Shire of Lillydale, Exparte- Re Grimshaw and Ors

[1994] HCATrans 75

TRANSCRIPT
OF PROCEEDINGS
AUSCRIPT
VictoriaLevel 7451 Little Bourke StMelbourne VIC 3000GPO Box 1114JMelbourne VIC 3001Phone [phone]Fax [phone]

O/N 4276  21.10.94

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
         Melbourne         No M83 of 1994

IN THE MATTER of an application for a Writ                 of Prohibition and a Writ of Certiorari against               GEOFFREY GRIMSHAW                A                 COMMISSIONER OF THE AUSTRALIAN                    INDUSTRIAL RELATIONS COMMISSION

First Respondent

PACIFIC WASTE MANAGEMENT PTY LTD

Second Respondent

TRANSPORT WORKERS UNION OF                AUSTRALIA

Third Respondent

Ex parte

THE PRESIDENT, COUNCILLORS AND                 RATEPAYERS OF THE SHIRE OF                 LILLYDALE

Prosecutors/Applicants

DAWSON J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 20 OCTOBER 1994, AT 9.50 AM

Copyright in the High Court of Australia

DR C.N. JESSUP QC:   May it please your Honour, I appear in this matter with my learned friend MR L. KAUFMAN on behalf of the prosecutor.

HIS HONOUR:   Yes, Dr Jessup.

MR B.F. SHINNERS:   If it please your Honour, I appear for the second respondent in this matter.

HIS HONOUR:   Mr Shinners.  Now I have a certificate from the Deputy Registrar certifying that she has received a letter from the Australian Government Solicitor advising that the first named respondent does not wish to have representations made on his behalf at the hearing of this application, and other than as to costs will abide by the orders of the High Court, or if remitted, of the Industrial Relations Court of Australia.

MR R.D. MARLES:  If it please your Honour, I appear on behalf of the third respondent.

HIS HONOUR:   Yes, Mr Marles.  Dr Jessup.

DR JESSUP:   Your Honour, this is an application for what I think is now called an industrial order nisi and we have filed the notice of motion in the usual form.  We have signed a consent for the matter to be remitted to the Industrial Relations Court but the second respondent has refused to do, and has filed an affidavit in opposition to such a course and in our submission it would be appropriate for your Honour to hear from my learned friend in that regard.

HIS HONOUR:   Yes, very well.  Mr Shinners.

MR SHINNERS:   Thank you, your Honour.  It is our contention on behalf of the second respondents, your Honour, that in reliance upon the affidavit of Anthony Graham Charles Gooch sworn on 18 October 1994 that contrary to the assertions made on behalf of the applicant that this application does raise a constitutional issue or issues in the terms identified in paragraph 3 of the affidavit of Anthony Graham Charles Gooch. 

HIS HONOUR:   I have read that.  I must say it eludes me, but perhaps you will be able to tell me what the constitutional issue is.

MR SHINNERS:   We submit that the constitutional issue arises in relation to the issue of the extent and breadth of the finding of a dispute in the making of the Transport Workers Refuse Award which is referred to in paragraph 11 of the affidavit of Michael William Corrie.  That is an award on the contention of the applicants that the second respondent, Pacific Waste Management, is bound by the provisions of that award by virtue of Pacific Waste Management Pty Limited acquiring part of the business of TNT Australia Pty Limited, a respondent - - -
HIS HONOUR:   Section 149 of the act.

MR SHINNERS:   Section 149 of the act, your Honour, and it is a corollary of the respondency of TNT Australia Pty Limited to that award is that it, TNT Australia Pty Limited, was the subject of a finding of a valid industrial dispute within the meaning of the act.  Now it is submitted that the application by the applicant in this respect raises the issue as to whether or not in an industrial dispute, whether the meaning of the act - within the meaning of the act extends to include the second respondent as a successor, transmittee or assignee of part of a business of a party to that original industrial dispute.

HIS HONOUR:   But how does that raise a constitutional issue. 

MR SHINNERS:   We say this, in our respectful submission, raises the issue of the power of the Industrial Relations Commission under the act, to prevent and settle disputes, and involve the consideration of the constitutional powers under section 35 percentum - 35, the conciliation and arbitration power and the incidental power.

HIS HONOUR:   It raises a question of fact, does not it, as to whether there was an assignment of part of the business.

MR SHINNERS:   There is no issue between - on the affidavit material that there was an assignment, or that the Pacific - - -

HIS HONOUR:   You are not claiming that section 149 was beyond power, are you?

MR SHINNERS:   No, I am not seeking to say that section 149 is beyond power.  What I am seeking to say, and that is not at issue, as I understand between the parties.  What is at issue is to whether there was an industrial dispute.

HIS HONOUR:   But that is a question of fact.  I mean we all know that there has to be an industrial dispute extending beyond the boundaries of any one state.  Whether there is or is not one is just a question of fact, is not it?

MR SHINNERS:   The issue, if it is a question of fact, then that - - -

HIS HONOUR:   I mean we are not - that does not involve a debate as to the meaning of section 51(35), does it?

MR SHINNERS:   It involves a consideration of an issue that the High Court, as I - limited research has indicated - has not dealt with, and that is in the extent of an industrial dispute within the meaning of the act covering and including a successor, assignee or transmittee of a business.

HIS HONOUR:   But if you are not disputing the validity of section 149 that question does not arise, does it?

MR SHINNERS:   Section 149, your Honour, refers only to the question - and goes only to the question as to award respondency obligations.  That is it prescribes that an award made binding on parties to an industrial dispute is binding upon a successor.

HIS HONOUR:   But in any event, even if some question arose in that regard, the facts would have to be found in some way or another and this court is not going to do that.

MR SHINNERS:   We say, your Honour, the facts are, on the material before the court, in the affidavit of the applicant - the affidavit of Mr Corrie, indicates that (1) that the second respondent acquired part of the business of TNT Management Pty Limited and is a respondent to the Transport Refuse Award by virtue of section 149.  They content that the award certified by Commissioner Grimshaw was not certified pursuant to or in settlement of a valid industrial dispute, and we submit that there was a valid industrial dispute, the nature of which - - -

HIS HONOUR:   It was created by a log, some long time ago - - -

MR SHINNERS:   Created by a log, served upon TNT Management Pty Limited, and we say the scope of that log extends to cover - - -

HIS HONOUR:   Retrenchment.

MR SHINNERS:   Retrenchment and employers within the class of employers that were found to be a party to the original dispute.

HIS HONOUR:   Yes, I follow that, but as I understand it reading the papers, but correct me if I am wrong, the real dispute is as to the nature of the order that was made varying the award, because it was said that this was not in relation to retrenchment at all, though that was what the dispute was about, but it was in relation to the variation related to wages and was not bona fide.  It was an attempt to pass on the expense of the retrenchment to the shire, because the shire had agreed to absorb any increases in wages but not retrenchment costs.  Now am I wrong?  Is not that the nature of the dispute?

MR SHINNERS:   That is part of the nature of the dispute - - -

HIS HONOUR:   But is not that the real heart of it?

MR SHINNERS:   Well, if my learned colleague concedes that there is no issue about the question of industrial dispute, and that the award was made - was in settlement of that, and it is confined to the issues that your Honour has made, then I do not take that matter any further in relation to the question of the constitutional issue.

HIS HONOUR:   It may not be confined to it, but that is the central issue obviously, and - - -

MR SHINNERS:   Well that is one issue I concede that we will need to direct towards, and that is certainly an issue on the material before the court.  But there is another issue, an issue to which we say raises a constitutional issue and that is that issue as to the scope of the original dispute that we say is created by service of the log by the Transport Workers Union on TNT Management Pty Limited, and we say that extends to cover the operations of Pacific Waste Management insofar as it succeeded to part of the business of TNT Management Pty Limited, which was the subject matter of the log.

HIS HONOUR:   And you say that is also a matter of contention?

MR SHINNERS:   That is also a matter of contention, and that is the point that I submit raises some constitutional issues in my view.

HIS HONOUR:   Yes, thank you, Mr Shinners.  Now, Mr Marles, do you have anything to say?

MR MARLES:   I do not have anything to add to my friend's observations except to say that we endorse them, your Honour.  If it please the court.

HIS HONOUR:   Yes.  Dr Jessup.

DR JESSUP:   Your Honour, I should make it clear that our client sees no particular forensic advantage in it being dealt with in one court or the other but would simply wish to draw to your Honour's attention those considerations of convenience which appear to us to militate strongly in favour of the usual course being followed here.  Your Honour was right to perceive the substantial matter which is going to be in dispute is a matter going to good faith or lack of it, and that is inherently likely to raise issues of fact which are much more conveniently dealt with by the Industrial Relations Court and if it has to come to the High Court in due course it will then come with the assistance of findings of fact having been made by that court, in the same way as in normal litigation.

Your Honour, if it goes to the Industrial Relations Court it will be dealt with by a single judge of that court because it comes directly from the commission as constituted by a single commissioner.  So we have, as it were, a choice between having the matter dealt with by a full High Court in the first instance, or by a single judge of the Industrial Relations Court.

HIS HONOUR:   The former is somewhat overkill, is not it?

DR JESSUP:   It is, your Honour, yes.  Your Honour, as to my learned friend's submissions about the alternative argument which our client desires to advance, he is right in saying that question 149 is unlikely to arise, in that the point is not whether the award is binding upon his client, but rather whether the award was made in settlement of an industrial dispute to which his client was a party.  But we would not - - -

HIS HONOUR:   That is a question of fact, is not it?

DR JESSUP: It is a question of fact. Now we would not exclude the possibility, we could not, your Honour, at this early stage that questions arising under the Constitution might crop up in this case, but they often do. Section 78(b) is there and it is regularly used.

HIS HONOUR:   That is right, and the provisions which enable matters to be remitted to the Industrial Relations Court are not to be interpreted so as to preclude a remitter whenever there is any constitutional question lurking on the horizon.  I mean that is very often the case in disputes of this sort.

DR JESSUP:   Exactly, your Honour.

HIS HONOUR:   But when it is said under the practice direction that any constitutional issue is to be identified, I think what is meant is that if there is a substantial constitutional issue there is no point in going through the procedures down below.  One might as well determine them straight away.  But this would not seem to be that sort of case.

DR JESSUP:   Your Honour, if there is a constitutional issue, then a single judge, and if necessary on appeal a full court of the Industrial Relations Court in our submission would be - - -

HIS HONOUR:   Capable of - - -

DR JESSUP:   - - - well that is what they are there for. 

HIS HONOUR:   Capable of deciding it, yes.

DR JESSUP:   It is a constitutional issue arising under section 51(35), your Honour, and they would be more than capable, if we may submit so, with the greatest of respect, of dealing with constitutional issues under that placita.  If your Honour please.

HIS HONOUR:   Now you heard the interchange with Dr Jessup, Mr Shinners.  Do you want to say anything by way of reply?

MR SHINNERS:   No, I do not add anything further to my initial submissions, your Honour.

HIS HONOUR:   Well it seems to me that this is an appropriate case to make an order remitting the matter to the Industrial Relations Court, and the order which I make is that further proceedings in this application for orders nisi for writs of prohibition mandamus and certiorari be remitted to the Industrial Relations Court of Australia at Melbourne.  The application for orders nisi proceed in that court as if steps already taken in the matter in this court have been taken in that court, and that the Deputy Registrar of this court forward to the proper officer of that court photocopies of all documents filed in this court.

DR JESSUP:   Would your Honour reserve costs of today's hearing?

HIS HONOUR:   We do not generally order costs in these proceedings, do we, Dr Jessup?

DR JESSUP:   That is so, your Honour, and we think that will probably be the end result, but there may be a question which arises in connection with costs.

HIS HONOUR:   What question?

DR JESSUP: The question of whether section 347 of the Industrial Relations Act may exclude from the jurisdiction of this court under section 75(5) of the Constitution the power to award costs in the matter before it.

HIS HONOUR:   Why should not it?

DR JESSUP:   I beg your pardon, your Honour?

HIS HONOUR:   Why should it not?

[10:05am]

DR JESSUP:   Well, your Honour, the argument would run, and I should say that I have not developed this at all, but the argument would run that it is an inherent part of the judicial power of the Commonwealth that this court should have power to order costs and that the legislature cannot deprive it of that power any more than it can deprive it, for example, of the jurisdiction to issue a writ of prohibition.

HIS HONOUR:   Now you are raising a substantial constitutional issue.

DR JESSUP:   Yes, we are, your Honour, yes, and can I say that we do not, we simply wish to - I respond to your Honour's question that way because we only ask your Honour to reserve costs of course.  We do not ask your Honour to decide that and I do not know whether it will ever arise but that issue, your Honour, has been mentioned, I put it no higher than that, by this court in a case called re Polites ex parte Hoyts.  We do not have it in court, your Honour, regrettably but I do not know if your Honour was part of the court on that occasion.

HIS HONOUR:   No, I was not but I know the case.

DR JESSUP: No, but the court said simply that no argument had been addressed to it on the question of whether section 347 could validly exclude from the court the part order costs under section 75(5) of the Constitution and that is, as it were, your Honour, the genesis of our application that costs be reserved.

HIS HONOUR:   Yes, what do you say - - -

DR JESSUP:   It cannot do any harm we submit, your Honour.

HIS HONOUR:   - - - Mr Shinners.

MR SHINNERS: Well, we would certainly be, on the practice of this court and in relation to the procedures and the provisions of section 147 take the view that this court, in such matters as before it now, does not have jurisdiction to award costs. This has been expressly and - excluded in terms of section 347 but if the issue needs to be raised at some stage we have no objection to it being reserved but we have a position in relation to it.

HIS HONOUR:   Yes.  Mr Marles.

MR MARLES:   I do not have anything further to add, your Honour.

HIS HONOUR:   Dr Jessup.

DR JESSUP:   Nothing further, your Honour.

HIS HONOUR:   I do not think this is an appropriate case in which the issue should be raised and I do not propose to make an order reserving costs.  Very well;  anything else, gentlemen?  Very well, I will leave the bench.

AT 10.08 AM THE MATTER WAS ADJOURNED
INDEFINITELY