Re State Public Services Federation; Ex parte The Attorney-General for the State of Western Australia

[1993] HCATrans 341

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---	Law Courts Building
OF PROCEEDINGS

........	1 Victoria Avenue
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AUSCRIPT	GPO Box 9955
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IDGH COURT OF AUSTRALIA

TOOHEY J

No wmo of 1993

STATE PUBLIC SERVICES FEDERATION

ex parte	THE ATTORNEY-GENERAL FOR THE STATE OF WESTERN AUSTRALIA
PERTH

statt 5.11.93 17

10.01 AM, FRIDAY,	5 NOVE1\.1BER 1993
Continued from 3/11/93

ms HONOUR:	Ms Wheeler, I have seen the minute of draft order
rus1.

MS WHEELER: Yes.

ms HONOUR: I have some comments to make on it. It seems to

5          me that, at least in one respect, it is wider than is necessary; by that I mean it ropes in all other members of the commission which seems a bit extravagant since it is only Deputy President MacBean who is

really - - -

MS WHEELER:  Who's presently seized of the matter.

10        ms HONOUR: Yes.

MS WHEELER:  Could I just mention to your Honour the reason

for that.  I took away what your Honour had said and looked at some

ways of - originally I thought of just taking in Deputy President MacBean. And in some of the earlier cases we noticed that the

15 whole of the commission had been the subject of the application and when one comes to look at Division 2 of Part VI of the Industrial Relations Act, it rather seemed that there are duties laid generally on all of the members of the commission once an industrial dispute has been found - or at least on a relevant presidential member to refer it

20	to any member of the commission. So although at present the
dispute' s with Deputy President MacBean, it seemed that there might be a question that perhaps it ought to be referred to some other member if he was unable to deal with it.
ms HONOUR:  But since you are not seeking a stay, in a sense that
25	would not achieve anything.  I mean, either the commission would

proceed or it would not proceed.

MS WHEELER:	One would assume it wouldn't proceed in the light
of these - - -
ms HONOUR:	One would assume that it would not proceed. It

30          just seemed to me that it was probably necessary only to add Deputy

President MacBean. But before making any decision about that, it

just raises a question as to whether the relief that is sought sufficiently picks up the matter that concerned me at the last hearing; namely, the earlier decision itself - that is, the decision of Deputy President

35           MacBean - as opposed to the interim decision of the other named members of the commission.

statt 5.11.93 18

I think it probably does so far as the writ of prohibition is concerned because that identifies the two matters that were before the deputy president and I do not envisage any problem there. Certiorari is directed only at those members who constituted the commission for

5           the purpose of the interim decision and maybe that is all that is needed so far as the earlier decision is concerned if prohibition is sought in respect of that.

MS WHEELER:  That seemed to us to be the case for the reasons

that I submitted to your Honour on the last occasion.

10	ms HONOUR:  And I suppose so far as mandamus is concerned,
that can really only lay in respect of the interim decision, not the earlier one.
MS WHEELER:  Yes, your Honour.

ms HONOUR: So it may be that the qualms I had about the body

15          of the draft order nisi really are not warranted but I just wonder if it would not be enough then to simply add Deputy President MacBean as a first respondent leaving out the reference to all other members for the time being of the Australian Industrial Relations Commission.

MS WHEELER:  In the light of what your Honour's said, we'd be
20	happy to do that.  I mean, it was taken as a perhaps unnecessary
precaution in the light of the fact of the act apparently being directed to the whole of the commission and giving the whole of the commission jurisdiction and, as I say, in the light of the earlier practice.
25	ms HONOUR:  Again assuming there are no interim steps taken or
interim orders sought, then if the application were ultimately successful it would have the effect, if your argument was accepted
and prohibition issued, that that would effectively, I suppose, put an

end to the finding of industrial dispute and in a sense that is that.

30           MS WHEELER: Yes.

ms HONOUR:  And if it is not successful well then it does not gain

any strength by roping in the other members of the commission.

MS WHEELER:  Yes. I take your Honour's point about that and

perhaps I might make the amendment now.

statt 5 .11. 93  19 

ms HONOUR:  I would be prepared, in the light of the discussion

last time and the view I expressed there, that there is an arguable case
for the issue of prerogative relief to grant an order nisi in terms of
this minute deleting only the reference to "and all other members for

5           the time being of the industrial commission" in the title of the proceedings and substituting "Deputy President MacBean" who probably should appear first, I suppose, in the sense that chronologically he was the member of the commission first seized of the matter.

10 MS WHEELER:  Yes, that would seem to be correct, your Honour,

with respect.

ms HONOUR:  Well, if you have nothing to say in regard to an

order nisi in those terms, an order will issue. I do not think there is

any need for you to send up a further draft, since that is the only

15           changes being made, unless there is anything else that you are seeking by way of variation.

MS WHEELER: No. Apart from the heading, there will have to be some consequential changes in the body where the "members for the time being" are referred to.

20	ms HONOUR:  Yes. Well, perhaps you had better send up a
draft.  I do not want you to come back again of course but if that

seems satisfactory then I will simply initial it and an order will issue. So far as the return date is concerned, I suppose the best thing to do is to nominate the first day of the December sittings. It will not be

25           heard then, obviously; it will not be heard until sometime next year. So I will make the return date, nominally, 7 December 1993 at the hour of 10.15 o'clock in the forenoon.

Well, in view of the fact that there may be consequential changes,

perhaps if sometime - hopefully before the end of today - I could see

30           that and initial it and there will be an order in the terms of the draft order nisi as initialled by me.

MS WHEELER:  If it please, your Honour.

ms HONOUR: Yes. Thank you, Ms Wheeler. The court will

adjourn.

35           AT 10.09 AM THE MATTER WAS ADJOURNED UNTIL TUESDAY, 7 DECEMBER 1993

statt 5 .11.93 20