Western Australian Mint, Ex parte- Re Hodder and Anor

[1996] HCATrans 288

.D.

TRANSCRIPT
OF PROCEEDINGS

AUSCRIPT

Western AustraliaLevel 216 St Georges TcePerth WA 6000Phone [phone]Fax [phone] 

HIGH COURT OF AUSTRALIA

TOOHEY J

No P 25 of 1996

IN THE MATTER of an application for a Writ
of Prohibition and a Writ of Certiorari against:

ERROL RAYMOND HODDER
COMMISSIONER OF THE AUSTRALIAN
INDUSTRIAL RELATIONS COMMISSION

and

AUTOMOTIVE, FOOD, METALS, ENGINEERING,
PRINTING AND KINDRED INDUSTRIES UNION

Ex parte

THE WESTERN AUSTRALIAN MINT

PERTH

10.02 AM, WEDNESDAY, 18 SEPTEMBER 1996

HIS HONOUR:   Mr Cock?

MR R.E. COCK:   I appear on behalf of the applicant.

HIS HONOUR:   Yes, thank you.  Mr Schapper?

MR D.H. SCHAPPER:   I appear for the second respondent.

HIS HONOUR:   Yes, thank you.  I have been informed by the Australian Government solicitor for the first respondent that the first respondent does not wish to be represented at the hearing of this matter and will abide by any order save as to costs of this Court and if remitted, of the Industrial Relations Court of Australia.  Yes, Mr Cock?

MR COCK:   Thank you, your Honour.  Your Honour, this is a motion dated 23 April this year for writs of prohibition and certiorari directed towards the Commissioner.  It is supported by an affidavit of Mr King, sworn 11 April 1996, which is in two volumes, your Honour, essentially constituting a summary of the proceedings before the Commissioner, together with the transcript, some relevant exhibits, a copy of the decision of Commissioner Hodder and a copy of a decision of a Full Bench of the Commission, to which a statutory appeal was taken but unsuccessfully so. 

There is also an affidavit dated 4 June of this year by Mr King, a supplementary affidavit, the purpose of which is to persuade your Honour in the event that we are successful in obtaining order nisi, to persuade your Honour not to remit the matter to the IR Court as is usual, but rather, in our submission, to send the matter directly to the Full Court of the High Court.  Your Honour, we have prepared a brief outline of our submissions which I think should have been handed up recently.  The applicant is a Western Australian statutory corporation.  It carries on rather unique functions in Australia in that it mints, makes, buys, sells and otherwise deals in coins and other artefacts of precious metals.

There was some evidence led before the Commissioner which I think was not controverted that there are a couple of companies which also refine gold and some which do some minting, but the process undertaken by the applicant is rather unique itself.  The conditions of the employment of employees at the Mint, in particular those covered by the second respondent, have always been dealt with by common law contract.  They have neither been dealt with by awards of the Federal Commission or the State Commission. 

The history disclosed by the evidence before Commissioner Hodder was that there had been some discussions between the union and the offices of the applicant in about 1993, whereby the union was seeking to advance the conditions and wages of employees, its members in the mint, and those negotiations, it seems on the evidence, broke down.  Your Honour would be aware generally that improvements in wages and conditions are generally subject to principles set out in orders of the Australian Industrial Relations Commission and it seems the parties were seeking to negotiate improvements under those principles, although on one view, perhaps, were not strictly bound by them. 

Be that as it may, the evidence discloses that the national secretary of the respondent, on 9 March of 1995, sent a letter of demand including a log of claims to the applicant, and it essentially required that those conditions be given to its members within 7 days or in the result the application would be made by the second respondent to the first respondent for a determination as to the existence of an industrial dispute.  The log of claims was ignored by the applicant.  The reasons for that are found in the evidence, but essentially it considered that it was a ridiculous request and made no contact with the then applicant union.

Accordingly, proceedings came on before the first respondent on the 4th and 5 July last year and subsequently in August last year, to determine whether in fact an industrial dispute extended beyond the limits of one state, concerning the Mint, existed.  The second respondent called Mr Hodgson, an assistant secretary of the second respondent union, and he was questioned firstly by the advocate on behalf of the union and secondly by counsel for the employer, the applicant today, in relation to the motivation for the service of the particular letter of demand and the log of claims.  Now, we have sought to summarise the effect of this evidence.  Paragraph 11 of Mr King's affidavit, sworn 11 April, summarises it in a way in which, with respect, we assert is sustained by a fair reading of the evidence.

HIS HONOUR:   Mr Cock, you opened your submission on the footing that I should consider first whether an order nisi should be granted.

MR COCK:   Yes.

HIS HONOUR:   This is what I understood you to be saying.  And then, in the light of decision on that matter, consider whether the application should remain in this Court or be remitted to the Industrial Relations Court.

MR COCK:   Yes, your Honour.

HIS HONOUR:   Need I take that first step?  Is there any reason why the matter, in its present form, should not be or could not be remitted to the Industrial Relations Court?

MR COCK:   There is no reason why it could not be remitted.

HIS HONOUR:   It is not necessary for the Court to grant an order nisi in order to remit the matter.

MR COCK:   No.  No.  No, I understand your Honour.

HIS HONOUR:   So that really focuses the question more directly on whether the matter as it presently stands, an application for prerogative relief, should remain in this Court or go to the Industrial Relations Court?

MR COCK:   Your Honour is, with respect, correct in that regard, yes.  It is our respectful submission that if your Honour was to remit it, it would be probably an unsatisfactory means of resolving the contentions that we seek to advance in the context of early decisions of the IR Court.  And perhaps I should deal with it the way your Honour has respectfully suggested.  By the second affidavit of Mr King, dated 4 June, there is a reference to a number of cases which are presently pending before the High Court.  The first one, perhaps, we could conveniently refer to as the Queensland matter.

That was a matter in which, I think, your Honour was a member of a three-member bench of the Court which, on 5 February this year, granted leave to appeal to the High Court from the Full Court of the IR Court.  That case was Attorney-General of Queensland and Riordan.

HIS HONOUR:   Yes.  I am familiar with that.

MR COCK:   Your Honour may recall the argument in that case essentially turned, it seems to us, on the extent to which the IR Court had itself confused, I think was the way it was advanced, confused the concept of genuineness in relation to the dispute, and the concept of the fanciful nature of the log itself.  And the members of the IR Court from which that application was taken, on the submissions advanced by the employer parties at least, had not properly applied the provisions, or sorry, the principles espoused by the Court in the State Public Service Federation decision.  And it was argued that there was probably an over-exuberance to confine the operation of that judgment of the Court to very peculiar factual circumstances, and that the principles which had been set out in that decision really had no application generally.

I think the argument had gone along the lines that that case was dealing with a log of claims which only had two or three claims in it, a couple of demands.  It was not a comprehensive log, it was obviously an unusual-looking thing and as a consequence of that it was said, as I understand it, that the present case and others could be distinguished.  Now, it is our respectful submission that the bench of the Industrial Relations Commission from which this application has been brought, like the IR Court from which that application had been brought, had not fully understood the concept of genuineness in the sense that it was used by members of the Court in SBSF, and it was really for that reason we felt that it would be proper to send this matter through to the High Court also, rather than have it dealt with by an IR Court applying the same principles which had given rise to the decision in Riordan, which itself is the subject of appeal before this Court.

HIS HONOUR:   Well, I understand that, because the two cases that are presently pending before the Court, as you obviously appreciate, came by way of appeal after an application for leave to appeal from the Industrial Relations Court.  Now, the question really is, I suppose, why in the disposition of those appeals, should the Court also be faced with perhaps a number of applications, of comparable applications, which have not passed through the ordinary processes of Industrial Relations Commission, Industrial Relations Court?

MR COCK:   Yes.  There is one such, your Honour, which is pending, as I understand it, before the High Court, a matter that comes from South Australia, in which a matter had been remitted very much in the normal course to the IR Court, where the South Australian Chamber of Commerce was representing a number of employers in the retail shop industry.  It is the one to which reference is made at paragraph 5 of Mr King's affidavit, dated 4 June ‑ ‑ ‑ 

HIS HONOUR:   This is the Lamsoon and Action Food Barns?

MR COCK:   ‑ ‑ ‑ Lamsoon case.  Now, that was a case very much like ours, your Honour, where an application had been brought for prerogative relief.  A judge had in fact remitted the application to the IR Court.  In fact, the proceedings had actually commenced before the IR Court and the IR Court had indicated in very early part of the argument that it was going to take a similar approach to what it had taken in Riordan.  And the applicant then sought an adjournment of those proceedings, then in fact had the matter brought on before the High Court in Canberra, before, I think, Kirby J, and his Honour then removed the remitter.

Now, our case is very much like that South Australian case, and our concern is the one that arose, in fact, in the South Australian application, that in fact the IR Court took a very strong view of the correctness of its earlier decision, which no doubt it is bound to do.  Perhaps not bound to do, but wont to do, and we do not want to be faced with the embarrassment of having to do very much like the South Australian applicant did and simply seek to have the matter brought back before the High Court.

HIS HONOUR:   On the other hand, in April Gummow J, I think in Attorney-General for Queensland against the Commissioner, or against Commissioners of the Industrial Relations Commission, remitted the matter to the Industrial Relations Court.

MR COCK:   Yes.

HIS HONOUR:   I mean, I can see the argument that as a matter of convenience, if the High Court were to deal with a number of these applications, either at the same time or about the same time as it dealt with appending appeals, there could be some saving in time and cost.  On the other hand, there is a process that is ordinarily followed and that is Industrial Commission, Court and then to the High Court if appropriate, so it seems to me that the question here is:  are there circumstances that warrant bypassing that ordinary process, particularly when although it is the scope, I suppose, and the operation of State Public Service Federation that is involved here, these cases do tend to turn to some extent on their facts, and by facts I include, of course, the wording of the log of claims and the particular demands that are made upon the employer.

MR COCK:   We see the argument against us very much being that this is a question of fact and we certainly do not refute that or attempt to do so.

HIS HONOUR:   Otherwise there is a risk, I think, the High Court simply becomes the next step, as it were, from the Industrial Relations Commission, bypassing the Industrial Relations Court.

MR COCK:   Well, obviously that would not be a good result and not one which we would pursue in any event.

HIS HONOUR:   It is not one that I would encourage.

MR COCK:   But I make the application.  It is sustained essentially because of the experience that the South Australian application met when a very similar submission was put before the IR Court.  We recognise, however, your Honour, and accept that the facts in this case are particularly strong, in our respectful submission, that the evidence of Mr Hodgson was particularly strong.  In fact, stronger in our submission than the facts in the South Australian or even the Queensland case, and it may well be that we would succeed in our application. 

We would be more confident, with respect, than other applicants because of the strong evidence that was produced to allegedly support the log, that perhaps the factual issues upon which our application will turn are perhaps more stark, and I perhaps argue a little against myself, your Honour, by making this submission, but this may well perhaps not be a case where it is so fine that it really does need to go to the High Court for a resolution; that in fact one might have some confidence that the IR Court could distinguish its earlier decision from this and we might be rather confident that we would get the relief we seek from the IR Court.  But I make that for the sake of completeness, your Honour.

[10.17am]

.D.
HIS HONOUR:   Yes?
MR COCK:   Our outline of submissions invites the reader, and indeed I will probably take your Honour through it, that the principal evidence adduced by the union, the second respondent, and it is set out in paragraph 7 of our outline of submissions itself referring to paragraph 11 of Mr King's affidavit to which I was about to take your Honour. 

HIS HONOUR:   That is paragraph 11 of the original affidavit.

MR COCK:   Paragraph 11 of the first affidavit, that is correct, your Honour.  It is said in paragraph 11 of Mr King's affidavit sworn in April that in cross-examination Mr Hodgson made it clear that the purpose of the service of the letter of demand and log of claims on the Mint was to obtain the jurisdiction of the Commission in order to improve the union's members terms and conditions with the Commission's assistance in negotiating an enterprise bargaining agreement.  The point that we wish to make is that at no stage was there any evidence, in our respectful submission at least, that the applicant before the Commission, the second respondent now, genuinely sought what was in the log itself.

It was on Mr Hodgson's evidence stark that was perceived to be a process or a mechanism to enable the Federal Commission to exercise jurisdiction in relation to the intrastate dispute that had arisen as a consequence of the failure to resolve those enterprise bargaining negotiations.  None of these arguments, however, your Honour, are going to persuade your Honour as to whether to remit or not.  These arguments, of course, go to the second question in the order that your Honour framed them as to whether or not an order nisi should be granted. 

And if your Honour is minded to remit the matter, in any event, it would not be a prudent use of time, I think, to further develop the arguments that ‑ ‑ ‑ 

HIS HONOUR:   I think that is a very sensible approach, Mr Cock.

MR COCK:   If your Honour please, those are our submissions.

HIS HONOUR:   Yes, thank you.  Mr Schapper?

MR SCHAPPER:   Your Honour, our position is that if your Honour examines the merit of the application it will be seen that there is none in it and the application should simply be dismissed.  Now if your Honour is not going to embark upon an examination of the merits of the thing, then we suggest that it is appropriate that it be remitted to the IR Court.

HIS HONOUR:   Well, while the question of remitter is a live issue, then I do not propose to embark upon a consideration of the merits of the application, Mr Schapper.  It would only be if it was apparent that the matter should remain in this Court that the question of the merits of the application would arise.  So I think really, as Mr Cock has done, you should focus upon the question of remitter. 

MR SCHAPPER:   Well, I am not quite sure what considerations are relevant to that question, your Honour, other than to perhaps go to the evidence and demonstrate that this is simply a case which will turn on its own facts.  It will simply turn on an - there are two grounds upon which the application is brought and I have set those out in my outline of submissions.  Firstly, that the demand and log were served with the sole principal purpose of enabling the Commission to exercise jurisdiction.  And that is simply a question of fact that is resolved by looking at the evidence.

And we say that if one looks at the evidence one will see that that is simply not a maintainable proposition.  The second ground upon which the order is sought is that the log is fanciful and incapable of creating a genuine dispute.  Now again the way in which that question is resolved on the authorities is to simply look at the log and determine whether it is fanciful or not having regard to current industrial standards.  And we say that is a simple exercise to look at the thing.  It will be seen to be an extremely modest log. 

It could not possibly be described as fanciful.  It is not arguable, in our submission.  That is why we say that the matter simply should not get past this stage.  Now if the question is whether it should be remitted or not, our view would be that it should be remitted because if it goes to the Full Court of this Court, then the resolution of this case is simply going to turn - given the grounds on which the order is sought, is simply going to turn on an examination of the evidence in this case. 

HIS HONOUR:   Well, that of course is the argument in favour of remitter.

MR SCHAPPER:   Yes.

HIS HONOUR:   Namely, that in this category of cases it may be very difficult to enunciate a principle which is going to dispose one way or another of this type of case.

MR SCHAPPER:   The principles are well established, your Honour.  And the problem in all of these cases is to apply those principles to the evidence and come to a conclusion.  What we say is that - and I do not know if your Honour is minded to do it now.  But it is not a large case in terms of the evidence that is relevant to the grounds upon which the order is sought.  And it would not take long to examine that evidence.  And our submission will be that if one does that one will see that this is not an arguable case. 

HIS HONOUR:   Well, as I say, Mr Schapper, while the question of remitter is in the air, it seems to me that that really should be disposed of rather than turning to the evidence itself and dealing with this on the footing as to whether an order nisi is warranted.

MR SCHAPPER:   Well, we would say then, your Honour, the matter should be remitted because, on the simple basis that I have outlined - that is, given the two grounds upon which the order nisi is sought, they both being grounds which essentially turn on the evidence and are not susceptible to disposition by exposition of any particular principle, but simply rely or fall to be determined by the application of well established principles to the evidence and an analysis of that evidence.  That being the case, the matter should be remitted.

HIS HONOUR:   Yes, all right.  Thank you.  Mr Cock, anything in reply?

MR COCK:   The only observation in reply, your Honour, is that the logs which are already proceeding before the Court are, as I understand it, very similar to the present and it cannot be right for my learned friend to assert with any validity that there really is not much in these particular logs.  I mean, very similar logs themselves are actually pending before the Court.  But we would have rather thought, as Mr King's affidavit suggests, that having a log of this type might allow the Court a greater opportunity to give effective assistance to the parties by considering as part of the present applications a wider factual circumstance so as to give greater guidance to the litigants, apparently, the SPSF case itself not having achieved that result.

And it was really our intention to provide the Court with a greater foundation of fact if it was necessary to properly consider the implications of the genuineness issues and the question of the so-called doctrine of ambit and the issue as to whether or not it is important or not that a union is actively pursuing what is in the log or whether the log itself can simply take the place of being a document setting no more than the outward limits upon which any ultimate arbitration will arise.  And so the only observation I have to make is that, your Honour. 

HIS HONOUR:   Yes, thank you, Mr Cock.  The immediate question is whether this matter should be remitted to the Industrial Relations Court of Australia.  In the ordinary course there would be a remitter to that Court.  The applicant argues against that course.  It does so on the ground that the issues the subject of the application were considered by the Industrial Relations Court in two matters in respect of which leave to appeal to this Court was granted on 5 February this year.  They are Victoria v Australian Industrial Relations Commission and Attorney-General for Queensland v Riordan.

The submission is that the present application could conveniently be heard at the same time as those two appeals with a saving of time and cost.  On 4 April this year, in proceedings for prerogative relief brought by the Attorney-General for Queensland against Commissioners of the Industrial Relations Commission and said to raise similar questions, Gummow J remitted the proceedings to the Industrial Relations Court.  On the other hand on 19 April, in proceedings for prerogative relief brought by Lamsoon Australia Pty Limited and Action Food Barns and also said to raise similar questions to those raised by the two pending appeals, Kirby J revoked earlier orders of remitter so that the proceedings might remain in this Court. 

The pending appeals involve the operation of the principles enunciated by this Court in Re State Public Services Federation; Ex parte Attorney‑General (WA) (1993) 178 CLR 249. So, it is said, does the present application. Now, there may well be other cases in which the application of the principles in Re State Public Services Federation will need to be considered. That will be the task of the Industrial Relations Commission and the Industrial Relations Court. No doubt it would be convenient to the present applicant to by-pass the Industrial Relations Court and proceed directly to this Court. And there may be situations in which that course is appropriate, though, in my view, those situations will be exceptional. In disposing of the pending appeals this Court will have to consider the factual situations relevant to those appeals and the evidence, or some of the evidence, including the terms of the logs of claims.
A decision on those appeals is not likely of itself to determine this application and indeed the applicant wishes to present its own case for prerogative relief. 

To add unduly to the matters presently before the Court in relation to Re State Public Services Federation, when the factual situations and the evidence are inevitably different to some extent, tends to undermine the role of remitters and the respective functions of the Industrial Relations Court and this Court.  For those reasons I propose to order that the application be remitted to the Industrial Relations Court and I take it that that should be to the Western Australia Registry.  That will be the order.

And I take it that that should be to the Western Australia Registry?

MR COCK:   Yes, your Honour.

HIS HONOUR:   Mr Schapper?

MR SCHAPPER:   Yes, your Honour.

HIS HONOUR:   That will be the order.  Thank you, Mr Cock.  Thank you, Mr Schapper.  The Court will adjourn.

AT 10.29 AM THE MATTER WAS ADJOURNED
INDEFINITELY