Re The Honourable Justice Russell Peterson & Ors; Ex parte The Federated Engine Drivers and Firemens Association

[1991] HCATrans 86

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney	No S15 of 1991
In the matter of -

An application for writs of

mandamus, prohibition and

certiorari against THE

HONOURABLE JUSTICE RUSSELL

PETERSON, THE HONOURABLE
DEPUTY PRESIDENT COLIN
POLITES and COMMISSIONER

PAULINE GRIFFIN (constituting

a Full Bench of the
Australian Industrial

Relations Commission

Ex parte -

THE FEDERATED ENGINE DRIVERS

AND FIREMENS ASSOCIATION, THE

BUILDING WORKERS INDUSTRIAL
UNION OF AUSTRALIA, THE
PLUMBERS AND GASFITTERS

EMPLOYEES UNION OF AUSTRALIA

and the AMALGAMATED METAL

WORKERS UNION

Applicants/Prosecutors

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MASON CJ

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 20 MARCH 1991, AT 10.15 AM

Copyright in the High Court of Australia

MR W.R. HAYLEN, QC: If Your Honour please, I appear with my

learned friend, MR S.C. ROTHMAN, for the
applicants. (instructed by R.L. Whyburn &

Associates)

HIS HONOUR:	Yes, Mr Haylen.
MR HAYLEN:	Your Honour will see from the documentation that

has been filed in this case, the applicants are

registered industrial organizations of employers.

HIS HONOUR: Well, first of all, you read the affidavit.

MR HAYLEN:  Yes, I am just about to come to that - of

Robert Leslie Whyburn, sworn on 26 February 1991.

HIS HONOUR:  Yes, I have read the affidavit.

MR HAYLEN:  Yes. Your Honour will see that that attaches,

firstly, the decision of the Full Bench which

upheld the appeal of a finding of dispute made by

Commissioner Simmonds; secondly, the transcript of

the appeal proceedings; thirdly, the appeal book
that was before the Full Bench of the Federal

Commission containing the transcript and the exhibits and the decision of Commissioner Simmonds

and, lastly, there is also annexed the draft order

nisi.

HIS HONOUR:  Well now, tell me, what is the best evidence

you have got of a probable threatened or impending

dispute interstate? Now, you have got evidence of

an existing industrial dispute.

MR HAYLEN:	Yes.
HIS HONOUR:	But what is your best evidence that indicates that that dispute is probably going to develop an
interstate character?

MR HAYLEN:  Our approach is a little different. We say that

the thrust of the legislation is to identify a

situation that is likely to give rise to the

threatened impending or probable industrial

dispute.	The situation may, itself, not
necessarily be an interstate industrial dispute.	I
wonder if I might just take Your Honour to the
definition for that - - -?

HIS HONOUR:	Yes.
MR HAYLEN:	I think we have handed up one of the Services.

Can I take Your Honour firstly to the definition

which is on page 1204 of the Service that we have

handed up at the bottom of the page. It is

section 4, and down the bottom of the page, the

second-last definition:

Engine 2 20/3/91

"industrial dispute" means:

(a) an industrial dispute (including a

threatened, impending or probable industrial

dispute):

(i) extending beyond the limits of any one

State: and

(ii) that is about matters pertaining to the

relationship between employers and employees;

or

( b) -

and this is what we rely upon primarily -

a situation that is likely to give rise to an

industrial dispute of the kind referred to in

paragraph (a).

So, what we say we need to show is that there was a

situation likely to give rise to an industrial

dispute. That becomes a matter of assessment by

the Commission. That assessment was made by

Commissioner Simmonds, and we say the Full Bench

failed to appreciate that difference or that

wording, that requirement, in the definition of

"industrial dispute".

Could I then take Your Honour briefly to the

mechanism by which the Commission makes a finding

of dispute?

HIS HONOUR:  Yes.

MR HAYLEN: Section 101. This is at page 1823 of the

Service we have handed up. In subsection (1) under the "Duty of Commission", it says this:

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.

Now, what the Full Bench did was to say,

"There really is no demand that we can see of an

interstate character; there really is no

identification or adequate identification of who the parties might be to an interstate industrial dispute." With respect, that is an incorrect

approach, and what was required under section 101,

relevantly, for the finding of a dispute where it

was brought to the Commission as a situation likely

to give rise to an industrial dispute is for the

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Commission to find what that situation was. It had

to then assess whether that situation was likely to

give rise to the requisite type of industrial

dispute, at minimum, a threatened impending or

probable industrial dispute, and then simply make

that finding; to record that the situation here

relevantly would be a dispute about reinstatement

and site agreements and permanency of employment at

World Square, are parties of the unions and the employers set out in Commission Simmonds' findings.

That dispute, relevantly, would be one

existing in the State of New South Wales but one

which is likely to be a threatened impending or

probably industrial dispute.

HIS HONOUR:  Well now, where do we find the decision of the

Full Bench?

MR HAYLEN:  The decision of the Full Bench is in RLWl. At

the bottom of page 5 we get the first place where

the Commission gives consideration to the

background facts. It would be worthwhile if I

indicate very briefly the nature of the site and

the dispute that had taken place.

HIS HONOUR:  I have a fairly clear idea of the dispute that

took place. It related to the employment of the

project delegates.

MR HAYLEN:	The project delegates.
HIS HONOUR:	There were four of them.

MR HAYLEN:  There were four of them. They were full-time.

The project was a particularly large - I think,

thought to be probably the largest in Australia, if

not the southern hemisphere.

HIS HONOUR: Is it still proceeding, that project?

MR HAYLEN:  The project has closed but there are discussions

about its reopening. The work there has stopped.

HIS HONOUR:  If you succeed in this application eventually,

it is likely to ensure its closure, is it not,

Mr Haylen?

MR HAYLEN:  I would not think so, but undoubtedly there

would be some interesting arbitrations that would

follow. Any way, that was the background, and

there were, applying to that site, national

building awards and national agreements that

operate outside the awards and there were also

agreements that were negotiated in relation to that

site.

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Those agreements required the parties, if they

were in dispute, to adopt a procedure, set out a

dispute-settling clause. The unions' allegation

was that those clauses were not availed of. Their

concern, as they expressed it in the evidence

before Commissioner Simmonds, was that if on such a

significant site as this employers could ignore

agreements to employ project delegates and the

employers could ignore arrangements as to the
dispute-settling procedures, there was an impact, a

significance, for the entire industry. This was no small insignificant site, this was a large building

site, probably the largest currently performing

work in Australia at the time.

HIS HONOUR:  But was there any evidence given, in particular

by any union representative, that what had occurred

might well or would probably result in action in

other States in terms of withdrawal of labour?

MR HAYLEN:  Yes. Can I hand up - what we have done is

extracted by reference to page numbers a summary of
the evidence, and the page numbers refer to RLW3,
the appeal book and they are the numbers, not of

the transcript, but in the top right-hand corner,

being the appeal book page numbers. Would it be

convenient if Your Honour read that rather than me

reading it?

HIS HONOUR: Yes, I will read it for myself. Is this the

only site in Australia where project delegates have

been appointed?

MR HAYLEN:	No.
HIS HONOUR:	Where else are project delegates, as distinct

from site delegates?

MR HAYLEN:  Well, we do not make that distinction. We say

the Full Bench really had no evidence on which to

make that distinction. Quite the contrary,

Mr_McDonald's evidence, and the only evidence was,	that there is a class which are delegates and some
are site delegates, some are shop stewards, some
are project delegates. The only difference of the
project delegate is that he will have responsibility for the whole of the site rather
than for a particular contractor.

HIS HONOUR:  Are there project delegates in that sense at

any other site than World Square in Australia?

MR HAYLEN:  The evidence was that there were project

delegates by that very title at Darling Harbour,

that there had been project delegates in other

building sites.

Engine	20/3/91
HIS HONOUR:	But at this time and at the time this dispute arose, are there or were there project delegates by
that description employed at any site in Australia
other than World Square?
MR HAYLEN:	Mr McDonald's evidence was that there were

200 full-time delegates but he did not make the

distinction because he disputed the distinction

about project and site delegates.

HIS HONOUR:  Yes, but I am asking you, I am not concerned

with - - -

MR HAYLEN:  Yes. No, this is the evidence, Your Honour.

That was the evidence and I think that is the only evidence as to - - -

HIS HONOUR: Well, that does not seem to answer the

question. Mr McDonald, for his own purposes, seems
anxious to subsume project delegates, in the strict

sense, into a wider class of delegates which he

called site delegates or project delegates. Now,

does that mean that these are the only project

delegates at a site in Australia?

MR HAYLEN:  No, it does not mean that. I think we need to

approach it in this way: it matters not, for
instance, whether a dispute arises, say, at this
very site about a carpenter and the manner in which

that carpenter is dismissed if the circumstances of

that dismissal raise a question as to the means by

which building workers generally might be

dismissed.

HIS HONOUR: Yes. But, there is a problem, you see, because

the evidence otherwise seems only to indicate or manifest concern on the part of union executives outside New South Wales, concern on the part of the

national officers of the union. Now, as the

evidence does not go beyond that and suggest that

there is a likelihood of industrial action taking

becomes particularly important to have regard to	place on a national scale or in another State, it	the significance of the particular class of
employee who has been dismissed. That is the
reason why it is relevant. I mean, if, for
example, the employee was of a particular class or
category and what was happening in New South Wales
with respect to that class or category of employee
had obvious ramifications for other employees of
that class or category, it would be easier to
satisfy oneself that there was a likelihood of action outside the State.

MR HAYLEN:  Yes. The Full Bench drew the distinction this

way: it said - we say erroneously - "Project

delegates are people who are full-time. What we

Engine 6 20/3/91

understand as site delegates, in the normal

parlance, are people who act in an honorary
capacity." Mr McDonald's evidence, at page 63 of
the appeal book, was that just in New South Wales

there were:

2000 job representatives ..... a few hundred of

those would be full-time.

So, the distinction made by the Full Bench was

really based on whether you are full-time or

part-time. So, they said, "This is a dispute about

full-time people which is a rare animal." The

evidence was it is not a rare animal at all. There

are significant numbers of people who are employed

in that capacity.

HIS HONOUR:	Well now, let us have a look at page 63.
MR HAYLEN:	Yes, there is that long paragraph at the top and

then in the middle of the page is where Mr McDonald

gives the evidence about in New South Wales -

HIS HONOUR: Well, I do not seem to have that page 63.

MR HAYLEN:  I am sorry, not down the bottom. Up the top

right-hand corner, Your Honour, the appeal book has

been paginated.

HIS HONOUR:  Right. And you say top right-hand corner.

MR HAYLEN:	Yes, page 63.
HIS HONOUR:	Now, the long paragraph at the top?

MR HAYLEN: Beginning there:

Now, arising from the experience of the union

with the dismissal of the project delegate,

the World Square site, does the union have

some concern about the continued viability of

the national building industry agreement?---

Yes, because the whole concept of us being

able to maintain that agreement is based on

good faith on both sides in honouring the

obligations and the content in that agreement.

But in addition to that it is a well-known

procedure or well-known practice in the
industry that employers recognize that it is

necessary for some co-operation to have union

representatives on jobs with the necessary

experience and ability to properly communicate and work in conformity with the terms of these

agreements and to have the necessary time

during working hours to attend to any matters

arising on the job where the agreement may not

be honoured.

Engine 20/3/91

And then the next question:

Now, just in relation to site delegates what is the unions practice in relation to site

delegates? Do they have them as a matter of

course or is it something special that is only

done from time to time?---Well, the New South

Wales branch of the BWIU has in excess of 2000

job representatives - job delegates - elected

by our members throughout the state.	We would
have - a few hundred of those would be
full-time.

And then there is a long explanation given in the

second-half of the page about how that might work.

The Commissioner asked a question immediately after

that in the middle of the page. He asked:

How many?---A few hundred of them would be

full-time.

And then he goes on to describe the practice for employment, and down the bottom of the page, the

last two lines:

That is a standard procedure on all major

projects throughout the industry.

Over the page, he was asked:

Do you mean by that the industry in New South

Wales or the industry in Australia?---The

industry throughout Australia.

He, of course, was a national vice president of the

BWIU. And he said in that answer in the first

paragraph on page 64:

These matters are discussed at the national

executive on regular occasions. And reports

from all the branch secretaries indicate that

And the next question:	there is a similar procedure in other states.
Now, in your experience, from time to time do
disputes arise as to the rights of site delegates and their continued employment?---
These days very rarely; in fact, over the
last few years there has been quite a change
from the employers part because we often get
employers contacting the union and seeking to ensure that there is -
people.	And then in the next paragraph,

Mr McDonald was taken back to that and his answer

was this:

Engine 8 20/3/91

In past years there was quite a few disputes about delegates rights and dismissal of

delegates. There was an attitude among a lot

of employers in those days that the best way to deal with unions is to crush them and the best way to manage a job is to seek to

frustrate or hamper any union representative.

Over the last few years, particularly with the

advent of the building industry agreements,

there has been a more enlightened approach by

a growing number of employers that recognized

the role of unions; that recognized that union

representatives on site play a vital role in

minimizing industrial disputation and ensuring

that the job runs smoothly.

Now, Mr Robson and Mr Peel - Mr Robson from

the plumbers union, Mr Peel, from the FEDFA - also

spoke about in their unions being a scheme of site agreements and full-time delegates and I think, in

fact - Mr Robson was able to present in due course,

in the proceedings, a resolution of the federal

executive which is set out at page 249 of that

appeal book which was before the Full Bench.

HIS HONOUR:  Which union was this?

MR HAYLEN:  He was the plumbers union. This was a

resolution of the federal executive. At page 249

there is a resolution of that executive.

HIS HONOUR: That is the federal executive?

MR HAYLEN: The federal executive, yes. Noted:

the relatively ·high level of dispute free time

on the project.

(2) Condemns the site management for their

summary dismissal of all Union delegates, the

repudiation of a number of site agreements and

the sacking of a number of Building Workers

employed on the project.

(3) Condemns the outrageous management

practices on this project which has caused a

total break-down in communications between

site management and the unions.

(4) Requests the NSW Branch of the PGEU to

keep the Federal Executive fully informed of

development in this dispute in view of the

grave national ramifications involved.

(5) Recognizes the damages this dispute can

have on site agreements on other major

building projects throughout Australia.

HIS HONOUR:  But does this rise above the level of concern

and serious concern on the part of the federal

executive?

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MR HAYLEN: It does not, to this extent: what you had here was a group of national organizations of employees in an industry described by the Commissioner as a

"volatile industrial industry" saying, I think

almost in these terms, "In these economic times and

in view of our arrangements about dispute settling
and the like, we do not rush to industrial action
especially to get a matter into the Commission. We
have these very clear concerns about the

dismissals, the adherence to site arrangements and

permanency for our delegates. We are in a position

to agitate these nationally by strike action and

unless this dispute is prevented, it will develop

into a full-scale - - -"

HIS HONOUR:	But they do not say that, do they?
MR HAYLEN:	I think it is implicit - - -
HIS HONOUR:	Where do they say that? Can you point me to the evidence where that is said?
MR HAYLEN:	It is implicit is as far as I can put it,

Your Honour, in what has been said.

HIS HONOUR: Implicit in what evidence?

MR HAYLEN:  In the evidence of the combination of the four union officers who came along to give evidence.

HIS HONOUR: Well, can you point to a passage in the

evidence of any one of the officers in which we can

see that that is implicit?

MR HAYLEN:  I suppose that we should firstly acknowledge

that in Mr Peel's evidence he talks about, in his

experience, the dismissal of delegates is always

attended by industrial disputation and industrial

action. That is at page 88

HIS HONOUR:  But we are concerned about interstate, are we

not?

MR HAYLEN:	Yes.
HIS HONOUR:	We are not just concerned about intrastate

industrial - - -

MR HAYLEN:  No, but he is talking as a national official.

He was the secretary of the New South Wales branch.

HIS HONOUR:	He may be talking as a national official but the real question is what is he saying about
nationwide dislocation.
MR HAYLEN:	I think no more than what I have already put.

The question really becomes, "Why isn't that

Engine 10 20/3/91

sufficient? Why does one have to go to the extent

of actually" - well, firstly, you do not need to go

to the extent of actually having the nationwide

industrial dislocation.

HIS HONOUR:  No, but the statute requires, "a threatened,

impending or probable dispute" that is of an

interstate character.

MR HAYLEN:  In our submission, it requires a situation

likely to give rise to that. That is a matter of

assessment. When this Commissioner had before him

four national building unions in a volatile

industry, he made the assessment that because of

adherence to site agreements and their importance,

because of the size of this site, because of the

importance attached to representation on a full-

time basis on the site, unless he took action to

prevent an interstate industrial dispute, that

situation would end up in an actual interstate

industrial dispute. It is an assessment that one

has to make. He made that assessment. We say he

was right about it; it was open to him, reasonably

open on that evidence.

It makes not much difference, in my

submission, whether you come along and say, "This

is the history, this is what has happened in the

past, not only do we have our deep concerns and we

have an ability - because you know of our ability

to create industrial disputation, there is a

history that indicates to you unless something is

done to prevent the dispute extending, this will

be - - -"

HIS HONOUR:	But you have got to establish likelihood.
MR HAYLEN:	No, we have got to establish - we go back to

this proposition that we think is fundamentally

different. We have got to establish a situation

that is likely to result in a threatened, impending

or

HIS HONOUR:	Yes. So, you need to establish likelihood.
MR HAYLEN:	Yes.
HIS HONOUR:	Not possibility, but likelihood.
MR HAYLEN:	It is more likely to happen than not, no more

than that. That is likely. That is an assessment

simply that has to be made. Now, one of the

questions that we say arises in this particular

matter - it was argued but not dealt with by the

Full Bench - is that when you have a commissioner who makes that assessment and he does it on

evidence that is not contradicted or called into

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question, there is no suggestion that any of the

evidence is not genuine and it is just a sham, and

he makes a finding that the situation is one likely

to give rise to an industrial dispute, on what

basis does a Full Bench reconsider that and set it

aside? We say it can only be on well-established

principle, a course that finding was not reasonably

open. It was just not reasonably open. Now, on

this evidence - - -

HIS HONOUR:  But you do not say that in any of your grounds,

do you?

MR HAYLEN:  Yes, we do.

HIS HONOUR: Well, can you point that out to me?

MR HAYLEN:  Yes, certainly. Yes, it is ground 5 on page 3.

HIS HONOUR:  But you are taking a different point there.

You are taking the point there that they should not

have set aside a finding which was based on oral

evidence of witnesses.

MR HAYLEN:  Yes.

HIS HONOUR: Well, that is a different point altogether.

You are now saying to me that the Full Bench erred

because they intervened in circumstances where the

finding made by the Commissioner was reasonably

open on the evidence before him. Well, ground 5

does not say that.

MR HAYLEN:  We say it was; it was reasonably open because he had the oral evidence.

HIS HONOUR: That is a different point, a quite different

point.

MR HAYLEN:  It was the point that we were attempting to put

forward. Can I say this, it was put to the

Full Bench that even in non-judicial bodies the

finding of a fact necessary to ground jurisdiction

would only be set aside on appeal, even given the

type of appeal proceedings allowed in the

Industrial Relations Commission, if, in fact, that

finding was not reasonably open and they were taken

particularly to this Court's decision in Edwards v

Noble. There is also, although the Commission was

not taken to it, reference to it in Justice Isaacs'

decision in Calledonian Collieries.

HIS HONOUR:  Well now, I was going to say to you, Mr Haylen,

I am not disposed to grant an order nisi in this case but I am prepared to direct that the

application be made to a Full Court. At the

moment, I am not satisfied that your ~ase is strong

Engine 12 20/3/91

enough to warrant an order nisi but, as I say, I

direct that the application be made to a Full Court

under Order 55 rule 2.	But can we go through your
grounds?

MR HAYLEN:	Yes, certainly.
HIS HONOUR:	And I am looking at the latest version of the

draft order nisi. Now, ground 3: you suggest
there that Calledonian Collieries was "impliedly

overruled."

MR HAYLEN:	Yes.
HIS HONOUR:	Impliedly overruled by what decision?
MR HAYLEN:	CYSS and Wooldumpers, I think, in combination,

is what we would say.

HIS HONOUR:	Which two?
MR HAYLEN:	The CYSS case, the Social Welfare Workers Union

and the Wooldumpers' case.

HIS HONOUR:	But how does CYSS bear on this?
MR HAYLEN:	It goes really to what is said to be the meaning

of "an industrial dispute". There is that passage

about what the ordinary person would understand

that to be.

HIS HONOUR:  But how does that bear on Calledonian

Collieries?

MR HAYLEN: Well, there, the finding is that there was no

relevant industrial dispute and we say the thinking

has travelled quite a long way since 1929 and 1930

when Calledonian Collieries was decided.

HIS HONOUR: Well, you would have difficulty, would you not,

saying that Wooldumpers overruled Calledonian

Collieries?

MR HAYLEN: Well, we did say, "impliedly". I do not think

we could say it overruled because -

HIS HONOUR:	I mean impliedly or otherwise.
MR HAYLEN:	It did not deal with it in terms at all.
HIS HONOUR:	No.
MR HAYLEN:	It was not referred to and it was not discussed.
HIS HONOUR:	Because, after all, there the Court held there

was no jurisdiction in the circumstances of the

Engine 13 20/3/91

case so that how could it result in an overruling

of Calledonian Collieries?

MR HAYLEN:  Yes, it is the effect of the obiter only,

Your Honour. That is what we say, it is a matter

of a change in thought just as the CYSS case itself was a major departure from what had previously been

thought to be the applicable law on what was an

industrial dispute. It may well be, and we have

said it in the alternative, that Calledonian

Collieries is authority for a very, very narrow

proposition. It is either that or, we say, it is

wrong.

HIS HONOUR:  Is it not better to say it was wrongly decided

or should have been distinguished rather than to

suggest that it was impliedly overruled?

MR HAYLEN:  Yes, I cannot disagree with that.

HIS HONOUR: That would be sufficient for your purposes.

MR HAYLEN: It would.

HIS HONOUR:  Now ground 5 I have difficulty with in its

present form, partly because of the discussion that

we have already had.

MR HAYLEN:	Yes.
HIS HONOUR:	And partly because it seems to me that it may

not express what you have in mind.

MR HAYLEN:  No. I am just wondering whether it might be

adequate for our purposes if it stated that the

finding of dispute was reasonably open to the

Commissioner and the respondents erred in deciding

to set aside that finding of dispute, or something

of that order, on appeal.

HIS HONOUR: Well, should it not be in this form - and take

a~note of this because you will need to re-form it

if you agree with it:

The respondents erred in law in:

(a) failing to give great weight to the

finding of fact of Commissioner Simmonds that the industrial dispute in New South Wales was

likely to extend to other States; -

now, you can re-express that if you want to -

(b) setting aside that finding of

Commissioner Simmonds when the finding was, on

the evidence, reasonably open to

Commissioner Simmonds.

Engine 14 20/3/91

MR HAYLEN:  Yes, I think that is the better formulation of

it.

HIS HONOUR: Well, the first one you could extend by saying

this way:

(a) failing to give great weight to the

finding of fact of Commissioner Simmonds that the industrial dispute in New South Wales was

likely to extend to other States when that

finding was based on oral evidence of

witnesses -

and then go on -

and;

(b) setting aside that finding of

Commissioner Simmonds when the finding was, on

the evidence, reasonably open to

Commissioner Simmonds.

So, in that way you would cover it both on the

footing that the finding was based on the oral
evidence of witnesses and also on the footing that

the finding was reasonably open on the evidence.

MR HAYLEN:	Yes, that is so.
HIS HONOUR:	But you might need to give attention to the

words I have used, "the industrial dispute in New

South Wales was likely to extend to other States".

MR HAYLEN:	Yes.
HIS HONOUR:	Now, what about 6? There is really nothing in

6, is there?

MR HAYLEN: Well, it really, I suppose, goes to a genuine -

HIS HONOURi You are going to present this argument in the

High Court and you are seeking to raise, really, a

point of principle. I cannot see this case

degenerating into a decision that is based on

Browne v Dunn and Jones v Dunkel. After all, as

far as Jones v Dunkel is concerned, you are really

relying on what you say is evidence concerning the

strength of union reaction. Well, how are the

respondents going to contest that? I mean, what

evidence is it that they should be calling but are

not calling from which you can draw an adverse

inference?

MR HAYLEN: Well, I suppose you could do it this way,

though, if you were minded to: you could cross-

examine on the point and say, "Well, there was some

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discussion.	Have you got the minutes? Can we have
a look at the minutes?	Do those discussions show

or was there any discussion about - was this

decision taken or was this - - -"

HIS HONOUR:  Yes, but that is not Jones v Dunkel. That is

Browne v Dunn.

MR HAYLEN:  Yes, that is so.

HIS HONOUR: Well, Jones v Dunkel has got nothing to do with

it, has it?

MR HAYLEN:  Yes, I think it might be covered now by the way

in which we would redraft S(a) in any event.

HIS HONOUR:  That is right. I really think there is little

in 6. You are just succeeding in confusing

yourself, I think, by relying on Browne v Dunn and

Jones v Dunkel.	I am not minded to include
ground 6.

Now, ground ?(ii), is that ground arguable?

If a tribunal, at first instance, makes a finding

of dispute, and you say it was properly made, how

can it be that the appellate tribunal, the

Full Bench, is without appellate jurisdiction to

review it?

MR HAYLEN:  Yes, it cannot be that point. It is really an

exercising -

HIS HONOUR:	It could not be that, could it?
MR HAYLEN:	No.
HIS HONOUR:	If you are right in saying this, you should

have immediately taken the point before the

Full Bench, "You have no jurisdiction to entertain

this appeal and the reason why you have no

jurisdiction is Commissioner Simmonds was right in

the decision he made." Well, if that submission be

correct, every appeal to the Full Bench on a

finding of dispute would bog down in a preliminary

jurisdictional argument.

MR HAYLEN:  Yes.

HIS HONOUR: Well, it cannot be right, can it?

MR HAYLEN:  I think what we were really addressing in that

is the making of the order. The appeal process is

not called into question. It is the order. The

Commission, on a Full Bench having made a decision

which we say is not open, there is a valid - - -

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HIS HONOUR:  But you have covered that by your earlier

grounds. You have said that the Full Bench has

erred in law, as it were, within its exercise of

jurisdiction but, of course, your problem is that

prohibition is not directed to a situation in which

a tribunal makes a mistake in the exercise of

jurisdiction.

MR HAYLEN: This ground is directed just to give effect to

the proceedings by saying, "Well, there has not yet

been an order. The order should not be made."

HIS HONOUR:  You mean a formal order has not bee made by the

Full Bench?

MR HAYLEN:  Yes.

HIS HONOUR: Well, that means that prohibition is available

but it only means that prohibition is available in

circumstances to which prohibition is properly

addressed, ie, excess or want of jurisdiction.

MR HAYLEN:  It cannot be said that the Industrial Relations

Commission has jurisdiction to set aside a valid

finding of dispute or find that what is a dispute

within jurisdiction is not within jurisdiction.	I
think that is really what is being expressed in
(ii) .

HIS HONOUR: Well, that seems essentially a contradiction in

terms. As I explained to you, if it is a matter of

jurisdictional defect, one would have expected the

point to be taken at the threshold and if you look

at it in that light it cannot be taken at the

threshold.

MR HAYLEN:  It is not an attack on the appellate procedure

at all.

HIS HONOUR:  No. I mean, you are complaining that they came

to a wrong decision and that is essentially a

si~uation to which prohibition does not address

itself.

MR HAYLEN:  There was, in fact, a

HIS HONOUR: Certiorari addresses itself to that situation

because you can get certiorari for an error of law
but you cannot get prohibition for an error of law.

Have you had a look at Blakeley's case?

MR HAYLEN:  Yes, we have.

HIS HONOUR: Well, I would have thought if you looked at

Blakeley's case you might well come to the

conclusion that all you needed was mandamus.

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MR HAYLEN: Well, mandamus and certiorari are probably

effective. I suppose the only loose end that we

could see that was left was the fact that the order

had not been made.

HIS HONOUR: Well, that would let you in with prohibition if

you otherwise had a case for prohibition but your

problem is you do not seem to have a case for

prohibition.

MR HAYLEN: Well, I can put it no higher than that. I think

that is what it was addressed to. Grounds 8 and 9

certainly would be effective if established.

HIS HONOUR:  You have not persuaded me that the Full Court

was without jurisdiction; therefore, I am not

disposed to include ground 7. Now, ground 8:

ground 8(i) is hardly compelling, is it? According

to ground 8(i), whenever on the evidence and the

law a tribunal should come to a particular decision

in the exercise of its jurisdiction, mandamus will

go. You do not really mean that, do you?

MR HAYLEN:	Yes.
HIS HONOUR:	Ground (ii) is a relevant ground.

MR HAYLEN:  Yes. I think the importance there, Your Honour,

for the way we have approached it is the linking of (i) and (ii). You see, the end of (i) is linked to

(ii). I am not sure that they are properly

expressed as separate grounds, they may be all part

of the same ground.

HIS HONOUR:  Yes. Well, I really think you ought to have

(ii) alone but I will allow (i) in with (ii)

although, I must say that (ii) alone would be

sufficient for your purposes. But I will allow

8 ( i ) and ( ii ) .

Now, as to 9, do you mean by (i) that

certiorari will lie where the Court otherwise is

seized with jurisdiction under 75(v) to grant

prerogative relief by way of mandamus, for example?

MR HAYLEN:  Yes.

HIS HONOUR: That is what you mean?

MR HAYLEN:  Yes.

HIS HONOUR: Well, you would have to take out "either or

both prohibition and" so that it would read, "it is

sought as an adjunct to mandamus".

MR HAYLEN:  Yes.

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HIS HONOUR:  Now, (ii): what is the equivalent to the old section 60, you know, prerogative writs do not lie?

MR HAYLEN: It is section 150 of the Industrial Relations

Act.

HIS HONOUR:  How are you going to overcome section 150 in

this case?

MR HAYLEN:  There has been quite a bit of debate about

section 150 and its predecessors and overcoming

section 75(v).

HIS HONOUR:  Yes, but how are you going to debate your way

around it?

MR HAYLEN:  I do not know if Your Honour is asking me for the list of cases to date.

HIS HONOUR:  No, no, I am not asking you for that. I want

to know what your submission is going to be?

MR HAYLEN:  Mr Rothman reminds me, there really is no way in

which the legislature can inhibit the - - -

HIS HONOUR: That is not right. This Court has disagreed

with that proposition. There are two things

perhaps that can be said: one, that the section,

section 150, cannot constrain the constitutional

powers of this Court in relation to the

determination of constitutional facts and generally

speaking, in this area, a section such as 150 will
perhaps protect the decision maker to the extent

that it is a reasonable exercise of the power, it

is bona fide and it can be seen that what has been

done relates to the·subject-matter of the

jurisdiction. But, ultimately, it seems to me,

your case comes back to mandamus rather than

certiorari. But I will include ground 9.

MR HAYLEN:	Yes, thank you, Your Honour.
HIS HONOUR:,~ And I will direct, Mr Haylen~rt.hat the

application be made to a Full Court under(-·'1

Order 55 rule 2 of the High Court Rules;/t:nat

application to be made to the sittings cif the Court

commencing on 6 August.

MR HAYLEN:	Thank you, Your Honour.
HIS HONOUR:	Now, it means that you will have to re-form

7-, your grounds in the notice of motion because I

,_ :()direct that the application be by notice of motion

·- to the Full Court. You will have to re-form your

grounds in accordance with the discussion that has

taken place.

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MR HAYLEN:	Yes, thank you, Your Honour.
HIS HONOUR:	Now, is there any other order you want?
MR HAYLEN:	No, Your Honour.
HIS HONOUR:	I thought you did want an order certifying for

counsel?

MR HAYLEN: I, of all people, should not have forgotten that

order, yes.

HIS HONOUR: Well, you want an order certifying for senior

counsel, do you?

MR HAYLEN:	Yes, Your Honour.
HIS HONOUR:	Very well. Well, I will make such an order.

Now, is there anything else?

MR HAYLEN:  No.

HIS HONOUR:  One thing I should point out. Is it possible

to name the parties who were applicants for leave

to appeal to the Australian Industrial Relations

Commission because I think if you can name them you

ought to name them in paragraph 1 of the further

orders, on page 5 of your draft, otherwise one

cannot tell from the face of the order who those

persons are.

MR HAYLEN:  Yes. Your Honour, there is one further matter I

should raise. Commissioner Griffin has since

retired from the Commission. It occurred to us

that the orders may not be effective in relation to

a member who was retired from the Commission.

Whether or not by substituting simply the

"Industrial Relations Commission" rather than the

nominated members - I must say we were not

completely convinced as to the appropriateness of

that course.

HIS HONOUR::  No, but you would not have any concern, would

you, in that so long as the order goes

against - - -

MR HAYLEN:	The remaining members.
HIS HONOUR:	Yes, the remaining members, there would be no

threat to exercise the jurisdiction in a manner

adverse to you and, after all, to the extent that

you do have a claim for relief by way of

certiorari, you are seeking to have quashed a

decision made by three people who were at all

material times members of the Commission.

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MR HAYLEN:  Yes, I think that is the complete answer, yes,

Your Honour.

HIS HONOUR: All right.

AT 11.10 THE MATTER WAS ADJOURNED SINE DIE

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