Re The Building Workers' Industrial Union & Ors; Ex parte Metal Trades Industry Association & Anor; Re The Building Workers' Industrial Union & Ors; Ex parte Master Builders' Association of NSW

[1989] HCATrans 218

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney	No S74 of 1989
In the matter of -

An application for writs of prohibition, certiorari and

mandamus against

THE HONOURABLE BARRY MADDERN, THE HONOURABLE MICHAEL KEOGH, THE HONOURABLE JOSEPH RIORDAN,

PATRICIA LEARY and GREGORY SMITH

First Respondents

THE HONOURABLE JUSTICE JOHN

TERRENCE LUDEKE

Second Respondent

THE BUILDING WORKERS' INDUSTRIAL UNION OF AUSTRALIA, THE PLUMBERS

AND GAS FITTERS EMPLOYEES UNION OF
AUSTRALIA, THE AMALGAMATED SOCIETY

OF CARPENTERS AND JOINERS OF

AUSTRALIA, THE AMALGAMATED METAL

WORKERS UNION, THE FEDERATED

IRONWORKERS ASSOCIATION OF

AUSTRALIA and THE ELECTRICAL

TRADES UNION OF AUSTRALIA

Third Respondents

Metal

THE AUSTRALIAN FEDERATION OF

CONSTRUCTION CONTRACTORS, THE

VICTORIAN EMPLOYERS FEDERATION

Fourth Respondents

Ex parte -

METAL TRADES INDUSTRY ASSOCIATION

OF AUSTRALIA and ENGINEERING

EMPLOYERS ASSOCIATION OF SOUTH

AUSTRALIA

Prosecutors

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Office of the Registry

Sydney	No S75 of 1989
In the matter of -

An application for writs of
prohibition and certiorari against

THE HONOURABLE BARRY MADDERN, THE HONOURABLE MICHAEL KEOGH, THE HONOURABLE JOSEPH RIORDAN,

PATRICIA LEARY and GREGORY SMITH

First Respondents

THE HONOURABLE JUSTICE JOHN

TERRENCE LUDEKE

Second Respondent

THE BUILDING WORKERS' INDUSTRIAL

UNION OF AUSTRALIA, THE FEDERATED

ENGINE DRIVERS' AND FIREMEN'S

ASSOCIATION OF AUSTRALASIA, THE

OPERATIVE PAINTERS AND DECORATORS

UNION OF AUSTRALIA, THE PLUMBERS AND

GAS FITTERS EMPLOYEES UNION OF -

AUSTRALIA, THE OPERATIVE PLASTERERS

AND PLASTER WORKERS FEDERATION OF
AUSTRALIA, THE OPERATIVE STONEMASONS

SOCIETY, THE AMALGAMATED SOCIETY OF-

CARPENTERS AND JOINERS OF AUSTRALIA

THE AUSTRALIAN WORKERS UNION, THE

AMALGAMATED METAL WORKERS UNION,

THE FEDERATED IRON WORKERS ASSOCIATIC

OF AUSTRALIA, THE VICTORIA OPERATIVE

BRICKLAYERS SOCIETY, THE VICTORIAN
PLASTER INDUSTRY WORKERS UNION, THE

VICTORIAN PLASTERERS SOCIETY AND

THE SLATERS, TILERS AND ROOFING

UNION OF VICTORIA, THE VICTORIAN

STATE BUILDING TRADES UNION and

THE ELECTRICAL TRADES UNION OF

AUSTRALIA

Third Respondents

THE MASTER PLUMBERS' AND MECHANICAL

SERVICES ASSOCIATION OF VICTORIA,

VICTORIAN EMPLOYERS FEDERATION,

THE AUSTRALIAN CHAMBERS OF
MANUFACTURERS, THE MASTER PAINTERS,

DECORATORS AND SIGNWRITERS

ASSOCIATION OF TASMANIA, THE MASTER

PAINTERS, DECORATORS AND SIGNWRITERS

ASSOCIATION OF NEW SOUTH WALES, THE

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Metal

V-LASTER BUILDERS ASSOCIATION OF

VICTORIA, THE AUSTRALIAN

FEDERATION OF CONSTRUCTION

CONTRACTORS

Fourth Respondents

Ex parte -

MASTER BUILDERS' ASSOCIATION

OF NEW SOUTH WALES, MASTER

BUILDERS' ASSOCIATION OF TASMANIA,

MASTER BUILDERS' ASSOCIATION OF

SOUTH AUSTRALIA and CONNECTORS

THE PLUMBING PEOPLE PTY. LIMITED

Prosecutors

Applications for lifting of stay

GAUDRON J

( In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 22 SEPTEMBER 1989, AT 10.16 AM

Copyright in the High Court of Australia

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Metal

MR J.J.E. FERNON:  If Your Honour pleases, I appear for the

prosecutors in trese matters. (instructed by Cutler,

Hughes & Harris and Colin Biggers & Paisley)

MR G.M. KEATING:  If Your Honour pleases, I appear for the

Federated Iron Workers Association of Australia, one of the third-named respondents. ( of Mc Cl el lands)

MR S.J. BOATSWAIN:  May it please Your Honour, I appear on behalf

of the Building Workers Industrial Union of Australia,

the Federated Engine Drivers' and Firemen's Association

of Australia, the Operative Painters and Decorators
Union of Australia, the Plumbers and Gas Fitters, the

Operative Plasterers, the Operative Stonemasons, the

Amalgamated Society of Carpenters and Joiners, the

Australian Workers Union, the Metal Workers Union and the Electrical Trades Union of Australia.

(of Taylor & Scott)

HER HONOUR:  Mr Fernon, perhaps you could assist me. Are all

the respondents other than the first respondents in

both matters represented?

MR FERNON:  Not all are represented, Your Honour. All have

been informed,	either by way of facsimile or by
post.

HER HONOUR:	Yes.	Has there been any communication from them?
MR FERNON:	Yes.	I could hand to you an affidavit of Anthony

Paul Riordan in the Master Builders matter which is

an affidavit going to that, and an affidavit of

Ronald Joseph Baragry in the Metal Trades Industry

Association matter.

HER HONOUR:  Thank you very much. Before turning to those, I

should say that a communication has been received

by the Registrar from the Australian Government

Solicitor acting for the first respondents in both

matters, indicating that they do not have any

submissions to make and they submit to such order as

the Court may make other than an order as to costs.

I should read these now, should I?

MR FERNON:  Your Honour, I can briefly say to you that both

of those affidavits go to the fact that all of the

respondents have been contacted. As to the affidavit

of service of Mr Baragry, that affidavit indicates

that all respondents have been served and it also

indicates that all respondents but for the Master

Builders Association of Victoria have replied and that

is in the affidavit. I can inform Your Honour that

the Master Builders Association of Victoria have

communicated to us that they do not oppose the

lifting of the stay.

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HER HONOUR:	Yes, thank you.
MR FERNON:	As to the Master Builders Association matter,

that affidavit is longer but I can summarize it by

saying that Mr Riordan has contacted each of the

respondents but for those for whom Mr Boatswain acts

for, and has confirmed that they do not oppose the

lifting of the stay.

HER HONOUR:  Yes, thank you. Do the affidavits or any other

material deal with the question of prerogative relief?

MR FERNON:	No.
HER HONOUR:	My recollection is that the relief was granted on

the basis of a consideration which might render

what was happening void rather than voidable.

MR FERNON:  Yes. The evidence that is - there is no evidence

before you, Your Honour, as to that.	The only
evidence at the moment is as to service.	The

prosecutors in each matter have determined not to

proceed with the prerogative writs and have

accordingly thought it appropriate to approach the

Court that the stay be lifted.

HER HONOUR:  What do you propose to do about the prerogative

writs?

MR FERNON:  As to the prerogative writs, Your Honour, we are

at the moment seeking the consent of all of the

respondents to the discharge of those writs and

that process is in train at the moment, so that that

can be done conveniently pursuant to the provisions

under the rules. If it is not possible to obtain

the consent of all of the respondents, then an

approach would be made to the Court for the discharge

of those writs. But given that the prosecutors have

determined that the order should be discharged, it

was thought appropriate and proper to approach the

Court that the stay be lifted.

HER HONOUR:  Yes, I understand that. Do you have any

indication when application might be made to discharge

the ordeISnisi?

MR FERNON:  I can indicate to Your Honour that that machinery

process is under way. I would not like to say to

Your Honour that it would take a day or a week but

it is being done as soon as possible and, Your Honour,

I do not know what the result of it will be. Some

respondents have already indicated their consent to

the discharge; some have not, but we are not in a

position at the moment to say what the position of

all of the respondents is.

HER HONOUR:  Yes, thank you. Is there anything else you wish

to put?

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MR FERNON:	No, Your Honour.
HER HONOUR:	Is there anything relevant to the discharge of

this stay in your researches?

MR FERNON:  No, Your Honour. It would appear that under the

rules a stay can be made where writs are made and

can be discharged as a Justice directs. It would

appear that given that the orders themselves will

now not be pursued by the prosecutors, that there

is no further proper basis upon which the stay

should be maintained.

HER HONOUR: Yes, thank you. Did you wish to say anything,

Mr Keating?

MR KEATING:  In so far as my client is concerned, Your Honour,

there is no objection to the application that is

sought this morning.

HER HONOUR:  Thank you. Mr Boatswain?

MR BOATSWAIN:  That is the same position for my clients,

Your Honour.

HER HONOUR:  I take it, in the circumstances of this case,

there is no consideration about costs that is

relevant, is there?

MR KEATING:	I do not press an order for costs, Your Honour.
MR BOATSWAIN:	I do not press, in that circumstance, either,

Your Honour.

HER HONOUR: Thank you, Mr Boatswain.

It is sufficient if an order is pronounced in

terms that in each matter the stay be discharged,

is it?

MR FERNON:	Yes, Your Honour.
HER HONOUR:	In each matter, having heard from counsel on

behalf of the prosecutors that application will be
made to discharge the orders nisi granted in these

matters, in both matters the stay is now discharged.

MR FERNON: If Your Honour pleases.

AT 10.26 AM THE MATTER WAS ADJOURNED SINE DIE

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