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

[1993] HCATrans 340

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IDGH COURT OF AUSTRALIA

TOOHEY J

No WWH30 of 1993 P3o

STATE PUBLIC SERVICES FEDERATION

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

10.00 AM, WEDNESDAY, 3 NOVEI\IBER 1993

statt 3 .11.93 1

HIS HONOUR: Ms Wheeler?

MSC.A. WHEELER:  May it please your Honour, I appear with

my learned friend, MR K.M. PETTIT, for the Attorney-General for

Wes tern Australia.

5 HIS HONOUR: Yes, thank you. Ms Wheeler, there was a

message that suggested the respondents, or the effective respondent,

had been served papers and might be appearing this morning.

MS WHEELER:  Yes, as a matter either of courtesy or

inadvertence, one of the two.

10	HIS HONOUR:	Sounds like the second.
MS WHEELER:	The affidavit was served immediately after it was

filed in this court and we had at the Crown Solicitor's Office a

message this morning from the solicitors instructed by the second

respondent to say they'd only just received instructions. I understand

15           they had been thinking of appearing but decided not to in the circumstances.

ms HONOUR: Well, in the ordinary course unless relief was sought by way of a stay or something of that like the respondent would not be heard on an application for an order nisi.

20 MS WHEELER:  No, there is nothing of that kind sought.

ms HONOUR: All right. Well, then let us proceed.

MS WHEELER:  Could I begin by handing up to your Honour an

outline of submissions.
25	MS WHEELER:  As your Honour will appreciate this is the middle
claim, as it were, of three made by the second respondent against essentially the same parties, the first of which was dealt with in the

ms HONOUR: Yes, thank you.

.,. SPSF case which was determined by this court.	The latest has yet to
be considered.	Looking at the chronology this demand was delivered

30          well before the decision of this court in the SPSF case and was perhaps intended to safeguard against the result which in the event followed in that case, the finding that there was no dispute and to

statt 3.11.93 2

meet the criticism that a flat demand for the same salary for all
employees was unrealistic.

Now the commission's finding in this case, as your Honour will see from the chronology which is set out in the affidavit of Kenneth

5          Malcolm Pettit was made well before the decision of this honourable

court when it was handed down in the SPSF case. The position then

was in effect that there had been, as your Honour will recall, a
finding of dispute in relation to the first demand and in the light of
that earlier decision of the commission and there being no decision of

10          this court at that stage the commission could hardly hold otherwise than it did information to this demand when it made its determination on 7 September that there was in relation to this claim a dispute in existence and the State of Western Australia recognised that position that the commission really could hardly do other than it had done

15	already. . __ . ____ ...... .
ms HONOUR:  Could I just take you to that date, 7 September.

According to the affidavit, and I have read the papers although I have not read the decision of Deputy President MacBean in any detail, it is a very lengthy one.

20 MS WHEELER:  No, and I want to take your Honour to that in a

moment.

ms HONOUR:  And much of it I would take to be not particularly

relevant to the relief that is sought today, but the finding of an industrial dispute was made apparently in relation to the second

25           demand on 30 March 1992.

MS WHEELER:  Yes, I am sorry, your Honour, that was a finding

of dispute - - -

ms HONOUR:  But it was not a finding that extended to Western

Australian employers.

30 MS WHEELER: That's correct, yes, and on 7 September it was

varied to extend it to the '85 Western Australian public sector bodies
so that relevantly for Western Australia 7 September was the date

although there was that earlier finding.

ms HONOUR:  Did that variation of 7 September follow a further

35           hearing?

statt 3 .11.93 3

MS WHEELER: There was a hearing, your Honour. The transcript of it is found at exhibit E to the affidavit, and if I could

talce your Honour to the relevant - it seems to us to be the relevant

passage, it appears at page 345 of that transcript. It perhaps starts a

5 couple of pages earlier at 343. What happened there was at - - -

HIS HONOUR:  Could I just interrupt you. I do not quite see how

that ties in because exhibit G is concerned with the proceedings that
took place on the - I am sorry, exhibit E, which is what you referred

me to - relates to proceedings that took place on 30 March 1992.

10 MS WHEELER: Sorry, exhibit E, your Honour, is concerned - yes,

some of it is. There is a couple of pages dealing with 30 March.

HIS HONOUR: I see, yes.

MS WHEELER:	I am sorry, your Honour, and then it goes on - - -
HIS HONOUR:	No, no, it is my error so there is a second lot of

15           material that picks up a hearing on 7 March.

MS WHEELER: Yes, it follows on from that and it's at that point that the decision was actually varied to extend to Western Australia. And what had happened in those proceedings, as your Honour will

see, was that both the SPSF and Deputy President MacBean were

20           advised that Western Australia did not at that time intend to lead evidence or malce submissions but they also didn't concede

jurisdiction. There was a letter tendered setting out the Western

Australian respondents positions and that is exhibit F. It essentially

says that the state and its instrumentalities repeated, or maintained the

25           position which they'd talcen in the earlier proceedings which at that stage were the subject of an application to this court.

HIS HONOUR: Yes.

MS WHEELER:  And then that, being the position, it's at page 345

that the determination in relation to the Wes tern Australian

30           respondents is made, or the reasons for that are found, and that's at

about line 17 of page 345. There seems to be a typographical error

there. The passage commences at about - or contains it about lines 5

and 6: 

Having regard to the Western Australian respondents

35   submissions, which are set out in SPSF18.

statt 3 .11.93 4

Now if one looks a couple of pages earlier that's the document setting out the relevant Western Australian bodies in relation to which a

dispute finding was sought. SPSF17 was the letter to which I have

just referred, and I think that is probably what was meant by the

5 submissions - the Western Australian respondents submissions. So

that perhaps clarifies that passage, if one understands it to be 17. So it is having regard to those submissions, having regard to the decision

of the full bench in the matter that was now before - that time before

the High Court that the commission was satisfied that there was

10 relevant and industrial dispute. In effect, as one will appreciate, it is

simply maintaining what had been the position within those earlier

proceedings.

Now that was the position in relation to Western Australia. There is,

as your Honour has already mentioned, an exhibit G to the affidavit

15           which is a decision of Deputy President MacBean dated 21 May

1993. Now that is referred to - it's probably a red herring but in the
interests· of full disclosure at this time it was thought that your that decision as part of the history it is recounted that the Tasmanian,

20           Queensland, South Australian and Western Australian respondents all withdrew their objections to the finding of dispute with the SPSF. Now, as your Honour will see from the transcript, Western Australia did not at the time of the finding of the dispute withdraw its

objections to that finding. It was simply recognising that there was

25           at that stage no point in making further submissions, the matter being before this court.

HIS HONOUR:  Although that document is described as a decision
is it the reasons for a decision that had already been made or is the decision to be found in that document?
30	MS WHEELER:  As I understand it, your Honour, it's reasons for a
decision which had already been made and if your Honour reads it your Honour will find that it's in relation to New South Wales, and

New South Wales authorities only, so strictly the history in relation to the other governments wasn '.t relevant even for the purposes of those

35 reasons. And it's a matter - - -

HIS HONOUR: I am sorry, I am not sure that I follow that. By May 1993 there had been a finding of industrial dispute - there had already been a finding of industrial dispute, had there not?

MS WHEELER:  Yes, there had, your Honour.

statt 3 .11.93  5 

HIS HONOUR:  And that finding by reason of a variation I thought

had extended to Western Australian employers.

MS WHEELER:  Had extended to Western Australia and there had

been different findings at different times, and the finding was

5           extended, as we understand it, to Western Australia on the basis of those matters that are set out in the transcript to which I've referred your Honour.

HIS HONOUR:  Although there is a document somewhere which is
expressed to be a variation of finding. I think it is tagged on to - - -
10	MS WHEELER:  Yes, it's at the back of this decision, or these

reasons for decision.

HIS HONOUR:  Well, then why does the document, exhibit G, ::::.~t

extend to Western Australian employers?

MS WHEELER:  When your Honour reads it, it's a set of reasons

15           for decision arising out of submissions made by the New South Wales Crown and New South Wales statutory authorities in relation to a finding of dispute. It's not purporting to give any reasons in relation to the extension of the finding to Western Australia so it's setting out the commission's reasons for making that dispute finding in relation

20           to the New South Wales authorities and specifically ruling on matters which had been referred to by those New South Wales authorities before the commission.

[10.12am]

HIS HONOUR:  Well, I suppose one reason may be that the West

25 Australian employers had not made any submissions. They had

simply written a letter had they not?

MS WHEELER:  Yes. And perhaps as part of that history the

commission's setting out its reasons for not dealing with any

objections or not dealing with the Western Australian respondents to

30	the claim specifically. HIS HONOUR: Yes. Thank you.
MS WHEELER:  In any event, as your Honour will see from the

transcript, it's to misinterpret the Western Australian position to see it

as a withdrawal of objections; rather it's a maintenance of objections

statt 3.11.93 6

made in earlier proceedings but declining to repeat them at this stage for the reasons that were there set out. In the affidavit your Honour will see in paragraph 10 - for the sake of completeness and to

supplement that transcript in case you thought that there are other

5          relevant proceedings, it's asserted that:

At no time did the Western Australian respondents withdraw their objection to a finding of dispute with the SPSF.

ms HONOUR:  If that was on the only complaint - and I appreciate

it is not - but if that was the only complaint that was being made,

10          would that attract jurisdiction by way of prerogative writ?

MS WHEELER:  Indeed it's not a complaint that's made at all, your

Honour.  If I can just deal with that point first. That's not a

complaint that's made about the finding of the commission at this

,. ...	stage, it's simply put to this court in order to counter what might
15	otherwise be the suggestion that Western Australia, having consented to a finding, was now in no position to come along and ask the commission to revoke it.
And it's clear from what's headed: the interim decision in relation to the application for revocation, that that was not a matter which was
20	put to the commission at that stage; that was that Wes tern Australia was unable to come along later and object at having consented. But just in case it be raised in this court, we wanted to make it clear that this wasn't a case where we'd consented and therefore might be barred from seeking relief on other grounds.
25	ms HONOUR: Yes.
MS WHEELER:  So that's really the point of referring to that
provision in the affidavit. Then, your Honour, the decision of this
court - or the reasons for decision in the SPSF case having been
published in June of 1993, Western Australia and Victoria then
30	applied to the full bench of the commission to revoke the findings of dispute in relation to the demand the subject of these proceedings in
July.  Then going through the chronology for the sake of
completeness, as your Honour will see, it was then on 30 July that there was a further letter of demand and a further log of claims
35	served on the West Australian public sector employers and those are marked H and I.
statt 3 .11.93  7
HIS HONOUR:	And they appear to have no relevance - except by

way of history - to this application?

MS WHEELER:  Well, their relevance to this application was that

they formed at the hearing - the hearing of the application for

5           revocation - the basis of a submission that, in the alternative, even if the commission didn't find that there had in fact been no dispute because of the reasons of this court in the SPSF case, even if the commission thought that there was a genuine or a not fanciful or a real industrial dispute, those earlier claims had, in any event, been

10	abandoned. So that's the relevance.
HIS HONOUR:  Yes. I am sorry, that is quite right.

MS WHEELER: As I just mentioned, your Honour, that application for revocation was made on behalf of Western Australia on ~o bases; primarily, of course, that there was then no industrial dispute in

15           existence because the log of claims, the subject of these proceedings, was fanciful and then there was the question of the effect of the service of the yet further claim.

HIS HONOUR: Would it not have been open to the employers at that point to have brought proceedings to this court without seeking

20	revocation?  MS WHEELER:  There might have been a problem with time by
that stage, your Honour.  The dispute finding was made early in
1992. It was extended to Western Australia in September 1992. it was thought that the appropriate course was to apply - as it had So

25           been understood, apparently, at the earlier hearings - it appears from the transcript - that this decision really built on everything that had gone before in the earlier case, that it was appropriate rather to apply

for revocation than to come straight to this court.

HIS HONOUR:  It has some wider significance, I think, because it

30           does raise a question as to whether really it is the interim decision that is the subject of challenge or the decision of the commission in relation to the second demand that is really sought to be quashed by

these proceedings. You run into some difficult, do not you, with the

interim decision because it is interim and because it does not purport

35           to deal with these matters finally?

MS WHEELER:  Well, yes, and that's the reason why what's

sought, among other things, is an order nisi for writ of mandamus as

statt 3 .11.93  8 

well. There's a difficulty in understanding exactly what is happening

in the interim decision we'd agree but the complaint which is made about it, by that stage either the earlier decision was plainly wrong and should have been revoked - and to that extent it does involve

5           indirectly going back to that; that first decision - but it was a matter which was squarely before the commission at the time of the interim decision and revocation application and should, in our submission,

have been considered then and considered in a particular way. So that's the error we complain of here.
10	ms HONOUR:  But does that interim decision foreclose further
argument on the question of whether the decision made in relation to the second demand truly constituted or could give rise to an industrial dispute?

MS WHEELER: It may not, your Honour. Our submission in

. .:15... , relation to that is that it does one of two things; either it's simply
failing to deal with what at that stage is really a challenge to the
jurisdiction of the commission in that revocation application saying
that there was by that time - probably earlier but certainly by that
time - clearly no industrial dispute - so either the commission has

20           simply not dealt with the matter but has put off having regard to what, in our submission, are not relevant considerations - or, alternatively, there's a finding that it's simply not necessary to deal with it at that stage.

And that again, in our submission, is plainly wrong it being an issue

25	which goes to the commission's jurisdiction. It leaves on foot, of
course, that earlier finding and leaves the prosecutor - in this case the state agency - open to further procedures in the commission by way of conciliation and arbitration and, indeed, further orders if the commission takes no further steps.
30	ms HONOUR:  I was looking at the passage on page 6 of the
interim decision. It is the first substantial paragraph on that page

where the commission says:

We have refrained from presently following this course -

that is, I think, the course of deciding whether there had been an

35           abandonment of the second demand by reason of the third demand - continuing with the judgment -

statt 3.11.93 9

and revoking the finding because we are, to this point,
assuming that the claims made in 1993 are claims that are

themselves genuine that have been made with the authority of

the organisation. It is possible that if there was an issue

5   about these matters and they were investigated by this commission, the commission may conclude the 1993 claims are not to be treated as genuine.

So that is left as a live issue by the interim decision.

MS WHEELER:  And it's one of the errors of law which it is

10           submitted has been made by the commission; to say: well, we won't deal with that point at this time because it's possible at some future time that there might be an issue and it's possible at some future time

that they'll be investigated and found not to be genuine. And the

submission that's made in relation to that is simply: there was at that

15           stage before the commission a subsequent claim. It was admitted that that claim had been made and a copy of it was tendered to the commission without objection.

There was nothing, in our submission, to suggest that anyone - let alone the second respondents - was going to submit that the claim

20           wasn't made with authority or genuinely pursued or whatever so the commission is having regard to matters which are not really before it. It's failing to determine on the basis of evidence - unchallenged evidence at that stage - which was before it in relation to that third demand and that's, in our submission, part of the error that's made;

25           that the commission should've either determined·that or, alternatively, if it felt itself unable to determine that for one reason or another, should've then considered the other matter which also went to the jurisdiction - I mean, both of them were jurisdictional issues - the

other matter which also went to the jurisdiction of the commission.

30          There's no point in them putting off the question of the abandonment if there is before them an application for revocation based on an alternative ground which would result in them simply having no jurisdiction to consider the matter further.

[10.24am]

35 HIS HONOUR: But the complaint really is one of failure to exercise

jurisdiction rather than anything else, is not it?

statt 3.11.93 10

MS WHEELER:  Yes. There is, frankly, some difficulty in

working out from the prosecutor's point of view exactly what the

commission has done there. It is probable that the complaint is about

failure to exercise jurisdiction and it is the mandamus which is the

5 remedy primarily sought. But there are also - to the extent there are

findings we submit errors that have been made along the way there.

ms HONOUR:  These questions are relevant to the terms of any

order nisi assuming one is granted because you are seeking

prohibition directed to the respondents prohibiting them from

10 proceeding further in the nominated matters. Now the nominated

matters are not the application for revocation but the matters that

resulted in the finding of industrial dispute, are they not?

MS WHEELER:	Yes.
ms HONOUR:	Well, in a sense, that is past history, is not it?

15 MS WHEELER: Well, the reason for seeking prohibition, your

Honour, in that case is for prohibiting them from proceeding further in those matters is that the difficulty - part of the difficulty with the

interim decision is that it leaves the dispute finding on foot.	And
then, of course, there are the further procedures that follow.	Under

20 the Industrial Relations Act there is the conciliation and the arbitration

and the possibility of further orders. And the submission of the

prosecutor is that it should not have those hanging over its head; that jurisdictional issue needs to be determined and the commission should be prohibited from proceeding further on the basis of its - - -

25	ms HONOUR:  But the persons named as respondents admittedly
- no, I will correct what I was going to say. The persons named as

respondents are the persons who constituted the commission for the

purpose of the interim decision, are they not? Do not you really

need to restrain Commissioner MacBean on your argument from

30           proceeding further?

MS WHEELER:  Yes. Well, it is probably enough if we restrain

the second respondent but, yes, that may well be correct.

ms HONOUR:  Well, that is perhaps a matter you should give some

consideration to.

35           MS WHEELER: Yes.

statt 3.11.93 11

HIS HONOUR:	It is complicated by reason of the existence of the
interim decision.	If it were not for that and subject to any time

limitations presumably you would be simply seeking prohibition in respect of the finding of industrial dispute made in response to the

5 second demand.
MS WHEELER: Yes, certiorari prohibition, yes, your Honour,

yes. I should add for completeness, your Honour, too that another

reason for applying for revocation rather than seeking prohibition and
certiorari at once was: so far as Victoria was concerned they had

10 consented to certain orders, as I understand it. Now that does not

directly affect us but there being, in any event, a revocation
application to be made I think there was some sort of joint decision

probably that that would be the appropriate course.

Your Honour, if I could take your Honour very briefly to the

15           substance of the argument on each of those two bases that were put before the commission in relation to the application for revocation, the first was that the claim made in the claiming of these proceedings

was fanciful and that the basis for that submission is illustrated in

exhibits H, which is the letter of demand, and I. Now I am sorry,

20           your Honour, I think I have got the wrong exhibit there.

HIS HONOUR:	I think it is right, is not it?
MS WHEELER:	I think I might be referring your Honour to the

third demand.  I have got them out of order. I will just find it.

HIS HONOUR:  I thought the third demand was the one that had the

25           rather complex formula for determining salaries and increases.

MS WHEELER:  Different categories of employees and the

like.  The second is exhibit D, I am sorry, your Honour. And I do

not want to take your Honour through the whole of that log of

claims. On its face, on its structure it purports to be a log of claims

30           relating to salaries and conditions of employment and a fairly

comprehensive one covering most conditions of employment. It is

·,.. when one comes - so that to that extent it is dissimilar or it is not

similar to the one that was the subject of this court's consideration in
the SPSF case because that, as your Honour will recall, was a flat

35           claim for salaries only.

It is when one comes to the substance of the claims made that one

finds the basis for the submission that the claims are simply so

statt 3 .11.93 12

unrealistic that they cannot be seriously pursued.	And examples of
that:	some are set out in the outline of submissions at paragraph

5. The salary increases at 250 per cent of the date of service of the log and 100 per cent plus CPI each quarter thereafter would have had

5           the result, for example, that someone earning $30,000 a year at the date of service in 1991 would by the date of the interim decision be entitled to well over $13 million a year.

And that is not taking into account any CPI increases. Clause 7 is a

claim for normal working hours which, when one excludes the paid

10          meal breaks and other breaks, comes to 2 hours per day on any 4 days between Monday and Friday and any work - - -

ms HONOUR:  I do not think you need to spend time on that for

the purposes of your present application.

MS WHEELER:  No. The purpose of that is simply to

15           demonstrate, your Honour, that it is at least clearly arguable that this is a claim which falls well on the wrong side of the line which your

Honour identified in the SPSF case. So that that was the basis of

that submission. And then the other submission was that the service

of the further log showed that the claim that was subject to these

20          proceedings had been abandoned.

ms HONOUR:  Well, that seemed to attract the approval of the

comm1ss1on.

MS WHEELER: Yes, it did.

ms HONOUR:  I suppose the question that really I have to put to

25           you, Ms Wheeler, is: accepting that you have made out an arguable case, should the matter simply be left with the commission for the

time being in the light of the interim decision; is it premature for this

court to intervene at this stage.

MS WHEELER: The submissions in relation to that, your Honour,

30           are that when one has regard to the commission's reasons for - so far

as they are discernible, the commission's reasons for failing to

determine it at the time of the interim decision; one finds it had

before it two issues both of which clearly went to jurisdiction. It

declined to deal with one at all and declined to deal with the other on

35           the basis which, in our submission, shows an incorrect appreciation of what that submission was all about and an incorrect appreciation or an error of law as to the matters that it ought at that stage to take into

statt 3 .11.93 13

account, they being, as we have submitted, the evidence that there
was a claim made, a claim admitted to have been made, and no
suggestion at that stage that the claim was not intended to be seriously
pursued.

5           And when one compares the terms of the two logs of claims - and I do not want to take your Honour to the third claim - it is also a very comprehensive one seeking variety of terms and conditions including salary and the like and substantially more moderate in its scope than that the subject of the second claim. So what clearly appears is that

10           it has been modified again in the light of the decision of this court and that that was the claim which was at that stage - it appeared seriously to be pursued and there was no reason, in our submission, why the commission should not determine the matter then.

So that if that interim decision simply stands as it is we have a finding

15          of dispute capable of being acted upon, it would appear, at any time and the difficulty that there appear to be then two inconsistent claims because although the two logs cover the same area they make

different claims in relation to. for example, salary and working hours; two inconsistent claims being pursued against the Western
20	Australian agencies at the one time. And it is for that reason, in our
submission, that the interim decision should not be allowed to stand.

[10.35am]

HIS HONOUR:  What is the limitation provision so far as

25           challenging the finding of dispute in relation to the second demand is concerned?

MS WHEELER:  I'm not sure I understand your Honour's question.

HIS HONOUR: Well, I thought in response to the question I asked

you earlier about why the finding of industrial dispute was not being

30           challenged and you spoke of being out of time in relation to that.

- MS WHEELER: Yes. I need to find that. There are limits in the rules in relation to certiorari and the like. I will need to check that,

your Honour, I will just take a moment to do so.

HIS HONOUR:  It is order 55. Order 55, rule 17, deals with

35           certiorari and ascribes the limitation period of 6 months.

statt 3 .11.93 14

MS WHEELER:	Yes, I am obliged to your Honour, that was what I
was looking for.	The application has to be made within the 6
months.

ms HONOUR: Yes. What about prohibition?

5 MS WHEELER: There is none expressed, is my recollection of

prohibition, but there are principles of course about - general
equitable principles about - or discretionary principles about having to

apply as soon as possible.

ms HONOUR:  Because I do not think there is any limitation in

10          respect to mandamus, is there?

MS WHEELER:  No, I don't think so, your Honour, I think it's

only certiorari.

ms HONOUR:  Well, on the basis of the submissions you have put

to me, Ms Wheeler, I am satisfied that it is appropriate to grant an

15           order nisi in terms of the draft, but you might give some consideration to the matters we have discussed today, and in particular whether it is possible or appropriate to join in this application or to make application in respect of that decision.

MS WHEELER: Yes.

20	ms HONOUR:  That would of course mean joining not only the
present second respondent but Deputy President MacBean, but I think that must be a matter for you.
MS WHEELER:  Yes. I wonder if it would be tidier, your

Honour, if I might simply make application at this stage then that we

25	adjourn before your Honour make a decision in relation to the
application before you today. If we adjourn it and perhaps, if
necessary, we can seek leave to amend and have it all dealt with together.
ms HONOUR:  Well, there is no problem about that so far as I am

30           concerned except that I will not be here over the next 2 weeks. MS WHEELER: Yes.

statt 3.11.93 15

HIS HONOUR:  I can deal with it on Friday if you can come back

to me within that time, otherwise I would deal with it when I get back

from Canberra in a fortnight's time.

MS WHEELER:  No, we should be able to deal with it by Friday.

5 HIS HONOUR: All right. Well, then the application at this stage

is simply to adjourn the application for prerogative relief until say 10

am on Friday.	Is 10 am convenient, I do not mind what time?
MS WHEELER: Yes.	I am obliged to your Honour, that's
convenient.

10 HIS HONOUR: All right. Well, there will be an order in those

terms. We will now adjourn.

AT 10.39 AM THE MATTER WAS ADJOURNED

UNTIL FRIDAY, 5 NOVEMBER 1993

statt 3 .11.93 16