosecutor to file

a notice of motion in related proceedings to the

application that is before Your Honour today.

Those proceedings dealt with an award of the

Australian Industrial Relations Commission made by

Deputy President Riordan on 18 December 1991.

Does Your Honour have a bundle of documents

that ought to have - - -

HER HONOUR:	I have several, I think.
MR KAYE:	Your Honour, there ought to be a folder, I think,

that might have been~

HER HONOUR:	This is the folder that appeared this morning?
MR KAYE:	Yes.

At the front of that is an outline which I would hope might abbreviate matters somewhat.

HER HONOUR: Yes, thank you.

MR KAYE:  In essence, Your Honour, the award which was the

subject of a determination before the Deputy

President was appealed from and went to the Full

Bench of the Australian Industrial Relations

Commission and it was in relation to that decision

that prerogative writs were sought in relation to

that decision and that matter came before

Your Honour, at which time Your Honour referred the

notice of motion to a Full Court sitting which is

to take place, I understand, on 23 September, next

week.

Since Your Honour made that order what

occurred was this: there was an outstanding issue

before the Full Bench of the Commission and,

perhaps in relation to that very briefly,

Your Honour, I might just take you to one part of

the judgment of the Full Bench which can be found

at page 101 in the blue numbers on the right hand

corner, and Your Honour will see at about point 6

on the page that the Commission refers to the fact

that:

Vista(3) 2 14/9/92

It is not clear to us what the effect of

the Reinstatement Award is -

for a certain period of time. Your Honour, I

should just indicate this award was handed down on

·1a December 1991. On the face of the award - and

that award appears at page 65 of the bundle - it
was said to operate on and from 16 December 1991,

but then in clause 3(a) on page 65 the award

provided for reinstatement of certain named persons

on and from 10 July 1991, so for a period of some

six months or so prior to the date in purported

operation of the award.

Now, it was that issue that the Full Bench was

dealing with at page 101 and the bench there notes,

at the foot of page 101, that there did not seem to

be any explanation for the decision as to why the

learned Deputy President decided that the award

ought to operate from 10 July. There is a

reference made to an exchange between counsel, some

form of concession. Then at page 102, the

beginning of the second paragraph, the Full Bench
expresses its view that these matters have not been
adequately addressed and deserve further

consideration.

Having said that then at the foot of page 102

the substantive appeal is dismissed, save to that

issue dealing with the operation of the award

between 10 July 1991 and December 1991. That was

adjourned. That was the position, as it were, when

the matter was brought before Your Honour on the

last occasion.

Since that time, Your Honour, the matter was

ventilated before the Full Bench and it was only
recently that a judgment was handed down. That

judgment is exhibit RMS to the affidavit of

Mr Marshall of 8 September 1992 upon which we rely

for the purposes of the application today. The

essence of that decision - and if I could very

briefly take Your Honour to a part of it - if I

could take Your Honour to page 125 of the bundle,

page 8 of the substantive judgment, and

Their Honours deal there, at about point 8, with

one possibility, as it were, namely that the award

might, on one view, be construed as creating:

obligations that were impossible to comply

with, such as recreating the employment

contract between Vista and the employees -

in effect, retrospectively, then they go on to say

what they think the Deputy President did have in

mind over on the top of page 126. Then after

analysing what they think the learned Deputy

Vista(3) 3 14/9/92

President did have in mind, towards the foot of

page 126, they express doubt as to what he did in

fact have in mind and that leads them to make a

direction, over on page 127, pursuant to
section 45(7)(c) of the Act, in combination with
~ection 113, and in effect refer the matter back to

the Deputy President "for the purpose of removing

uncertainty or ambiguity" which he might perceive

in relation to the award and in effect clarifying

the intended operation of the award.

Your Honour, the purpose of today's

application is essentially, firstly and foremostly,

by way of completeness in order that the Full Court

might be apprized of the totality of the picture,

at least in relation to this one last item of

retrospectivity. That is the first basis upon

which we put it •

There is a second basis that I have adverted

to in the outline, a sort of independent ground, as

it were - - -

HER HONOUR:  I really do not understand what you aim to

achieve by these proceedings, Mr Kaye. What is it

you want? Do you want an order nisi?

MR KAYE:	We do ultimately, Your Honour.
HER HONOUR:	For what, and against whom, and in relation to

what?

MR KAYE:  Your Honour, in so far as the referral now to the

Deputy President is concerned, we would want an

order for prohibition restraining the learned

Deputy President from further proceeding with the

hearing of the matter.

HER HONOUR:  Is that not comprehended in your original

. application?

MR KAYE: It is, Your Honour.

HER HONOUR: 

So this is a duplication of what is - - -

why I put the matters chiefly on the basis that the
primary basis upon which we are here is really to
ensure that the judgment is available for the Full

MR KAYE: 

The way we put it, Your Honour, is that - that is

Court.

HER HONOUR:  You could seek leave to file a supplementary

affidavit before the Full Court, can you not?

MR KAYE:  There were inquiries made in relation to that and

as I understand it, the position taken by the

registry was that bearing in mind the proximity of

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the hearing, this would be the appropriate course

and, indeed, to enable the respondents to appear if

need be and make any submissions if they

thought -

HER HONOUR: About what?

MR KAYE:  As to, for example, the feasibility of

incorporating this material within the allotted

time on 23 September before the Full Court. But

Your Honour has asked me whether the - - -

HER HONOUR:  I would be prepared, perhaps, to give

directions about service so that you were in a

position to raise the matter before the Full Court

but I cannot really see how you are seeking to do

anything other than duplicate what is already

involved in your earlier application.

MR KAYE:  Your Honour, there is a certain amount of

duplication involved. Certainly the issue of

retrospectivity is something that was already in

the original motion before the Court for next week,

and there is no question of that •. Of course, the

issue had not been dealt with in any real sense by

the Full Bench at that stage. For our part, if I

may adopt at least some of Your Honour's thinking

by saying that we would certainly be content with

orders in relation to service. It is really the

mechanics of ensuring that we have an ability to

put the judgment before the Court. That is our
primary - although there is a secondary matter

which I will be taking Your Honour to.

HER HONOUR:	What is the secondary matter?
MR KAYE:	Your Honour, what we say, in relation to section 113 which was the power upon which the Full Bench
relied in directing the Deputy President to vary the award, is that the Commission may vary in
certain circumstances and particularly if it
considers it desirable for the purpose of removing
ambiguity or uncertainty~  That then was married up
by the Full Bench with section 45(7)(c) which
contemplates directions being made for the taking
of further action or for the Deputy President to
act in accordance with any directions which the Full Bench may make.

We really put it on this basis, Your Honour,

that what the Full Bench has, on proper analysis,

done is to, in effect, direct the learned

Deputy President to rewrite the award as he thinks fit without furnishing any specific directions as

to what the Full Bench required and, in short, our
point is that section 113, whilst there are

certainly areas where one might imagine that

Vista(3) 5 14/9/92

section could be brought to bear where there are

changed circumstances and the like, where one is

dealing with, in effect, the same material and the

same evidence and so on, it is not open to the

Commission to direct the Deputy President to, in ·effect, redecide the award on any basis that he may deem fit in relation to any aspect of uncertainty that might be thought to apply in relation to the

award.

HER HONOUR:  Well, I do not follow that. How does that

involve a jurisdictional issue which would attract

a prerogative writ?

MR KAYE:  Your Honour, what we say is that because the

Full Bench did not have the power to so direct the

Deputy President, that accordingly the

Deputy President ought to be restrained from now

further dealing with any purported variation of the

award. But we put it that that is probably all I

can say in relation to that.

HER HONOUR:  Mr Kaye, is this the case? If you succeed on

the issues before the Court next week, all of this

is academic.

MR KAYE:	Yes, I accept that.
HER HONOUR:	If you do not succeed, it is in your interests,

is it not, that Deputy President Riordan make clear

what he thought should happen?

MR KAYE: Yes, I cannot really quarrel with that

proposition, Your Honour. I cannot really quarrel

with that. Certainly, in relation to the former,

Your Honour, if we were to succeed, then this

application, to the extent that it is anything

beyond procedural, is academic, Your Honour. That

is why, Your Honour, I was attempting to emphasize

in opening that really we are only here to ensure

be available for the Full Court, bearing in mind that, as a question of completeness, the judgment the issue of retrospectivity has already been
referred to it for consideration.

HER HONOUR: Yes.

MR KAYE:  Your Honour, unless there is anything further, we

would certainly, if I may say so, adopt

Your Honour's suggestions in relation to service.

HER HONOUR:  There was no service on the Commission

respondents of this application, was there?

MR KAYE:  No, I do not believe there was, Your Honour.

Vista(3) 6 14/9/92

HER HONOUR:  But there obviously was on the Union

respondent?

MR KAYE:  Yes. Thank you, Your Honour.

HER HONOUR: Yes, thank you. Yes, Mr Rothman.

MR ROTHMAN:  Your Honour, I, perhaps understandably, relied

on the application that is before the Court today

and drafted an outline of submissions in relation

to that. Can I hand Your Honour a copy of that?

HER HONOUR: Yes, thank you.

MR ROTHMAN:  Can I say this: Your Honour, we would - and

paragraph 1 makes that clear - suggest that the

substantive issues raised in the application before

the Court today are, in fact, raised in the earlier

matter and for that reason we have no objection to

the later decision being referred to the Court and
it being before the Court in terms of the

application that is before the Court.

We have, however, drafted our outline of

submissions - firstly, we concede that in

paragraph 1 and we see that as the primary issue

before the Court today. In paragraphs 2 and 3 we

deal with two different points. Paragraph 3 of our

outline does not seem now to be raised by my

learned friend. Can I take Your Honour to the

draft notice of motion that is before the Court

today, and Your Honour will see that in the grounds

and reasons - well, perhaps I should take

Your Honour before that: in the actual orders that

are proposed, paragraph 1 seeks a writ of

prohibition. We have no objection to

paragraph (a), assuming it be a separate notice of

motion. We have no objection to paragraph (a), but

we have objection to paragraph (b) in so far as it

deals with the term "or vary the award".

HER HONOUR: There is no suggestion that anything is going

to happen in the Commission between now and this

matter being heard by the Full Court, is there?

MR ROTHMAN:. I think that is probably right, Your Honour.

HER HONOUR: Or, indeed, in any other jurisdiction, I

presume.

MR ROTHMAN: That is certainly correct. Even if we were

minded to make application for enforcement of the

award it, clearly, would not occur before the

matter was determined by the Court.

In any event, paragraph 3 of the grounds raise

a question which we really had no idea what it

Vista(3) 7 14/9/92

meant. I understand from my friend it is not

pressed and therefore it is unnecessary for

Your Honour to deal with paragraph 3 of our

outline. It really raises a natural justice point

which we understood was not being. raised or could

. not be raised and we put some submissions in

relation to that which are not now pressed.

In relation to paragraph 2 of our outline,

that deals with what I will call a section 45(7)

point that my learned friend seeks to raise, and

Your Honour described it perhaps as academic if my

(7)(c), there is clear and express authority for the Full Bench to refer back

learned friends are successful before the Court. consideration subsection

to a member from whom there is an appeal the matter
to deal with further. Therefore a notion of

functus officio in those circumstances really

cannot be, in my respectful submission,

appropriate.

Secondly, what, on a jurisdictional basis,

must concern the Court is whether there is under

the Act any jurisdiction to vary the award, and we

would remind the Court that section 33 of the Act

provides that:

the Commission may perform a function or

exercise a power:

(a) of its own motion -

in any event. Section lll(l)(f) gives the power to

the Commission to:

set aside, revoke or vary an award •••.. or

other decision of the Commission -

and, in my respectful submission, there is no

jurisdictional basis which would prevent

Deputy President Riordan from further dealing with

the award made on 18 December.

For that reason, we say that there is not an

arguable case that would allow the grounds which

relate to section 45(7) to go before the

Full Court. We, however, as I have said, concede

that the decision itself, in so far as it raises

the jurisdictional point of retrospectivity in

relation to a reinstatement award, should be before

the Court to complete the matters that are finally

decided in this matter. If the Court pleases •

HER HONOUR:  Thank you, Mr Rothman. Anything in reply,

Mr Kaye?

MR KAYE:  No, Your Honour.

Vista(3)	8	14/9/92
HER HONOUR:	Mr Kaye, what I would propose to do is this:	I

would propose to give you-leave to the extent that
that is necessary to file a further affidavit in

the original proceedings bringing the history of

them up to date; direct that you serve that

affidavit on all respondents, such service in

relation to the Commission respondents to be in the manner directed for the service of the documents in

the original application, and direct that you

should have sufficient copies available when the

matter is heard in Canberra for the Court to have

access to those documents.

But you should made your application to the

Court formally on that occasion for leave to tender

the material and, I think, otherwise, simply stand
the application before me over to await the outcome
of the earlier one because it seems to me
inevitable that the determination of what I shall

call the main matter will conclude this matter.

MR KAYE:  Yes. Thank you, Your Honour.

MR ROTHMAN: If the Court pleases.

HER HONOUR:  Is there anything else that need be done?

Thank you. Well, I will order accordingly.

AT 10.41 AM THg MATTER WAS ADJOURNED SINE DIE

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