Sutton & Ors v Alley

[2001] HCATrans 205

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M28 of 2000

B e t w e e n -

JOHN DAVID SUTTON

First Applicant

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

Second Applicant

RONALD GEORGE OWENS (as representing the members of the BLF as at 31 March 1994 other than those otherwise represented herein)

Third Applicants

JOHN CUMMINS, JOHN SETKA and ROBERT GREGORY WILSON (as Trustees of the BLF)

Fourth Applicants

and

STEPHEN GEORGE ALLEY

First Respondent

THE STATE OF VICTORIA

Second Respondent

JOHN ATKINSON & ORS

Third Respondents

JOSEPH FERGUSON & ORS

Fourth Respondents

MICK YOUNG & ORS

Fifth Respondents

Application for special leave to appeal

GUMMOW J
KIRBY J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 22 JUNE 2001 AT 1.50 PM

Copyright in the High Court of Australia

__________________

MR S.C. ROTHMAN, SC:   If the Court pleases, I appear with my learned friend, MR H. BORENSTEIN, for the applicant.  (instructed by R.L. Whyburn & Associates)

MR K.H. BELL, QC:   If the Court pleases, I appear with my learned friend, MR C.M. CALEO, for the first and second respondents.  (instructed by Victorian Government Solicitor)

MR J.W. ROBINSON:   If the Court pleases, I appear for the third respondent.  If I need leave to appear unrobed, I seek it.  (instructed by Best Hooper)

GUMMOW J:   You have that, Mr Robinson.

MR ROBINSON:   Thank you.

GUMMOW J:   We hold certificates from the Deputy Registrar for the fourth respondent and the first and second‑named fifth respondents and there has been some indication that Mr Greany, the third‑named fifth respondent, might wish to appear in person.  Yes, Mr Rothman.

MR BELL:   Your Honour, might I make application on behalf of the second respondent, the State of Victoria, for an adjournment of this application for leave to appeal?

GUMMOW J:   Yes.

MR BELL:   A notice was given in a letter dated 21 June 2001 to the parties, a copy of which was sent as if it were a letter to the Court.  It is really the same letter that was sent for the parties and is not in appropriate form.

GUMMOW J:   What is the purpose of the adjournment?

MR BELL:   The purpose of the adjournment is to allow a consideration by the State of Victoria of the measures open to resolve the underlying dispute in relation to the status of the funds and property, the subject matter of the proceedings, and the measures open include legislative steps and steps available under orders made pursuant to the BLF legislation, which has been the subject of previous decisions of this and other courts.

At the present time the funds and property, the subject matter of the litigation in this case, have been preserved pursuant to orders that have been made under that legislation but the final status of the funds and property has never been addressed, such that the litigation ‑ ‑ ‑

KIRBY J:   We know what the matter is about.  We have had a little bit of familiarity with it but the real question is:  why such a belated application?  I assume it is something to do with the change of administration in this State and that it has led to new thinking about the matter and perhaps to the possibility of new legislation, but why at the death knock?  I mean, that inconveniences at least one party who does not consent.

MR BELL:   Yes.  It does inconvenience one party who does not consent.

KIRBY J:   You would have to pay the costs of that party, I would think.

MR BELL:   We would have to pay the costs of that party associated with the matter.  Any costs thrown away of that party would be paid and we would consent to an order to that effect.

GUMMOW J:   That would be Mr Rothman’s clients, would it not?

KIRBY J:   No.  I think Mr Rothman agrees, does he not?

GUMMOW J:   He agrees?

MR BELL:   Yes.

MR ROBINSON:   It is me.

GUMMOW J:   Mr Robinson is the dissentient.

KIRBY J:   You are the fly in the ointment.

MR ROBINSON:   Thank you, your Honour.

MR BELL:   In answer to your Honour Justice Kirby’s question, I believe I can only say that the proceedings before the Court today have concentrated the minds of those with the carriage of this matter.  It has taken some time to resolve the issues of complexity concerning the legal status of the situation and, indeed, the government’s power under the BLF legislation and the custodian’s powers under the existing orders, but I can inform this Court that a position has been reached now whereby the government has a position on which it is prepared to act in order to resolve the status of the funds and property on a final basis.  So if special leave were to be granted in this matter, there is a possibility, if I can put it at its lowest, that the legal situation will have changed by the time that the matter comes on for final hearing such that the Court will have considered this matter in terms of special leave on a different basis to that which will obtain when the matter is finally heard and determined.

GUMMOW J:   Yes.  Well, I think we understand that, Mr Bell.  Now, what do you want to urge in resistance?.  Perhaps you had better come to the middle, Mr Robinson, if you would.

KIRBY J:   It may be relevant for you to know that the next special leave day in Melbourne is some day in August, 10 August.

MR ROBINSON:   Yes, your Honour.  The situation is this.  I take your Honours’ point that this comes at the last minute.  This present government was in power in March last year when the Full Court handed down the decision, the effect ‑ ‑ ‑

KIRBY J:   We know all that, but the reality of life, proved every day in litigation, is that it is only really when parties have to face the court that they sometimes concentrate their minds and realise what they have to decide.

MR ROBINSON:   Your Honour, I have, in fact, concentrated their minds much earlier than this.  In September last year on behalf of my clients I filed a notice of motion with the Industrial Relations Court because it seemed that the custodian was not prepared to do his duties and call for the money to come back.  I have a copy of that notice of motion here and a copy of the observations made by Mr Justice Wilcox when he was hearing the motion in February of this year.

GUMMOW J:   It comes to this, Mr Robinson, perhaps.  What is your irreparable prejudice if the matter goes over to the next special leave list in August, on 10 August, and you have any costs that are thrown away by reason of the adjournment today?

MR ROBINSON:   The concern of my clients is that the money is presently with the CFMEU and not with the custodian, where this Court and the Full Court have said it should be.  Once the money is with the custodian it is going to be much more difficult for a government of any complexion to ignore its existence.  While the money is still in the hands of the CFMEU they can simply do nothing and over a course of time, the money will become the CFMEU’s.

KIRBY J:   But presumably – is it in a separate account?

MR ROBINSON:   No.

KIRBY J:   I would have thought it would be.

MR ROBINSON:   It should be, but it is not, as far as I am aware.

KIRBY J:   But it is separately identifiable?

MR ROBINSON:   No, it is not.  They have just received the money and put it into their funds, as I understand the situation.  There has certainly been no evidence ‑ ‑ ‑

GUMMOW J:   Well, I can see a factual controversy about to flare up ‑ ‑ ‑

MR ROBINSON:   I do not want to get into that.  It is not one that has been raised in the evidence before Chief Justice Wilcox.

KIRBY J:   But these are factual matters that have arisen since the proceedings that are the subject of this application.

MR ROBINSON:   No, no.  This was a situation that developed when his Honour, in September 1995, I think it was, ordered that the funds should go to the CFMEU away from the custodians.

KIRBY J:   You still have not answered Justice Gummow’s question as to what the irreparable harm to you would be over and above the situation today if the matter were adjourned so soon as 10 August.

MR ROBINSON:   There is a concern that if new legislation is brought in while the funds are still out of the control of the custodian it is much easier for this government to give the money to the Union instead of retaining it, as the legislation currently requires.  If we are talking about legislation, of course, such legislation, in this State, would have to pass both Houses of Parliament and the current government does not have the majority in the Upper House so legislation is, perhaps, not a path to go.  I do not know what it is they intend to do.  The letter that we received – and I have to say I received mine at 6.30 last night – is extremely vague and general.

KIRBY J:   I think we should hear what Mr Rothman says about the possession of the funds, but you would ask for costs in the event that the matter were adjourned?

MR ROBINSON:   I would, your Honour, yes.

GUMMOW J:   Thank you.

MR ROTHMAN:   Your Honour, as to the position of the funds which I have been invited to address, the funds are discrete.  There is affidavit evidence before his Honour Justice Wilcox, who is dealing with these matters ‑ ‑ ‑

CALLINAN J:   Your client is an organisation of some means, in any event, I ‑ ‑ ‑

MR ROTHMAN:   It is, your Honour.  There are undertakings in relation to the money.

CALLINAN J:   It is a very big union, is it not?

MR ROTHMAN:   That is probably an understatement, your Honour.  There are undertakings that have been given.  There is interest currently being paid which, on the affidavit evidence before Chief Justice Wilcox, because it is the Industrial Relations Court, is, in fact, greater than would otherwise be payable or earned by the custodian, so that there is no prejudice in relation to the funds.  As to the so‑called legislative process, well that seems to occur regardless of whether or not the special leave goes ahead now or into August.  I have to say, from our part, the reason that we consent to it is that we do not see the delay between now and the next special leave day irreparably damaging either the timing of the ultimate appeal, if leave is granted, or any other matter.

GUMMOW J:   Yes.  We would not be prepared to grant any adjournment beyond the next special leave day in Melbourne.

MR ROTHMAN:   It is not our application, your Honour.

GUMMOW J:   Yes, that is right.  I am just saying it for the benefit of Mr Bell.

MR ROTHMAN:   Yes, your Honour.

GUMMOW J:   Yes, thank you, Mr Rothman.

Upon terms that Mr Bell’s clients, the first and second respondents, pay any costs thrown away in respect of the parties for whom Mr Robinson appears by reason of this adjournment, we will stand over the leave application to the next special leave list in Melbourne which is for 10 August.

MR ROTHMAN:   If the Court pleases.

MR BELL:   If the Court pleases.

GUMMOW J:   We will adjourn to reconstitute.

AT 2.00 PM THE MATTER WAS ADJOURNED
UNTIL FRIDAY, 10 AUGUST 2001