Hancock & Ors; Ex parte Action Food Barns & Ors A44/1995 [1997] HCATrans 20 (5 February 1997)

Office of the Registry

Brisbane No B2 of 1996

B e t w e e n -

ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND

Appellant

and

THE HONOURABLE SENIOR DEPUTY PRESIDENT RIORDAN

First Respondent

AUSTRALIAN LIQUOR, HOSPITALITY AND MISCELLANEOUS WORKERS UNION

Second Respondent

ST JOHN AMBULANCE AUSTRALIA (WA AMBULANCE SERVICE INC.)

Third Respondent

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 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 Respondent

SHOP DISTRIBUTIVE AND ALLIED EMPLOYEES ASSOCIATION

Second Respondent

Ex parte -

LAMSOON (AUSTRALIA) PTY LTD and 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 Respondent

SHOP DISTRIBUTIVE AND ALLIED EMPLOYEES ASSOCIATION

Second Respondent

Ex parte -

ACTION FOOD BARNS and OTHERS

Prosecutors

BRENNAN CJ

DAWSON J

TOOHEY J

GAUDRON J

McHUGH J

GUMMOW J

KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 5 FEBRUARY 1997, AT 10.18 AM

Copyright in the High Court of Australia

__________________

MR J.S. DOUGLAS, QC: If the Court please, I appear in matter B2 of 1996 with MR R.S. JONES for the appellant, the Attorney-General for Queensland. We have not previously notified our intention to intervene in the South Australian matters, but we do propose to intervene on behalf of the Attorney in those matters as well. (instructed by Mr B.T. Dunphy, Crown Solicitor for the State of Queensland)

MR D.J. BLEBY, QC: May it please the Court, I appear with my learned friend, MR R.J. MANUEL, for the prosecutors in the two South Australian matters, A38 of 1995 and A44 of 1995. (instructed by R.J. Manuel and Co)

MR R.C. KENZIE, QC: May it please the Court, in matter B2 of 1996, the Queensland matter, I appear with my learned friend, MR J.W. NOLAN, for the second respondent, Australian Liquor Hospitality and Miscellaneous Workers Union. (instructed by Steve Masselos & Co)

MR D.M. QUICK, QC: May it please the Court, I appear in matter No A38 and A44 with my learned friend, MR S.H. MILAZZO, in each case for the second respondent. (instructed by Stanley & Partners)

MR R.J. MEADOWS, QC, Solicitor-General for the State of Western Australia: May it please the Court, I appear with my learned friend, MR R.E. COCK, for the Attorney-General for Western Australia in support of the appellant in matter B2 of 1996 and in support of the prosecutors in matters A38 and A44 and might I just add, your Honour, that with the Court's leave I have agreed with my learned friend, the Solicitor-General for South Australia, that he should put his submissions to the Court before we do. May it please the Court. (instructed by the Crown Solicitor for Western Australia)

MR B.M. SELWAY, QC, Solicitor-General for the State of South Australia: If it please the Court, I appear with my learned friends, MR E. BROOKS and MR G.J. PARKER, for the Attorney-Generals for South Australia and Tasmania, appearing in support of the appellants in B2 of 1996 and in support of the prosecutors in A38 and A44 and we will propose to put our submissions immediately after my learned friend, Mr Bleby. (instructed by the Crown Solicitor for South Australia and the Crown Solicitor for Tasmania)

BRENNAN CJ: Thank you, Mr Solicitor. The Senior Registrar certifies that she holds letters from the Australian Government Solicitor advising that in each of the matters B2, A38 and A44, that the first respondents do not wish to be represented at the hearing and will abide by any order of the Court save as to costs. In matter No B2 of 1996 she certifies that she holds a letter from Mr A.J. Smetana, solicitor for the third respondent, St John Ambulance Australia, advising that the third respondent does not propose to be represented. In the same matter she holds a letter from the Victorian Government Solicitor, solicitor for the fourth respondent, Ambulance Officer Training Centre Victoria, advising that the fourth respondent does not intend to appear at the hearing of the appeal and will abide any order of the Court save as to costs.

There has, as counsel knows, been a notice of discontinuance filed in the Melbourne Registry in relation to matter M9 of 1996. Yes, Mr Douglas.

MR DOUGLAS: Victoria had filed written submissions in these proceedings which were provided to the Court and which our learned friends responded to and really, to make sense of our learned friends' response, it is probably necessary for the Court to have read the Victorian submissions. In any event, we propose to adopt parts of those submissions ourselves. One issue that was raised by the Victorians and not by our appeal was a question of authority. We do not wish to pursue that ourselves and we do not rely upon the Victorian submissions on that issue. The Victorian submissions dealt with that issue in paragraphs 6 and 30 to 39.

There was another issue raised in the Victorian submissions in paragraph 42 about the ability of a particular claim to create an industrial dispute. We do not wish to make any submissions about that. Paragraphs 17 to 19 of the Victorian submissions put submissions about the inability of the Commission to partially settle a dispute, and we do not wish to say anything about that, otherwise we wish to adopt the Victorian submissions.

BRENNAN CJ: What are those last paragraphs?

MR DOUGLAS: Paragraphs 17 to 19. What we wish to exclude are paragraphs 6, 30 to 39 and 42 and we do not wish to say anything about paragraphs 17 to 19. Our learned friend's submissions in this matter suggest that if a log of claims rather like this one was good enough in the application before the Court in Reg v Ludeke or the Elcom dispute in Re State Public Services Federation decision of the Court that that is good enough for their purposes. In other words, what they need to establish to show that their client really wanted what it claimed in its logs of claims is that another Union in the past made claims rather like these that were accepted as the basis for a dispute. In our submission - - -

GAUDRON J: Why did they have to say that?

MR DOUGLAS: They do not, but they seem to say that. When they say it, in our submission, it illustrates quite clearly a triumph of form over substance. In applying such an approach there is no focus on what the Union or what its members really wanted. There is no analysis of any underlying industrial dispute set to give rise to the paper demand and there is no reference to the time within which the demands are said to be made, nor is there any reference to any convincing evidence that there was any underlying dispute, for example, extending into Queensland or that the Union really wanted anything more than had already been achieved for its Queensland members.

If this had been a real dispute extending beyond one State, there would have been no need to pose these sorts of comparisons or for any of the sophistry used to justify the sort of claims made in the documents. The Union would have been able to point to where its real concerns were reflected in the log of claims, to a realistic time frame in which they might be achieved and to how they extended across State boundaries without relying on the form of another claim made by another Union at an earlier time.

Let me get back to the facts a little bit. There was evidence summarised in the Full Court judgment between pages 931 to 935 of the record - I do not wish to take you to it at the moment - about the Union's move to some form of national standards or regulation of the ambulance industry.

The summary in your Honour's decision there makes it clear that it was not a foregone conclusion that a federal award would be required and, certainly when these logs of claims were served, they did not extend across the whole nation; they were served upon respondents in Victoria, Queensland, the Northern Territory and Western Australia, leaving, of course, South Australia and New South Wales and Tasmania out of it.

One might have inferred from some of the evidence that the immediate spur to the claims was the need to extricate the State Union in Victoria from the effect of changes to that State's system of industrial relations some years ago, but that does not affect the matter in the context of the issues raised by this appeal. One can conclude, however, from the nature of the claims that the achievement of the conditions sought in the log of claims was not sought by the Union. The demands made in the log of claims, we submit, were clearly ones that were not what they wanted. Some more realistic claims may have been in the Union's mind, but they were not addressed in these logs. Instead, they were framed, we submit, as unrealistic claims to try to give the Commission a wide discretion to regulate, rather than to decide disputes.

Can we address the facts, to some extent, in more detail to try to make good those propositions, and then address the legal issues? The legal issues I wanted to focus on are what constitutes a dispute, the role of the doctrine of ambit, and the significance of the decision in Reg v Ludeke, whether it is appropriate to test the genuineness of a log of claims by aggregating the claims made in it, the onus of proof, particularly in the Commission in a paper claim of this sort, and the abandonment of a log of claims by the service of our later comprehensive log covering the same ground.

Can I get back to the facts? In our submission, it is useful to look at them chronologically to try to paint a verbal picture of what actually happened on the ground leading up to the proceedings in the Commission. From the Queensland point of view, it is useful also to point to some of the evidence to illustrate that what had actually happened in the ambulance service in Queensland showed that the industrial situation there was tranquil and appeared not to need change, change having been just effected comprehensively with the full co-operation of the Union. So, it is a factual situation which does not lend itself to an underlying dispute, even one of an interstate nature.

The evidence from one of the Unions - and there were two Unions at the time who combined together to serve the logs of claims - is summarised at pages 127 to 129 in the evidence of a Miss Forbath and she gives some of the background to how, as their Honours summarised, that there had been discussion at the federal level of the possibility of a federal award, at least extending into some States of the Commonwealth. I do not wish to read this in great detail, but she was a Union official - - -

KIRBY J: She is one of the many Union officials who, it is said, was called past and present to come and say what was genuine and really in their minds.

MR DOUGLAS: I think she was probably called to prove the circumstances giving rise to the dispute, the background, and there was some cross-examination about that. I think what, your Honours, is said there is really a comment on - - -

KIRBY J: It is a comment on a comment.

MR DOUGLAS: Yes, from Re McIntyre about other proceedings than this one.

KIRBY J: I see.

MR DOUGLAS: That was a comment by their Honours about proceedings they had been told of involving the State Public Services Federation. She was an employee industrial officer with the Ambulance Employees Association of Victoria, but she had been involved with the preparation of the claim for a federal award, and she sets out between page 127 about line 20 and page 129 line 10 the background to the service of the log of claims and the wish to change to a federal award. She was cross-examined really, to some extent, about changes in Victoria at that time and maintained that they were not necessarily the matters impelling movement to a federal award.

There is similar cross-examination of another Uunion official, a Mr Christodoulou, at pages 82 to 83 where, in particular, at the top of page 83, he is taken to an exhibit which is quoted in the transcript which was of a minute of a Union executive and delegates' meeting recording:

Latest developments following the change of government in Victoria was a decision made by the NCAU to seek federal award coverage.

That is part of the background from which one might infer that that was an immediate spur to a federal claim. Shortly after that meeting the first of two relevant logs of claims was served and that was in April 1993 and the letter accompanying the claim in so far as it relates to Queensland and the log of claims are set out at pages 3 to 33 of volume 1 and I think that a better copy of the log of claims has been provided since and for convenience the same log of claims served on the Victorian employers was set out - - -

KIRBY J: You did not mention in your issues the question of authority. That is not now of concern to us.

MR DOUGLAS: No, it is not.

KIRBY J: Thank you.

MR DOUGLAS: Between pages 1 to 18 there is set out a good copy of the log of claims which is in the same terms as that set out between pages 19 and 33. I will return to the terms of the logs of claims shortly, but can I in the first instance take you to page 18 which shows you the letter of demand of 23 April 1993 on the Commissioner for Queensland Ambulance Services. That requires the Commissioner within seven days of service of the letter to observe the terms and conditions detailed in the attached log of claims.

GUMMOW J: This is all summarised in the joint judgment in the Full Court. Do you cavil with the description of the facts in the - - -

MR DOUGLAS: No, and really I suppose for present purposes I can rely upon those facts generally. There are a couple of more facts I wish to draw your Honours' attention to which are not contained in the summary of the facts of the Full Court.

GUMMOW J: That is what I was wondering.

MR DOUGLAS: Yes. What I want to do is take you briefly to some of the terms set out in the log of claims, in particular, to draw your attention to the rates of pay and they are detailed in the Full Court judgment, and to the effect of some of the claims when considered together. For example, if you look at claim 10 in the log of claims; it is a claim for 30 hours work per week, but it really should be read with claim 11, which claims a meal break of one hour for each four hours worked; clause 19 has claims for rest pauses of 30 minutes in the first and second half of the day; clause 39, which claims washing time for half an hour before meal breaks and finishing work; which one adds them up cumulatively has the result that the claim for hours of work is really that there should be no hours of work per week. So that is one illustration of an approach to the log of claims which is valid and which leads to conclusions we say which illustrate that it is fanciful or silly.

KIRBY J: This all grows out of the history of ambit and, unless it falls foul of the genuineness and the real dispute, it is part of Australia's industrial history, is it not?

MR DOUGLAS: Yes, I will come to that shortly. There are other claims such as overtime and treble rates in clause 13, claims for eight weeks paid leave with 50 per cent loading in clause 16, claims of 100 days per annum for sick leave in clause 18, a claim in clause 30 that:

An employer shall not dismiss any employee -

and:

reinstate any forthwith all employees dismissed -

There are high claims for superannuation in clause 50. Clause 51 claims very high standards for employees of first class air fares to any city in Australia for each year of service plus travelling allowances for family members. Clause 70 has very high claims for travelling time at double time rates. Clause 54, for example, claims on incapacity or death an amount of $500,000 for the spouse and $100,000 for each child independently of any rights under workers compensation or common law claims. So there are claims that, faced with demands like this in any normal commercial context, a recipient would say, "This person can't be serious. There must be something else that they want".

DAWSON J: That is all you get out of it, is it not, that they are not genuine claims?

MR DOUGLAS: Yes, that is right.

DAWSON J: Do you draw any distinction between not genuine claims in this sense and ambit claims?

MR DOUGLAS: Yes, and I want to get to that later on in particular.

DAWSON J: Would you deal with that because I do not see the distinction myself, but do not deal with it now out of order.

MR DOUGLAS: Perhaps I could telegraph an approach. I would have thought that ambit claims properly so called should indicate what a Union wished to achieve over time, not what they currently demand. This is a demand for compliance within seven days.

DAWSON J: The distinction I do not see is how one gives rise to a genuine dispute and the other does not of itself.

MR DOUGLAS: No. When they are as silly as some of these claims, even over time, we would submit, they could not give rise to a dispute.

KIRBY J: The time projected was 20 years, I think, which is quite a long while.

MR DOUGLAS: No, the time asked was seven days. The Union official, when cross-examined, said, "Oh well, we're thinking about 20 years", but if we are talking about a paper dispute, they said seven days.

KIRBY J: Twenty years merely comes out of what the Union official said? There is no formalisation?

MR DOUGLAS: No.

KIRBY J: An award once made would apply as long as the Commission determined, would it not, or it would apply indefinitely?

MR DOUGLAS: Yes, either as long as the Commission established it should last or perhaps indefinitely.

DAWSON J: Is a dispute as to whether there should be Australia-wide coverage by a Union an industrial dispute?

MR DOUGLAS: I would have thought not.

DAWSON J: You are going to address that at some stage, are you?

MR DOUGLAS: I had not thought of addressing it. From recollection, the question arose in the SPSF Case during argument. I think Mr Justice Deane might have asked it on that occasion. Again from recollection, I think in that decision there might have been a statement to the effect that a claim simply for national coverage would not be an industrial dispute.

DAWSON J: I had in mind simply this, that of course the paper is only evidence of a dispute, and of course you have to find a dispute. If it is merely a vehicle for bringing the real dispute which is as to Union coverage before the Commission, the fanciful nature of the claims may not matter.

MR DOUGLAS: The authorities in this Court all say that a Union in making a demand must want not only, for example, to have federal coverage but also to achieve what it seeks in the demand within the framework of the log of claims.

DAWSON J: I wonder if that is right. If it is really demanding federal coverage it just says, "Well, there is a demand but the purpose of this is to get federal coverage." And if there is a dispute about that, then that is a genuine dispute.

MR DOUGLAS: Well, that has been regarded as not enough in this Court before.

DAWSON J: Can you take us to that matter.

MR DOUGLAS: Yes. I think it is really said in Ludeke, and it has been said in many cases before, that the Union has to not only want a federal award but also the terms claimed in the award to ground a dispute. So that simply they wish to have federal coverage would not be enough.

KIRBY J: Artificial as the paper dispute notion may be, it is (a) deeply entrenched in the long line of authority of the Court and (b) it has the advantage that you then cut away the sorts of disputes at the Commission level which it is said in the respondent's submissions have marked this litigation, 30 days of interrogation of the minds of the Union officials. That, presumably, was - - -

MR DOUGLAS: That was not in this case, again.

KIRBY J: I am sorry. But leave aside whether it is this case, that is the risk of undoing the jurisprudence of paper disputes.

MR DOUGLAS: I am not attacking the paper dispute doctrine as such, what I am saying is that this claim is so unrealistic that it should not be regarded as a claim to which anyone can make a sensible response. Of course one can have disputes on paper. As a lawyer in any sort of ordinary practice you see paper disputes of all sorts of types every day: solicitors exchanging correspondence; commercial parties exchanging correspondence. There is, I would have thought, no doubt that one can have an industrial dispute constituted by a paper dispute.

I am not arguing that, I am arguing that this claim here is a silly one. If you, for example, your Honour, in a commercial context were approached by a supplier of services to you who wanted to continue supplying services to you and said, "Well, look, I am offering to continue supplying services to you but I will charge you 15 times as much and give you one-tenth of the service" Your Honour, on receiving that, would say, "I don't think you are being serious about this. I will put that in a wastepaper bin. What do you really want?" That is what really this case is about.

KIRBY J: That is merely therefore an application of what the Court said in the State Public Service Federation Case.

MR DOUGLAS: Yes.

KIRBY J: There is nothing new about the case, it is just an application of established principle.

MR DOUGLAS: On one view it is. The complicating factor in this case is that this is a wider log of claims than the one in the State Public Services Federation Case and it includes claims that on one view may be reasonable, along with a lot of other claims that we would say would be quite unreasonable. It becomes a question then of how you apply the reasoning in the State Public Services Federation Case to this case and also how one approaches the interpretation of the decision of the Court in Reg v Ludeke.

Before I get onto that - and that is really what I am leading up to - can I just draw your attention, too, to some more evidence, which I will not go to in great detail - about the background in Queensland. I can summarise it - and it was really summarised in the Full Court judgment - by saying that there have been negotiations at the State level involving the State government, the Union and the ambulance service which have led to a changed Act, a changed structure of the service and a new award at the State level, all of which reflected the concerns of the Union and resulted in something that was essentially a consent award.

You can see that evidence at pages 192 to 193 of the evidence of Mr Shakespeare, who was an industrial officer employed by the ambulance service, and also in the evidence of a Mr Slowgrove, between pages 161 and 167. To further illustrate the apparent calm then persisting in Queensland, there is also evidence reproduced in a minute of a meeting of the parties to those proceedings within Queensland that, after the federal log of claims was initially served in 1993, Mr Slowgrove, an official of both the State and federal Unions, expressed the view that there was no present intention to pursue it in Queensland, but to leave it as a leave reserved matter.

Now, there was some dispute about whether Mr Slowgrove said that, or said additional things as well, but it seems quite clear, when one looks at page 167 in particular - - -

DAWSON J: This is a slightly different point, is it not? It is not saying that the demands are not genuine so much as saying that the log was served in Queensland merely to provide the interstate element, which is a different point.

MR DOUGLAS: Yes, true. And it also serves to paint the picture of the background to illustrate the artificiality of the nature of the claim. But when the Union has achieved what it appears to have wanted, a claim like this is so far removed from what it actually wanted and obtained - - -

DAWSON J: And there was never any intention to proceed in Queensland, is that the position?

MR DOUGLAS: That was denied by the Union at the federal level, but an official of the Union - both at the State and the Federal level - expressed such a view at an earlier stage, in 1993, that all that was wanted was to put it on a leave reserved position. Now, I am not advancing that as anything more than what I just said it was. It illustrates that there is an atmosphere of calm in Queensland, there is no apparent or obvious underlying dispute extending into that State, and no apparent need for the sorts of claims made in this log to meet the needs of the Union for its Queensland members.

TOOHEY J: Mr Douglas, no doubt you will develop the point, but I am puzzled as to what the relevance of the negotiations resulting in a different structure in an award at the State level have to do with the genuineness of the demand.

MR DOUGLAS: What it illustrates, in our submission, is that in Queensland there was, in effect, industrial peace achieved by a process of negotiation, where the Union achieves essentially what it wanted subject to, I think, half a dozen matters where negotiations were still proceeding.

GAUDRON J: And one consequence of your argument, if it succeeds, will undoubtedly be that every time a log of claims is served there will be industrial action.

MR DOUGLAS: Not necessarily.

GAUDRON J: It would be the easiest way of providing the evidence.

MR DOUGLAS: No. As I explained previously, I am not submitting that the evidence of a paper demand cannot lead to a dispute.

DAWSON J: What you are dealing with at this point was the interstate element, and I have expressed the view - I do not know if anyone else agrees with it - that where you have a situation which is apparently one in which the log of claims is served in a particular State merely to provide interstateness, then the prima facie evidence of a dispute by the service of a log of claims must be very weak indeed and the Commission should really look to the genuineness of the dispute. In that sense, it is different from a situation that one is just looking into the existence of the dispute as opposed to interstateness.

MR DOUGLAS: Yes, that is so, your Honour.

TOOHEY J: Is that the way you are putting it?

MR DOUGLAS: Yes.

KIRBY J: But does not that run into Justice Gaudron's question that, therefore, the easiest way to establish the interstateness will be to manoeuvre a dispute, that is to say, an argument - - -

MR DOUGLAS: Not necessarily. I would have thought the easiest way would have been to put up what the Union really wants now and into the future.

TOOHEY J: Could I just come back to my question to you, Mr Douglas?

MR DOUGLAS: Yes, your Honour.

TOOHEY J: I rather took you to be saying that it provides some sort of evidentiary foundation for a conclusion that the log of claims is not a genuine one. In response to what Justice Dawson put to you, you appeared to be putting it in the context of interstateness.

MR DOUGLAS: Yes. It can be seen as both. From the point of view of the evidentiary argument, what the Unions obtained for its members - and they are members of federal Union as well as of the State Union - are terms in Queensland that are quite at odds with what is contained in the demand.

TOOHEY J: But does that mean that at the point where the matter reaches this Court, we should then be involved in the consideration of a whole range of evidentiary considerations, I mean, outside the document itself?

MR DOUGLAS: I would not have thought so, but I think it simply illustrates the point that if you have a claim, and a federal log of claims, that is outlandish and almost contemporaneously shortly beforehand the Union for those members in Queensland has reached a settlement which is conceded to be virtually a consent award where the terms are quite different, it leaves one more readily to conclude that the claims made federally are just fanciful.

DAWSON J: I am surprised at that answer, Mr Douglas, because it has been said quite often that the existence of a dispute, quite correctly, is the constitutional foundation of any jurisdiction and that this Court is bound to see that there is such a thing.

MR DOUGLAS: That is so, your Honour.

DAWSON J: And it has been said time and time again that the paper is merely evidentiary and if, on the face of it, the situation is otherwise, then this Court will be bound to go into it if the question were raised, because it is - - -

MR DOUGLAS: Yes, the cases do say that, your Honour.

DAWSON J: Yes, there you are. You are saying that this Court does not have to go into it, this Court may not want to go into it, but if the issue raised itself, I would have thought on the cases it was clear that it does have to do so.

MR DOUGLAS: Yes. I am sorry, I thought I was saying that the evidence in Queensland illustrated that the claims were fantastic and the evidence being that a consent award has been achieved at quite different rates for different terms of employment. Now, that suggests that (a) the claims are fantastic and it also suggests your Honour's point that you raised with me earlier on that Queensland has joined, not because there is a genuine wish for better terms in Queensland, but for the interstateness of the dispute.

KIRBY J: Presumably one of the reasons that might have laid behind the provisions - the court decisions on paper disputes was to avoid the uncongenial task of examining the constitutional facts, that it is whether a dispute was genuine or not, at least in this Court.

MR DOUGLAS: Perhaps so, but perhaps even more historically apt might have been a view that if one could rely upon paper claims as evidence of a dispute it might have the result that there would be less industrial disputation of the more unpleasant sort.

KIRBY J: Well, you have given two good reasons for paper disputes.

MR DOUGLAS: But, as I say, I am not really here talking about paper disputes. I am talking about something else.

KIRBY J: But if you attack the genuineness then the surest way to establish genuineness is to have a real genuine ding- dong strike.

MR DOUGLAS: I would have thought really, your Honour, that the surest way to establish genuineness was for the Union to put up claims that are sensible and if they do want to establish ambits say, "Well, look, this is what we want now; this is what we want in the future and what we are working towards. Why don't you agree," to the employer, "to set in train a process by which we can achieve these claims over time and agree to these claims now?" That is realistic.

McHUGH J: The strike is not the dispute. It is the disagreement that is the dispute and I suppose if the Union went on strike demanding 2,000 per week for each employee, it is almost incomprehensible in terms of industrial reality, but if it did, it would seem to raise a serious question as to whether or not they were not motivated by something else, rather than a demand for 2,000 per week for each of its employees.

MR DOUGLAS: Yes, it might have been a motivation to have a federal award no matter what and not really a wish for the claims said to have been made leading to the strike.

DAWSON J: Really all you are saying is that the existence of a paper demand and a refusal does not relieve the Commission of the task of looking to see whether there really is a dispute.

MR DOUGLAS: Yes, and does the Union really want this.

DAWSON J: That has always been the law, as far I know.

MR DOUGLAS: Yes. The Court has said on numerous occasions - and the authorities are listed in the written submissions - the paper or the dispute has to be one where the Union really wants what it demands.

DAWSON J: It has to be really a dispute.

MR DOUGLAS: That is right.

BRENNAN CJ: Then, Mr Douglas, you need to do two things, do you not? One is to identify the clauses in the log of claims that you say are extravagant to the point of supporting your argument; you need to point to the findings of fact as to the surrounding circumstances in which that log of claims has been delivered and then you need to point to the passages in the judgments of this Court which indicate the limits of the ambit doctrine. Those are the ingredients of your argument, are they?

MR DOUGLAS: They are, yes.

BRENNAN CJ: Then you may as well get to them.

MR DOUGLAS: I tried to list the clauses in the log of claims briefly before in response to Justice Gummow's question. Could I add to them in particular the claims for wages which are set out in claims 2 and following, claiming wages and allowances which the evidence shows were very much higher than current standards and far higher than could in effect reasonably be expected.

KIRBY J: Which one do we concentrate on? This is the first log of claims. I know you have - - -

MR DOUGLAS: The first log of claims is the April one. It is still extant according to the order of the Commission. It was in effect from the Commission's point of view added to by a later claim in December.

KIRBY J: But in the matter of wages it went down from 2,000 to 800, I think.

MR DOUGLAS: As a minimum it went down to 800; as a maximum it went up to 2,500. That December log of claims is set out in volume 2 at pages 333 and following.

TOOHEY J: You spoke of a loose copy, Mr Douglas. I was not sure whether you said we had been provided or you had in mind to provide it.

MR DOUGLAS: I would think that probably the most convenient way the Court can see a better copy of the April log of claims is to look at the copy attached to the Victorian letter of demand. That is between pages 3 and 16 of the first volume of the appeal book. It is copied, but less effectively, between pages 19 and 33. The second log of claims is set out following a letter of demand on page 333 between pages 334 and 348. Conveniently for present purposes they are analysed with a comparison to existing conditions in Queensland by a Mr Allen who gave evidence for Queensland between pages 832 and 850 in volume 4 of the appeal book. If one starts on page 837 there is an annexure to Mr Allen's witness statement which sets out in a tabular form the current conditions. They are claims made in the December log of claims and they are claims made in the April log of claims. It is actually in the right-hand column labelled "Claim 30/6/93". That was a mistake. It should have been 23 April 1993.

DAWSON J: I do not understand the minimum and maximum, how that works.

MR DOUGLAS: The second log of claims, if I can take the Court to that at page 334 of volume 2, set out in effect a structure of payment to different classes of employees starting, I suppose, at a base rate of $800 and going up in category 5 to $2,500.

Now, when one looks at both claims together, we would say that the claims for wages and allowances in clauses 1 to 7, or 1 to 8, depending on which log of claims it is, are far in excess - fantastically in excess of current conditions and can bear no relation to industrial conditions, to use some of the language in the SPSF Case. I have taken you before to the working hours, which requires one really, as I said before, to combine the effect of clauses 10, 11, 19, 39 to realise their full effect, and I have also referred you to clauses 13, 16, 18, 19, 30, 50, 51, 54 and 70 as the most outstanding examples of what we submit are the fanciful nature of the claims. Now, they vary, to some extent - - -

KIRBY J: I suppose at one stage it would have been thought that paternity leave, or maternity leave was a fanciful claim, but industrial developments occur and what appears fanciful in one generation, or one time, becomes part of industrial reality.

MR DOUGLAS: That is so, your Honour. And what may seem reasonable today, or achievable today, may be quite different from what one may legitimately say could be achievable over a 20 year time period.

KIRBY J: These claims are the children of the ambit doctrine, really. They grow out of a feeling that, "We had better cover it, because if we do not we will get knocked on the head and told we have gone outside our dispute." Maybe, as Justice Gaudron and Justice Murphy have suggested, it is not necessary to have it within the exact parameters of the original ambit; if it is connected with, or incidental to, or related to the dispute, that that is enough.

MR DOUGLAS: Well, that is what the cases say; if it is connected to, or incidental to, or related to. I do not want to really approach this too much at the moment as an ambit case. We are not here comparing a provision of an award with something claimed. All that we wish to say about ambit is that it was not necessary for the Union to achieve what it wanted to conflate its claims in this manner, and it is not necessary because of things the High Curt has said in the past. If they have done it in this fashion, that leads one to conclude, therefore, that there is some other motivation behind the claim, that it is a fanciful claim, and not one that can lead to a dispute.

McHUGH J: I know that section 148 in the Act continues on awards after they expire, but does the Commission have any practice as to the length of new awards? Do they make them for a year, three years, five years these days, do you know?

MR DOUGLAS: I am not sure, your Honour. I have got a feeling that there is a provision in the Act now that requires the Commission to review awards, I think perhaps every three years, to make sure that they are consistent with modern conditions. I have not got that provision at my fingertips, but I can have a look for it and tell you later.

McHUGH J: It might throw some light on matters if one knew, for example, that the Commission makes awards for five years, 10 years, three years, or one year.

MR DOUGLAS: Yes. I would have thought that they would make awards and people can then come along to apply to vary them.

McHUGH J: Well, they have got to, unless the Act has changed - I do not think it has, has it - the old section 147 used to provide for an award to have a period.

MR DOUGLAS: It also provided that it should continue on after that. I will check that, your Honour.

KIRBY J: Behind your arguments of a legal character I take it that there is the suggestion that a fault of the current doctrine is that, as I think Justice Windeyer says, you create an excessive malady and, in a sense, create the potential of disputation rather than attacking what are the real issues in dispute between industrial parties.

MR DOUGLAS: I think his Honour there was probably referring to the paper dispute doctrine as such. I am not really contending that you cannot have a dispute on paper. As a matter of fact I have conceded that one - - -

BRENNAN CJ: You are accepting the ambit doctrine as an established doctrine.

MR DOUGLAS: I want to make some qualifications about its expression in Reg v Ludeke.

BRENNAN CJ: I understand that.

MR DOUGLAS: I am saying that one can have paper disputes. I suppose what I am saying about ambit is, that if you want ambit to reflect what you would hope to achieve in the future, why do you not say that rather than saying you want it now?

BRENNAN CJ: Yes. Can we get to either the facts or the principles of law which are going to flesh out your argument.

MR DOUGLAS: Thank you, your Honour. They are the clauses we wanted to refer to in particular to illustrate the proposition that it is a fanciful claim. Some of the evidence that lends itself to that suggestion is also worth going to because it leads one to the conclusion that the claims made were, in effect, plucked out of the air. Again, if I can take you to some of that.

BRENNAN CJ: Are there any findings on these subjects that you want to refer us to?

MR DOUGLAS: No, there are not any findings to that effect, or even to a converse effect.

BRENNAN CJ: Is the evidence you wish to take us to the subject of controversy?

MR DOUGLAS: I would not have thought so, no. Can I take you first to volume 1, page 77. That is really some cross-examination of Mr Christodoulou about the particular claims and the log for salaries and for air fares. He conceded, at about line 20, that it was:

a request for every employee to get paid four times more than the highest figure that he could think of at the moment,

the highest figure payable to any employee anywhere, which we would submit, in the context of a claim designed to be met within seven days, was just silly.

If I could then take you to page 80. Between lines 1 and 33 he was cross-examined about whether the Union gave any thought to the effects of the log or whether the employer would be able to provide the money or the conditions of employment sought.

He agreed that he had not. He agreed that it would require many more employees if these terms were provided. He said it was an unrealistic claim, but he agreed that he had not:

taken into account or calculated what effect it might have on the service if this claim, or claim such as this were allowed?

He said they had do no costing on the additional costs. This is about line 25:

for overtime or for travel allowances affecting the employer -

so, again, it is really evidence suggesting that this is something that bears no relation to reality or present viability of the demands.

At page 135 Ms Forbath really gave similar evidence. She had not tried to work out how much per hour an ambulance officer would receive on the claims made in the log and she conceded after cross-examination about it:

that the real effective hourly rate for that person would be $731 an hour.

If it were $731 an hour it would surprise her, the current rate being $13.90 an hour. So, again, it just suggests that the Union was not realistically approaching what its claims or needs for its members were. Could I then take you to page 140.

McHUGH J: This cross-examination is in respect of the first log.

MR DOUGLAS: That is so, yes, which is still extant.

McHUGH J: Yes.

MR DOUGLAS: It is still said to be seriously pursued and, of course, it includes a claim for CPI indexation of the wages, which is not included in the second log.

KIRBY J: The respondent suggested this is the mischief of the genuineness doctrine, that every Union official who has ever had anything to do with it past and present is brought along, examined at great length and maybe nothing else can be done about it, but that is what seems to be happening here.

MR DOUGLAS: It puts the cart before the horse, your Honour, if one says that. The High Court said many times you must genuinely want what you demand, therefore, why not, as a Union official, genuinely demand what you want and take account of the ambit doctrine by saying, "This is what we want over time. This is what we want now. This is what we want over time"? Say what you mean or mean what you say.

KIRBY J: Yes, but whatever you say, there is going to be an attack on its genuineness and it is going to last 30 days and that does not seem very constructive.

MR DOUGLAS: No, your Honour. If one is faced with a seriously intended claim, sensibly put - - -

KIRBY J: You say it will just be accepted?

MR DOUGLAS: No, it would not be accepted, but the employer will not necessarily accept it - - -

KIRBY J: That defies 100 years of industrial history.

MR DOUGLAS: Well, the employer probably might not accept it, but it might say in proceedings before the Commission, "Well, obviously this is a seriously-intended claim. Let's have it arbitrated. We disagree with you about that. We disagree with you about that." But there need not be these sorts of disputes about whether there really is a dispute.

McHUGH J: Can I just ask you a very practical question? Supposing the validity of this log was upheld and an award was made that the drivers get, say, $400 a week and then in three years time, they come along and they ask for a variation of 600. What is the practical difference if they asked for 400 or 500 or 600 now and they came along in three years time and instead of seeking to vary the existing award, they just had a fresh log of claims asking for $700 a week?

MR DOUGLAS: The practical difference from the Union's point of view I think, they say, is that they would have to serve all the employers again, and that is difficult and expensive.

McHUGH J: That is what I thought. That is the beginning and end of it, is it? That is what it is all about.

MR DOUGLAS: Often, yes.

DAWSON J: And really, intellectually, you cannot justify it because if an award is made in settlement of a claim which does not give them the full amount then, presumably, the dispute is settled, and when the variation is sought, that really is a new dispute.

MR DOUGLAS: That is my view, your Honour.

DAWSON J: An ambit just does not make any sense to me.

McHUGH J: There may be a serious question as to whether a right to vary an award which might be legitimate to some extent is not being misunderstood from a constitutional point of view so that it is being used for a purpose which is constitutionally impermissible.

MR DOUGLAS: I am not sure that I follow that question, your Honour.

McHUGH J: It is one thing to vary award so that the nuts and bolts machinery can make the award work efficiently. It is another thing when the court settles an award by saying, "Well, if the claim is $600 a week, we award $400 a week", and then you come along in three years time and you say, "I want you to vary that award that you gave me. I now want you to give me 500 or $550 a week". Is that really a variation, or is it really - is it really a variation - - -

MR DOUGLAS: It may not be.

McHUGH J: The dispute has ended. In one sense, you might say, "Well, you're functus officio".

MR DOUGLAS: That is what Justice Dawson was saying then too.

BRENNAN CJ: Why cannot it be used to prevent the occurrence of an industrial dispute?

MR DOUGLAS: That is the rationale for it, your Honour. Another rationale might be - and it does not really arise here, so that is why I did not - - -

BRENNAN CJ: No. My question to you is on the footing that you restrict the notion of what is legitimate to create a paper dispute, and if there is an award made in settlement of that then, if circumstances change so that even the demand that was made is no longer sufficient and there is then a request for a variation, the power is enlivened in order to prevent the occurrence of an industrial dispute.

MR DOUGLAS: Yes, that is quite possible, your Honour.

DAWSON J: But it is a different industrial dispute.

MR DOUGLAS: It may be a different apprehended one.

McHUGH J: You are not varying the old dispute, and that is a powerful argument for saying that these inflated claims should be looked at very closely.

MR DOUGLAS: Yes.

DAWSON J: Could I - and I know you say you are coming to it, Mr Douglas, but I do not see any difference between an ambit claim and a claim such as the one here, except an amount. To say it is fanciful does not alter the situation. Both are claims which you do not make at the moment, and that is the only important thing.

MR DOUGLAS: But one can have a claim, for example, that might not be productive of a result now.

DAWSON J: That is true.

MR DOUGLAS: You might have a claim that if there is a redundancy, a certain procedure should be followed, hoping that there will not be any redundancies.

DAWSON J: But that does not give rise to a present dispute about that because it is not acceded to now, because you only need the accession in the future.

MR DOUGLAS: It could give rise for a present dispute about the regime set up to deal with redundancies.

DAWSON J: Well, possibly, but that is not what we are really talking about, is it?

MR DOUGLAS: I suppose I partly was putting that up as a proposition, because one can imagine a Union saying, "This is what we want now", and being realistic about it, "We want a 3 per cent wage increase", or something like that.

DAWSON J: Certainly that can occur, but what you have with an ambit claim is not that. You have a claim for something they do not want now which the employer is justified in saying "I'm not giving you now", and you do not have any indication of what they really want. If you do, then that is the dispute, not what is on paper. What this Court has said, and it seems to make sense, is that if you merely have an ambit claim and say to the Industrial Relations Commission, "You now regulate our wages in a proper way", that is not an industrial dispute.

MR DOUGLAS: Yes. I suppose what I am positing though is something like this: say you can legitimately aim to achieve a particular level of salary, say you are acting for an academic union and you think that academics' relative salaries have decreased enormously over the last 20 years and they need to be brought back up to something like what they used to be and you think it is unrealistic to ask for it tomorrow but you might seriously wish to aim for an increase by 50 per cent in their salaries over ten years.

DAWSON J: Of course you might, but the dispute you have, the present dispute, is the refusal to give what you want, not what you want in the future.

MR DOUGLAS: Right, but can you not also say, your Honour, to the employer, "This is what we want now. We aim to achieve this in 10 years' time. We want you to agree with us now to set up a regime to negotiate towards that over that period"? If the employer says, "No, we won't agree to set up such a regime", there is a dispute about that, is there not? That might be something of a different angle on ambit.

DAWSON J: Yes, but it is a dispute that is not settled by making it an award in relation to a present claim, which is the way it works, and saying that the dispute continues on so that we can vary this from time to time.

MR DOUGLAS: I suppose what I am suggesting there is a legitimate concept of ambit which reflects the truth of the claim, that if there is a serious ambit claim, what we want is something like this over a period.

TOOHEY J: It is becoming very semantic, is it not?

MR DOUGLAS: I would not have thought so, your Honour.

TOOHEY J: It is not a criticism necessarily of the way you are putting it; just that the word "ambit" is floating around as meaning both what is now demanded without any real hope or expectation that that will be granted, and the sense in which you are using "ambit" which is really to a claim that is formulated having regard to its long-term operation.

MR DOUGLAS: And which is what, when one looks at the facts, is often the way the Union thinks of it. I suppose the next passage of evidence really illustrates that point because that is where the Union official concedes that what the Union is really looking at is something attainable over 10, 15 or 20 years.

BRENNAN CJ: What is that next passage of evidence?

MR DOUGLAS: Page 140, your Honour, lines 7 to 35, where Ms Forbath was cross-examined about initially sick leave adding up to a very large number of weeks per year. On a 30-hour week it would have been 52 weeks of the year.

GAUDRON J: Mr Douglas, there is a question worrying me. This is an appeal. I presume it is an appeal as to a question of law.

MR DOUGLAS: It is, yes.

GAUDRON J: Where is the error of law in the Full Federal Court's judgment? What specifically do you say are the errors of law? I presume you are not appealing - I mean, the case is running as though it is an appeal on facts.

MR DOUGLAS: I hope I have not created that impression too strongly.

GAUDRON J: I have not heard you advance a suggestion of an error of law yet in the Full Court's decision.

MR DOUGLAS: The error of law is that the Full Court should have construed this log of claims to have been one which made fanciful demands which could not realistically have been advanced by the Union.

GAUDRON J: Is that an error of law? I mean, the question was at all times a question of fact. Was there a genuine dispute?

MR DOUGLAS: Yes.

GAUDRON J: It may be a constitutional question of fact, but it is nonetheless a question of fact.

MR DOUGLAS: And the question of law which arises then is, if this is such a fanciful claim, is its combination with other claims that may not be fanciful enough to - - -

GAUDRON J: That question was considered by the court, and it was held that it was not fanciful; that when you had regard to the extensive nature of the claims made, the fact that they covered all conditions of employment, you could not say it was fanciful. Is it an error of law to reach a conclusion that something is or is not fanciful?

MR DOUGLAS: It is in this context, where they reached that conclusion because of the nature of the log of claims of being a general log of claims covering a variety of different claims. We would submit that that really ignores the result of the reasoning in the SPSF Case and requires the Court to look at that.

DAWSON J: In reality, what you are saying is there was no evidence on which they could find an interstate industrial dispute, and that is the question of law.

MR DOUGLAS: Yes, that is right.

GAUDRON J: But there was plenty of evidence. That is your difficulty; there was plenty of - - -

DAWSON J: No probative evidence.

MR DOUGLAS: Yes.

KIRBY J: I rather took you to be saying that if one looks at the evidence, and looks and their conclusion, it suggests that they were applying an incorrect understanding of the test, or an incorrect test of their own, to reach that conclusion on that evidence.

MR DOUGLAS: That is so, too, your Honour, yes.

KIRBY J: It is like Hope and the other cases of indicating legal error by the consequence of what they did.

MR DOUGLAS: Yes.

GUMMOW J: I hope, at some stage, to be taken to the passage which demonstrates the error.

MR DOUGLAS: I will, I hope, your Honour.

GUMMOW J: The passages in Justice Northrop's judgment, and the joint judgment.

MR DOUGLAS: The joint judgment, in particular, I was going to take you to.

BRENNAN CJ: Could I just understand one thing to start with? Do you limit your appeal to a question of law?

MR DOUGLAS: We have to show jurisdictional error.

BRENNAN CJ: That may be so, but the question that fell for determination before the Full Court was whether or not there was an interstate dispute, which is a jurisdictional question.

MR DOUGLAS: Yes.

BRENNAN CJ: You are challenging the finding that they made.

MR DOUGLAS: Yes.

BRENNAN CJ: Well, that involves a consideration - - -

MR DOUGLAS: Of the jurisdictional facts.

BRENNAN CJ: - - - of the facts, and of the law.

MR DOUGLAS: Yes.

BRENNAN CJ: Now, just tell me what your ground is.

MR DOUGLAS: I am trying to show by an examination of the facts that these claims were not such as could give rise to a true interstate dispute and then I wish then to take your Honours to various analyses of the law, both in this Court and - - -

BRENNAN CJ: Then what you are saying is on a true understanding of the principle of law the facts did not support the finding.

MR DOUGLAS: Yes.

BRENNAN CJ: Or, alternatively, on the undoubted facts the court must have misunderstood the law in order to reach the finding.

MR DOUGLAS: Yes, thank you, your Honour. I do not have very many more facts to take you to, if that might assist your Honour.

BRENNAN CJ: Yes. Well, 140 we have dealt with. What is the next one?

MR DOUGLAS: Page 143, line 24, page 144. I do not wish to read it, but it needs to be compared with the terms and conditions applied to people under the Metal Industry Award and the passage of evidence in the cross-examination of Ms Forbath really illustrates that the Union at this time was considering in effect what realistically its members might expect by comparison with an existing award, namely, the Metal Industry Award, and had done an exercise to compare what its employees might earn by comparison with that. None of that, of course, was reflected in the claim, but it is a useful counterfoil to show that if you are pursuing something realistic, this was something realistic that they had in their mind, which they did not pursue, which, again, leads one to conclude that the claims made in the log of claims were not realistic.

As I said before, we wish to address your Honours then on some of the legal issues which we would submit lead to the conclusion that this was not a claim that validly led to an interstate dispute. Can we commence by looking at what constitutes a dispute then look some more at the role of the doctrine of ambit and the significance of the decision of this Court in Reg v Ludeke, whether you can aggregate claims to test their genuineness and the other matters I referred to before. In our submission, a dispute is relevantly constituted by a state of disagreement between the industrial parties in question.

One cannot state categorically or a priori the form that such a disagreement must take. Whether there is a dispute and, if so, what kind, must depend on the circumstances of each case. Usually in industrial relations a dispute is about what is to be done or not done. One party will have it is his or her power to do the thing and the other party may want it to be done or not to be done. It is also possible to have a state of disagreement about what one or other of the parties will agree to do or not to do in the future, although the occasion for acting in the way desired by the other party will not arise until some time in the future, the state of disagreement presently exists.

For example, I gave the example before about a redundancy claim and the employees might ask the employer not to dismiss anyone for redundancy without the giving of a specified period of notice. They may do so notwithstanding that they hope that no one will ever be dismissed on such a ground. If the employer does not agree, there would be a dispute presently existing.

DAWSON J: But that is as to the present conditions of employment.

MR DOUGLAS: Yes.

DAWSON J: I do not see how a dispute as to future conditions of employment, when the employer may not be there, the employee may not be there and there may be no relationship of employer and employee, can be an industrial dispute.

MR DOUGLAS: There is recognised a continuing role for organisations under the Act which will continue to exist into the future, presumably.

DAWSON J: True. If you are arguing about something which may or may not happen in the future it does not seem to me that that is a present industrial dispute.

MR DOUGLAS: It could become a present industrial dispute if there was an argument about the establishment of a regime for dealing with matters that arise in the future.

DAWSON J: Or present conditions of employment but wages in the future are not present conditions of employment simply.

GAUDRON J: Why can there not be a dispute which says, for example, that ambulance officers shall at all times be paid two-thirds of the rate of pay paid to High Court judges?

MR DOUGLAS: Of course they can.

GAUDRON J: That goes for the future.

DAWSON J: I mean, every condition that is laid down in an award goes to the future, it is a regime for the future; but when you are talking about something that is not a regime that has been included in the award but something that is out there, that is not an industrial dispute. It is an argument about what the future should contain and it was not about the present terms and conditions arising from the relationship of employer and employee at the moment.

MR DOUGLAS: I suppose the example I was thinking of, your Honour, was if, for example, a Union said, "We want our employees to be paid $1,000 a week by the turn of the century."

DAWSON J: That is not an industrial dispute, but, "We want our employees to be paid now this amount and if you refuse we are disputing with you", that is an industrial dispute.

MR DOUGLAS: And, "We also wish you to negotiate with us to achieve that aim by the turn of the century."

DAWSON J: If the award provides for a method of negotiation, yes, that is a present condition. To simply say, "We agree to pay such employees as we have in the Year 2000 this amount if we are still an employer," that cannot be the subject of an industrial dispute. We are talking about present industrial disputes.

MR DOUGLAS: Yes.

DAWSON J: If that is the reason, I really cannot see the difference between what you term a fanciful claim and an ambit claim. In principle, they are the same. They are an indication that the employees will wish in the future something but are not wanting it now.

MR DOUGLAS: Some fanciful claims one would never expect to be attainable, though.

DAWSON J: That is right.

MR DOUGLAS: Some of the claims in this one, I mean.

DAWSON J: But the nature of an ambit claim is that they do not expect that to be attainable now either.

MR DOUGLAS: I suppose what concerns me, your Honour, is that here in this log of claims there are claims about hours of employment which if aggregated would mean no hours of employment. Realistically, in an employment situation one can never consider that that result would ever be attained by the Union.

KIRBY J: You say that, but "never" is a big word in industrial relations. I mean, there could be a view that we are moving towards more part-time work and shorter hours. I mean, that seems to be the reality. So who is to know what will happen in 20 years.

MR DOUGLAS: I seriously doubt, your Honour, whether - - -

KIRBY J: I am merely saying that all these claims are the children of the ambit doctrine.

MR DOUGLAS: Yes, but I seriously doubt whether in 20 years time we will have 15 times the salary for no hours of work.

KIRBY J: Who knows?

BRENNAN CJ: Mr Douglas, your problem is to decide whether or not you wish to embrace the propositions put to you by Justice Dawson or not.

MR DOUGLAS: Yes, that is so, your Honour.

BRENNAN CJ: If you wish to embrace it, then no doubt you will have to defend it. If you do not, then you adhere to whatever modified view you have got in relation to ambit.

MR DOUGLAS: Yes. I would wish to submit that there is the possibility of having present disagreement about future terms and conditions of employment or about a regime designed to set them in place and that ambit can - - -

DAWSON J: No doubt, but is it an industrial disagreement or is it a disagreement about something in the future which does not concern present industrial conditions?

MR DOUGLAS: It may not concern present industrial conditions; it may concern any negotiating regime set up to deal with conditions into the future which could be an industrial dispute, in my submission.

TOOHEY J: You do not appear to be excluding as an industrial dispute a claim that has built into it some formula by way of adjustment as this one does, for instance, with CPI increases.

MR DOUGLAS: That is right.

DAWSON J: No, that is different.

MR DOUGLAS: That is, as your Honour would say, a present condition of employment but it does have future effects. I would have thought that something like that can be regarded as an industrial dispute if there is disagreement about it. I suppose I am trying to rely upon that to draw a distinction between an ambit claim properly so called and a fanciful claim which seriously could never be - - -

DAWSON J: I am talking about a claim for $5,000 wages a week which you would say is fanciful, and a claim for, let us say, $500 a week which is not fanciful but is not what they want at the moment. In identifying the dispute, it is not a dispute about $500, it is a dispute about something else, and the paper does not help you.

MR DOUGLAS: No, that is so, your Honour.

DAWSON J: What we have said is that you have to be able to identify what it is you want. You cannot go to the Commission just asking to regulate wages, so in that situation where you have a claim which is not a claim that is being made, with no specification of the claim that is actually being made, you do not have an industrial dispute.

MR DOUGLAS: Yes.

DAWSON J: Very well.

KIRBY J: May you not have an industrial dispute but not the industrial dispute that is being claimed?

MR DOUGLAS: Yes, but when you limit yourself to a paper claim, that is what you have to live with. If you want to give evidence of some other dispute, you can do that but, when you put up the paper claim as the evidence of the dispute, you are limited to that.

KIRBY J: Why can you not simply say that characterising this, the dispute is about wages?

MR DOUGLAS: That then just asks the Commission to regulate without really deciding a dispute, and that is what one of the principal ratios of the SPSF Case was. It is a body set up to determine disputes between parties, not to regulate generally.

KIRBY J: Did the evidence reveal how many employers had to be served by this log of claims? I have a feeling that some of the difficulties which existed at the turn of the century in serving all the employers by horse-drawn postal vans would not exist today.

MR DOUGLAS: There were a significant number of employees in Victoria, only one in Queensland, I think one in the Northern Territory and one in Western Australia. I am not sure about Western Australia but there were a significant number in Victoria because of the different arrangement of the employment relationship there. They are listed at the end of the second log of claims which starts on page 333 of the record.

Can I revert to this question of a dispute. What we submit is that the dispute is constituted by the quality of the reaction of the addressee of the demand or request to the receipt of it. What is necessary in the way of a reaction to bring a dispute into existence depends on the terms of the demand or request. Thus, if the demand is for an immediate change to the status quo, there will be a dispute if there is no immediate change. It will not prevent a dispute from coming into existence if the addressee merely agrees to make the change at some time in the future but, if the demand were for a present agreement to make some change in the future and that demand were assented to, there would be no dispute notwithstanding that matters presently remain unchanged.

GUMMOW J: When you talk about dispute, we are talking about the phrase "industrial dispute", are we not, in the statute?

MR DOUGLAS: We are, your Honour, yes, and in the Constitution.

GUMMOW J: Well, that is what I was wondering.

MR DOUGLAS: We are really talking about it in the Constitution in the present context.

GUMMOW J: No one denies, do they, that the term in the statute is valid?

MR DOUGLAS: No, your Honour. There was some debate in previous case - - -

GUMMOW J: Maybe narrower than that.

MR DOUGLAS: - - - whether it affected what was in the Constitution.

GUMMOW J: It may be narrower, may it not?

MR DOUGLAS: I think it has been amended to more or less reflect what the Court seems to think it means constitutionally.

GUMMOW J: But what is being sought here was restraint for excess of such jurisdiction as conferred on the Commission by the Act.

MR DOUGLAS: Yes.

GUMMOW J: So we must be talking about the Act.

MR DOUGLAS: Yes. We are also talking about the proper construction under the Constitution of the word "dispute" there because the Act derives its authority from the Constitution.

GUMMOW J: I do not see that as self-evident, I am sorry.

MR DOUGLAS: I suppose the Act could derive power from other heads of power as well in a different context, but when one is talking about conciliation and arbitration for the prevention and settlement of disputes, the Commission derives its power to conciliate and arbitrate from the Act, but the Act derives its constitutional authority from section 51(xxxv).

GUMMOW J: And deeming the Act valid, not challenged.

MR DOUGLAS: That is right. So in our submission, there is a significant qualitative difference between a demand that some change be made now and a demand that there be present agreement to the same change at some time in the future. When you look at the log of claims in this case, what is demanded is actual observance of the claim set out on the log within seven days. There is no demand for agreement within seven days to the implementation of the claims at some later time. If the claims were genuine ones, the failure of the employers to observe them within the seven days gave rise to a state of disagreement and, therefore, to a dispute, but if the claims were not genuine, that is, if the claimants did not genuinely want the claims to be observed within seven days, then the failure of the employers to observe them within the seven days could not have given rise to a dispute.

This is because the conclusion of the log of claims was not genuine destroys its capacity to stand as evidence of a state of disagreement and, therefore, of a dispute. Whether the claims in the log were genuine in the above sense is another question. It is a question which concerns not the expectations of the claimants as to the likelihood of the claims being granted but the actuality of the claimants' demands and the terms in which they were expressed. A letter of demand cannot be evidence of a dispute in any other terms.

However, the claims in this case may be characterised as impossible of acceptance not merely because one knows that employers receiving them would look at them all and decide they were too high to be agreed to, the claims have that immediately apparent look of fantasy about them so as to support the conclusion that no rational claimant, at least where the claimants were a registered organisation, could possibly mean what is said in the letter of demand.

The impression which one gets from a reading of the letter of demand and the log of claims inevitably sends one elsewhere to answer the question: why have the claimants so acted? But the answer lies in the doctrine of ambit as suggested not only by the experience of many cases in this Court but also by the tenor of the evidence given on behalf of the claimants in this case. Indeed, given that doctrine, it may have seemed quite rational that a Union should want to pitch demands at a level well above anything which it actually wants in the present time frame.

To rationalise the demands on the basis of providing ambit for future variations is tantamount to re-expressing the demands, having discovered the real demands, as demands for a present agreement to changes at some time in the future. There are at least two difficulties with that reconstruction. First, it changes the quality of the demand to one which finds no support in the words of the letter and thus gives a different consequence to the reaction of an employer who merely does nothing upon receipt of a letter. Merely to decline to give actual immediate implementation to a demand for an agreement to some change in the future does not, of itself, bring a dispute into existence.

To express this another way, a recipient employer may have been receptive to the suggestion that the changes be made over a period of time, but the letter did not give that person such an option. Secondly, the reconstruction leaves unspecified the terms of the real demand. When is the actual observance of these terms and conditions desired? Which terms and conditions and what amounts of remuneration are to be granted, at what time or times in the future? Without knowing these things, the employer could not respond to the demands. To express these propositions differently, the admission that considerations of future ambit lay behind the exaggerated nature of the claims contradicts the actual terms of the letter and compels the conclusion that the claims were not genuine.

Can I then go on to have a look at this doctrine of ambit and the decision in Reg v Ludeke (1985) 159 CLR at 178. In our submission, the so-called doctrine of ambit means no more than that the Commission cannot make an award which is not in fact by way of prevention or settlement of a dispute, but you still must have the dispute.

The Union's case here suggest that considerations of ambit rather compelled claimants to demand what they do not want but what they might, in the future, want. That case speaks volumes of the non- genuineness of the log of claims. Indeed, the evidence suggests that the Union was motivated by not wanting to have to serve logs of claims again for some considerable time to come. If this means, which it appears to do, that the Union is taking the opportunity now to make not only the demands which it presently has but also the demands which, on any way, it thinks it might have for many years into the future, it must follow that the Union was not genuine about the claims on the log and the terms on which they were expressed. It is true, and it is expressed in Ludeke at pages 182 to 183, that the requirement of genuineness does not mean that the claimant:

must be intent on obtaining forthwith every item which is mentioned in the log -

that is at the foot of page 182.

GAUDRON J: You accept that, do you not?

MR DOUGLAS: Yes, I do.

MR DOUGLAS: Yes, I do.

GAUDRON J: But you wish to put a gloss on it.

MR DOUGLAS: Yes, and I wish to, I suppose, cavil with, or say something about the following sentence, really in the light of something your Honour said later in the PKIU Case, Ex parte Vista Paper Products, the following sentence being:

The requirements of the ambit doctrine not only promote, but necessitate, the making of inflated demands.

If I could, I will come back to that shortly. But I do not cavil with the first sentence. The statement in the first sentence I just referred to goes no further than to establish that if a Union wants to make claims over a period extending into the future, it may do so. Its claims do not have to operate forthwith. Indeed, the Court, in that case, made the point clearer at 183, where their Honours said - this is about point 4 of the page:

For this reason, and because disagreement generating a dispute may relate to what is to be done in the future rather than the present, it is unnecessary for an organization to insist that its demands be implemented immediately in order that they be bona fide.

Where such an insistence is made, however, either it means what it says, or the demands cannot be regarded as genuine. Now, where the Full Court, at page 961 of the record, decided that the notion of ambit required a union to frame its log in a way "to exceed its most optimistic expectations" - that is page 961, at about point 2 to point 3 - it is our submission that that passage was inconsistent with the views expressed over many years by this Court that a Union demand must be for claims that the Union genuinely wants; or, to use other language which the Court used in the Caledonian Collieries Case [1930] HCA 2; (1930) 42 CLR 558, particularly at pages 579 to 580, it has to be a claim on which the Union is resolved to insist.

Now, if the Union puts up a claim which is beyond its most optimistic expectations, it is quite unrealistic to characterise that as one on which the Union would be resolved to insist. In our submission, that is a particular area where the Full Court really approached its task here wrongly, and applied the wrong test, and arrived at the wrong conclusion because of that. They thought that claims could be framed in this fashion.

Now, the same court, very similarly constituted, considered that proposition again very recently in a decision which was not handed down until after our written submissions went in. Could I hand up copies for the Court? It is a decision called Reg v Riordan, Ex parte Attorney-General for Queensland, decided on 20 December 1996.

Now, their Honours came back to this issue, particularly at pages 7 to 8 - and this is in a similar context to this case which is before the Court. They refer to Reg v Ludeke on page 7 and, at the foot of the page, in a joint judgment of Chief Justice Wilcox and Justices Spender and Moore, they extract the passage from page 961 of the appeal record here, and then comment on it at the middle of page 8, where their Honours say:

We think this passage applies equally to the present cases. Mr Douglas criticised the words "exceed its most optimistic expectations". But they should be read in context; that is, what was "attainable in the short term". Unaccepted demands usually lead to negotiations and/or arbitration. An immediate negotiated agreement to everything claimed would rarely be expected, even optimistically. Nor would a union ordinarily expect that an arbitrated outcome would satisfy all its claims in the short term, although they may be satisfied in the long term.

Now, with respect, in our submission that does not address the error in the judgment which relates to the framing of logs of claims; and it does not explain it properly either.

We contend that the notion of ambit does not require a Union to exceed its most optimistic expectations in relation to each item in the log, particularly as that doctrine should now be understood since the decision in Re PKIU; Ex parte Vista Paper Products which we get up to shortly.

Can I return to the decision in Ludeke, which is taken as authority for many propositions about industrial disputes and how they should be dealt with, both in the Commission and here. If you look at the first complete paragraph on page 182, one might read it as establishing the following propositions, first:

disagreement as to terms and conditions of employment in a particular industry constituted by non-acceptance of a log of claims is enough to bring such a dispute into existence.

Now, that passage dealing with that issue really is, I would have thought, unexceptional, apart perhaps from the use of the word "constituted" at about point 3 of the page. Normally speaking, one would have thought that the non-acceptance of a log of claims would evidence a dispute, not necessarily constitute it, but it is commonly treated as evidence of a dispute. Secondly, as a matter of reality, though not of law, Unions will:

desire to create a dispute which will attract the jurisdiction of the Commission to make a general industrial award,

Thirdly, a log of claims may still be genuine notwithstanding that the purpose of delivering it was to create a dispute that the Commission can settle by award. Fourth, where the Union wants both the award and the conditions the desire for the award is a reflection of its desire to obtain the conditions themselves, that is, a Union will not only want an award prescribing a particular wage rate, for example, if it wants that rate, to establish that it wants the award inevitably establishes that it wants the wage rate itself. This is all unexceptional, but it deals only with the present. It does not deal with the case of the Union that does not want a current wage rate set at a limited amount or an award of that now, but considers that it will probably do so in some years and thus demands the inflated figure in the log of claims.

In our submission, the paragraph running between page 182 and 183 should be understood as establishing the following propositions, first, the Union does not have to be intent on obtaining forthwith or in the same form in the amounts expressed in the log every item mentioned in the log. There is ambiguity in the expression "intent on obtaining". If it means the Union may ask for something which is not what it wants, it must be wrong. If it means merely that the Union may ask for what it wants, though accepting the prospect of an ultimate compromise for something less, it is correct:

The requirements of the ambit doctrine not only promote, but necessitate, the making of inflated demands.

Well, in our submission, that is very questionable because of the later decision in Re PKIU and it is also questionable in the context here and I will come back to that shortly. Can I go on to say one draws from this passage the conclusion that the log must or at least may be:

so expressed as to create a dispute which has sufficient breadth and scope: (1) to ground a general industry award.....and (2) to justify -

future variations. Next, when a dispute comes to be settled, either originally or in a later variation, the question will arise whether the intended award is, in fact, a settlement of the dispute, the award must be within the ambit of the dispute, thus considerations of ambit arise, not when the dispute comes into existence, when it is found by the Commission, but when the dispute comes to be settled. At the time of the finding the Commission does not look forward to the kind of award that may be needed, rather, it looks back to the extent and nature of the dispute which actually exists, and that is what is consistent with what was said by Justice Mason in Reg v Holmes [1980] HCA 37; (1980) 145 CLR 68 at page 76 point 5.

If you look at ambit otherwise, it would put the cart before the horse. The Commission cannot find the existence of whatever dispute might be necessary to provide ambit for any future variation in contemplation, the Commission can only find the dispute which actually exists. An examination of the scope of that dispute as a basis for an award would then be for a later day. Prima facie, a Union's written demand were not accepted by employers is evidence of the existence of a dispute in the terms thereof where this position can be rebutted.

Where an attempt is made to rebut it by pointing out that the demands are so exaggerated that the Union could not have meant them to be granted in seven days a response by the Union along the lines, "We had to express them that way because of ambit," does not meet the point. Far from rebutting the apparent unreality of the claims it provides a reason for the claims taking that form which does not establish the existence of a present genuine demand. To the contrary, it reveals that the real demand is for the more exaggerated parts of the claim to be granted at unspecified dates in the future and that demand is not which was communicated to the employers.

KIRBY J: Given that logs of claim are generally quite long and contain many provisions, given that what is genuine will vary over time, or perceptions of it, that claims will vary over time, given that genuineness is itself an evaluative phenomenon that is disputable and that submissions can be made, is there any power in the Commission to control what seems to me, at least, to be an undesirable exploration that goes on for 30 days as to genuineness?

MR DOUGLAS: Again I remind your Honour that is another case. I happen to have been in the other case too. It had many more issues than this on in it.

KIRBY J: It is possible, but you have to test the propositions by what can happen in the extreme case. That is why I keep coming back to that case.

MR DOUGLAS: Well, there have been many examples over the history of Federation of long inquiries into jurisdictional facts of this nature to ensure that the Commission is exercising its jurisdiction in the circumstances where it should. The easy way around it is for the Union to do what the High Court has told it to do on numerous occasions: demand what it really wants.

KIRBY J: You say that, but that will not lay at rest contentions about the genuineness, because there are so many little points that they will say, "Well, this one wasn't really genuine; that one wasn't really genuine." Then you have got 30 days or 10 days or 15 days to dispute genuineness and then appeals to the Federal Court and then applications for prohibition to this Court. I mean, it may be completely unavoidable, as you seem to be submitting, but it seems to be rather undesirable.

MR DOUGLAS: I am not really, your Honour. I am saying that the remedy lies in the hands of the Union. It is very easy. You can be realistic.

KIRBY J: It is not as easy of that, because one person's view of realism is another person's view of fanciful.

MR DOUGLAS: I am not so sure that any serious Union official, even though they got in the witness box and said so, could seriously have believed that they wanted this in seven days, your Honour. That is the tragedy that the system leads to - - -

DAWSON J: They may have wanted it.

MR DOUGLAS: - - - that you have ordinary decent people getting into a witness box saying things which are transparent nonsense. The system should not exist in such a way that leads to that situation.

DAWSON J: Mr Douglas, if you had a log of claims in this form, "We demand that you agree to pay all workers in the Year 2000 x dollars per week," and the employer failed to accede to that, does that give rise to an industrial dispute?

MR DOUGLAS: I would have thought it could be, your Honour, yes.

DAWSON J: Do you?

MR DOUGLAS: Yes.

DAWSON J: I would not have.

MR DOUGLAS: I hear a whisper next to me that it is not a current demand.

DAWSON J: No, it is not.

MR DOUGLAS: But it could be a current demand for agreement to that for the future.

DAWSON J: Yes, but is it an industrial dispute about terms and conditions?

MR DOUGLAS: It is not about current terms and conditions but it is about future terms and conditions.

DAWSON J: For who?

MR DOUGLAS: For employees of that enterprise at that time.

DAWSON J: Who happen to be there, and it may not be the same ones that are there now.

MR DOUGLAS: No, there would be some difficulty in identifying presently the beneficiaries of that.

DAWSON J: It is a dispute about a failure of the employer to agree to something in the future, true that is - it is not a dispute about present terms and conditions. You can agree with something now for future years.

MR DOUGLAS: Sorry, your Honour.

DAWSON J: To agree to something now is for the future. There is no doubt it could be a dispute about the failure to agree, but a dispute about a failure to agree is not about terms and conditions of employment.

MR DOUGLAS: As expressed, it is about terms and conditions of future employment certainly, but one would have thought that if there were some long-range planning involved in an industry or an enterprise like that that one could have plans that far ahead about which there could be disagreement.

DAWSON J: No doubt. It is a question of whether it is an industrial dispute. No doubt you would have a dispute, no doubt it is about terms and conditions of such employees as there are in the future, but is it a present dispute about terms and conditions of employment? That is the difficulty I have with - - -

MR DOUGLAS: It could be a present dispute but it is not a dispute about present terms and conditions of employment.

DAWSON J: Is that not what an industrial dispute is?

MR DOUGLAS: I would have thought that it could also be about what will be paid in the future or what arrangements will be put in place to establish what could be paid in the future.

TOOHEY J: If it was coupled with a demand for terms and conditions to be operative immediately but then with staged claims over a period of time, it would be very difficult to say that that was not an industrial dispute.

MR DOUGLAS: Yes, and one can readily imagine - - -

TOOHEY J: I am not sure whether Justice Dawson's illustration was one, as it were, divorced from any current terms and conditions.

DAWSON J: Yes, it is. One can understand readily that increases in wages incrementally embodied in a term of an award is a present entitlement to something in the future, but this seems to be different.

MR DOUGLAS: I would have thought that one could have a claim for wages now, for example, and a proposition that - - -

DAWSON J: A method established for - - -

MR DOUGLAS: Yes.

DAWSON J: But that is a present method, that is a present entitlement in an award.

MR DOUGLAS: One could, for example, claim X dollars per week now for 1998, Y dollars per week 1999.

DAWSON J: Let me put it another way. Could the Commission make an award in settlement of the dispute that all employees in the year 2001 be paid $500 a week?

MR DOUGLAS: I would have thought so if one had a staged claim like that.

DAWSON J: Not staged, just that.

BRENNAN CJ: Put it in practical terms. Members of the AWU involved in gatekeeping duties for the Sydney Olympics in the year 2000 shall be paid the amount of $400 a week increased by an amount equal to the CPI increase between now and then. A present demand for that alone: what do you say about that?

MR DOUGLAS: I would have thought there could be a present dispute about that, about a future performance.

BRENNAN CJ: You accept that?

MR DOUGLAS: Yes.

BRENNAN CJ: That is the proposition?

MR DOUGLAS: Yes.

DAWSON J: And you have what is said in Ludeke in support of that too.

MR DOUGLAS: Yes. It does not mean that the organisation must be intent on obtaining forthwith every item mentioned but when, as in the log here, they claim it forthwith and it is bizarre, you get back to the proposition they cannot really have wanted that, they must have wanted something else, namely regulation of some sort. We would submit that if the organisation does in effect and in fact really want something in the future rather than at present, Ludeke really means that the log of claims should be understood as requiring that and practical reality means that the Union should express that claim in its demand in such a form that is obvious that, "This isn't what we want now but this is what we will want, say, by 2000. We want this presently, this for next year, this for the following year".

Can we say about this claim and ambit itself that this really is not the occasion, we think, to examine a doctrine of ambit generally because we are not dealing with a claim about whether or not a particular award is related to a particular claim made in the past. We are not looking at "ambit" in that context. All we are submitting is that this is a case about whether the claimed need for ambit can properly explain the demands made by the Union. In our submission, there was no need for the Union to.....notice claims in this manner for that purpose. To show that point can we take your Honours to the decision in Re PKIU; Ex parte Vista Paper Products [1993] HCA 81; (1993) 67 ALJR 604. Can we take your Honours in particular to the passage in Justice Gaudron's decision at pages 612 to 613. Her Honour's judgment was agreed in by Justices Brennan, Dawson and Toohey as your Honour the Chief Justice then was.

Your Honour said at the foot of page 612, in the right-hand column:

As was pointed out by Mason CJ in the Wooldumpers Case, the legislative structure and the desire to ensure that the Commission has power to make comprehensive industry awards has led to "an over- emphasis on the paper dispute". No doubt, the concept of ambit has also had its part to play in that development.

Emphasis on the "paper dispute" has two unfortunate consequences. The first is the nature and extent of the claims sometimes made, particular wage claims which are often for amounts intended to ensure that the Commission has power to vary rates so as to maintain their purchasing power in periods of inflation. The seeming extravagance of these claims sometimes invites speculation as to whether the claimant organisations could seriously entertain any intention of pursuing them. In my view and save in the case where the claim apparently allows for the effects of inflation, a wage claim should ordinarily be understood as including a claim for the maintenance of the purchasing power of the wages claimed. And, in my view, claims with respect to matters in which national standards have been set by the Commission, eg hours of work, annual leave and long service leave, should be understood as comprehending a claim for not less than the national standard as set from time to time. Were claims to be thus understood, there would be less scope for claims which have only a tenuous connection with the immediate industrial interests of the organisation concerned and which, on that account, are sometimes thought to lack "genuineness".

So, if I can get back to that one sentence of Ludeke that I cavilled with before, if your Honours are of the view that that passage in Ludeke is wrong, in our submission, your Honours would be justified in not following it in reliance on the later decision, the PKIU matter or, at least, revisiting it.

When one looks at Ludeke it is obvious that the claim there was made with probably a similar demand to this one, that it be met within a limited period of time, a short limited period of time. It is apparent, really, from a couple of passages in the judgment but there does not seem to have been much said in the case about that fact. If I can just take your Honours to the judgment quickly. This is back in Ludeke. One sees at the foot of page 186 that the letter of demand called on the parties served to answer within seven days. It does not say whether they were called on to accept within seven days but one infers that they were from the foot of page 188 where their Honours say:

The limited time given for acceptance of the log and the inflated value of the claims made, so it is said, also indicate the object of the ETU was not to seek the claims made in the log but merely to provoke a dispute which would enable the Commission to intervene in the Queensland dispute.

Otherwise, they do not really say a lot about the requirement of the demand that it be met within seven days. It might be sufficient to distinguish that passage of the decision from the present circumstances where it is really, in our submission, something that is important as reflecting on the validity of the claim and one which assumes more importance when one has a look at the decision in Re SPSF.

So, as a reason for revisiting that sentence, your Honours have decisions in Re SPSF and Re PKIU, both of which attack the extravagant claims that are sometimes made and which suggest that the requirements of the ambit doctrine do not necessitate them in the form they often have been made in the past.

BRENNAN CJ: What is the passage you rely on in SPSF?

MR DOUGLAS: Really just the general discussion about fanciful claims. Can I go on then to talk about the aggregation of the claims and whether that is a legitimate approach to adopt when assessing whether they are realistic or not, or fanciful? The Union contends that never before have claims in a log been aggregated in order to produce some overall regime of benefits for the purpose of assessing genuineness.

It is true that the co-existence of claims for huge wages and for, say, a great many days' leave, is not inherently less genuine than a claim for either standing alone. A Union which would claim one is likely also to claim the other. It is also true that the matter of genuineness can yield different conclusions under different clauses of a log, that is, a log is severable. A non-genuine demand on pay would not infect a genuine demand on leave. That the appearance in a single log of exaggerated claims on all the important matters, coupled with the demand that they be accepted within seven days, supports the inference that all of the claims were made for a purpose other than being immediately granted. This may not be so if only one claim were exaggerated.

Further, one can and generally must aggregate claims which though, under different headings in the log, are, in reality, for the one thing. For instance, a claim for a weekly salary of say, $2,000, and for a general weekly allowance payable under all circumstances of $500 must be treated as a claim for a pay rate of $2,500 per week and, really, that was what was done in the SPSF decision, particularly at pages 266 point 7 and 269 point 2. Some of your Honours will remember there were claims for salaries of 5,000 per week and allowances of 2,500 per week which were aggregated.

The Senior Deputy President in these proceedings, Senior Deputy President Riordan, rejected any attempt to add together all the claims made in the logs for the purpose of assessing genuineness or fancifulness. He said that the claims were to be regarded as a catalogue. There cannot be, however, any rule of law which requires the Commission to take either a cumulative or a catalogue approach in a particular case. It cannot be said in all cases that a particular approach is either the correct one or flawed.

In Heagney's Case 137 CLR at 101 point 7, Justice Mason appeared to view the claims as cumulative and mutually exclusive where claims, although expressed under different headings, in fact relate to the same matter. It will be natural to add them together for the purpose of assessing genuineness as occurred in Re SPSF. On the other hand, it may be that exaggerated claims for quite different conditions of employment are not the more likely to be regarded as fanciful simply because of the existence of each other in the one log, for example, a claim for 10 weeks' annual leave is not the more likely to be regarded as fanciful because the log also includes a claim for unlimited sick leave.

But, as we submitted before, when you have all the important claims in this realm, one can only conclude realistically that the motive behind the claim was something else and something rather like what was treated in the SPSF Case as a claim for regulation of the industry rather than for the arbitration of a dispute. Can I then look briefly at the question of the onus of proof at the Commission level? Our learned friends' submissions at paragraph 2.2.2 on page 13 of their written submissions include this passage:

A formal (paper) demand will be viewed prima facie as real and genuine, the prosecutor bearing the onus of clearly establishing the contrary.

And they refer to authority seeking to establish that proposition and it is really extracted from the decision in Ludeke at page 181 point 6, where their Honours say that

from the beginning it has been recognized that the dispute must be real and genuine, the formal demand being viewed prima facie as real and genuine, the prosecutor bearing the onus of clearly establishing the contrary.

It seems apparent that their Honours there are referring to the onus in this Court rather than at the Commission level and, in our submission, our learned friend's proposition there is wrong if it is thought to relate to the Commission. There is no onus on a party, in my position here an employer, to establish the contrary clearly at the Commission level.

GAUDRON J: But there may be an evidentiary onus.

MR DOUGLAS: Yes.

GAUDRON J: And if the log of claims appears regular on its face, certainly there would be an evidentiary onus.

MR DOUGLAS: Certainly, your Honour, but the legal onus would still remain with the notifier at the Commission level. There is some discussion of that particularly by Justice Toohey in the SPSF Case and Justice McHugh as well. That is really the principal point we wanted to make there. The evidentiary onus is satisfied by the service of a log of claims and it may then shift to us if that appears regular on the face of it.

TOOHEY J: But there is almost a begging of the question in saying that the paper demand will be viewed prima facie as real and genuine and therefore the onus is on the respondent to demonstrate the contrary. You take your stand at the beginning of that line of argument by saying that the claim is not a genuine one.

MR DOUGLAS: Yes.

TOOHEY J: So at best, I suppose, as Justice Gaudron says, there may be an evidentiary onus satisfied by the production of the piece of paper on which the claim was made, but it cannot take you very far if in fact the argument focuses on whether the claim is genuine or not.

MR DOUGLAS: Yes, that is so. The words about "clearly established in the contrary" appear to be picked up from one decision of the ones listed. That is Reg v Foster [1952] HCA 10; (1952) 85 CLR 138 from a passage at page 153 where their Honours said:

To obtain a prohibition on this ground it is incumbent upon the prosecutor to exclude the possibility of the log having any subject matter by clear proof leading unmistakably to that conclusion.

The conclusion being whether or not insurance agents were employees or independent contractors. It really seemed to relate to proceedings in this Court, not to ones before the Commission.

BRENNAN CJ: What is the difference there, Mr Douglas? One can see that obviously if there is an applicant for prohibition that the prosecutor bears an onus of proof of showing that it is an appropriate case for prohibition.

MR DOUGLAS: That is so.

BRENNAN CJ: But if there is a matter before an inferior tribunal, is that shown simply by showing that there has been an exercise of jurisdiction where there is no evidence or insufficient evidence to support the existence of jurisdiction?

MR DOUGLAS: No, I suppose all that we are saying is that before the tribunal the legal onus will lie upon the notifier, as her Honour Justice Gaudron pointed out. Once the paper demand is produced, there may be an evidentiary onus shifting to the respondent but the legal onus, we would submit, would always rest with the notifier to prove that it was genuine.

BRENNAN CJ: What puzzles me is how the ultimate onus can shift when it comes to prohibition.

MR DOUGLAS: The Court has often said that the prosecutor in prohibition does have an onus of establishing failure to comply with - - -

BRENNAN CJ: Yes, and one readily understands that as a general proposition. It is just that I do not quite understand how it can shift from a situation before the Commission. If the Commission, applying the onus which might be regarded as appropriate in the Commission, finds that it has jurisdiction for want of proof of the contrary, the paper dispute having been shown by the tendering of the documents, how is it that the court could ever issue prohibition in those circumstances if the facts are of the same kind?

MR DOUGLAS: If it was satisfied that the tribunal's assessment of the facts must have been wrong.

BRENNAN CJ: Having regard to the onus?

MR DOUGLAS: No, really having regard to the proper interpretation of those facts and the proper inferences one could draw from them.

DAWSON J: What you are really saying is the onus is on the prosecutor to prove below the onus establishing a dispute was not discharged. That is what it amounts to.

MR DOUGLAS: Yes.

TOOHEY J: And as your grounds of appeal are formulated, you do not appear to rely upon questions of onus so much as simply saying it was an excess of jurisdiction for the various reasons spelt out in the grounds of appeal or in the orders sought.

MR DOUGLAS: Yes, that is so. We have really made submissions on this out of an excess of caution and in case what our learned friends said could be construed as applying in the Commission. We wanted to make sure that what your Honour said in Re SPSF was still insisted upon as the correct approach in the Commission that the onus of proof lay on the notifier. It does not really affect the nature of our submissions here, which are that on any analysis of the claims made they were fanciful and could not have expected a response that made any sense from the employer and could not have led to an interstate dispute.

There is one other issue we wish to address very briefly and that relates to the fact that there are two logs of claims covering essentially the same ground. Now, we submitted below that the sensible result of a situation like that is that the Union must be taken to have elected to pursue the second log of claims because they purport to be comprehensive and purport to cover the same ground and that is just too confusing and uncertain for the parties to allow them to rest in a state of uncertainty about what claims exist against them.

For example, on a practical level, the first log of claims includes a claim for CPI indexation of the wages, the second log of claims does not. If they are both still extant and both regarded as claims seriously pursued, it throws a different complexion upon the nature of the claims made by the Union and if they are asking not only very high wages, but also CPI indexation of them, suggests again that they are not realistic.

DAWSON J: But does not this really throw up the whole problem of paper disputes. There is no such thing as a paper dispute in reality. What there is is evidence on paper of a dispute, and what you have got are two sets of paper in this situation, and it is incumbent on the Commission to say what the dispute is, using that evidence as it sees fit.

MR DOUGLAS: If one used an analogy of another area of the law, and we are dealing with a vendor/purchaser situation, where a prospective vendor offered a contract in terms on 19 April 1993, which was then superseded by another form of contract in December of 1993, any prospective purchaser who had received both offers would, no doubt, conclude that there had been an election to pursue the latter offer, rather than the former one which had lapsed.

Really, that seems to have been the court's approach adopted in these sorts of the cases, and the Commission as well, and that is to be concluded from a passage in re Commonwealth Conciliation and Arbitration Commission: Ex parte Australian Boot Trade Employees' Federation, [1966] HCA 17; (1966) 114 CLR 548, and particularly at page 554, where there was an attempt, in effect, to relate a clause of an award to claims in earlier logs of claims to enable a variation of an award, and that included an attempt to revert to a claim made in 1950, even though there had been subsequent logs of claims delivered in later years purporting to be comprehensive as well.

TOOHEY J: Mr Douglas, I am not clear as to how you are using the existence of two logs of claims.

MR DOUGLAS: What I am asserting is, if there is a valid log of claims in existence, it is the second one, not the first. Of course, our main contention is that both logs of claims are fanciful and should not be regarded as a basis for a dispute.

TOOHEY J: And if there were an earlier one which were fanciful, and a later one which could not be described as fanciful - - -

MR DOUGLAS: Well, ergo, the later one would be regarded as valid. The earlier one would be regarded as not sufficient to ground a dispute, because the earlier one is fanciful and the later one presumably is not. But all that I am saying here is that if you have two sets of claims like this, the later in time should be regarded as the operative one.

TOOHEY J: And the question of fancifulness, you say, then is to be resolved by reference only to the second one.

MR DOUGLAS: Yes.

TOOHEY J: The first one, as it were, having been superseded.

MR DOUGLAS: Yes. You might infer, from the fact of it having been put up, that the claims made in the later one were driven by the same veiled reasons as those behind the first one, but in assessing the nature of the claims made you would have to look at the second one, assessing the quantum of the claims and considering their effect.

KIRBY J: I am just not exactly sure what Deputy President Riordan did. He seemed to have - - -

MR DOUGLAS: I think he varied the dispute finding to, in effect, extend the dispute to cover both documents.

KIRBY J: So he regarded the second one as still on foot and to the extent - - -

MR DOUGLAS: The first one is still on foot, yes.

KIRBY J: I am sorry, the first one is still on foot. To the extent that there was some overlap, that somehow they were to be integrated as of a variation.

MR DOUGLAS: Yes.

TOOHEY J: You do not appear to be using or offering an argument that the existence of the first can cast doubts upon the genuineness of the second.

MR DOUGLAS: I was trying to say that. That is what I meant to say by the inferences you could draw from the fact of the service of the first.

KIRBY J: I thought you were putting it the other way.

TOOHEY J: Yes, I did too.

KIRBY J: That the existence of the second causes you to doubt - is an acknowledgment of the ungenuineness of the first.

MR DOUGLAS: It is, but you can also look at the first and say, "What do they really want?" You cannot infer it properly from either. The first one is higher than the second, which suggest that serve the second because of doubts arising after the SPSF decision, which may have made them think the first one was fanciful and they may have tried to reframe it so it was not.

KIRBY J: The history was that the State case came down after the first one was served - - -

MR DOUGLAS: That is right. It came down in June 1993. The first log was served in April.

GAUDRON J: Was there an application for revocation of the first dispute finding?

MR DOUGLAS: Yes.

GAUDRON J: And that was the subject of an application for leave to appeal to the Full Bench of the Industrial Relations Commission?

MR DOUGLAS: Yes, in recollection, it was. This argument has been made all the way through.

GAUDRON J: Yes. Was it then the subject of the order nisi?

MR DOUGLAS: From recollection, yes.

GAUDRON J: Would you be kind enough at a later stage to provide me with precise details, because it may have some bearing on the orders that should ultimately be made.

MR DOUGLAS: Yes, I will check that, your Honour. The passage of the judgment I wish to take you to really is at about point 4 of the page on page 554, where their Honours say:

Further, we think that the dispute which arose upon the rejection of the 1950 log came to an end, at the latest, when the 1959 log of claims was served upon the employers. It is clear, we think, from the terms of that log and the accompanying letter, that it was a claim for the prescription of general conditions of employment which should exclusively operate to regulate the employment of employees in the industry. Implicitly, at least, it amounted to an abandonment or withdrawal of the earlier log and it contained no claim for long service leave. That being so, it is, we think, impossible to assert that the dispute which arose upon the rejection of the 1950 log still continued.

So that seems to be the approach the Court adopts in cases like this and we thought it was the practical and sensible approach to adopt if we lost on other grounds. But in conclusion, can we say that no employer could make a sensible response to these logs of claims. The employer's assent or dissent to the claims was irrelevant to their being made. No Union could have expected them to be treated seriously. The Union must have been indifferent to the employer's reaction. In our submission, the logs do not evidence a dispute but simply a seriously flawed attempt to seek federal coverage and general regulation of the industry rather than the arbitration of any real dispute. In our submission, for those reasons, the appeal should be allowed.

BRENNAN CJ: Is there anything in your notice of appeal dealing with this last point that you raise, Mr Douglas?

MR DOUGLAS: Can I just check that, your Honour? Not in the notice of appeal as it stands at the present, your Honour. There is a proposed amended notice of appeal too. Can I just check that?

GAUDRON J: That was from Victoria, was it not?

MR DOUGLAS: No, we did one as well, your Honour. It is in 5G - actually it is the amended notice of appeal which is exhibit CPR4 to an affidavit of Mr Rabaa.

BRENNAN CJ: Yes, page 1069, is that right?

MR DOUGLAS: I had it somewhere else, your Honour. I will just check.

BRENNAN CJ: Yes, I see.

MR DOUGLAS: Yes, it is there. Now, paragraph 5F is not the subject of a consent order that our notice of appeal be amended. All the other paragraphs were amended by a consent order and 5F is the ground of appeal which really asks the Court to reconsider Ludeke and consent to that was resisted by our learned friends, but we press that if necessary.

BRENNAN CJ: Yes, that was the point that was left outstanding at the directions hearing.

MR DOUGLAS: Yes.

BRENNAN CJ: So you are seeking leave to amend to insert 5F?

MR DOUGLAS: Yes.

BRENNAN CJ: But no leave has been given?

MR DOUGLAS: No.

BRENNAN CJ: But leave has been given or consent been given at least to the amendment in relation to all other paragraphs?

MR DOUGLAS: Yes, your Honour.

BRENNAN CJ: Yes.

TOOHEY J: Mr Douglas, could I just ask you: not now necessarily, but can you just identify where in the papers we find the precise determinations and findings that are the subject of the application for prerogative relief?

MR DOUGLAS: Yes, your Honour. The Industrial Relations Act 1904 as it applied at the time these proceedings went through the Commission in section 150(1) required an award to be final, but section 150A required awards to be reviewed every three years at least and under section 147 of the new Act an award must be set for a specified period having regard to the wishes of the parties.

BRENNAN CJ: Mr Douglas, the questions that have been asked by Justice Toohey and Justice Gaudron were references to the appeal books. They could be put together perhaps in a schedule and provided to us later today or tomorrow morning.

MR DOUGLAS: Yes, I hope so, your Honour.

GAUDRON J: Before you finally depart, I am looking at page 974 where it appears that Deputy President Riordan proceeded on the basis that the original dispute had been altered. It does not appear precisely in what respects, but it does not seem that he was taking the view that you just added them up together and made an amalgam of them.

MR DOUGLAS: It does not appear as if he - - -

GAUDRON J: Just added the two logs of claims together and made an amalgam of them. He regards the second log of claim as having altered the dispute.

MR DOUGLAS: Yes, I think that is right.

GAUDRON J: I do not know where that leaves you, but I would not have understood that to be an impermissible finding, at least as a matter of law.

MR DOUGLAS: The variation to the finding is at page 510, as my learned friend has kindly pointed out to me, which is the variation to the dispute finding. I will try to find the - - -

GAUDRON J: So that the subject matter relates to wages and conditions in the second log of claims.

MR DOUGLAS: Yes.

GAUDRON J: So Deputy President Riordan has in fact made a dispute finding referable to the second log of claims, not the first.

MR DOUGLAS: But he has not treated the first one as having - - -

GAUDRON J: What difference does it make? He has treated it as altered. This surely is academic in the extreme. What difference does it make if he has not revoked it?

MR DOUGLAS: Well, it could be revived in the future presumably.

GAUDRON J: That is for another day surely.

MR DOUGLAS: Perhaps so, your Honour.

GAUDRON J: We seem to have taken a lot of time to find out that the dispute as found in respect of which you seek prohibition is one that relates to the second log of claims. We seem to have spent some one and a half hours going through the first log of claims.

MR DOUGLAS: They are very similar. We went through both, your Honour.

MR DOUGLAS: They are very similar. We went through both, your Honour.

GAUDRON J: Yes. Well, we may have gone through both, but we seem to have spent a lot of time on what prima facie seems to me to be irrelevant.

MR DOUGLAS: We took your Honour to a tabulation of the comparison of all current conditions in both logs of claims.

GAUDRON J: There seems to be a lot of irrelevance associated with it. I say no more.

MR DOUGLAS: Thank you, your Honour.

BRENNAN CJ: Thank you, Mr Douglas. Mr Bleby.

MR BLEBY: May it please the Court, in so far as they are relevant to our proceedings, we, with respect, adopt the submissions of the Attorney-General for the State of Queensland on the questions of genuineness. We also adopt the written submissions of the State of Victoria in the same manner as my learned friend, Mr Douglas, did, again in so far as they are relevant to our cases. But we make no submissions, as my learned friend, Mr Douglas, did in relation to paragraph 17 to 19 of the Victorian written submission, which is the one - that part dealing with the effect of the settlement of the dispute, and whether it can be revived in some way at a later stage. I think it is not necessary for this Court to decide that in these proceedings. So, in effect, we are adopting, as we see, the numbering anyway from paragraphs 8 to 34 of the Victorian outline, excluding paragraph 17 to 19.

The matters come before this Court directly on an application for prohibition, an order remitting the matters to the Industrial Relations Court, having been revoked by your Honour Justice Kirby earlier this year.

DAWSON J: What was the reason for the revocation?

MR BLEBY: It was an application that was made at or about the time this Court gave leave to appeal in the Victorian and Queensland proceedings.

DAWSON J: Do these proceedings raise any different points?

MR BLEBY: The facts are slightly different, your Honour, but the principles, we say, are the same.

DAWSON J: Why do we have to consider the same points in two cases?

MR BLEBY: Similar issues arise - - -

DAWSON J: Yes, that is the point.

MR BLEBY: Yes, they do. I can only say that I come before this Court pursuant to an order revoking the earlier - - -

DAWSON J: Pursuant to an application to that effect.

MR BLEBY: It was an application to that effect on the basis that the issues would be similar and that to be properly dealt with at the same - - -

DAWSON J: That would seem to me a very reason for this Court not considering it, already having a vehicle to consider the issues already before it. However, proceed.

MR BLEBY: Thank you, your Honour. In both of the matters the findings were initially made by single members of the Commission that a dispute existed. Both were subject to an appeal to differently constituted Full Benches of the Commission but presided over by the same Senior Deputy President Hancock. There are many factual similarities with ours and the Queensland matter. The logs - - -

GUMMOW J: Are we being invited to investigate the factual differences, all seven of us?

MR BLEBY: No, your Honour, not in detail.

GUMMOW J: In detail or otherwise, you have to do it or you do not have to do it.

MR BLEBY: I do in so far as we are asking for a prohibition, and as has been pointed out, cases in this Court have said this Court has to make up its own mind on the facts. So it is necessary to do a brief excurses, and I will try and make it as brief as possible, into the facts. The logs in both the cases in which I represent the prosecutors were identical, but differed from the Queensland log in that there were many more claims not covered in the Queensland log.

KIRBY J: I think the questions, if I can say so, Mr Bleby, that have been asked of you by Justice Dawson and Justice Gummow, as I would infer them, would be whether it may not, on reflection, be more convenient for the Court to have, in effect, your nuances examined in the Federal Court, as it would now be, with the benefit of the determination of the principles that the Court will presumably have to address in the matter that has been brought up by the State of Queensland. Now, that was a course which you did not suggest when the matter came before me, but may that not be a preferable course, on reflection?

MR BLEBY: Well, subject only to questions of expense and delay, your Honour, that would, at this stage, at least, in that there is no, as we understand it, no contest on the facts. As in in the Queensland Case the facts are largely not in dispute. But there are some differences which I need to point out to this Court, merely just to address the argument, and I certainly will not be repeating what my learned friend, Mr Douglas, has put in the substantive part of the argument.

The logs in these cases both required compliance by those who received them within seven days, and the letter of demand, which is identical in both cases, appears at page 89 of the first appeal book - I do not think I need take the Court to it - but required compliance with the demands within that time. The logs were described by members of the Commission who considered the matter in terms which appear in paragraph 4.5 of our outline, with one correction - and I apologise for that. Commissioner Lewin did not describe the logs as "quite extravagant" but just as "extravagant" at page 219, and that the extent of the extravagance of the demands, individually or in total, may cause consternation and/or outright rejection, on grounds of affordability.

The Full Bench in the Action Food Barns matter described it as being improbable that the employer would concede the demands within seven days. That is the second volume, page 381. But at that page they also made the observation that most logs of this nature it was virtually certain that employers would not accede to the logs. The logs, as I say, cover many more matters than the Queensland ones, but where they coincide it is fair to say that the claims are either similar to the Queensland ones or more extensive. I think it is fair to say that in none they were less extensive than in the Queensland Case.

By way of example, may I take the Court to appendix 1 of our submission, which contains a summary of the log of claims, together with an indication which appears from the agreed supplementary volumes of the contemporary standard against which they were to be compared.

The structure of this appendix is that it takes the various parts of the log of claims and puts together claims of a similar nature so that you have the money claims together, whether they apply to all employees or whether they only apply to certain situations if they occur. At page 5 of that appendix the Court may see the effect of what is plainly a cumulative claim for wages and allowances which have to be paid to all employees regardless of conditions encountered. The various subject matters of the claims and the amounts for an employee after 12 months' service are set out resulting in, if the demand were to be acceded to, a total weekly payment without any of the other claims or conditions which might apply of $8,112.99 a week or something over $420,000 annual salary. The Court can see the comparison in the second column on page 6.

For shift workers, which this claim also covers, the similar amounts yield a weekly salary of nearly $30,000 fore a shop assistant for an annual salary of something over $1.5 million. That is before of course taking into account any other compounding aspects such as other claims expressed as a percentage of the salary, claims for substantially reduced hours, substantially increased overtime rates, extensive periods of annual leave - 12 weeks a year - indefinite sick leave and any other type of leave imaginable, none of which of course of those types of claims required enlargement to accommodate inflation such as a monetary claim might and in respect of which there might be some tolerance on that account.

All the claims, as the Court will see from a perusal of that appendix resulted in many times what might be said to be current industrial standards. As with the Queensland second log, these logs were served after the decisions of this Court in SPSF and PKIU and the evidence showed that what was said to be the standard logs of the Union had been amended, supposedly to accommodate those decisions. As with the Queensland case, the only evidence relied on in support of the dispute was the service of and non-compliance with the log of claims, but, as in that case, some evidence was given by one Union official in each case in the proceedings before the Commission.

The evidence in the Queensland case my learned friend has referred to suggested that the Union in that case was not really anticipating achieving its demands for a period of 20 years. In this case the evidence of the vice president of the Union was it is something they might expect to achieve over the next millennium and because it is suggested that that might be a sort of tongue-in-cheek approach, I take the Court to that passage and it is on page 145 of the appeal book.

BRENNAN CJ: Perhaps you could do that at quarter past 2, Mr Bleby.

MR BLEBY: If the Court pleases.

BRENNAN CJ: Before we adjourn I think Justice Toohey was going to suggest something to you.

TOOHEY J: Mr Bleby, would you be able to do what was asked of Mr Douglas, at some stage to identify for us in the material precisely where we find the findings of dispute sought to be quashed by the application for prerogative relief?

MR BLEBY: Yes, if your Honour pleases.

AT 12.46 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.16 PM

BRENNAN CJ: Yes, Mr Bleby.

MR BLEBY: May I first answer your Honour Justice Toohey's question? It is very simple, in the case of Action Food Barns - that is, in relation to the identification of the orders sought to be quashed, or the findings. In the second volume, at pages 385 and 386 appears the formal finding of the dispute by the Full Bench of the Commission following the appeal.

TOOHEY J: Yes, thank you, Mr Bleby.

MR BLEBY: There is a reference, on page 386, to exhibit S, which is a list of employers. That has not been reproduced in the book. It can be supplied if the Court wishes, but I do not think it is going to add much to the nature of the case. So far as the Lamsoon Case is concerned, we are not blessed with a similar document, I regret to say. There was a formal finding by Mr Commissioner Lewin which is not reproduced in the book, but copies of which, with the consent of my learned friend, Mr Quick, I hand up, which is the formal recording of the finding of the Commission at first instance.

There was, however, an appeal against that and, as the Court may be aware, the Full Bench of the Commission on the appeal considered certain claims so extravagant as to be excluded from the finding and that is recorded at pages 229 and 230 in the Commission's reasons for decision, and the Commission said at page 230 line 17:

We are of the opinion that the above claims were not capable of being the subject of an industrial dispute. For these reasons, leave will be granted in respect of the grounds of appeal that raise these issues and the appeal upheld, but only insofar as the claims which we have referred to above are concerned.

For some reason which I cannot explain, there has not been a formal record of finding made by the Full Bench consequent upon that appeal, but the effect of what the Full Bench did was to vary Commissioner Lewin's findings by deleting from the formal finding the nine matters which are referred to on pages 229 and 230 which is precisely what the Full Bench also did in the Action Food Barns matter and which are the same claims.

I was dealing with questions of similarity with the Queensland proceedings and pointing out that there was evidence led in this case, one witness in each case who was an official of the Union concerned, and that was the only oral evidence, but that as in the Queensland case, there was evidence of the intention of the Union in making that demand. I take the Court to volume 1, page 145, the evidence of Mr Farrell in the Lamsoon Case. Mr Farrell was the national vice- president of the Union at the time and at line 24, he gives an answer to the effect that his members are entitled to what is claimed. He says:

I'm a realist I realise that it will take some time to achieve those, but at the end of the day I believe they are realistic objectives.

BRENNAN CJ: Where is the log of claims in these cases, Mr Bleby?

MR BLEBY: The log of claims is in the appeal book, your Honour, begins at page 90. The letter of demand is at page 89.

BRENNAN CJ: Yes, thank you.

MR BLEBY: It is identical in both cases.

BRENNAN CJ: Yes, I see.

MR BLEBY: It is that log of claims that Mr Farrell is speaking of and which is also summarised in appendix 1 of our written submission.

KIRBY J: Where was the statement about the millennium?

MR BLEBY: I am just coming to it, your Honour. It is on page 146.

KIRBY J: I see.

MR BLEBY: But he says in the next answer:

No, what I said was I was a realist and I don't expect that employers will concede those rates just at the moment, but -

and then he is interrupted and asked:

No, we are talking about the log. Do you consider that those claims are realistic at this moment?---As I said there's an element of ambit in them. If you're asking me whether or not I believe my members are entitled to those benefits, then the answer is, yes, I do believe it.

This is at the top of 146. And then he is asked:

You are talking about ambit. Over what period of time do you say that these should be awarded?---I would hope that within the next millennium that we would achieve these sorts of rates.

He is given an opportunity to recant on that and he is asked:

As in some time between the year 2000 and the year 2999. Is that what you are saying?---That is the next millennium, yes.

Yes, but that is just so we are absolutely clear on the year?---Yes, that's right, that's right.

And then he is asked a question:

That answer applies to the log as a whole?---Yes.

To the terms of the log as a whole. You are not separating out any particular clauses to occur quicker than others?---It may very well be that some do occur quicker than others.

But that was Mr Farrell's expectation. So much for the similarities. There were a few dissimilarities with the Queensland situation but, of course, the major similarity is the extravagant nature of the log to which I have already referred.

DAWSON J: How do you put that, Mr Bleby? Do you say that you cannot have an industrial dispute about the Union's objectives?

MR BLEBY: You can only have a dispute if you are relying on a paper dispute about what the paper says.

DAWSON J: It says that.

MR BLEBY: Sorry, which paper? I am sorry, the log of claims?

DAWSON J: The log of claims has these objectives.

MR BLEBY: It has the objectives but the letter of demand at page 89 says to the recipient, "We want you to comply with this log of claims within seven days."

DAWSON J: But you say that is a sham and that, as the Union official says here, they are really only objectives.

MR BLEBY: There are a couple of consequences that - - -

DAWSON J: I just want to know how you get a dispute about these figures or whether you can or you cannot.

MR BLEBY: We say you cannot.

DAWSON J: Why not?

MR BLEBY: Because what is relied on is the service and non- compliance with the log of claims, seven days, exorbitant claims, quite impossible and unrealistic. The qualification is not - - -

DAWSON J: The fact that they are unrealistic does not mean you cannot have a dispute about them.

MR BLEBY: If evidence later shows that that is really not what the Union is relying on.

DAWSON J: That is the point, that they are objectives. They are not claims at all at best.

MR BLEBY: Yes, at best. That is in evidence given before the Commission. It is not evidence that is conveyed, of course, to many hundreds - and there were hundreds of people served, not all of whom were represented before the Commission at that stage - as to what the Union's intention were. The Union's intention from the face of the log was to require the observance of these conditions within seven days.

DAWSON J: Is not too much attention placed upon the paper in these submissions, as if it were a sort of pleading, so that you get either an admission or a denial and in which case there is a denial, there is a dispute, and you confine yourself to the terms of the documents? The fact is there is no such thing as a paper dispute. It is a misnomer. There is either a dispute or there is not and the paper is only evidence of that and if all the paper sets out is objectives of the Union then there is no dispute.

MR BLEBY: Exactly. I would agree with that.

DAWSON J: That is what I thought you were putting

TOOHEY J: Could I just ask you this by way of a gloss. Are you saying it is a matter of construction then of the piece of paper divorced from any evidence as to the purpose or motive or that in order to answer the sort of question that Justice Dawson put to you, you need to go or may go beyond the piece of paper?

MR BLEBY: It is a matter of construction of the piece of paper because the evidence that was put forward in the Commission as evidence of the dispute was merely service of the log of claims and letter of demand in those terms.

TOOHEY J: But if you confine yourself to the paper - and I am not saying that one ought not to - it might be hard to say of the piece of paper that it is only seeking objectives. You would have to take it at its face value, I suppose, and say, "Well, this is the claim that's being made".

MR BLEBY: That is right, and that is what we suggest needs to happen. Once you do that, you say, "You have a totally fanciful and fantastic demand which no person in their right mind would ever make".

TOOHEY J: Then what is the relevance of all this evidence that is led?

MR BLEBY: The relevance of that particular piece of evidence is yet another indicator of, firstly, the fact that the Union did not really intend what it stated in the written demand and therefore, on its own confession, it was really a non-genuine demand because it was not really saying "We want these in seven days". The evidence in this case and, as I understand it, the Queensland case was, "We don't really expect this at all".

TOOHEY J: The moment you put it that way - and you may well be entitled to - you have moved beyond a question of construction of the piece of paper, have you not?

MR BLEBY: Yes, but it is a further piece of evidence which goes to show merely that - and it is a different basis, I agree, for submitting there is no genuine claim, but it is further evidence to suggest that the demands in the written log are not genuine once a senior Union official expresses a view on behalf of the Union as to what was intended. The log is something quite different, so therefore you cannot found the dispute on the log of claims as the Commission then seems to have done.

DAWSON J: That would be so in most cases, would it not, where there are ambit claims?

MR BLEBY: Yes.

DAWSON J: You say, "That's not the dispute at all, that's not the claim they're really making". The Commission finding the dispute has cast on it the obligation to say what the dispute really is. It is not to say that because an ambit claim is made that there is not a dispute, but it is not the one on the paper.

MR BLEBY: That is right, and there is no evidence as to what the dispute is, so there is no other evidence as to what the dispute is.

DAWSON J: There might be or there might not be.

MR BLEBY: There may be or not, but not in this case.

KIRBY J: Mr Douglas did not dispute the capacity of paper to create disputes. Do you dispute that?

MR BLEBY: I do not dispute the capacity of paper to be evidence of a dispute.

KIRBY J: You just say that in this particular case, when you actually look at the paper, the claims are so fantastic and so potentially postponed that it does not really evidence a dispute.

MR BLEBY: That is right, and that is - if we need to go any further than that - and we do not have to - but if we do, the Union's own admission in evidence was that that is not what was intended anyway. So it cannot be a genuine demand.

KIRBY J: Did the witness have authority to make admissions for the Union? What was his position?

MR BLEBY: He was national Vice President of the Union at the time and a member of the executive committee which - or executive of the Union which authorised, or supposedly authorised, the service. In this case, there was only the one identical log of claims in the two cases, but we have not got the complication in our case of two logs of claims as in Queensland. There were large numbers served in both cases, in Lamsoon and two States; 238 parties served in South Australia and Western Australia. In Action Food Barns a number, which you think is about 215, in Victoria, Western Australia and South Australia and a few, very few, in New South Wales.

There was evidence which will go to genuineness, of the way the respondents were selected - and we have referred to that in the outline, Mr Farrell really saying the South Australian respondents were just found out of the yellow pages in the telephone book, and those who were responsible for serving them really just had to rely on information given to them by branch secretaries without inquiry as to whether or not they were even employers.

The last matter - and I will not go into all the details - but the last matter was, again having some relevance to the question of genuineness, was the fact that the resolution authorising the service of the log of claims and requiring, to use the terms of the resolution on page 77 of the appeal book, that it:

be prepared forthwith for execution on behalf of the Association and service -

was passed on 6 July 1992 and was not served, in the case of the Lamsoon respondents, until 13 September 1993, some 14 months later, and notified to the Commission on 3 November 1993, another two months or so. In Action Food Barns it was not served until 10 December 1993, or 17 months after the authorisation, and the dispute not notified to the Commission until 16 August 1994, another eight months after that. So, in other words, more than two years after the resolution of the national executive deciding to make the claims forthwith.

I need just to take the Court briefly to some of the findings of the Commission in two cases. In Lamsoon, Mr Commissioner Lewin found that there was a genuine demand, and that the conditions of employment would be, to use his word, "pursued" against the respondents, and that is at page 221, at about line 20 - in fact, at line 20. He said:

In my judgement, on the balance of probabilities, the conditions of employment sought by the log will be pursued by the Association against the named respondents, in whole or in part, now and or otherwise at some time in the future.

No doubt relying on Mr Farrell's evidence for that last bit. The Full Bench, in the Lamsoon appeal, at 228 of the appeal book, considered in one of the five points listed on page 228 which they extracted from various decisions of this Court and of the Commission - considered in point 4 that:

It is not an appropriate or valid exercise to aggregate claims in a log and then, through a process of comparison with current conditions, attack the log. The log should be seen as a catalogue of claims, and it is not likely that each will be sought or granted in full, in their entirety, to all employees,. The mere fact a union is not intent on obtaining forthwith every item does not -

it says "effect" -

the genuineness of the claims made.

DAWSON J: A somewhat extraordinary first proposition which is extracted, apparently, from SPSF. A little surprising.

MR BLEBY: Yes. We naturally disagree with that proposition, but it is one which I need to draw the Court's attention to. Then, at page 229, they said at lines 15 to 21 that:

The fact that the demand was for all of the claims to be agreed to does not make the claim other than genuine.

That is referring to the written log, of course, or the written letter of demand, and that the Commission was entitled to rely on the evidence that the claims would be pursued over a period of time. And then, at line 33 they considered that some individual claims were, to use their words, "far-fetched and lacking in industrial reality," and then proceeded to list nine of them, which they then excluded from the dispute finding.

Finally, the question of onus of proof was addressed at page 228, beginning at line 6, in the context of identification of the employers, where it was said, or had been said that the Union had not demonstrated that the parties served were employers and the Commission, in that context, made some observations about the onus of proof, suggesting that it was on the respondents to disprove before them relevant facts going to the non-existence of the dispute. In the Action Food Barns matter, Commissioner Froggo - - -

BRENNAN CJ: Now, before you leave that, in relation to this question of aggregation, what is the error, if any, in the approach taken by the Full Bench at 229?

MR BLEBY: The error at 229 was, firstly, to rely on the log of claims and its rejection of non-compliance as being evidence of the dispute but then to say contrary to what the letter of demand itself says, that that written demand only requires compliance over a period of time or does not require compliance with all of them. That is just not in accordance with the demand.

BRENNAN CJ: It may not be in accordance with the written demand but, if the written demand is no more than evidence of the underlying or pre-existing dispute, why is it that they cannot say, "Here are 20 points of dispute so called in the letter of demand but we find that in relation to only ten of them is there a genuine claim which has been refused. In relation to those ten, there's a dispute"?

MR BLEBY: That would be possible if there were other evidence, your Honour, but there was no other evidence which could have justified such a finding.

BRENNAN CJ: Well, why is it that if you approach it on the basis of construction of the instrument itself, you cannot say, "Well, we are not satisfied that these ten items are items in respect of which there could have been a genuine claim which has been unmet"?

MR BLEBY: They did say that upon the footing that those ten - if your Honour is referring to the nine claims - - -

BRENNAN CJ: Nine claims, yes.

MR BLEBY: - - - that they were excluded solely on the basis that they could only be described as far-fetched and lacking industrial reality.

BRENNAN CJ: If that view is taken of them so that in respect of the claim for those nine there could not be conceived to be an industrial dispute, why is it that the coexistence of those nine with the other claims precludes the finding of a dispute about the other claims?

MR BLEBY: It is not the fact that those are excluded which we rely on. We rely on the nature and exaggerated and exorbitant nature of all the other claims, some of which have to be aggregated.

BRENNAN CJ: I understand that but, assuming that this approach is correct, would this Court then be justified in looking at the remainder of the claims only in order to see whether prohibition should go?

MR BLEBY: Yes, it would.

BRENNAN CJ: Why?

MR BLEBY: Because that is all that is left that we are seeking to prohibit. At the moment we have a finding which excludes certain matters which we - - -

BRENNAN CJ: If looking at the balance of those claims the Court was unable to say that they were so extravagant as to negate the existence of a dispute with respect to them, then you would fail.

MR BLEBY: Yes. We do not believe the Court can say that though, with respect.

DAWSON J: I would have thought you would have said that the document is not a genuine document. You cannot hunt and peck through it to pick out one bit that is said to be genuine and another bit that is said not to be genuine.

MR BLEBY: I was about to say that. Your Honour the Chief Justice's approach is one, but the other - and the one which we would favour certainly - is to say that you look at the document as a whole.

BRENNAN CJ: I can understand you saying that and I thought that you would say that. What I am endeavouring to elicit from you is the basis on which you reject the alternative approach. Once you regard the document as being no more than evidentiary, why is it that you cannot regard the document, as it were, seriatim in order to discover the scope of the dispute?

MR BLEBY: Because the document itself does not permit you to do that.

BRENNAN CJ: That might be the answer.

MR BLEBY: The document says to the recipient, "We require you to comply with these demands in seven days".

DAWSON J: Anyway, that is to assume the existence of a dispute, which was the very thing to be discovered.

MR BLEBY: That is true.

BRENNAN CJ: Can I just tease it out a little further. If there be a dispute which in the majority of its terms is well within the scope of what might reasonably be expected and which is unmet, but one of those terms is quite extravagant and could not possibly have been contemplated, does that preclude the discovery of a dispute by reference to that document alone?

MR BLEBY: It is a bit hard to answer that without knowing what other circumstances there are or might be. I can imagine, I suppose, the Commission saying in respect of one particular totally extravagant claim out of line with all of the others, and in the light of perhaps some other evidence which is led, that the demands which are not extravagant but which are quite within reason as to what one might expect as being evidence of a dispute as to those matters, but when the whole of the log, as in this case, is cast in such extravagant terms, once you start excluding or excising various parts of it, you begin to enter an area where you are saying the log for what it is worth, if it is worth anything at all, begins to lose its integrity and is it something that the Union really authorised, and that goes back to questions of what the terms of the resolution authorising the service of the log were and so on. All I am saying is it is very difficult to generalise in this area, apart from confining oneself to the facts that were before the Commission in this case and are before the Court in this case.

BRENNAN CJ: I will not delay you further, but it seems to me that there is a dichotomy in the thinking. Either the log of claims is merely evidentiary or it is not. If it is merely evidentiary, then I fail to see why it is that one would not draw an inference from that evidence which may be appropriate in the circumstances, even if that inference is that there is a dispute as to some of the matters which are raised in the instrument. If, on the other hand, the instrument is itself definitive of the scope and existence of dispute, then I can understand that one looks at the totality and even one single extravagance will be sufficient to bring it down. How does one avoid that dichotomy?

MR BLEBY: Upon reflection, I think one cannot avoid it. One has to say in the absence of any other evidence at all, if you are relying solely on the service of the log and of the non-compliance, it would be our submission that the whole fails.

BRENNAN CJ: Yes.

MR BLEBY: Because what is put - and assuming it is roughly in the terms of the log of claims that we have before us - it is, on the face of it and, indeed, there was evidence before the Commission from Mr De Bruyn in the Action Food Barn's Case, the president of the Union, that it was an all or nothing log. That is the view he took of it, that everything had to be complied with, otherwise the Commission would be notified of a dispute, and that is entirely consistent with what the log was saying.

KIRBY J: You have to say something more than that different minds might approach the genuineness of the log of claims differently. You have to be able to show that an error attracting constitutional writ can be demonstrated in the decision of the Full Bench.

MR BLEBY: There are two ways one can approach that. This Court has said on many occasions - and it was referred to this morning - that, in prohibition, this Court has to be satisfied itself as to the facts or lack of the existence of any jurisdictional facts to grant prohibition to prevent the Commission or inferior bodies from proceeding. The other approach is to say that the Commission itself committed an error of law to the extent that it has not properly exercised jurisdiction in making that finding. Either would do, and I will address the Court in due course on the question of the onus of proof both in this Court and the Commission.

KIRBY J: An error of law within jurisdiction would not attract the relief, would it?

MR BLEBY: It would if, in our submission, that error went to the Commission holding that it had jurisdiction where, plainly, it did not. Of course, the finding that is being attacked is the fundamental finding which has to be made for the Commission to have jurisdiction to proceed to make an award. Now, given the fact that we have the demand cast in the terms we have it and the findings of the Commission that, really, it is a genuine demand, the Commission, by reaching the conclusion it did, is demonstrating an artificiality which, in our submission, just cannot be justified, because the - - -

DAWSON J: It is an artificiality which pervades the whole procedure.

MR BLEBY: It does.

DAWSON J: Every log of claims is an ambit claim, is it not?

MR BLEBY: Most are.

DAWSON J: And what the Commission finds is a dispute in terms of the failure to accede to that demand.

MR BLEBY: I think there are some occasional instances where the Commission - - -

DAWSON J: And everyone knows that is not what is being demanded, but that is the dispute that is found, it is quite hypocritical.

MR BLEBY: Yes. To justify it, the Commission, in this case, has to say that the seven day demand is not really what is meant and it also has to say that - - -

DAWSON J: Then they would have to define a dispute to say what the dispute actually was, and they do not.

MR BLEBY: Yes, and they cannot, because they then say, "Well, acting on the evidence that's before us from the Union official, the written log of claims doesn't mean that employers have to comply with all the claims. It's really a catalogue, as a sort of shopping basket".

KIRBY J: The seven day strikes me as a slightly unreal issue given the realities of industrial relations as has been practised. It may be that it has been practised wrongly, but nobody really expects a whole log of claims with its multitude of claims to be completely resolved within seven days. I would be astonished if in 100 years of Federation that ever once happened.

MR BLEBY: I am glad hear your Honour say that, because that is what we would say too. But it means - and it must follow, in our respectful submission - that the demands cast in those terms and submitted as evidence of an interstate industrial dispute cannot possibly be justified - constitute such evidence.

KIRBY J: But because you cannot solve a dispute in seven days does not mean you do not have a dispute.

MR BLEBY: But the demands are just so fantastic that no one would even consider - - -

KIRBY J: I think that is a different issue as to certain of the demands, but because you cannot resolve all of the issues in demand within seven days - and nobody really has ever expected that - if you were to attack that, then you ought to attack every dispute since Federation, because it has never been the case that you can resolve all the issues in dispute within seven days. The question is still whether there is a dispute.

MR BLEBY: Like my learned friend Mr Douglas, I am not attacking the paper disputes as such, but all I am attacking is what this Union in this case has chosen to do. If Unions choose to cast their demands in exorbitant terms and put those terms on them, then they have to take the consequences. If many in the past have got away with that and now this Court says, "Well, you shouldn't, you cannot", well, so be it. We are just seeking to inject a little industrial reality into the system rather than this artificiality, because, as I say, what the Commission in this case has had to say is, the demands do not really mean what they say and the employer, or the corner supermarket who got this demand is supposed to know that whatever is on the piece of paper he can ignore because it does not really mean anything. But that does not tell him, of course, what the proprietor of the supermarket is intended to believe when he gets this piece of paper with all these exorbitant - - -

KIRBY J: It is a bit like the old writ of summons: the plaintiff in a defamation case claims $2 million and no one really expects that sum, it is just the amount of the claim.

MR BLEBY: It is not quite, your Honour, because what is being identified here is whether or not there is a genuine demand. We are in the realm where your Honour, in reading such a writ, might not believe it is a genuine demand, but other evidence will show that there is a dispute which seems to be settled by the Court. All you have got is the non-genuine demand and nothing else, that is what we are talking about.

Now, how the Commission justifies it in this case, and seems to justify it in other similar cases, is to say, well, to justify the interpretation or the application of the log that it puts on the log is to say, "Look, we've heard evidence from a member of the body who authorised the log and that evidence consists, essentially, of two proposition: one is, I believe our members are entitled to the claims and the claims are genuinely put forward; the second is, in reality we do not expect to achieve those demands, in this case perhaps for 1000 years."

Now, the first proposition - that is a belief that the members are entitled to the claims and they are genuinely put forward - is, with respect, utterly fantastic as evidence of genuineness, because claims like this just cannot be given that credibility. It cannot be a genuine belief when the terms of the log are compared with industrial reality. The second proposition - that is, "I don't believe that we'll achieve those demands for 1,000 years" - really belies the first anyway. The second proposition - that is about not achieving it for 1,000 years - if it is accepted, as it was, demonstrates the lack of genuineness of the demand in the terms in which it is cast and on which the Union relies as evidence of the dispute.

McHUGH J: What is the difference in principle between a claim as in the present case and a claim, for example, which said, "We want for the year 1994 $400 a week, for the year 1995 $500 a week, $600," et cetera, so it is steps and stairs? Now, would that give rise to an industrial dispute?

MR BLEBY: It may do and I qualify that, your Honour, by saying it might depend on other circumstances too, but provided that the claims were seen to be within the bounds of achievement I would not discount that as being possibly an industrial dispute. At the same time I would question whether it is necessary, given the ability, if the Commission chooses, to use imaginatively the prevention powers of the Constitution at placitum (xxxv) and the powers which are invested with it and the incidental powers of settling a dispute not necessarily strictly speaking within the so-called ambit of the dispute evidence by the log of claims.

McHUGH J: But your argument really seems to be hankering after the days before the First World War, what Chief Justice Griffith said about mischief-makers not by expending a few shillings on paper and ink being able to create an industrial dispute.

MR BLEBY: I do not ask the Court to go back to Chief Justice Griffith, although - - -

McHUGH J: I think you do. In paragraph 5.1.1 you refer to one of his judgments where it contains that very passage.

MR BLEBY: Yes, we do. I accept that over time he and Justice O'Connor became the minority, but I will come to that and take your Honours perhaps to one of those cases and - - -

DAWSON J: The point, Mr Bleby, though is in answer to Justice McHugh - I am not answering what he is saying, but I am suggesting there is something to be discerned there. If the log of claims were really asking, for instance, to be written into an award, the fact that pay by 2000 and whatever it is should be such and such, you might have an industrial dispute about future terms and conditions, it might be an industrial dispute, but what you say is they are not asking for that at all. What they have got is merely indicating their objectives and they are asking for something quite different, so that that cannot be the subject of industrial dispute, the objective.

MR BLEBY: The objectives cannot be because - and one of the next points I was going to make was as a result of what the Commission does, in effect, to construe it as a shopping list, and I think the Industrial Relations Court did this in the Queensland case at page 961, the passage Mr Douglas took the Court to this morning, but by saying that these demands have to be cast in those - - -

DAWSON J: In other words, the Union is not asking for wages to be fixed for 2005 and never was.

MR BLEBY: No, that is right. It is no more, as the Commission seems to say and as the Industrial Relations Court said, a negotiating list, but - - -

KIRBY J: It does tend to suggest that there is a slight possibility of a dispute over wages. Parliament has set up a specialised body, the Commission. That specialised body has the power to decide whether there is a genuine dispute and, if it makes a mistake within its jurisdiction, so be it. It has to be an egregious mistake that takes it out of its jurisdiction.

MR BLEBY: With respect, your Honour, so to say is really just to do what the Commission in this case has done, to say that the log of claims is not worth the paper it is written on. That is what is submitted as being the evidence of the dispute.

KIRBY J: You say that but the Commission apparently felt that though some of the claims may be overstated, that there was still a genuine dispute in respect of certain matters.

MR BLEBY: We are challenging the basis on which the Commission can possibly reach that conclusion.

KIRBY J: Is there not a single paragraph in the log of claims which you would concede gave rise to a genuine dispute?

MR BLEBY: There is not a single paragraph, and that can be seen just by a comparison which we have attempted - and I will not waste the Court's time now - in appendix 1 with the evidence that was before the Commission of what the current standard was. It is just extraordinary. But if you say, as the Commission does, it is really only a negotiating list, a shopping list, we say for reasons which we develop in appendix 3 - and I will not go to it now but I invite the Court to look at it - that, firstly, you cannot construe the log as merely a catalogue or a shopping list. It just does not lend itself to that. That is based on the actual construction of the log itself. But that is not what this Court has ever done as far as I am aware and certainly not what it did in SPSF where it was confronted, admittedly, with far fewer claims but nevertheless aggregated them to see what the nature of the demand was. That is all you can do.

But if you do construe it as a catalogue or a shopping list, how is the employer, the supermarket operator, supposed to know what to do with it when he gets it? He does not know what to comply with, how to respond to it. He does not know what the dispute is really about. How then can the Commission, in our respectful submission, say there is such a dispute?

KIRBY J: He could do what employers have been doing since 1904 and that is put up some counter proposition within the ambit of the claim.

MR BLEBY: Well, he is not obliged to.

KIRBY J: He is not obliged to but, if a dispute is created, it is then for the Commission to resolve the dispute by conciliation and arbitration.

MR BLEBY: We do not have that situation. The person served has remained silent, probably because he does not know what to do with it. There is a need to know what the dispute is about in the case of a paper demand or evidenced solely by a paper demand. The Victorian outline makes this submission at paragraph 13. I will just formally adopt it as I did before but refer particularly to that paragraph from the Victorian submission. One of the Tramways Cases in [1965] HCA 50; 113 CLR 228 is referred to in that paragraph as evidencing the need to know what the dispute is before you can even start to make a finding that it exists.

It seems to us that the third basis on which the Commission then proceeds to say, "Well, this is evidence of a dispute," and why the log does not really mean what it seems to say, is that it has to be construed differently by some apparent doctrine of necessity, driven by the notion of ambit, and that requires that excessive demands be made in order to leave the Commission room to move on future variations.

Now, the suggestion, of course, is adopted by our opponents, and it comes back to the Ludeke Case again, and I just want to make a submission in addition to what my learned friend, Mr Douglas, did in relation to the Ludeke Case. May I take the Court to that, in [1985] HCA 55; 159 CLR 178? Without repeating the passage, it seems to us that the one that the Union and, indeed, in the Action Food Barns Case and this case the Commission seems to have relied on, is that which appears at the top of page 183, in the second line:

The requirements of the ambit doctrine not only promote, but necessitate, the making of inflated demands. Because the provisions of an award which settles a dispute must be "relevant", "reasonably incidental", or "appropriate" to the statement of what is in dispute.....it is essential that the log is so expressed as to create a dispute which has sufficient breadth and scope - - -

DAWSON J: I simply do not understand that, really. I know that I was a party to this judgment. I mean, really, it amounts to stating a dispute that is not the dispute in order that when another dispute arises it will be within the ambit of the dispute that was not there in the first place.

MR BLEBY: I agree, with respect. But could I suggest that perhaps what the Court intended - and far be it from me to put words into the mouth of the Court - was that statement as being an explanation for extravagant demands, rather than a justification for holding that they are genuine because they are extravagant.

DAWSON J: The explanation this morning seemed to be that the application for variation was not another dispute at all, and the reason why it was not another dispute was because it would require a lot more paper work, if it were so regarded. But that really is not convincing, is it?

MR BLEBY: No, but that has certainly been the thinking. But behind a lot of the doctrine of ambit, as it has been applied and understood by the Commission at least - - -

KIRBY J: It may not be convincing, but it has also been applied by the Court for a very long time.

MR BLEBY: I appreciate that, and perhaps what is said in Ludeke - - -

KIRBY J: That makes you pause before you say that it ought to be overthrown, because it has been applied and re-applied for nearly 100 years.

MR BLEBY: My first submission is that what the Court is really saying is by way of explanation for inflated demands, rather than saying that is a justification for them and, therefore, you say that it is evidence as a genuine dispute. But in our respectful submission, you cannot determine genuineness of demands by, in effect, considering the power of the Commission to make an award at some unstated time in the future.

BRENNAN CJ: That is a rather large leap, is it not? I mean, one can understand perhaps the passage to which you have drawn our attention if it is appreciated that the essential nature of a dispute is a non-agreement or a disagreement, of course, about a particular subject matter. If there has been no agreement to an extravagant claim, that is one side of the record. The question is, "Did the claimant want to have a dispute about that subject?" Answer, "No, if it's too extravagant" but, on the other hand, if they really want it, they would like to have it, then there is a dispute, although it is appreciated that it will not be given. On the other hand, you might say, if it is so extravagant, it is the case of saying, "Well, nobody would want to kill the goose that laid the golden egg", so you do not believe that there is a genuine claim for it at all. But if you have a claim of what is really wanted and a non-agreement with that, why does not that give rise to a dispute consisting simply of, "We wish to have it." "No, I won't give it to you."?

MR BLEBY: If the proper inference to be drawn from the way in which it is put is that that is genuinely claimed, yes.

DAWSON J: It must be so.

MR BLEBY: Yes.

DAWSON J: But you cannot say that is an ambit claim.

MR BLEBY: No. Well, you certainly cannot say it of these claims.

DAWSON J: Well, a fortiori.

MR BLEBY: Yes.

BRENNAN CJ: That depends on how you define ambit claim, does it not? I mean, if you say an ambit claim is anything that the Union genuinely wants at the time that it is demanded, then that can give rise to a dispute even though it is not expected that it will be realised at that time.

MR BLEBY: But if the inference to be drawn from the reason for stating the claim in ambit terms is so that, according to the doctrine of ambit, the Union can come back and seek a variation of the award still within the ambit of the original dispute, which is how the ambit doctrine is being applied, then the inevitable inference to be drawn from that, with respect, is that the demand is being given, or made, for the purpose of having the Commission regulate terms and conditions of employment for the foreseeable future, and the Court has held in SPSF and many cases that that is an impermissible reason.

BRENNAN CJ: If that is the only reason.

MR BLEBY: If that is the only reason.

BRENNAN CJ: In other words, if it does not really wish to have it at all at that time, but you simply want to confer jurisdiction, that is not sufficient. But if, on the other hand, you have, for example, practice at the moment of paying $400 a week and the Union says, "I think this industry really could pay $500 a week and we'd like to have $500 for our members. We're not going to get a $100 increase immediately but we might get 10 and, over the years, we might get it increased bit by bit up to that 500 mark." Why is not that a fair enough subject matter for dispute?

MR BLEBY: If it is apparent that the reason for making the demand is to enable the Commission to go on making an award in those terms - - -

BRENNAN CJ: No, not that. The reason for making the demand is because the Union wants to get that condition for its members.

MR BLEBY: If the demand is specified in terms whereby it says, "We want $10 now and incremental increases over the next few years", I can understand that.

BRENNAN CJ: "We would like to have $500 right now, but looking at the realistic situation, we know that there's no way in the world that the Commission will give us $100 now or, a fortiori, that the employers will but, over time, we hope to get it."

MR BLEBY: If that is the terms of the demand, in our submission, that would be a non-genuine demand, because it is plainly acknowledging that it is not something which they want or can get now.

DAWSON J: Or, alternatively, no dispute can arise from it because they are not disputing about it. They are not saying, "We are not entitled to it and you are not giving it to us." They know they are not entitled to it.

McHUGH J: One difficulty I have in this area is the use of the term "genuine" because the Constitution is regulating disputes that exist in society and surely one looks at it objectively. Why should it depend upon the subjective intentions of an organisation which makes a claim? Why should the existence of an industrial dispute turn on whether or not the Union officers are honestly promulgating a claim, really believe in it, no matter how mad or extravagant it is, and yet, on the other hand, you would have exactly the same document served on employers, and because there is no belief in it you conclude that there is no dispute. Why is not the better approach to look at these things objectively and say, "When you look at this objectively, is there really a dispute going on?"

MR BLEBY: I do not have a difficulty with that.

McHUGH J: I did not think you would, at all.

KIRBY J: The Court's jurisprudence has been expressed in "genuine", but perhaps it really means "real" dispute.

McHUGH J: Indeed, that was the term used by Justice Isaacs in one of the cases in 18 CLR, to which you refer.

MR BLEBY: Yes. The only question the Court has to decide is whether there is a dispute, and I think Justice Toohey, I think it was, in SPSF, and I think probably the joint judgment also, referred to the tautologist nature of a genuine dispute. It is either a dispute or it is not, but you can certainly have a genuine demand. I agree, it has to be determined objectively. If all that you have got is the service and rejection or non-compliance with a log claims in extravagant terms, the inevitable inference is that the Union cannot be wanting what it has asked for, therefore, no dispute, not a genuine demand.

TOOHEY J: If you push the argument too far you end up with the proposition that really something is only genuine if it is likely to be accepted.

MR BLEBY: No, I am not suggesting - - -

TOOHEY J: No, I am just saying this is a logical - query, perhaps - extension of the argument that unless the Union can expect to get what it is demanding, there is no dispute. If that is the proposition, I mean, you would not have a dispute unless you put forward a claim that was acceptable, and that cannot be right.

DAWSON J: But you do not put it in terms of expectation, you say you cannot have a dispute about something which is not really being demanded.

MR BLEBY: Yes, that is right. The only - - -

TOOHEY J: That is another question altogether. I put this to you in the context of some of the replies you made to, I think particularly Justice McHugh, in terms of expectation or genuineness and so on. There must be some scope for an expectation, perhaps, that the claim will not be accepted, at least as demanded, because otherwise the whole notion of a dispute just seems unreal.

MR BLEBY: Yes, you will always have an agreement if the demand is only what you know the employer is going to accept and at some stage there may need to be a line drawn and it may not be easy to draw in some cases.

TOOHEY J: I do not know that you have to draw lines but you may have to be able to say in some cases whether something falls on one side or the other.

MR BLEBY: If one is relying totally on the service and rejection of a log of claims. There are many other ways one can evidence a dispute or an impending or probable dispute which confers jurisdiction on the Commission too, but the point, if I may come back to it - - -

KIRBY J: The fact that it may not be easy sometimes is a reason for great care in the case of this Court intervening in a specialised tribunal set up with a specialised function. What is the most recent case of the Court on error within jurisdiction and out? I think it is the South Australian - - -

MR BLEBY: PSA Case I think.

KIRBY J: Yes. Is there anything since then that you are aware of?

BRENNAN CJ: That is certiorari, is it not? You are concerned with the prohibition.

McHUGH J: You are talking about the Industrial Court, which you were in?

MR BLEBY: Yes.

McHUGH J: Yes, the PSA Case, was it?

MR BLEBY: Yes, but can I get back to the question of ambit and the justification of the Commission seems to, certainly in the Action Food Barns Case, use for the purpose of saying demands have to be cast in those terms and if they are cast in those terms to satisfy the ambit doctrine they will be genuine demands. Now, our submission is that really, notwithstanding what is said in Ludeke, the doctrine of ambit has an entirely different function to perform and it is purely concerned with the question of whether or not the Commission has acted within jurisdiction in making an award and can say nothing about the genuineness or otherwise of a dispute and that was accepted by this Court in Reg v Holmes [1980] HCA 37; 145 CLR 68.

My learned friend, Mr Douglas, referred to it in passing this morning, but I want to take the Court to the particular passage in the judgment of Justice Mason, as he then was, at page 76 and I might add it is a passage which I think your Honour Justice Toohey - or certainly an approach which your Honour Justice Toohey agreed with in SPSF. At page 76 at about point 3 his Honour observes that:

The Association's next submission is that the log of claims is too uncertain in that, in relation to wages, it creates no definable ambit -

and then in the next passage he says:

Implicit in the Association's submission is a misconception of the doctrine of ambit and the purpose which it serves. Its purpose is not to determine the validity of a claim or log of claims, but to ensure that there exists an appropriate relationship between the dispute, especially a paper dispute, and the award which settles that dispute. It must appear that the provisions of the award constitute a settlement, if not a prevention, of an industrial dispute extending beyond the limits of one State.

I do not think I need read any further. It is perhaps significant and I might add that Justice Mason was speaking on behalf of the whole Court in that case. I might add that Holmes' Case in the passage to which I took your Honours before in Ludeke's Case 159 CLR 183 actually cites Holmes as authority for a slightly - or one of the propositions it puts there, with no apparent attempt to qualify in any way what his Honour Justice Mason there said on behalf of the Court.

So there is an implied acceptance at least of the Holmes' Case by Ludeke. Perhaps that adds some weight to the suggestion I put that it might be read as being an explanation rather than a justification for exorbitant logs of claims. That is the ambit doctrine generally. Your Honour Justice Toohey, I mentioned a moment ago in SPSF, made similar observations to that which appear in Holmes. I will just give your Honours the reference: 178 CLR. The case begins at page 249 but the relevant parts of your Honour's judgment appear at pages 291 and 292.

As I said before, if ambit is the only justification for exorbitant logs of claims, it is an inevitable inference that the only justification for the log is a claim for increased wages and conditions as determined from time to time by the Commission. In other words, you have sufficient period there in the foreseeable future to enable the Commission to regulate the terms and conditions which, if it is the sole motive, is an impermissible motive for serving a log of claims or supposedly creating a dispute. That was abundantly illustrated in SPSF.

McHUGH J: Your submissions must inevitably lead to some downplaying of the influence of trade unions, must it not, or organisations because do not your submissions really require an examination of the actual industrial situation to get some idea of whether or not the claim that the Union lodges is valid, so that one then concentrates on what is actually going on in industry?

MR BLEBY: If that is a consequence, so be it. But yes, we are saying that there needs to be a proper investigation by the Commission as to whether or not there is a dispute which exists.

KIRBY J: Perhaps historically that is why this Court in the early part of the century accepted the ambit of paper dispute procedures; first, the paper dispute and then the ambit principle.

MR BLEBY: That may be why, but I do not want it to be suggested that I assent to that as an agreement, or that is the way it should always be done. Nor do I suggest that it is necessarily a great disadvantage to Unions, because if they are prepared to say what they wanted, in reasonable terms, and the Commission was readily able to find, on that basis, that there was a dispute and proceed to settle the dispute, they would not be inhibited, in our submission, necessarily by making an award which can perhaps contain something which is not strictly speaking in the log of claims. Because, after all, if the Commission, on its investigation, finds that the solution to a claim for pay, whilst the employer is not prepared to concede that, is prepared to concede perhaps a week's annual leave or something, and the Commission says, "Well, that will settle the dispute," why should not the Commission then, by virtue of the incidental power - whether or not annual leave is said to be in the piece of paper - make an award which preserves the rates of pay and grants an additional week's annual leave?

McHUGH J: But looking at it from a purely functional point of view, the abandonment of the genuine dispute doctrine, as it is hitherto being interpreted in this Court, would seem to bring about laying down another issue in every case.

MR BLEBY: Is your Honour talking about the genuine dispute doctrine or the ambit doctrine?

McHUGH J: I am talking about both, really. They are interrelated in one sense, according to your argument.

MR BLEBY: They are only interrelated because the Court in the past, and certainly the Commission, has considered that they are. What we are trying to say is that they are not. We do not need to invite the Court to restate the ambit doctrine. Whether or not the Commission acts within its jurisdiction in making an award is a matter to be determined on another occasion. All I am saying is, it is not the end of the world, industrially and in practical terms, if Unions are required to make demands of what they really mean. Because there are ways in which the Act and the Constitution can be used to ensure that, in certain circumstances, they can come back to the Commission if, after a period of time, the award has been operating; for example, they are able to demonstrate to the Commission that if the wages or salaries are not increased in the award there will be a dispute, the Commission has power to prevent that happening by making an award. But that requires the Commission to investigate that matter properly and decide whether that is a genuine fear.

McHUGH J: I know. But hitherto, for the most part, findings of a dispute have been a fairly formal activity in the vast majority of cases, I would imagine. But if your submissions are upheld, then the question of whether you have got a dispute would seem to be a matter for evidence in a significant number of cases.

MR BLEBY: Well, it is a matter of the Commission being satisfied in every case. In some cases - - -

McHUGH J: Well, take the second log in the first case, a claim for $800. It does not seem, on the surface, to be extraordinarily extravagant. But the employers would say it was, and then you would have a dispute about it.

KIRBY J: You might even have 30 days of evidence.

McHUGH J: Yes.

MR BLEBY: That was not in that case, nor was it in our case.

KIRBY J: I realise that. But what I am saying is, once you open the door - you see, this was the advantage of the paper dispute, that it defined the parameters of the dispute and - - -

MR BLEBY: The 30 days of evidence case, your Honour, with respect - and I have some personal knowledge of it myself, as does Mr Douglas - involved many issues, many different and quite disparate employers and many logs of claims.

KIRBY J: It was not all taken up with X trade union officials who are called to say what was in their mind at the time of the log of claims?

MR BLEBY: There was some of that but your Honour has to realise the Commission in that case was dealing with four logs of claims, quite disparate employers in four States, I think, and events spanning a number of years. It is all very well to generalise about how these cases will run into 30 days. That perhaps is an extraordinary one, but I would suggest that the ones before this Court are perhaps more difficult where I think there was one day of evidence in each of these cases and one official called.

DAWSON J: In any event one has to remember that whatever culture the Arbitration Commission or the courts seek to erect for themselves, ultimately this is a question of the Constitution, the meaning of the Constitution.

MR BLEBY: It has to be.

DAWSON J: Every court is bound to uphold the Constitution.

McHUGH J: We can all accept that, but the Constitution is operating in a heavily industrialised society and the lawyers have not performed too well in this sphere. No doubt the Constitution may be the source of the problems, but it is the jurisdiction that is beset with technicalities and lawyers seem to go out of their way to invent them. Now you are really wanting to invent another new layer of technicality.

MR BLEBY: I am not seeking to invent a layer of technicality, your Honour; I am seeking to destroy it and to remove it by saying, "Let's get rid of this technicality which the Commission seems to operate on".

DAWSON J: And the technicality is made even more evident when one gets to the interstate element. To say that merely because you serve a bit of paper in another State ipso facto - and that is the way it is approached - you have an interstate dispute, is highly technical, highly artificial and then awards are made on a State by State basis.

MR BLEBY: It is and always will be technical; I do not think we can avoid that. What we can avoid and what we are saying should be avoided is the artificiality. It is the artificiality which has crept into the system by these exorbitant logs of claims. We offer a few suggestions by saying ambit has nothing to do with it; you have to judge it on the facts. We suggest that this Court in the PKIU Case, to which my learned friend Mr Douglas referred this morning, has offered a way out by saying that demands for wages can be taken to include a demand for the real value of wages. There is that sort of approach.

There are, as I say, other ways of adapting or using the Constitution and the powers of the Commission to retain its jurisdiction without relying necessarily on the strict and technical application of things like ambit doctrines. What we are objecting to is the strained and artificial and non-natural meaning that has been given to the phrase "industrial dispute", an artificiality which this Court has consistently avoided certainly since the CYSS Case, Coldham's Case in 1983 when it went back to the common meaning and the natural meaning of "industrial dispute". We are suggesting in this area it is not unreasonable to ask the same.

I know, and we have referred to in the outline, some of those earlier cases, and I am not suggesting one needs to go right back to those, but perhaps a useful reminder is even of those later cases of Holyman's Case [1914] HCA 36; 18 CLR 273. If I can take the Court to that briefly. This is at the stage where the Isaacs court is in its ascendancy and the earlier views of the Chief Justice and Justice O'Connor have become dissenting views, but speaking on behalf of the Court at page 285, speaking on behalf of the majority at least, his Honour Justice Isaacs says this, and I quote halfway down:

In order to prevent any misapprehension in that respect I state, with the concurrence of my learned brothers Gavan Duffy, Powers and Rich, in a succinct form five propositions of law which are now to be taken as expressly or by necessary implication to be definitely settled. They are:-

(1) The phrase "industrial disputes.....of section 51 of the Constitution is to be construed according to the natural and ordinary meaning of the words as understood at the time of the passing of the Constitution Act.

(2) There may be an industrial dispute "extending beyond the limits of any one State" although there is no inter-State competition in the products or services of the industry, and although the operations and conditions of the industry in one State have no direct action or reaction with respect to the operations or conditions in another State.

(3) The word "dispute" means a real dispute in fact, and is not limited by any artificial criteria.

And that comment is worth emphasising:

(4) The words "extending beyond the limits of any one State" as applied to a dispute mean that the dispute is one "existing in two or more States" or, in other words, "covering Australian territory comprised within two or more States."

(5) The existence or non-existence of such a dispute within the meaning of subsection xxxv is to be ascertained by this Court by the ordinary rules of evidence applicable to questions of fact.

There is one other passage to which I do I wish to take the Court also, and it is in a slightly earlier case in the The Builders' Labourers' Case [1914] HCA 32; 18 CLR 224. In this case as to whether or not Builders Labourers could, in a number of States, be party to an interstate dispute, Chief Justice Griffith and Justice O'Connor dissented, but I want to take the Court to a judgment of Justice Powers at page 259 who was in the majority saying that there was such a dispute. Notwithstanding his disagreement with the Chief Justice on that aspect, he did say this starting at point 3 on page 259:

I agree with the Chief Justice when he says that a "dispute must be something more than a claim to have the conduct of an industry regulated. It must be a real dispute."

And if I can pick it up further down that page, the last paragraph:

I have referred to some of the reasons why I dissent from the judgment of the learned Chief Justice, because, as Deputy President during the learned President's absence in England, I do not wish any body of unionists to uselessly institute proceedings in the Arbitration Court under the impression that I hold that the Commonwealth Arbitration Court has power to make a complete code for the regulation of labour - on the contrary it is a Court for the prevention or settlement of disputes by conciliation and arbitration; or to assume, because I dissent from the judgment of the Chief Justice in this case, that I hold that the mere fact of the presentation of a log of prices and conditions and the failure to accede to it necessarily established the existence of an industrial dispute extending beyond the limits of one State, without some proof of the genuineness of the demand, and the intention to persist in it if the demand is not conceded or settled.

Now, that is going to be very difficult of course in the case of an exaggerated demand, as we have seen, but those words, in our respectful submission, are worth bearing in mind in applying to this case.

Indeed, we would go further and say that more recent judgments of this Court, particularly in Cohen's Case, suggest that that is still a requirement. I take the Court briefly to Cohen's Case [1981] HCA 66; 157 CLR 331. There is an echo of that approach of both Justice Isaacs and Justice Powers certainly in the judgments of the former Chief Justice, Justice Gibbs, and the judgment of Justice Wilson. I refer to page 337 in the judgment of the then Chief Justice at about point 6, where his Honour says:

Although a dispute may be contrived, it must be real and not a mere fiction. The demands made must be genuine, in the sense that the organization making them really wants what it demands.....if the log is not sincerely propounded as a demand on which the union is resolved to insist, and is nothing more than a step towards enabling the Commission to exercise jurisdiction, it will not create a real dispute.

The point is, the inevitable inference from a log like this is that the Union is unable to resolve on its insistence, and there needs to be something more in the case of a mere paper demand with that qualification. A similar qualification was made by his Honour Justice Wilson at page 346 in the same case, at about point 5 on the page, after the reference to the Graziers' Case where his Honour says:

Nevertheless, such disputes must be real and genuine and seriously persisted in. This is always a question of fact and in proceedings for prohibition the fact must be determined by this Court - - -

KIRBY J: I notice Chief Justice Gibbs says at 337 that it can be contrived:

may be contrived, it must be real - - -

MR BLEBY: It must be real and there must be some resolution to insist on it, merely not just throwing a piece of paper in the mail and leaving it at that. As we have said, the approach we suggest need not necessarily inhibit the Commission in its role in conciliation and arbitration for the prevention and settlement of industrial disputes, interstate disputes, by making use of the incidental power and by making use of the preventative powers, and we have adverted to that in paragraph 5.13 of the outline, and I do not think I need take that any further. The full extent of those, of course, may be a question for another day.

Quite apart from what we say has been a misapplication by the Commission of, amongst other things, the ambit doctrine and the misconstruction of logs of claims and the undue technicality, we say that in this case there are other primary facts from which this Court can and should infer that the demand was not genuinely made. The additional facts we refer to at paragraph 7, from about point 5 to 7.10 of the written outline, and we refer to a number - and I have already drawn attention to the primary facts in my survey of the facts when I began.

These are a matter which, in our submission, the Court can properly infer that the demands are not genuine. Putting them all together the inevitable inference, in our submission, is that the real purpose in serving the demand, the only purpose for serving the demand was to have the Commission regulate the terms and conditions of employment. That is aided by the extent of the service, given that they are small supermarkets, independent supermarkets and shops in a number of States and a large number, people who were previously covered by awards of State commissions where a dispute is not necessary and largely covered by common rule awards.

Finally, may I just say something, as my learned friend did, about the onus of proof because it is a matter which has some bearing on the approach of the Commission to genuineness questions and other findings of fact which found the jurisdiction of the Commission. We certainly do not challenge the suggestion that when prohibition is being sought in this Court the prosecutor bears the onus of establishing the facts which show that there is no jurisdiction on which the Commission can proceed. This Court has to make up its own -it is said on many occasions has to make up its own mind on those facts.

We do not cavil with that at all, but where, as here, the fact in issue is the genuineness of the dispute said to be created by the service and non-compliance with a log of claims, that was a matter of inference which the Commission drew in this case. It is a matter which on essentially non-contested facts this Court is just as capable of drawing as the Commission. The only area where this Court has said it will defer to the Commission is, of course, in areas of industrial standards and that is entirely proper, but this Court will draw the proper inferences from the primary facts. Indeed, if the evidence as a matter of law that was before the Commission as a matter of law does not support the inferences drawn by the Commission, this Court should say so.

Of course, it will not be achieved by a mere self-serving statement by Union officials to the effect that the demands in the log are genuinely claimed and that will not necessarily support the inference to the contrary from the nature of the log itself and the other surrounding circumstances, but this Court can decide, of course, what the log means - it is, after all, a document which is capable of construction - and determine whether or not the Commission erred, as we say it did, in really attributing some other meaning to that document. That is one of the other bases on which prohibition can be granted, if the Commission has made an error of law which in some way vitiates its conclusion as to the existence or otherwise of the dispute and, hence, of the jurisdiction of the Commission in misunderstanding its function and that is what this Court decided in the Public Service Association Case [1991] HCA 33; (1991) 173 CLR 132.

So the errors essentially that the Commission committed in this case were reaching a conclusion as to genuineness in the content of the log of claims which was not really open at all on the evidence; misconstruing the log of claims as a catalogue, when plainly the words of the log do not allow that; misapplying the ambit doctrine to the question of the existence of an industrial dispute where it has another purpose altogether; and it can also be said placing an onus upon a party served with a log of claims in proceedings in the Commission to demonstrate to the Commission that there is no industrial dispute, in other words, putting the onus of proof on the parties served at the Commission stage of the proceedings, which is what the Commission seems to have done in certain aspects of this case.

We deal with that in paragraph 6 of our outline. They seem to have adopted that view, both as to genuineness and as to the nature of the parties served as employers. It is our submission that in a Commission, the onus would be on the Union to prove the existence of the dispute - after all, it is seeking to invoke the jurisdiction of the Commission - not on the recipient of the demand to prove that there is no dispute. That is the view which your Honour Justice Toohey seems to have taken in SPSF [1993] HCA 30; 178 CLR 249. I refer particularly to what your Honour said at pages 288 to 289 - and I will not read it but that is where, in effect, your Honour said it is for the party seeking to invoke the jurisdiction which has to establish the facts necessary to do so.

It is not entirely clear, but it seems to me, on a reading of the joint judgment of the then Chief Justice, Justice Deane and your Honour Justice Gaudron, at page 266, that the parties to the joint judgment were agreeing with Justice Toohey, but providing additional reasons of their own and, in particular, at page 271 seemed to say, having disposed of the argument:

That is sufficient to entitle the prosecutors in the S.P.S.F. matters to the relief which they claim.

This is halfway down 271:

It is, however, appropriate that we indicate our agreement with what has been written by Toohey J. in relation to the other arguments advanced in support of their claim for relief.

And it appears to us that one of the other arguments which your Honour was addressing was that question of onus of proof. But whether that is a correct interpretation of the joint judgment with which your Honour the Chief Justice and Justice Dawson agreed, I am not sure, but certainly it was the view taken by your Honour Justice Toohey. Your Honour Justice McHugh disagreed with that and at page 303, at the bottom, said this, and I quote, in the last paragraph:

In principle, it is difficult to see why the raising of a prima facie case should transfer the burden of proof to the party asserting that there was no dispute. In other branches of the law, the raising of a prima facie case means that, in the absence of further evidence, there is evidence upon which the tribunal of fact can, but not must, find for the party raising the prima facie case. In these branches of the law, the legal onus of proof does not shift to the defendant. In federal industrial relations cases, however, the contrary rule seems firmly established and has been stated and applied in a recent and unanimous judgment of this Court.

And your Honour refers to Ludeke's Case at page 181. Your Honour said:

Consequently, it should now be taken as settled that a "paper dispute" constitutes prima facie evidence of a dispute and that the onus of proving lack of genuineness falls upon the party who denies the genuineness of the dispute.

With respect, if your Honour goes to Ludeke's Case and the passage referred to, and the authorities cited in Ludeke's Case, our reading of them indicates that they are all talking about the onus of proof in this Court on prohibition, and are not saying anything about the onus of proof of a dispute in the Commission. They all deal with the onus in the High Court which, as I say, we accept. We accept also, of course, that no a prima facie case there is an evidentiary onus on the party seeking to - required upon a party to lead evidence at least which casts doubt upon that.

But if, for example, as was the case in this case, the evidence led for the Union, despite an assertion in an affidavit that all the parties served were employers, the deponent says, "Well, I do not know whether they are employers are not", it is not then, we would submit, for the employers to say - or the parties served to say that they were not employers. In that sense, the legal onus rests on the Union. But it seems to have been the attitude taken, not only in relation to identity of employers, but also in relation to genuineness, and it is our respectful submission that the position as stated by your Honour Justice Toohey in SPSF is the correct one.

There seems to have been reliance placed certainly in the Action Food Barns Case on Alley's Case [1981] HCA 61; 153 CLR 376. That was a case in which the identity of a large number of parties served was in question. There were some 1,900-odd persons served of which there was no evidence that they were employers and what was sought was both prohibition and mandamus. The case, in our submission, only supports the proposition that in this Court the burden of establishing facts showing absence of jurisdiction rests on the prosecutor, a proposition with which we of course do not quarrel. That, I might indicate, was dealt with by the then Chief Justice at page 382 on the question of prohibition. So far as mandamus was concerned, it was also dealt with by the Chief Justice at pages 384 to 385 by a citation of Ex parte Bott. The effect of that was that the prosecutors in that case could not show what the Commission had done was not a real performance of its duty, which it had to do of course if it was going to succeed in mandamus.

That is a somewhat different case and, as we point out in our written outline, there was no question that there was an industrial dispute, or it is conceded there was a dispute of some nature before the Commission. It was only as to the extent of the parties that the Commission could then proceed to make an award that was being called in question. But the ratio of that case is really that it is for the prosecutor in this Court to prove that the parties served were not employers. That does not seem to have been the view taken by the Commission, as I say, both in relation to genuineness and that identity and the identity of employers, but I appreciate that the question of the identity of employers is not a matter which need trouble this Court, given your Honour the Chief Justice's directions at the directions hearing.

In our respectful submission, this Court should grant the orders for prohibition principally on the basis that the demand has not been shown to be genuine, therefore there is no dispute for the reasons which we have sought to advance.

BRENNAN CJ: Thank you, Mr Bleby.

KIRBY J: In the event that you succeed and those orders are made, is there any inhibition on the ordering of costs? Do you ask for costs? I have a recollection that in the old Act there was some provision restraining costs, but that may have only been in appeals.

MR BLEBY: Yes, it was section 347 in the old Act. I have not seen what the current Act - - -

KIRBY J: I think that related only to appeals. Perhaps you might have a look at that.

MR BLEBY: Yes, I will, your Honour.

BRENNAN CJ: Yes, Mr Solicitor.

MR SELWAY: The Court has our written submissions, which we 4rely upon. If it is convenient, we propose in our oral submissions briefly to summarise the written submissions and to make some necessary corrections to them. The written submissions deal with three topics which seem to us to be interrelated. The first is the meaning of "industrial disputes", particularly where there is a paper claim. The second is the role of industrial organisations in the determination of whether there is an industrial dispute. The third is the doctrine of ambit. It is our understanding of our submissions that if they were accepted they would not have the effect of limiting the jurisdiction of the Commission.

Indeed, we think our submissions in respect of ambit would have the opposite effect. Our understanding is that our submissions are based upon a recognition of the width of the arbitration power, particularly in light of the decision of this Court in Victoria v The Commonwealth. We submit that the Court should take the opportunity to clarify and confirm that the issues of whether there is a dispute and the ambit of that dispute are questions of fact to be determined on the evidence. Our concern is that some comments and dicta of this Court have been misunderstood, or appear to have been misunderstood, as establishing propositions of law, whereas the comments and dicta of the Court were in fact dealing with questions of evidentiary weight and credit.

There are two examples in the Lamsoon matter. If I could perhaps say to the Court, we refer to the Lamsoon matter, though not for any special reason, but simply that it is a convenient matter for us to use as examples of matters relating to our propositions of law. First, it would appear that the Commissioner who heard the matter at first instance appeared to treat the issue as one to be resolved by determining whether the prosecutor had discharged an onus of proof. If we just refer the Court, without taking the Court to it, to appeal book pages 213.8 to 215, which is in argument, particularly at page 215, and also in the decision of the Commissioner at page 220 line 40 to page 221 about halfway down. In doing so we say that the Commissioner confused an issue relating to evidentiary weight with one relating to onus.

Perhaps less obviously we say that the Full Commission also fell into error in failing to understand what issue it had to address. Our submission on this matter picks up the comments or the question your Honour the Chief Justice asked my learned friend, Mr Bleby. The Full Commission dealt with the question of genuineness and whether the claim was fanciful as if the issue were one of the validity of the claim. And on holding that certain aspects of the claim were fanciful and were not genuine they applied what appeared to be a blue pencil test and severed those parts of the claim. The Court has been taken to it, but it can be seen at appeal book, pages 229 to 230.

In our submission, their real task was to determine whether on the evidence there was an industrial dispute. The evidentiary weight of the paper claim in determining whether there was a dispute had to be considered in the context that some aspects of the claim could be considered as unreal and unrealistic and were so considered by the Commission.

It seems to us then that the issue went to an issue of evidentiary weight in respect of the claim and the other evidence that was before the Commission, instead of which it appears to us they have treated the matter as going to the validity of the claim as if the claim was some sort of delegated instrument which could be severed and the rest of it left over and we say that is not an approach that one would use to evidence in the ordinary course. The question for evidence is what credit and weight does it have.

In our submission, those errors result from confusion about the status and significance of a paper claim and as a result of those errors the Commission in the Lamsoon matter appeared to fail to perceive that its task was to determine the relevant factual issue. Perhaps I should also say that our submissions differ, as we understand it, from the submissions put by the prosecutors and the appellants at least to the extent that they argue, in effect, that there cannot be an industrial dispute unless the claim is reasonable. In our submission, there certainly can be an industrial dispute where the position of one or both parties is unreasonable.

As we understand it, that was one of the reasons for the creation of the system of industrial arbitration in the first place, flowing from the disputes of the 1890s, which at the time were perceived as unreasonable on both side. In our submission, unreasonableness or fancifulness in relation to an industrial dispute is only relevant in respect of the credit or evidentiary weight to be given to particular parts of evidence and that is not to deny that it may be very significant in that issue, but it is to say that you cannot confuse the question of whether there is an industrial dispute with the question of whether there is a reasonable demand.

In respect of the need, which we say there is, for clarification, we would refer to the apparent disagreement between your Honour Justice McHugh in the SPSF matter - my learned friend Mr Bleby took the Court to it[1993] HCA 30; , 178 CLR 249 at pages 302 to 304 - where your Honour concluded that the question of where the onus fell in respect of a paper dispute was now well settled and the approach taken by your Honour Justice Toohey in that case at pages 287 to 289 where your Honour has approached the matter on the basis that is simply a question of evidence and that whilst a paper claim does provide evidence of a dispute, the question still has to be resolved at the end of the day and that the onus ultimately rests upon the party arguing for jurisdiction.

As to that, our submission is that your Honour Justice Toohey is plainly correct and that the decisions upon which your Honour Justice McHugh has referred and relied, while certainly inelegantly expressed, should not be understood as standing for the broader proposition. Certainly, some of them - and I think my learned friend, Mr Bleby, took your Honours to them, to Ludeke's Case, for example - seemed to be talking about the onus of proof of a prosecutor in this Court.

McHUGH J: That is so, I am pretty sure from recollection - I have not looked at them since that judgment was written three or four years ago - but my reasoning was - I do not think I expressed it so - was that there can be no distinction between the two classes of case, and if it is a jurisdictional fact, how can you say, "This is only a rule that applies to prerogative writs and doesn't apply to the Commission itself"? That is the problem I have.

MR SELWAY: I understand what your Honour put and I think your Honour the Chief Justice may have put something similar this morning. What we say is that the onus on a party alleging jurisdiction is a real onus and that is where the onus sits. There is a separate question in respect of prerogative proceedings, which is the jurisdiction this Court has. The general rule in respect of prerogative proceedings is that the onus rests upon the party asking the Court to exercise the jurisdiction.

In the ordinary course, it may be that the distinction about where the onus rests in this Court may not lead to the dramatic results that some of the cases seem to suggest that it might. Certainly, it would be open for a prosecutor to come to this Court and to bring further evidence that was not put before the Commission and/or try to have convinced the Court that, in light of that further evidence, there was not an industrial dispute notwithstanding the finding of the Commission.

The Court may be able not to deal with the matter on the basis of its discretion but, on the fact of it, there is jurisdiction for the Court to hear that evidence and to deal with it. In that circumstance, we would say the clear rule in respect of prerogative proceedings is that the prosecutor bears the onus. These facts are constitutional facts and that may have some effect upon the way the issue is approached, and I know your Honour the Chief Justice has dealt in some judgments, for example, Gerhardy v Brown, with the question of proof of constitutional facts and the Court's obligations in respect of that, but beyond that issue - - -

BRENNAN CJ: That is in relation to the validity of laws.

MR SELWAY: Certainly, your Honour.

BRENNAN CJ: This is in relation to the existence of jurisdiction, tribunals which are vested with power. That is a very different field of discourse.

MR SELWAY: Generally it is, your Honour, but it may differ in this context because an award, at the end of the day, does have its own legal status.

McHUGH J: I can understand your general approach, and I think I probably agree with it, but the point about those judgments is that they fasten onto the question that there is a paper dispute, that is the problem with them, and I have to say for myself I think they are wrong. The question is, what did the Court mean in those earlier cases? I suppose that is the real question.

MR SELWAY: Yes. Perhaps I could - - -

TOOHEY J: I am not sure that those earlier cases say anything to suggest that the onus of proof lies upon the employer, but rather that the onus of proof which lies upon the Union is prima facie satisfied by what is referred to, as Justice McHugh just said, as a paper dispute. So it really pushes the whole argument back to what is mean by "a paper dispute" and whether that document is, on the face of it, evidence of a genuine dispute - well, I will not fall into that trap or at least I will get myself out of it - whether it is evidence of an industrial dispute or not. It gets very close again to a bit semantic argument.

MR SELWAY: As your Honour will see as we go back to our written submissions and make some corrections to them, we know for ourselves how easy it is when putting a proposition in this sort of area that a proposition on question A may have some ramifications on question B, which means we have to qualify the proposition. We would certainly accept that some of the early judgments, particularly by Justice Higgins and Justice Williams, which your Honour Justice McHugh cites in that passage from SPSF, seem to be going to a broader question than simply prerogative proceedings, but we would say in the context the judgments were actually addressed to a completely different issue, which is whether there is a need for industrial disruption before you can have an industrial dispute and in that sense what is said is inelegantly expressed because if it is meant to say that somehow or other there is a deeming of an industrial dispute then we would say it is fundamentally wrong and must be wrong and it is contrary to the Constitution interpretation adopted by this Court.

In that light those judgments should be read in the context that if they meant what they appear to mean they would be wrong and it is possible to adopt another interpretation of them, which is that they are limited, as your Honour Justice Toohey says, to the question of evidentiary weight or that they are limited on the question of the onus of proof in prerogative proceedings. In any event, our submission is that the principle stated by Justice Toohey is consistent with the existing cases as properly understood and should be adopted and confirmed by the Court.

GUMMOW J: Now, what we are really doing is construing section 101, is that right, of the 1988 Act, that is to say, the Commission shall "if it considers that the alleged industrial dispute" et cetera "is an industrial dispute"?

MR SELWAY: We are to an extent, your Honour. Where we would say that the exercise is a bit beyond that is that the definition of an industrial dispute in the Act picks up, if you like, the constitutional meaning. "Industrial dispute" is defined as "an industrial dispute", and then they go on with various qualifications. So, consequently we would say that, whilst your Honour is right in saying that the Court is construing section 101, the construction of section 101 necessarily involves at the end of the day - - -

GUMMOW J: Yes, but no one ever seems to mention section 101. Section 101 could have been expressed in various ways, all of which were within the constitutional boundary, I suppose.

MR SELWAY: Yes, I acknowledge what your Honour is saying. What we say though is that if section 101 was expressed in terms that there shall be deemed to be an industrial dispute or that there is an industrial dispute unless the party alleging there is not an industrial dispute discharges some onus, we would then say it was beyond power.

GUMMOW J: There is nothing in 101 about onus?

MR SELWAY: No, your Honour.

GUMMOW J: Where does it come from?

MR SELWAY: As a matter of history, your Honour?

GUMMOW J: There are many administrative bodies that have to determine their jurisdiction. It may have a constitutional boundary in it as well somehow.

MR SELWAY: Yes.

GUMMOW J: Why does one inject the notion of onus into it and put it on one party rather than another?

MR SELWAY: Your Honour, to a certain extent I accept what your Honour says. It may be misleading to look at issues in terms of onus. However, if one party is seeking to establish jurisdiction and another party is not, the question then is: what is the consequence of one or other party having failed to establish their propositions? The approach adopted we think by the Commissioner in this case was that the prosecutor having failed to establish its proposition, namely lack of genuineness, meant that there was jurisdiction, whereas we say that the proper inquiry that the Commissioner should have made is whether he was satisfied on all of the evidence before him that there was an industrial dispute.

GAUDRON J: Mr Solicitor, do you know if section 101 is in the same wording as section 25 of the old Conciliation and Arbitration Act?

MR SELWAY: I must tell your Honour I do not, but I will find out.

GUMMOW J: It may be important in understanding some of the old cases.

MR SELWAY: Yes.

GAUDRON J: The reason for my asking is the phrase "if it considers that the alleged industrial dispute is an industrial dispute" which may suggest that it has got power to determine its own jurisdiction with some latitude, a matter that was adverted to, I think, in O'Toole.

MR SELWAY: It certainly is also referred to in Victoria v The Commonwealth on the prevention aspect of the jurisdiction - and I will come to that in due course - where this Court seemed to acknowledge that the Commission did have some latitude to determine its own jurisdiction.

Your Honours, we accept that if there was some practical advantage in the continuation of any existing uncertainty relating to paper disputes, that may be a good reason not to clarify the position - as to the practical advantage of the existing position being maintained. It seemed to be put in submissions for the second respondent in B2 of 1995 in paragraphs 1.1.1 to 1.1.8, 2.6.1 to 2.6.4 and 3.1 to 3.3.2.

In the course of those submissions, they do make the point that your Honour Justice Kirby has picked up about the 30 days spent in the SPSF matters. Could I say two quick things about that? First, if I could refer the Court to a bundle of material that has been filed by the second respondent in action No B2 of 1995, with a heading "Cases decided by the Australian Relations Commission considering fanciful logs of claims." Your Honours, I do not need to take your Honours to it, I just want to give your Honours the page references.

In that bundle is a decision of the Full Commission, which I think is called colloquially, at least, SPSF No 4, and the relevant pages are at pages 494 to 499 of that bundle. It would appear that the Commission was a little sensitive about the criticism made of them in the industrial court about how they had wasted 30 days dealing with these issues, and the Commission attempts to address that criticism of the Full Commission, and effectively outlines what it was that the 30 days was spent on and what it involved.

BRENNAN CJ: Do we need to spend the same amount of time considering it?

MR SELWAY: No, your Honour. I merely make the point because some concern has been raised about 30 days being spent, and what we say is if it took 30 days, well, it took 30 days. The question is, was the time reasonably spent and were they dealing with real issues? The Commission certainly expresses the view that they were. One can also ask the question that if, in fact, it was necessary to go through that process to determine whether or not there was an industrial dispute, the question still remains, what is the suggestion on the other side, that one does not spend 30 days if that is necessary?

KIRBY J: The suggestion on the other side is that, as for so many years, you accept the log of claims as laying down the parameters, but you have a reserve exception where it can be shown that the demand is not really genuine, or the dispute not really real. It is a sort of a fail-safe, but it is not the general rule. The general rule is the log of claims settles the parameters of the jurisdiction of the Commission.

MR SELWAY: Your Honour, what we would say is that the submission we put would not alter that position. We accept that in the ordinary course a claim is going to be evidence of a dispute. What we say would be different is how the Commission deals with the evidence it receives. The case referred to in those pages was a case decided before the matter was confirmed; it was decided when the Commission was making what we say are errors.

The evidence was always there in the exceptional case and, of course, the SPSF Cases were cases involving, as I understand it, the movement of hundreds of thousands of State public servants into the federal system. It is not surprising that that was going to be hard fought particularly in the context of industrial relations systems in Victoria and what that meant for the question of whether there was a real dispute. It is not surprising that that case may have taken a good deal of time, but that does not mean that every case is going to involve 30 days or anything like it.

GUMMOW J: It is a real dispute though.

MR SELWAY: I am sorry, your Honour?

GUMMOW J: It sounds as if there was a real dispute on any approached system of common sense.

MR SELWAY: It depends what the dispute was. There was certainly a real dispute about whether the matter should be within the federal jurisdiction, no doubt about that. The question was, was there a real claim for anything that looked like industrial conditions or was there a claim about moving Victorian public servants out of the Victorian industrial system? This Court has looked at that question on a couple of occasions. It may be that the question has now gone away but, nevertheless, that was what the dispute was about. You would not expect that matter to have any necessary consequences to the ordinary matter, most of which are variations of existing matters in any event. Your Honours, if we could go to the written submissions.

GAUDRON J: Mr Solicitor, before you do, could I take you back to this. I have got the old section 24, I am sorry, not section 25, of the Conciliation and Arbitration Act. The obligation on the Commission there was that "where proceedings come before the Commission, the Commission shall determine whether there is an industrial dispute" and, if so, then it records its findings. The provision in section 101 is different. Its jurisdiction is conditioned on whether it considers that it is an industrial dispute. There is a difference between considering and determining.

That seems to me to really make the jurisdictional issue or the jurisdictional fact not so much the existence of an industrial dispute as whether the Commission finds that it is an industrial dispute. Now, there may be questions even about the constitutional validity of that, but if it is constitutionally valid - and it was suggested, I think, in O'Toole that a provision to that effect would be - then we are engaged on an entirely different task from the task that we embarked upon under the old 1904 Act and from that embarked upon in those cases to which reference has been made. I mean, the only question would be whether it is under 101, in effect, whether it is impossible to form the view that it is an industrial dispute.

MR SELWAY: I take your Honour's point. Perhaps if I could also refer the Court to the decision of Victoria v The Commonwealth (1996) 138 ALR 129 at 155. The relevant part I am taking the Court to concerned the minimum wage provisions and whether they could be supported under the conciliation and arbitration power. At line 5:

The power conferred by section 51(xxxv) of the Constitution is a power to legislate with respect to conciliation and arbitration for the prevention, as well as for the settlement of interstate industrial disputes. Thus, as is well settled, it extends to a situation that is likely to give rise to an interstate industrial dispute.

The question whether a situation is likely to give rise to an interstate industrial dispute is one that an be answered only by making a judgment or forming an opinion in that regard. Once it is accepted, as it must be, that the power conferred by section 51(xxxv) of the Constitution extends to a situation likely to give rise to an interstate industrial dispute, it follows that it extends to a situation which a body entrusted with the power of conciliation and arbitration, as the Commission is, formed the opinion that there is a situation of that kind. Certainly, it extends to a law authorising the Commission to arbitrate claims for minimum wages if it considers that that is necessary to prevent an industrial dispute, which is the effect of section 170AH of the Act.

That seems, to me, at least, to support the position that your Honour put.

GAUDRON J: But the question for this Court may not be as - and the question for the Industrial Relations Court in the other matter - may not be, as it was assumed, whether or not there was an industrial dispute. We may be embarked on an exercise that section 101 renders irrelevant. The true exercise might be could the Commission form the view that there was an industrial dispute?

MR SELWAY: Certainly in respect of the prevention aspects of its jurisdiction that would seem to me to support - - -

GAUDRON J: No, I am speaking more widely than that, having regard to the terms of section 101.

MR SELWAY: Perhaps I could put it this way, your Honour - - -

GUMMOW J: In the sense of the phrase in O'Toole was "bona fide attempt".

MR SELWAY: Yes. It takes the matter somewhat further than the general principle, perhaps, that where one has a specialised tribunal this Court, in considering prerogative matters, would defer to the analysis of that tribunal, subject always to the power and jurisdiction of this Court to determine the question for itself.

Certainly Victoria v The Commonwealth would seem to resolve the question of the validity of section 101, at least in respect of prevention, we accept that. The question still remains that even if that is its approach, if the Commission is asking itself the wrong question - - -

GAUDRON J: No, I am not suggesting the Commission is asking itself the wrong question, I am suggesting that all you gentlemen at the Bar table have been asking the wrong question.

McHUGH J: I think only on one side of the Bar table.

MR SELWAY: Your Honours, we would still say that if the Commission has not asked itself the question of whether it is trying to prevent an industrial dispute or resolve an industrial dispute and has asked itself some completely separate question and the submission we have been putting, I am attempting to put, is that the question that has been asked is the wrong question.

GAUDRON J: What question did it ask?

MR SELWAY: It has asked itself the question, if we look at onus of proof, "Has the prosecutor proved something?"

GAUDRON J: There is nothing in 101 about that.

MR SELWAY: I know there is nothing in 101 about it, but if that is the question that they have asked themselves, they have not asked themselves the question of whether there is an industrial dispute.

GAUDRON J: It may be that a less onerous question has to be answered, a less specific question has to be answered.

MR SELWAY: Yes.

BRENNAN CJ: Would this be a convenient time, Mr Solicitor?

MR SELWAY: If it please your Honours.

BRENNAN CJ: The Court will adjourn until 10.15 tomorrow morning.

AT 4.17 PM THE MATTER WAS ADJOURNED

UNTIL THURSDAY, 6 FEBRUARY 1997