Re Technical Services Guild of Australia; Ex parte Liquor and Gaming Authority Confederation of Act Industry

[1988] HCATrans 265

IN THE HIGH COURT OF AUSTRALIA

Registry	No C18 of 1988
In the matter of -

An application for a

writ of prohibition and

certiorari against

FRANCIS JAMES NEYLAND,

(a Commissioner of the

Australian Conciliation and

Arbitration Commission)

and

TECHNICAL SERVICES GUILD

OF AUSTRALIA

Respondents

Ex parte -

LIQUOR AND GAMING AUTHORITY

CONFEDERATION OF ACT INDUSTRY

Applicant

Neyland

BRENNAN J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 1 NOVEMBER 1988, AT 4.04 PM

Copyright in the High Court of Australia

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MR K.J. CRISPIN: May it please Your Honour, I appear for

the applicant in this matter. (instructed by

Dunhill Morgan)

HIS HONOUR:  Yes, Mr Crispin.

MR CRISPIN: It is an application, as Your Honour has no

doubt seen from the draft order, for a writ of

prohibition and a writ of certiorari in relation

to the proceedings commenced in the Conciliation

and Arbitration Commission for the variation of an existing award binding the applicants.

If I can say this with, one hopes, disarming

frankness, Your Honour, the position is that

there are alternative procedures which can be
pursued by the applicants such as an application

to the Court for a vacation of the order made and my clients intend pursuing those courses.

In those circumstances it would be, one has to

accept, unlikely that I could persuade the Court

that, at this stage, jurisdiction should be invoked

having regard to the comments made in such cases

as EX PARTE BAKER RE JOHNSON and the like, and

it would be my application that the matter be

adjourned until alternate remedies are pursued.

The reason it was brought at this stage

is the timing. As Your Honour can see, the

order to which the application relates was made

on 2 May 1988 and, accordingly, the six month

limitation period stipulated in Order 55 rule 17(1)

expires tomorrow.

It is a case, I might say, Your Honour, in

which there was some delay in pursuing the matter,

firstly, because the applicants were not aware

that the order had been made for some time.

When the applicants did become aware of it they

wrote to the Conciliation and Arbitration Commission

and arranged for the matter to be relisted for

mention. There was then some rather informal

argument - I am not quite sure how one would

categorize it - but it appears to have been a

discussion before Commissioner Neyland in the

absence of any formal pleading of any sort and

at that stage the Commissioner - I can take

Your Honour to the transcript if need be - made

the comment, "It is not as if there is an application

for your clients to be deleted from the award

presently before me.	One cannot simply turn
the clock back".

It was in September that the applicants

sought legal advice for the first time and, at

that stage, an endeavour was made to have the

matter resolved before the Commission in a more

formal fashion.

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I am instructed that due to some clerical

error in the registry of the Commission, an affidavit

went astray and, accordingly, the matter was

not listed.

It is now proposed that a further application

· be filed tomorrow and it is anticipated that

that application would come on for hearing within

the very near future. But, accordingly,

Your Honour, the application is brought today

in order to preserve the applicants' position

and simply to avoid running foul of the time

limitation in Order 55 rule 17.

HIS HONOUR:	What order are you asking for, Mr Crispin?
MR CRISPIN:	I am simply asking Your Honour today for an

order that the application presently before

Your Honour be stood over generally.

HIS HONOUR:  Yes. I think that the desirable course would

probably be that it be brought on again only

upon notice to the parties affected.	Who would
those parties be?

MR CRISPIN:  They would be, Your Honour, Commissioner Neyland

and, as I would understand it, the Technical

Service Guild of Australia.

HIS HONOBR:	They are the applicants - - -
MR CRISPIN:	They are the respondents to the application,

Your Honour.

HIS HONOUR:	The present respondents?
MR CRISPIN:	The present respondents, yes.

Tl HIS HONOUR: And they were the parties who made the application

for the amendment of the award of which you complain?

MR CRISPIN:  The second respondent, Your Honour, the Technical

Service Guild of Australia,was the applicant

for that variation.

Your Honour will see that it is not a case

in which I can suggest that the second limb of

Order 55 rule 17 applies because there is no

pending right of appeal. Unhappily, it is a

case in which the applicants did not find out

that the order had been made until the time limited

for appeal under section 35 of the CONCILIATION

AND ARBITRATION ACT had expired.

HIS HONOUR:  It is the case that your client is bound by

this variation, is that so?

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MR CRISPIN: It is the case, Your Honour, yes.

HIS HONOUR:  How is that?

MR CRISPIN: As I understand the position, Your Honour,

. because the award already binds my client and what has occurred is simply to vary the award which

already binds my client.

HIS HONOUR:  Well, it is perhaps not necessary to consider

or decide that matter at this stage, at all events.

MR CRISPIN:	No.
HIS HONOUR:	Mr Crispin, I would be minded to accede to

your application but subject to the qualification

that I have mentioned. Do you have any further

submissions to make on that?

MR CRISPIN:  No, I would not wish to be heard in opposition

to that course, Your Honour.

HIS HONOUR:  Very well. The application will stand adjourned

to the date to be fixed to be brought on on not

less than 14 days' notice to Francis James Neyland,

a Commissioner of the Australian Conciliation
and Arbitration Commission and the Technical

Service Guild of Australia.and to the Registrar, such notice to be in writing.

MR CRISPIN:  May it please Your Honour.

HIS HONOUR: Is there any further matter, Mr Crispin?

MR CRISPIN:	No, thank you, Your Honour.
HIS HONOUR:	Very well.  The matter stands adjourned accordingly.

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