C2001/4710, Transcript of Proceedings [2001] AIRCTrans 2564 (2 October 2001)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

GIUDICE J, PRESIDENT
SENIOR DEPUTY PRESIDENT WATSON
COMMISSIONER GAY

C 2001/4710

s. 45 appeal by Coal & Allied Operations
Pty Limited against decision to stay orders
of Vice President Ross on 9 and 14 August 2001
in C2001/3964 re stay application orders -
termination of employment, stay application and hearing

SYDNEY

9.35 AM, TUESDAY 11 SEPTEMBER 2001

PN1

GIUDICE J: Could have appearances please?

PN2

DR JESSUP: If the Commission pleases, I seek leave to appear with my learned friend, Mr Wood, for the appellant.

PN3

MR B. DOCKING: May it please the Commission, I seek leave to appear together with Mr E. Endacott for the CFMEU respondent employees and in addition with Mr D. O'Sullivan of Turner Freeman for Mr Clark, the AMWU respondent employee.

PN4

GIUDICE J: Yes, those applications are granted.

PN5

DR JESSUP: This is an appeal from an order made by way of stay in an early appeal by Vice President Ross on 14 August.

PN6

GIUDICE J: Dr Jessup, we would like to hear from you an outline of your submissions in about five minutes, so mentioning the important points, as it were and then we would like to hear from you, Mr Docking as well, shortly. Very shortly. So that we have an appreciation of what the issues are.

PN7

DR JESSUP: Yes, well might we hand up an outline which can probably be read in five minutes, your Honour?

PN8

GIUDICE J: Thank you.

PN9

DR JESSUP: I apologise that the outline doesn't deal with the question of leave, but I can say very shortly what we want to say in relation to leave. Neither does the outline deal historically and chronologically with how it arose but I couldn't do that in five minutes in any event, your Honour, so assuming the Commission knows more or less where we are coming from and where the parties have been, what we say is that the Vice President fell into error in treating considerations of balance of convenience as being in some different category in dismissal cases from other cases in which arbitrated awards are made.

PN10

Although he granted a stay, having held that there was an arguable case on jurisdictional question, he may have, and I say may have because his reasons weren't fully developed in this respect, he may have carried through into the imposition of condition number five or the making of order number five those sorts of considerations, namely that where you have a termination case and a reinstatement order the balance of convenience is not properly achieved by maintaining the status quo prior to the imposition of the new legal obligation as much as it is in an award variation case. And so we say that his Honour fell into error in that regard.

PN11

The second source of error, we point to, is his Honour's failure to give any reasons or explanation as to why he made order number 5. Paragraph 41 of his reasons contains some explanation as to why he stayed the appellant's obligation to make back payments which would have been - which would extend over a period of some two and a half years but we don't find in his reasons any explanation for why he imposed upon our client the obligation to make payments in advance of the re-establishment of any employment situation or in advance of any effective reinstatement.

PN12

We then say, putting this very briefly, as invited, that it's not clear what kind of scenario his Honour had in mind when he imposed this obligation on the company which was conditioned, of course, upon the workmen in question being ready, willing and available, to work. On one possibility, it might have been that his Honour had in mind that the company, in order to test the issue about ready, willing and available, would have to invite each worker to return to work.

PN13

If that was the scenario it had in mind, then that's directly inconsistent with his decision to grant a stay of the reinstatement orders in the first place because once someone is invited to return to work the contract is reformed, the employment relationship is re-established and all the normal incidents that flow from that do flow.

PN14

On the other hand, if his Honour had in mind that our client would pay people for not being at work, as his later orders adjusted, subject to all necessary adjustments to other income, of course. But putting that to one side, if his Honour did have in mind that we would pay these people for not being at work then we would say with respect to his Honour that that is unsound in principle and the Commission wouldn't make an order of that kind simply to pay people for not being at work. But significantly in that respect, there is the question of recoverability which his Honour simply didn't address.

PN15

Now I've had a very quick look at my learned friend's rather more fulsome outline that he gave me about five or ten minutes ago and it appears that he will be submitting that whatever happens the payments ordered by his Honour to be made cannot be recovered. Now that means that what we have here - and we for our part think there is sufficient doubt about that question to give the Commission real concern. So what we would have then if the payments couldn't be recovered, is an interlocutory order in the nature of a stay which by admission of the respondents to the appeal can have permanent effects. That is to say, it is an egg which once scrambled can't be unscrambled.

PN16

Now that goes against the general principle of restitution of a successful appellant to his or her original position which the courts apply and we have intended today to explain to the Commission what happens in that respect. But for our part, the assumptions which underlie Vice President Ross's order appear to be that our client will pay these people, will not get the money back and those payments will be not for work done but rather simply the price which we have to pay, a permanent price for appealing against the decision.

PN17

Now we are subject to these orders in circumstances in which the Vice President has held that there is an arguable case and it's on a question of jurisdiction. Now in our submission, particularly in a case in which for one reason or another these people have been out of work for about two and a half years or more and if you want to look into those reasons you don't have to go any further than the fact that there were 11 applications that had to be processed at the one time by the Commission.

PN18

But particularly, given that background, we would submit that the proper application of the Commission's normal practices would be to say, well, we will simply hold the position for another few months or whatever may be necessary in order to have the appeal heard without doing anything that can't later fairly be undone because the rights of the parties, having been re-established on an interlocutory basis, couldn't we submit be equitably put back, if our client should succeed on the appeal.

PN19

GIUDICE J: Dr Jessup, has the appeal been listed?

PN20

DR JESSUP: Yes, it has, your Honour.

PN21

GIUDICE J: For what date?

PN22

DR JESSUP: End of October, beginning of November. I think, your Honour, the 31st and the 1st and the 2nd.

PN23

GIUDICE J: Yes.

PN24

DR JESSUP: And I believe that directions have been given for the filing of full written submissions prior to those dates.

PN25

GIUDICE J: Halloween?

PN26

DR JESSUP: I'm an anglophile when it comes to things like that, your Honour.

PN27

COMMISSIONER GAY: I think it is a trans-pacific illusion more than heading in the other direction.

PN28

DR JESSUP: For my own part, I would have said, just a little bit before Guy Fox, your Honour. That is the very broadest five minute thump nail sketch I can give but shall I deal with the question of leave at this stage, your Honour.

PN29

GIUDICE J: I don't think it is necessary, Dr Jessup, thank you. Mr Docking?

PN30

MR DOCKING: I will hand up an outline but just highlight parts without asking the Full Bench to read all the parts of the outline. Paragraph 1 of the outline summarises the contentions advanced in opposing the appeal and also asking that leave to appeal should be declined. The first point is the onus was always on the appellant employer to establish a proper basis for its stay, fair to all parties. The second point is, Vice President Ross had an absolute and unfettered discretion as to granting or refusing a stay as to the terms upon it which it was granted.

PN31

The third point, his Honour, the Vice President was correct to weigh consideration of this as to balance of convenience and the rights of both parties to specify terms that were appropriate to fairly adjust the interests of the parties. Even if the employer succeeds in its remedy appeal it will most strenuously be resisted. In the absence of an order, the employees cannot be required to repay any fortnightly payments. If I can pause there, as developed later in the outline, it is not admitted that there is no prospect of the employer recovering moneys which are paid under the conditional stay.

PN32

There is reference to the authority which appears in a lot of practice books and certainly applied by the Court of Appeal, namely the Attorney General v Emerson and Others (1889) 24 QBD 56. The reference I'm presently referring to is page 11, paragraph 17D of the outline:

PN33

If the employer succeeds on appeal, the employer can seek to again raise the matter with the Full Bench in the substantive appeal proper.

PN34

And that is a proposition which is set out in that English case as long ago as 1800s. Returning to the outline on page 2, there is a suggestion that there is no prejudice to the employees in the meantime, now that is plainly wrong. Part of the material relied upon in the stay included the stigma of these employees being labelled in a publication as "deadwood" and that allegedly they were called, "or deficient performers" in terms of their work and they were therefore terminated by the employer and the evidence was referred to in the stay which went to that point.

PN35

Finally, the evidence on the stay was uncontested in any evidentiary sense, is that for the Hunter Valley One operations, there is approximately 100 to 110 permanent positions at Hunter Valley One and therefore it means there is no relevant problem of embarrassment. This is the evidence from Mr Jordan, an official of the CFMEU who was not required for cross-examination. Where consistent with interlocutory practice, he sourced that evidence, both by relying upon employer records and admissions of employees of the employer.

PN36

GIUDICE J: What is this submission directed to, Mr Docking?

PN37

MR DOCKING: Your Honour it is directed as to, first there is no appellable error because what was involved here and I can best pick it up if your Honour looks at page 3 of the outline, there is a reference to the Full Bench in Edwards v Telstra Corporation Limited and it picks up two points. First, the discretion for a stay in section - - -

PN38

GIUDICE J: What do you understand to be the error that is alleged?

PN39

MR DOCKING: Your Honour, there is the notice of appeal. The way I read that is, it is really trying to challenge a discretionary judgment which is really not susceptible to challenge under House v King principles. There really was an unfettered discretion available to his Honour, the Vice President. Now, I must accept Dr Jessup did contact me yesterday and foreshadow an employer application to amend the grounds of appeal to include an allegation in effect of a lack of adequacy in reasons. Now I am formally instructed to oppose that amendment if it is sought by the employer for its notice of appeal.

PN40

GIUDICE J: Mr Docking, if the appeal is fully successful, are your clients going to repay any moneys which currently are liable to be paid under this order granted by Vice President Ross?

PN41

MR DOCKING: When your Honour says, fully successful, that I assume obviously means from an employer perspective.

PN42

GIUDICE J: From the point of view of the appellants, yes.

PN43

MR DOCKING: At this stage, I don't have any instructions concerning giving an undertaking that moneys will be repaid and might I say, as the Vice President pointed out when the terms of the stay were further amended on 14 August, 2001, it was not a point taken on 8 August, 2001 by the employer. In other words there was no seeking of such an undertaking or an agreement from the employees and that is something that is developed in the outline that, consistent with well established Full Bench principles of this Commission, it is not up to this Appeal Bench to try to remedy the deficiencies in the way the case is conducted below by the employer.

PN44

It was always a matter of discretion, consistent with the cases that I have set out in the outline as to whether any such undertaking would be required. There is no invariable practice that such an undertaking is required and to hold that there is would in effect remove what is a discretionary decision based on impression and judgment under section 45(4) and that very type of argument was rejected in the English case in the late 1800s and said it would be in effect an error to say there is an invariable practice which fetters the discretion. The simple answer is that 45(4) does not say so.

PN45

The other point can I just confirm that is relied upon in terms of the grounds in the notice of appeal is a very conventional approach of Full Benches set out in page 3 of the outline in the third italics paragraph where it says:

PN46

In order to warrant a decision granting leave to appeal, more is usually required than simply establishing a case that might have persuaded the Full Bench to exercise the discretion in another way as if the matter is being considered at first instance.

PN47

I appreciate, your Honour, the present indicated of a desire to outline in short form the position of the respondent employees, that is but the thumb nail sketch.

PN48

GIUDICE J: We intend to adjourn for a few moments. I would like you to get some instructions on the matter I asked you about, Mr Docking. We will adjourn until 10 o'clock.

PN49

MR DOCKING: I should indicate that I'm in this difficult position. I have Mr Clarke present, one of the 11 respondent employees but I have no other respondent employee. Mr Endacott raised with me and it was appreciated and I think it was as a result of some correspondence of Mr O'Sullivan, that the venue was shifted from Melbourne to Sydney but the period - - -

PN50

GIUDICE J: That was to accommodate your clients, Mr Docking.

PN51

MR DOCKING: I accept that, your Honour, but the logistics meant what traditionally has happened is a bus is organised to get people down that the timeframe didn't permit and that organisational - - -

PN52

GIUDICE J: So, we could have sat in Melbourne.

PN53

MR DOCKING: That is a matter that your Honour can pass that comment upon. I was just told that this morning. I should note previously and including at the stay, there have been significant numbers of employees present including both those in the 11 and those in the greater pool of 108 plus the various partners and the like and certainly that was the case when the matter was heard again on 8 August.

PN54

GIUDICE J: I understood that and that is why we decided to sit in Sydney at some inconvenience and expense to the taxpayer as well. That this has been a fruitless manoeuvre is, I suppose, is a matter for regret but it probably can't be helped.

PN55

MR DOCKING: I wouldn't say with Mr Clarke being present. He is someone who has diligently followed these proceedings.

PN56

GIUDICE J: Well, he is a beneficiary. Well, we need to have an indication from you, Mr Docking as to when you can get those instructions?

PN57

MR DOCKING: Yes, I will have to have some inquiries made.

PN58

GIUDICE J: Yes. How long will that take you?

PN59

MR DOCKING: If your Honour will bear with me. Your Honour, other than the generic, it shouldn't take too long. I cannot advance with any more precision. I should note now that in terms of the practical effect of the present stay orders, there are three out of the 11 who have effectively been excluded. Two expressly so, namely, Mr Bega and Mr Hebby. Additionally, Mr Slade is excluded because he is currently on worker's compensation payments.

PN60

I also understand in terms of the practical effect of the orders, that presently Mr Clarke - I should say, Mr King and Mr Cox have not sought to suggest that they meet one of the pre-conditions, namely, ready, willing and able. The position in terms of Mr Clarke, Mr Bashford and Mr Noel Adam is that they have some employment but in at least two cases, it is of a casual type. Mr Clarke consistent with his evidence on the stay is in a precarious day by day position.

PN61

He has been told that he has another week at the mine he is apparently working at but there is a real expectation that may close or he may not be required. In terms of employees who would fully benefit from the present orders, they would be Mr Brennan, Mr Power and Mr White. So, if there be a limited pool, I will attempt to get some instructions of what your Honour has raised.

PN62

GIUDICE J: We are going to adjourn until 10.15.

SHORT ADJOURNMENT [9.57am]

RESUMES [10.18am]

PN63

JUSTICE GIUDICE: Mr Docking?

PN64

MR DOCKING: Thank you, your Honour. Mr Endacott has attempted to contact those employees upon whom it was thought the present orders have practical impact. He has spoken to each of Mr White, Mr Power and Mr Adam. I can confirm the position of those successful respondent employees is that they will not give an undertaking to repay the money. The common theme is that they will need to survive and live on that money in the meantime, in other words, it will be spent on cost of living and the like. A number of them have made the point that they are ready, willing and able to work and be paid accordingly.

PN65

So far as Mr Steve Brennan is concerned I regret that he was unable to be contacted. However, both Mr Endacott and Mr Jordan of the CFMEU have previously spoken about his personal circumstances. They are aware, and I think reasonably and safely apprehend, that he would be in the same position as the other three employees I first mentioned. Namely there would not be an undertaking agreed to and that the money would be required to meet the cost of living and to survive. They are well aware of his personal circumstances from various dealings with Mr Brennan.

PN66

Turning to Mr Bashford, I am instructed that he is not willing to give an undertaking. It seems that there may be no make-up pay for him or at best in the range of $100 to $150 a week. He is otherwise presently employed so he is in a different class to the first four I mentioned. Mr Adam, I should confirm, has some work which varies on a week or fortnightly basis and some fortnights he would earn not a great deal and other fortnights he would earn more but, never to the level of remuneration he would be entitled to under the - I am sorry, there are some fortnights where there may be no make-up pay required. It seems to fluctuate depending upon his requirement to attend other employment.

PN67

Turning then to Mr Clarke, I am also instructed that he is not in a position to give an undertaking to repay the moneys to which he is entitled under the conditional stay. Again, he apprehends he will need it for cost of living and the like. Members of the Full Bench would have seen from his unchallenged statement in the proceedings, he pointed out the financial difficulties and the prejudice he has experienced since his termination by the employer at Hunter Valley No 1.

PN68

I confirm that, at the moment, there may not be any make-up pay required for Mr Clarke but that is contingent upon whether his present job at a particular mine exists next week or in the very near future. He has been told there is at least one more week to go but he remains in a precarious day-by-day or short term positions where he may be unemployed very shortly.

PN69

In those circumstances, your Honours, Mr Commissioner, the position taken by the applicants is for the employee respondents is that the undertaking is not forthcoming, it will be a matter for the Full Bench after hearing full argument if it believed there is appealable error in the conditional stay orders made by the Vice President. I assume, your Honours, Mr Commissioner, have his Honour Vice President Ross' last amended orders which were only issued at the end of last week, namely 7 September 2001.

PN70

JUSTICE GIUDICE: Mr Docking, let me just test the position. Should the appellants be successful in their appeal, Deputy President Leary's orders would be quashed and the legal entitlement which absent the stay order the respondents currently have, would be extinguished. Do you accept that those are the results of the hypothetical success of the appeal?

PN71

MR DOCKING: Other than nothing would extinguish the entitlements under the stay order in the interim period subject to the Full Bench hearing the substantive appeal deciding otherwise. I accept it is a problematic issue and that is why in the outline I refer to the English authority which does leave open, in the context of stays, the option of the unsuccessful party on the stay raising the matter again on appeal.

PN72

JUSTICE GIUDICE: No, I am rather looking to the end result of the litigation. If the end result, after the stays and the appeals and whatever else might follow, is that there is no legal entitlement to those moneys it is your clients' position that they would not repay those moneys?

PN73

MR DOCKING: I am instructed, your Honour the President, there is no undertaking or agreement to repay those moneys.

PN74

JUSTICE GIUDICE: I understand that.

PN75

MR DOCKING: Hypothetically speaking I dare say given the harsh reality and personal circumstances of some of these successful respondent employees the funds will have been spent in supporting themselves and their families.

PN76

JUSTICE GIUDICE: Yes. Thank you Mr Docking.

PN77

Thank you for waiting, gentlemen. We would like to discuss this appeal with counsel in our chambers and we'll adjourn now for that purpose.

SHORT ADJOURNMENT [10.28am]

RESUMES [11.05am]

PN78

JUSTICE GIUDICE: Dr Jessup?

PN79

DR JESSUP: If the Commission pleases, could I take you back to our outline, I would anticipate, with respect, that the Commission might readily appreciate the propositions that we make within the first three paragraphs or so of the outline, based as it is upon the essence of the arbitration function, distinct from a judicial function under the Constitution. Whereas the judicial function declares existing rights the arbitration function creates new rights and therefore, it was not until the order made by Deputy President Leary that those new rights were created in this case. We would refer the Commission to those first three paragraphs of our outline in that regard.

PN80

The reason our outline contains challenge to the failure of Vice President Ross to provide reasons is substantially because we came away from this proceeding before his Honour without knowing the basis or the assumptions which underlay the order which he made for the continuation of fortnightly payments by our client. If the Commission would look at his decision of 9 August and turn to paragraph 41 of the decision the Commission will see what we mean.

PN81

His Honour said:

PN82

In the circumstances of this case I am satisfied that the balance of convenience favours ...(reads)... on account of lost remuneration.

PN83

Paragraph 3 of Deputy President Leary's orders related to the lost remuneration between the date of the redundancy dismissals and the date of the reinstatement orders. His Honour goes on:

PN84

Subject to a reduction for payments made on termination and income earned by each applicant ...(reads)... the amounts involved may be substantial.

PN85

We could understand therefore why his Honour would stay the operation of that order. He goes on to say:

PN86

Against that fact is the impact on the applicants of granting a stay.

PN87

That is the only hint one gets from the decision of the reasons which his Honour had for subjecting the stay to the condition which is contained in order number 5. If the Commission pleases, the evidence about the impact upon the applicants was very sparse. My learned friend this morning has referred to uncontradicted evidence and what he means by that is that there were two affidavits put before Vice President Ross.

PN88

The first was an affidavit of Mr Clarke in which he said that he was in employment but that employment was of not a casual nature but certainly it wasn't the permanent employment, it appeared that it was employment whose long term continuity wasn't assured, it was more or less a week-by-week situation and my learned friend has reiterated that again this morning but it appears that Mr Clarke has been in that employment since 8 August when the matter was before Vice President Ross.

PN89

There was no evidence with respect, to any of the individual circumstances of the others. The other affidavit to which my learned friend referred when he mentioned uncontested evidence was an affidavit of a CFMEU officer, the substantial focus of which was to say that there were contractors doing work at the mine which could be switched over to these recently reinstated employees if the company wanted to do it that way.

PN90

But there was no evidence about the personal circumstances of any of the other ten than Mr Clarke. My learned friend has told the Commission certain things this morning but it would've been very easy for the persons concerned to have gone on affidavit before his Honour if that was the case. The Commission is being asked to believe that there are some three or four of them I think, who aren't in employment but were unable to get into a union car or something and come down from the Hunter Valley this morning to support their own counsel.

PN91

Against that we have the situation which normally applies in an appeal in the Commission when the order appeal from creates a new entitlement to the payment of money or the payment of money at a high level. If the appeal is unsuccessful, of course, the orders originally made will operate according to their terms from the date on which they would have originally operated, there is no question about that.

PN92

For our client's part, if the respondents have any concern about losing the time value of the payments in the meantime, they can be protected in the same way that the back pay was protected, namely, by a requirement that our client make regular payments into an account so that they are beneficially vested in the respondents and they can earn an appropriate or whatever the relevant rate of interest is and if the appeal is unsuccessful they will be there for the respondents.

PN93

If you look at the other side of the coin, how are our client's interest going to be protected in the event that the appeal is successful. In the light of my learned friend's submissions this morning two things are clear; the first thing is that Vice President Ross's decision and orders are to be given effect as there is to be no recovery of the payments made by the company if the company should be successful. Secondly, the respondents for themselves not only assert a right to retain the payments even if the company's position should be wholly exonerated or wholly upheld and they refuse to give an undertaking to make those repayments.

PN94

Now, that's fine, that's their choice but they have to recognise that in doing that they are throwing up with real clarity the error which we respectfully submit that Vice President Ross made in that his order, if it operates in that way, would inevitably stand as a permanent walling of new rights which couldn't later be adjusted in the event that the appeal was upheld and in our submission as an interlocutory measure and as a stay measure that is fundamentally unsound. There is one thing that an interlocutory order, including an interlocutory order in the nature of a stay pending an appeal, must be capable of and that is be capable of being either undone or through an undertaking as to damages or some other appropriate measure the rights of the appellant are preserved in the event that it should succeed.

PN95

Now, we wish to develop two brief lines of submissions about that; the first is to take the Commission to the way the proceedings were actually conducted in this respect before Vice President Ross and the second is to take the Commission to some of the cases which deal with this question which has arisen on occasions in the past.

PN96

The orders made by Deputy President Leary were perfectly conventional for applicants who succeeded on a reinstatement application. They got their reinstatement, they got their backpay and that was as far as the orders needed to go. The appellant, our clients, appealed from those orders and that appeal is on foot. We sought a stay, we sought a stay in absolute terms, that is to say, we sought a stay of the whole operation of the orders, reinstatement, backpay, everything.

PN97

The Commission held that we had an arguable case on the merits with respect to a jurisdictional question and then looked at the balance of convenience. The way in which the balance of convenience was approached by the respondents is to be seen in the outline of argument which they presented to Vice President Ross. Does the Commission have access to that. It's headed, "Respondents Submissions re Stay", page 7 in the appeal book.

PN98

GIUDICE J: I think we have it, Dr Jessup, yes.

PN99

DR JESSUP: In paragraph 1, the respondents submitted that the employees were entitled to the fruits of their litigation pending any determination of the appeal. So their primary submission was to say there should be no stay, and then they said in the alternative, they would consent to a stay on two conditions, and it is paragraph 2 that is relevant to the stay insofar as the reinstatement orders, as distinct from the back payment orders, are concerned. The Commission will see that the conditions upon which the respondents said they would consent to a stay were that there should be a payment of remuneration and that the monies so paid would not be recoverable should the appeal be successful.

PN100

That, with respect, was a very bold submission and it was not put so much in that document as something the Commission should do but rather telling the Commission of the terms upon which the respondents would consent to a stay. In the proceedings before the Vice President, if I could take the Commission to the transcript, that's in tab 3 in the appeal book. Paragraph 404 is where this matter was deal with before his Honour. His Honour said to my learned friend:

PN101

Just a question going to paragraph 2 of your fuller submissions, you there advance that position in the alternative ...(reads)... in the event that the appeal were successful.

PN102

My learned friend referred to a judgment of Peterson J in the New South Wales Commission, a judgment which was not handed to his Honour - my learned friend said it was handed to him. Well, perhaps we'll say, a judgment which his Honour didn't refer to in his reasons, and if my learned friend wants to rely on that today, no doubt he will, but over the page at paragraph 410, Vice President Ross said:

PN103

Do you have a Federal Commission authority that would support it?

PN104

And Mr Docking said:

PN105

No, your Honour, the only thing I can rely on is the practical facts that the very ...(reads)... has not been agitated by the employer.

PN106

In other words, he's referring to another case, another company, in which there was a reinstatement order made, an appeal lodged but the whole question of a stay hadn't come before the Commission at all so, presumably, what he meant was that the people were being paid in the meantime. At paragraph 412, Vice President Ross said:

PN107

I don't think being more aware of them will assist you. I am not aware of one that would provide for an order in terms of paragraph (b).

PN108

One would have though, with respect to his Honour, that that would be the end of it. We're certainly not aware of any order in these terms and for fairly obvious reasons, namely the ones to which we've referred, that it does seem to be quite unsound to require payments to be made that would be permanently made and irrecoverable. That was where it was left and, with respect to his Honour, one wouldn't have thought that there was anything more to be said about it, once it was established that nothing like this had ever been done before.

PN109

We have used the word "recoverability" and a word "irrecoverability", perhaps the Commission might think a little bit loosely, but there really are two dimensions in this. The first dimension is the legal one and the second is the practical one. If you ask the question, "Why would payments made pursuant to an order of the Commission be recoverable, there isn't, with respect, a clear and obvious answer to it. For them to be recoverable, the order, at least, would have to be set aside or varied in some way. If the order were set aside without more, our client would then need to take other legal proceedings to recover the monies. Whether they would succeed on those proceedings is a matter to which I'll take the Commission briefly in a moment.

PN110

If the order were varied so as to require the repayment of these monies, and assuming that that was in the competence of the appeal bench, then such an order could be enforced by penal proceedings under section 178 but the monies couldn't, in fact, be recovered because the subsidiary orders that a court can make for the repayment of lost wages and so forth under section 178 doesn't apply generally, it only applies to underpayments by employers, and the same can be said of section 179. So we would have though, with respect, that one can put to one side the prospect of the monies being recovered in specie, as it were, as a result of an order made by the Commission.

PN111

That returns us, if the Commission pleases, to the question of what would happen if all the Commission did was to set aside or quash the order made by Vice President Ross at some later time. We would then be, it would seem, left to our remedies at law. Generally speaking, it is a principle that a successful applicant is entitled to restitution of the payments that have been made to the unsuccessful respondent under compulsion of or in reliance on the order under appeal. We've given the Commission a folder of cases and we would ask the Commission to turn to the Commonwealth v McCormick.

PN112

MR DOCKING: Your Honours, Commissioner, could I just ask that I also be given a folder, I'm unaware of the authorities that are about to be relied upon.

PN113

DR JESSUP: There you are.

PN114

MR DOCKING: I appreciate just being handed that folder.

PN115

GIUDICE J: If you are disadvantaged, Mr Docking, we'll hear any application you want to make.

PN116

MR DOCKING: Yes, I'll read as quickly as I can. I'm going to provide a folder as well, in due course, of cases.

PN117

DR JESSUP: In Commonwealth v McCormick - - -

PN118

GIUDICE J: Mr Docking, have the cases that you intend to rely on been provided to us?

PN119

MR DOCKING: No, they are sitting, I think, in these blue coloured folders.

PN120

GIUDICE J: It might be desirable if you could hand them up now. If you could just give them to my associate, perhaps. If we do get an opportunity to glance at them over lunch time or some other time it might save some time.

PN121

MR DOCKING: Certainly, and I should indicate that I hope there's an index at the front that comprises authorities and also some other material comprising parts of submissions which are referred to in the stayed proceedings below.

PN122

GIUDICE J: Thanks, Mr Docking.

PN123

DR JESSUP: Your Honours and Mr Commissioner, Commonwealth v McCormick is reported in [1984] HCA 57; (1984) 155 CLR 273 and at page 276 their Honours said, commencing half way down the page,

PN124

Restitutio in integrum is the right of every successful appellant ... (reads) ... highest court which finally disposes of the case.

PN125

We have also included in the folder a photocopy of Rogers case but we won't read from it, we'll be content simply to inform the Commission that as the High Court said in McCormick's case it was there held that a successful appellant was not only entitled to recovery of the moneys paid under the judgment set aside but also to interest on it.

PN126

The matter was dealt with not only recently but also quite relevantly by the New South Wales Court of Appeal in Production Spray Painting and Panel Beating Pty Ltd v Newnam, (1992) 27 NSWLR 659. The judgment of the court was given by Handley J and this case was interesting, we respectfully submit, for this reason, that the issue was not simply whether moneys paid pursuant to the judgment below could be restored but whether moneys paid pursuant to an interlocutory undertaking could be restored once the appeal was successful.

PN127

On page 661, just below the letter (d) his Honour said,

PN128

It is well established that the reversal of a judgment on appeal entitles the successful appellant to recover any moneys paid under the reversed judgment.

PN129

In Commissioner for Railways v Cavenagh,

PN130

Upon the reversal of a judgment against any person convicted of any offence the judgment ... (reads) ... applies to civil appeals

PN131

There's a reference to McCormick's case and to an article by Mr Gordon, QC, which appears in the Law Quarterly Review, I don't think we've included that in the folder, but it covers the relevant area comprehensively but is of only general assistance in the present case.

PN132

Handley J continues,

PN133

The same principles apply when the superior court in the exercise of its supervisory jurisdiction ... (reads) ... Initially restitution was also sought in respect of costs

PN134

His Honour then dealt with the matter of costs which I won't trouble the Commission with. If I could ask you to go down to the middle of the page, his Honour said,

PN135

The opponents resisted the application for restitution of $122,000 on a number of grounds ... (reads) ... and the moneys must be restored.

PN136

The Commission might think that that judgment, indeed that that line of authority would be of considerable support to our clients should we ever come to seek recovery of moneys paid pursuant to the stay order made by Vice President Ross and it would but only to a point because what concerns us is that when Handley J came to the question of whether moneys payable under the undertaking as distinct from the original order could be recovered it was central to his Honour's reasons that the undertaking was given against an understanding that it would be repaid if the appeal was successful.

PN137

This case is the opposite. Not only is there no such understanding but the respondents are here asserting that they would have a permanent and indefeasible right to the moneys payable under Vice President Ross' order. In those circumstances our clients are fearful that the recovery of those moneys will not be as simple a matter as was the case for the applicants in the Production Spray Painting proceedings and we say that because the order of Deputy President Leary will have been quashed so any payments made under that order would, in accordance with normal principles, be recoverable because the order is null and void.

PN138

Whether the Commission quashes the order of Vice President Ross is a more difficult proposition. It isn't, we submit, good enough for the Full Bench today to say, well, in due course that might happen, in due course it will all be up to the Commission as constituted to hear the appeal and they can quash that order but why would the Commission then quash the order if the Full Bench today has declined to reverse the effect of the order, the effect being and the intent being, as articulated by Mr Docking, that the money should never be recovered and that the right to them would be indefeasible.

PN139

There would be, with respect, a degree of circularity about that and in our submission it is quite unsatisfactory for the Commission to allow the proceedings to go forward into such a legal minefield which mentioning the practicalities and we do mention the practicalities because that is the next matter we want to deal with.

PN140

Assume, contrary to all of the submissions that I have made that the legal right of a company to recover these moneys would be a simple one and that there would be a cause action, that would bring us four square within the principles outlined by Dawson J in the Myer Emporium case which Vice President Ross referred to in his decision and to which we've referred in paragraph 3 of our outline, that is to say a normal case in which a successful appellant has an undoubted legal right to recover moneys paid under the judgment below but is confronted by practical difficulties. In that case his Honour said, and this is [1986] HCA 13; 160 CLR 220 at 223:

PN141

Generally there will be special circumstances when, because of the respondent's financial state, there is no reasonable prospect of recovering moneys pursuant to the judgment at first instance.

PN142

It is apparent from what my learned friend has said this morning that that is the case here.

PN143

JUSTICE GIUDICE: I'm sorry, where was that, Dr Jessup?

PN144

DR JESSUP: It's at the top of page 223.

PN145

JUSTICE GIUDICE: "Generally"?

PN146

DR JESSUP: "Generally", yes.

PN147

JUSTICE GIUDICE: Thank you.

PN148

DR JESSUP: One needs to read, of course, the previous few lines to know what his Honour is referring to when he says "that will occur" but what he means is special circumstances will exist justifying a stay. Now, the very basis upon which the irreversible payments are sought to be upheld by my learned friend this morning is that the money will be spent and will be gone forever. Now, in our submission that comes four square within the principles which apply to stays and provides the clearest case of special circumstances if we apply the Myer Emporium test.

PN149

JUSTICE GIUDICE: Dr Jessup, is that test to which you're referring something which operates in conjunction with an assessment of the strength of the appeal or is it an independent test?

PN150

DR JESSUP: Your Honour, I believe it's independent but can be defeated if the respondent shows that the appeal is bound to lose.

PN151

JUSTICE GIUDICE: Is hopeless?

PN152

DR JESSUP: Is hopeless, yes. I think once it's accepted that the appeal is legitimate, arguable, whatever you might say, then you do need to protect the appellant's right against the appeal being rendered nugatory by the dissipation of the funds which are the subject matter of the appeal itself.

PN153

JUSTICE GIUDICE: Thank you.

PN154

DR JESSUP: Now, the way in which Vice President Ross approached this, if one can take his implied reasons to be those for which my learned friend contends today, is in our submission fundamentally unsound. My learned friend said that he had an unfettered discretion whether or not to grant a stay. Now, that must be wrong. There are very, very few statutory discretions that are unfettered. Every statutory discretion has to be informed, if by nothing else, it has to be informed by the objects and purpose of the statute. This discretion has to be informed by the objects of purpose of the power under section 45 to grant a stay. The power is there for some reason.

PN155

To take an extreme case a member of the Commission couldn't refuse or grant a stay simply because he or she wished to bestow some gratuitous benefit on one of the parties or the other. The purpose of a stay is to make the appeal process itself effective so that the parties themselves aren't, in effect, denied their right to appeal simply by the passage of time and by the normal dynamics of industrial life that would occur if a stay weren't granted.

PN156

So we would submit that when Vice President Ross was considering whether to grant a stay the exercise of his discretion should have been informed by the circumstance that there was an arguable case with respect to one of the matters that was advanced before him and by the need to protect the position of the parties so that they weren't permanently and irretrievably changed in a way that it couldn't be equitably adjusted depending on the outcome of the appeal.

PN157

Now, for those reasons our client submit that the appeal should be upheld and paragraph 5 of Vice President Ross' orders should be quashed. Our client is prepared to consider any expedient which would legitimately protect its position in the event that the appeal should succeed. If the Commission is attracted to the prospect that our client should preserve these funds by paying them into an account in the same that it is required to do with respect to the back payments then that is something that could be done on our instructions.

PN158

On the question of leave to appeal if, as we submit, the Commission is persuaded that there is an error in the exercise of the Vice President's discretion of the kind that comes within the exceptions to House v The King then there will, we submit, be a clear public interest in having that error corrected. The appeal itself, the appeal proper, it already the subject of finding of an arguable case on a jurisdictional point, the importance of having that appeal dealt with within a proper environment and protecting the parties positions in our submission which is a public interest consideration because if the parties interests weren't protected then their statutory rights of appeal would be that much less worthwhile under the Act. Unless we can assist the Commission further those are the submissions we would wish to make on the appeal.

PN159

SENIOR DEPUTY PRESIDENT WATSON: Dr Jessup, I just had one question. You took us to how this issue unfolded before Vice President Ross and I think included at paragraph 412 and said you would have thought that was the end of the matter where the Vice President indicated he wasn't aware of any authorities which would support an order of the type sought in paragraph 2B but there are levels are there not? That was an order which specifically included a provision that the fortnightly payments would not be recoverable.

PN160

DR JESSUP: Yes.

PN161

SENIOR DEPUTY PRESIDENT WATSON: That the other extreme would be an order incorporating some mechanism by which they clearly are repayable and the actual order issued was somewhere in between was it not without any specific order in relation to the recoverability.

PN162

DR JESSUP: Yes.

PN163

SENIOR DEPUTY PRESIDENT WATSON: So whilst the debate was at an end in relation to the particular stating the payments were not recoverable there was a continuing debate at the other levels was there not in relation to the practical difficulty of recovering the fortnightly payments. I'm just wondering if the matter was taken any further before VP Ross in relation to the order he issued and the order which makes it clear that any fortnightly payments would be repayable by some mechanism or other?

PN164

DR JESSUP: Well, your Honour, in a sense all of those concerns have collapsed down into the first of those three categories you referred to because of the approach which the respondents have taken.

PN165

SENIOR DEPUTY PRESIDENT WATSON: Was that approach apparent before Vice President Ross?

PN166

DR JESSUP: Yes, that was apparent because that was what they were asking for at paragraph 2B. The respondents never countenanced a proposal that would provide for the possibility of the remuneration being recovered in the event that the appeal should be successful.

PN167

SENIOR DEPUTY PRESIDENT WATSON: But they seek the order to that effect which presumably raises doubts about whether they would be bound to repay the moneys in the absence of any such order.

PN168

DR JESSUP: Yes, your Honour, if such an order had been made under terms they sought then the issue would have been clear. If the order had been made at the other end of the extreme in your Honour's terms that would have been repayable then the Commission would have been faced with how to give effect to the obligation to repay either by way of an undertaking or some other mechanism and presumably that would have been done when the parties came back to speak to the minutes of the order. However, the way the Commission dealt with it was to leave it unresolved.

PN169

Now, in one sense we so submit, with respect, that's the worst of all worlds because it's only a case of not having reasons but it's case of the parties not knowing what the Commission was really doing and it's central in the nature of a stay order, it's central to know whether it's going to be a permanent order or a reversible order so our difficulty with the order which he did make was that he didn't make it clear actually what he was doing. Until we have that clarified we don't really know where the target is.

PN170

Now, the respondents can't we submit, your Honour, come to the appeal and try and uphold the order below upon the ground he might have meant this and he might have meant that and one of the possible mights is something that they can see some merit in. It's important, particularly where a right of appeal lies, the reasons disclose the intellectual process and the basis upon which the order can have some justification.

PN171

Now, as it's turned out, of course, the respondents are saying, well, as far as we're concerned we're treating it as though it was made on an irrecoverable basis and so at least the issues have been more clearly defined and in our submission that's the way the Commission should deal with it.

PN172

SENIOR DEPUTY PRESIDENT WATSON: Well, depending on precisely what was put to the Vice President in writing re the legal and practical difficulties of recovering moneys it raises in my mind the question as to whether it is an issue of an appellable error by the Vice President or a situation which might lead to an application to vary the stay order in relation to a position later disclosed by the respondents, i.e. there is no intention and as a matter of practicality we will not be in a position to repay any moneys arising from the order.

PN173

DR JESSUP: Well, your Honour, there has been some further hearings about this.

PN174

SENIOR DEPUTY PRESIDENT WATSON: For the purpose of the settlement of the order?

PN175

DR JESSUP: Yes, on the settlement of the order, yes, and I think Vice President Ross said, well, I'm not going to deal with that again because he didn't say anything about it but our position was we wanted the stay imposed unconditionally. Now, the only condition which the union sought was one which his Honour took the view was unprecedented and that was all as far as we were concerned that needed to be said about it then and reading my learned friend's outline this morning we still can't see any legitimate basis or any legitimate precedent for an order of this kind.

PN176

SENIOR DEPUTY PRESIDENT WATSON: Well, the order which you say was ended in Vice President Ross' mind at 412 was not the order you are now talking about but rather the order which specifically provided there shall be no repayment extinguishing any legal right presumably which would otherwise have existed at the repayment.

PN177

DR JESSUP: Well, that's true, that's true but that raises more questions than it answers, with respect, your Honour, and it wasn't the proposition that was put by Mr Docking below nor any proposition which we had to confront. At least one thing can be said about the proceeding below; Mr Docking made it quite clear what terms of the order or what assumption underlying the order there should be and I think that his outline that I've referred to was that the order paying remuneration to the employee should be subject to a condition that the moneys would not be recoverable should the appeal be successful and his Honour didn't make that order. That was the order that we were addressing our submissions to.

PN178

So we found that his Honour made something which, following your Honour's way of analysing it, was not in terms of what was sought nor in terms of what was debated. I don't know that I can take the matter any further than that, your Honour, but we did, of course, make submissions about recoverability but as his Honour pointed out they were concerned with the large amounts of back payments but in any event the orders have been made, the question is whether they are, as your Honour points out, attended by appellable error. We've made our submissions on that. Clearly if his Honour had considered the issues as to recoverability these concerns which you had would have apparent to him. If the Commission pleases.

PN179

SENIOR DEPUTY PRESIDENT WATSON: Thank you, Dr Jessup.

PN180

JUSTICE GIUDICE: Dr Jessup, I have a couple of questions to ask. The issue of the provision of reasons or failure to provide to provide reasons as you have put it the Vice President did indicate during the proceedings to settle this order to some extent why he was about to do what he did. At paragraph 507, that is on 14 August, he raised the issue of what had originally been put to him in the earlier proceedings.

PN181

DR JESSUP: Yes.

PN182

JUSTICE GIUDICE: Then later on at paragraph 585 he raised a similar issue. He said there that the matter hadn't been sufficiently dealt with and it could be dealt with before the appeal bench. Are those references to be regarded as the provision of reasons? Certainly not in a formal sense, but are they matters to which we should have regard in considering whether or not the Vice President was in error in not furnishing reasons?

PN183

DR JESSUP: No, your Honour, not at all. For the Vice President to say that he was doing something because no one had suggested that he shouldn't doesn't explain why there's any merit in taking that step, especially if it's accepted that it was an unprecedented step. We still don't know why positively he would make an order of this kind and it's certainly no answer to say that previously no reason against it was given. Certainly it wasn't any answer on 14 August because it was then submitted to him that there would be recoverability problems and it's no answers to that to say in effect, as he did, well I'm not going to listen to these concerns because they weren't agitated on 8 August.

PN184

SENIOR DEPUTY PRESIDENT WATSON: The Vice President went on then to say, at 586:

PN185

I would encourage the parties to have discussions...

PN186

in an effort to reach a practical solution to overcome some of the issues Mr Parry has been referring to and they were issues which went in part to these very issues we are now discussing. If there's a need for subsequent variation of the order, either in relation to Mr Slaven or some other considerations, then the parties are at liberty to apply in relation to that matter. Does what has been put by the union on behalf of the respondents today raise matters which were properly brought before VP Ross, ie the issue of the impracticality of recovering? Mr Docking put, as to the likely expenditure of moneys paid. Does that raise an issue?

PN187

DR JESSUP: Your Honour is suggesting that one course might be, instead of appealing, to apply to have the orders varied?

PN188

SENIOR DEPUTY PRESIDENT WATSON: Yes, in light of what has now arisen from Mr Docking on behalf of his client.

PN189

DR JESSUP: I think the view that our client took was that once the Vice President had made his decision about these matters and once we had in effect been told not to bother about it when we went back on the settlement of the orders, that he had taken the matter as far as he intended to take it. Our essential point is that what he did on 8 August was in error. Whether or not it could be dealt with by way of variation. It was a considered decision and orders were made in accordance with it. The normal course would be to appeal against the correctness of those orders, rather than to go back to the same member of the Commission and say, we would like you to change your mind.

PN190

JUSTICE GIUDICE: Dr Jessup, the order against which the appeal was lodged, or rather the paragraph against which the appeal was lodged is not longer in the form it was when the appeal was lodged, is it?

PN191

DR JESSUP: No, it had been varied, your Honour. We don't think that will be of any concern to the Commission and I say that for this reason. What has happened by way of the variation of 7 September was that the position of those respondents who have other employment was more specifically addressed. The substance of the company's obligation under the order is the same. Now I don't know whether your Honour is concerned about that aspect, or simply about the form of the fact that the order of 7 September needs to be before the Full Bench if it's going to make some order arising out of this appeal.

PN192

JUSTICE GIUDICE: Well you describe it as a question of form, but on one view there is no appeal against the relevant paragraph before us.

PN193

DR JESSUP: It has been varied, your Honour, but it's still the same paragraph.

PN194

JUSTICE GIUDICE: Well Vice President Ross' order of 7 September deleted paragraph 5 and inserted a new paragraph 5.

PN195

DR JESSUP: Yes, well out difficulty is that we were the authors of the new paragraph 5, your Honour. Perhaps we can put it this way. Your Honour reminds me there's another matter which I needed to attend to which I will come to in a moment. I don't know what my learned friend says about this, but we would certainly want the terms of the appeal, or the notice of appeal to be amended to extend to the order made on 7 September.

PN196

But we want to make this quite clear. If we are unsuccessful on what we call the merits of the payment question, then we certainly don't want to lose that order and get thrown back to what we had previously, because the order on 7 September was an advance on what we previously had. We can formulate this in writing if need be. But to the extent that we need to, we would ask that the notice of appeal be amended to incorporate and appeal against the order itself. Perhaps I can deal with it whilst I'm on my feet, your Honour.

PN197

JUSTICE GIUDICE: Dr Jessup, I think it would be desirable if, at the earliest opportunity, you could give us the amendment you seek of the notice and depending on Mr Docking's view about that, we may have to deal with it in more substance.

PN198

DR JESSUP: Yes. We would envisage, your Honour, adding something along the following lines to the end of the operative paragraph of the appeal as amended on 7 September 2001. Might we also make application - I ought to have done this at the outset, but I have been running the appeal today as though we had made and succeeded in an application to amend the notice of appeal to bring in the grounds relating to the absence of reasons.

PN199

The Commission will understand we are not simply seeking to criticise Vice President Ross for failing to give reasons for its own sake, or as some abstract proposition, or for the sake of nicety or anything of that kind. It was in the course of preparing the appeal that it seemed to us that the advice of the decision below was that we are unable to define or to identify the assumptions as to recoverability which underlay his Honour's termination.

PN200

It did appear to us that in order to make the appeal complete, and to enable us to advance those arguments, we would need to have an additional ground of appeal. As to which I spoke to my learned friend yesterday, as he has told the Commission, we would seek to insert a ground 8A after ground 8. In the following terms:

PN201

The Vice President failed to provide his reasons for making order 5.

PN202

Perhaps we could also formalise that during the luncheon adjournment. If it pleases the court.

PN203

JUSTICE GIUDICE: Mr Docking?

PN204

MR DOCKING: Thank you, your Honours. Mr Commissioner, I can confirm, as I did before, that any application to amend the notice of appeal by inserting new ground 8A is formally opposed by the respondent employees. Additionally, so far as the belated suggestion for this to be an appeal against 7 September 2001 amended orders, that is also opposed. In other words, this is an incompetent appeal to challenge those amended orders handed down or issued 7 September 2001.

PN205

One practical difficulty which must exist is, I have not seen any transcript for what occurred last Friday. I certainly did not appear on that occasion but I must accept that Mr Endacott did appear on behalf of the respondent employees last Friday. I would have thought that it places the Full Bench in, at the very least, a less than desirable position if not an unrealistic position to ask for orders, which were issued last Friday, to be amended absent the transcript. Therefore, it remains an incompetent appeal.

PN206

Can I immediately confirm and therefore correct something that has fallen from Dr Jessup on a number of occasions. I had thought this was made clear in the thumbnail sketch I presented this morning. If I can pick up what appears in the summary of the respondents' contention in paragraph 1(d) on page 2. Relevantly, in the second line it makes it clear:

PN207

In the absence of an order the employees cannot be required to repay any fortnightly payments.

PN208

JUSTICE GIUDICE: Sorry, I was just taking a note of your earlier submission. Where is that, Mr Docking.

PN209

MR DOCKING: Your Honour the President, page two subparagraph (d). At the top of page 2, second line. I think I indicated this morning to the effect I accept it is problematic concerning recovering the money but I confirmed as long ago as in the Attorney General and Emerson and others, 1889 24 QBD 56, that it has been pointed out that in a stay situation the matter can be re-visited on appeal.

PN210

It certainly seems to be consistent with some of the authorities Dr Jessup has taken the Full Bench to this morning. Also, it seems to be consistent with it being a matter which is properly dealt with by the Full Bench in a substantive appeal and for that bench only if required to consider its discretion under subsection (7) of section 45. I obviously hope to be in the position that it really is an unnecessary debate because the respondent employees will be reinstated.

PN211

If I can then make a cross-reference to some of the stay submissions relied upon by the employees. They appear behind tab 7 of the appeal book. I have already confirmed that I am formally instructed to oppose amending the notice of appeal in respect of the allegation of inadequacy of reasons. In the alternative, I rely upon on page 10, behind flag 7, the reference to Mahoney J, as he then was, in Suillemases and Dudley Holdings Pty Ltd.

PN212

That being a quote or reference members of the Full Bench are well familiar with and it is really the most apposite approach in this matter. It wasn't necessary for Vice President Ross in exercising a discretionary judgment to detail each factor which had been found to be relevant or irrelevant or to itemise, for example, each of the factual matters to which he had regard. Nor was he required to make an explicit finding on each disputed piece of evidence.

PN213

Whilst referring to those earlier submissions which I again adopt. Paragraph 14 on the same page 10, the quote from Mullins and Wideform Constructions Pty Ltd, part of paragraph 15 which is emphasised by underlining. It is but one example of where various Full Benches of this Commission have confirmed, in effect, that a failure to refer to a matter does not in itself provide a sufficient basis for overturning the decision made.

PN214

I then return to the outline provided this morning. I rely upon, as being correct statements of principle, what appears page 3 where there is a reference to Edwards and Telstra Corporation Ltd. Two points that I rely upon are that what was before his Honour the Vice President, were largely matters for impression and judgment of the Vice President at first instance. Secondly, consistent with House and King principles it is not enough for this Full Bench to take the approach that it may have decided the matter differently at first instance. It is accepted that is not enough to meet the House and King principles.

PN215

Going to page 5 of today's outline, paragraph 7. In my respectful submission, the Full Bench is entitled to look at what occurred before his Honour the Vice President on 14 August 2001. When one looks at both his initial decision of 8 August, I should say 9 August 2000, it was argued on 8 August 2001, coupled with the available transcript for 14 August 2001, his Honour acted entirely consistently with correct stay principles.

PN216

In paragraph 7 on page 5 of today's outline, if I can take the members of the Full Bench to paragraph 515, where his Honour the Vice President said, paragraph 515 which is behind flag 9 of the appeal book, this is what was said:

PN217

I am here dealing with the stay and my intention is to try and ameliorate hardship ...(reads)... determination of the appeal. Now in that context why would I provide in the order - - -

PN218

His Honour then continued. It is quite clear that a consideration properly identified is trying to ameliorate the hardship that certain applicants may be suffering. His Honour's approach is also confirmed in paragraph 528 on the same day. In the first few lines his Honour confirmed there was, for the appeal, substantive and argument about section 170(CH) but in the last few lines of paragraph 528 his Honour said this:

PN219

Be that as it may my concern is to ensure that the order operates fairly in the circumstances.

PN220

Without taking your Honours to it there has already been reference to paragraph 538 where there was raised whether an approach involving a sensible approach could be accommodated between the parties. That obviously has been unsuccessful. Going to paragraph 9 of the outline today, there's a reference to the Attorney General v Emerson. Members of the Full Bench will find that behind flag 4 in the bundle of authorities and materials provided.

PN221

JUSTICE GIUDICE: Is that the bundle you handed up?

PN222

MR DOCKING: Yes, which should be in the blue folder, a copy of which hopefully is available for each member of the Full Bench. The Full Bench will see that the notice of appeal that seems largely was drafted echoing the very sorts of argument which were rejected as long ago as 1889. It should be behind flag 4. Page 57, Lord Escher said about point 8 as follows:

PN223

The first question is whether or not there has arisen a practice which has become invariable that the court will in every case whether there are particular circumstances in the case or not make an order to stay proceedings pending an appeal unless the respondent solicitor gives the undertaking.

PN224

Following on the next page numbered 58, Lord Escher confirmed that some cases had been cited. About point 3, the discussion continues:

PN225

The real question is what is the construction of this rule.

PN226

If I can pause there before returning to the judgment what this present appeal concerns is subsection (4) of section 45 which relevantly makes it clear his Honour, the Vice President, may on such terms and conditions as his Honour considered appropriate order that the whole or there be a part of the decision in question. So clearly again what was involved before his Honour, Vice President was clearly a discretion in the widest terms. If I can return to what was said by Lord Escher about point 4, it reads:

PN227

In all the rules the word "may" has been held to mean may or may not. ...(reads)... I decline to take any other view than that the court has a discretion in each case.

PN228

He said that the cases show that the courts have frequently made the order asked for here and there is no reported case to the contrary. Whether there be any reported case to the contrary or not I feel certain that this court has over and over again refused to say there was any established practice but has said that it would exercise its discretion in each case.

PN229

Your Honours, Commissioner, that is why I say many of the grounds of appeal can be immediately jettisoned because they seem to have been drafted in ignorance or in defiance of this approach. It is not good enough to suggest there's some invariable practice concerning stays when it is clear that the appropriate approach is to look at the facts and circumstances of each case. On page 59 of the same judgment the point that I pick up at about point 2 is where Lord Escher also said as follows:

PN230

If they succeed in that appeal they would have a right to get back the costs from the defendants.

PN231

That is why in the outline there's a reference consistently to "in the absence of an order." It is accepted that it's a matter, and Mr Slaven said as much before his Honour, Vice President Ross on 14 August that it would be a matter for the Full Bench. I'll come to some of those references in due course. Members of the Full Bench will be able to see that Lord Lindley also confirmed that, and this is about point 5:

PN232

The court must decide upon the particular facts of each case. It is not competent for any court or Judge to lay down a rule which shall limit the exercise of that discretion.

PN233

Lord Loakes also was to the same effect and rejected an idea that one could refer to an established practice in every case to make the order. If I can then go to next case in the respondent's folder behind tab 5, it's a decision of the New South Wales Court of Appeal. There's some numbering at the bottom of the page which I'll use and it's page 3. What I rely upon is the entire paragraph then the first full paragraph beginning, "There is a principle referred to in the practice book", and for the balance of that paragraph. What's important is about half way through that paragraph the Court of Appeal said as follows:

PN234

Some reason must be shown upon affidavit and then the court has an absolute ...(reads)... and as to the terms upon which it will grant it.

PN235

The Attorney General v Emerson is quoted as authority for that proposition. The Court of Appeal continued:

PN236

The problem is the way considerations as to the balance of convenience and the rights of both parties.

PN237

In my respectful submission, it's quite clear that his Honour, Vice President Ross acted entirely consistent with what is recognised as acting upon correct principles for the purposes of a stay.

PN238

JUSTICE GIUDICE: Mr Docking, the last three lines of that paragraph suggest that it's relevant to inquire the amount that would be recovered assuming the complete success of all arguable grounds of appeal. What seems to have emerged today is that if the appellant were to be completely successful the respondents would be resisting any recovery of amounts paid pursuant to the order. Is that correct?

PN239

MR DOCKING: Your Honour, what I put on instructions is that it was anticipated that amounts paid under the conditional orders would be used on things like cost of living and day to day survival. There is no evidence either I have to accept at first instance or on appeal, putting aside Mr Clarke as to what the asset base and means are of the other respondent employees. Might I submit, that really was a matter for the appellant to raise below.

PN240

JUSTICE GIUDICE: Well I must have misunderstood what you put on instructions earlier I must say. I thought you were indicating that there wouldn't be moneys available, at least in the cases you referred to, to repay any amounts.

PN241

MR DOCKING: Your Honour, I don't have any instruction say on the asset base and the like. I was addressing whether in terms of how the money would be used if the conditional orders are made or I should say maintained is the more correct way. I could make some inquiries with Mr Endacott. I certainly don't have a depth of instructions about asset base and the like.

PN242

Your Honour, Mr Endacott confirms two matters, one, he certainly doesn't have instructions to go into that detail about someone's asset base. Secondly, might I make it clear again what the position is that the respondent employees is, that there is not agreement to an undertaking being given that may well be repaid? My clients I hope and I say this with great respect to this employer, both at Hunter Valley and Blair Atholl, recognise when independent Tribunals make orders they need to be complied with.

PN243

I made it clear in the outline and orally on a number of occasions, it is recognised that before the Full Bench in the substantive appeal if need be and perhaps it's an academic debate at the end of the day, the issue of what are the appropriate orders can be re-visited.

PN244

JUSTICE GIUDICE: Seeing I've distracted you, Mr Docking, perhaps I could on this point ask you about paragraph 2(b) which Dr Jessup refers to in your submissions before the Senior Deputy President, that submission was that payment of the moneys shouldn't be recoverable should the appeal be successful.

PN245

MR DOCKING: Yes, I'm going to develop that argument. I can foreshadow it now, there's really it seems to me, at least three options and maybe I am not about exhaustively state them; one was the type of order which relied in part upon Peterson J in Paris v Bankstown City Council, an express order in effect that the amounts were not to be repayable, a copy of that judgment was handed up because the editors of the Industrial Reports are wanting me to get another copy.

PN246

Secondly and this is something I will develop in full, there was a complete absence of any request by the employer for there to be an undertaking that the respondent employees agree to pay any fortnightly remuneration. I'm going to develop that in full but it's the deficiency in terms of how the case was run below which was squarely recognised and not disputed by the employer on 14 August 2001.

PN247

The employer never sought any such undertaking, so option 2 and it wasn't for the respondent employees to seek that undertaking, it was never pursued by the employer. The third option is to make no request or requirement that there be such an undertaking. It is really the third option which has occurred in this case and cases like Emmerson v The Court of Appeal in Waller make it entirely clear as a matter of principle on the particular facts of the case that option is available.

PN248

It is the option which his Honour Vice President Ross as a matter of judgment and impression and I embrace what Edwards said has followed, in other words, he acted entirely and consistently with correct principle. Before developing that argument more fully can I return to today's outline, pages 6 and 7, what's intended there is to convey ultimately and I accept this appeal on the stay like a stay proper is really an abbreviated or a tenuated hearing but as presently the position exists, the real appeal issue is likely to be one limited to what is the appropriate remedy.

PN249

I have developed the arguments from page 6 onwards. Might I respectfully submit and I accept your Honour the President was on the Full Bench in Henderson v Department of Defence, but what would be pursued in the appeal proper is that that decision was given per curiam, in other words - - -

PN250

JUSTICE GIUDICE: I can forgive you for that submission but I can't forgive you for mis-spelling my name.

PN251

MR DOCKING: I'm not great on proofing on computers, your Honour. I have provided in the bundle of cases and materials some reference and paragraph 15 I really confirm in my respectful submission, do not see it as being appropriate a matter to ask a stay Full Bench to consider, really it's going to be a matter for the Full Bench in the substantive appeal. The point that I develop is, in terms of adjusting the rights of the parties fairly, it really suffices that this Full Bench would recognise the undisturbed first instance finding of his Honour Vice President Ross that there is some substance in the employees contentions relating to the correct statutory construction of section 170CH2.

PN252

Additionally, there's quite a novel fact situation in this matter but when I say novel, not one without correct principle. In effect what happened below is the employer decided not to use its opportunity to make submissions on remedy. In contrast the employees made detailed submissions in writing and orally on the appropriate remedy. The employees through their counsel even confirmed that there would be an objection to the employer attempting to make further submissions or adduce further evidence on remedy.

PN253

It is really going to in the appeal proper be where this issue of substance will need to be determined. What happened and I've provided the paragraph references in page 8 for the full court, Edwards, in that case the facts are essentially and fundamentally distinguishable to what happened before her Honour Deputy President Leary. In deciding what was the appropriate remedy before her Honour there was no contest and there was no live issue or issues concerning what was the appropriate remedy.

PN254

The submissions of the employees were made unchallenged or in other words, uncontested without being put as live issues. Page 9 sets out some further judgments which I'm presuming perhaps have never been considered by Full Benches as to how section 170CH2 and its enumerated paragraphs should be interpreted. I can note, for example, the full court in Minister for Immigration and Ethnic Affairs v Baker just confirms that it may be things that have to be considered.

PN255

I have also provided some other references, such as at the bottom Toohey J in Turner v Minister for Immigration and Ethnic Affairs which deal with adequacy of reasons and confirm the fact that is something is not expressly referred to does not in effect mean that it was not had regard to or taken into account in the decision-making process. I accept that this something that will have to be developed in full before the Full Bench but for the purposes of what is fair in an appropriate stay position his Honour the Vice President was entitled to rely upon that the employees contentions have some substance.

PN256

I accept to run a decision argument that it was per curiam is really a matter for a Full Bench and his Honour the Vice President confirmed that he felt constrained as a single member. If I then go to developing the argument on page 10 of today's outline, 17(a), what these respondent employees is really facing is quadruple jeopardy. I say that because what has now happened is the stay appeal itself was heard 8 August and on 9 August some orders were issued, variations to the 9 August orders were agitated for and obtained by the employer on 14 August.

PN257

Then thirdly further orders were made by way of variation on 7 September and now we come to the quadruple jeopardy of the fourth attempt the employer has had and that's in today's appeal. What's important it recognises some of the cases, if I can go back to the submissions in the state proper, behind flag 7 of the appeal book. It suffices to note on page 45 of those submissions in the stay at first instance there's a reference to B & P Kelly Constructions Pty Limited. Near the top of page 45 it's the underlined part which in my respectful submission means leave to appeal should not be granted and the appeal should be disallowed. As confirmed in the underlined part, it states:

PN258

It's well established that it is incumbent upon the parties at first instance ...(reads)... in the case run below.

PN259

There's a reference to Man v Halla Haulage. The Full Bench continued:

PN260

In circumstances where the issue of mitigation and enco-link payments were not raised below we do not consider that they raise matters warranting leave to appeal.

PN261

In order to develop this argument, if I return to today's submissions, page 10, I'm not sure whether the appeal papers provided to your Honour include the outline of the employer's submissions which were filed and served pursuant to the directions issued by Ross VP.

PN262

It is reflected in paragraph 17(a)(2) that outline in writing limited to the issue of back pay since the date of termination to really order 3 that Leary DP's orders. That flowed from the respondent employees then put on the written outline and submissions which was presented in a fuller form, it's now tag 7 of the appeal book. It was in those submissions, it was squarely raised, one of the three options that I've indicated earlier.

PN263

As I have set out in 17(a)(3) on 8 August 2000 there appears to be no relevant employer oral submission seeking an agreement or undertaking from an employee to pay back any prospective fortnightly payments. I pause there before I go to the references. The employer was clearly on notice by the time it made its oral submissions that one of the three options I outlined before was being contemplated as a condition to a stay.

PN264

He can't come along and say that was ignorant and not alive to the option being an alternative one of seeking an undertaking. If I can then go to the transcript for 8 August which is behind flag 3 of the appeal book. Paragraphs 193 to 194 are part of Dr Jessup's submissions and on any sensible reading, any discussion there was confined to that payment, that is the 2½ years or thereabouts back pay that some of the employees would be entitled to.

PN265

Might I make it immediately clear as was set out in writing in the written outline, the position always taken by the respondent employees was: Let's work out how much the back pay would be calculated for each individual. Once that calculation has been completed, put that into an interest bearing bank account, if successful the employees would get both the interest and back pay.

PN266

Then in terms of what happened during the employees' submissions, there's some other references additional to those to which Dr Jessup took the Commission. Dr Jessup already outlined paragraphs 404 - 412. What is important is these additional paragraphs I will now take the Full Bench to. Page 441 on 8 August 2001, the first numbered paragraph on that page of transcript records the vice president as saying:

PN267

Can I take you to the respondent's submissions ...(reads)... orders 2 and 3.

PN268

If I can pause there, his Honour the vice president squarely raised both orders 2 and 3 to get a response by the employer. The employer's response is reflected in paragraph 444. Members of the Full Bench will be able to read that paragraph, but there is not a hint of picking up what I described as one of three options, namely, seeking an undertaking or agreement from the employees to pay any fortnightly payments that are ultimately ordered.

PN269

Now the prospect of such payments being made was clearly put forward as the alternative respondent employee position. The next paragraph I should take the Full Bench to is paragraph 450.

PN270

GIUDICE J: Mr Docking you are going a little quickly for me. I wonder if you could take us back to paragraph 3 of the submissions you made and just explain what that option was. Were are Leary DP's orders most conveniently to be found?

PN271

MR DOCKING: Leary DP's probably are most conveniently behind flag 2 of the appeal book.

PN272

GIUDICE J: And orders 2 and 3 were the same in each case?

PN273

MR DOCKING: Yes.

PN274

GIUDICE J: But with a different applicant?

PN275

MR DOCKING: Yes. So that was all about the back pay between the date of termination and the nominated date by Leary DP. But there is no suggestion if the other option or alternative sought by the respondent employees was ordered, namely, the fortnightly pay, that there be some sort of undertaking or agreement that that - - -

PN276

GIUDICE J: Which was relevant to order 1.

PN277

MR DOCKING: If I can then go to paragraph 450, on 8 August 2001, and this is what I stated:

PN278

Your Honour I have obtained some instructions ...(reads)... is still pressed.

PN279

Then I went on to deal with a point of law because there had been some attempt by way of submission as opposed to evidence to dispute what was in Mr Jordan's statement and Mr Clarke's statement concerning the availability of in effect 100 - 110 approximately permanent positions at the Hunter Valley One operation.

PN280

But quite squarely there as confirmation that the order sought as what I have described today as one of the three options was not being pressed. Nevertheless there was still no request that in lieu thereof or in addition the employer sought some sort of undertaking or agreement that such fortnightly payments be paid in the event of a successful employer appeal.

PN281

If I can then go to the transcript on 14 August, flag in the Appeal Book, paragraph 507, this is what the Vice-President said:

PN282

All right. I'm not inclined to grant the alternative, being the interest bearing account. My intention was that the moneys would be paid...(reads)...I want to move to the next question and that is the exemption of certain applicants.

PN283

If I pause there, my reading of the 14 August 2001 transcript indicates to me that no employer submission or contention was put to the contrary. In other words, it was accepted that the matter had not been ventilated before his Honour, the Vice President, on 8 August 2001. There are the additional references which really start on this same date, namely 14 August, from paragraph 580, where the Vice President said:

PN284

Anything else from either of you on the balance of the order?

PN285

There must have been silence because there's then recorded, "No", attributed to the Vice President. The Vice President continued to indicate some variations and of particular relevance is what appears in paragraphs 583 to 584, because what was being canvassed was what the employer then sought and that's why I say belatedly. His Honour ruled that there would be deletion of the words "provided each such respondent will enter into an agreement", etcetera. Paragraph 585 continues:

PN286

I'm not satisfied that the matter has been sufficiently ventilated. It was not raised as a concern in the stay proceedings...(reads)...addressed to the Full Bench.

PN287

Again, members of the Full Bench, that was acting entirely consistently with recognised principle to take such an approach. The authorities of the employer referred to by Dr Jessup confirms that much. If I can then go to the appeal ground which suggested there would be no prejudice to individual employees. I think Mr Clarke has put to one side, even by the employer in the notice of appeal, Mr Clarke had a separate statement which detailed his current situation.

PN288

But one of the matters that I do raise, because it was ventilated before his Honour, the Vice President, is there's the real prejudice of the stigma of being labelled dead wood and a poor or deficient performer by the employer at Hunter Valley Number 1. This was part of what was raised in the stay and appeared in the remedy submissions of the employees before her Honour, Deputy President Leary. Flag 15 of the respondent's materials and authorities includes those submissions and the reference to the unfair stigma of being "poor performers and/or dead wood" appears on the bottom of page 12, paragraph 32.

PN289

These are the submissions that hopefully are behind flag 15 of today's authorities and materials. What has taken place is that there was an article published in the industry and this is reflected in the last four lines:

PN290

The dead wood has been removed from the work force.

PN291

The submissions then confirm that the employer did nothing to remove the stigma of:

PN292

The dead wood has been removed from the work force.

PN293

Page 13 of the remedy submissions has the concession of Mr Davies, the company's comment that the "poorer performers have been let go", would be a stigma attached to former employees who are trying to get work elsewhere in the industry. Even Mr Davies conceded that this sort of stigma might adversely effect those employees' prospects of obtaining future work in the industry. There's then references to three people, Mr Hubert, a superintendent of the employer who confirmed how it was very hard in the market to get work when it has been published that the person is "dead wood".

PN294

Mr Moore was another employer witness and he confirmed the difficulties and the adverse impact it would have on the prospects of getting alternative employment. The next evidentiary reference is to Mr Murray, a CFMEU official who, based on his perception, confirmed that employees retrenched from Hunter Valley 1 on the basis of a so-called merit system are having more difficulty obtaining employment than other mine workers retrenched on the basis of seniority. There's a stigma attached to them. They have been seen as undesirable and have been removed from the industry on those grounds.

PN295

Now as has developed in today's submissions, that stain is not going to be removed until the reinstatement without loss is confirmed. Whilst going to the employee's bundle today, can I then go to another part of the submissions which appear behind flag 16? If I can use the page numbering that appears at the bottom, page 6 paragraph 15. What was used to select these employees was a so-called performance appraisal system which had five steps. The middle step was labelled "improvement required". As is set out in paragraph 15, Mr Davies confirmed that that middle rating meant performance could be improved, improvement was possible and necessary.

PN296

The employer made it clear that "improvement required" was chosen in the work performance system instead of average because it was a level below their reasonable standard that employees could get and meant there needed to be improvement. Mr Biatt, who is one of the managers, admitted, question:

PN297

Because if you need "improvement required", the employer is saying your behaviour is not acceptable, isn't it?

PN298

Answer, "Yes." Another example then appears at paragraph 16 of these particular submissions. Mr Brennan, when he got back an appeal for the 1998 performance appraisal, as is reflected in the fourth line, was actually told, "aspects of your performance which are deficient." I raise this in terms of prejudice because I accept that Dr Jessup didn't appear below in the primary proceedings. But part of the submissions made to his Honour, Vice President Ross, were clearly one. This is what I pick up in today's outline, part of 18A developing how there still remains the stigma of being "dead wood" and a poor or deficient performer.

PN299

Dr Jessup, before his Honour, Vice President Ross, at paragraph 29 - and I accept Dr Jessup wasn't involved below. But obviously on instructions he had this to say in paragraph 29, second line:

PN300

This is not a case in which anyone was dismissed because he or she had been performing badly, or misconducting himself or herself, or falling short of the work standards required or anything of that kind.

PN301

I pause there. That submission is just palpably wrong and doesn't recognise at all the stigma and the allegations which were made against these 11 successful employees. To the same effect, it was palpably wrong to suggest - and I raise this because it's said there has been no prejudice - where Dr Jessup said in paragraph 181 as follows but there is, we submit, a qualitative distinction between a situation where people are being dismissed without any criticism of them, that is they are not dismissed, as it were, with a black mark against them for not being good enough on the one hand and a dismissal which does not meet that description.

PN302

As I apprehend what Dr Jessup said it was being contended that the Hunter Valley 1 employees were not dismissed with a black mark against them for not being good enough but few of the admissions, and there's a plethora of them in the employer's cross-examination known documents, confirms that is nowhere near the truth.

PN303

So far as individual prejudice is concerned included in the bundle of folders and materials are extracts at the heart of the individual submissions from employees. These were expressly referred to in the stay submissions made before Vice President Ross. By that I mean by incorporation, they weren't gone to but the references were provided. The members of the Full Bench will be able to see how - the evidence is set out for various of the successful respondent employees of attempts to obtain work, the difficulty of obtaining employment, where employment has been obtained where most usually it has been at a lot lower or reduced rate. Your Honour, I note the time.

PN304

JUSTICE GIUDICE: We are looking for a convenient time.

PN305

MR DOCKING: Certainly, that's a convenient time. I haven't got much further to go but it would be a convenient time to take the adjournment.

PN306

JUSTICE GIUDICE: All right, we'll adjourn until 2 o'clock.

LUNCHEON ADJOURNMENT [12.57pm]

RESUMES [2.07pm]

PN307

MR DOCKING: There is one issue I should flag and I accept that this is not really the appropriate vehicle to test the matter. I appreciate that in particular in a Full Bench of Britax ..... PR, 908, 112 there is a discussion of the debate concerning the extent to which members of the Commission need to give reasons. Might I just flag that as an issue but accept this is not an appropriate vehicle given it is a stay and it has very limited confines to explore that issue and perhaps it will become a matter in the appeal proper or the substantive appeal.

PN308

Returning to the outline provided today on page 12, paragraph 19. The source for saying there is available presently at Hunter Valley, Number 1, approximately 100 to 110 positions, can be found in the statement of Mr Jordan. Set out in that statement there are various submissions from employees currently employed by the employer together with records of the employer which confirm the number of permanent contractors doing the same work, using the same plant and equipment. Perhaps it is an old industrial adage and the position remains that those respondent employees who seek to get the benefit of the conditional stay, believe in the old adage of a fair day's work for a fair day's pay. They still remain in the position though certain employees have been ready, willing and able to work and it is the employer who has declined that offer.

PN309

What I also note is that it is a very last affidavit of Mr Jordan's statement which appears behind flag 6 in the appeal book at paragraph 31. It sets out the factual position at Blair Athol. Dr Jessup, at one stage when reference was made to my submissions before Vice President Ross at paragraph 410 said, well, that is Blair Athol, another case. In the actual stay of proceedings itself, it is a bit more than that. There is the uncontested contents of paragraph 31 which confirm from 9 April, 2001 the employees, which are 16 in number, have been paid by the Rio Tinto Group company without being required to attend for work.

PN310

I am now aware that the stay is listed for the Blair Athol matter on 11 October, 2001 after directions before the Full Bench last Friday on 7 September, 2001. Nevertheless, the point remains that I think it is over 23 weeks or thereabouts, the employees have been paid without absolutely no requirement to attend work. Another factual matter might I address and it is a suggestion from Dr Jessup to the effect that Mr Clarke's employment was not of a casual nature. Members of the Full Bench will see from paragraphs 2 and 3 of Mr Clarke's statement that indeed his work is of a casual nature and that was undisputed.

PN311

Turning to some other points raised by Dr Jessup in oral submissions, I have already confirmed a number of times that the proper place to consider Vice President Ross' conditional stay orders is before the Full Bench in the appeal proper or the substantive appeal and really that is the more appropriate forum when members of the Full Bench will not hear abbreviated arguments concerning the merits and interests of the party but will have the benefit of going to all the factual material and arguments as is required.

PN312

SENIOR DEPUTY PRESIDENT WATSON: Can I just ask you in relation to that Mr Docking, how would the appellants be able through that mechanism to address the concern they raised today? How would the Full Bench be addressing Vice President Ross' stay order?

PN313

MR DOCKING: If I can, for the purpose of your Honour's question, pick up and I think it was production spray referred to by Dr Jessup which made it clear that an order could be made on appeal if the employer is ever successful on appeal.

PN314

SENIOR DEPUTY PRESIDENT WATSON: But Dr Jessup I think also argued that there would be no mechanism available to seek enforcement of the order. Penalty could be obtained but no repayments obtained, given the provisions of section 178 and 9.

PN315

MR DOCKING: As I understand, the argument of the employer goes further and they assert they have right based in restitution and otherwise to recover the payments quite apart from whatever statutory right may exist in the Workplace Relations Act.

PN316

JUSTICE GIUDICE: Yes, but your submission was that the Full Bench could address this issue in due course. Senior Deputy President Watson is asking how and specifically asking for your submission about Dr Jessup's construction of section 178 and 179.

PN317

MR DOCKING: Perhaps I limit my submissions to what falls in subsection 7 of section 45 of the Workplace Relations Act. For example, paragraph V which would prima facie provide that an order or decision can be made dealing with the subject matter of the decision or Act concerned.

PN318

JUSTICE GIUDICE: Dr Jessup's point, I think, was that any such order, if it fell to be enforced and pursuant to section 178 of the Act would only sound in a penalty and not in an order for payment of the moneys. I think that was his submission.

PN319

MR DOCKING: Yes, but I'm not sure, your Honour, if that would limit the effect of an order under subsection (7) of section 45.

PN320

SENIOR DEPUTY PRESIDENT WATSON: It may not but the submission is it not, that the order would be of no effect ultimately to allow the recovery of a penalty which would obviously be of little value to the appellant. They would still be without the substantive moneys.

PN321

MR DOCKING: I suppose that in turn depends upon, for example, the construction of subsection (6) of section 178 or that deals with a proceeding against an employer and therefore by terms, limits or excludes necessarily an employee. It still really seems to leave surviving or standing the employer's contention that quite separately from any statutory entitlement falling under the Workplace Relations Act that they can pursue otherwise a contractual entitlement and perhaps I am not assisting the Full Bench in the way its entitled to on section 178 prior to hearing Dr Jessup's submission.

PN322

SENIOR DEPUTY PRESIDENT WATSON: The contractual issue has both the legislative and practice dimension which, whilst there might be some legislative basis of obtaining recovery, practically it might not be expedient or economic.

PN323

MR DOCKING: Well, might I say, that I would have thought with the deep pockets of this employer, that no economics are going to enter into it and I say that for example, because of some evidence led on remedy by the respondent employees is the profit being made which meant viability was a non-issue. Certainly, I don't think the economics of it in terms of bringing proceedings is ever going to be a practical bar to this employer seeking moneys.

PN324

SENIOR DEPUTY PRESIDENT WATSON: Well, if it is going to cost you more than you can recover - - -

PN325

MR DOCKING: I don't think that has ever been a concern of this employer. Yes, I am reminded by Mr O'Sullivan and Mr Endacott that section 178(4) - - -

PN326

GIUDICE J: It seems to be $2000, doesn't it?

PN327

MR DOCKING: Is your Honour looking at II, and "any other case"?

PN328

GIUDICE J: Yes.

PN329

MR DOCKING: I think there was excitement to the right of me about the prospect of there being a penalty for each day but the terms of that sub section seem to be limited to a breach of a term of the certified agreement. If I can return to something that was involved in the exchange between Dr Jessup and your Honour, the President, and it was suggested that the Myer Emporium test was an independent test. In my respectful submission, that's wrong as a matter of principle. As this is really properly considered an unfettered discretion, or one adopting the full bench in Edwards involving a matter of impression and judgment, it's going to be a classic discretionary judgment involving a balancing on the scales of many matters.

PN330

The issue of recovering all the financial position of a particular respondent employee is not decisive by itself, it cannot be weighed in the scales, absent the interests of the employees involving things like their success below before Honour, Deputy President Leary, and the whole issue of the financial difficulties or constraints or obligations of respondent employees are often two edged, so to speak. On one hand, needing the money to survive or pay cost of living is a factor which militates in favour of being the beneficiary of a stay order in the interim period, and I accept it can be said the other side of that sword or equation is that it can lead to some concern about the ability to recover but, nevertheless, it's not an independent test but part of what has to be balanced in the scales.

PN331

In any event, I would have thought the correct position is, given the employer was the appellant and moving party, it really had the obligation to press that issue in the proceedings.

PN332

GIUDICE J: Mr Docking, you might be able to tell me, where in the transcript, your clients opposed the stay on the basis that they needed the money?

PN333

MR DOCKING: In terms of, I think it's accepted and this is reflected in the employer's appeal grounds, it's Mr Clarke's statement.

PN334

GIUDICE J: Yes, but leaving aside evidence, was there a submission made that the former employees were struggling under the results of the termination of their employment and needed the money?

PN335

MR DOCKING: I don't think in those terms but part of what was put on was Mr Clarke's statement and, by incorporation, there was the reference to the extracts of the individual submissions for each employee which indicated whether they were unemployed, how they had sought to obtain work and, if they were working, what sorts of amounts were being earned.

PN336

MR DOCKING: Not in terms of what, I think, your Honour has stated from recollection.

PN337

GIUDICE J: Yes.

PN338

MR DOCKING: Finally, your Honours, Mr Commissioner, the position of the respondents if that leave to appeal should be declined. If the appeal should be rejected, without derogating from that final position, if the Commission finds against the respondent employees, it would be a matter for the full bench whether it considered directing or recommending that there be, for example, some type of undertaking but for the reasons advance already, in particular, it was not sought during the proceedings on 8 August 2001 and therefore the employer should not be able to cure the deficiencies in how it ran its case, as simply a matter inappropriate for leave to be granted. Unless there be some other matter, they are the submissions.

PN339

GIUDICE J: I take it from what you've just said that there's no other submission you want to make about the orders which are foreshadowed in the notice of appeal, in paragraph 11? I'm not inviting you to make any submission about those but I just wanted to make sure you hadn't omitted to say anything you wanted to say.

PN340

MR DOCKING: Insofar as 11C is concerned, I think I just indicated, without derogating in any way from the primary position, that it would appear if your Honours, Mr Commissioner, found there was an appealable error, it would be open to, in effect, give a direction or a decision requiring there be an undertaking. I'd be a bit concerned as to whether it's within power to make an order that an undertaking be given, that is directing somebody to give an undertaking as opposed to requiring or, in effect, recommending.

PN341

GIUDICE J: But it might pose a section 178 problem, too.

PN342

MR DOCKING: About that, your Honour the President, so far as 11B is concerned, it would appear to be within the ambit of sub section 7 of section 45 if the members of the full bench found there was an appealable error but certainly, in view of his Honour, Vice President Ross's decision and the subsequent hearings that have taken place on 14 August and 7 September 2001, it is certainly inappropriate that order 5, per se, be stayed, in my submission. Unless there was some other matter?

PN343

GIUDICE J: Thank you, Mr Docking. Dr Jessup?

PN344

DR JESSUP: If the Commission pleases. First, may we hand up a proposed amended notice of appeal. The order in which things happened was that the orders were made by Vice President Ross on 14 August. There was then what he described as a flurry or some similar word of correspondence between the parties about what should be done as to the situation of the respondents who were in other employment. It was dealt with again on 7 September but in the meantime, on 31 August, this appeal had been lodged against the orders made on 14 August. Then the variation of the orders were effected on 7 September.

PN345

What happened on 7 September, in our submission, was in substance a variation of the orders made. It was expressed to be a deletion and substitution but that was with respect to one paragraph of the orders. The Commission will see that in fact the order was expressed to be by way of variation. Vice President Ross, on 7 September, expressed his order in these terms:

PN346

That the order made on 14 August is varied by deleting paragraph 5 and inserting in lieu thereof the following.

PN347

And it was then set out. The fact that a variation is made to an order which is under appeal, it doesn't affect the validity or currency or efficacy of the appeal in our submission. What the appeal bench has before it is the order as varied. The variation was effected under section 111(f) of the Act which includes a power to vary any order.

PN348

What is appropriate is that the notice of appeal itself should be varied and that is done under section 111(1)(q) and most conveniently, in our submission, it is done by inserting the words as is apparent from the draft I have handed up, "as varied by the orders made by Vice President Ross at Melbourne on 7 September 2001".

PN349

My learned friend, Mr Docking, said that he didn't consent to the making of the variation and he said that he had, had no transcript of the hearing of 7 September and he didn't appear in it. Now, my learned junior and I faced the similar embarrassment, if that is the right word for it, but it is not embarrassment at all because we rely on nothing that happened that day to provide any greater force or cogency to our grounds of appeal. It is clear from what Mr Docking said that he relies on nothing which happened that day to diminish the cogency of our grounds of appeal.

PN350

What happened on that day was purely a practical adjustment of the way in which the order would operate and it should not, we submit, affect the continuity or efficacy of the appeal. Nor should it stand as some kind of technical basis upon which the variation to the order which we seek might be opposed. Now the other variation is to insert paragraph 8A and the ground is on page 3 of the document which we have handed up. That is a new substantive ground. As soon as it was intended to advance that we informed our learned friend and he has made submissions on the matter today. So, on any normal test the Commission would allow that variation to be made.

PN351

The amendments have not been underlined in the notice that has been handed up. To reflect the different numbering of the new order 5 in ground 1 of the appeal in the third line, condition 5(1)(d) is a slight adjustment to what was in the original document.

PN352

Turning to my learned friend's submissions. His reliance upon the Attorney General and Emerson, a 19th century case from the U.K. seems to be designed to persuade the Commission that there isn't any inflexible rule that a stay will be automatically granted unless certain undertakings are given. We never suggested that there was any inflexible rule that a stay should be granted. The modern Australian tests for the granting of a stay are as articulated in the Myer Emporium case.

PN353

Those tests do not in terms apply to a stay in this Commission. The principles for the granting of a stay in this Commission were referred to by His Honour, Vice President Ross, we have no objection to that. In our respectful submission there is no reason at all to go back to a 19th century Holy Grail to inform the Commission as to when it will and wont grant a stay.

PN354

The unreported New South Wales Court of Appeal case of Waller and Chdorovich did contain the passage upon which my learned friend appears to rely, that the discretion is absolute and unfettered. With respect to their Honours, they gave the Attorney General and Emerson as authority for that and those words don't appear in the judgment in Attorney General and Emerson. Indeed the very point of Attorney General and Emerson is to say that in effect it all depends. So, you can't say that the discretion is absolute and unfettered.

PN355

Indeed as your Honour the President, pointed out to my learned friend: towards the end of the relevant paragraph in Waller and Chdorovich the Court of Appeal referred to relevant considerations which obviously, in its opinion, had to inform the exercise of the discretion in that case. Now, your Honour the President, in asking my learned friend a moment ago whether it was put before Vice President Ross that the existing circumstances of the respondents were sufficient to reject the application of a stay upon hardship or economic grounds or similar grounds. Your Honour, with respect, was right to ask that question because that wasn't put.

PN356

My learned friend says something today about the incorporation. He may be right about that, but for my part I can't recall any reliance by incorporation upon evidence put before Deputy President Leary and in the time available we haven't been able to find what he is talking about. If you look at his submissions, and certainly from my recollection, I can't recall it having been put to his Honour that way at all.

PN357

As he quite frankly accepts today, the submission that the respondents need these moneys for normal living expenses is inconsistent with any capacity on their party to pay them back. Although he rather coyly floated before you the expression, asset based, as though the Commission has proposed to speculate that some of the respondents might be asset rich or income poor or something like that. I don't know what he had in mind but they are his clients and the evidence could very easily have been marshalled by him if he had wanted to oppose the stay upon those grounds.

PN358

May I then turn what is perhaps the major basis upon which my learned friend opposed the appeal which we advance today. I say the major basis because it doesn't seem, with respect to my friend, that he has in any way contested the fundamental proposition that our appeal relies on and that is that any stay or interlocutory order which sets up a situation which cannot later be corrected to reflect an equitable adjustment of the parties rights in the light of the final result and thereby to do justice between the parties must be unsound.

PN359

That is our fundamental proposition and I don't believe my learned friend has confronted that in his submissions. Rather, what he has said is implicitly, however bad it is it's all right because we, that is the appellant, didn't say anything about this precise point to Vice President Ross. Now, at one level we can respond to that by saying that something which is as fundamental as this is something upon which we ought to have been able to rely upon the Commission not to make the kind of error which we submit it did, particularly, a very senior member of the Commission, if we may so submit with respect.

PN360

At another level we wish to deal with it by reminding the Commission as presently constituted of the way in which this bundle of issues, if I can put it that way, unfolded because in one sense what we are arguing about today was not the focus of our submissions in chief, it was something which ultimately became a gloss or sophistication upon something which was put as a proposal by the respondents and very often in the way of things, things which at the time don't appear to be very much in the spotlight later come to assume importance.

PN361

My friend in taking the Commission to the way in which this developed started by taking you to the outline before Vice President Ross and he took you to paragraph 22 in that outline. As I understand it he said, there you are, this is concerned only with the back pay and it is not concerned with weekly payments in the nature of income. Two things can be said about that. Of course it wasn't concerned with the kind of order that the Vice President eventually made. This was the outline which we filed applying to have Deputy President Leary's order stayed.

PN362

There was nothing in Deputy President Leary's orders that required the respondents to be paid whilst they remained out of employment. Deputy President Leary ordered the reinstatement. Now that order for reinstated encapsulated everything that goes with it, the work, the pay, the renewal of the relationship, etcetera. Our stay application was directed to that order and the other order she made, of course, was for the back payment. That was the only component in her order that constituted a requirement to pay money separate from the recommencement of the employment relationship. So, of course, paragraph 22 was directed to that aspect.

PN363

The second thing I want to say about it, if the Commission pleases, is that for my learned friend now to submit that his Honour below ought not to have appreciated our client's concern on the subject of legal and practical recoverability is, with respect, a distinction which can only be described as somewhat cute. If we go to the Vice President on a stay application and we say we are concerned about the prospect of recovering moneys that we have to pay for these people if the appeal is successful then, surely, in any practical robust way we are entitled to assume that his Honour took that concern on board.

PN364

It would have been altogether too unrealistic and too cute a distinction for his Honour to have said to himself, if he did, and we are not sure from his reasons whether he did, but if he had said to himself they are concerned about recoverability of the lump sum but they didn't say anything about recoverability of the other payment so I would presume they are not worried about that. In our submission you couldn't take that step, you would have on any fair and robust view accept that our client was concerned about the issue of recoverability because we said something about it in the only relevant context which arose at the time when these written submissions were prepared.

PN365

My friend then went to the transcript and the first paragraph to which he took the Commission was paragraph 193 which was in our submissions and those were our submissions in chief and of course they were confined to what we were saying in chief in exactly the same way as paragraph 22 was. What we did say at the end of paragraph 193 was this: With respect to the back pay of money we have suggested in our outline that our client would realistically have no prospect of recovering that. Again, that I think is a reference to paragraph 22 of the outline and so the submissions that we made in relation to that cover paragraph 193 of the transcript as well.

PN366

My friend then went through a survey of other parts of the transcript and he took the Commission to paragraph 444. As your Honour the President clarified with my learned friend, paragraph 444 running on from 441 and so forth was not concerned with the proposal made by my learned friend in paragraph (2) of his outline of argument. He was not concerned with the proposal that there should be weekly payments of money in the absence of any actual employment and that is apparent when you look at that outline, that paragraph 441-444 deal only with paragraph (3) of my learned friend's then outline of submissions.

PN367

The my learned friend referred, and this is something that I had overlooked and I am grateful that he drew the Commission's attention to it. He referred to paragraph 450 of the transcript in which he abandoned paragraph (2)(b), that is to say, he abandoned a request for any order, condition or indication from the Commission that the sums should be irrecoverable in order to be paid under paragraph (2)(a). Now, when you look at the flow of the propositions in the first place this issue of making a distinction between working and receiving money didn't arise in our case in chief because we were seeking a stay of the reinstatement orders.

PN368

In the second place when paragraphs (2)(a) and (2)(b) were sought together by my learned friend he admitted to the Commission that paragraph (2)(b) was without precedent and then in the third place he abandons paragraph (2)(b). That has all the look about it of being highly expedient at least in my learned friend's point of view that if to the extent that they are seeking weekly payments they're seeking them on the assumption that they would be repaid if the appeal were successful because that's quite clearly the other side of the coin, the other side of the coin to the one that he abandoned at paragraph 450.

PN369

Now, that can only be wrong if there's some kind of ambiguous, you know, cutely stepping the middle line approach, that he can say, well, I abandoned 2B but I press 2A and at the same time we're not admitting they're going to be recoverable and we say that we're not going to undertake to pay them back but by the same token they might be able to recover them and all this sort of thing. That, with respect to the Commission, is why we're here. Our submission is, with respect, that the Commission ought to take a step which introduces a degree of clarity into this murky area and in the absence of any clear understanding or undertaking by the respondents that these moneys will be repaid then in our submission this paragraph in the orders ought to be discharged or set aside.

PN370

Now, what happens subsequent to that, of course, in the later proceedings before his Honour is his Honour simply cut our clients out from agitating the matter further and perhaps I was a bit too ready to concede before lunch when I was answering the bench that maybe some later variation or application for variation. The subsequent proceedings before Vice President Ross on, I think it was 14 August and about that time, were clearly involved with the question of whether the order should be varied at all and if so, how, and it's apparent that his Honour simply wouldn't hear our client on this question so we had no option but to appeal on it. His Honour having ruled against it on 14 August that really was the end of the matter as far as he was concerned. Now, there's only a couple of other matters that I wish to refer to in reply and the first is - - -

PN371

JUSTICE GIUDICE: Dr Jessup, just before you leave that point paragraph 507 on 14 August, the middle sentence:

PN372

The issue of the repayment of moneys was only ventilated by the appellant in the stay proceedings in respect of the lump sum payment.

PN373

Do you have a submission to make about that sentence?

PN374

DR JESSUP: I refer to the submission I've already made, your Honour. Paragraph 22 expressed a concern to the extent that it was then open to us with the practicability and the issues concerning recoverability. Before a Vice President of the Commission we ought not to have been regarded as being under a continuing obligation to stand up and say, and we make the same point as we made previously about this matter, and we make this point or that point. The fundamental concern which we have is that unless you address the question of recoverability you don't make a proper interlocutory order. Now, his Honour in paragraph 507, one could say, with respect, appears to have put his head in the sand about that, that because - - -

PN375

JUSTICE GIUDICE: Well, Dr Jessup, I understand your submission but is the statement correct as far as it goes?

PN376

DR JESSUP: No.

PN377

JUSTICE GIUDICE: It's not?

PN378

DR JESSUP: No, there's nothing that I can draw your attention to that I haven't already but our submission is that in the context of what we did say to his Honour he ought to have regarded us as expressing a concern about repayment. The quality of that concern was not linked to the source of the obligation to make the payment in the first place, it was linked rather to the ability to get the payments back if the appeal should be successful.

PN379

If I could return very briefly to the response my friend gave to our submissions with respect to the lack of evidence as to prejudice. The response really doesn't deal with what I would call the interlocutory level at all. My friend said that his clients had been stigmatised, as it were, by the way in which they had been described by certain publications outside the Commission. All of those things are matters which can only be resolved once the rights and wrongs of the position have been determined when the appeal itself has been heard. Neither the grant nor the refusal of a stay can have any bearing upon issues of that kind. There's nothing that the Commission can do by refusing a stay or by refusing the order which we now seek which will have any bearing upon the extent of stigmatisation, if that is the right word, that any of the respondents feel. Likewise - well, I think I've said as much as I need to say about that. We would submit it's quite outside the frame of the present considerations.

PN380

In response to something that the Commission asked and my friend asserted, I'm not sure that I have accurate note of what he said but something along the lines of the cost and inconvenience of recovery would be of no concern to this employer he said rather disparagingly; this employer as though it might be a concern to your genuine, honest, right-thinking employer somewhere else but of no concern to this employer. Well, of course, it is a concern to the appellant and the Commission really has to assume that that is so because inherently the problems of recovery haven't been minimised at all by anything that my learned friend has said. I believe that's all we need to put in reply, if the Commission pleases.

PN381

JUSTICE GIUDICE: Thanks, Dr Jessup. Mr Docking, do you have any other submission to make about the amended notice of appeal? I just raise that because you hadn't actually seen it in final form when you made your submissions earlier?

PN382

MR DOCKING: Your Honour, I confirm about ground - I think it has become 8A - that I am instructed to formally oppose that but I do note in the notice of appeal there are allegations about failure to take into account relevant considerations. As for the second issue I do press that this is an incompetent appeal. The very terms of the amended orders which are now sought belatedly to be appealed, confirm if members of the Full Bench look at the 7 September 2001 order opposite A, second line, it states:

PN383

After hearing from the parties...(reads)... September 2001.

PN384

Considering an appeal against the 7 September 2001 hearing is fraught with enormous difficulties and should not be allowed when members of the Commission have not been armed with any transcript. My clients do not bear the onus as the appellant, the employer does. There has been no attempt to have, I think, it's not being disparaging, it's stating a fact, the employer had a considerable backline of support, I'm told, present at 7 September 2001.

PN385

Nevertheless there has been no attempt to put on somebody's notes of what the arguments were and what Vice President Ross said. The absence of transcript can be no excuse. It is not unheard of for legal practitioners to have to put on evidence by way of their notes to explain what has happened when transcript is unavailable. It really is an incompetent appeal concerning 7 September 2001. They bear the onus.

PN386

GIUDICE J: Thank you, gentlemen, for your submissions. We intend to reserve our decision.

ADJOURNED ACCORDINGLY [2.59pm]