Veta Ltd & Anor v Evans
[2003] HCATrans 252
[2003] HCATrans 252
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S245 of 2001
B e t w e e n -
VETA LIMITED (A COMPANY INCORPORATED IN HONG KONG)
First Plaintiff
CATHAY PACIFIC AIRWAYS LIMITED
Second Plaintiff
and
MARK ANDREW EVANS
First Defendant
DAVID MICHAEL HONNER
Second Defendant
BRETT KENNETH ROSEWALL
Third Defendant
DAVID BRUCE SPRONG
Fourth Defendant
CHARLES BRUCE BURTON
Fifth Defendant
Summonses
McHUGH J
(In Chambers)
TRANSCRIPT OF PROCEEDINGS
AT SYDNEY ON WEDNESDAY, 2 JULY 2003, AT 10.03 AM
(Continued from 16/6/03)
Copyright in the High Court of Australia
__________________
MR R.J. ELLICOTT, QC: Your Honour, I appear with MR G.J. HATCHER, SC for the plaintiffs. (instructed by Freehills)
MR R.C. KENZIE, QC: I appear with MR S.E.J. PRINCE as before for the defendants. (instructed by Abbott Tout)
MR M.G. SEXTON, SC, Solicitor‑General for the State of New South Wales: If the Court pleases, I appear with MR J.G. RENWICK for the Attorney‑General for New South Wales. (instructed by Crown Solicitor for the State of New South Wales)
HIS HONOUR: Yes, Mr Ellicott.
MR ELLICOTT: Your Honour has had the benefit of written submissions?
HIS HONOUR: Yes, I have read the submissions and most of the cases referred to. I have not read every case in the footnotes.
MR ELLICOTT: I understand your Honour would have done that. Your Honour, so far as the case stated is concerned, it has reached the stage where, to use the words of the defendants, the draft case stated is as comprehensive as it is likely to be as a result of this consultative process. That is taken out of a letter. My friend might want to refer your Honour to that letter to indicate their broader view that nevertheless the draft case stated is not, according to them, in such a state as would necessarily allow the Full Court to make any useful determination on all the questions sought to be referred. I will leave my friend to deal with that.
HIS HONOUR: I notice that some of the additional facts, although apparently not many, have been incorporated in the stated case, but there does seem to be some outstanding matters, particularly the internal arrangements between Veta and Cathay Pacific.
MR ELLICOTT: Yes. Your Honour, our attitude is that if there is anything that the defendants want added, or, for that matter, if your Honour felt that we had not dealt with a matter that could be relevant, we certainly have no problem in dealing with it. We do not have a fixed view, except that we say that what the facts are as stated would be sufficient to enable the Court – that is, the Full High Court, or your Honour, if your Honour dealt with it – to deal with the questions, particularly questions relating to section 109 and whether it is an industry in and of New South Wales.
In other words, the parties have taken the consultative process quite a distance, but we are not wanting to stop further facts from being agreed. We are quite open. If they want to look at documents, we are quite prepared, within reason, to produce them. There has not been any real debate, except I think there is a question as to some percentages, but they are in the course of being agreed one way or the other, your Honour.
Our primary submission, as your Honour will have gathered, is that the plaintiffs were entitled to invoke the jurisdiction of the Court. That is a right which arises either under the Constitution or, alternatively, under a law of the Parliament which vests jurisdiction in this Court under the Constitution. Unless there is a good reason, we submit, this Court should exercise its jurisdiction over the matter. The purpose of the remitter power ‑ ‑ ‑
HIS HONOUR: Can I tell you, Mr Ellicott, the difficulties I see in your way. I want you to deal with them. The first is the point made by Sir Gerard Brennan in Ravenor’s Case, where his Honour said:
The power of remitter . . . is designed to ensure that this Court is not diverted from its principal functions by the need to hear and determine matters in the original jurisdiction –
and that the conduct of proceedings should be heard in other courts, including constitutional issues. In Mabo, for instance, we set matters down to try facts. There have been quite a number of very important cases. As you are no doubt familiar, from Peters’ Case, the judgment in the Court of Appeal records that the court having removed the matter, then sent it back, on the basis that the facts had to be determined.
The other difficulty I see in your way is that the constitutional issues may never be reached here. You may succeed on the industry point or you may succeed on the discretionary point, so that one may never reach the constitutional ‑ ‑ ‑
MR ELLICOTT: What discretion point does your Honour ‑ ‑ ‑
HIS HONOUR: Even though there is employment in the industry, the Industrial Commission apparently takes the view it has a discretion not to make an order in favour of you. It said as much in the Digi‑Tech Case. That is an unreported judgment, but it seems to be their practice down there. So even if the employment is more than transitory or casual in New South Wales, you may be able to persuade the Commission in Court Session that, given what you would say is the tiny amount of work performed in New South Wales, it is not a proper case for the Court to be varying a contract.
MR ELLICOTT: We may also say, your Honour, that section 109A requires the matter not to be dealt with by the Court. There are all sorts of points that might be made.
HIS HONOUR: I know, but we have said again and again, as has the United States Supreme Court, that we should not decide constitutional issues unless we have to. After all, as somebody once said to me, section 109 is the running‑down jurisdiction of the High Court. They are not very powerful issues in terms of legal importance; they tend to depend upon the facts of individual cases. In this particular case, it does not seem to me there is a case of textual collision. You have to either argue that it is a “cover the field” test or it is an operational inconsistency test. If it is operational inconsistency, the facts will be crucial.
MR ELLICOTT: Your Honour, first of all ‑ ‑ ‑
HIS HONOUR: Can I just raise one other factor that occurs to me. Perhaps I had better raise it, although the other side has not raised it. Let it be assumed for the moment that you have a good 109 point. It may be a question arises as to whether, insofar as what I will call generally the “Air Acts” seek to cover the field in some way – whether they can be supported under the Chicago Convention. In other words, are the employment aspects of it giving effect to the Chicago Convention? That is an issue. I do not know, but it may be sleeping under there.
MR ELLICOTT: Those are the matters your Honour wants me to address. I will deal with those.
HIS HONOUR: Yes.
MR ELLICOTT: I will deal with a lot of other matters too.
HIS HONOUR: I am sure you will.
MR ELLICOTT: Within the hour, which I propose to stick to if I can, your Honour, and your Honour will make sure I do. First of all, the power of remitter, according to Chief Justice Brennan:
is designed to ensure that this Court is not diverted from its principal functions –
whatever they might be –
by the need to hear and determine matters in the original jurisdiction which could properly be brought in an Australian trial court.
First of all, this is a matter in itself. There is no question that the plaintiffs, we would submit, are entitled to have as a separate matter of federal jurisdiction the application of section 109 to the legislation in this case. Therefore, looking at it as a separate matter, they should be entitled to have that matter dealt with. That matter under federal jurisdiction is determining the rights and obligations of the parties, à la In re Judiciary Act and à la Tasmanian Breweries Case.
HIS HONOUR: I am with you on the view that these are distinct matters. It is not a view shared by some of my colleagues, as you would be well aware. They take the view there is only one matter in this.
MR ELLICOTT: Once this matter goes to the Commission – and I will come back to what the Commission is a little later – their Honours’ view may be right once it gets into the Commission. I say that with great respect ‑ they may be right – because once it gets there, it is absorbed into the matter, and the matter is those summonses that have been taken out in the Industrial Commission. So as your Honour portends in one of the issues ‑ ‑ ‑
HIS HONOUR: I am not sure that is right. What we would be remitting is a matter that is in this Court, so there would be two matters, if one likes to use the term. There were the summonses started by the present defendants, the 106 summonses, and there would be the matter that we would remit, assuming I remit it against you.
MR ELLICOTT: That might be so, your Honour, but this is the point. We are seeking to have that matter that we have in this Court determined ahead of the broader issues in this case. In other words, we are trying – I will be very frank – to avoid being enmeshed in the Commission’s exercise which involves us in a lengthy hearing before the Commission, calling all sorts of evidence, disgorging all sorts of documents, et cetera. It really is a matter of not being put to the trouble and expense, both in terms of expenditure, but also in terms of people involved, bringing people from Hong Kong. Your Honour can imagine what the trial would involve.
HIS HONOUR: Yes.
MR ELLICOTT: I do not develop that. The Commission would have the right to determine, if they are two separate matters, which of the matters are going to go ahead. Based on the practice of this Commission, which has been made clear even in cases after Mitchforce, they will deal with the lengthy area first – that is, the merits, if you like – before they get to the matter that we are concerned with. In other words, they may say, “Yes, they are separate matters, but, in effect, we will deal with them together and at the end of the day we will decide whether section 109 is applicable or not”. That is how it will happen before the Commission, in our submission, and that is a realistic assessment of the position.
So, when applying what Chief Justice Brennan has said, we would submit, if you start off with the proposition that this is a matter properly brought before this Court and clearly within its jurisdiction, the principal functions of the Court are to deal with matters of significance in relation to the interpretation of the Constitution. It cannot be said, in our submission, that this is not such a matter. You can say that, yes, it is the running‑down area of the Constitution, but nevertheless it is a most important area and it is an area involving the external affairs power, on the one hand, and the intrusion of the State into that area, on the other. That is a significant area. It may be that this is breaking new ground so far as section 109 is concerned.
On one view of this case, one can say that what the Commonwealth has done is to leave an area, having regard to the Workplace Relations Act and the Qantas award, as part of the implementation of the Convention and the associated Conventions. It has left that area not for the States to intrude. Although there is a little vacuum there, one might argue, nevertheless it has left that area to be dealt with by the law of the flag, namely, in this case, Hong Kong. That might be breaking new ground as far as section 109 is concerned. It is not necessarily a humdrum section 109 case.
Clearly enough, the question as to whether this is an industry in and of New South Wales, and whether it is a contract in and of and whether it is a valid law of the State of New South Wales is also there. Section 106 itself is a matter of considerable public significance and there is great debate, as your Honour will gather from Mitchforce’s Case, as to whether the Commission itself is not spreading its tentacles throughout all sorts of areas. I will come to this again a bit later. The interrelation between section 106 and the present exercise of that so‑called jurisdiction by the Commission is, in a sense, bound up with the questions whether or not it is an industry in and of New South Wales. They, down there, have a growth factor in their minds.
HIS HONOUR: I know, but whether or not Veta is engaged in industry so that the defendants in this Court are performing work in an industry in New South Wales seems to me a matter that would require a great deal of evidence. The stated case does not seem to me to get anywhere near the sort of issues that you would need to be considering in that. It just drives home the point that one should have a trial of the facts. As you know, Mr Ellicott, better than I do, stated cases have some utility when the evidence has been taken or facts found, but to state cases before one hears the evidence or the adversary system has sharpened the parties’ views of the issues is fraught with danger. Again and again in my experience, the judge who stated the case is asked to go and add some additional facts by the consent of the parties to deal with some issue. It is a very unsatisfactory procedure.
MR ELLICOTT: Your Honour, one of the most glaring examples of the application and discussion of the external affairs power and its intrusion into State law and vice versa was the Airlines Cases of the early 1960s. If your Honour looks at the reports, your Honour will see that two junior counsel, I think, at the time, called Street and Ellicott sat down and worked out issues of fact. Those facts were stated to the Full High Court and the Full High Court decided that case on that basis.
HIS HONOUR: It is not very satisfactory from a social point of view.
MR ELLICOTT: It may be, your Honour, but that is ‑ ‑ ‑
HIS HONOUR: I just wonder whether you would have got the same result in that case if you had the facts and had seen how the two systems interlocked. I mean, New South Wales could license one side and ‑ ‑ ‑
MR ELLICOTT: So far as experts were concerned – I do not want to reargue that case, your Honour, because we succeeded, but the fact is that those facts came out of discussions with experts and an understanding of how the airspace was dealt with. But that was complex, and I do not want to dwell on that. All I am saying is that if the parties have a will to do it, they can state the facts, they can agree to facts. The problem here is that the defendants obviously want to enmesh us in the tentacles of the Industrial Commission. There is no doubt about that. It is pure tactics on their ‑ ‑ ‑
HIS HONOUR: Their opponents are too clear a thinker to succeed with that tactic, Mr Ellicott.
MR ELLICOTT: Well, your Honour, that is what is at the end of the day their objective: to get us down there into that Commission and have us enmeshed in that process. That is what they want. They know that if we get down there, if your Honour sends us there, then what will happen is that there will be a lengthy hearing and then the court, or the Commission, or whatever it is going to be called – we will come to that later – is going to say, “We will look at section 109 now and we will think about the validity of the Act”, all this in the context of section 179, of course.
Ultimately, that is going to enmesh us, not in a trial of the facts that are relevant to this matter, but a trial of facts that relate to the whole area covered by those summonses. That is not a statement that does not have – I mean, one can go to the cases where the Commission has consistently said, “We will deal with the whole matter and then these pre‑jurisdictional issues, we are not going to deal with them now; we will deal with them later”.
HIS HONOUR: Well, in your favour is the fact that in Nagle v Tilburg, even though the parties had agreed on the facts before the primary judge, the Commission in Court Session said it was not satisfactory.
MR ELLICOTT: Yes, and they can even exercise jurisdiction where the parties to the contract do not want it exercised, as they did in FMWU v Wilson Parking, where the old‑age pensioners were getting enough not to lose their pension under contractual arrangements and the FMWU took the proceedings. This is relative to judicial power and whether it is truly a court for the purposes of remitter, but I will come to that later.
HIS HONOUR: You will come to that, but it seems to me there are two separate issues as to whether it is a court and whether it is exercising judicial power. It may be a difficulty, from your point of view, that if it does not exercise judicial power, whether this Court has any jurisdiction. I know in the Boilermakers’ Case it was suggested that it may be permissible to join non‑judicial power with judicial power, but query in this case whether, if 106 does raise questions of non‑judicial power, this Court could hear it – that is, whether it is properly here.
MR ELLICOTT: Your Honour, that is only because of some conceptual view that the matter is this broader matter that is down there in the Commission. If that is lurking in this matter, then that issue ought to be determined.
HIS HONOUR: No, there is no matter down there in the Commission ‑ ‑ ‑
MR ELLICOTT: There is a matter up here.
HIS HONOUR: There are a number of matters up here. Certainly, there are some matters up here. There is no doubt about that.
MR ELLICOTT: On the face of the pleading, there is a matter.
HIS HONOUR: Certainly, and that is not disputed.
MR ELLICOTT: That is not disputed.
HIS HONOUR: This Court has jurisdiction under section 76 and section 30 of the Judiciary Act.
MR ELLICOTT: If it is said elsewhere in this Court, if I may say so with respect, that that matter attracts the rest of the matter, that is, what is in the Commission, then that very issue is one that needs to be determined in this Court. It is a very important issue. So, if we are dealing with that question, the observation from your Honour that it may not be to our advantage to say that it is not a court ‑ ‑ ‑
HIS HONOUR: No, that it is exercising judicial power. There are two separate issues, I think, as to whether it is a court and whether the 106 jurisdiction is arbitral or judicial power. I think they are different.
MR ELLICOTT: They are, in a sense, with respect, different, your Honour, but they are interlocked. In any event, that in itself is an important point. Your Honour says we may succeed on other points. Yes, we may, but that nevertheless, first of all, does not prevent what is accepted, namely, that it does not prevent the Court from having jurisdiction. Quite apart from that, if those themselves are important issues, as we would submit they are, then they are properly amenable to the jurisdiction of the Full Court on a case stated. If your Honour has an impenetrable view that you cannot state a case on this matter, then that is a difficulty I face, but if your Honour is going then to ‑ ‑ ‑
HIS HONOUR: I am always open to be persuaded, Mr Ellicott. I often persuade myself even after I leave the Court and sit down and write a judgment. The view I hold at the end of the argument is not necessarily the view I end up holding.
MR ELLICOTT: I have noticed that, your Honour, mainly to my clients’ benefit. So far as the determination of fact here is concerned, all I can put to your Honour is that these parties have not had any difficulty up till this point of agreeing facts. If there are areas of fact that need to be agreed or investigated, we are quite happy to do it.
HIS HONOUR: Can I just put this to you again. One’s understanding of facts is always enhanced when you have read – and, better still, heard – the underlying evidence. I do not know how many times in my career I have seen a summary of facts in a judgment and then when you go behind the summary and look at the evidence, you get a very different view of the case. It is very difficult to find facts and convey the full meaning concerning those facts.
MR ELLICOTT: If there was some evident application of that fear in this case, then one would have to agree with your Honour. Our difficulty is that up to this point of time we have not had any such exposition of the possible fact. If the defendants will tell us what they are – for instance, they have said in a letter that there might be other facts, but if they go to a trial, they surely have to ask themselves, “What are the other facts we think are relevant?”
HIS HONOUR: But they may have the benefit of discovery, interrogatories.
MR ELLICOTT: We will give them that now, if they will itemise the areas of documentation that they want. We will naturally look at it and ask, are they entitled to that, but, subject to that, provided they specify categories of documents, we will give them access, your Honour. That is not a problem, if they are clearly reasonable areas for them to investigate. If they are not, we will ask your Honour to tell us that they are not or they are. They are not issues that really lie between these parties. We do not have that problem. Therefore, to that extent, whether we are dealing with this matter in this Court, I will say, or – as we would put it, if your Honour is not going to deal with it here but remit it – in the Federal Court, then those issues will be plainly determined, we would submit.
HIS HONOUR: I do not think remitting it to the Federal Court is really an issue, Mr Ellicott. It either stays here or it goes to the Commission, I think, subject to your arguments about the question of court. Indeed, even if you succeeded on that, I think it would be better to keep it here if you succeeded on that, rather than remit it. It would be just inconvenient and costly to the parties to have two sets of proceedings, one in the Industrial Commission and one in the Federal Court. So I think it is either here or there. I think they are the realistic opportunities.
MR ELLICOTT: All right, that closes off that avenue, if that is your Honour’s considered view. We would only say that if it is going to leave here, that is where it should go.
HIS HONOUR: I know you say that, but there is no reason why the Industrial Commission, whatever we do, even if we decide to hear the case here – they could be proceeding with their own application down there.
MR ELLICOTT: Yes, they could be, if the Commission wishes to, then there are all the issues that are arising in relation to the Commission. We do not want to get involved in those. Let somebody else who has a closer interest in the jurisdiction of the Commission or connection with it determine those issues as to whether it is building an empire whereby it is seeking to rewrite all the commercial contracts it can get its hands on that might involve people performing work in an industry. If those tentacles are moving out, then let somebody else – we do not want to get involved in that. We do not want to get involved in section 179.
HIS HONOUR: I think the empire was built a long time ago.
MR ELLICOTT: It may have been, your Honour, but it is there.
HIS HONOUR: I think Mr Handley played a significant part in building the empire.
MR ELLICOTT: He probably did, your Honour, and now he seems to be pedalling backwards in Mitchforce. Mitchforce is a very illuminating judgment and no doubt your Honour has read it from beginning to end. It does illuminate future issues that lie in that area. My point is simply this, that we should not be put into a position, unless we have to be, that we are left to the vagaries of that jurisdiction or the issues that are lurking there for determination ultimately by this Court, probably. But so be it.
We would join issue with the proposition that if the Court was dealing with this matter, it would not be exercising its principal functions. Its principal functions, we would submit, have at least to involve matters that are embodied in the questions that are in the stated case. They do not have to be in those precise forms, but your Honour will see the substance of them. They are all matters of significance and lie within what you would call the principal functions of this Court to determine. If they are ultimately going to be determined here, then all the more reason why it should stay here. Of course, we have special leave and we have all those questions, but why should we be subjected to that if we ‑ ‑ ‑
HIS HONOUR: Yes, but am I not entitled to take into account the apparent strength or weakness of your case on the constitutional issues? Your treaty point seems to me to have formidable difficulties in its path and your 109 case does not strike me as anywhere near clear‑cut, Mr Ellicott. You may well be successful on that point, but it seems it has some problems. You cannot point to any textual collision. “Cover the field” is a test that is still there, but its application does not seem all that successful these days. It happens, as in Telstra, but it is a difficult argument to run.
MR ELLICOTT: It may challenge the mind. Whether it is difficult or complex is another matter, but it may challenge the mind. It is a pretty simple proposition if it is correct.
HIS HONOUR: I am not sure it is simple. You have to take a Commonwealth ‑ ‑ ‑
MR ELLICOTT: Can I state the proposition?
HIS HONOUR: Yes.
MR ELLICOTT: It is a pretty simple proposition if it is correct. The effect of what the Commonwealth has done is to leave the determination of employment conditions and conditions of work to the – I will call it the law of the flag – to the other party that is engaged in international air transport, to leave the rights of those people who were involved to be determined in accordance with that law. If we can show that ‑ ‑ ‑
HIS HONOUR: What does this argument depend on – the overseas trade and commerce power or only the external affairs power?
MR ELLICOTT: It would involve both. It also, to some extent, involves the conciliation and arbitration power, because we say that the workplace relations provisions which deal with Qantas are simply part of the picture. I referred to a vacuum left there in relation to the conditions, et cetera, of pilots other than pilots employed by Qantas. One might ask, why on earth did they do that? Did they leave that to the States? That would be ridiculous. They left it there because it was part of the Commonwealth’s treatment of the implementation of the Chicago Convention through the Air Navigation Act, et cetera, the air navigation orders, the manuals and all the other things that go with it, which so directly impinge on the manner of work and the workplace of aircrew. They are vital and right at the heart of it, as we know, because we are always hoping that they have got it right.
So, your Honour, the proposition is not esoteric. It is a fairly direct one. Looking at it from Veta’s point of view, or Cathay Pacific’s point of view, they say we have the right to engage – we have a bilateral treaty between the government of Hong Kong and the government of Australia, that is done under the Convention and under the Air Navigation Act. It does not matter that it might go beyond areas of strict implementation of the Chicago Convention, it has statutory approval, and it is under that arrangement that we have the rights, as plaintiffs, as air transport operators, to involve ourselves in transport between Australia and Hong Kong and other parts of the world, et cetera. On that basis, it is not far‑fetched, we would want to submit, that in some way they have a right which arises under a treaty.
Now, we do not need to go that far, because the external affairs power itself is enough to give us a basis for saying, not only does the Chicago Convention cover employment relationships, but also the bilateral treaty is sufficient to cover them. So we resist your Honour’s proposition, if I may say so with great respect, that this is just another case or that it does not have weight. If one goes through all the various provisions and manuals, et cetera, they will reveal quite a deal of support, we would submit, for those propositions that I have – I will not take time to develop them now, but I just want to resist your Honour’s view that this is just a run of the mill case, or that our rights ‑ ‑ ‑
HIS HONOUR: While I think of it, in the draft case you refer to, I think, section 70 not allowing people to contract out. My recollection is that it does not prevent people contracting on more favourable terms, does it? It is not as if it is exhaustive in any way.
MR ELLICOTT:
It is not open to the Plaintiffs to contract out of the provisions of the Employment Ordinance . . . which issue is in dispute (s.70).
HIS HONOUR: What paragraph is that?
MR ELLICOTT: That is paragraph 40.
HIS HONOUR: Yes, I thought that was a little misleading, if you look at section 70 itself. I thought it was – yes, it is behind item 15:
Any term of a contract of employment which purports to extinguish or reduce any right, benefit or protection conferred upon the employee by this Ordinance shall be void.
That seems to be different from what is in the stated case. What is void is a contract “which purports to extinguish or reduce any right, benefit or protection”.
MR ELLICOTT: I will have to ‑ ‑ ‑
HIS HONOUR: Yes. Sorry, Mr Ellicott, I diverted you.
MR ELLICOTT: Quite properly, your Honour. That issue, I have to agree, is in dispute.
HIS HONOUR: Is it?
MR ELLICOTT: Apparently. Still, I thought that had been resolved, but apparently those words are still there. I am looking at section 70:
Any term of a contract of employment which purports to extinguish or reduce any right, benefit or protection conferred upon the employee by this Ordinance shall be void.
HIS HONOUR: Yes, well, that strikes me as different from saying that you cannot contract out. I mean, in practice it may come to the same thing ‑ ‑ ‑
MR ELLICOTT: That is the matter that is in dispute. It is a question of what that means. Your Honour, I cannot take the issue of Ravenor ‑ ‑ ‑
HIS HONOUR: As paragraph 40 stands, it would seem to indicate that the employment ordinance is exhaustive, whereas section 70 does not strike me as being exhaustive. It merely says you cannot detract from an employee’s rights. But, anyway, it is only a minor issue, I think, in this case.
MR ELLICOTT: Well, one has to determine whether or not, under the law of Hong Kong – and that may be dealt with – if there is no other factual statement, there is no evidence from an expert, the court will look at that and decide for itself. But our basic argument is that the law of Hong Kong is the law that is applicable to these arrangements and that the law of New South Wales certainly does not impede on it. For it to do so would impair or detract from the operation of the laws of the Commonwealth which embody and implement the Chicago Convention and the bilateral arrangements between Hong Kong and Australia.
That is the tenor of our argument, and one which I would submit is eminently suitable to go to the Full High Court, either after your Honour has determined issues of fact or, alternatively, on a case stated, having regard to the proposition I have already put, and that is that the parties so far have not had any problems of any great significance. If they try a bit harder in areas that – your Honour is open to indicate any areas of fact that you think ought to be investigated. There is no need for a trial in this Court, ultimately. It ought to get down to some fairly minor issues, because the facts are there, they are not going to change and they are not going to be manipulated. The inferences from facts may be different. It may be a question of argument, obviously, but that is a different area to the one that your Honour is concerned with. So we would submit that we have a right and that right ought to be recognised by leaving the matter to be dealt with in this Court.
Now, insofar as it is a choice between this Court and the Industrial Relations Commission of New South Wales, that is the issue, then when one comes to consider the Industrial Relations Commission of New South Wales, it is not a body to which this Court can, in our submission, remit a matter. It is neither a court, nor would it, in dealing with the issues in question in this case, be exercising judicial power, because they would be enmeshed in a matter under section 106, which is the basis of its jurisdiction, so‑called, which involves the exercise of arbitral power.
Now, first of all, on that particular question, if I can take your Honour to section 106. We have, of course, the benefit of your Honour’s judgment in 10 NSWLR – your Honour will recall that, I am sure.
HIS HONOUR: Yes, I do.
MR ELLICOTT: That is Minister for Youth v Health and Research Employees Association (1987) 10 NSWLR 543. Your Honour, at page 559, made these observations, which, if I may, I would want to read, because really they are as true today, if I may say so, as they were then, in relation to section 88F. They are true in relation to almost all the matters that are adverted to here. At F, your Honour said:
Under the Industrial Arbitration Act, s 31(b), the Commission has power at any time on its own initiative or on an application made to it “to make an award or to vary or rescind any contract determination made by it . . . ”. There is no reason why the powers conferred on the Commission by s 31 do not apply to a case covered by s 88F which is contained in Pt VIII of the Act under the heading “Awards”. Moreover, not only can the Commission of its own motion make an order –
Now, under the Act, as it now provides, section 162, the Commission can act of its own accord, but not the Commission in Court Session. That is 162(2)(i). So that may not apply, but going on:
Moreover, not only can the Commission of its own motion make an order in respect of a contract, but an industrial union of employers or employees – strangers to the contract – may make an application to void or vary it (s 88F(2C)). Indeed, there seems no reason why an order cannot be made under s 88F(1) even though all the parties to the contract contend that no order should be made.
That still applies, and I instance the case of FMWU v Wilson Parking.
A further indication that the proceedings are not an ordinary suit or action is that the power conferred by s 88F is arbitral, not judicial power. Even before the amendments made in 1985 an industrial union of employees could invoke the jurisdiction of the Commission under s 88F . . . That a stranger to a contract can obtain an order that the contract is void is itself an indication that the Commission is not exercising judicial power in an ordinary suit or action.
We would say it is an indication not exercising judicial power in a matter.
Moreover, I think that the Commission can exercise its power under s 88F in a case where, although the contract was not unfair or harsh or unconscionable or against the public interest at the time of its making, subsequent events have made it so.
This still applies.
HIS HONOUR: That is done specifically, I think, now, but I cannot recollect whether it was specific under the old ‑ ‑ ‑
MR ELLICOTT:
The jurisdiction of the Commission to void or vary a contract, independently of the circumstances which existed at the time of its making, indicates conclusively in my opinion that the power conferred by s 88F is not an exercise of judicial power –
and your Honour refers to the Trade Practices Tribunal Case. As I was submitting, your Honour, 105 and 106 are not any different. The unfair contract in 105 is defined, the definition of “contract” is very broad and then lays the basis for this, we would say, exercise of – it is really arbitral, but it is also quasi‑legislative, in the sense that award‑making is quasi‑legislative. But it certainly is not, we would submit, at its heart ‑ ‑ ‑
HIS HONOUR: Well, that power is supplemented by the power in 107 to make orders preventing further unfair contracts, which is legislative in nature.
MR ELLICOTT: Yes, that is right. Your Honour no doubt has read this fully and will be aware that it has the vices so far as it being true to judicial power that this Court is exercising and is concerned with, which comes from all the provisions of 106 and the notions of public interest in 106(4), who may apply for an order, orders to prevent further unfair contracts, obviously involve matters of public policy which go beyond the simple determination of rights and obligations between parties. Section 109 is not just an objective, not something the court can encourage the parties to engage in, conciliation, it is part of the process. You have to do it. Then 109A is interesting:
(1) This Division does not apply to a contract of employment that is alleged to be an unfair contract for any reason for which:
(a) an application has been or could have been made by the employee under Part 6 (Unfair dismissals), or
(b) such an application could have been made but for –
Now, this section is lurking around the place in this case, because there are allegations that the dismissal was unfair in the circumstances, and the matter therefore, one can properly say, should have gone across to Part 6, section 83 and following. In other words, the whole gamut of Part 9 embraces, we would submit, not judicial power, but arbitral and quasi‑legislative power. So to remit this matter to that body would be, we would submit, to – you can say almost – even though it is the matter that goes back there, we then get this constitutional issue. What then happens? Is the matter absorbed into a matter, not a matter under the Constitution, but a proceeding which is not a judicial proceeding, which is not involving the exercise of judicial power?
HIS HONOUR: But is that not a dilemma from your point of view, because some of these questions that you seek to have litigated in this Court were never in the Court in the first place, because they are not a matter, on your argument?
MR ELLICOTT: They were never in this Court in the first place?
HIS HONOUR: Yes.
MR ELLICOTT: No ‑ ‑ ‑
HIS HONOUR: For instance, determining whether or not 106 applies.
MR ELLICOTT: But, your Honour, it must be a common feature of matters that arise in this Court that they are sometimes aspects of wider matters ‑ ‑ ‑
HIS HONOUR: Exactly, but ‑ ‑ ‑
MR ELLICOTT: ‑ ‑ ‑ and there is a demurrer in relation to it. The Act is invalid, or something, and ‑ ‑ ‑
HIS HONOUR: But I do not recollect, off the top of my head, any case where an issue has arisen as to whether or not a matter has been sent down with a non‑judicial matter, or whether this Court has jurisdiction over a non‑judicial matter merely because it is associated with a judicial matter.
MR ELLICOTT: The teaching would probably be that this Court would not have jurisdiction over ‑ ‑ ‑
HIS HONOUR: No. I think that is right.
MR ELLICOTT: ‑ ‑ ‑ a matter which involves the exercise of non‑judicial power.
HIS HONOUR: Although there is a reference in Boilermakers, if I remember rightly, and I think earlier in Lowenstein’s Case, that it may be that you can join a non‑judicial matter with a judicial matter, but you certainly cannot do it the other way around.
MR ELLICOTT: Or, if it can be entertained, the Court is immediately going to say, “Well, we are not going to deal with that. That will have to go back to the Commission, if that is a proper place to send it”. So far as the Commission is concerned, if the issues before your Honour go back there, we would submit, they are going to be merged in the broader matter, not only as a matter of the procedure that will be followed by the Commission, but also they will be merged in the whole matter. It is not the exercise of judicial power. They are just deciding a constitutional question as a board of reference, or whatever may decide it, for the purpose of determining how they should react to particular legislation of a State if a question arises. They can determine a question of law, so they determine it.
HIS HONOUR: Some of the remarks I made in Minister for Youth v Health Employees’ Association may have been overtaken by subsequent litigation. For instance, in Truth About Motorways, this Court thought there could be a matter even though the applicant was a stranger to the proceedings. Similarly, in a decision of Justice Austin concerning Health Group v Hanning, he pointed out that these days the Corporations Act, in section 1324, I think, enables courts to make orders declaring contracts void even though the order depends upon subsequent events.
MR ELLICOTT: That may be so, but you cannot get away from this proposition, we would submit: in our opinion, there can be no “matter” within the meaning of the section unless there is some immediate right, duty or liability to be established by the determination of the court. That, of course, is In re Judiciary Act and that is fundamental. So is the judgment of Justice Kitto in the Trade Practices Tribunal Case, that it involves the determination of the law as it is and the facts as they are and the application of that law to those facts in order to decide whether or not there are existing rights and obligations and if that is so decided, then the judicial power then takes those up and then enforces them, for the benefit or against the parties concerned. That is right at the heart of judicial power. This Commission is not dealing with it.
The other aspect of it, your Honour, is section 179 itself. Now, 179, in our submission, is not a provision that is sort of hanging there on the edge. It is a provision which is saying something about the body itself that has been set up by the State Parliament. It is not an appendage, in other words. In fact, I think after the amendments, the 1996 Act did in fact strengthen the equivalent of 179 to its present form. Obviously, in the light of Mitchforce’s Case, the Court of Appeal considers that it has no power to intervene unless the principles applicable through the Hickman Cases are in some way breached. In that case, they said they were breached in relation to certain orders, and your Honour has read that judgment. But 179 offends Chapter III of the Constitution.
Your Honour’s judgment in Kable’s Case (1996) 189 CLR 51 is, we submit, a clear indication that – your Honour’s judgment at page 114 to 116 embodies the propositions that we would want to embrace. At 114:
An essential part of the machinery for implementing that supervision of the Australian legal system and maintaining the unity of the common law is the system of State courts under a Supreme Court . . . The judgment of the High Court in such an appeal is “final and conclusive”.
It is the only 179 court.
Without the continued existence of a right of appeal from the Supreme Court of each State to the High Court, it would be difficult, indeed probably impossible, to have the unified system . . . Moreover, although it is not necessary to decide the point in the present case, a State law that prevented a right of appeal to the Supreme Court from, or a review of, a decision of an inferior State court, however described, would seem inconsistent with the principle expressed in s 73 and the integrated system of State and federal courts that covering cl 5 and Ch III envisages.
It follows that State courts exercising State judicial power cannot be regarded as institutions that are independent of the administration of the law by this Court or the federal courts created by the Parliament of the Commonwealth. In exercising federal jurisdiction, a court of a State administers the same law as the Federal Court of Australia when it exercises the identical federal jurisdiction.
Your Honour deals with that and your Honour says at 115, at the bottom:
It is axiomatic that neither the Commonwealth nor a State can legislate in a way that might alter or undermine the constitutional scheme set up by Ch III of the Constitution.
Now, we are not dealing with the same position here. We are not dealing with the Supreme Court of a State, and the effect of this judgment is that you cannot mess about with the Supreme Courts. They are part of the structure under the Constitution and you cannot make their decisions unappealable. You cannot do that. It is not consistent with the constitutional provisions in Chapter III. What we have here is we have a need to decide whether this body called the Commission, in exercising its functions, is truly a court – that is to say, one that fits within sections 71 and 73 of the Constitution.
We submit that section 179 and the question of its validity – that is not to the point. If 179 was in the State Supreme Court Act, there may be a question as to its validity, but when you find it in the Industrial Commission, apparently exercising arbitral and legislative power in relation to the very matter we are dealing with, and you have 179 on top of it, surely, what one is finding is that they are trying to make it like the Parliament – that there is no appeal from the Parliament and there is no appeal from this Commission and it is not a court to which you can remit a matter.
HIS HONOUR: Yes, but insofar as it exercises federal jurisdiction on a remitter, 179 cannot stand in the way of this Court granting special ‑ ‑ ‑
MR ELLICOTT: Well, your Honour, with respect, that puts the cart before the horse. The question is, is this a court under section 44 – is this a court to which this ‑ ‑ ‑
HIS HONOUR: I know, but there are many indications in the Act, are there not, that it is? First of all, section 152 of the Act says it is a superior court and a court of record; the members of the Commission have the same rank and status as judges of the Supreme Court; they are appointed under the public seal of the State by the Governor; legal practitioners have a right of appearance; the rules of evidence apply when it is the Commission in Court Session; it can punish for contempt; it has jurisdiction in criminal matters. I mean, all these matters indicate it is a court, and the statute declares it to be a superior court of record and carefully distinguishes between the Commission in Court Session and the Commission, and the commissions that are held by members. One can hold a commission as president of the Commission and also a commission as a judicial officer.
MR ELLICOTT: There is no doubt that the cases in this Court have said you have to take the State courts as you find them.
HIS HONOUR: Yes.
MR ELLICOTT: Sometimes they may be exercising judicial power and on other occasions they may be exercising non‑judicial power. The question that arises here is whether something which is truly part of an issue as to its jurisdiction under section 106, whether in determining that matter it will be exercising the jurisdiction of a court, and we say that it would not be. We submit that for two reasons. One is, it is exercising non‑judicial power and, secondly, it is not a court, because of section 179, because its decisions are not appealable, as a court within the constitutional framework is, quite apart from the issue of judicial power of the Commonwealth. It does not exercise on remitter the judicial power of the Commonwealth unless it is a court.
HIS HONOUR: Well, that is true, but what is there in the Constitution or in Chapter III in particular which would stop a State court exercising judicial power and at the same time exercise non‑judicial power? That is the nature of the beast in many cases.
MR ELLICOTT: Yes, and what I am saying is that in relation to the Industrial Commission, it may well be sitting as a court in some matters, but it is not sitting as a court in relation to section 106. That is what I am putting. You cannot simply say, “It is a court, because it can do this, that and the other, and has the trappings of a court”. You have to focus on what it is doing in this particular case, or would be doing, and we say that it would be dealing with a matter – using that in a constitutional sense ‑ which
embraces the issues which this Court would remit to it, and that matter would be determined as part of an arbitral power which was not subject to appeal.
If it is a question of the validity of section 179, well, it is still there. It stands in the face of it being a Chapter III court, because there is no doubt that, with very great respect, what your Honour said in Kable’s Case reflects the commonsense of the Constitution. You cannot have it any other way. It will only work that way. The remitter power under section 44 has been framed in that context, that “We will send it back there, but it will be able to come back to us in due course, given the various hurdles being jumped and the will of the parties and all the rest of it”.
Your Honour, we would submit that, for those reasons, your Honour will keep this matter here, if your Honour is not minded to – and will deal with it here. If it means a trial of facts, then this Court will deal with that. In a sense, this Court, we would submit, is fixed with a problem in this case, because the Industrial Commission is not a court. If your Honour pleases.
HIS HONOUR: I need not hear you, Mr Kenzie and Mr Solicitor.
This is a summons by two plaintiffs in an action commenced in this Court that asks me to state a case reserving certain questions for the Full Court of the Court. The defendants to the action, on the other hand, seek a remittal of the matter to the New South Wales Industrial Commission in Court Session. As a fallback position, the plaintiffs contend that, if there is to be a remitter, it should be to the Federal Court of Australia.
The defendants in the action entered into contracts of employment in Hong Kong with the first plaintiff, Veta Limited, which is a wholly‑owned subsidiary of Cathay Pacific Airways Limited, the second plaintiff in the action. Veta employs aircrews to fly in Cathay Pacific’s airline operations, where members of the aircrew are based outside Hong Kong.
The contracts of employment between the defendants and Veta were entered into on various dates between 1995 and 2000; they were terminated on 9 July 2001. Four of the defendants are based in Sydney for the purposes of the employment agreement and the fifth defendant, although based in Queensland, has a connection with New South Wales in terms of the duties that he has to carry out.
Each of the defendants has commenced proceedings in the Industrial Commission of New South Wales under section 106 of the Industrial Relations Act 1996 seeking variation or avoidance of their contracts that were, as I said, made in Hong Kong. The success of their claims will depend on proof that they perform work in an industry in and of New South Wales. They must also establish that the contract is an unfair contract within the meaning of section 105 of the Act.
Subsequent to the commencement of the proceedings in the Industrial Commission, Veta and Cathay Pacific commenced an action in this Court seeking relief and, as I said, now ask the Court to state a case reserving certain questions for the Full Court.
Question A asks whether, by reason of the Air Navigation Act 1920 and schedules of the Commonwealth and the regulations thereunder and the Civil Aviation Act 1988 and regulations of the Commonwealth, the provisions of section 106 of the Industrial Relations Act (NSW) are invalid and inoperative under section 109 of the Constitution insofar as section 106 purports to permit the variation or avoidance of contracts, whereby a person performs work in the international air transportation industry.
Question B asks whether section 106 of the Industrial Relations Act, insofar as it relates to or purports to relate to the variation of the avoidance of contracts, whereby a person performs work in the international air transportation industry, is wholly invalid and inoperative under section 109 of the Constitution by reason of inconsistency with the laws of the Commonwealth contained in the Air Navigation Act and the schedules and regulations thereunder and the Civil Aviation Act and the regulations thereunder and the Workplace Relations Act 1996 (Cth) and the schedules thereto.
Question C asks whether the international air transportation industry or any part thereof in which any of the defendants perform work in the services of Veta was an industry in and of New South Wales.
Question D asks whether any of the contracts between Veta and each of the defendants under which the defendants performed work in the services of Veta is a contract in respect of which the Industrial Relations Commission has jurisdiction under section 106 of the Act.
Question E asks whether section 106, insofar as it purports to confer jurisdiction on the Industrial Relations Commission of New South Wales to vary or avoid each of the contracts entered into between each of the defendants and Veta, is invalid and inoperative as not being a law for the peace, order and good government of New South Wales.
Question F asks whether, by reason of an affirmative answer to any one or more of the questions posited about the Industrial Relations Commission, it lacks jurisdiction to entertain the claims referred to in paragraph 44 of the statement of facts in the draft case.
Question G asks whether any or all of the questions posited at D to E are matters reserved to the Industrial Relations Commission of New South Wales in Court Session by reason of section 179 of the Industrial Relations Act (NSW).
It is apparent, and indeed it is not contested by the defendants or by the Attorney‑General for New South Wales intervening, that this Court has jurisdiction to hear at least some of the claims brought by Veta and Cathay Pacific under section 76 of the Constitution and section 30 of the Judiciary Act 1903. It is also beyond argument that some of the issues raise constitutional questions.
The principles upon which this Court should determine whether it should state a case or, alternatively, remit a matter to another court of a State or the Federal Court were stated by Chief Justice Brennan in Ravenor Overseas Inc v Readhead (1998) 72 ALJR 671. His Honour pointed out, at 672, that:
The power of remitter contained in s 44 of the Judiciary Act 1903 (Cth) is designed to ensure that this Court is not diverted from its principal functions by the need to hear and determine matters in the original jurisdiction which could properly be brought in an Australian trial court.
His Honour observed that:
parties who seek interlocutory relief, or relief which has to do with the conduct of proceedings in other courts, even if it be based on some constitutional point, ought to seek that relief from a court in which the trial of issues is ordinarily conducted, not from this Court.
The practice of the Court in these matters is also manifested by the statement to be found in the judgment of the Court of Appeal of New South Wales in Commissioner for Railways for the State of Queensland v Peters (1991) 24 NSWLR 407 at 412, where the Court of Appeal stated that the High Court had expressed a preference for the resolution of factual questions at trial, and the completion of the ordinary appellate process, before it considered whether it should embark upon the constitutional question in a case which had been removed into the High Court by an order under the Judiciary Act, but which order had been subsequently vacated.
The parties have agreed on a considerable number of facts which are set out in 71 paragraphs of the draft stated case, but the defendants have made it plain that there are other facts upon which they would seek to rely. It seems to me that some of the important additional facts which they say are relevant to the question of connection with New South Wales concern the internal arrangements between Veta and Cathay Pacific regarding their operations in New South Wales, the interaction between those two companies and third parties located in New South Wales during the course of the plaintiffs’ operations of their business interests in New South Wales. The latter concern, among other matters, passengers originating from New South Wales, travel agents located in New South Wales, hotel facilities in New South Wales, tour operators in New South Wales and similar matters.
As I indicated during argument, a stated case before trial or before the taking of evidence is always an unsatisfactory course. Experience has shown that the stated case does not always capture all the facts that are ultimately needed to determine issues. It is a common experience on stated cases for the judge who stated the case to have to add additional facts to the matter. So the use of the stated case procedure is never one that should be encouraged when there are other ways of determining the facts of the case.
Mr Ellicott rightly points out that his client has a right to have a matter determined under the Constitution, but that right of course is subject to the power of this Court under section 44 of the Judiciary Act to remit the matter to the Federal Court or a court of a State. Standing against the stating of a case and reserving questions is the fundamental principle that constitutional issues should not be decided unless it is necessary to do so. As Justice Kirby pointed out in Residual Assco Group v Spalvins (2000) 202 CLR 629 at 666:
This Court should confine its constitutional elaboration to those matters which must be decided to resolve the dispute between the present parties.
It is quite possible that the constitutional issues which the plaintiffs seek to raise may never be reached in this particular case. That may be because, upon a full evaluation of the evidence, it may appear that none of the defendants was employed in an industry in and of New South Wales. It is not enough that the employees may do some work in New South Wales: see Perrott v XcelleNet Australia Limited (1998) 84 IR 255 at 269. On the other hand, it is not decisive that the proper law of the contract is the law of a jurisdiction outside of New South Wales: see also Perrott at 266.
Given the “facts” as they appear in the draft stated case and the claims in the statement of claim, the plaintiffs seem to me to have strong arguments that the employees in this case did not work in an industry in and of New South Wales. Even if upon a proper evaluation of the evidence it was held that they did work in an industry in and of New South Wales, it is open to the Commission in Court Session in the exercise of its discretion not to make an order in the proceedings: see Savage v Digital Equipment Pty Limited, unreported, 17 May 1999 at pages 12 to 13 of the typescript.
Again, even if the constitutional issues are reached in this case, it seems to me that it is a case where the arguments of the parties would be better understood if the Court had the benefit of evidence rather than the summary of facts concerning that evidence. There does not seem here to be any claim of textual collision between a law of the Commonwealth and section 106 of the Industrial Relations Act. The argument seems to rest on a “covering the field” test. Alternatively, it may depend upon what in the jurisprudence is called operational inconsistency. In the case of a “covering the field” test and in the case of operational inconsistency, it is obviously much better from the Court’s point of view that it is in a position to examine the evidence in detail rather than upon the confined nature of facts stated in a case to the Full Court.
The plaintiffs contend that the Court should not remit the matter, relying heavily on the claim that the Commission in Court Session is not a court for the purposes of section 44 of the Constitution. Mr Ellicott points out that in Minister for Youth and Community Services v Health and Research Employees’ Association of Australia (1987) 10 NSWLR 543 at 559 and following, I expressed the view that the Commission, exercising a not dissimilar power to section 106, is not exercising judicial power.
However, the real question is not whether the Commission in Court Session is exercising judicial power under section 106 but whether it is a court for the purposes of section 44 of the Judiciary Act. There is nothing in the Constitution which prevents State courts being invested with federal jurisdiction, notwithstanding that some or a significant part of their jurisdiction is concerned with the determination of non‑judicial matters.
The Industrial Relations Act (NSW) contains several considerations which point strongly to the Commission in Court Session being a court. Section 152 of the Act declares the Commission in Court Session to be a superior court of record. The members of the Commission have the same rank, title, status and precedence as judges of the Supreme Court of New South Wales. They have the constitutional protection under the Constitution that the Supreme Court judges have. When sitting in court session the rules of evidence and the procedures of a superior court of record apply. Legal practitioners have a right of appearance. The Commission in Court Session may punish for contempt. It also has a summary criminal jurisdiction in criminal proceedings for offences under the Act.
Some years ago in In re an Application by Public Service Association of New South Wales (1947) 75 CLR 430 Mr Justice Williams held that the Industrial Commission of New South Wales as formerly constituted was a court for the purposes of section 40 of the Judiciary Act. This Court has also assumed that the predecessor of the present Industrial Relations Commission was a court exercising federal jurisdiction for the purposes of section 73 of the Constitution: see Gosper v Sawyer (1985) 160 CLR 548 at 556 and Tana v Baxter (1986) 160 CLR 572. More recently in Tszyu v Fightvision Pty Ltd (2001) 104 IR 225, [2001] NSWCA 103, Justice Mason said at paragraph 58 that the Commission in Court Session was a superior court of record and, when exercising jurisdiction under section 106 of the Industrial Relations Act, was exercising judicial power.
Mr Ellicott contends, however, that there are problems of remitting the matter to the Commission in Court Session because there would be a mixing of judicial and non‑judicial functions. However, I do not see that as an impediment to a remitter. If the questions under section 106 involve the exercise of judicial power, no problem can arise. If on the other hand they are not, then arguably this Court had no jurisdiction over them in the first place and all that the Commission in Court Session on remitter would be able to exercise would be the issues remitted that are concerned with the exercise of judicial power.
I do not think that section 179 of the Industrial Relations Act upon which Mr Ellicott relies has anything significant to say as to whether or not the Commission in Court Session is a court. The terms of that section are concerned with the Commission’s judgments and order. They prohibit an appeal being taken against those judgments and orders. If this Court remits the matter to the Industrial Commission in Court Session, as I intend to do, the Commission will be exercising the jurisdiction of this Court. Nothing in section 179 can prevent the present plaintiffs from applying to this Court for special leave to appeal.
Mr Ellicott asks me, if necessary, to refer to any facts that need to be dealt with for this Court to properly deal with the constitutional issues. However, it does not seem to me, for the reasons I have already given, that any assistance would be gained by my pointing to areas which may require further elaboration than is presently to be found in the stated case. As I indicated, I regard the stated case procedure, before the facts are found or evidence taken, as an unsatisfactory procedure. But, more significantly, the constitutional issues that Mr Ellicott seeks to raise may never need to be determined for the reason that he may succeed either on the substantive point that section 106 does not apply or, if it does, that in the exercise of its discretion the Commission in Court Session should not make orders in favour of the plaintiffs. If he succeeds on either of those alternatives, it follows that the constitutional issues will not arise for decision.
In all the circumstances, I consider that the proper course in this case is to remit the matter to the Industrial Commission of New South Wales in Court Session. I would remit the whole matter in accordance with the usual practice and on the usual terms. I certify for counsel.
What do you say about costs, Mr Ellicott? This is a contested hearing. Why should you not pay the costs of this?
MR ELLICOTT: Your Honour, the only matter that I can raise is that we have properly brought the proceedings here. That is not in doubt. The whole matter, using the word “matter” in the sense your Honour has dealt with it, has yet to be determined. It was proper for us to deal with it and the costs of these proceedings should be costs in the determination of that matter. Ultimately it cannot be said that we were in error when we started here and it is really a matter of public policy that this Court should make the sort of order that it has made.
HIS HONOUR: Yes. What do you say about that, Mr Kenzie?
MR KENZIE: Your Honour, the issue is not, with respect, whether Mr Ellicott’s clients acted properly in commencing proceedings in the original jurisdiction of the Court. The issue is to be addressed against a background in which, those proceedings having been properly and regularly commenced, an issue arose between the parties as to what should happen to those proceedings. That issue has been ventilated and determined by your Honour and costs should flow in relation to that, because that is why we have come to Court today and what the activities of counsel before the Court as presently constituted have been all about.
HIS HONOUR: What do you say on the question of costs, Mr Solicitor?
MR SEXTON: …..
HIS HONOUR: I think the proper order is that the plaintiffs should pay the costs. As Mr Kenzie points out, there has been a contested issue. It is a very common practice, indeed almost a universal practice, for parties to consent to matters being remitted to other courts. On this occasion the plaintiffs, for reasons concerning which no criticism can be made of them, have opposed that but, there having been contested litigation and they having failed on it, they should pay the costs. I certify for senior and junior counsel.
MR KENZIE: Your Honour, my junior informs me that your Honour has indicated that the matter should be remitted to the Commission. Of course, it would be taken that that would be the Commission in Court Session.
HIS HONOUR: I am sorry if I said that.
MR KENZIE: We thought that that should be put on the transcript.
HIS HONOUR: Yes. It is the Commission in Court Session. Nothing further?
MR KENZIE: No, your Honour.
HIS HONOUR: Adjourn the Court.
AT 11.44 AM THE MATTER WAS CONCLUDED
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