Re Wilcox & Ors, Ex parte Australian Workers Union

[1995] HCATrans 305

TRANSCRIPT
OF PROCEEDINGS
AUSCRIPT
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IN THE HIGH COURT OF AUSTRALIA

MELBOURNE OFFICE OF THE REGISTRY

No. M60 of 1995

IN THE MATTER OF:

AN APPLICATION FOR A WRIT OF CERTIORARI AND A WRIT OF MANDAMUS AGAINST: THE HONOURABLE CHIEF JUSTICE WILCOX AND JUSTICES KEELY AND MOORE (CONSTITUTING THE FULL COURT OF THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA) and COMALCO ALUMINIUM (BELL BAY) LIMITED

ex parte:

AUSTRALIAN WORKERS UNION and OTHERS

DAWSON J  (In Chambers)

AT MELBOURNE, FRIDAY THE 20TH DAY OF OCTOBER 1995

MR R. MERKEL QC:   I appear with my learned friend MR K. BELL on behalf of the applicant.  Could I just hand up at the outset, your Honour, some revised grounds.  We have endeavoured to simplify them a little.  They are not changed, in effect, but the grounds as expressed in the draft order nisi which was exhibit MS12, are somewhat longer than necessary; and, essentially, your Honour there are four distinct grounds in respect to which prerogative relief is sought.

HIS HONOUR:   They are all based on exceeding jurisdiction.

MR MERKEL:   Yes, your Honour.

HIS HONOUR:   Why would the court have exceeded its jurisdiction in this matter?

MR MERKEL:   There are four different ways in which it did so, your Honour.  The first your Honour, is that we say the failure to accord natural justice without, in other words, deciding the matter without a hearing would be a breach of a duty going to jurisdiction ‑ ‑ ‑ 

HIS HONOUR:   It was raised, was it not?

MR MERKEL:   Sorry, your Honour?

HIS HONOUR:   It was raised, the parties were free to put what submissions they wanted.

MR MERKEL:   Well, with respect, your Honour, we would say properly understood - and I need to explain to your Honour how it arose - properly understood, it was not an issue raised; and no opportunity was given to address it, given that that turned out to be the basis upon which the court decided the matter.  It is very much within what we would say is the decision of this court in the Public Transport Corporation case.  It was raised, your Honour, but in response to a matter that did not deal with the point and, properly understood, the passage in the transcript was not really saying that this is a ground or a new ground, it was really directed to the earlier ground which was the proper construction of the clause going to paid rates award for adult employees which had always been the issues between the parties. 

HIS HONOUR:   But, I mean, it has been said in a number of places that a court is not just an institution which sits there and decides between rival submissions which are made by the parties.  It can and does think for itself, and it had this problem, and it made a decision; and that is not a denial of natural justice when the parties have had complete opportunity to put whatever arguments they wanted to the court.

MR MERKEL:   Your Honour, I do not want to get diverted too much on the natural justice point.  There are four inter-related points, but can I go to the heart of it, your Honour, which we really say is this.  That there are two - can I identify the points so that your Honour sees how they inter-relate?  The first, your Honour, is that what is called the clause 9 ground in the material which is that there was a minimum rate provision for unapprenticed juniors, was never relied upon, discussed or even directly or indirectly raised as a ground before the Commission.

HIS HONOUR:   The question of whether it was a paid rates award was central.

MR MERKEL:   Yes.

HIS HONOUR:   Yes.

MR MERKEL:   That was central, your Honour, but the grounds on which it was contended and which the Commission is asked to decide whether it was or was not a paid rates award never embraced any reference to Clause 9.

HIS HONOUR:   But that is what I am saying.  The mere fact that the parties do not put an argument which commends itself to the Commission eventually is not a denial of natural justice.  Not the Commission, I am sorry - the Court.  The Court can and does think for itself.

MR MERKEL:   It does, your Honour, although we would say that the principle in the Public Transport case is that the court should not decide a case on a ground without having given the opportunity to the parties ‑ ‑ ‑ 

HIS HONOUR:   This is not a ground, this is an argument. That you failed to put or someone failed to put perhaps, although it was mentioned.

MR MERKEL:   Well, your Honour, we would say, mentioned - is its high water mark, but in reality it was never mentioned as a ground on which the Court should decide the matter.  But could I move on, your Honour, because the natural justice point standing alone raises a discrete issue.  But the real problem arises, your Honour, from what follows from it and the next point if I could just endeavour to summarise them for your Honour to see how they interact. 

The next point, your Honour, is that the sole basis upon which the Full Court could exercise a jurisdiction which itself was a prerogative jurisdiction and only that, was on the basis that there was a constructive failure by the Commission to exercise its jurisdiction by not deciding that this was not a paid rates - sorry, by not deciding it was not a paid rates award on this ground.  And the case is very clear, your Honour, that if a party wishes to raise a new basis or a new point or a new ground which it has never asked the Court or the Commission to decide, the Court does not say that was a constructive failure to exercise jurisdiction by the Commission.  One goes back to the Commission which has an ongoing role and this was only an interim, urgent interim relief, this was not a final decision by any means, one goes back to the Commission and puts the argument to the Commission, does not go to the Court and say that the Commission failed to grant us relief on this ground and exercise the extraordinary jurisdiction of prerogative relief in respect of a point never considered or requested to be considered by the Commission.  So that, your Honour, by ‑ ‑ ‑ 

HIS HONOUR:   But where the question is if we are departing from natural justice, where did the Court exceed its jurisdiction in doing so?

MR MERKEL:   The Court exceeded its jurisdiction, your Honour, in three fundamental respects.  The first, your Honour, is that as a matter of prerogative relief it was - the condition precedent, namely that there was a constructive - there was an excess of jurisdiction by the Commission did not exist because the Commission was never requested to consider the point therefore it could not have failed to exercise its jurisdiction by not considering a point that it ‑ ‑ ‑ 

HIS HONOUR:   Well, all right, let us assume that the Court was wrong in issuing its prohibition, was not it its prohibition?

MR MERKEL:   Prohibition and mandamus, your Honour.  The mandamus is equally important.

HIS HONOUR:   Writs of prohibition and mandamus.  Let us assume that it was wrong but where did it exceed its jurisdiction?

MR MERKEL:   Well, three grounds, your Honour.  The first is that it exercised that jurisdiction on the basis of a constructive failure by the Commission to exercise its jurisdiction.  We say as a matter of law ‑ ‑ ‑ 

HIS HONOUR:   But it may have made an erroneous decision but that is not exceeding its jurisdiction.

MR MERKEL:   Well, your Honour, the condition precedent for the grant of prerogative relief which was that there was an excess of jurisdiction by the Commission on this issue did not exist but could I go to the third and fourth point because they are striking at the heart of the matter?

HIS HONOUR:   Yes.

MR MERKEL:   The first two are essentially procedural points, your Honour.  The second two go to the heart of the matter.  The third point, your Honour, is that the - we say that the analysis of the Court that it was not a paid rates award is wrong.  If that is so it has directed the Commission by mandamus to act on the basis that it is not a paid rates award when it is a paid rates award and we would say, your Honour, the sole basis for that jurisdiction depends upon whether it is or is not a paid rates award.  It is not an error of law.  It is a condition precedent to the exercise of prerogative relief and mandamus.  If it is a paid rates award there could be no basis for the Court to have a jurisdiction to order the Commission to act on the basis that it is not.

HIS HONOUR:   Well, it is a question of perhaps mixed fact and law but it is a question which is decided by the Court.  It decided that this is not a paid rates award.

MR MERKEL:   But, your Honour, if that is ‑ ‑ ‑ 

HIS HONOUR:   Now, it may be wrong;  it may be right but that is something it had a jurisdiction to decide.

MR MERKEL: Well, with respect, your Honour, I suppose it becomes a cumulative point but could I take your Honour to the fourth point, because each is inter-related, your Honour. The fourth or the second jurisdictional aspect going to the substance as against the procedure is section 150 of the Industrial Relations Act. Your Honour, the Full Court's decision was, we say, somewhat remarkable in terms of section 150 because - can I just take your Honour to the two - what we say is the difficulty arising? Your Honour, the decision of the Court is exhibit 2 - exhibit 1, sorry, your Honour.

Your Honour, at page 62 of the decision their Honours said under the nature of the error in the second sentence:

The Full Bench possessed the general power to make an award that is conferred on the Commission by section 111(1)(b) of the Act subject only to its being satisfied ‑ ‑ ‑ 

HIS HONOUR:   I am sorry, I have lost this.  No, I have got it now.  That is all right.

MR MERKEL:   Sorry, your Honour.

HIS HONOUR:   Yes.

MR MERKEL:   The passage in the first paragraph, your Honour, makes it clear that this is the majority judgment but Moore J agreed that there was jurisdiction to make the award it made under section 111(1)(b) subject only to it being satisfied that the matters stipulated in section 170UA, which it was, the Full Court was free to exercise that power by making a paid rates award rather than any other award if it thought this to be the appropriate course.  In making the award it did the Full Court - the Full Bench did not exceed its jurisdiction and then their Honours go on and discuss the question of misapprehension because in the process of arriving at the decision their Honours - the Full Bench treated the award as a paid rates award and, your Honour, properly understood that means no more than that the principles that they thought should govern the exercise of the interim jurisdiction of the Commission - the interim jurisdiction to grant relief on an interim basis really meant they acted upon wrong principles and the conclusion of the Full Court at page 69, your Honour, at the bottom of 68, it gave effect to what it wrongly thought was the duty imposed to make a particular type of award.

I will have to take your Honour to the very paragraph of the Commission's decision which showed how interim this was:

Although the actual decision of the Full Bench, an interim paid rates award was in a particular form is a decision that could have been made in the exercise of the Commission's general arbitration power, this particular decision is not capable of reference to that power.

Now, with respect, your Honour, that is quite wrong.

HIS HONOUR:   It might be but where is - in coming to that conclusion where is it exceeding its jurisdiction?

MR MERKEL: Well, it is the next paragraph - the next sentence, your Honour, that section 150, subsection (1), we say, excludes a challenge to an award and precludes the grant of prerogative relief when all that is demonstrated is that the Commission acted upon wrong principles and made itself, according to the Full Court, an error of law. We say there is - section 150, your Honour, when there is no constitutional question, which is this present case, does not permit the grant of prerogative relief on the ground that the Commission addressed a wrong question or acted on a wrong principle.

We would say the way section 150 has been discussed in O'Toole, and I have in mind your Honour's summation in O'Toole and in Charles David that provided the Hickman test is satisfied, and there was no suggestion here, your Honour, that it was anything other than a bona fide exercise of power by reference to a subject matter, the award-making power under section 111, the Hickman test was clearly satisfied and we say that their Honours are simply -it was not open to them to grant the relief in ‑ ‑ ‑

HIS HONOUR:   But it was open to them.  They had a power to grant prerogative relief and they granted it.

MR MERKEL:   Well, your Honour, that ‑ ‑ ‑ 

HIS HONOUR:   I mean one just - in this area one does have to make a distinction between an assumption of a jurisdiction which the Court did not possess and the erroneous exercise of a jurisdiction which it did.

MR MERKEL: Well, your Honour, if we are right under section 150, the statute would say, your Honour, this is exercising a jurisdiction that the Court did not possess. It is not an error within jurisdiction because the section bars the grant of the relief in fact granted. Can I take your Honour to just a short passage in the decision of the Commission to show how interim this decision was? It is exhibit MS4, your Honour, and the particular passage I wanted to take your Honour to is at page 43, six pages in from the end, your Honour. I think every second page may have a number on it. Does your Honour have that page?

[10.07am]

HIS HONOUR:   I think I do.  Yes, I do.

MR MERKEL:   Your Honour, the second last paragraph which was, in effect, the conclusion the Commission arrived at the Commission said:

In all the circumstances for the reasons set out we do not believe it can be said it is in the public interest to refuse to maintain the paid rates ...(reads)... the paid rates nature of the award.

Now, your Honour, that conclusion and the decision that the Commission was asked to make an urgent interim award in exercise of its powers under section 111 do not involve matters going to its jurisdiction or excess of jurisdiction. They clearly in effect, your Honour, go to matters which are appealable on the grounds that they acted on a wrong principle or they addressed wrong questions but all of those matters, your Honour, are protected from prerogative review under section 150. We say there is simply no basis in the section 150 cases for using the constructive failure to exercise jurisdiction in the way the Full Court has used it in this case.

Indeed if one looks at the judgments in O'Toole v Charles David of course section 150 operates on the assumption of an invalid decision and it only - on any view the Commission's decision was not invalid. The Full Court said it was fully within its jurisdiction to make an award on the principles it decided were appropriate under section 111. So we say, your Honour, that that ground, on any view, goes to a question of absence of jurisdiction because the statute itself denies a statutory court and has been held to deny the High Court save in the limited Hickman sense any ability to grant prerogative relief in respect of the Commission's decisions and we say that their Honours have exceeded jurisdiction on that basis. They are the four points, your Honour, but could I take ‑ ‑ ‑

HIS HONOUR:   Now you have one great hurdle to overcome, do not you?  That is that there is an appeal available from the decision of the, with leave, from the decision of the Full Court of the Industrial Relations Court.

MR MERKEL:   We have considered that, your Honour, and we have ‑ ‑ ‑ 

HIS HONOUR:   Indeed, you have made an application.

MR MERKEL:   We have made an application for special leave, your Honour, in the event ‑ ‑ ‑ 

HIS HONOUR:   Not special leave.  It is just leave, I think.

MR MERKEL:   I must say I thought we fell within special leave, your Honour.

HIS HONOUR:   What is the section?

MR MERKEL: Sorry, your Honour, I - it may not matter, your Honour. I think it is a Judiciary Act appeal, your Honour. I may stand corrected. We had, I think, formed the view that we were applying for special leave, your Honour. But the answer to that, your Honour, lies - is twofold. The first is, your Honour, that in R v Judges of the Federal Court ex parte West Australian Football League, volume 143 CLR 190, a majority of the court, your Honour, said that the existence of a right of appeal is irrelevant to the exercise of a judicial discretion to grant prohibition for excess of jurisdiction.

HIS HONOUR:   Who said this?

MR MERKEL: This was in Adamson's case, your Honour, 143 CLR 190, and the judges that said that, your Honour, Chief Justice Barwick, Gibbs, Stephen and Aicken JJ.

HIS HONOUR:   The citation ‑ ‑ ‑ 

MR MERKEL: 143 CLR 190, your Honour.

HIS HONOUR:   Yes.

MR MERKEL:   And, your Honour, the way it was put, for example, by the Chief Justice was, at page 205:

I could not regard the existence of a right of appeal and even less the possibility of a grant of special leave as a matter ...(reads)... orders made in the proceedings.

Your Honour, there have been some statements by members of the Court since that a right of appeal may be a matter relevant to discretion.  We would say Adamson's case would suggest not but we are not aware, your Honour, of anything that would undermine the essential principle in Adamson's case.  That if the challenge is for excess of jurisdiction a right to grant leave or special leave ‑ ‑ ‑ 

HIS HONOUR: Section 432(2).

MR MERKEL:   Yes, your Honour, I am indebted to your Honour for that, an appeal lies with the leave of the High Court.

HIS HONOUR:   And leave is considerably easier to obtain than special leave.

MR MERKEL:   It would have fewer discretionary hurdles, your Honour, but the hurdles are still all matters of discretion.  For present purposes the question is the difference between a right of appeal and there we say Adamson's case is authority that the existence of a right of appeal should not go to the discretion but, your Honour, where it is a question of leave we say for this purpose leave is sufficiently discretionary or special leave may not matter but we would say clearly they are not matters that should go to deny the jurisdiction relied upon under section 75(5) and we would say, your Honour, that the four grounds in the present case are appropriate for and sufficient for the order nisi.

Your Honour, there was one point I did want to - I did not want to be repetitive and go back but it is, when your Honour said the point was raised, the transcript where this was raised was exhibit MS11.  Your Honour, can I just indicate the context in which the question arose because it is not easy to understand pages 293 and 294 in a vacuum.  Your Honour, one of the points argued by the applicants, that is Comalco, was that clause 8, which is the paid rates provision for adults, was in substantially identical terms to the Metal Trades Award which was always regarded as a minimum rates award and what was put was as a matter of construction, looking at the award in itself, not looking at over-award payments.  That the proper construction of the award was a paid rates award and clause 8 was the focus of that being adult rates.

In response to that in reply we had put to the Commission that that argument is not sustainable because if one interprets the award as a document, as a whole, one can see that if there was a minimum provision such as, I think for apprentices or unapprenticed juniors, I cannot remember which was referred to, I think it may have been apprentices, that the words "minimum" there make it clear that as a matter of construction, whatever else may have been used in the Metal Trades Award, this was a paid rates award and the adult rates were that.

That was an argument, I should say, if I recall correctly was run at the Commission as well and indeed when the Commission handed down its decision it proposed a draft award and in fact in the draft award provided for paid rates for unapprenticed juniors which it did of, in effect, its own volition and in fact it handed down its proposed draft award giving paid rates to unapprenticed juniors - we are not even sure whether there are any at the moment, your Honour, but put that aside - the Commission then gave the parties an opportunity to put any submissions they want as to the award and, of course, at that point in time no one suggested that there was a change in respect of unapprenticed juniors or apprentices and the award was made dealing with all rates as paid rates.  When the same point was argued before the Full Court the same argument was put on construction and we mentioned in reply that, as a matter of construction, that does not seem to be open because there is the minimum rate provision and it is in response to that argument that the passage at page 293 appears, your Honour, and what my learned friend Dr Jessup said there, starting off in the last paragraph:

There are one or two further things of less moment but nonetheless of the importance we would wish to draw your Honour's attention ...(reads)... in a paid rate sense for those classifications.

Now, your Honour, that is a reference, as we understand it, to the award that the Commission - the interim award the Commission ultimately made.  So my learned friend was putting this, we would say, not as a new point but as to the construction that he would contend for and did contend for consistently as to how you should interpret clause 8, the Metal Trades type provision, it was minimum rates.  The Chief Justice then said:

Well, is that so?  Why cannot it be said the Commission on the one piece of paper is making two awards ...(reads)... not possible to say, well, there is.

Now, again, your Honour, one cannot go back into the minds of what occurred.  This was at 4.30 on the fourth day and the matter was just about to finish at that point, your Honour, but it seems that passage is a response to the reference in the interim award to do two different rates.  My learned friend then said it is not, your Honour.  Then with respect an award is a document just signed under section 143 and then drifted off to another point about the, I think, whether section 143 had been complied with or something to that effect and then Justice Moore said:

Dr Jessup, with this question I am not wanting to take you back to where you were a minute ago but may I ask this, was the submission ...(reads)... in the direction of this being a paid rates award.

Now on any fair reading, your Honour, what my learned friend is putting there is not a separate ground but a response to my submission that said, look, that really does not take you anywhere.  Look at clause 8 and interpret it as a paid rates award.  It pushes it in the direction of being a minimum rates award.

HIS HONOUR:   The question is raised and the fact that the arguments are not pressed does not really matter, does it?

MR MERKEL:   Well, your Honour ‑ ‑ ‑ 

HIS HONOUR:   This notion that a court is defined to deciding between rival arguments put to it by the parties is not a notion which I am prepared to accept.   And indeed this Court has said that it is not one that should be accepted.

MR MERKEL: Well, your Honour, I do not suggest the Court in that sense, in a jurisdictional sense, is confined to the arguments put by the parties. That does not form part of my submission but what does, your Honour, is what was really said by the Full Court - I can hand up a copy, your Honour, of the Public Transport Commission case. I am not sure whether this was reported in the Commonwealth Law Reports, your Honour, but that is 117 ALR 17 but the passage I wanted to read to your Honour was at page 24 at line 35.

True it is that the Commission raised with the parties the question of a final award but the suggestion was rejected by both the union and the PTC and was apparently abandoned.  The Commission left the matter upon the basis:

We have before us now completed submissions from all parties, as we understand, as to whether or not we should make an interim award in relation to the apprentices.

Just stopping there, your Honour, it was clearly open to the Commission to make a final award.  The question was one of whether what - the one of its duty to apprise the parties of the basis on which it was proposing to proceed:

In those circumstances it cannot, in our view, be said that the PTC or for that matter the other parties were given a reasonable opportunity ‑ ‑ ‑ 

HIS HONOUR:   That is rather different.  That is the Court doing something or the Commission, in this case, doing something which it was not asked to do.  And that is not this situation.

MR MERKEL:   Well, your Honour, I understand the distinction your Honour draws but with respect the cases - I mean, Pantorno's case, for example, your Honour, and the cases which gave rise to that statement of principle in the PTC case really were - in essence, the court can decide a case on a point not put by the parties but natural justice would require that the court give the parties an opportunity to address the point.  Can I just give your Honour one example about the effect of the denial in the present case?  On no fair reading of the transcript do we say it was a submission put as an independent ground but even if one strains the reading against us and says, well, it was mentioned, I wanted to draw your Honour's attention to something said in the recent Grollo case on the difference between mentioning a point and arguing it as a ground but putting that all against us ‑ ‑ ‑ 

HIS HONOUR:   You keep referring to this as a ground.  It is really just an argument, is not it?

MR MERKEL:   Well, with respect, your Honour, we would say that it is a ground.  If one had to have grounds of appeal one could not say it is not a paid rates award, full stop.  One would say it is not a paid rates award by reason of the proper construction of it, by reason of the proper characterisation, by reason of over-award payments being made.  It is more than just an argument, your Honour.  It was the fundamental and only point.

HIS HONOUR:   Whether it was a paid rates award or not, the reason it was or was not, as a matter of construction, is just an argument.

[10.24am]

MR MERKEL:   Well, your Honour, without joining issue with your Honour, can I go to the problem that arose.  If it was an argument, your Honour, and I accept that for the moment, and I prefer to say it was a basis on which the Tribunal was invited to find the award was not a paid rates award.  If that basis was never put to the Commission, as it was frankly conceded by my learned friend, Dr Jessup, to the full court, two questions arose.  One is whether the fact that it was never put should afford the parties to address the full court on the significance of that. 

On any view, your Honour, the fact that it was never put is a critical matter to whether there was a constructive failure to exercise jurisdiction by the Commission, or whether the jurisdiction of the full court to grant prerogative relief, which is discretionary, would be and should be considered in the light of, well, if you wish to argue that before the Commission, you can put it to the Commission and get its ruling on it.  This is an interim award, it was urgent interim relief.  It is open to you to go and put the point to the Commission.  You have never done it. 

Why do you come by way of prerogative relief and ask for court in effect to consider an argument or a point never put or considered and never raised, and we say they are fundamental issues, your Honour, which ought to attract the principle that the court should not decide a case on a basis never argued, whether the basis be an argument or a matter of substance, particularly where there is much to be said against that court.

HIS HONOUR:   You are going over the same ground.  It is a question of whether it is an argument, or whether the court is doing something which it was not asked to do.  The two things are different, and once you accept that if it is an argument, the court is not bound by the arguments put by the parties, but can consider arguments which the court raises for itself.

MR MERKEL:   Your Honour, what I - I will leave this point, but can I just do so by reference to what McHugh J said in the recent Grollo case, your Honour.  Your Honour will recall it was said that in Hilton v Wells, the persona designata and incompatibility doctrine was argued, and his Honour, in his Honour's judgment at page 29, talked of the extent of the argument, and his Honour then said that in response ‑ ‑ ‑ 

HIS HONOUR:   This is a dissenting judgment?

MR MERKEL:   It is, your Honour, but I think in fairness on this point of Hilton v Wells, and what Hilton v Wells is authority for, that the court did not treat itself as bound by Hilton v Wells on the point, and his Honour referred to the Solicitor General, saying that the raising the inconsistency point in a very short passage in the transcript, and his Honour says that appears to have been the extent of the discussion.  His Honour then went on to say that that really did not raise that as an issue for decision, and the court did not decide as an issue raised in the case.  Now, we would say it is much the same in the present case, but your Honour, if I could just in effect summarise our submissions, we say, firstly your Honour, it may be insufficient in its own right, but we say firstly the court acted in breach of its duty to decide a case on a basis not put and not argued, and on any fair reading we say that has occurred here without affording up the parties an opportunity to deal with it. 
Secondly, your Honour, we say that there was a constructive failure to exercise jurisdiction by the full court, by deciding the matter on the basis of an argument or a basis which was never considered or requested to be considered by the Commission, and we say it was not opened as a matter of law to say that constituted a constructive failure by the Commission to exercise jurisdiction, because by definition the constructive failure to exercise jurisdiction must mean addressing a wrong question or not addressing - addressing a wrong - not addressing the jurisdictional question required, and we say that could not be so, if they were never asked to consider the point. So we say the condition precedent to the exercise of prerogative relief did not exist. 

Thirdly, your Honour, we say that in the question of a paid rates, whether it was or was not a paid rates award, in the context of the exercise of the jurisdiction of the full court, was a matter that went to jurisdiction.  The Full Court treated the existence or otherwise of a paid rates award before the Commission as a jurisdictional issue going to absence of jurisdiction.  It must follow, your Honour, that whether or not it is a paid rates award equally goes to the same jurisdictional question in the full court.

HIS HONOUR:   Why?

MR MERKEL:   Because, your Honour, if treating it as a paid rates award when it is not was a jurisdictional defect for the bench, Full Bench, it must likewise be a jurisdictional defect for the Full Court for the same reason.

HIS HONOUR:   Not at all.  It is exercising an entirely different jurisdiction, the jurisdiction which arises to grant prerogative relief.

MR MERKEL:   Yes, your Honour, but the only basis on which its jurisdiction is exercised is that it is not a paid rates award. 

HIS HONOUR:   That is right.  It may have made a mistake, but so what?

MR MERKEL:   Well, we say - we say that its ‑ ‑ ‑ 

HIS HONOUR:   It has a jurisdiction in which it can make mistakes.

MR MERKEL:   We say it is the sole ground, your Honour, of its decision. 
HIS HONOUR:   It may be.

MR MERKEL:   But it is not a mistake, your Honour, it is a bit like the irregularity in Marsh's case that your Honour ‑ ‑ ‑ 

HIS HONOUR:   Its jurisdiction to grant - I just could not accept that argument, Mr Merkel.  Its jurisdiction to grant prerogative relief is not conditioned upon there being or not being a paid rates award.  That is just not so.

MR MERKEL: Well, your Honour, I will not pursue that further, other than to identify the anomaly that arises that the effect of the grant of mandamus is to require the Commission to - mandatory requirement upon the Commission to exercise its power on the basis that it is not a paid rates award. If we are right, your Honour, then we say it is requiring the Commission to exercise its power in breach of its statutory duty. The last point, your Honour, is the section 150 point, and we say that on any view the section 150 point, if we are wrong on all else, creates jurisdictional issues and is a jurisdictional defect, because the cases do not go so far, your Honour, as to countenance a wrong exercise of principle or an error of law, which is not jurisdictional and on the full court's own decision, this was not jurisdictional, your Honour, and on the passage that I have taken your Honour to, it is quite clear the full bench was exercising a broad discretionary jurisdiction to make an award under section 111, by reference to principles which the full court said were wrong.

We say that is not a ground of challenge open under section 150 on the decisions of this court in O'Toole and in Richard Walter, and we would say that on those grounds it is appropriate that prerogative relief be granted. We would say that the existence of a right to apply for leave ought not to operate as a discretionary bar against the grant of an order nisi.

HIS HONOUR:   And yet all of these matters which you raise are matters which can be raised fairly and squarely on an appeal.

MR MERKEL:   They can be raised on an appeal ‑ ‑ ‑ 

HIS HONOUR:   And if you are right and there are the errors which you point to, then leave would be granted of course.

MR MERKEL:   Well, your Honour, I would never be so rash as to say that that necessarily followed.  At the moment, your Honour, we say it is sufficient to say that if we have an arguable case on any of the four grounds, we say it is appropriate that the order nisi be granted on those grounds.  We say that the cases would not countenance the refusal of an order nisi on the basis that leave may be granted as a matter of discretion by the court.

HIS HONOUR:   There is something abhorrent in the notion of granting prerogative relief to prevent a court granting prerogative relief, is not there?

MR MERKEL:   Your Honour, not if - if I can just address the last ground, your Honour.  If there is a ‑ ‑ ‑ 

HIS HONOUR:   And the reason why is because we are talking, when talking about prerogative relief, in terms of jurisdiction, and the jurisdiction to grant prerogative relief is one which is well known, and it is very difficult to see how you can grant prerogative relief to stop that jurisdiction being exercised, or on the basis of an excess of jurisdiction.

MR MERKEL:   Well, with respect, your Honour, we would say that cases such as Marsh's case would make it fairly clear that if - that qualitatively and conceptually there should be no difference between a court exceeding its jurisdiction merely by reference to the relief it granted in excess of jurisdiction.  If anything, your Honour, at the heart of section 75 as a constitution, we would say that is a point in our favour not against us, because the real protection is against the excess of power under 75(V), and the court's supervisory jurisdiction to ensure that it will not allow any excess of power a fortiori, an excess of power that is in the context and nature of prohibitory or mandamus relief is at the heart of the protection 75(V) would have. 

This is no longer a matter of an order or a judgment that awards a particular form of relief.  This is ordering Commonwealth officers to undertake a task which we say, if we are right on any of our points, the court had no jurisdiction to do.

HIS HONOUR:   But it did have jurisdiction to grant that form of relief.  You see that is the difficulty, and if I may say so, in this particular jurisdiction we are now in, there has been a misconception which has existed for a long time, that merely because an error has been made, either of law or of fact, entitles one to prerogative relief, without looking at the question of jurisdiction.

MR MERKEL:   Well, your Honour, that maybe presents the ultimate irony of the present case.

HIS HONOUR:   You have an appeal if you get leave, and you can correct the situation that way, but until you do, then you are, if I may say so, stuck with the order which has been made.

MR MERKEL:   Well, I appreciate the force of what your Honour's says, but it produces the ultimate irony that on any view, the Commission's decision was attended by errors of law or fact, and if your Honour is correct, it would operate in a very anomalous and almost capricious way if the full court were able to exercise its power to grant prerogative relief on a ground not open, namely errors of law and fact.  Yet this court would not apply the same standard to the full court where it has made a decision on errors of law and fact.

HIS HONOUR:   I have failed to make myself clear.  There is nothing anomalous in that.  The fact of the matter is it is a wide jurisdiction, a supervisory jurisdiction, which the Industrial Relations Court exercised, and even if it did so by erroneously deciding some questions, it does not mean that it does not have jurisdiction. 

MR MERKEL:   Well, your Honour, our response I suppose which is just repetitive ‑ ‑ ‑ 

HIS HONOUR:   The Commission was not exercising a supervisory jurisdiction.

MR MERKEL: No, it is not, your Honour, but if it made errors that were not jurisdictional, it was not open to grant prerogative relief, but, your Honour, I am repeating myself. I really would say, your Honour, that if your Honour's against me on all that I have put, that still does not afford an answer to section 150.

HIS HONOUR:   You would say it is at least arguable?

MR MERKEL:   We would say it is very strongly arguable, your Honour.

HIS HONOUR:   All right.

MR MERKEL:   It is an important point, your Honour, but they are the submissions we wish to put to your Honour.

HIS HONOUR:   Yes.  I will give my decision in this matter at 2.15.

MR MERKEL:   Thank you, your Honour.

SHORT ADJOURNMENT

[2.19pm]

HIS HONOUR: This is an application for orders nisi for writs of prohibition, mandamus and certiorari directed to the Full Court of the Industrial Relations Court. That court, exercising a jurisdiction which it possessed by reason of the remitter to it pursuant to section 44 of the Judiciary Act 1901 (Cth) and section 412, subsection 2, of the Industrial Relations Act 1988 (Cth) of an application to this Court for prerogative relief, issued writs of prohibition, certiorari and mandamus in relation to an interim award, the Aluminium Industry (Comalco Bell Bay Companies) Interim Award 1994, made by the Full Bench of the Industrial Relations Commission.

There are difficulties which I perceive in this Court exercising a supervisory jurisdiction by way of prerogative relief directed to a court which was itself exercising supervisory jurisdiction by way of prerogative relief.  But I do not think that in this application I need enter upon those difficulties.

Under section 432, subsection 2, of the Industrial Relations Act 1988 of the Commonwealth, an appeal lies with leave to this Court from a decision of the Full Court of the Industrial Relations Court. The applicants have in fact commenced an application in this Court for leave.

The writs which the applicants seek do not issue as of course, and in the exercise of the discretion to grant or refuse orders nisi, the right to seek special leave to appeal to this Court is a circumstance to be taken into account, particularly where those who seek orders nisi have commenced an application for leave.

An appeal is the ordinary means of remedying errors made by a Court, and I quote:

"Apart from exceptional circumstances, the ordinary remedy of appeal rather than the extraordinary remedy of prohibition or a similar writ from this Court should be pursued."

See R v Cook ex parte Twigg (1980) 147 CLR, page 15, at page 30, per Justice Murphy. See also R v Baker and Wilkie ex parte Johnson (1980) 55 ALJR, 191 at 192, 33 ALR 660, at page 661, re Construction, Forestry and Mining Employees Union, ex parte Multiplex Constructions Pty Limited (1992) 66 ALJR 266, 105 ALR 291.

Not only that, but upon my present understanding of this matter, the complaint which the applicants make about the decision of the Full Court of the Industrial Relations Court would be more appropriately ventilated by way of appeal than in proceedings for prerogative relief.  Moreover, if I were to grant the orders nisi, there would be an undesirable multiplicity of proceedings in this Court directed to the same matter.

Mr Merkel QC for the applicants directed my attention to the remarks of Chief Justice Barwick in R v Federal Court of Australia ex parte Western Australian National Football League (1979) 143 CLR, 190 at page 205, where he said that he

"could not regard the existence of a right of appeal and even less the possibility of the grant of special leave to appeal as a matter to be taken into consideration in the exercise of the judicial discretion."

In speaking of the existence of a right of appeal, Chief Justice Barwick was speaking of a bare right which may or may not have been exercised by those entitled to it.  The situation is, in my view, different where the right to appeal with leave is vested in the very persons who are seeking prerogative relief, where the right is a right to appeal to this Court and where proceedings have been commenced to obtain leave.  In those circumstances, and having regard to the views expressed in the other cases to which I have referred, I think that the appropriate course is to refuse the application.

I should add that in making the remarks which I have, I have had in mind primarily the application for an order nisi for a writ of prohibition.  But in this case I would regard mandamus, and if available, certiorari, as inappropriate in circumstances where prohibition ought not to lie.  The application is refused.

I have not said so there, but of course it is not unknown for an application to be made following an unsuccessful special leave application or leave application.

MR MERKEL:   Yes, we are conscious of that in the light of what your Honour has just said.  I am indebted to your Honour for that observation. 

HIS HONOUR:   Very well.  There is nothing else is there, Mr Merkel?

MR MERKEL:   No, your Honour.

AT 2.34 PM THE MATTER WAS ADJOURNED
INDEFINITELY