Qantas Airways Limited v Christie S121/1996 [1996] HCATrans 460 (15 November 1996)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S121 of 1996

B e t w e e n -

QANTAS AIRWAYS LIMITED

Applicant

and

JOHN BAILLIE CHRISTIE

Respondent

Application for leave to appeal

BRENNAN CJ

GAUDRON J

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 15 NOVEMBER 1996, AT 10.49 AM

Copyright in the High Court of Australia

MR D.M.J. BENNETT, QC: If the Court pleases, I appear for the applicant with my learned friend, MR I.M. NEIL. (instructed by Blake Dawson Waldron)

MR F.L. WRIGHT, QC: If the Court pleases, I appear for the respondent with my learned friend, MS S. WINTERS. (instructed by Mr Paul Murphy)

BRENNAN CJ: Yes, Mr Bennett.

MR BENNETT: The principal special leave point in this case involves the phrase "inherent requirement to the particular position".

BRENNAN CJ: Can that question be raised without consideration of the factual issue or what might be regarded as a factual issue, namely, whether the employment had come to an end by the termination of the contract of employment?

MR BENNETT: Yes, your Honour.

BRENNAN CJ: It can?

MR BENNETT: Yes. If we succeed on either, we succeed. The second point is not something which would have justified special leave. It might justify leave which, of course, is what this is an application for. It is a fairly short point. But the main point and the point which would justify even special leave and a fortiori leave is the construction of the section.

GUMMOW J: The question is though what is your situation if leave were restricted as to the statutory construction point? That is something you could live with, I would have thought.

MR BENNETT: If it were a condition of leave, I would accept it. I would argue against the condition being imposed.

BRENNAN CJ: We will hear from your opponent, Mr Bennett.

MR BENNETT: If the Court pleases.

MR WRIGHT: In our submission, neither of the questions in respect of which leave is sought is attended with sufficient doubt to warrant the grant of leave. Further, neither question is presented in such a way to the Court as to provide a suitable vehicle for the grant of leave.

As to the first issue, the "inherent requirement" issue, in our submission, the decision of the Full Court below was correct. The provision, section 170DF(1)(f) is remedial and beneficial legislation should be construed broadly to promote the statutory purpose. It is plainly and unashamedly anti-discrimination legislation. So much is clear from the face of the provision and the various objects provisions. It follows, as a matter of logic, that the subsection (2) defence should be construed narrowly.

GUMMOW J: Narrowly or broadly, it has to be construed. The words have to be given work to do and it has to be before - - -

MR WRIGHT: Certainly, your Honour.

GUMMOW J: It is no good brandishing slogans, in my view, before you get down to the section. Of course it is remedial legislation.

MR WRIGHT: Your Honour, in our submission, there are a number of reasons why leave should not be granted. One, there are a number of factual questions which were not resolved below, for example, the Full Court sent the matter back to the trial judge, Justice Wilcox, to determine some factual questions arising out of its determination. Similarly, there were some factual challenges to Justice Wilcox's judgment which the Full Court did not feel it was necessary to decide. So, there are outstanding factual matters.

The other aspect is the applicant relies very heavily upon the profound difference in the approach of the court below. That really depends upon an assessment of the judgment of Justice Spender. Now, in our submission, his Honour's judgment depends upon a number of doubtful policy assumptions which are either wrong or were not the subject of any evidence which might have supported the factual assumptions behind the policy assumptions. For example, he said that the Act would apply to the Defence Forces. It had such a dramatic effect it would so apply. There is no basis for that.

BRENNAN CJ: That might be so but, I mean, you have to concentrate on, (a) the facts of the case and, (b) the language of the statute.

MR WRIGHT: Certainly, your Honour, but the particular findings of both the trial judge and the Full Court depend on a very particular set of circumstances, that is, the particular circumstances of a Qantas pilot at a period in time after Qantas had a rigid policy as to age retirement. Indeed, the trial judge concluded his judgment on the basis that - this is at page 91 of the papers - although Captain Christie had succeeded:

on the main issue in the case, the medical issue, but is defeated on the operational issue. This issue will soon disappear, but too late for Mr Christie.

In other words, the question as it presented itself on the facts of the case was really a transitional or transitory question in the light of a particular factual circumstance applying to Qantas pilots. As such, it does not present, we say, for the purposes of this Court, any general question in a way which provides a suitable vehicle for the determination of that question.

BRENNAN CJ: Mr Wright, if you look at page 123 of the application book there is one of the places in which the respondent's letter appears. He says his:

current retirement date is 21.9.94, my sixtieth birthday.

Now, because of the recent legislation, he wishes to continue flying. Now, I take it, you say that had some contractual effect.

MR WRIGHT: No, your Honour. What was the contractual term between Mr Christie and Qantas was that his employment was terminal upon notice. Now, Qantas had an arrangement with - - -

BRENNAN CJ: That is not so, is it?

MR WRIGHT: Yes, your Honour. The relevant term of the contract - - -

BRENNAN CJ: You are speaking about the original contract.

MR WRIGHT: Yes, your Honour.

BRENNAN CJ: But in the course of time, the arrangement between Qantas and its pilots, including Mr Christie, was that they could extend their time, ultimately up to 58, then to 60.

MR WRIGHT: Your Honour, that was a result of a collective agreement which never became part of the arrangements between Captain Christie and Qantas.

BRENNAN CJ: But Captain Christie extended his time by notice.

MR WRIGHT: He was sent a series of pre-ordained letters which he responded to. Now, that was part of a collective arrangement between the pilots union and Qantas.

BRENNAN CJ: The pilots union arranged that their pilots could, if they chose, extend the time and Qantas agreed, and this pilot extended the time.

MR WRIGHT: Your Honour, that in no way cut down his original contract. For example, his original contract said that his employment continued until it was terminated by notice and could have been terminated without notice for misconduct. Now, the fact that there were those extensions did not cut down either of those terms, that is, at any time could be terminated by notice. At best - and we do not accept that this is the analysis - it gave him a right to extend his employment but it did not cut down his right to continue in employment until notice was given. And, of course, Qantas did give notice. When he said, by reference to the new Acts, he wanted to continue past 60, Qantas then resisted his request and his employment was terminated by Qantas' refusal to acquiesce in that situation.

We say the questions as posed here are very much on a particular set of facts and at the end of the day involve purely factual analysis in a very particular and special circumstance; a circumstance which, on the evidence before the trial judge, would disappear for Qantas pilots. So, it does not provide, we say, the requisite public interest or pose the question in such a way which would enable a question to be answered in a way which would resolve the question of principle.

GUMMOW J: Now, the unresolved factual matter, is that referred to on page 9 of your outline at point (ii), at the top of the page, namely, the possibility of reinstatement under 170EE?

MR WRIGHT: Yes, your Honour. We also challenge some factual findings of Justice Wilcox on his analysis of what an inherent requirement was, that he had, we said, incorrectly made certain findings of fact on the inherent requirement question which led him to decide the case against Captain Christie. He took the view, and it is a factual contest which the Full Court, on its analysis, felt it was never appropriate to decide. So, there are, on any view of where the proceedings are situated below, outstanding factual questions to be resolved.

BRENNAN CJ: What was the fact that Justice Wilcox found erroneously?

MR WRIGHT: It was on this question of short trips. He took the view that short trips were one-day trips and there were insufficient of those to build a roster for Captain Christie, whereas, in fact, "short trips" was a reference to three or four-day trips and when one looked at those there were sufficient trips to build a roster for Captain Christie. Now, the Full Court, although it was fully argued, felt it was unnecessary to decide because they took a different view as to inherent requirements.

GAUDRON

J: That does not, however, cut across the applicant's argument as to the proper construction of the expression "inherent requirement", does it?

MR WRIGHT: True, it is not, your Honour, but it is a question of whether it is appropriate for this Court to deal with that question when it may never arise.

GAUDRON J: It is in a context where all that is necessary is leave, not special leave.

MR WRIGHT: Yes, your Honour. We would say that although the word "special" is missing, that public policy would involve, we say, considering the normal requirements for special leave as being relevant here, if not necessarily decisive. If the matter was not posed in a way that appropriately raised the questions in terms of principle or in terms of mootness, then leave should not be granted.

We say, differentiating between the two issues, as to the second issue, that clearly is - the contractual point as we have described it - a very narrow and factual issue. It involves questions of the construction of a series of transactions between the parties which are, in most relevant respects, settled by Byrne v Australian Airlines. It must not be forgotten that the particular agreement that is relied on so heavily by Qantas was a particular document. It was seen to be subsidiary to a collective agreement which had been certified under the Act and therefore it gained the force of an award. At the heart of Qantas' submission is an assumption that that agreement should have a greater force than it would have had if it had been certified and we say, properly considered in that way, it becomes not a matter or not an issue raised separate from or different to the judgment of this Court in Byrne v Australian Airlines.

BRENNAN CJ: What effect did it have?

MR WRIGHT: Its effect was either to regulate the relations between the pilots union and Qantas, that is as to general industrial affairs or, alternatively - - -

BRENNAN CJ: I do not understand that, having regard to the terms of it.

MR WRIGHT: It laid down the way in which the union and Qantas regulated their industrial affairs inter se. That is clear by the fact that it included a term - and this is at page 154 of the application papers - that in the event of any action to alter the:

agreement is made by any individual pilot or group of pilots, such action would be opposed by both parties.

Now, this was the union and Qantas agreeing, irrespective of what individual pilots wanted to do, they would oppose it. In other words, it did not bind the individual pilots in any contractual sense, it was purely a matter of industrial relations.

BRENNAN CJ: It is not purely a matter of industrial relations, having regard to the terms of the agreement. Perhaps I will rephrase my question to you: what effect did this have on the relationship of individual pilots with Qantas?

MR WRIGHT: In our submission, it did no more than regulate the industrial relations between the union and Qantas so as to provide to the union and Qantas certain collective goals which they then laid down as between themselves and presented as a fait accompli to the pilots. In no sense was there any contractual variation.

BRENNAN CJ: What do you mean by "a fait accompli"?

MR WRIGHT: It was a circumstance in which Qantas said, in effect, "If you don't seek this extension, then we will terminate your employment" which they were entitled to do under the contract as originally formed between this pilot - - -

BRENNAN CJ: They said to whom? To their pilots?

MR WRIGHT: Yes, your Honour, implicitly. Qantas was presenting a fait accompli to these pilots and if they had not either sought or been granted an extension, then they would have been terminated pursuant to the contract.

BRENNAN CJ: If they did seek an extension in accordance with the terms - - -?

MR WRIGHT: Qantas' practice, as appears, not significantly in the evidence, was to grant it.

BRENNAN CJ: Practice or right or duty?

MR WRIGHT: There are two ways of looking at it. We have put our preferred way. The alternative way is that if there was a contractual term, it rested above his contract; did not qualify his contract but gave him a right in addition to his contract, a right to require Qantas to give him an extra year's employment. But in construing the two instruments together, you have this situation, namely, that it did not qualify either his rights or Qantas' rights to terminate on notice or Qantas' right to terminate for misconduct without notice. Now, in that sort of situation it does not qualify his right to continue in employment until terminated. That is the simple issue. Qantas is saying, "We're not covered by this important legislation because we didn't have to terminate. It terminated by pure effluxion of time."

Now, I appreciate that raises policy questions, but that is how narrow the issue is. Qantas is saying, "We're not caught by this legislation because we didn't have to terminate his employment."

BRENNAN CJ: Leave will be granted in this case.

MR BENNETT: If the Court pleases.

AT 11.07 AM THE MATTER WAS CONCLUDED