The Commonwealth of Australia of Dept of Defence v East Coast Brokers Pty Ltd & Anor

[2006] HCATrans 241

[2006] HCATrans 241

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S555 of 2005

B e t w e e n -

THE COMMONWEALTH OF AUSTRALIA OF THE DEPARTMENT OF DEFENCE

Applicant

and

EAST COAST BROKERS PTY LTD

First Respondent

SERCO SODEXHO DEFENCE SERVICES PTY LTD

Second Respondent

Application for special leave to appeal

CALLINAN J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 19 MAY 2006, AT 10.01 AM

Copyright in the High Court of Australia

MR D.M.J. BENNETT, QC, Solicitor‑General for the Commonwealth of Australia:If the Court pleases, I appear for the applicant with my learned friend, MR S.B. LLOYD.  (instructed by Australian Government Solicitor)

MR B.W. WALLKER, SC:   May it please the Court, I appear with my learned friend, MR M.K. CONDON, for the first respondent.  There is a submitting appearance for the second respondent.  (instructed by Lough Wells Duncan)

CALLINAN J:   Yes, Mr Solicitor.

MR BENNETT:   Your Honour, there are a number of issues in these applications.  If I can just show your Honours some of the rather surprising approaches taken to section 109 in the judgments below, a reference to paragraphs in the judgment, in paragraph 41 - and the same appears in paragraph 52 - there appears to be an assumption that there can be no direct inconsistency where the laws are dealing with different subject matters but have an area of intersection.  That is just clearly wrong, we would submit.

If one takes Goulden as an example, a law relating to life insurance and a law relating to disability discrimination are clearly totally different subject matters, but one can be inconsistent with the other.  The assumption at the end of the paragraph, if your Honours go to line 30 in paragraph 41:

Given that s 106 is concerned with the fairness of a contract and the provision of remedial relief and not with the responsibility for occupational health and safety conferred by the Defence Instruction, we fail to see how it could be said that s 106 and DI(N) ADMIN 30‑3 relevantly collide.

That is in a paragraph dealing with direct inconsistency.

CALLINAN J:   Mr Solicitor, there has not been a trial yet in this matter?

MR BENNETT:   No, your Honour, there was a strike‑out, in effect.  This is an appeal by us from the refusal to strike‑out.

CALLINAN J:   You might win if there is a trial.

MR BENNETT:   We might, your Honour, but ‑ ‑ ‑

CALLINAN J:   You know that in general the Court is disinclined to hear matters in which there is a possible outcome in favour of a party making an application for special leave when there has not been a trial.

MR BENNETT:   Yes.  Your Honour, it is a case where the trial would be futile.  The trial would involve expense and time and so on for the parties and it could be a lengthy trial.  In my respectful submission, it is appropriate, bearing in mind the centrality of the constitutional issue and the matters – the manifest errors of which there are others I have not taken your Honours to in the judgment, that the matter be dealt with at this stage.  It does not need any further facts for your Honour to determine it.  The issues arises cleanly ‑ ‑ ‑

HEYDON J:   In your reply, though, some point is made as to the difference between the facts assumed and other facts that ‑ ‑ ‑

MR BENNETT:   No.  The only point made in the reply – it is not a factual issue – there is a contract and a subcontract.  Under the State law there is a deemed contract of some sort between the head contractor and the subcontractor.  We were simply complaining that the respondents asserted the existence of a contract between the head contractor and the subcontractor as some sort of fact when it was simply a conclusion of law based on the application of this legislation to a situation where there was a contractor subcontract.  There is no factual issue on that.

HEYDON J:   Another problem is this, does not part of the controversy turn on what precise order the industrial court might make and if it made one sort of order then inconsistency arguments become material and if it made another sort of order they would not.  In other words, the matter is moot until you have a trial and work out what relief should be granted.

MR BENNETT:   Your Honour, when one looks at the relief claimed, all the relief claimed would be inconsistent.  One cannot assume that some other form of relief might be granted.  It is hard to see what relief could be granted other than dismissing it with costs that would not be inconsistent.  Part of the argument is that there is no inconsistency until an order has been made.  We would submit that is just wrong as a matter of law.  One has inconsistency between legislation before the Court actually comes to make an order in reliance on the State law.  There is also the issue of the Financial Management Administration Act and there is also the Cigamatic issue.

HEYDON J:   A point on which the Court on an appeal would have no assistance from any court below because it was not raised below.

MR BENNETT:   That is the…..but that is a short, discrete issue.

HEYDON J:   That is another reason for the matter being tried.  If that argument is pressed then it can be considered against an appropriate factual background and then considered by this Court if it is necessary in your client’s interests, later.

MR BENNETT:   Your Honour, it is a point that was not raised below, that is so, but it is a very short, very discrete point and to say it arises as a matter of law, well, it succeeds or it fails.  In my respectful submission, the Court would not be greatly assisted on that issue by other judgments.  The Cigamatic issue, as to which we reserved our position below because it involves partial challenge to the decision, is one which is clearly of importance.  This is a defence establishment.  The occupational health and safety on that establishment is the ultimate issue and the State law seeks to cut that down.

There are also matters in the judgment which show a confusion between the “alter, impair or detract from” test appearing in AMP v Goulden and operational inconsistency and that is how the court got into this argument that because there is – that operational inconsistency would only arise once the State court had given its decision.

Your Honours, we submit there are important issues in this case.  It is desirable that they be determined and be determined sooner rather than later and that this is a case where there is simply no advantage in allowing the matter to go to trial and having lengthy discretionary and factual disputes where those will simply be unnecessary on a short and clear proposition with constitutional law.  If the Court pleases.

CALLINAN J:   Mr Walker, we do not need to hear you.

The application for special leave should be dismissed on the basis that it is premature, but that dismissal is without prejudice to the applicant’s right to make an application in the future, as it may be advised, when the matter has been disposed of in the courts below.

MR WALKER:   We seek costs, your Honour.

CALLINAN J:   I do not think there is anything you can say about that.  The application therefore is dismissed with costs.

AT 10.11 AM THE MATTER WAS CONCLUDED