Re The Operative Plasterers Workers Federation of Australia & Ors; Ex parte Brown

[1992] HCATrans 345

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney	No Sl41 of 1992
In the matter of -

An application for writs of

mandamus and certiorari

against THE HONOURABLE

MICHAEL KEOGH (Senior Deputy

President of the Australian

Industrial Relations

Commission) and

THE HONOURABLE IAN WATSON

(Deputy President of the

Australian Industrial

Relations Commission) and

GREGORY SMITH (a Commissioner

of the Australian Industrial

Relations Commission)

First Respondents

and -

THE OPERATIVE PLASTERERS

WORKERS FEDERATION OF

AUSTRALIA, THE OPERATIVE
PAINTERS AND DECORATORS UNION
OF AUSTRALIA, THE AMALGAMATED
SOCIETY OF CARPENTERS AND

Plasterers 1 26/11/92

JOINERS OF AUSTRALIA, THE

FEDERATED ENGINE DRIVERS

AND FIREMENS ASSOCIATION OF

AUSTRALIA, THE CONSTRUCTION,
FORESTRY AND MINING EMPLOYEES
UNION, and THE VICTORIAN

STATE BUILDING TRADES UNION

Second Respondents

Ex parte -

S.R. & Z.L. BROWN & ORS

Prosecutors

GAUDRON J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 26 NOVEMBER 1992, AT 10.52 AM

Copyright in the High Court of Australia

MR D.A. COWDROY, QC:  May it please Your Honour, I appear

with my learned friend, MR T. GINNANE, for the prosecutors. (instructed by Mallesons Stephen

Jaques)

HER HONOUR:	Yes, Mr Cowdrey.
MR COWDROY:	Your Honour, might I firstly hand up to

Your Honour the draft order which is sought by the prosecutors in this application. This is an application for the issue of an order nisi for a writ of mandamus and certiorari against the respondents who are members of the Australian Industrial Relations Commission and various unions.

Might I hand up a copy of the draft orders.

HER HONOUR:  Thank you. You do not seek an order nisi from

me, you seek a reference to a Full Bench.

MR COWDROY:  Yes, Your Honour.

HER HONOUR: Is there some reason for that?

MR COWDROY:  Your Honour, at this stage we seek, in effect,

the grant of an order nisi made returnable before

the Full Bench at a convenient time.

HER HONOUR:	Yes, thank you.
MR COWDROY:	Your Honour, might I simply ask, would

Your Honour at this stage be assisted if

Your Honour firstly went to the affidavit in

support of the application for an order nisi?

Plasterers 2 26/11/92

HER HONOUR:  Your problem is, is it not, that you have got

to establish that it was a jurisdictional error,

not a mere error in arbitral principle?

MR COWDROY:  Your Honour, with respect, in relation to the

application for a writ of certiorari, we would

submit that it goes beyond the mere question of

whether there has been an excess or jurisdiction.

HER HONOUR:  Yes, but you could only get certiorari as

supplementary to other relief.

MR COWDROY:  Yes. Your Honour, the authorities to which we

will take Your Honour would seem to suggest that if

there has been valid grounds for other relief, even
though those may not be granted, if

certiorari - - -

HER HONOUR:  Yes. Well, you have to establish

jurisdictional error, have you not, to get

mandamus?

MR COWDROY:  Yes, Your Honour; jurisdictional, in the sense

that in some way the respondents have either failed

to exercise their jurisdiction or have, in some

way, exercised it improperly.

HER HONOUR:  No, not in some way have exercised it

improperly at all.

MR COWDROY:  Your Honour, might I firstly take Your Honour

to the facts of the matter?

HER HONOUR:  Yes. I think you will need to do it in some

detail, I tell you, Mr Cowdrey, because as I have

read it the problem I have is that it seems that

though you argue that the Commission erred, it

looks very much to me that, assuming that to be so,

it was an error within jurisdiction rather than a

understood. jurisdictional error, as that term has come to be

MR COWDROY:  Your Honour, one other possibility, and this is

what we rely upon: we would respectfully submit

that the respondents misunderstood the nature of

their duty.

HER HONOUR:  Yes, but it has to still amount to a

jurisdictional error, so that they have failed to

do that which they were obliged to do.

MR COWDROY:  Yes. Your Honour, we would say that that, in

fact, has occurred because -

HER HONOUR: Well, that you will need to go into in some

detail, I should think.

Plasterers 26/11/92

MR COWDROY: Certainly. Yes, Your Honour. Your Honour, the

affidavit in support is that of Mr Shinners. It is

an affidavit of Bernard Francis Shinners, sworn on 16 November 1992. Your Honour, this affidavit has

for completeness many annexures or exhibits. For

Your Honour's assistance, might I hand up, in effect, a chronology which also it might be used, as it were, as a map to guide Your Honour through

the affidavit. It shows, in chronological order,
the sequence of events and, on the right-hand side,

the reference to the exhibits contained in

Mr Shinners' affidavit.

HER HONOUR:	Thank you.
MR COWDROY:	Your Honour, would it be more useful to

Your Honour if I were to read the affidavit or refer Your Honour to the relevant parts?

HER HONOUR:	I am in your hands, Mr Cowdrey.
MR COWDROY:	Your Honour, might I say this:  I will use the

affidavit as the starting point. The first few

paragraphs deal with formal matters.	Perhaps the
most important - the first paragraph	that is
important is paragraph 7:

The Prosecutors are respondents to the 1990

Award -

The 1990 award is described in paragraph 2 as the

National Building and Construction Industry Award

1990.      The intervening paragraphs recite the fact

that the first-named respondents are members of the

Australian Industrial Relations Commission.

HER HONOUR:  They are, in fact, the members of the Full

Bench.

MR COWDROY:  They are, Your Honour, who, on 1 October 1992

refused leave to appeal from the decision of

Commissioner Palmer.

HER HONOUR:  Yes, and you accept that they had power to

refuse leave to appeal?

MR COWDROY:	Yes, Your Honour, we do.
HER HONOUR:	And that they had jurisdiction to refuse leave

to appeal?

MR COWDROY:	Your Honour, they had jurisdiction to refuse leave to appeal but in doing -
HER HONOUR:	So long as they considered the application.
Plasterers	26/11/92
MR COWDROY:	Yes, and properly considered the application.

In summary, it is our contention that they had

misunderstood the nature of the particular matter

before them so as to, in effect, compound an error

that exists on the face of the record.

HER HONOUR:  Is it a jurisdictional error on the face of the

record?

MR COWDROY:  Your Honour, we would submit, in effect, it is

tantamount to that.

HER HONOUR:	Yes. Well, you will come to that.
MR COWDROY:	If the Court pleases. Your Honour, paragraph 8

is BFSl which is a print of the award. Might I

simply inquire: does Your Honour have the exhibits

in Court?	I do not need to take Your Honour
to - - -

HER HONOUR:	Yes, they are all here.
MR COWDROY:	I do not need to take Your Honour to BFSl at

this stage except possibly to draw Your Honour's

attention to the provisions which have given rise -

I am sorry, I will come to that, Your Honour. It

is more readily referred to in a subsequent

affidavit. Reading on, paragraph 9, Your Honour:

The 1990 Award regulates the terms and

conditions of employment of employees in the

building and construction industries, which

industries -

are referred -

to as "the Industry".

Your Honour, paragraph 10 is where the history

Your Honour has readily available not only the	really commences and it might be convenient if
exhibits but also the summary, a copy of which I
have handed to Your Honour.

HER HONOUR:	Yes. Well, I shall do my best.
MR COWDROY:	Your Honour, in:

2 August 1984, a Full Bench of the

Commission ..... handed down their decision in

the Termination, Change and Redundancy Case -

which is known as the TCR case, and -

formulated specific guidelines for the

establishment of minimum job protection standards in Federal awards, covering -

Plasterers 26/11/92

a range of matters, Your Honour, including

redundancy and redundancy pay.

If I could direct Your Honour to pages 25 and

26 of BFS2. Your Honour, at the foot of page 25

there was comment in that case of the ACTU request

that the Commission avoid the formulation of a

definition which would be rigid and -

which would give rise to an unduly legalistic

approach in determining the application of the

provisions.

And it proceeds:

It contended that redundancy protection should
apply essentially where an employee is

dismissed through no fault of his own and

relied on ILO Convention 158 which referred to

terminations for reasons which relate to the

operational requirements of the business,

namely, reasons of an economic, technological,

structural or similar nature. It also relied

on the definition of the Chief Justice,

Mr Justice Bray in the South Australian

Supreme Court which, it contended, was the commonly accepted -

definition of the -

meaning of redundancy in Australia.

Your Honour, the particular definition referred to, I have a copy of it in Court and I

seek to hand up to Your Honour.

HER HONOUR:	Where does this take us though, Mr Cowdrey?
MR COWDROY:	Your Honour, what it leads to is this: that

since 1984, until recent developments, the concept

of redundancy was formulated by the Full Bench of

the Industrial Commission and it, in effect,

provided that redundancy is to occur when the

employer determines that for one reason or another,

usually change in the nature of the business - -

HER HONOUR: Well, that is a definition. It is not fixed

for all times. We know full well that in an

industrial context, even words may take on special

meanings.

MR COWDROY:  Yes. But, Your Honour, the formula adopted by

the Commission had been consistently followed in

Australia and in the United Kingdom to the

effect - - -

Plasterers 6 26/11/92

HER HONOUR:  Yes, a matter on the merits for the Commission

to consider.

MR COWDROY:  Yes, Your Honour, to the effect that it was the

employer's decision when a redundancy occurred, and

it was the action of the employer that brought

about redundancy.

Your Honour, in summary, the principles that

were laid down by the Full Bench and foreshadowed

for incorporation into other federal awards, after

the Metal Trades Award, was consistent, namely, the

employer brings about the redundancy. What has

happened is, in effect, a convolution of that

definition so that, as the position now applies in

clause 38A of the current award which is under

challenge, the employee has the right to determine

when he deems himself to be redundant.

HER HONOUR:	Now, that much I had already worked out.
MR COWDROY:	Yes.  Now, Your Honour, it is that matter where

we say there has been an error because it was never

intended by the Full Bench that the concept of

redundancy would be convoluted in that way.

HER HONOUR: All right, is that your case?

MR COWDROY:	Yes, Your Honour.
HER HONOUR:	Well now, can you tell me how that constitutes jurisdictional error?

MR COWDROY:  Yes, Your Honour, I can. We put it on this

basis, Your Honour, that, in effect, firstly, there

has been an error of principle which is manifest.

HER HONOUR:  Yes.

MR COWDROY:  The error of principle lying in the approval of the definition in clause 38A of the National

Building and Construction Industry Award.

HER HONOUR:  No, but what sort of principle are we talking

about?

MR COWDROY:  Your Honour, we are talking about the principle

of redundancy, in other words, what is redundancy;

what comprises redundancy and what is the

essential - - -

HER HONOUR:  We are talking of a principle relating to the

award of redundancy provisions?

MR COWDROY:  Yes, Your Honour.

Plasterers 7 26/11/92

HER HONOUR: All right, but I do not see how that becomes

jurisdictional error. That is the next step.

MR COWDROY:  Your Honour, the next step is this, that the

Commission is required to exercise its jurisdiction in a proper manner.

HER HONOUR:	What does that mean?
MR COWDROY:	Your Honour, that is it must -

HER HONOUR: It is required to exercise its jurisdiction.

MR COWDROY: It must apply legal principles.

HER HONOUR:  I would have thought not, not following

Boilermakers' case. It must apply the statute. So

far as mandamus is concerned, we are concerned

either with constitutional jurisdiction or

statutory jurisdiction.

MR COWDROY:  Your Honour, the Commission, in this case, has

purported to exercise its jurisdiction in dealing

with the concept of redundancy. What we say is

that it has misunderstood the - - -

HER HONOUR: Let us assume that is so, let us assume it has

misunderstood the principles relating to redundancy

and the nature of the redundancy.	What follows
from that?

MR COWDROY: If that is established, Your Honour, we say

that amounts to a constructive failure to exercise

its jurisdiction.

HER HONOUR:	Which jurisdiction?
MR COWDROY:	The jurisdiction conferred upon it by the Act.
HER HONOUR:	No, but let us descend to particulars. What is

it that it should have done that it did not do?

MR COWDROY:  Your Honour, it should not, if it wished to

provide - - -

HER HONOUR:	No, if you want mandamus, you must establish that there was something it should have done that
it did not do.
MR COWDROY:	It should not, Your Honour, have described as

provisions for redundancy benefits in the way in

which it has. In other words, the concept of

redundancy which has been formulated in the award

is not redundancy at all. It is something

different.

Plasterers	26/11/92
HER HONOUR:	So, what is it that it should have done that it

did not do? What order do you want for mandamus?

What is your mandamus, in fact, seeking?

MR COWDROY:  Your Honour, we are seeking an order that,

first of all, the Full Bench hear and determine the

appeal.

HER HONOUR:	The appeal?
MR COWDROY:	Yes.
HER HONOUR:	Not the leave to appeal?
MR COWDROY:	I am sorry, the leave to appeal and, we would

trust from that, the appeal itself.

HER HONOUR:  But it did hear and determine the leave to

appeal.

MR COWDROY:	In doing so, it did so - - -
HER HONOUR:	But you have to show that not only in doing so

it made an error but that it made an error, the

effect of which was a failure to hear and determine

the application for special leave. Not just that

it got it wrong; not just that it got its own

principles wrong, but that it failed to do

something it was supposed to do.

MR COWDROY:  Your Honour, we say in getting it wrong, as

they did - and we will take Your Honour to the

particular passage - that of itself demonstrated a

failure to exercise its jurisdiction.

HER HONOUR: Well, how?

MR COWDROY:	Because it was tantamount to that.
HER HONOUR:	But how is it tantamount?  I mean, there is a

difference. I mean, I know it is a complicated

difference, but there is a difference between error

within jurisdiction and jurisdictional error, is

there not?

MR COWDROY:  Yes.

HER HONOUR: Well now, what is the difference?

MR COWDROY:  Your Honour, on the facts of this case it

bridges both.

HER HONOUR: All right, on the facts of this case it bridges

both. Ordinarily, on the facts of any case where

it amounts to jurisdictional error, it will do

that, I suppose.

Plasterers 9 26/11/92

MR COWDROY:  Your Honour, it might be useful if I took

Your Honour to the actual words that were used by

the - - -

HER HONOUR:  And, while you are doing that, will you direct

your attention also to the privative clause now

found in the Act.

MR COWDROY:  Yes. Your Honour, can I first of all take

Your Honour to the particular passage of the

decision of the Full Bench declining leave on

1 October of this year. Your Honour, might I take

Your Honour, firstly, to BFS7 and might I direct

Your Honour's attention to page 10? Your Honour,

might I just by way of background say this to

remind Your Honour that, in effect, the way in

which the concept of redundancy has now emerged,

namely, that the employee can determine redundancy,

arose out of an agreement between the second

respondents and respondents to the award of which

the prosecutors were not a party. So, it was not

something which was the subject of determination

before the court, it was the result of an agreement

that was made between the parties.

At page 10 - and this was the decision of

Commissioner Palmer on 10 October 1990, and in this

exhibit he was formulating his reasons for

accepting the agreement that was made between the

parties, he says on page 10, second paragraph:

An examination of the agreement then

showed that its principal features are:

A change in the award definition of

redundancy which places the initiation of the
redundancy provision with the employer rather

than the employee as at present and which

exempts dismissal for misconduct or refusal of

duty from the redundancy provision.

Now, Your Honour, in fact the agreement

provided nothing of the sort. The agreement which

the learned Commissioner in this decision was

sanctioning was an agreement that gave the total

right to determine redundancy on the employee - - -

HER HONOUR: That is an ambiguous statement. It can be read

either way. It depends what you relate which to.

I do not think anything turns on it, but you can

read it either way.

MR COWDROY:  Your Honour, the only thing is if you can read

it either way, certainly it has been read

subsequently, and by the Full Bench on 1 October,

as being something which was totally consistent

with the concept of redundancy which had existed

Plasterers 10 26/11/92

for - well, traditionally, at least, certainly
since the TCR case. In other words, Your Honour,

when the Full Bench came to consider this matter on

1 October, they saw nothing unusual in the concept

of redundancy as specified in the determination of Commissioner Palmer or in the agreement sanctioned

by Commissioner Palmer.

HER HONOUR:  So? I mean, I do not know what turns on it.

MR COWDROY:  Your Honour, what turns on it is simply this:

we do not dispute that the Commission has power to

bring in provisions relating to employment covering

a wide range of matters, including redundancy,

including benefits of the kind which would flow in

a situation such as this. But the error,

Your Honour, is to describe that as redundancy when

traditionally the principle is that redundancy is

not brought about by the action of the employee but

only by the employer. In that area lies the

problem.

HER HONOUR:  I can see that you take there to be a practical

problem but I am still waiting to be enlightened as

to how it is a jurisdictional problem, how it then

goes to be said that there was a failure to hear

and determine your application for leave to appeal.

MR COWDROY:  Your Honour, on that matter we say that if the

Commission - if a Full Bench misunderstood - - -

HER HONOUR: Well now, can you take me to where the

Full Bench misunderstood it?

MR COWDROY:  Yes, Your Honour. If I can take Your Honour

to - - -

HER HONOUR: It is 15, is it; 14 or - - -?

MR COWDROY:  Yes, Your Honour, it is 17 in fact. That is

the determination. Your Honour, on the first page

of BFS17, in the decision, about the fourth

paragraph from the top:

The order of 24 October 1990 effectively

implemented an agreement between major parties

in the building and constructing industry.

However, although bound by that order, the

appellants in the instant proceedings were not
parties to the agreement, nor did they
participate in the proceedings that led to the

order being made.

HER HONOUR:	They were served?
MR COWDROY:	No, Your Honour.

Plasterers 11 26/11/92

HER HONOUR:	They were not served?
MR COWDROY:	No, they had no knowledge.

HER HONOUR: All right, and what did you do about that?

MR COWDROY:  Your Honour, subsequently, when the prosecutors

became aware that there had been this agreement

which culminated in the insertion of clause 38A
into the award, they made application to vary the

award to exclude the roof tiling industry or those

engaged in roof tiling activity from the provisions
of clause 38A. That was heard by

Commissioner Palmer and Commissioner Palmer, having

heard that matter in 1991, determined, in effect,

that the provisions should nevertheless apply, and

it was from his - - -

HER HONOUR:  Your having taken that course, it would seem

you are estopped from raising any jurisdictional

problem, natural justice problem, in relation to

that?

MR COWDROY:	Yes.
HER HONOUR:	And you do not?
MR COWDROY:	No, we do not because there has - - -

HER HONOUR: It does not enter into it?

MR COWDROY:  We do not take any natural justice point

because there has been that hearing. But when it

came to the question of seeking leave to appeal

from Commissioner Palmer's decision, that was heard

on 1 October this year, and leave was refused, and

this decision relates to that.

Now, on the second page of the decision, the

Commissioners dealt with two matters: the question

of public interest - - -

HER HONOUR:  What I cannot understand is this, why - I have

to confess, I cannot see the jurisdictional point

you are trying to make, but if there was one surely

it was as much a problem with Commissioner Palmer

as with the Full Bench.

MR COWDROY:  Your Honour, before Commissioner Palmer, my

clients, that is, the prosecutors, were at pains in

their application to seek to have their industry

separated from the rest of the building industry
for the purposes of the redundancy provisions.

That is how the matter was dealt with before

Commissioner Palmer. It was not until,

effectively, he confirmed that the provisions would

Plasterers 12 26/11/92

apply to the prosecutors that this question has

arisen, in other words - - -

HER HONOUR:  It must always have been there. I am sorry, it

must always have been there.

MR COWDROY:  It was there - it was not confirmed until

Commissioner Palmer determined that in fact there shall be no, in effect, special treatment.

HER HONOUR:  Yes, but if you did not raise the point before

Commissioner Palmer then there is an interesting

question of why anyone would ever give you leave to

appeal to raise a question that you had not raised

at first instance.

MR COWDROY:  I am reminded, Your Honour, that in fact it was

raised before Commissioner Palmer.

HER HONOUR: All right then, why is not the problem in his

decision as well as in the Full Bench decision?

MR COWDROY:  Your Honour, it is in both and it is

compounded. It is in both.

HER HONOUR:  All right. So you say as well that

Commissioner Palmer refused to hear and determine

your application, in effect?

MR COWDROY:  Yes, and in doing so, he applied again

erroneous principles. At the foot of the page of

his decision, Your Honour will see the second
matter which is put forward before - in fact, this

was really the first matter that was put before the

Full Bench on 1 October. They say:

The second is their claim that the concept

underlying the redundancy provisions in the

award represents a distortion of the concept

of redundancy, again, having regard to the

background to and the development of

redundancy provisions in the building and

construction industry. We do not consider

that the appellants have demonstrated that
there is an arguable case that

Commissioner Palmer manifested any error of

principle in reaching his decision.

HER HONOUR: All right. Now, in that paragraph, I take it,

lies whatever the error is of which you wish to

complain to this Court?

MR COWDROY: It is, Your Honour.

HER HONOUR:  You made an application, you were heard, and it

was decided that the building industry at least had

its own identifiably separate redundancy

Plasterers 13 26/11/92

provisions; that they had developed in a particular

way and that there was no arguable case that there

was an error of principle.

MR COWDROY:  Yes.

HER HONOUR: All right. Well now, what is wrong with that?

MR COWDROY:  Your Honour, the error of principle which we

say has been compounded by the failure of the Full

Bench to grant leave is the approval of the

definition of clause 38A,

HER HONOUR: Clause 38A.

MR COWDROY: That is the redundancy provision which entitles

an employee to declare himself redundant.

HER HONOUR:	You say in construction of it - - -?
MR COWDROY:	As a matter of principle, as a matter of law,

we say, Your Honour, that an employee cannot

declare himself redundant. It has always

been - - -

HER HONOUR:	As a matter of law?
MR COWDROY:	Yes, because legal principle has established that redundancy is something which occurs when the
employee can no longer be usefully engaged.

HER HONOUR:  Let us assume that to be the case. How does

that have the consequence that there was a failure

to hear and determine your application, as distinct

from getting it wrong, perhaps?

MR COWDROY:  Yes. Your Honour, if the Full Bench, the

Commission, misunderstood the concept of redundancy as it has traditionally been applied and the

principle of redundancy - - -

HER HONOUR:  They do not talk about it as it is

traditionally applied. They talk about it as

applied in the building industry.

MR COWDROY:  The concept underlying the redundancy

provisions - yes, Your Honour, I understand what

Your Honour says but the fact is it is still

dealing with the concept of redundancy.

Your Honour, what we say is that if they - and as

we say they did - misunderstand the nature of their

task - - -

HER HONOUR:  How did they misunderstand? Did they think

they were dealing with a leave to appeal?

MR COWDROY:  No, Your Honour.

Plasterers 14 26/11/92

HER HONOUR:	What did they think they were dealing with?
MR COWDROY:	Your Honour, they were dealing with the provisions of clause 38A which provides certain
benefits or, I should say, dealt with redundancy.
But, in effect, what we say, Your Honour, is it was
not redundancy they were dealing with at all. It
was some different concept. It was not redundancy.

HER HONOUR:  Now, what they had to deal with, Mr Cowdroy,

was an application for leave to appeal.	That was
their jurisdiction. Their jurisdiction	was to deal
with an application for leave to appeal.	Now, did
they deal with it?

MR COWDROY:	They dealt with it, Your Honour, and in doing so we say they misunderstood what they were dealing
with.
HER HONOUR:	Well now, you will take me to cases where that

sort of error has been held to be jurisdictional

error, will you?

MR COWDROY:	Your Honour, I can refer you to R v Connell.
HER HONOUR:	Yes, I know the principle.  What about the

South Australian Public Service case, was it last

year or the year before?

MR COWDROY:  Your Honour, I am sorry, I am not familiar with

that particular case, but - - -

HER HONOUR:  It was, in fact, held to amount to a

jurisdictional error in that case, it being a leave

to appeal, very close - well, the facts were

somewhat similar; it being an application for leave

to appeal from a decision of a single commissioner

of the South Australian Industrial Commission. But

what it did was it, in effect, decided a question

prohibition case rather than a mandamus case. It that was not raised and, I think, it was a	decided a question that was not raised, and that
was said to involve an excess of jurisdiction.

MR COWDROY:  Your Honour, as I say, I am not familiar, I am

sorry, with that case, but the principles we do

rely upon in R v Connell; Ex parte Hetton Bellbird,

namely, that if the Commission misunderstood the

nature of its task and failed to perform that task,

that - - -

HER HONOUR:  Yes, that is right.

MR COWDROY - - - constituted a constructive failure to

exercise jurisdiction.

Plasterers	15	26/11/92
HER HONOUR:	Yes.	Now, the principle is uncontroversial but

it means that at the end of the day you are able to

say, "Well, it didn't actually hear and determine

the matter that was before it", in the case of

mandamus or, in the case of prohibition, if you are

looking for jurisdictional error, "It heard and

determined a matter that wasn't before it" or

"couldn't have been before it", for example.

MR COWDROY:	Yes. Well, Your Honour, if we, by analogy, apply those cases to this case, what we say was
that the Full Bench's failure to grant leave when
we - faced with the fact that there was, on an
examination of the decision, an error, was tantamount to a wrongful exercise of jurisdiction. In other words -

HER HONOUR: Well, what do you mean by that? It exercised a

jurisdiction it did not have?	And do not forget
you are asking for mandamus.

MR COWDROY:  Yes. Your Honour, it should have exercised

jurisdiction.

HER HONOUR:  I simply do not understand what you are saying,

I am sorry. You must show me what it is that

really amounts to a failure to hear and determine

the application for leave to appeal even though, on

its face, that is exactly what they did.

MR COWDROY:  Your Honour, I can put it no more highly than

simply this: the Commission had before it and was

faced with what we say was an obvious error in the

way in which the principle of redundancy exists.

The Commission, on 1 October this year had the

opportunity to correct that error.

HER HONOUR:  But it was not obliged to, was it? It was not

obliged to. All it was obliged to do was to

consider whether it would give you leave to appeal.

You had no right of appeal, did you?

MR COWDROY:	No, we had to seek leave.
HER HONOUR:	Yes.
MR COWDROY:	But its failure to grant that leave meant

that - - -

HER HONOUR:  But it must always be open to the Commission to

refuse leave. You cannot establish the error just

by pointing to the refusal of leave.

MR COWDROY:  No. Your Honour, but the refusal of leave, if

one looks at the reasons why the leave was refused,

there you see - - -

Plasterers 16 26/11/92

HER HONOUR:  They say it is different in the building

industry.

MR COWDROY: But, Your Honour, when one examines the

building industry provisions, which they were
dealing with, there we say the error is obvious and
manifest because there is something which is

described as redundancy which, in fact, is not

redundancy according to the principles. That

constitutes, really, Your Honour, the nub of this

case.

HER HONOUR: All right. Now, would you have a look at the -

have you any cases you can refer me to which

suggests that an error of this kind amounts to

jurisdictional error, apart from principle?	I am
looking for analogous fact situations.

MR COWDROY:  Your Honour, I cannot. We have referred the

Court to a number of decisions which establish the principles but there is no fact situation that I

can point to analogous to this where there has

been, what we would say, an error.

HER HONOUR:  All right then. Now, would you like to have a

look at the privative clause?

MR COWDROY:	Yes, Your Honour, I have that section with me. Your Honour, on the authorities and the authority
of Reg v Coldham; Ex parte Australian Workers'
Union, 153 CLR, the particular passage at
page 419 - this was under the old Act.
HER HONOUR:	Yes, I think it is more or less accepted that

there is no significant change.

MR COWDROY:  Yes. The Court in that decision, Your Honour,

held that section 60 of that Act was:

ineffective to prevent prohibition going when

the Tribunal transgresses those limitations or

restraints.

HER HONOUR:  Are they talking about constitutional

limitations or restraints or statutory limitations

or restraints? You see, as I understand it, you do not raise any constitutional question in this case.

MR COWDROY:	No, we do not, Your Honour.
HER HONOUR:	So, at best you put it there is some breach of the statutory obligation?
MR COWDROY:	Yes.

HER HONOUR: That is the best you put it.

Plasterers 17 26/11/92

MR COWDROY:	I think we would be confined to that.
HER HONOUR:	Yes.  Now, what does the privative clause say

about that?

MR COWDROY: According to the wording of the section,

Your Honour, that is effectively final.

Your Honour, the only thing I can say in relation
to that is that section 150 is predicated upon the

basis there is a valid order or award and in so far

as this award contains what we submit is an obvious

error, it is - - -

HER HONOUR:  That is not the way you approach a privative

clause, is it? The effect of a privative clause is

to give validity to something that otherwise would

not be valid. You cannot write them out of

existence like that, Mr Cowdrey.

MR COWDROY:  Your Honour, that is the only way we can really

put it.

HER HONOUR:  Yes, thank you. Now, would you like to have

regard to the decision to which I earlier referred?

MR COWDROY: That would be helpful if that is available.

HER HONOUR:  I have it only in print form. Would you want

me to adjourn while you look at it?

MR COWDROY: That might be convenient, Your Honour.

HER HONOUR:	Yes, well, 15 minutes, I think.
MR COWDROY:	Yes, thank you.

AT 11.39 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.58 AM:
MR COWDROY:	Your Honour, I am indebted to the Court for it

providing a copy of that decision which does little

to assist my position. Your Honour, ultimately,

the question comes down to one central matter which

we put and, to be quite frank, our application

really hangs or falls on this. The question is

whether the Commissioners, in exercising their

jurisdiction, have failed to perform their function

not by refusing leave but, as we say it,
misconceiving the concept of redundancy as has

appeared in the relevant award.

Plasterers 18 26/11/92

That concept is, we say, quite erroneous in

principle, and they have failed to correct that
error by their refusal to grant leave to have the

matter determined on appeal. The failure on their

part, as officers of the Commonwealth, constitutes,

in our respectful submission, a failure to perform

their lawful functions. The failure to perform,

Your Honour, arises, at the risk of being repetitious, out of the failure to give the

opportunity to the appellants to have determined by

the Full Bench the question of whether or not the

concept of redundancy, which appears in the award,

is in fact redundancy at all or some other concept. Quite clearly, Your Honour, we concede that

the Commission does have power to introduce

provisions relating to redundancy or some other

concept akin to redundancy but the mistake,

Your Honour, is in attempting to call redundancy a

situation which arises when an employee determines

that they shall be, by their own act, declared

redundant.

Your Honour, in so far as section 150 is

concerned, the question is, in our submission,

whether, in effect, the tribunal has made a mistake

which, in effect, is a constructive failure to

exercise its jurisdiction and, if so, we would
submit that section 150 does not operate to prevent
this Court granting the issue of a writ in those

circumstances. If the Court pleases.

HER HONOUR:  Yes, thank you, Mr Cowdroy. I will give brief

reasons now.

This case concerns an award provision in the National Building and Construction Industry Award 1990 ("the 1990 Award"), the effect of which is to

allow what is said to be redundancy provisions to

operate at the initiative of employees rather than

employers.

The provision may or may not be found in other

awards but it seems fairly clear it is not the
standard redundancy provision in Commission awards

which are based on the 1984 decision of the

Conciliation and Arbitration Commission relating to

termination, change and redundancy.

The application to this Court comes about because Mr Commissioner Palmer refused an

application to delete the prosecutors as

respondents to that particular provision of the

1990 award. An application for leave to appeal to

a Full Bench of the Commission was dismissed, the

Full Bench saying in that regard that:

Plasterers 19 26/11/92

Having regard to the background to and the development of redundancy provisions in the

building and in construction industry, we do

not consider that the appellants (the

prosecutors in this case) have demonstrated

that there is an arguable case that

Commissioner Palmer manifested any error of

principle in reaching his decision.

It is contended on behalf of the prosecutors in

this Court that there was an error of principle in

that Commissioner Palmer mistook the concept of

redundancy. It is said that that error of

principle is compounded by the Full Bench decision

refusing leave to appeal.

It is not every error that will ground

prerogative relief. So far as mandamus, which is

sought in this case, is concerned, there must be an

error amounting to a refusal to exercise jurisdiction. Such an error, it is well established, may be constituted by what is said to

be a constructive failure to exercise jurisdiction,

that is, a mistake of some kind, the effect of

which is that the Commission has failed to do that
which it is obliged to do, whether pursuant to

constitutional requirement or pursuant to statute.

There is, of course, a clear distinction

between an error of that kind and an error within
jurisdiction where the tribunal concerned simply
fails to apply some principle or to discharge some
legal obligation which does not, however, affect

jurisdiction as such. An example of an error of

the latter kind would be one in which the tribunal

failed to have regard to matters which should be

taken into account in the exercise of a discretion.

Despite the submissions of Mr Cowdrey, I can see no basis on which the error ascribed to the

Full Bench, assuming it to be an error in any

event, can be said to amount to a jurisdictional

error or a constructive failure to exercise

jurisdiction. I therefore dismiss the application.

MR COWDROY: If the Court pleases.

HER HONOUR:  I would also, I should say, unless you have

something to say, although that is not the

application, decline to refer it to a Full Bench.

You have certain appeal rights as things presently

stand if you wish.

Plasterers	20	26/11/92
MR COWDROY:	Yes, Your Honour.	Your Honour, I make no

further application.

HER HONOUR:  Yes, thank you very much. In that case, the

Court will adjourn.

AT 12.08 PM THE MATTER WAS ADJOURNED SINE DIE

Plasterers 21 26/11/92