Textile Clothing and Footwear Union of Australia & Anor v Ryan

[1996] HCATrans 217

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M23 of 1996

B e t w e e n -

TEXTILE, CLOTHING AND FOOTWEAR UNION OF AUSTRALIA and AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING & KINDRED INDUSTRIES UNION

Applicants

and

PETER GERARD RYAN [(Receiver & Manager of HOMFRAY CARPETS AUSTRALIA PTY LTD (IN LIQ.) (Receivers & Managers Appointed) and H.C. PTY LTD (formerly Hycraft Carpets Pty Ltd)(Receivers & Managers Appointed)]

Respondents

Application for special leave to appeal

DAWSON J

McHUGH J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON MONDAY, 5 AUGUST 1996, AT 10.43 AM

Copyright in the High Court of Australia

MR W.R. HAYLEN, QC:   If the Court pleases, I appear with my learned friend, MR W.L. FRIEND, for the applicant.  (instructed by Maurice Blackburn & Co)

MR A.J. MYERS, QC:   May it please the Court, I appear with MR M.N. CONNOCK, on behalf of the respondent.  (instructed by Clayton Utz)

DAWSON J:   Mr Haylen?

MR HAYLEN: If the Court pleases, these applications seek to raise, for the first time in this Court, the proper construction of the definition of “industrial instrument” found in section 9 of the Corporations Law and, in particular, what is the meaning of the term “agreements” in the Corporations Law and to reach that point the Court would be required to consider the status of collective agreements negotiated by trade unions for their members in the workplace which are over award arrangements not otherwise registered under industrial legislation. 

In these particular cases there were two agreements; one in Hycraft at Five Dock and one in relation to Homfray in Victoria.  The background was somewhat similar.  There were concerns by the workforce that there were to be redundancies.  There was an award provision allowing for redundancy payments but a desire by the workforce to receive over-award redundancy arrangements.  In both cases the employees sought to involve their Union to negotiate for them the over‑award payments.  The Union, in both cases, undertook that task and negotiated not on the basis of some principal that the Union wished to have or reach agreement with the employers but because it was acting on behalf of the employees, its members - or their members, there were a number of Unions involved.

KIRBY J:   That was expressly stated in one agreement but not another, I think, was it not?

MR HAYLEN:   Your Honour, I think, in both cases it was put to the Court of Appeal in Victoria that the Union was authorised, in any event, under the rules to represent individuals and to conclude industrial agreements and the court seems to have missed that point.  It did not deal with it.  In fact, I think Justice Brooking assumes that the point was not taken and that is incorrect.  It was taken both in the oral argument and in the written submissions and was taken below.

KIRBY J:   That is on behalf of individuals who exist and who were employers.  What about future employees?

MR HAYLEN:   Well, your Honour, yes.  The issue about future employees only arose in the Full Court.  There was no suggestion that these agreements in fact covered future employees but it was in the working out of the arrangement and the testing of it that the Full Court formed the view that they could not be binding contracts because they were, amongst other things, designed to cover future employees and, therefore, they were not ascertainable.  It would fail as a contract.

The court, as we point out - and this is an argument primarily taken by the court itself - did not consider the question of the severance of that part of the arrangement if it was invalid to some extent and, therefore, came to the view that the whole of the arrangements must fail.  The endorsement of the agreements by the employees on the evidence before the Full Court was the result of the Unions saying that they would not, in these circumstances where they were not seeking an award or had no principle that they sought to establish themselves as an industrial principle, the only agreements that they would enter with employers were agreements that were endorsed by the employees themselves.

DAWSON J:   How do you analyse this in common law terms?  The Union was acting as agent for each of the existing employees?

MR HAYLEN:   We put it in the alternative, your Honour.  We said our primary argument was that the Union acted as the agent for the individual employees and that is a question of fact.  The evidence of that was that the employees asked the Union to attend and to negotiate for them the over‑award agreements and voted on them and the Union’s evidence was that if it was not for the endorsement by the employees they would not have entered such agreements.  Also, there was the ‑ ‑ ‑

DAWSON J:   Now, you do say the Union on that basis was the agent.

MR HAYLEN:   The Union was the agent and signed on behalf of the employees.  One difficulty that was said to arise in relation to Homfray was that because there was such a large meeting, it was difficult, the Full Court said, to ascertain exactly who had endorsed the agreement.  There were two answers to that.  Firstly, the evidence was that there was almost unanimous and then 100 per cent vote of those who attended.  That was not contradicted.  There was evidence that there were 18 people absent.  So, there might have been a doubt about whether they actually endorsed the agreement that was voted upon but the answer to that appears to us to have been in a requirement, a part of the agreement, which was to sign the form authorising payment of wages by electronic funds transfer rather than having the benefit of wages paid in cash.

Each and every employee had to sign that form.  That was something that the company had been seeking for a long time and it was one of the trade‑offs it required in relation to giving the additional redundancy benefits granted in Homfray so when the individuals signed that form - and they all did, that was the evidence - it was clear that you had a certain group of people who had endorsed the agreement.

DAWSON J:   Well, in common law terms you had a ratification.

MR HAYLEN:   You had an identifiable group of people who had accepted the agreement and shown their acceptance of the agreement.  In relation to Hycraft it was slightly different because the court there took the view that the terms of the agreement itself were quite clear.  They applied only to a one‑off situation and, therefore, had no intended further operation.  The evidence, in fact, was that employees asked the Union to attend to negotiate over award redundancy payments because there was a concern that there would be redundancies in a number of areas and by the time the negotiations started there was one place that had been identified as the place where the next redundancy would take place and there would be three places lost as a result of redundancy.

The Union nevertheless, negotiated with the employer and had the agreement, the employer’s offer endorsed by a meeting of all its members because, on the evidence below the Union was seeking an agreement for future operation and this particular circumstance where three only positions would be made redundant was the first of what was anticipated to be a difficulty.  Thereafter, at Hycraft - and that was endorsed in 1988 - for the remainder of 1988 in about three distinct periods the employer, as was the evidence below, intentionally in reaching the agreement with the Unions applied the agreement to all manner of people, whether they were members of the Unions or not or whether they were members of the Textile Workers Union which specifically had negotiated the arrangement.

So, it applied across the board to other unions and non‑union people and it continued to apply until 1991 until the next round of redundancies arose and the issue came up whether or not the 1988 agreement still continued.  It was argued before the Full Court for the Unions that by that conduct and by custom and practice, the employers had adopted this system of redundancy payment and it had become part of the contract of employment for each of the employees.  There were two cases, in fact, that were referred to.  One was the decision of the Victorian Supreme Court in Ajax Cooke where it was held by the court that the making of an arrangement with one union, the putting up on the notice board of that concluded arrangement and thereby holding it out to the remaining workforce was an offer to the workforce and it was accepted by the workforce, continuing employment.

DAWSON J:   We are going into the facts a little, are we not, Mr Haylen?

McHUGH J:   There is nothing you have put forward so far that has gone anywhere near indicating a special leave point.  Now, it may well be that these questions of collective agreements raise very important questions but if you are going to argue the case, I would have thought that you had to make an attack on classical contract theory and suggest that for some reason there has got to be some modification of classical contract theory because, speaking for myself, I would have thought that the principles of classical contract theory, as expounded by the Court of Appeal, are just about unanswerable.

MR HAYLEN:   Well, your Honour, to deal with a question of the status of collective agreements, you have to deal with the facts in the particular case and that is all that I was dealing with.  We can come back to ‑ ‑ ‑

DAWSON J:   We are familiar with that.  We have read the papers.

MR HAYLEN:   Yes, if I can come back to the general point.  We say that the Court of Appeal should have started with this point and we put it out in paragraph 2 of our brief statement of argument.  Edwards v Skyways and also the Ford Motor Company Case that is referred to in paragraph 3 of our outline are authority for the proposition that industrial agreements reached in the workplace are to be treated as business or commercial transactions and the usual presumption would apply, that is, that there was an intention on the parties to enter into binding legal obligations and that there would be a heavy onus on those who challenged that presumption.     Now, the Full Court did not start with that proposition and analysed the arrangements without that starting point and we say that was the fundamental difficulty with the way in which the court dealt with these particular arrangements.

DAWSON J:   It does not appear that it would have come to any different conclusion if it had started with that presumption.

MR HAYLEN:   We say it would, your Honour, because ‑ ‑ ‑

DAWSON J:   How?

MR HAYLEN:   Firstly, it is not accepted by the respondents that an agreement raised or reached between unions in a workplace, not registered or otherwise made an award, was an agreement within the terms of Edwards v Skyways, that is, a business transaction.  They say much, as found, because of a particular historical situation in England in the Ford Motor Company Case, that industrial relations are something different.  You have contract, you have awards and you have a third category called industrial relations that is none of the above.  It is not a contract of employment, nor is it an award.

DAWSON J:   But is it binding?

MR HAYLEN:   And said to be on the analysis - and this is the way the case started at first instance - the Ford Motor Company Case was said to be representative of the law in Australia, that is, industrial relations agreements were not meant to be binding.  That was the accepted intention of the parties.  Now, that was rejected at first instance and also rejected by the Court of Appeal because of the particular history of English trade unionism and industrial relations.  There was no evidence of any such a history in Australia. 

KIRBY J:   Is there some feature of the development of industrial relations that makes this an important question generally?  I mean, is there something that lifts this?  Otherwise, it is just a lot of facts and does not seem to be anything particular.

MR HAYLEN:   Yes, your Honour, as I say, to explain the point, one has to unfortunately go to the facts but the significant point is this that day in, day out in Australian industrial relations, unions negotiate agreements for their members which are over‑award and not certified.  They are not certified as agreements under any industrial Act and the evidence before the court was that the experience of the union officials who gave that evidence, there was an intention to create binding agreements.

McHUGH J:   Well, that is irrelevant, whatever their intention was.

MR HAYLEN:   Well, your Honour, in the Skyways Case, the court actually looked at what the expressed intention of the parties was and looked at the royal commission to decide that it had been demonstrated that in English trade union relations and industrial relations, it was the intention of parties not to be bound.

KIRBY J:   Do I understand your special leave point to be that whatever may have been the position in the past when companies and workers were bound to awards, the present and likely future direction of industrial relations is that there will be over‑award arrangements and outside‑award arrangements and that the relationship between contract and the industrial scene is an important question of general importance?

MR HAYLEN:   Yes, your Honour.  Here, the Full Court ‑ ‑ ‑

DAWSON J:   From what you have been saying so far it seems that the only criterion you have put forward is an intention to create legal relations and once there is that intention then the agreement is enforceable.

KIRBY J:   That was one of the foundations on which the Court of Appeal attacked the question of whether this was agreement and there were others, including the question of future employees and the like, but it was one of the foundations of their attack on the notion that it was an agreement within the law.

MR HAYLEN:   The other point that we raised which was ‑ ‑ ‑

DAWSON J:   But what do you say is the criterion for the enforceability of an agreement entered into with the intention to create legal relations?

MR HAYLEN:   In relation to the statute, your Honour, or generally?

DAWSON J:   In the area of industrial relations, I thought you were saying.  What are you saying?

MR HAYLEN:   I am sorry, your Honour.  In the area of industrial relations, we say the position in Australia, which has not been determined by any court, is that when you find the elements of a union negotiating over‑award payments for employees and an endorsement by the employees of those arrangements, there is a binding legal agreement.

McHUGH J:   Between who?

MR HAYLEN:   Between the employees and the employer.

McHUGH J:   Which employees?  Future employees?

MR HAYLEN:   Your Honour, not necessarily future employees and if the agreement goes that far that is severable.

McHUGH J:   How could it possibly be severable?  It is part of the consideration.  In this case, for example, how could you sever that clause in the future because part of the consideration that the employer gives is that future employees will agree to electronic payments and so on and that is the consideration that they are given.  How can you sever that?

MR HAYLEN:   The agreement would stand by itself if that part of it was severed and the employer would, as a matter of how he offers contracts in the future, simply specify that ‑ ‑ ‑

McHUGH J:   We are not talking about other contracts, we are talking about this particular contract.

MR HAYLEN:   In relation to this contract, your Honour.  The employer in the future could simply specify that in future contracts, as a condition of employment, a person would need to agree to electronic funds transfer.

McHUGH J:   But, Mr Haylen, you are trying to say that this is an enforceable agreement and the question is, enforceable by whom?  How does it create a debt for the purposes of the code?

MR HAYLEN:   Your Honour, the code requires that there either be a debt or an amount payable, and the scheme comes down to any payments made under an agreement.  There is no definition of “agreement” in the section, and it cannot be the same as a contract of employment.

McHUGH J:   No, but it is fairly obvious from the context with “debt” that it has got to be an agreement that gives rise to a debt or an amount payable.  Legally enforceable.

MR HAYLEN:   Your Honour, the words “debt” or “amount payable” are interesting.  If it was just “debt” it would be a much stronger case.  But a debt or an amount payable under an agreement, when the agreement ‑ ‑ ‑

McHUGH J:   But on your argument, the worker would have no rights until the company went into liquidation; but the moment it went into liquidation, he gets rights.  That seems a strange result.

MR HAYLEN:   It might seem a strange result, but the difference is really this; if there is an agreement that is reneged on prior to going into liquidation, the union and its members have its rights to either enforce it or to take some steps ‑ ‑ ‑

McHUGH J:   To enforce it how, by industrial action or in the courts?

MR HAYLEN:   Or in the courts, or seeking to impose a new duty in the same terms by having an award made.  So, in those circumstances, there would not be the odd result that would be otherwise contended for, your Honour.

McHUGH J:   Well, Mr Haylen, I am sure that one day or another this point is going to come up for decision in this Court, but when it does, it seems to me that it will need to be well thought out, and an attack on classical contract theory, and development perhaps along the lines of Trident or some other cases in a different context with a lot more general evidence than you have got in this particular case.  This certainly does not seem an appropriate vehicle to me for determining these questions.

MR HAYLEN:   Well, your Honour, what we say briefly about the point is that to construe the statute about what was an agreement, if it is to be construed that an agreement has to be a legally binding contract, one has to look at what are the elements necessary to make work‑place agreements, which are commonplace in Australian industrial relations, enforceable.  We say the elements identified here are the elements one will find every day of the week; unions simply acting on the invitation of their members, under their rules, seeking to make binding agreements and operating upon them.

KIRBY J:   Is this what Justice O’Bryan found at first instance?

MR HAYLEN:   That is what Justice O’Bryan found at first instance, and that is what we say is the importance of this case, because in Australia there has been no ruling upon what the status of collective agreements has been, and yet they are part and parcel of every day industrial relations in this country, and have been for a long time.

KIRBY J:   And possibly are likely to be more so in the future.

MR HAYLEN:   And likely to be more so, though the State of legislation, federally in particular, in is a state of uncertainty at the moment.

KIRBY J:   And presumably the Corporations Law was written against the background that this was the industrial reality of the country.

MR HAYLEN:   I think that would have to be so, your Honour, yes.  Yes, if your Honours please.

DAWSON J:    Yes, Mr Myers.

MR MYERS:   The first special leave point that is identified in the applicant’s summary concerns the construction of the Corporations Law. In our submission, the decision of the court below was plainly correct. The sections in question, sections 433 and 566, refer to debts or amounts payable. In their context, they clearly refer to legally enforceable arrangements. By way of contrast, for example, as is mentioned in the outline, section 206AAA of the Corporations Law, where it wishes to refer to an agreement not legally enforceable, does so in express terms.

KIRBY J:   But it is written in the context of giving an advantage to employees against a background of a nation where these sorts of agreements are agreements.  They are agreements that are made that affect the day to day payment that are made to employees, and one cannot assume that the Parliaments really did not know that that was the case, or were not referring to that when they enacted the law in the form it was enacted.

MR MYERS:   The Parliament knows, your Honour, a lot about these agreements, because both the Commonwealth Parliament and the Victorian Parliament provide a system whereby they can be registered and, if they can be registered, they can be enforced, notwithstanding the disabilities, as it might be thought, they would suffer under the general law of contract.  If you do not bother to register the agreement, then you do not have an enforceable agreement.

That was the position under both federal and State law at the relevant time for these proceedings and is the position under federal and State law now,  so that of course there are agreements outside awards but Parliaments, Commonwealth and State, recognise that in order to make them enforceable there needs to be a statutory sanction because of the contractual difficulties that are involved.  Now, your Honour, the construction that the Court of Appeal below favoured of these statutes is, in my respectful submission, not only plainly correct on the plain words, the reference to debts or other amounts payable, it would also be, in my submission, absurd that employees should acquire rights when a receiver was appointed or when a liquidator was appointed which they did not have before hand.        The Parliament could not be supposed to be giving further or additional rights on insolvency that did not exist before insolvency.

KIRBY J:   I do not find that so curious.  It is not unusual on insolvency to make special provision for particular groups such as employees.

MR MYERS:   But not to give additional rights, rights that did not exist independent of insolvency.  The effect would be the day before the company is insolvent, you do not have a right.  You could not sue for these over award payments.  The day after when the receiver is appointed you have this right and you climb above all those persons below whom you were when the company was a going concern.

KIRBY J:   Well, the applicants do not concede that you do not have the right.  They say you get the right by virtue of the agreement made on your behalf by the Union.

MR MYERS:   Of course, but that disposes of the question of construction.  Then they have to establish that there is a legally enforceable agreement.  In my submission, the case was dealt with below as a case on its facts according to established principles of contract law dealing with what constitutes an agreement, how you determine who are the parties to the agreement, what constitutes consideration for the purposes of the law of contract and how you determine whether there is an intention to create legal relations.  The facts were led ‑ ‑ ‑

KIRBY J:   Their Honours do not appear to take to task Justice O’Bryan’s analysis.  They simply sail on their own analysis.

MR MYERS:   I am sorry?

KIRBY J:   Their Honours do not appear to indicate the error that they found on the part of Justice O’Bryan.  They simply proceed to indicate their own analysis of the facts.

MR MYERS:   They do indicate some errors, your Honour.  His Honour, for example, referring to an agreement made on behalf of present employees only but, nonetheless, making an order or a direction which referred to all employees, but by and large I respectfully accept what your Honour says.  But nonetheless the Court of Appeal’s analysis was, in my submission, faultless as a matter of ordinary contract analysis.  It is a case that turned very much on its own facts and unless one can say that there are special rules for determining who are parties to an industrial agreement or special rules determining ‑ ‑ ‑

DAWSON J:   Well, that is the only question that would raise considerations for the grant of special leave, should there be special rules.

MR MYERS:   But it was not argued on that basis below, your Honour.  It was argued as a classical contract case and my friend has put that today.  He has not said that there is a special rule concerning intention to create legal relations where you have an industrial agreement.  To the contrary.  He has referred to the classic cases concerning intention to create legal relations.

DAWSON J:   Well, I thought he was putting that, that that was sufficient.

MR MYERS:   I am sorry, I missed what your Honour said.

DAWSON J:   That an intention to create legal relations was sufficient in an industrial setting to do so.  That is as I understood his submission.

MR MYERS:   Well, it is necessary that there be an intention to create legal relations determined objectively and that is the doctrine that has been accepted for a very long time in our jurisprudence and it is the reason why, in circumstances such as the present, it is difficult to establish that there is a legally enforceable agreement.

KIRBY J:   Does it have to be intention to create legally enforceable relations generally, or is it enough for the purpose of the law that it be an agreement giving rise to an obligation to pay moneys, which is undoubtedly the reality of what was happening.  At the end of every week they got their money pursuant to the agreement that was made on their behalf that, in effect, they had to elect to accept.  There is an air of unreality about saying this is not an agreement with the employees for the purposes of the Corporations Law and the beneficial protection it gives.

MR MYERS:   It is undoubted, in my submission, that it was intended by   the parties that effect would be given to the agreement.  The issue, rather, is whether effect can be given to it by it being enforced by action in a court and that is the issue, not whether the party has contemplated that the employers would pay redundancy rates at the terms that are mentioned in the instruments ‑ ‑ ‑

KIRBY J:   But it is a question of what that word “agreement” means in the Corporations Law and whether it imports all of the classical contract doctrine or whether, given that it is dealing with employees, given that it is dealing with issues of insolvency, it is not addressing the very sort of arrangements which we are told, and which I am prepared to assume, are every day events and were the events of this case.  I mean, why should we ignore the reality in which the Corporations Law was enacted?

MR MYERS:   I am not suggesting that the Court should ignore reality, not for a moment, but what I am saying is that as a matter of construction of this statute it means legally enforceable agreement.  It uses all the words with which we, as lawyers, are familiar in thinking and talking about agreements that are legally enforceable and the means of making these agreements legally enforceable, if they are not otherwise according to ordinary contract principles, is to hand.  It is found under both the State and the Commonwealth statutes which provide for certification.  Those statutes then set out the consequences of certification in terms of negating the difficulties that stand in the way of enforcement of such an agreement according to classical contract doctrines.  So one asks, perhaps, is this statute enacted with a background of classical contract doctrines in mind or is it enacted with a background of unenforceable agreements reached in the workplace in mind and, in my submission, the language of it is very clear; it is the former.

KIRBY J:   Is it a fair inference that this is a common arrangement; Unions negotiating on behalf of employees over‑award agreements?

MR MYERS:   I am not in a position to contradict my friend and I would assume as a reader of the newspapers that it is.

KIRBY J:   And it is likely, is it not, with the diminution of awards, it will become more common?

MR MYERS:   That is why, for example, the Commonwealth has recently enacted, it might be thought, section 170AC to provide new certification procedures for these agreements and the State of Victoria has done the same in the 1992 Act, section 8.

KIRBY J:   Well, that is one stream but the question is whether, under the Corporations Law, when you use the word “agreement” it brought in all the classic doctrine or whether it was looking at the industrial relations reality that is existing in this country.

MR MYERS:   This part of the Corporations Law is primarily looking at adjusting the rights of persons who have claims against insolvent corporations.

KIRBY J:   The only point I am making, Mr Myers, is that if this is a commonplace, if it affects lots of employees, if it is an arguable point, then it is an important point.

MR MYERS:   In my respectful submission, it is not an important point because the case was conducted as though it were a contract case, properly so ‑ ‑ ‑

KIRBY J:   But this is the construction of a statute.  That can be changed.  Mr Haylen can come along with some expert on contract theory and put up some other doctrine.

MR MYERS:   When one gets to the construction of the statute one says, “Why jettison words that are well understood; ‘debt’, ‘amount payable’ ‘adjust’, in a context of adjustment of priorities of persons who have claims against an insolvent corporation?”, in a context where agreements of this kind can be certified, registered, as easily as may be under both Commonwealth and State legislation and all the difficulties about them being unenforceable as a matter of contract are obviated.  One cannot put it any other way, your Honour.

KIRBY J:   The words “amount payable” do soften the word “debt” and a classic contract gives rise to a debt but here it is an agreement that gives rise to an amount payable which is softer.

MR MYERS:   A claim for a breach of contract may be an amount payable and not a debt. A debt is a sum certain and “amount payable” is an expression, certainly in contrast to it, but would be needed to encompass other amounts that are payable as a matter of legal liability or obligation but they are not sums certain.  If your Honours please, may I just go back to my friend’s special leave questions?  The issues that really arise in this case are difficult issues of fact regarding the application of established principles of contract law and it is not, as I hear my friend suggest, that there are special principles of the law that apply in relation to employment agreements.  Certainly, there is not a hint of that in the judgments of the Court of Appeal and for those reasons, in my submission, special leave ought not be granted.

DAWSON J:   Thank you, Mr Myers.  Mr Haylen?

MR HAYLEN: Yes, just a few points, if your Honours please. Firstly in relation to 206AAA, your Honours will note that that is a definition of “agreement” which includes agreements whether or not they have legal or equitable force and that is a two edged sword for my learned friend because the earlier use of “agreement” in section 9 and section 500 et cetera may well follow and is available to be construed in a similar vain. So, it may be that an equitable right here would suffice to allow these agreements to be considered as agreements under the Corporations Law. 

The second point that was made that the course of the ability to register agreements under industrial legislation, and I understood the point to be put that, therefore, non‑registered agreements are unenforceable, his Honour Justice O’Bryan accepted our analysis that there was no prohibition in any of the relevant legislation, either the Commonwealth or Victorian legislation, that had the effect that non‑registration led to an agreement being invalid.  It just did not go that far.  It merely provided a facility for registration other than the making of an award.

The last point was, it is said that the case decided below was decided on its particular facts.  On a proper analysis, the way in which the Full Court decided the case, in effect, endorses the approach in the Ford Case, that is, that when Unions and employers and employees locally reach agreements, the intention is not to have a binding agreement and it is treated by the judgments as virtually being a third tier.  That is, you have awards or certified agreements, you have then contract of employment and, finally, something else known as industrial relations.  We say that is a very important point that on a proper analysis arises from the judgment of the Full Court.

DAWSON J:   Thank you, Mr Haylen.

By a majority, the Court is not convinced that the matters which the applicant would seek to agitate with respect to industrial arrangements, if special leave were granted, raise considerations which are in an appropriate form to attract the attention of the Court.  Otherwise there is insufficient reason to doubt the correctness of the decision of the Court of Appeal.  Special leave will be refused.

MR MYERS:   With costs?

DAWSON J:   Can you say anything about that, Mr Haylen?

MR HAYLEN:   There is an agreement as to costs, your Honour, between the parties  I think that was noted in our outline.

MR MYERS:   I am instructed there is no such agreement, your Honours.  I did not see it in the outline either.

MR HAYLEN:   Apparently it was on one draft but it is not the one on the file, yes.  I think all we can do in those circumstances, I think we need to have a discussion about it.  Would the Court be prepared to ‑ ‑ ‑

DAWSON J:   We will stand the matter down and you can mention it later.

AT 11.24 AM THE MATTER WAS ADJOURNED
UNTIL LATER THE SAME DAY

UPON RESUMING AT 12.06 PM:

MR HEYLAN:  Before the Court deals with that matter, could we return to matter 3 in the list.

DAWSON J:   Yes, Mr Heylan.

MR HEYLAN:   I think there is an arrangement, if not an agreement between the parties that there be no order as to costs.  Perhaps Mr Connock can ‑ ‑ ‑

DAWSON J:   There will be no order for costs in that matter.

AT 12.07 PM THE MATTER WAS CONCLUDED