State of Victoria, Ex parte; Re Sutton & Ors M19/1995 [1995] HCATrans 95 (7 April 1995)

TRANSCRIPT

OF PROCEEDINGS

AUSCRIPT

Victoria

Level 7

451 Little Bourke St

Melbourne VIC 3000

GPO Box 1114J

Melbourne VIC 3001

Phone [phone]

Fax [phone]

O/N 9417 7.4.95

IN THE HIGH COURT OF AUSTRALIA

MELBOURNE OFFICE OF THE REGISTRY

No. M19 of 1995

RE: SUTTON and OTHERS

ex parte:

THE STATE OF VICTORIA

DAWSON J

AT MELBOURNE, FRIDAY THE 7TH DAY OF APRIL 1995

HIS HONOUR: Yes, Mr Sutherland.

MR I. SUTHERLAND: If your Honour pleases, I appear with MR D. GRAHAM, Solicitor-General for Victoria, and DR I. HARDINGHAM for the prosecutor in the State of Victoria in this application.

HIS HONOUR: Yes. Mr Rothman.

MR S. ROTHMAN: If your Honour pleases, I understand this is an ex parte application, but I seek leave to appear with my learned friend, MR H. BORENSTEIN, for the second and third respondents in the application, in relation to the stay.

HIS HONOUR: If necessary.

MR ROTHMAN: If necessary, your Honour.

HIS HONOUR: Yes. Well, you can renew your application at an appropriate stage, Mr Rothman.

MR ROTHMAN: If your Honour pleases.

HIS HONOUR: Yes. Yes, Mr Sutherland. Mr Robinson, I missed you out.

MR J. ROBINSON: Yes, your Honour. My application is a similar one. If necessary I would seek to appear on behalf of the fourth respondents.

HIS HONOUR: Thank you. Yes, Mr Sutherland.

MR SUTHERLAND: Your Honour, although this is an ex parte application for an order nisi, we thought it proper to serve the papers on the other parties to the proceeding because part of the relief that we sought, or seek, of course, is that if your Honour grants an order nisi that the proceeding be stayed, and we thought that it be proper that they be heard at least in respect of that matter. This explains why my learned friends are here. So everybody in the proceeding, your Honour, is on notice of this application. Your Honour, yesterday we circulated to our learned friends, and had delivered to your Honour's associate, an outline of the prosecutor's submissions.

HIS HONOUR: I have read those, yes.

MR SUTHERLAND: Thank you, your Honour. Would your Honour be assisted if we handed to your Honour - although no doubt your Honour is fully familiar with them from Domlinson v Crabbe - the relevant legislation, including the BLF Derecognition Act, or a copy of it and, your Honour, the relevant orders in counsel made pursuant to that act and, in particular the order in counsel made on 30 October 1987 committing all the property and assets of the BLF into the custody of the custodian, and prescribing the circumstances in which dealings may be had with that property.

Your Honour, this application for an order nisi is directed to the Chief Justice of the Industrial Relations Court of Australia calling upon him to show cause why a writ of prohibition should not issue out of this court. The Industrial Relations Court of Australia, your Honour, like the Federal Court, of course, is a superior court of record of limited jurisdiction. Prohibition, in our respectful submission, does lie against the court, or a judge of the court, where there has been an assumption of jurisdiction which amounts to an error of law of a jurisdictional nature.

This case, your Honour, as your Honour would be aware from the outline of submissions that we have handed up, your Honour, centres upon the construction, or the proper construction, of section 258 of the Industrial Relations Act 1988, and any constitutional constraints that may flow from what may be said to be the proper construction of that section. Whether your Honour has had an opportunity to look at the section - - -

HIS HONOUR: I have.

MR SUTHERLAND: Thank you, your Honour. There is no doubt, your Honour, that from an examination of the amended application and the amended statement of claim that has been filed by my learned friend, Mr Rothman's clients, the applicants in the substantive proceeding, that the applicants have sought to invoke section 258 in this proceeding for the purpose of determining whether an invalidity has occurred in the management or administration of a registered organisation, in this case being the CFMEU, on the basis that that expression, management or administration of a registered organisation, extends to the making and implementation of the, what I might describe as the amalgamation agreements that were entered into in March of 1994 for the purported purpose of effecting an amalgamation between the CFMEU and the deregistered association, the BLF.

And also, of course, in relation to the rule changes that were effected within the CFMEU and the BLF to give effect, so the CFMEU contends, to the purported amalgamation and merger. So they contend for a construction of 258 that would enable the court to consider the efficacy of the agreements, the head agreement, and the agreements between state registered branches and the CFMEU and the rule changes.

HIS HONOUR: Justice Wilcox has decided that he has jurisdiction and intends to proceed. Why should he not be allowed to proceed?

MR SUTHERLAND: Yes. Well - - -

HIS HONOUR: I mean that is the real question which arises, is it not?

MR SUTHERLAND: Yes, of course it does, your Honour.

HIS HONOUR: And the proceedings in the Industrial Relations Court should be allowed to run their full course, ought they not, including any appeal from an ultimate decision?

MR SUTHERLAND: In the ordinary course, your Honour, yes, we would respectfully agree with what your Honour says. But we submit, your Honour, that there has been a wrongful assumption of jurisdiction by the Honourable Chief Justice.

HIS HONOUR: Well, perhaps there has, perhaps there has not, but that would mean that any order that he makes is a nullity, and that is something which could be tested on appeal. And this court has said on a number of occasions that where there is an avenue of appeal that is a preferable way in which to test a question, rather than by way of prerogative writ.

MR SUTHERLAND: Your Honour, we did seek leave to appeal - - -

HIS HONOUR: Yes; not from that. The ultimate appeal which there will be, I take it, from the decision of Chief Justice Wilcox.

MR SUTHERLAND: Your Honour, we, as did other respondents in the proceeding, issued motions seeking to raise the question of whether or not the Industrial Relations Court of Australia had jurisdiction to deal with this matter, and his Honour heard that, and your Honour has no doubt had an opportunity to consider the Chief Justice's reasons.

HIS HONOUR: Yes, I have read those.

MR SUTHERLAND: Your Honour, we see this matter - and we submit that this matter does raise matters of very considerable importance, because if the construction contended for by the applicants and, indeed, the underlying assumption in his Honour's reasons for judgment on the jurisdiction question is correct, or are correct, it does have implications, in our respectful submission, for the applicability of the state legislation. It is conceivable, your Honour, that section 258 can be used, as indeed we submit it is in this case, as a device to over-ride the effect of the state legislation.

HIS HONOUR: But it is a question of what is the preferable means of testing the breadth of the section. And I am suggesting that to have a hearing and have such facts found as are necessary and, if necessary then an appeal, and it is a preferable way to test a question and thereafter you would then have a choice, presumably, of applying for special leave to appeal, or seeking prerogative relief. But then the matter would have resolved itself in one way or another making it much easier for this court to determine the questions which it would be asked.

MR SUTHERLAND: Well, your Honour, we are certainly conscious of that as being an alternative to the course that we have chosen to take in making this application. We are motivated to take this course because we consider, and we considered, that it was important for this issue, in terms of the proper construction of section 258 and any constitutional constraints that might be imposed upon section 258, to be resolved before we embark upon a trial that will essentially be a trial involving legal submission, rather than a determination of a great many facts on which adjudication is required; it is essentially a legal argument.

And we would submit that obviously - not obviously, your Honour - we would submit it would be preferable if that issue was resolved, because we say that what his Honour has said in his reasons for judgment lends great support to the interpretation of section 258 that my learned friends contends for. Now, obviously I hear what your Honour says about alternative courses being preferable, your Honour, but we see the matter - and all I can really submit to your Honour is the matter is of great importance to the State of Victoria in terms of the proper construction of 258 and its utilisation to over-ride and be used as a device to over-ride state legislation. And we are obviously most concerned that this section not be used in that way.

Now, your Honour, if I have not persuaded your Honour with that I do not think there is much more I can really submit to your Honour in terms of why we submit it is appropriate that this matter proceed in this court and not even be remitted back to the Industrial Relations Court.

HIS HONOUR: Well there might be some difficulty about that. I do not know the answer to that question. I believe there is a division of opinion in the Industrial Relations Court about whether one branch of that court can give prerogative relief against other. I must say it is a question which I have not considered, but obviously there is some difficulty.

MR SUTHERLAND: Yes. We did notice, your Honour, that there was a remittal of a proceeding late last year to a full court.

HIS HONOUR: Yes, but I do not think that the problem had been isolated at that time.

MR SUTHERLAND: No. It may be a greater problem, your Honour, where it is a remittal to the full court for the issue of a writ of prohibition against the Chief Justice of the same court, and whether that would create even divisions.

HIS HONOUR: Who has refused leave to appeal to the full court, yes.

MR SUTHERLAND: Yes. But, your Honour, on the point your Honour raised, I do not know whether your Honour wishes me now to proceed any further in relation to what we say is the assumption of a jurisdictional error. But, your Honour, we submit that it is a matter appropriate for this court to do.

HIS HONOUR: Well that is the question you want agitated, and I appreciate what the question is, yes.

MR SUTHERLAND: Yes.

HIS HONOUR: Yes, very well, thank you, Mr Sutherland.

MR SUTHERLAND: Thank you, your Honour.

HIS HONOUR: I need not trouble you, Mr Rothman and Mr Robinson. In my view this application is premature. The proceedings which the applicant seeks to prohibit are at an interlocutory stage in the Industrial Relations Court before Chief Justice Wilcox. They should be allowed to run their course in that court, including any appeal from any decision by Chief Justice Wilcox. Insofar as the application raises a constitutional question or constitutional questions, there is no reason why the Industrial Relations Court should not exercise such jurisdiction as it has to determine that question or questions in the first instance.

It is highly undesirable that this court should consider the questions raised by this application without the context, factual and otherwise, which will be provided by a decision of the court below. The application will be refused.

MR ROTHMAN: If your Honour pleases.

MR SUTHERLAND: If your Honour pleases.

HIS HONOUR: I will leave the bench.

AT 9.45 AM THE MATTER WAS ADJOURNED

INDEFINITELY