Re The Honourable Joseph Martin Riordan & Ors; Ex parte Vista Paper Products Pty Ltd

[1991] HCATrans 265

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IN THE HIGH COURT OF AUSTRALIA	•
Office of the Registry

Sydney	No Sl20 of 1991
In the matter of -

An application for a writ of

prohibition and a writ of

certiorari against THE

HONOURABLE JOSEPH MARTIN
RIORDAN, THE HONOURABLE

MICHAEL FRANCIS MOORE AND

THE HONOURABLE SIMON JOHN

WILLIAMS, DEPUTY PRESIDENTS

OF THE AUSTRALIAN INDUSTRIAL

COMMISSIONER ERROL HODDER, A RELATIONS COMMISSION and

COMMISSIONER OF THE
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

First Respondents

and

PRINTING AND KINDRED

INDUSTRIES UNION

Second Respondents

Ex parte: ·

VISTA PAPER PRODUCTS PTY LTD

Prosecutors

Vista 1 19/9/91

BRENNAN J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 19 SEPTEMBER 1991, AT 3.02 PM

Copyright in the High Court of Australia

MR J.L. TREW, OC: If Your Honour pleases, I appear with my

learned friend, MR P.M. KITE, for the prosecutor.

(instructed by Blake Dawson Waldron)

HIS HONOUR:	Yes, Mr Trew.
MR TREW:	Your Honour, the order nisi was served yesterday

afternoon upon the respondent, PKIU, and I have an affidavit of service here. A letter was delivered at the same time as the order nisi inviting the

respondent to inform the prosecutor of its

intentions with respect to the application today,

and inquiries just before lunch were that no reply had been received by our instructing solicitors in Sydney. I would seek leave to file this affidavit

of service in Court.

HIS HONOUR:  Has the PKIU not previously retained solicitors

in this matter?

MR TREW:  Yes, they have, Your Honour. I cannot tell

Your Honour who they were, but they did have

counsel in the proceedings below at various stages.

It chopped and changed a bit, Your Honour, but they did have counsel and I infer from that that they would have had solicitors as well, but I do not know who those solicitors were.

HIS HONOUR:	I would draw the same inference, I must say.
MR TREW:	Your Honour, all that I can add is this, that in

the proceedings below there was no procedure for an

appearance to be filed by the solicitors. I cannot

advance it any further.

HIS HONOUR: Well, you will have to proceed on this

application on the footing that it is an ex parte
application, I should think, Mr Trew, will you not?

MR TREW: If Your Honour pleases. Perhaps I can reserve

some submissions about that to a later stage.

HIS HONOUR:	Yes.
MR TREW:	Your Honour, the order nisi we would seek to amend

in a number of respects, and perhaps if I could
hand to Your Honour an engrossed copy of the
amended document we seek to have issued. The
amendments are in two respects only, Your Honour.

They have not been underlined, but if I could take

Your Honour to the second page, the prayer (a)

under "Why a writ of prohibition", it is now

directed to the respondents rather than the first

respondent. That omission was only noticed this

morning.

Vista 2 19/9/91

And on the third page, the order for a stay

that is sought is narrower than that that was

sought originally, and it now seeks an order

staying so much of the proceeding as is described

in paragraph (a) on the second page, namely, in so

far as they relate to the hearing of an application

by the second respondent for the reinstatement of

33 named former employees.

HIS HONOUR:  Now, am I right in thinking that the entire

purpose of this application is in order to obtain

that stay?

MR TREW:  No. It is very important, of course, Your Honour,

but no, that is not the entire purpose of it. The

entire purpose is to obtain the prerogative relief

preventing ultimately the proceedings continuing

upon that application for reinstatement.

HIS HONOUR:  But at the moment the matter is set down for

23 September. Is that right?

MR TREW: That is right, Your Honour, yes.

HIS HONOUR:  So unless the stay is granted the matter will

proceed on 23 September?

MR TREW:	Yes, it will, Your Honour, and I would be relying upon that as an important submission as to why the
stay should be granted.
HIS HONOUR:	But if the stay were not granted, then the

purpose of the application for prerogative relief

would fail, would it not?

MR TREW: That is true, Your Honour, yes.

HIS HONOUR:  Well then, it seems to me that the difficulty

which you face in getting the substantive relief

that you seek is that you need to have a stay, but
the respondent is not present.

MR TREW:  That is so, Your Honour. I would submit that that

is not an insuperable barrier because leave can be

reserved to the respondent to apply to have the

stay lifted on very short notice. I understand

that the proceedings are listed for one day only on
the 23rd, and that the 27th has been set aside for

hearing.

HIS HONOUR:  And it is for mention only on the 23rd?

MR TREW:  No, it is not for mention, Your Honour. It is

for hearing on the 23rd.

HIS HONOUR: Well, you may, of course, proceed, Mr Trew, but

if it should be of any assistance to you I must say

Vista 3 19/9/91

that you have the barrow ahead of you in obtaining

a stay ex parte, and if you would wish to have the

matter adjourned in order to have the other party

present, well then, you are at liberty to so apply.

I am not trying to put you on terms.	I just want
to indicate to you what the problem is.

MR TREW:  I appreciate that, Your Honour. Perhaps if I

could just consider that for a moment, because I do

not wish to waste the Court's time by having two

bites at it, as it were.

The dilemma that I am trying to resolve,

Your Honour, is this: in an appropriate case, in

our submission, particularly where the, as it were,

the subject-matter of the proceedings would
disappear if the stay were not granted, it would be

not inappropriate if protections were provided for

an application for the removal of the stay on short

notice for it to be granted. The rules under the

Industrial Relations Act, and I am not sure whether they apply to - they say that service of all

documents is to be on the organization at its

registered office, not upon the solicitors. I

cannot tell Your Honour at the moment whether or

not those rules apply to proceedings in this Court.

I would have to have a further look at that.	I
will proceed, Your Honour - - -

HIS HONOUR:	Yes, very well.
MR TREW:	- - - and I will outline the circumstances and if

I am unable to persuade Your Honour, I will

obviously have to take that course.

Your Honour, the jurisdictional issue has two

aspects that makes it more than a procedural
question that the prosecutor seeks to bring to the
Court. Firstly, the issue that the Deputy

President is dealing with is not related to the

dispute he found to exist on 2 May 1991, and we

submit that he is clearly acting beyond

jurisdiction.

I am going to go to the documents in a moment, Your Honour, but the dispute finding related to a

log of claims that sought to establish a general

duty for the future, that persons were not to be

dismissed from their employment, I think it was

without the consent of the Union. That was the
nature of.the dispute finding made under the Act by

the Deputy President, yet the application that he

is presently proceeding to hear and determine is

solely related to an application to reinstate in

employment specified persons who were dismissed

from the employment of the prosecutor which trades

only in New South Wales.

Vista 19/9/91

The second aspect of it is this: that his

refusal in the circumstances of this case to hear

and determine that question about his jurisdiction

until all the evidence is heard on all the issues,

we submit, is manifestly unreasonable in the sense

that it constitutes action in excess of

jurisdiction; in other words, Wednesbury or Peko

Wallsend in this Court.

The most recent decision of this Court on the

reinstatement jurisdiction of the Industrial
Relations Commission is the Wooldumpers' case,

Your Honour, 166 CLR 311. In that case, the Court

distinguished between a dispute about whether there

should be a general duty in the future to reinstate

persons dismissed. And that was distinguished from

a dispute about whether specified persons dismissed

by an employer should be reinstated. In that case one person had been dismissed from his employment.

Some years previously there had been a log of

claims served by the relevant union on the

employers and others claiming an award provision

which the Court held implicitly demanded that
persons not be dismissed from their employment

without the prior approval of the relevant union.

Whereas the dispute about Mr King who was the
person dismissed was an individual dispute, and all

members of the Court distinguished that type of dispute from the general regime that the log of

claims sought to establish some years previously.

HIS HONOUR:  But in Wooldumpers the first question was

whether the argument about the individual employee

was within the ambit of the 1986 log - - -

MR TREW: That is it, Your Honour, yes.

HIS HONOUR:  - - - and that was answered in the negative.

That is right, is it not?

MR TREW:  Yes.

HIS HONOUR:  Now, the question which you have to address,

however, is whether a proceeding with respect to
named employees can be within the jurisdiction of

the Commission.

MR TREW:  It is narrower than that, Your Honour, with

respect. It is narrower in this way: the

employees were dismissed from their employment on

3 March. The dispute did not come into existence

until some two to three weeks later following the

service of a log of claims. The log of claims

which was served on this prosecutor, plus companies
in other States, did not identify or refer in any

way to these particular employees or this

particular company, but rather it sought to have

Vista 19/9/91

established a regime for the future that employees

in general could not be dismissed by their

employers without approval first of the Union.

HIS HONOUR: Correct me if I am wrong. Did not the log

include a claim which I am looking at in

paragraph 74(b) which was in your affidavit, I

think:

that the employer shall reinstate forthwith

all employees dismissed - - -?

MR TREW:  Yesr it did, Your Honour, and that, of course -

the log came into existence only after these

particular persons had ceased to be employed by the

prosecutor.

HIS HONOUR: Quite.

MR TREW:	And so that description and the description in the
letter that precedes the terms of the log itself
indicates quite clearly that the log is in relation
to persons employed by - not persons who have been
employed by - the particular respondents to the log.
HIS HONOUR:	Can you demonstrate that to me, Mr Trew?
MR TREW:	Yes, Your Honour. Could I take Your Honour to

exhibit PJN3.

HIS HONOUR:	Yes.
MR TREW:	And Your Honour will see the letter that precedes

the log and it says that:

The Printing and Kindred Industries Union

demands of you that you observe and apply the

conditions of employment contained in its

ambit log of claims in the printing industry -

et cetera - in respect of your employees whether those
employees are members present and future of
the Union or not.

And then the paragraph that Your Honour referred me

to pick up again employees who are dismissed.

Now, there are two things that we would say about that. Firstly, in answer to Your Honour's

question, that, on a reasonable construction of

that, can only refer to persons who are employed at

the time the dispute came into existence. But a

second answer that we would make to that is this:

that the is a dispute of a general type proposing

Vista 6 19/9/91

that a regime be imposed for the future by award in

respect of which a duty was to be placed upon

employers that if they should dismiss anybody when

they are governed by the award, they have the duty
to reinstate and, of course, that is a duty that

could only be enforced, in any event, in the

courts, not in the Industrial Relations Commission.

That is the distinction that all members of

this Court made in the Wooldumpers' case, that a

clause - it was not in those terms, Your Honour.

The clause is set out in the joint judgment of

three members of the Court, Justices Wilson, Dawson

and Toohey at page 323. It is in the middle of the

page:

"(a) Except as provided for in sub-clause (c)

of this Clause all employment shall be

permanent. No notice of termination of

employment shall be given to any employee by

the employer without prior consent of the

union, and no such notice shall be given

whilst the employee is on annual leave, sick

leave, bereavement leave, compassionate leave,

long service leave, maternity leave, paternity

leave, adoption leave or any other paid leave,

or on leave -

et cetera -

(b) In addition to the provisions of
sub-clause (a) a minimum of six months

notice -

et cetera. That clause was accepted by the

Chief Justice at page 315 at the top of the page in

the first full paragraph:

The clause does not explicitly provide

that an employee who has been dismissed

otherwise than in accordance with its

provisions shall be reinstated.	Nor does the
clause seek to prescribe general standards for
reinstatement of such dismissed employees. which the clause is designed to bring about,
there is an implicit demand that an employee
who is dismissed otherwise than in accordance with the provisions of the clause shall be
reinstated.

And it is our submission that the clauses under

consideration in that case are of the same type as
the particular clause and, indeed, we would submit,
the other clauses that are referred to in this log

of claims.

Vista 19/9/91

Your Honour agreed in the judgment of

Justice Gaudron and Her Honour made the same

distinction between the general regime and the

particular dismissals.	I think it appears
particularly at page 336.

HIS HONOUR:  Yes, but there is a sentence there which

perhaps needs some consideration. After the

citation of authority, Her Honours says:

It is not difficult to envisage situations in

which the dismissal of an employee or

employees might properly be viewed as likely

to give rise to an interstate industrial

dispute. Nor is it difficult to envisage

situations in which a demand for the

reinstatement of an employee is agitated in a

manner which would give rise to an industrial

dispute as defined ins. 4(1) of the Act.

MR TREW:  Yes. I do not think there is any examination, I

think it is fair to say, in that case by Her Honour

or, indeed, by the other members of the Court of

what they had in mind in that case. And, of

course, the immediate difficulty that arises in

relation to such a dispute - and I think

Your Honour adverted to it in Your Honour's

judgment - that it must pertain to the relations of

employers and employees. There is a change in the

terms of the definition in the new Act compared to the Act that the Court was considering there but I

will not delay over that at the moment.

HIS HONOUR:  The reason why I drew your attention to that

passage was that it seems to me that perhaps

Wooldumpers does not really answer the problem in

this case.	The question in this case is of perhaps
a novel kind.

MR TREW:  It may be. I would not wish to dispute that,

Your Honour. There is considerable guidance to be

obtained from Wooldumpers and, particularly, in

this respect, we submit: the finding of the

dispute that was made in Wooldumpers was some years

before, of course, but it was of the general kind.

The finding of the dispute here is of the general

kind and we would submit that it follows from the

reasoning of this Court in Wooldumpers that the
type of dispute that the Deputy President is
dealing with in this case is not the type of
dispute.in respect of which he has made the finding

of dispute.

Your Honour will recall, probably, section 24

of the old Act which required the Commission to

make a finding of dispute before proceeding. That

is now section 101 of the new legislation. I think

Vista 19/9/91

the words are different but the substance is the

same.

HIS HONOUR:	Does it limit jurisdiction?
MR TREW:	Yes, Your Honour, it does, and I will take

Your Honour to Turbet's case in a moment to show

what was said about that. Perhaps I should mention

in passing that particularly in Justice Deane's

judgment in Wooldumpers' case, His Honour said,

"Well, there might be another sort of dispute that

could be dealt with on the facts that are suggested

here but because reliance is only placed upon the

findirig of dispute that has been made, that

question will not arise." I think that appears on

page 333 of Wooldumpers where His Honour said:

Having mistakenly held that the

particular matter before him came within the

"ambit" of the earlier paper dispute,

Mr Commissioner Caesar proceeded to hear the

matter on the basis of the earlier dispute

finding -

and His Honour then referred to section 24(2).	It
is in the middle of the page -

without determining whether the particular

matter before him itself constituted an

actual, threatened, impending, probable or

likely interstate industrial dispute -

and then His Honour says:

That being so, the applicant is entitled to an

order -

of prohibition.

HIS HONOUR:  Those words stop short of the last two lines in

Justice Deane's judgment.

MR TREW:  It is clearer in Turbet, Your Honour, but while we

have got this in front of us, on page 332

His Honour, perhaps, clearly says it, I think, in

the middle of the page:

If, in these circumstances,

Mr Commissioner Caesar had determined under

s. 24(1) of the Act that there had arisen

either an interstate industrial dispute

between nation-wide disputants -

et cetera -

the Court could not have properly found, on

the material in evidence, that the Federation

Vista 9 19/9/91

had discharged the onus of clearly established

that such a determination was wrong.

Now, perhaps I should, without further ado, go

to Turbet, 144 CLR 335. Your Honour, that was the

case where there had been a dispute finding by the

Commission that there was a dispute between the

Building Labourers' Federation and the Federated

Ironworkers in Victoria over the erection of, I

think there were some iron or steel structures of

some sort. That was then challenged on the basis

that it was not an interstate dispute. When it

came to this Court, the respondent resisted that

application on the basis that, really, having

regard to further that the respondent filed in the

Court, this was only an aspect of a much larger

dispute and although the dispute finding was of a

narrower sort, the relief should not go because it

could be cured in the Commission.

The way in which various members of the Court

dealt with it - Justice Stephen at pages 342 and

343, for instance, said:

In these circumstances I do not think it

appropriate that prohibition should go to the

Commission. It is open to the Commissioner to

vary his findings so as accurately to describe

the dispute. When so described it will be a

dispute over which the Commission has

jurisdiction. In the unlikely circumstance

that the Commissioner were to persist in

treating the dispute as confined to Loy Yang it

would be open to the prosecutor to renew its

applications.

And then Justice Mason, at the end of his judgment,
said, on page 351, in the second-last paragraph of
the judgment at about point 7 or 8, in the middle

of that - in the paragraph after the citation,

His Honour said it was open for him to vary his

finding of dispute.	In this situation, prohibition should not be
granted as this stage of the proceedings. It
is true that an order for prohibition could be
made in such a form as would not prevent the
Commissioner from varying his finding -

and then he goes on:

However, I think that the preferable course is

to refrain from making an order at this
stage ..... In the event that this expectation
is disappointed and the Commissioner proceeds

to determine the dispute which is the subject

Vista 10 19/9/91

of his present finding, prohibition should

then issue.

Justice Murphy would have granted the relief.

His Honour dissented.	And then Justice Aickin, at
page 359 also dissented on this point anyway.	The
second-last paragraph on page 359:

It was said that it would be open to the

Commissioner at any time to amend his finding
of an industrial dispute or to make a new

finding if the evidence now available -

et cetera. And His Honour said:

In those circumstances I do not consider

that any useful purpose would be served by

merely adjourning the matter to await -

it. His Honour would have made the order absolute.

Justice Wilson would have discharged the order

nisi.

Now, it is implicit, we submit, from what is

said in that case that it is a jurisdictional

matter and what makes the present case different to
the Turbet case is that the Commissioner has

proceeded and continued to proceed - and we would submit with the encouragement of the respondent -

to determine this dispute about reinstatement on
the basis that the jurisdiction flows from the

broad finding of the finding that he made. No

application has been made to vary the dispute

finding nor has the Deputy President moved of his

own volition as is his power, of course, to make

that finding. But what he has said after - the

prosecutor has tried at various times to force a

position where the jurisdiction would be determined

on that finding of a dispute. What he has said

was, "I'm going to hear all of the evidence before

I make any determination that I have jurisdiction."

Now, in the ordinary course, Your Honour, we

would not dispute that the Commission has a

jurisdiction to order its own procedures subject to

parties being accorded natural justice. But in

these circumstances where it is clear, we submit,

that he is proceeding - and it has been submitted

to him and his attention has been drawn to the

differe~ce between the finding of dispute that he

has made and the applications upon which he is

proceeding and, indeed, Your Honour will have seen

from the affidavits that the respondent was ready

to deal with the application that the Commission

had no jurisdiction but the Deputy President has

overruled the prosecutor's application in

circumstances that we submit are manifestly

Vista 11 19/9/91

unreasonable and requires the prosecutor to put the

whole of its case in resistance to an application

that, we submit, is not within the jurisdiction of

the Commission.

HIS HONOUR:  Well now, there are two questions, are there

not? The first is whether he has any jurisdiction
to proceed further with the hearing. The second is
whether he has jurisdiction to make an order of the

kind which the PKIU is seeking.

MR TREW:	Yes.
HIS HONOUR:	Now, your immediate problem is one dealing with

his continuing with the hearing?

MR TREW:  In the circumstances of this case, it is our

submission that he does not have the jurisdiction

to continue with the hearing. Perhaps I could, as

it were, tick off the reasons that lead to that

conclusion.

HIS HONOUR:	Yes.
MR TREW:	He made a finding of dispute - and I think, in

doing this, Your Honour, I should go to the various

documents so that I could remind Your Honour of

what they state. The first document that I would

like to take Your Honour to is that which is

described as PJN7. That is his actual finding. recording which he is required to do by the Act:

there is in existence an industrial dispute

within the meaning of the said Act between

PKIU and the employers named in the schedule

attached to the Union's log -

and -

subject matter ..... is wages and other

conditions of employment.

And what he has recited in the paragraphs above is

the log of claims.

Now, it is important, we submit, to bear this in mind, that the log of claims was served upon a

number of employers who are all described as being
parties to this dispute. There was evidence led

before this finding of dispute was made by some

persons in Tasmania - and we should have exhibited

this to the affidavit, Your Honour, but did not.

The transcript that we wish to refer to was copied

and was, I think, made available to Your Honour's

associate. I do not know whether Your Honour has

had a chance to look at that at all?

Vista 12 19/9/91

HIS HONOUR:  I was going to say there was a bundle of papers

of an unspecified origin that I saw here but I have

not read them.

MR TREW:  And I can well understand Your Honour's

reluctance. All I can do is apologize for not

having that attached or exhibited to the affidavit.

Can I tell Your Honour, in summary, what that is

about?	I would seek to tender it on this
application, Your Honour.	I do not know whether
Your Honour would - - -

HIS HONOUR:	I think the convenient course is to put it in the form of an affidavit at some suitable time, and
you can do that later on, but in the meantime you
can draw my attention to the material.
MR TREW:	Very well, Your Honour, we would wish to do that.

The first document, as it were, deals with some

evidence of a Mr Spinks. It starts at page 57.

Now, that is evidence concerning a person who was

employed at Australian Paper Mills - in APPM in

Tasmania. He deposes in his evidence to having on

15 April 1991, which was some month and a bit after

the employees were terminated - recommended that
the Vista people who had been terminated be
supported and a resolution was sent to the head

office of the PKIU asking them to create a dispute

in relation to that. There was no evidence that

any action was ever taken on that resolution that

was passed and the evidence, we submit, amounts to

merely a concern that the employees of this other

company in Tasmania had that they may suffer a

change in the conditions of their employment at the

hands of their own employer. And we would submit

that that is a completely different dispute even if

it could be characterized as a dispute, and

certainly would not amount to an interstate dispute

of the relevant kind.

HIS HONOUR: Well now, we are engaged here in an exercise of

construing a finding and recording of the dispute,

is that right?

MR TREW:  Yes, Your Honour, but the Court does not have to

deal with this evidence in doing that because

although that evidence was put before the

Deputy President before he made his finding of

dispute - and he was, in fact, asked to make a

finding that included the Vista dispute, and that

appears in -

HIS HONOUR:  You need not go into all the evidence of that,

Mr Trew. But what I am trying to understand is

this: if there is a finding of the dispute and

there is a log which founded the notification of a dispute, then I take it that the finding should be

Vista 13 19/9/91

construed in the light of what one finds in the

log, is that correct?

MR TREW:	Yes, Your Honour.
HIS HONOUR:	Now, your proposition is that the evidence

shows that the dispute on which the

Deputy President is now engaged is a dispute which

stands outside the log dispute?

MR TREW:	Yes.
HIS HONOUR:	Now, to demonstrate that, you need to go to

evidence to show it, I suppose?

MR TREW:  Yes, and I can do that fairly shortly,

Your Honour, because the next document, which is

exhibit PJN8, is the application that was

relevantly next produced as a draft award.

Your Honour will see it is described as a "Vista

Paper Products Reinstatement Award" and it seeks to

bind only Vista Paper Products and the Union in

paragraph 2. In paragraph 3 it seeks to reinstate,

I think, some 33 named employees in a schedule.

And then the other provisions of the draft award

only go to provisions about continuity of

employment and benefits and the like.

Now, that is the application that was

subsequently - evidence was subsequently led by the

Union in support of it. There was no evidence led

in support of, nor any submissions made, about the

general log, even in relation to the prosecutor.

So, the issue that is raised in the Wooldumpers'

case, we submit, is squarely raised by the way in

which the Deputy President has proceeded here.

HIS HONOUR: Well now, there are two questions, I take it:

one is whether or not the draft award can properly

be construed as falling within the finding of a

dispute, and the second is whether the matter of a

draft award is whether it falls within the finding "dispute", which is intended to be settled by the

or not a dispute within the meaning of the Act such

as to enliven the jurisdiction, if need be, to

a.mend the finding of a dispute.

MR TREW:  Your Honour, the second question cannot arise if

the first question is determined in our favour. Turbet's case, we submit, is authority for the proposition that if the Commission proceeds to

determine a dispute of a different kind from that

which it has found and recorded, it is doing so
without jurisdiction.

HIS HONOUR: Subject to the right of the Commissioner to

amend the finding.

Vista 14 19/9/91

MR TREW: Exactly, Your Honour, and that is where the next

submission that we make assumes importance in this

case.

The prosecutor has sought to have that

question determined that the reinstatement claim is

not within the log finding and has been unable to

have that determined.	The respondent here was
ready to have it determined.	The prosecutor drew

to the attention of the Deputy President the

jurisdictional problem. Neither the respondent nor

the Deputy President have taken any step to suggest
that there should be a variation. Indeed, it was

submitted below - I appeared in the Full Bench of

the Commission - that it was a proper inference to

be drawn from that that nobody intended to seek a

variation of the finding of the dispute. The

prosecutor is now in this position, that the

Commission is proceeding to determine a dispute

that is not within the jurisdiction of the

Commission when the facts are such that the

respondent has completed all its evidence that it

intends to call in relation to the dispute and is

ready to argue the question of jurisdiction, the

prosecutor is now called upon to lead all the

evidence that it wishes to lead in resistance to

the claim. The Commissioner will not determine

whether he has jurisdiction to do so.

Now, in those circumstances in this case, it

is our submission that he is acting without

jurisdiction. There is only one reasonable course

of action that he can take in those circumstances

and it is so unreasonable to proceed to continue to

hear the case without making that determination,

that it amounts, we submit, to acting in excess of

jurisdiction in the Wednesbury sense.

HIS HONOUR:  You do not seek mandamus?

MR TREW:  No, we do not, Your Honour. What we seek is a

limited prohibition and we seek certiorari and that

respondent to consider whether or not the dispute	leaves open to either the Deputy President or the	finding should be varied, and that would then give
the prosecutor an opportunity to be heard on that
question.

HIS HONOUR: If you seek limited prohibition, that is,

limited to preclude the Deputy President from

proceeding with the hearing unless and until he

determines the question of jurisdiction. Is that

what you mean by the - - -

MR TREW:  It was not cast in those terms, Your Honour. Our

consideration to date on that question has been

this, Your Honour, that because the Commissioner

Vista 15 19/9/91

had refused to determine his question of

jurisdiction; because the Full Bench of the

Commission had refused to direct him to do so; because the Commissioner had refused to refer it if he had power to do so to a Full Bench of the
Commission to determine it; because he had refused

to refer it as a question of law to the

Federal Court to determine, the prosecutor's

attitude so far was that there was no possibility

of getting the Commission at all - and the

prosecutor had no choice but to come to this Court

to have that very question determined.

HIS HONOUR: Well, there were two choices, were there not?

One is to come to this Court for the relief that

you are now seeking and the other is to allow the
hearing to proceed to its conclusion whereupon the

Deputy President, if he adheres to the view that has thus far expressed, will rule upon his

jurisdiction?

MR TREW:  Yes, Your Honour, but in circumstances of this

case, it is beyond jurisdiction, but there are

other discretionary reasons we would advance why

that is not appropriate. It puts the prosecutor

both to inconvenience, expense - and they are

referred to in the last paragraph of the affidavit.

Your Honour might have noticed in the last

couple of paragraphs of the Full Bench's decision

where they said, "We can't see what sort of relief

the Deputy President might be able to give in

relation to this claim for reinstatement and the

only sort of relief we could think that could be

conceivable would be reinstatement. There may be

something else he has in mind but we do not know

what it is." Now, that raises the spectre,

Your Honour, of this, that the case is proceeding

in such a way that the prosecutor does not know

what it is that it has to meet. All it does know

is that it has to meet proceedings that authority

in this case indicates are being conducted without

jurisdiction and that prejudices severely the

prosecutor.

Now, I have not answered Your Honour's

question about the other limited type of

prohibition. Perhaps if I could just consider that

for a moment, Your Honour. We would see no

difficulty, as such, in the limited prohibition

being that he be prohibited from proceeding until

he determined the question of his jurisdiction.

That, indeed, is perhaps narrower than the

prohibition that we have sought. The difficulty

though that we apprehend that would be is we still

have to argue before this Court the same questions

and the convenience of procedure would seem to

Vista 16 19/9/91

dictate, we would submit, that in view of what has

happened below, that this Court determine that

question.

Now, I recognize the desirability of that

being determined at first instance but we submit

that the Commission, both on appeal and the

Deputy Commissioner have misconceived their

discretionary powers and are acting in such a way

that they are acting without their jurisdiction.

This is a case that calls for determination finally

on that question by this Court and, perhaps,

passing on the question of the nature of the

discretionary powers of the Commission and that

there is a jurisdiction limit to the exercise of

that discretion.

So, we submit primarily, Your Honour, that the

better course is the prohibition we have sought but

if Your Honour were against us on that, well, we

would submit to the narrower form of relief that

Your Honour has suggested, and that would need some

redrafting of that part of the order nisi.

HIS HONOUR:  Yes. I was not suggesting it so much. I

thought that that was what you had.in mind when you

were speaking of a limited form of prohibition.

MR TREW:  Yes. I misled Your Honour in that case, yes.

HIS HONOUR:  The difficulty, it seems to me, is that - I can

understand the argument that you would wish to

mount as to the jurisdiction to make any useful

order with respect to the reinstatement of the 33

named employees and, if I understand the argument

correctly, it is based, on one limb, on the footing

that it does not fall within the dispute found -

and you would invoke Turbet's case - and on the

other, that on the evidence in the case there is no

interstate dispute established.

MR TREW:  Yes.

HIS HONOUR:	Now, if an order nisi were granted in relation to those arguments, then it would, as it seems to
me, be in advance of any determination of that
precise issue by the Commission.
MR TREW:	Yes.
HIS HONOUR:	And the question is whether the Commission

should be restrained from hearing the matter on

facts that it wishes to have before it or which the

parties may wish to place before it including the

material that the present prosecutor would wish to place before it before it reaches that decision or

whether the course now proposed in that respect by

Vista 17 19/9/91

the Commission is so unreasonable that a discretion

reposed in the Commission by section 110(2) is

exceeded. That is a very broad argument to put,

Mr Trew.

MR TREW:  Your Honour, I - - -

HIS HONOUR: Let me add something because I think this is

important. It is a broad argument to put when, in order to get the substantive relief that you need, you must obtain a stay in relation to the

proceedings next week.

MR TREW:  Yes.

HIS HONOUR: Well, I have indicated to you my difficulties

with it, at least, in the absence of the

respondent.

MR TREW:  Your Honour, there are a couple of other matters

that I should perhaps add. The unreasonableness of

the Deputy President's proposed procedure is

compounded by something that was perhaps only left

implicit in what I said. It is this: the

respondent's case is at the highest it proposes to
put it and the prosecutor wishes to have determined

those jurisdictional questions on that evidence.

So, it is, as it were, in other type of

proceedings, it would be saying, "We should not be

called upon to present a case." In the

circumstances of this case, to proceed, we submit,

goes beyond the jurisdiction. Now, that does not

deal with the last question, of course, that

Your Honour is adverting to, the question of the

stay.

HIS HONOUR:  The old practice, of course, was to put the

defendant to his election when he put a "no case"

submission. I am not suggesting it should happen,

Mr Trew, I am just making it as a passing

observation.

MR TREW:  And the only point I would have wished to raise in

relation to that, Your Honour: there is the

preliminary question that it can sometimes be

raised before being put to the election, namely,

there is no prima facie case. But perhaps I should

deal with the question of the stay. The

circumstances are not unreasonable, in our

submission, where a stay should be granted in the

circumstances as they pertain here.

Although Your Honour has indicated in argument

that we are forced to treat this as an ex parte

application, we would submit that that is not

entirely - it is certainly shortness of time. That

cannot be denied. He was only given yesterday

Vista 18 19/9/91

afternoon.	They were invited to indicate and no
steps have been taken to do so.	It is our

submission that the question of the solicitor
should be left out of consideration because that is

one step removed. That is the agent rather than

the principal, and service has been affected on the

principal.

That is only one of the matters, we would

submit, that is relevant to take into account in

granting the stay. The other matters are what will

happen if it is not granted and the consequences

are so severe here it is virtually - it is often described in other circumstances as the basis of the cause of action would disappear and that is

applicable here, we would submit.

The respondent is protected in that if the

stay were granted on terms that it was granted
leave to apply to have it dissolved or lifted on short notice. The prejudice that the respondent

suffers by that is outweighed by the convenience

that indicates, we submit, that the prosecutor

should be protected.

The proceedings are listed for the 23rd. When

the proceedings were taken on appeal before the

Full Bench, the Deputy President adjourned the

proceedings while that appeal was determined and

apparently without the opposition of the respondent

and we would submit that the circumstances of the

way in which the case has proceeded dictate that

the better course is to grant the stay at this

stage.

HIS HONOUR:  How many days have been set aside for this

hearing, do you know?

MR TREW:  One on the 23rd and one on the 27th.

HIS HONOUR:  Two days only.

MR TREW:  Two days only and the case will not complete in

that time according to the evidence in the

affidavit. I understand, Your Honour, although it

is not in the affidavit, that there have been a

number of subpoenas issued and no doubt that will

take a bit of time to resolve in any event. Now,
that is not referred to in the affidavits but that,

no doubt,. would extend any estimate of time

to - - -

HIS HONOUR: That is the subpoenas issued by your party?

MR TREW:  Yes. So, the submissions primarily are for the

stay and if Your Honour were against us on that,

well, we would seek leave to have it adjourned to a

Vista 19 19/9/91

suitable time to reapply for that stay.	Yes, they
are the submissions, Your Honour.

HIS HONOUR:  Yes, thank you, Mr Trew. I will consider this

matter briefly and I will adjourn now until

4.20 pm.

AT 3.59 PM THE MATTER WAS ADJOURNED

UNTIL LATER THE SAME DAY

UPON RESUMING AT 4.31 PM:

HIS HONOUR: This application is made in respect of

proceedings which are pending in the Industrial

Relations Commission. It is not challenged that
there is jurisdiction to make an award in
settlement of a dispute constituted by a refusal to

accept a demand for compliance with a log of

claims. Such a demand was made by the respondent,

Printing and Kindred Industries Union, the PKIU, by

letter addressed, inter alia, to the present

prosecutor, dated 7 March 1991. By the letter of

demand, PKIU demands that the recipients of the

letter should respectively -

"observe and apply the conditions of

employment contained in its ambit log of

claims (attached) in the printing industry and

any kindred industry or in any group or branch

of such industry or industries and industrial

pursuits referred to in the said log of claims

in respect of your employees whether those
employees are members present and future of

the Union or not" .

Paragraph 74(b) of the attached log of claims read

as follows, under a heading "Dismissal and

Reinstatement":

"(b) that the employer shall reinstate

forthwith all employees dismissed (whether or

not such dismissal takes place before the

making of any award or agreement made in

settlement of the log)."

A finding that a dispute existed was made by

Deputy President Riordan on 2 May 1991 in the

following terms:

THAT there is in existence an industrial

dispute within the meaning of the said Act -

Vista 20 19/9/91

that is, the Industrial Relations Act 1988 -

between PKIU and the employers named in the

schedule attached to the Union's log of

claims.

Amongst the employers so named is the present

prosecutor. The finding proceeded that the

subject-matter which forms the said dispute is

wages and other conditions of employment.

However, the present application is based upon

the submission that Deputy President Riordan is

engaged in the hearing of a further matter which is

said to be another and distinct dispute. That

appears to be supported by the draft award which

was submitted by the PKIU for consideration by the

Deputy President. That draft award included, inter

alia, the following paragraphs:

"2. This award applies to and is binding upon

Vista Paper Products Pty Limited and the

Printing and Kindred Industries Union and

members thereof.

3. That Vista Paper Products Pty Limited

shall reinstate the persons named in the

schedule hereto (being persons previously

employed by Vista Paper Products Pty Limited

and hereinafter referred to as the former

employees) in their former positions on and

from 10 July 1991."

The employees who are the subject of the

proposed draft award are listed in a schedule on

the third page of that document. The sixth

paragraph of the document reads as follows:

"6. This order shall operate on and from

10 July 1991 and shall continue in force for a

period of six months."

The employees who are listed in the schedule to the

proposed award are employees who were dismissed

from their employment by Vista Paper Products Pty

Limited prior to the time when the dispute found to

exist by reason of the non-compliance with the log

of claims came into existence.

The argument, therefore, that is now mounted

is that the proceedings with respect to the

32 employees which is proceeding before

Deputy President Riordan is, first, not the dispute

which has been found to exist by the

Deputy President in the finding that he has made.

Section 101(1) of the Industrial Relations

Act 1988 (Cth) provides as follows:

Vista 21 19/9/91

"Subject to subsection (2), where a proceeding

in relation to an alleged industrial dispute

comes before the Commission, it shall, if it

considers that the alleged industrial dispute

is an industrial dispute:

(a) determine the parties to the industrial

dispute and the matters in dispute; and

(b) record its findings;

but the Commission may vary or revoke any of

the findings."

Counsel for the prosecutor draws attention to the judgment of this Court in Reg v Turbet;

Ex parte Australian Building Construction Employees
and Building Labourers' Federation,

(1980) 144 CLR 335, in which some attention was

given to the necessity for a correspondence between

the dispute which might be the subject-matter of an

exercise of arbitral power on the one hand, and the

dispute which is found to exist on the other.
None the less, as the majority judgments in that case demonstrate, the Court accepts that there is

power, as section 101(1) makes obvious, to amend

the finding as to the existence of a dispute and it

does not necessarily grant prerogative relief by

reason of non-conformity between a dispute which is

being considered and the finding if there is a

prospect of the finding being amended. In this

case, of course, as counsel has pointed out, no

application has thus far been made on the part of

the PKIU for an amendment of the finding.

The second point that is argued by counsel for

the applicant in this case is that there is no evidence in any event of an interstate dispute within the meaning of that term in the Act which

might support the making of an award with respect

to the 32 named employees. At the end of the PKIU's case and when the

PKIU representative was ready to argue the question

of the jurisdiction to make an award, the

Deputy President refused to make that

determination. What he said was this:

"Whether or not there is jurisdiction to deal

with this matter depends very substantially on

the facts and, as has been made clear over

very many years by the High Court of
Australia, questions of jurisdiction turn very largely on the facts of the particular case

and cannot be decided merely by the

application of precedent and principle.

Vista 22 19/9/91

In all the circumstances I see no reason to

alter my earlier decision to reserve a

decision in respect of this matter until after

all of the evidence and argument has been

advanced.	I propose to continue to follow
that course.

The PKIU should be aware, however, that there

is a case for it to answer in respect of the

alleged lack of jurisdiction and should be

ready to address on that at the appropriate

time, and in particular whether section

lll(l){g){iii) has application, although I am

still of the view that if there is no

jurisdiction because either there is no

industrial dispute or, put another way, the

relief sought is beyond the ambit of the

industrial dispute, then the claim cannot be

entertained and it would not be a matter of

discretion; it would be a matter virtually of

prohibition. I propose to continue."

It is clear that the Deputy President is alive to the issues which have been agitated in support of the application for prerogative relief in this

Court.

At that stage although the PKIU was ready to argue the question of jurisdiction and had closed its case, the appellant's attempts to have the

matter of jurisdiction determined failed. An

attempt to have a case stated to the Federal Court

failed; an application for a reference to the issue

to the Full Bench failed, and then, on an

application for leave to appeal to the Full Bench
from the decision of Deputy President Riordan, the
Full Bench dismissed the application.

Under section 110(2) of the Industrial Relations Act, however, the Commission is made

master of its own procedure. That section

provides:	"In the hearing and determination of an
industrial dispute or in any other proceedings before the Commission:
{a) the procedure of the Commission is,
subject to this Act and the Rules of the Commission, within the discretion of the
Commission;
(b) the Commission is not bound to act in a formal manner and is not bound by any rules of
evidence .....

Vista 23 19/9/91

(c) the Commission shall act according to

equity, good conscience and the substantial

merits of the case, without regard to

technicalities and legal forms."

Although the power thus conferred upon the

Commission in matters of procedure is very wide, counsel now seeks to argue that the decision made

by the Deputy President was so unreasonable as to

amount to a failure to exercise any discretion

conferred by that provision.

There is no doubt that the power to mould its

own procedures will be of no avail if the course

which is followed by the Commission is so

unreasonable that no proper exercise of the

discretion can be said to have been made.	But in
this case the Full Bench said this:

"It was, in our view, within the scope of the

discretion that his Honour has, particularly

having regard to the terms of s.110 of the IR

Act, in dealing with the dispute to conduct

the proceedings in the manner he has. This is

especially so given that, as was pointed out

by his Honour, the relief sou_ght does not

circumscribe the relief that might be awarded

(s.120). It is not apparent to us what relief

might be awarded other than the award of
reinstatement sought by PKIU (assuming

jurisdiction to do so). However his Honour may currently have or may come to have some

other result in mind. It would be

inappropriate for us to compel a decision on

jurisdiction when the Deputy President has not

determined what all the relevant facts are and

has not given consideration to what orders or

awards might be made, within jurisdiction, in

relation to those facts and which are

referable to the dispute before his Honour."

In these circumstances, it is difficult for the prosecutor to establish a prima facie case that

there is such a want of reasonableness in the

decision made by Deputy President Riordan as to

justify the grant of an order nisi for prerogative

relief.

The Deputy President is clearly not bound by

the terms of the draft award which has been placed

before him and the question of whether or not any
order that he ultimately makes falls within the

jurisdiction of the Commission is a matter which

will ultimately fall for his determination.

There is no reason why, in the circumstances,

therefore, it is appropriate to restrain him from

Vista 24 19/9/91

proceeding to continue the matter to its conclusion

and at that stage to reach a decision as to his

jurisdiction. At present there is no threatened excess of jurisdiction to make an award which is

beyond that which might be made in the exercise of

a jurisdiction conferred by the Act. Accordingly,

the application for an order nisi is refused.

AT 4.44 PM THE MATTER WAS ADJOURNED SINE DIE

Vista 25 19/9/91