Attorney-General for Qld v Senior Deputy President Riordan & Ors B2/1995 [1996] HCATrans 465 (29 November 1996)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M9 of 1996

B e t w e e n -

THE STATE OF VICTORIA AND THE MINISTER FOR HEALTH FOR THE STATE OF VICTORIA

Appellants

and

THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION and THE HONOURABLE JOSEPH MARTIN RIORDAN, formerly a Senior Deputy President of the Australian Industrial Relations Commission

First Respondents

and

AUSTRALIAN LIQUOR, HOSPITALITY AND MISCELLANEOUS WORKERS UNION

Second Respondent

Office of the Registry

Brisbane No B2 of 1995

B e t w e e n -

THE ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND

Appellant

and

THE HONOURABLE SENIOR DEPUTY PRESIDENT JOSEPH MARTIN RIORDAN

First Respondent

AUSTRALIAN LIQUOR, HOSPITALITY AND MISCELLANEOUS WORKERS UNION

Second Respondent

ST JOHN AMBULANCE AUSTRALIA (WA AMBULANCE SERVICE INC)

Third Respondent

and

AMBULANCE OFFICER TRAINING CENTRE, VICTORIA

Fourth Respondent

Office of the Registry

Adelaide No A38 of 1995

In the matter of -

An application for a Writ of Certiorari and a Writ of Prohibition against THE HONOURABLE KEITH HANCOCK, a Senior Deputy President of the Australian Industrial Relations Commission, THE HONOURABLE ANNE HARRISON, a Deputy President of the Australian Industrial Relations Commission, PATRICIA LEARY, a Commissioner of the Australian Industrial Relations Commission and JOHN LEWIN, a Commissioner of the Australian Industrial Relations Commission

First Respondents

and

SHOP DISTRIBUTIVE AND ALLIED EMPLOYEES UNION

Second Respondent

Ex parte -

LAMSOON (AUSTRALIA) PTY LTD & OTHERS

Prosecutors

Office of the Registry

Adelaide No A44 of 1995

In the matter of -

An application for a Writ of Certiorari and a Writ of Prohibition against THE HONOURABLE KEITH HANCOCK, a Senior Deputy President of the Australian Industrial Relations Commission, THE HONOURABLE IAN WATSON, a Deputy President of the Australian Industrial Relations Commission, JOHN O'CONNOR, a Commissioner of the Australian Industrial Relations Commission and DIANNE FOGGO, a Commissioner of the Australian Industrial Relations Commission

First Respondents

and

SHOP DISTRIBUTIVE AND ALLIED EMPLOYEES UNION

Second Respondent

Ex parte -

ACTION FOOD BARNS & OTHERS

Prosecutors

Direction hearings

BRENNAN CJ

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 29 NOVEMBER 1996, AT 10.10 AM

Copyright in the High Court of Australia

MR A.G. UREN, QC: If your Honour pleases, I appear in the Victorian matter with my learned friend, MR L. KAUFMAN, for the State of Victoria and for the Minister for Health. (instructed by the Victorian Government Solicitor)

MR J.S. DOUGLAS, QC: If your Honour pleases, I appear with MR R.S. JONES in the Queensland matter for the Attorney-General for the State of Queensland. (instructed by the Crown Solicitor for Queensland)

MR J.A. NOLAN: May it please your Honour, I appear for the second respondent in both of those matters, that is to say, the Australian Liquor Hospitality and Miscellaneous Workers Union. (instructed by Steve Masselos & Co)

MR R.J. MANUEL: Your Honour, I appear for the prosecutors in matters Nos A38 and A44 of 1995, being the South Australian matters. (of R.J. Manuel & Co)

HIS HONOUR: The Deputy Registrar certifies that she has been informed by Mr A. Smetana, solicitor for the third respondent in matter B2 of 1996, that the third respondent does not wish to be represented or make any submissions at the directions hearing in these matters. She further certifies that she has been informed by the Australian Government Solicitor that the first respondent in M9 of 1996 and B2 of 1996 does not wish to be represented at the hearing of the matters and will abide by any order of the Court save as to costs. She further certifies that she has been informed by Stanley & Partners, solicitors for the second respondent in A44 of 1995 and A38 of 1995, that the second respondent in those matters does not wish to be represented at the directions hearing and will abide by any directions given by the Court.

The first question is whether these matters should be heard together. Have you any submissions on that, Mr Uren?

MR UREN: We would be content if they were heard together, your Honour.

HIS HONOUR: Mr Douglas.

MR DOUGLAS: Yes, we are happy with that too. Certainly the Victorian and the Queensland matters have always been heard together.

HIS HONOUR: Yes, but what about the South Australian - - -

MR DOUGLAS: A similar issue arises in the South Australian case to the issue that is the main issue in the Victorian and Queensland matters, so it could be convenient to have that argued together.

HIS HONOUR: Yes. What do you say, Mr Manuel?

MR MANUEL: There have been discussions between various parties, your Honour, and we would be content for them to be heard together.

HIS HONOUR: What do you say, Mr Nolan?

MR NOLAN: We have no objection to that course, may it please your Honour.

HIS HONOUR: The problem that I see about it is that there seem to be issues in the South Australian matter which do not arise in the other matters, and I am thinking in terms of the authority to serve the demands and the non-employer status of respondents. Are those matters in issue in the other cases?

MR UREN: Your Honour, one of those matters is an issue in the Victorian cases, that is to say, the question of authority, although it arises in different factual circumstances, and so the point is not really the same. Indeed, in the South Australian case, that is this Court at first instance, as it were, whereas we are by way of appeal, so the structure is somewhat different.

HIS HONOUR: Yes. You have leave to appeal on that point, have you not?

MR UREN: Yes, we do, yes.

HIS HONOUR: I just wonder why it is that this Court should be concerned with the question of authority to serve when there are issues of fact to be determined. What do you say about that, Mr Manuel?

MR MANUEL: Yes, your Honour, that is a matter that has been considered by senior counsel and we would be prepared to consider or at least take instructions as to whether those matters perhaps should be remitted back to the Industrial Relations Court of Australia or at least held over until this Court decides what we might say is the central argument which is common among the various cases.

HIS HONOUR: And what about the non-employer status of the respondents to the log?

MR MANUEL: Our view is that that actually comes into the issue of the genuineness of the demand, although it could also be seen as a separate issue in its own right. The very nature of the way the Union went about attempting to identify alleged employers, we say, factors into the issue of whether the demand was genuine in the first instance.

HIS HONOUR: I can understand that, but whether the particular individuals are in truth employers seems to me to stand outside it.

MR MANUEL: Yes, I would accept that, your Honour.

HIS HONOUR: Well then, can that also be stood over or remitted?

MR MANUEL: Yes, I think it can, your Honour.

HIS HONOUR: Let us see if we can identify what the issues are. The issues in all cases, leaving those two points aside, is whether there is a genuine demand. That is the common issue, is it not, gentlemen? Now, whether it is a genuine demand because of - and I think all parties say "extravagance of the claims" - I think you, Mr Uren, say that time during which the log would remain partly unsatisfied, is that correct?

MR UREN: In substance, yes, your Honour.

HIS HONOUR: Do you say that, Mr Douglas?

MR DOUGLAS: Yes. If it is not already raised by our grounds of appeal, we would seek leave to amend to raise that as an issue.

HIS HONOUR: What do you say about that point, Mr Manuel?

MR MANUEL: Yes, in terms of the application to amend or the common issue?

HIS HONOUR: No, in terms of whether that issues arises in your case?

MR MANUEL: Yes, we say it does. We clearly allege that the demand is fanciful in its nature but also that the nature of the demand which is compliance in totality within seven days is inconsistent with the actuality of the demand which is an ambit claim.

HIS HONOUR: I see. Now, what about the non-industrial nature of the claims? That is expressly to be raised by you, as I understand it.

MR MANUEL: Yes, it is, your Honour, although I noticed, after having seen some of the papers from Victoria, I think, that they have also raised, although in a more limited sense, certain non-industrial issues within the log of claims in their matter. We raise it on two bases: primarily it is raised to show the fanciful nature of the log and the lack of genuineness of the demand.

HIS HONOUR: Is that a matter arising in your case, Mr Uren?

MR UREN: Yes, your Honour, we have a similar matter but I think it is in respect of a different type of demand. Ours is in respect of a career structure and it is only a short point, but our submission is that that is not capable of being an industrial matter.

HIS HONOUR: Does it arise in your case, Mr Douglas?

MR DOUGLAS: Not as the grounds of appeal are formulated now but we have been given notice by Victoria that they propose to amend their grounds of appeal and we thought it would be best if we made a similar application and that would raise this issue then as well.

HIS HONOUR: Is it raised on the similar facts?

MR DOUGLAS: Yes. The facts in the Victorian and the Queensland case are already - it is the same log of claims involving similar employers in Victoria and Queensland.

HIS HONOUR: What do you say about that, Mr Nolan?

MR NOLAN: I have to say that the log of claims is the same, so, in so far as Victorian could raise that matter as a matter of principle going to the log and the framing of the log, the same could be done by the Queenslanders.

HIS HONOUR: Yes. The notes that I have would then identify the issues as being first, whether there is a genuine demand because of extravagance, because of the time during which the log would remain partly unsatisfied and the non-industrial nature of the claims. Are there any other grounds on which that point, that is the genuineness of the demand, would be argued? Any other classification of reasons on your part, Mr Uren?

MR UREN: Your Honour, there is only one. One will see in the application which we have made for leave to amend the notice of appeal that we have raised - there is a possibility the question of Re Ludeke may have been wrongly - some of the things said in Re Ludeke may have been incorrect. That, of course, is a matter which itself goes within the broad ambit of the way in which your Honour classified the matter but it could be regarded as a matter which is discrete and would give rise to a separate type of argument.

HIS HONOUR: And what are the points on which Ludeke is sought to be challenged?

MR UREN: Your Honour, it is sought to say that some of the things said in Re Ludeke misstate the true nature of the doctrine of ambit and misapply some of the authorities relating to that doctrine.

HIS HONOUR: But in what respects?

MR UREN: In that it seems to have been the view, I think, that some of the things said in Re Ludeke allow people to make demands of extravagance which go beyond what is really desired because of the fact that the future has to be looked for and there are various other matters referred to in Ludeke as reasons why logs should be extravagant in nature and why the demand should be excessive. In our submission, the reasons which are given in Ludeke for that being case are in fact not supportive of that view and the cases which are relied on are really not supportive of that view either. The view which the cases support is that an award must be within the ambit of the dispute, but the view seems to be taken that the demands can be inflated in order to allow for whatever awards might be made. In our submission, that really puts the cart before the horse.

HIS HONOUR: But that really falls into one of the three categories that I have already dealt with, does it not?

MR UREN: It does, your Honour, yes. I thought I should make it into a separate matter, simply because it is, to some degree, an issue of interpretation, or application, or perhaps correctness of one of the decisions of this Court. But I agree that it does come within the classifications that your Honour has referred to.

HIS HONOUR: Are there any other points of argument that we - - -

MR UREN: There is a point of argument of abandonment. One of our points is that the service of the second log of claims brought to an end the dispute found in the first and, apart from that, there are no other points than the ones that your Honour has mentioned.

HIS HONOUR: Yes. In your case, Mr Douglas, are there any other points?

MR DOUGLAS: No, your Honour.

HIS HONOUR: Does any question of abandonment arise in your case?

MR DOUGLAS: Yes, it is the same issue.

HIS HONOUR: Same point?

MR DOUGLAS: Yes. There was one log of claims which was, in effect, superseded by a second log of claims.

HIS HONOUR: Yes.

MR DOUGLAS: The argument is that the second covered the field, and necessarily the first was abandoned.

HIS HONOUR: Yes. That does not arise in your case, Mr Manuel?

MR MANUEL: No, your Honour, it does not. The only other issue that arises is the point that I made to your Honour previously about the way the Union went about identification of persons to be served. But that factors into the issue of genuineness, we would say.

HIS HONOUR: Yes, it was one of the additional reasons, you say, why it is not a genuine - - -

MR MANUEL: Yes.

HIS HONOUR: And what is the nature of the opposition that you are advancing there?

MR MANUEL: Well, in broad terms, your Honour, is that the Union must have better than just a random selection of persons from a phone book to give rise to a genuine dispute. There must be some genuine belief that there is, in fact, employers involved, and the evidence in this matter is that basically the Union went to the phone book, looked under the heading "Supermarket", and took the names of a few hundred persons and organisations out of that book and inserted it on that basis, without any genuine or direct knowledge as to whether those persons were employers or not.

HIS HONOUR: Yes, I see. Well, now, that would leave then those two points arising in the South Australian cases, which will have to stand over, I think, until this main point is disposed of.

MR MANUEL: Yes, we accept that, your Honour.

HIS HONOUR: On that footing, Mr Nolan, you would be content to have all matters argued together, is that right?

MR NOLAN: Yes, your Honour.

HIS HONOUR: What is the state of, first of all, the notices of appeal? There are applications for leave to amend, is that so?

MR UREN: Yes, your Honour, we have on foot an application for leave to amend. We would be happy if your Honour adjourned that over, if your Honour wished to, to the court which was to hear the matter itself. I do not know what your Honour would think would be the most convenient.

HIS HONOUR: Is the application opposed?

MR UREN: Your Honour, it is opposed as to one ground only. I think your Honour has a copy of the - - -

HIS HONOUR: I had better have a look at it. This is the draft altered grounds, is that right?

MR UREN: Yes, your Honour. Your Honour will see on the first line there is a correction of an obvious error at the very end, because we left out the word "not." So, ground 2 is consented to, that amendment. The amendment to ground 2(c) is consented to; 2(da) is consented to; 2(db), but not 2(dc).

HIS HONOUR: Not 2(dc).

MR UREN: In any event, we would need, presumably, the leave of the Court to raise the Re Ludeke point if the Court thought that we should, or could.

HIS HONOUR: That should be 51(xxxv), not 52 (xxxv), I presume?

MR UREN: Yes, your Honour.

HIS HONOUR: What are the grounds of objection to ground 2(dc), Mr Nolan?

MR NOLAN: Your Honour, we have taken issue with that particular ground in that we say we do not suggest that there is anything in Re Ludeke which supports the notion that the doctrine of ambit on its true application is as has been set out in ground 2(db), and we took issue with the application for leave as well on the basis, of course, that the applicants in these matters specifically disavowed any intention to reagitate Re Ludeke when the application for leave was heard. But having said that, if your Honour has in mind directions that would require written submissions and so on, there is no reason why that particular issue could not be factored into that and dealt with as a part of the overall consideration of the substantial matters raised.

HIS HONOUR: It sounds to me that any consideration of amendment to add that would necessarily wait until the argument was complete, would it not? In other words, you would be hearing the argument on it, even though the grounds of appeal were not amended to raise it.

MR NOLAN: Yes. Well, perhaps in support of the application to amend, the reasons for the application could be advanced and replied to and they could be dealt with that way. I think it is a fairly short point.

HIS HONOUR: Yes. Are there any other amendments proposed in this document to which objection is taken, Mr Nolan?

MR NOLAN: No, I think that was the only one that we objected to, on that limited basis.

HIS HONOUR: Well, then, is there any reason why I should not make an order now giving leave to amend, other than in relation to paragraph 2(dc)?

MR NOLAN: None, your Honour.

HIS HONOUR: What do you say about your notice of appeal, Mr Douglas?

MR DOUGLAS: I would ask for similar leave. We were about to write to the other parties in our matter informing them of our intention to make similar amendments as are proposed in the Victorian - - -

HIS HONOUR: How does your notice of appeal read at the moment comparably with the Victorian notice of appeal?

MR DOUGLAS: It is similar to the Victorian one. It would, with the addition of these, cover the same grounds as are proposed to be raised in the amended Victorian notice of appeal.

HIS HONOUR: Yes. You have not got a draft available?

MR DOUGLAS: Maybe our instructing solicitor in Brisbane has. I am not sure if we have it here at the moment. I have some proposed amendments which my junior has drafted which would raise the issues reasonably clearly.

HIS HONOUR: You mean they look all right while you are on your feet, but you would like to have a further look at them.

MR DOUGLAS: There is one paragraph I wanted to check, because there seems to be a typographical error there which I have read before. But if they were implemented, they would - - -

HIS HONOUR: Well, what I would like to do is to limit, as far as possible, the issues for the Full Court's determination, obviously. Now, I think the sensible thing to do is for you to produce a set of grounds of appeal, amended as you see fit, and show them to Mr Nolan, and then to produce a consent order for the amendment of the grounds of appeal to the extent to which that consent is given, leaving out the corresponding provision to paragraph 2(dc).

MR DOUGLAS: Thank you, your Honour.

HIS HONOUR: You can put paragraph 2(dc) in your notice, but the consent order will be - we will accept it.

MR DOUGLAS: Yes, thank you, your Honour.

HIS HONOUR: And then the order can be made in accordance with that consent order. Now, can that be done within a week?

MR DOUGLAS: Yes.

HIS HONOUR: And you could give your consent within a further week after that, Mr Nolan.

MR NOLAN: Yes.

HIS HONOUR: If there is any difficulty about it, then obviously it will have to be a matter for further consideration but presumably there should not be any difficulty about that.

MR DOUGLAS: Thank you, your Honour.

HIS HONOUR: Now, that completes any question of the documents in both of those appeals, is that right?

MR DOUGLAS: Yes.

HIS HONOUR: Now, in your case, Mr Manuel, what about the grounds of the application for the order nisi?

MR MANUEL: We have no application to make to amend. I do note I have just seen a typographical error in one part, where the - I do not know if you have the books before you, your Honour.

HIS HONOUR: I have not at the moment, but I can get them, I think, easily enough.

MR MANUEL: In matter A38 of 1995 - - -

HIS HONOUR: A38, yes.

MR MANUEL: At page 15 of the book, your Honour, at point 2, at the very last word, should be "employers", not "employees".

HIS HONOUR: Yes. Well, then, this is the order nisi.

MR MANUEL: Yes, your Honour. At point 3 on the following page - - -

HIS HONOUR: Just a minute until I have a look.

MR MANUEL: Sorry, your Honour.

HIS HONOUR: What is the stage that your application has made? Has an order nisi been made?

MR MANUEL: I am sorry, your Honour, I must admit it has been before his Honour Justice Kirby and special leave has been granted. I was not present at that, so - I am grateful to my learned friend, there was an order nisi made.

HIS HONOUR: There was an order nisi made?

MR MANUEL: Yes.

HIS HONOUR: By Justice Kirby?

MR MANUEL: Sorry, by Justice Dawson, your Honour. Yes, I am sorry for the confusion, it was Justice Kirby who granted special leave.

HIS HONOUR: Yes, I see.

MR MANUEL: Yes, at page 252 of the appeal book, in No A38 of 1995, your Honour.

HIS HONOUR: Is there any typographical error in this one?

MR MANUEL: Not that I am aware of, your Honour, but I have only just picked up that first one.

HIS HONOUR: I think there is. Page 254, paragraph 2.2.

MR MANUEL: Yes, your Honour, same error, the last word.

HIS HONOUR: Then you shall have leave to amend the order nisi by changing "employees" to "employers" on paragraph 2.2 as appears on page 254 of the application book.

MR MANUEL: Yes, I would seek that leave, your Honour. Could I also, while you are at that page, your Honour, being page 254, at 2.3 - I am reasonably confident this is the last one - at line 3 - - -

HIS HONOUR: Of which paragraph?

MR MANUEL: Sorry, 254, paragraph 2.3, at line 3 of that paragraph. It says, "that in effect the onus was a party, should read, "was on a party".

HIS HONOUR: Yes. There will be leave to amend in relation to that.

MR MANUEL: Thank you, your Honour.

HIS HONOUR: What is the state of the appeal books in your matter, Mr Uren?

MR UREN: Your Honour, I think they have been prepared. I am told they will be ready next week.

HIS HONOUR: In your matter, Mr Douglas?

MR DOUGLAS: I agree, it is a joint appeal - appeal book with the Victorians. It should be ready at the same time.

HIS HONOUR: All right. Then we shall have written submissions. What time would you ask for, Mr Uren?

MR UREN: Your Honour, I wonder if your Honour could give me an indication of when the actual hearing would be?

HIS HONOUR: The actual hearing date is likely to be 5 February.

MR UREN: Yes, in which case - we would like to go first, I think. So if we were to do ours, they would have to be before Christmas I expect. That means by the 21st, I think. It is the Friday before the Christmas holidays. Queensland could do theirs at the same time I expect.

HIS HONOUR: Yes, they would to do it at the same time. What do you say, Mr Nolan, about that date?

MR NOLAN: I do not want to be heard to complain too loudly but, of course, that runs us right into Christmas and all the problems associated with the Christmas holiday and absences and so on. Taking that into account, if we could receive the written submissions by 18 December, that would be of considerable assistance to us rather than the 20th or, more likely, if - - -

HIS HONOUR: What date are you proposing for your response?

MR NOLAN: We could respond some time in January. I suppose it is a matter of picking a date in the circumstances. So 20 January.

HIS HONOUR: I think if I gave you a few more days we could leave Mr Uren more or less where he is, could we not, if we left you for a few more days in January.

MR NOLAN: It is just that my concern about the pre-Christmas situation is such that it would be of great assistance to us if we could get the submissions of the Queensland and Victorian Governments by the 18th rather than the 21st simply because of the need to try to digest the material and do some preliminary work on the submissions before Christmas. The 17th we could perhaps respond by, 17 January, that is a Friday, or the 20th is the Monday. Perhaps the 20th would be more prudent.

HIS HONOUR: That request for a little earlier time before Christmas seems a reasonable one, Mr Uren.

MR UREN: If we had all of the 18th, your Honour, if it was 4.30 on the 18th, then that would suit.

HIS HONOUR: Mr Douglas.

MR DOUGLAS: That would suit us, your Honour.

HIS HONOUR: I think you must have your ideas fairly clear after the application for leave to appeal I should have thought.

MR DOUGLAS: I have been racking my brains to think of something new, your Honour.

HIS HONOUR: Mr Manuel, what about your written submissions?

MR MANUEL: My instructions were to ask the Court for a date early in January for us to file our submissions.

HIS HONOUR: That application will not be met.

MR MANUEL: I assumed that that was the case.

HIS HONOUR: What do you say about 18 December?

MR MANUEL: Would we perhaps be able to extend it to the 20th, to the Friday?

HIS HONOUR: I am not sure about that because I think the factor that Mr Nolan mentions is a reasonable one, that is, that there needs to be some time to at least consider the broad substance of the argument so that if any instructions are needed before Christmas, they can be obtained.

MR MANUEL: In that case, your Honour, the 18th will have to suffice.

HIS HONOUR: Yes. Very well, then by 4 pm on the 18th, I direct that the appellants in the first two matters and the applicants in the next two matters should prepare, file and deliver to the respondent parties comprehensive written submissions and that the respondents should prepare, file and serve on the applicants and appellant parties their responses by what date did you say, Mr Nolan?

MR NOLAN: I think 20 January is the Monday, your Honour, if I am not mistaken.

HIS HONOUR: Yes, by 20 January 1997. In relation to the preparation of written submissions, it seems to me that there should be a formula, in a sense, which is followed, namely, a definition first of the issue; second, a statement of the relevant principles with the citation of authorities including the references to precise pages and portions of pages of the CLR reports, and then a precise reference to the application or appeal books in relation to the evidence which is relied on to support the particular submission. It is not necessary to set out the evidence in full, but it would be helpful to have a short note of the point that the evidence is said to support.

Although those matters should be covered in the form of written submissions, it is not desired that we should have, as it were, a repetition of the appeal book in the written submissions. If they can be kept within a short compass, so much the better, so long as we can understand what the precise points are and the material upon which reliance is going to be placed. If written submissions are prepared along those lines, the issue should be fairly clearly crystallised. How long would you think that you would then require for oral argument, Mr Uren?

MR UREN: To some degree it would depend on the doctrine of judicial intervention, but at that rate, I suppose our case might take, say, half a day. That would be, say, a morning.

HIS HONOUR: Yes. Mr Douglas.

MR DOUGLAS: I assume we are going second after Mr Uren?

HIS HONOUR: Yes.

MR DOUGLAS: I think we should take no more than an hour.

HIS HONOUR: Mr Manuel?

MR MANUEL: We had assumed the whole proceeding would be over within the two days, your Honour, and we would be expecting to take much longer than my learned friend, probably closer to two hours though because we have some slightly different points to raise.

HIS HONOUR: Yes. Mr Nolan?

MR NOLAN: I suppose we would have to say, maximum, a couple of hours in reply, but we will try to make it shorter than that.

HIS HONOUR: Yes.

MR UREN: Your Honour, can I mention one other matter? There may or may not be persons who wish to intervene. Notices have gone out, but we have not been told yet that anybody does, but they could.

HIS HONOUR: 78B notices have gone out?

MR UREN: Yes.

HIS HONOUR: There has been no notification of intention to intervene on the part of any of the Solicitors-General?

MR UREN: I do not believe we have had any notices so far.

HIS HONOUR: When did the 78B notices go out?

MR UREN: Queensland's went out some time - - -

MR MANUEL: Your Honour, we also sent out 78B notices in these matters. We have had no formal advice but we do understand that the Attorney-General for South Australia intends to intervene. I am not aware of it being on file.

HIS HONOUR: Are you aware of the interests in which the Attorney-General proposes to intervene?

MR MANUEL: As I understand, in support of the prosecutors' positions.

HIS HONOUR: Yes.

MR DOUGLAS: I think that we have been informed that Western Australia will probably have an interest in the matter. In fact, I think I might have been instructed to inform the Court of that today. I am a bit confused as I have had a similar instruction on behalf of Western Australia for something else I have been involved in recently, but I am fairly sure that they are interested in the matter.

HIS HONOUR: Yes. I have just been handed a notice from the Crown Solicitor's Office of South Australia that the Attorney-General for South Australia wishes to intervene in each of A38 and A44 and that it is expected by the Crown Solicitor that instructions will be received that the Attorney-General wishes to intervene in each of B2 and M9 and attempts would "be made to instruct counsel appearing for Queensland and Victoria concerning the position of South Australia". It seems that Western Australia proposes to "seek leave to formally intervene in each of" these proceedings, but because of the pending State election there, "it is inappropriate for the State to formally intervene at this stage." That is the position you have been asked to advise the Court of, I gather, Mr Douglas.

MR DOUGLAS: Yes, that is so. It is fairly equivocal.

MR UREN: I wonder if your Honour could make provision, in any event, for any interveners to file written submissions by a particular time, even if your Honour mentioned no time at the moment but left it for a later direction?

HIS HONOUR: Do you happen to know, Mr Douglas, when the election in Western Australia is to take place? I know it is a matter of notoriety, but I do not at the moment.

MR DOUGLAS: Mr Nolan tells me it is 12 December and my instructing solicitor says it is the 14th.

HIS HONOUR: Of December?

MR DOUGLAS: Yes.

HIS HONOUR: I think there is really no reason why interveners who are seeking to support the appellants or the applicants should not file any submissions along the lines that I have indicated by the same date as the applicants themselves, and any interveners who seek to intervene in order to support the respondents should file theirs by the date in which Mr Nolan is to file his and should endeavour to comply with the directions that I have given in relation to the content of those written submissions. It does seem, in the light of that, that we could probably look forward to finishing the matter within two days, is that right?

MR DOUGLAS: I think so, yes.

HIS HONOUR: On that footing, I do not think it would be necessary to specify a time limited for oral argument except to say that it will be finished within two days, but I shall note the times which counsel have indicated that they are likely to require and if counsel propose to take any additional time beyond the time that they have indicated then I would ask that they should notify the Registry and their opponents beforehand, that is, by 30 January next year. If it should be necessary to prescribe any limited time for oral argument thereafter, those directions will be given without the necessity for counsel to attend. Are there any other matters which require directions at this stage? From you, Mr Uren?

MR UREN: No, your Honour.

HIS HONOUR: Mr Douglas?

MR DOUGLAS: No, your Honour.

HIS HONOUR: Mr Manuel?

MR MANUEL: No, your Honour.

MR NOLAN: I might just inquire, your Honour: you said the 5th; is that a definite time, the 5th and 6th?

HIS HONOUR: Yes, I think I can indicate that - - -

MR NOLAN: I think there was some discussion earlier that it could have been any time in that week.

HIS HONOUR: No, I think I can indicate that unless there is - I had just better make absolutely certain of this - some extraordinary event which might require the delisting of the cases, they will be listed for Tuesday, 5 February at 10 15 am. All cases will be listed together, but it will be understood that those issues which we have identified, Mr Manuel, will not be argued before the Full Bench or at least unless at the end of the argument on the part of the appellants you might seek to raise the question, and in that event it will be a matter for the directions of the Full Court.

MR MANUEL: Thank you, your Honour.

HIS HONOUR: But I would expect the response would be that you should abide the order of the Full Court on the principal issue and if there are subsidiary issues they can be remitted to the Industrial Court for determination.

MR MANUEL: Yes, your Honour.

MR DOUGLAS: I have just been told the 5th is a Wednesday. Your Honour said Tuesday.

HIS HONOUR: I am sorry, I was misreading. It is Wednesday the 5th. It is the Wednesday. Wednesday the 5th and Thursday the 6th all being set aside for the hearing of these matters. Who is the second respondent in your matters, Mr Manuel?

MR MANUEL: The named second respondent in both matters is the Shop Distributive and Allied Employees Association, your Honour, the Union involved.

HIS HONOUR: Will you undertake to communicate the directions that have been given forthwith to the solicitors for those parties?

MR MANUEL: I will do that on return. My only query I should raise, your Honour, is that I had understood that the solicitors were only appearing in A38 of 1995. On the last occasion that we were before the Court I understood, in fact, the solicitors were not on file for A44 and I do not know if that still remains the case.

HIS HONOUR: The letter to the Deputy Registrar in Melbourne is from Messrs Stanley & Partners who confirm that they "act for the Shop Distributive and Allied Employees Union in these matters", and "these matters" are identified as A38 and A44.

MR MANUEL: My only concern, your Honour, was that I received a call from a gentleman by the name of Mr John Ryan, who I understand to be an industrial officer of the Shop Distributive and Allied Employees Union and he had indicated to me that he was concerned that he had not received notification of this directions because he had previously indicated to me that he was going to appear as an officer of the SDA as opposed to counsel. I am more than happy to advise Stanley & Partners of the directions, but I am just concerned that if they are not formally on the file for the other matter that the directions get to whoever is.

HIS HONOUR: I think that is something which the Deputy Registrar will take on board, thank you very much.

MR MANUEL: Thank you, your Honour.

AT 10.49 AM THE MATTER WAS ADJOURNED