State of Victoria v McIntyre & Ors and Community Sector Union

[1996] HCATrans 122

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne   No M56 of 1995

B e t w e e n -

STATE OF VICTORIA

Applicant

and

THE HONOURABLE ANTHONY WILLIAM DONALD McINTYRE, THE HONOURABLE JOHN WILLIAM MACBEAN and THE HONOURABLE ANNE HARRISON, respectively Vice‑President, Senior Deputy President and Deputy President of the Australian Industrial Relations Commission

First Respondents

COMMUNITY AND PUBLIC SECTOR UNION

Second Resposndent

STATE OF SOUTH AUSTRALIA

Third Respondent

Office of the Registry
  Melbourne  No M57 of 1995

B e t w e e n -

STATE OF VICTORIA

Applicant

and

THE HONOURABLE ANTHONY WILLIAM DONALD McINTYRE, THE HONOURABLE JOHN WILLIAM MACBEAN and THE HONOURABLE ANNE HARRISON, respectively Vice‑President, Senior Deputy President and Deputy President of the Australian Industrial Relations Commission

First Respondents

COMMUNITY AND PUBLIC SECTOR UNION

Second Respondent

Applications for leave to appeal

GAUDRON J
McHUGH J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON TUESDAY, 16 APRIL 1996, AT 9.50 AM

Copyright in the High Court of Australia

MR D. GRAHAM, QC, Solicitor‑General for the State of Victoria:   May it please the Court, I appear with my learned friends, MR D.J. BLEBY, QC and MR M.P.McDONALD, in the first of those matters, for the applicant, (instructed by the Victorian Government Solicitor) and I appear with my learned friends, MR D.J. BLEBY, QC and MR L. KAUFMAN, for the applicant in the second of those matters.  (instructed by the Victorian Government Solicitor)

MR B.M. SELWAY, QC, Solicitor‑General for the State of South Australia:   If it please the Court, I appear with my learned friend, MR E. BROOKS, for the Attorney‑General for South Australia.  (instructed by the Crown Solicitor for South Australia)

South Australia is the third respondent in action No M56 of 1995.  In action No M57 of 1995 South Australia intervened before the Industrial Court.  The argument South Australia wishes to put is, on one view, a constitutional argument.  Nevertheless it may be more appropriate for me to seek leave to intervene to put a short submission on the question of leave in action No M57, but I can tell the Court I will do no more than adopt the written submissions on that matters.

MR S.J. HOWELLS:   May it please the Court, I appear on behalf of the second respondent in both matters.  (instructed by Gill Kane & Brophy)

GAUDRON J:   Thank you.  The Deputy‑Registrar certifies that she has been informed by the Australian Government Solicitor, solicitors for the first respondents in each of these matters, that the first respondents do not wish to be represented at the hearings of the applications for leave to appeal, and will submit to any order of the Court save as to costs.  Is there any objection, Mr Howells, to the Solicitor’s leave, if leave be necessary?

MR HOWELL:   No, there is not.

GAUDRON J:   Yes, thank you.  Yes, Mr Solicitor.

MR GRAHAM:   If the Court pleases, in each of these matters, which I will deal with together, we rely upon the submissions which appear in the two summaries of argument, which have been provided to the Court in support of our applications.  We only seek to address oral argument to the Court on a very few points.  Before I come to them, may I ask the Court to make a correction to the summary of argument which we provided in matter M56, which was drawn to my attention this morning.  The correction is on page 5 paragraph 12.  There is a citation of Re Finance Sector Union of Australia; Ex parte Illaton Pty Ltd, which is incorrect. The correct citation should be (1993) 113 ALR 448, specifically at page 459. Your Honours would be aware that there were two phases of that litigation and the citation was intended to be the second phase.

KIRBY J:   This is the case where there is merely a requirement for leave; it is not a special leave.

MR GRAHAM:   That is so, your Honour, and that is the next point I wish to raise very briefly. Section 432(2) of the Industrial Relations Act 1988 so provides and is in contrast with the provisions of the Judiciary Act and the Federal Court of Australia Act providing for special leave. 

KIRBY J:   I take away the word “merely”; it still requires leave.  Presumably that is so that you do not get in too easily.

MR GRAHAM:   That is right, your Honour, with respect, but as we read the authorities and so far as they may be relevant, the test is less stringent.  The applicant only had been required to make out a prima facie case of error, rather than to demonstrate special circumstances or characteristics.  Looking at the earliesr cases concerning leave to appeal from interlocutory judgments, not much assistance is gained.  My last submission is really derived from the judgment of Justice Dawson in the case of Morris v The Queen, which we refer to in paragraph 2 of each of the summaries of argument.  The leading authority in this Court about the leave to appeal generally is probably still ex parte Bucknell in 1936. 

If I can turn to one matter relating to matter M 56, the case concerning the sequence of logs of claims, here we would simply refer to the issues raised by paragraphs 3(d) and 13(c) of our summary of argument, where we draw attention to the fact, as we would say, that the decision of the Commission under review by the Industrial Relations Court was primarily , if not solely, concerned with the matter of fact.  The question ‑ ‑ ‑

GAUDRON J:   But a constitutional fact, nonetheless; a jurisdictional fact and a constitutional fact, ultimately.

MR GRAHAM:   I would accept that, your Honour, but nonetheless ‑ ‑ ‑

GAUDRON J:   Well, it takes it a little bit out of the mere matter of fact category, does it not?

MR GRAHAM:   It does, your Honour, but nonetheless, one is concerned here with the exercise of prerogative jurisdiction, rather than mere appellate jurisdiction, where a court has an appellate jurisdiction to review decisions of the court below on questions of law.  But the point that we make is that the approach of the Industrial Relations Court, we would say, with respect, was very much that of a court exercising appellate jurisdiction, looking to see whether, as a matter of law, an error of fact which was correctable in the exercise of appellate jurisdiction had occurred.

GAUDRON J:   But there was, nonetheless, a question of law involved, was there not; in the sense that the Commission had regard to whether or not there was a legal principle to be discerned in the Boots Case?

MR GRAHAM:   Yes, your Honour, although the Industrial Relations Court approached that part of the case on the basis that the Boot Trades Case turned on its own facts and that the Commission was wrong in treating that case as erecting some kind of general principle.

GAUDRON J:   And that was a prerogative case, was it not?

MR GRAHAM:   Well, we would say, your Honour, that if there was evidence available to the Commission which would justify the view that there was no longer an industrial dispute created, or sustained, by what we call the 1991 and 1993 logs of claims, then that was a factual matter which lay within the jurisdiction of the Commission to decide, and to decide as a fact going to its jurisdiction, and unless that decision on the facts could be attacked as lacking any foundation on the basis of admissible evidence or inferences legitimately open then, in our submission, the matter should have rested as it was left with the Full Bench of the Commission, that there had been an abandonment as a matter of fact, and the jurisdiction in relation to the disputes created by those two earlier logs had ceased and, accordingly, we would submit that on that question of fact the Commission was not demonstrably wrong; there was no clear jurisdictional error, and it was not a case of the Industrial Relations Court taking a different view of the facts ‑ that was not what it was entitled to do.

GAUDRON J:   But how do you identify the error of the Industrial Relations Court?  What precisely is the error you say that is involved?

MR GRAHAM:   We say two things, your Honour.  We would say, firstly, the Industrial Relations Court considered the Commission had gone wrong by treating the Bootmakers’ Case as creating a principle of law and regarding that case as simply one depending on its own facts.  We would say that it was legitimate for the Commission to look at the facts of the case before it, as it were by analogy with the Bootmakers’ Case, and that it was not open to the Industrial Relations Court to say that the Commission was wrong in approaching the facts in the way in which it did.  That went beyond, in our submission, the legitimate exercise of prerogative jurisdiction by the Industrial Relations Court, and simply amounted to a review of the factual findings of the Commission as though the court was exercising appellate jurisdiction.

That appears most clearly, in our respectful submission, on page 145 of the application book, where the Court cites The Australian Broadcasting Tribunal v Bond and draws attention to the propositions from the judgment of the then Chief Justice that the question whether there is evidence of a particular fact is a matter of law, and the question whether an inference can be drawn from facts is also a question of law.  At the foot of the page they simply go on to say, at line 23:

In our opinion the view reached by the Full Bench in relation to the critical issue amounted to more than a wrong finding of fact; it constituted an error of law. 

That is the heart of their reasoning, but it is not said why it was the case that there was an absence of evidence of a relevant fact, namely the cessation of the industrial dispute, nor why it was that the Commission was wrong in inferring that the dispute had come to an end.  There is merely an assertion.  We say that there was evidence before the Commission which entitled the Commission to reach that decision, and there was evidence from which the Commission might legitimately draw inferences as to the termination of that dispute.

KIRBY J:   The principles that are invoked by you are not really novel and this Court worked them over as recently as 1991 in the South Australia case, Federated Clerks Union Case, so there is no great utility, from the point of view of principle, in the Court taking this matter up and examining it.

MR GRAHAM:   Your Honour, I cannot contend that we would be ‑ ‑ ‑

KIRBY J:   So, your real basis is, well, this is leave and not special leave.

MR GRAHAM:   That is right, your Honour.

KIRBY J:   Otherwise there is no general principle or matter of public importance that would attract ‑ ‑ ‑

MR GRAHAM:   I think I have to accept that, your Honour.

KIRBY J:   But leave is still a barrier and it is a barrier designed to protect the Court which is overburdened, and it is just a question of whether the error is so patent that we should take it up when there is no matter of general importance or principle involved, where we would not ordinarily take it up.

MR GRAHAM:   Your Honour, with respect, we would suggest that, implicit in your Honour’s proposition is an overstatement; the error need not be so patent as to warrant the Court taking up the matter.  All that is necessary is that a prima facie case of error needs to be shown, which may put the matter at a slightly lower level.  Why it is that this distinction ‑ ‑ ‑

KIRBY J:   Why did Parliament make a distinction requiring leave only in appeals in these cases?

MR GRAHAM:   Your Honour, I would be speculating, but an educated guess would be that it has got something to do with the powers of this Court to remit matters of this kind to the Industrial Relations Court, whereas previously it was burdened with them, coupled with the ample jurisdiction conferred on the Industrial Relations Court to deal with those remitted matters which previously belonged in this Court.  So there may be an intention that the journey back to this Court might be a slightly easier journey than if special leave were required.  I cannot take it beyond that, but the collocation of the provisions in the Industrial Relations Act does suggest that that is the reason.

KIRBY J:   It is an awfully long saga of litigation; will it ever finish?

MR GRAHAM:   That may depend upon events in Canberra, elsewhere than in the High Court building.

If I could make a few observations concerning the matter of M 57, the point which we wish to emphasise is perhaps not sufficiently emphasised in the summary of argument.  In this regard we would refer to paragraphs 3(c) and 19 of our summary of argument, which are directed to the notion that Parliament cannot pass an enactment which has the effect of deeming to exist an essential constitutional fact which does not, in fact, exist.  Even if the respondent Union is correct in what it has previously submitted as to the effect of the definitions of the word “instrument”, and the word “instrument to which this Act applies”, and its submissions in relation to the word “proceeding”, we would submit that the fact remains that the Act cannot operate and cannot be construed so as to operate, so as to deem facts upon which jurisdiction is founded to be otherwise than they are, and we cite in support of that fairly obvious proposition Mutual Pools, but many other instances could be given.

Clearly Parliament cannot purport to legislate to sequestrate the estate of somebody by deeming a person to be insolvent who is not insolvent.  Parliament could not pass a law dealing with the custody of ex nuptial children by deeming that the parents of the children had been married.  So here, we would say, that Parliament cannot deem to exist an industrial dispute between the parties to the present litigation when that dispute, in fact, involved a party which no longer exists.  One cannot ‑ ‑ ‑

KIRBY J: Deeming is a very well-established technique of statutes designed to facilitate the proof of matters. Do you say that there can never be legislative deeming, though it exists in every other part of the statute book, that it cannot exist, consistent with the Constitution, a matter touching the Constitution.

MR GRAHAM:   Just as the Parliament could not deem to be a duty of excise a tax which was not a duty upon goods, so Parliament cannot legislate so as to assert that an industrial dispute exists for the purposes of section 51(xxxv) when one does not.

GAUDRON J:   The ultimate answer does not depend on whether Parliament did or did not deem something to be the case; it depends on whether or not it was, in fact, the case, does it not?  And, it seems to me that you certainly have a long road to go to make good the proposition that the disputes ceased to exist merely by reason of amalgamation.

MR GRAHAM:   Your Honour,  it was slightly more than an amalgamation, because the previous Union went out of existence.  It was not, as it were, transmogrified and became part of the ongoing Union.  It was deregistered and ceased to exist.  Its memberships and the assets were transferred.  It had no ‑ ‑ ‑

GAUDRON J:   Momentarily it went out of existence, and was reborn almost immediately thereafter, with a different name, with the same membership.

MR GRAHAM:   Together with, of course, the membership of the ongoing Union, but we would take issue with your Honour’s analysis, to say that it was “reborn”.  We would say it went out of existence and still remains non‑existent.  So, the short point is that to have a dispute to exist and to continue to exist, there must be continuing protagonists on either side.  One

is tempted here to use that intriguing phrase “one‑hand clapping”.  This is a case where one of the hands is gone, the other is left.

McHUGH J:   But there is just a mere substitution of parties, is there not?  It is not even as strong a case as, say, conspiracy.  It is well established, in the criminal field, if the original conspirators may have dropped out, other conspirators would come in, the conspiracy goes on.  Why does the industrial dispute not go on merely because you substitute the amalgamated Union for one of the amalgamating unions?

MR GRAHAM:   Simply this, your Honour, I suppose, because the original dispute was generated by service of a log of claims by one Union, which has ceased to exist, which was rejected vis-a-vis-that Union; that Union is gone.  That dispute went with it.  It is not that the dispute continued because the CPSU joined the fray.  It did not join the fray; it wishes to join a different fray.  It is as simple a point as that.

There are only two further matters that I wish to refer to.  In South Australia’s submissions, in the first matter M56, it is sought to rely upon two matters, which are those referred to in paragraphs (2) and (6) of the summary of South Australia.  As we understand those points, they were not matters considered by the Commission, and without suggesting there is any lack of merit in relation of those points, we do not seek to rely upon them.  At the risk of angering my learned friend, the Solicitor for South Australia, we would also have to say that we do not agree with the point which is made in paragraph (7) of their outline, in relation to the amalgamation matter.  If the Court pleases, those are out submissions in support of the application.

GAUDRON J:   Thank you, Mr Solicitor. 

MR SELWAY:   If it please the Court, South Australia says there are three matters of general importance raised in these proceedings.  The first of them involves the issue of paper disputes, and how paper disputes are to be identified and determined.

GAUDRON J:   That is a matter that had a lot of prominence in the courts below, is it not?  This is, after all, an application for leave to appeal.

MR SELWAY:   Certainly, your Honour.  What we say is that the Industrial Court made a fundamental error in the way it approached the question of whether there had been an abandonment ‑ ‑ ‑

GAUDRON J:   The question was not even raised about paper disputes in the Industrial Relations Court, as least, so far as appears from its judgment.

MR SELWAY:   Your Honour, what the question was, and we say had to be answered, was what the dispute was that they were identifying had been abandoned and, on that question, we say there needed to be an analysis by both the Commission and the Court of what the dispute was.  The Commission approached the matter by saying, amongst other things, that intent was irrelevant.  The Industrial Court approached the matter by saying that intent was relevant, but was only to be ascertained from the documents.  Our submission on that is that both those propositions are arguable, and it is an appropriate matter for this Court to consider. 

The Industrial Court made specific reference to the calling of evidence on the question of industrial disputes and, I think, criticised some of the State parties, perhaps fairly, but in doing so drew particular attention to ‑ and saying that the problem was the same as in the Ambulance Employees’ Case and, in that case, this Court has already granted leave to look at the issues of papers disputes.  In our submission, there is a general issue about paper disputes, and that is a proper leave question. 

The second question, we say, properly raises the question of leave is the question of what the effect of section 101(3) of the Industrial Relations Act is in respect of an application for certiorari. Section 101(3) is the section that says, “A finding of an industrial dispute shall be final”. In respect of the question of certiorari, there appears to be a conflict ‑ maybe that is putting it too strongly - between the cases in this Court, in Hockey v Yelland (1984) 157 CLR 124 at 130 ‑ I do not need to take the Court to it ‑ Chief Justice Gibbs refers ‑ ‑ ‑

KIRBY J:   That was a workers’ compensation case from Queensland, was it not?

MR SELWAY:   Yes, it was, your Honour.

GAUDRON J:   And did not involve a constitutional fact?

MR SELWAY:   No, your Honour.  I might say, it is certainly our position that if jurisdiction had been exercised there would then have been a constitutional fact, and on that basis there always would have been power of this Court to intervene.  However, in this case, jurisdiction is not exercised.  It was not that there was a finding that there was an industrial dispute; the finding was that there was not one, and there is no duty under section 51(xxxv) for the Parliament, or for anybody set up by the Parliament, to intervene and arbitrate and conciliate industrial disputes, so ‑ ‑ ‑

GAUDRON J:   Well, the general theory is quite contrary to what you are putting, Mr Solicitor.  The general theory, which has been expressed a number of times, is that the Commission is duty bound to exercise its jurisdiction, hence mandamus lies against it if it rules that there is no industrial dispute when there is.

MR SELWAY:   Certainly, your Honour, but that duty arises out of the statute, not out of the Constitution, and mandamus does lie, and this Court has given decisions on where mandamus lies and what the effect of section 101(3) is in those circumstances, and we refer to those in paragraph (ii) on page 5 of our summary. But, in respect of the question of certiorari, the approach seems to be different. In respect of certiorari, the effect of a section such as 101(3), at least according to Chief Justice Gibbs in Hockey v Yelland, is that there must be either an error on the face of the record, or an excess of jurisdiction.

GAUDRON J:   But this was a mandamus case, was it not ‑ well, both of them were mandamus cases?

MR SELWAY:   The order made was certiorari.

GAUDRON J:   Well, it would have been but a small step to grant mandamus, as well.

MR SELWAY:   Your Honour, my understanding of the decision was that the Court held that it was too early to grant mandamus.  I apologise, your Honour, my learned friend draws my attention to page 167 and mandamus did lie for the:

Commission to hear and determine the said appeals according to law.

Certiorari had to lie first to make that order.

GAUDRON J:   Well, certiorari was ancillary.

MR SELWAY:   Yes, your Honour, but the difficulty with certiorari is section 101(3) and what effect that has on an order for certiorari. As I say, Chief Justice Gibbs has held that in respect of certiorari there has to be an excess of jurisdiction, unless there is an error on the face of the record, and this Court held in Craig that the reasons do not constitute the record.

In PSA v SCU, Justice Brennan, referring back to Chief Justice Gibbs in Hockey v Yelland, talks about a jurisdictional error.  Now, if it is a jurisdictional error, we would have said this case arguably falls within it.  If it is excess of jurisdiction, we say that a decision not to exercise jurisdiction, in the circumstances of this case, is not an excess of jurisdiction.

GAUDRON J:   Excess of jurisdiction had prominence in the South Australian case because that was the terms of the privative clause.  It is not the terms of the clause in this Act.

MR SELWAY:   No, your Honour, that is why I go back to Chief Justice Gibbs in Hockey v Yelland who says that certiorari still only lies, in the face of section 101(3), for an excess of jurisdiction or for an error on the face of the record. Justice Brennan, though he cites Chief Justice Gibbs for the proposition, and it is the only case he cites, refers to jurisdictional error. If it is jurisdictional error, then, on the face of it, certiorari goes. If it is an excess of jurisdiction, in our submission, there is no excess of jurisdiction here.

The third matter, we say, is the issue of amalgamation.  As to that, we merely refer the Court to our outline, in particular paragraph (7) on page 6, where we say that it involves the general issue of the role of the Union as party principle, as against its role as representative of present and future members, and we say that the representative role is the relevant answer to the question in this case, but we say that that answer has repercussions beyond this case.  If it please the Court.

GAUDRON J:   Thank you.  We need not trouble you, Mr Howells. 

These applications raise the question whether industrial disputes came or were brought to an end, either by the service of the subsequent log of claims or by the deregistration of the claimant union, as a step in its amalgamation with other unions to become the Community and Public Sector Union.  There is also an ancillary question, namely, whether there was jurisdictional error on the part of the Australian Industrial Relations Commission such as to make its decision that the dispute was brought to an end susceptible of review by prerogative writ.  The proposed appeals do not enjoy sufficient prospect of success to justify the grant of leave to appeal.  Leave is refused.

AT 10.20 AM THE MATTER WAS CONCLUDED