Patrick Stevedores Operations No 2 Pty Ltd and ORS v Maritime Union of Australia and ORS (cont. from 23 April 1998) M29/1998 [1998] HCATrans 126 (24 April 1998)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M29 of 1998

Between -

PATRICK STEVEDORES NO.2 PTY LTD

and OTHERS

Applicants

MARITIME UNION OF AUSTRALIA

and OTHERS

Respondents

HAYNE J (in Chambers)

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 24 APRIL 1998, AT 9.38 AM

(Continued from 23/4/98)

Copyright in the High Court of Australia

MR R.V. GYLES QC: If your Honour pleases, I appear with my learned friend MR J.E. MIDDLETON QC and MR M.P. McDONALD for the applicants. (instructed by Freehill Hollingdale and Page)

HIS HONOUR: Yes, thank you, Mr Gyles. Yes, Mr Burnside.

MR J.W.K. BURNSIDE QC: If your Honour pleases, I appear with my learned friends MR H. BORENSTEIN, MR M. BROMBERG and MR M. GRONOW for the Maritime Union of Australia and the employees. (instructed by Maurice Blackburn and Co)

HIS HONOUR: Thank you, Mr Burnside. Yes, Mr Elliott.

MR J.D. ELLIOTT: If your Honour pleases, I appear with my learned friend MR P. MURDOCH QC on behalf of the companies under administration, namely the third, fourth, fifth and sixth respondents. (instructed by Phillips Fox)

HIS HONOUR: Yes. Mr Harris?

MR G.P. HARRIS: If it please your Honour, I appear for the seventh and ninth respondent, Mr Corrigan and Mr Dunn respectively. (instructed by Blake Dawson Waldron)

HIS HONOUR: Yes.

MR J. FAJGENBAUM QC: If your Honour pleases, I appear with MS P. TATE for the 11th to the 16th-named respondents and as I said last night, your Honour, half of the 11th-named respondent and the 12th respondent are the identical company. (instructed by Minter Ellison)

HIS HONOUR: Yes.

MR G.T. PAGONE: If your Honour pleases, I appear with MR D. CHAN and MS W. HARRIS for the Commonwealth and for Mr Reith. (instructed by Dunhill Madden Butler)

HIS HONOUR: Yes, Mr Pagone. Now, Mr Gyles, I understand your application for special leave has now been filed.

MR GYLES: Yes, your Honour.

HIS HONOUR: And served?

MR GYLES: Yes, your Honour.

HIS HONOUR: A Full Court of the Court will be assembled at 10.15 am in Canberra on Monday morning. It will deal with that application or the matter as it then stands. It will no doubt be a matter for the Court whether it deals with the application as an application for leave, whether it deals with it as an application for leave and the hearing of the appeal, or deals with the matter in some other way. That will be a matter for the Court. But the parties should begin now to order their affairs on the assumption that 10.15 am Monday is the time at which the matter will come before a Full Court.

MR GYLES: If your Honour pleases. May I tender, your Honour, a transcript of the application made to the Full Court below for a stay. It is pages 180 and 181 of yesterday's transcript.

HIS HONOUR: Is there any dispute between the parties that application was made and refused?

MR BURNSIDE: No.

MR GYLES: No, your Honour.

HIS HONOUR: Need I receive this and mark it as an exhibit then, Mr Gyles?

MR GYLES: No, your Honour.

HIS HONOUR: Yes, thank you, I will have it returned to you.

MR GYLES: Your Honour, we gave notice to all of the other parties, prior to the appointed time, that we proposed on this application to put before the Court the appeal books which were before the Federal Court. I might say, your Honour, this is for the purposes of the stay application rather than the special leave application but - - -

HIS HONOUR: There is an obvious difficulty about the way in which this application will proceed. It occurs to me that a course that may be convenient is if in the first instance you, on behalf of the applicant, were to state, in the form of propositions, without developing them, first the grounds on which you say a grant of special leave might, should, could be made, and second, the basis of the contention which I understand you to be foreshadowing last night; that the application for special leave, again will, may, would be rendered futile if a stay were not granted. If there is some other basis other than the basis of futility for which you contend, it would also perhaps assist if you stated, again in the form of proposition without development, what that contention is.

MR GYLES: If your Honour pleases. May I accept that invitation. Number one, the questions of law raised by grounds 2 to 8 inclusive of paragraph 2 of the application are of public importance. They involve the construction of an important part of an important Act of Parliament and the interplay between it and the powers of the Federal Court.

Secondly, the proceedings are of immense public interest, with great ramifications extending well beyond the parties to the litigation. Thirdly, ground 1 in paragraph 2, taken together with the other grounds, raises an issue involving the administration of justice, both generally and in this case, which requires consideration by the High Court, by this Honourable Court, of the Full Court judgment.

HIS HONOUR: Let me understand that. As I understand it the contention is that ground 1 involves - what - principles of appellate review?

MR GYLES: Yes - well, the duty of appellate review, when raised.

HIS HONOUR: Yes.

MR GYLES: Fourthly or next, the orders made by the judge at first instance, North J, and his reasons are, it is submitted, quite extraordinary and indeed unprecedented. It is next submitted that the errors his Honour made - - -

HIS HONOUR: That may be a colourful description. It is not a particularly informative proposition, "extraordinary and unprecedented".

MR GYLES: I appreciate that, your Honour, but I have been asked for a summary without developing it.

HIS HONOUR: Yes. You can let me into the secret later. Now, proposition 5.

MR GYLES: It is submitted that the errors of his Honour were so egregious and the consequences so grave that intervention by the Full Court was demanded, in the proper exercise of their appellate function, even though the decision was interlocutory. Next, the failure of the Full Court to intervene is a failure of the administration of justice and the effects upon the immediate parties and the wider community are so important as to require this Court to exercise its supervisory jurisdiction over the Federal Court. Your Honour will have in mind 35A(2), I think it is.

HIS HONOUR: 35AB, I assume:

Whether the interests of the administration of justice, either generally or in the particular case, require consideration -

etcetera.

MR GYLES: Yes, thank you, your Honour. Proceeding with the summary points, as to the stay - - -

HIS HONOUR: Yes, those six points are the principal bases of application for leave.

MR GYLES: Yes.

HIS HONOUR: Yes, stay.

MR GYLES: Stay: we submit that in a practical sense the best short statement of principle is that of Dawson J in Myer Emporium [1986] HCA 13; 160 CLR 220 at 222 to 223. It is really a sentence:

Special circumstances will -

I have omitted some words -

I think exist where, for whatever reason, there is a real risk that it will not be possible for a successful appellant to be restored substantially to his former position if the judgment against him is executed.

We submit that that is the Tait principle translated to this type of situation. It will be our submission that the evidence will show that if the regime which has been instituted by these orders is given effect to, then there will be a number of significant effects upon the activities of the applicants which cannot be repaired by money. There will be the resignation of key employees. There will be disruption of business which may never be known about and never able to be quantified; that is, people will simply not utilise the services of these companies, and thus difficult, if not impossible to quantify. Thirdly, that the evidence will show that if the orders come into effect, it is more likely than not that even in the short term, the only available supplier of labour, apart from effectively the first respondent, will cease business or be so mortally wounded as not be able to continue to offer services on a realistic basis throughout Australia.

The evidence would show, your Honour, that the - I just identify the particular respondents - but the PSC companies, Mr Fajgenbaum and Ms Tate's clients, are the first suppliers of stevedoring labour to emerge in a number of years, probably living memory, who might be at a scale sufficient to offer the supply of labour to my clients. If these orders come into force even for a short time, the availability of that source of competition is lost and on the evidence one would conclude, very unlikely to ever re-emerge or to re-emerge in the foreseeable future.

HIS HONOUR: You speak of evidence.

MR GYLES: Yes, your Honour.

HIS HONOUR: To what evidence do you refer?

MR GYLES: I will be tendering evidence, your Honour, the nature of which has been notified to the parties. The net effect of that evidence will be that if the regime comes into force, the risks of damage to us which cannot be repaired by money are strong and thus it is that the test enunciated by Sir Daryl Dawson is met. The more recent enunciations of the tests - and I refer here to cases such as Kirby J in Ampolex v Perpetual Trustee Co Ltd 70 ALJR 603 - indicate that the balance of convenience may be had regard to and if that is so, then we would be putting the argument that the Full Court below correctly identified the evils associated with what I might call a yoyo of workers; and that it would be most disruptive to today allow back the union members who are employed by the administrator companies, and then in the event that we succeed before the Full Court on Monday, have the opposite result.

Indeed, to do so might prejudice our chances before the Full Court because they might say, "Well, there has been the yoyo on Friday. We think it undesirable in the public interest to have another period of disruption and who knows what the disruption may involve." The evidence, your Honour - - -

HIS HONOUR: That brings me to a point that should perhaps be exposed. As at present advised, I have heard you for, what, 15 minutes. The largest stay that I would have in contemplation at the moment would be 4.15 or 5.00 Monday, since the Full Court will assemble on Monday. I expose that point so that the parties may deal with it as they think appropriate, but I emphasise again, the question whether any stay should go is of course very live and real.

MR GYLES: Yes, quite, your Honour. Our proposition is that your Honour would not now disturb the present status quo before the Full Court looks at it and it will look at it imminently.

HIS HONOUR: I should say that the order may have to be, if it were to be made, of the nature of 5 pm or earlier order, permitting of course earlier dissolution of it. As I say, at the moment that is the outer limit of what appears to me to fall for consideration. Do you contend differently? Do you contend for some larger or wider stay?

MR GYLES: No, your Honour, we do not. We would only seek at the outer limit, your Honour, what your Honour suggests, the close of business on Monday so far as the Court is concerned.

Your Honour, inherent in the proposition I have just put is that on examination, when one comes to the balance of convenience, there is no insistent urgency in dealing with the matter, and indeed we would suggest with respect to the Full Court, that they may have fallen into the error of being swept up with manufactured urgency.

HIS HONOUR: You can tell that to the Full Court on Monday perhaps, can't you, Mr Gyles. It's a matter for them, isn't it.

MR GYLES: I suppose I am tactfully suggesting that your Honour would not fall into the same trap - or not so tactfully. But we do submit there is really, when one analyses it - of course there is always urgency in any litigation.

HIS HONOUR: This litigation has, shall we say, a degree of urgency different from some others, does it not, Mr Gyles?

MR GYLES: Indeed, your Honour. We are here to support that proposition. But we suggest that there is no particular urgency between now and Monday for disturbing the current status quo. It involves, as your Honour will understand, a significant disturbance of current arrangements to do that.

Your Honour, that leads me to I think the last proposition but one which, because I put it last, is not to be viewed as the least important. The issues which arise on the appeal, if we are to be granted leave, are issues which are interlocutory issues.

HIS HONOUR: Which is of course, ordinarily, a most powerful reason against the grant of leave.

MR GYLES: Quite, your Honour. But if we make our case good, then it would follow, I would submit, there should be a stay because otherwise in that sense our rights would be rendered nugatory. Take just for example, your Honour, the issue raised by paragraph 2(3) and 2(4), which are aspects of the same point. Once the interlocutory case goes, that point becomes moot, and it cannot be right, your Honour, that the High Court will not examine that question.

I mean, the dilemma is this: if our point is good, there is no power to make these orders or the substantial foundation for the orders simply is lacking and that is a point which we will be submitting is of significant importance and should be dealt with by this Court. It can only deal with it, if it's not moot, in a case where interlocutory relief is on foot. Indeed, as I have put, the whole of our case is an interlocutory case.

HIS HONOUR: You then have to grapple with the proposition that is reflected in Paringa Mining and Exploration v North Flinders Mines [1988] HCA 53; 165 CLR 452 at 458, that in general the orderly administration of justice would be impeded if this Court intervened in interlocutory proceedings in a matter pending in a Court of Trial. It's the responsibility of a Court of trial to determine the course of interlocutory proceedings subject to appeal to the relevant intermediate Appellate Court.

MR GYLES: Quite, your Honour. That is a factor which we will have to grapple with before the Full Court and when I get beyond putting propositions, if your Honour gets to that stage, I will grapple with it with your Honour. My proposition at the moment to deal with the stay is, if we get to whatever threshold we need to, your Honour, then it would follow that a stay should be granted.

HIS HONOUR: But is the point then this - again, let me see that I understand it - that accepting that the hurdle for a grant of special leave in an interlocutory application is high, if there is a significant prospect or a sufficient prospect of a grant of leave, that itself tells you that the interlocutory orders should be stayed. Is that the essence of what you are putting?

MR GYLES: It does, your Honour. It virtually mandates a stay if we reach the hurdle, because they are of their essence interlocutory issues. Your Honour, I think that completes a statement of our proposition.

HIS HONOUR: Can I ask you one question about the effect of the orders as they presently stand, again so that there should be no doubt. The Full Court varied the orders of North J in the fashion in paragraph 3, that is a variation by an order under the administration provisions of the Corporations Law.

MR GYLES: I am sorry to interrupt, your Honour. Your Honour has reminded me that my learned junior reminded me the morning that the notice of appeal does not take issue with that order.

HIS HONOUR: No.

MR GYLES: We will do so. That is, I am afraid, your Honour, my responsibility in the dead of night.

HIS HONOUR: It is to the effect of the orders that my question is directed.

MR GYLES: Yes.

HIS HONOUR: If that order stands, the consequence is that the administrators are not personally liable for the wages that are incurred in the intervening period pending trial. Is that right?

MR GYLES: That, your Honour, is the intention.

HIS HONOUR: Whether it miscarried or not may be a matter for debate. I am not concerned with that.

MR GYLES: No.

HIS HONOUR: But is the consequence of the orders, as they stand varied, that companies in administration - that is to say companies in the degree of financial distress that is a condition precedent to administration - are directed by the Court to continue incurring liabilities and indeed continue to incur liabilities of a kind that take priority in a winding-up over third party creditors?

MR GYLES: We submit that would be the effect as we would understand it, your Honour.

HIS HONOUR: That is, is the effect of the injunctions precluding the administrators or the company - and again I am not concerned to deal with that aspect - but is the effect of the orders that the employer cannot bring to an end the employment of the employee; the employer remains liable for the wages of each employee; that obligation therefore continues to accrue and increase?

MR GYLES: Yes.

HIS HONOUR: Being a liability that will take priority in any subsequent winding-up, if in truth the companies are unable to pay their debts as and when they fall due.

MR GYLES: That, your Honour, seems to us to be the consequence. That, your Honour, of course is one of the reasons why we will be putting in issue that this order - which I might say - - -

HIS HONOUR: It is not the question of the administrators' liability. It is a much more deep-seated question.

MR GYLES: No, quite so, your Honour.

HIS HONOUR: It is the obligation of a company, which on one version of events - and I suspect that version of events may not be unchallenged - on one version of events is unable to pay its debts as and when, is directed by the Court to continue incurring obligations though it is unable to pay its existing obligations. Now, there are about three, four, five, six points I suspect at which at trial - perhaps now - those propositions may be challenged.

MR GYLES: Yes.

HIS HONOUR: Are you able to point to any authority, other than the decision of the House of Lords in Argyll which North J dealt with but sought to distinguish, which would countenance such an order being made?

MR GYLES: Your Honour, our submission below was there is none. My learned junior, who was at trial and in the first part of the appeal, tells me Mr Burnside did not produce any such authority. Your Honour, can I also say this in relation to that Order 3: although I was not there for the whole of the appeal, I think it is right that that was an initiative of the Court.

HIS HONOUR: Because there was an undertaking offered at trial, accepted at trial, and it may be that you have some point that is a good point about the fact that the initiative may have come from the Court. I am not intending to preclude it. But the powers of the Court to vary the schemes of the law, the Corporations Law that is, in relation to companies under administration are very wide.

MR GYLES: Yes, although with respect one wonders how a general power to give what might be called administrative directions - - -

HIS HONOUR: It is relieving the administrator.

MR GYLES: - - - can write 443 out of the Act.

HIS HONOUR: I had occasion from time to time in the Corporations List in the Supreme Court of Victoria to look at the powers of the Court in voluntary administrations. They do seem very broad. But you may have a point about power to vary, the Corporations Law point. But the point I am concerned with at the moment to understand - - -

MR GYLES: Yes, is what effect it has.

HIS HONOUR: No, is the more deep-seated and radical point, not whether the administrator is relieved of liability - I understand that is the purpose of this order - but whether the impression I have at the moment is right or wrong, that the order directs a company which contends that it is - I think the words of the law are "is insolvent or is likely to be insolvent" - to continue to incur obligations of a kind that will rank in priority to third party creditors, whom I take it were not before the Court.

MR GYLES: No, your Honour. I am sure your Honour needs no reminding but the form of the undertaking - - -

HIS HONOUR: Was not to hold the administrator responsible.

MR GYLES: Quite.

HIS HONOUR: But as I say, the point is one of understanding the effect of the orders, Mr Gyles.

MR GYLES: Yes, your Honour.

HIS HONOUR: Again can I just play back to you some of the points you have made, again not to express any view about them - I do not want that misunderstood - but just to make sure that I am grasping what is put. You say, as I understand it, that the prospects of a grant of leave are, using the term neutrally, sufficiently high for your purpose because - if I summarise it this way: one, the powers of the Federal Court in relation to asserted threatened or actual breaches of the relevant provisions of the Workplace Relations Act is itself an important point.

MR GYLES: Yes, your Honour. Could I qualify your Honour, with respect.

HIS HONOUR: Yes, please.

MR GYLES: Alleged rather than threatened. It is a - - -

HIS HONOUR: Look, can we conduct the debate on the assumption that virtually every proposition is controverted by some party at the bar table. Again I do not want it misunderstood that by adopting some characterisation I am saying the characterisation is ultimately right. Everybody is going to complain about that, are they not. But the contention is that there has been an actual and a threatened breach of Workplace Relations Act.

MR GYLES: Yes.

HIS HONOUR: You say there is a point then about the powers of the Federal Court to grant injunction, yes?

MR GYLES: Interlocutory injunction.

HIS HONOUR: Of the kind here sought.

MR GYLES: Of the kind here made.

HIS HONOUR: Right. Is there a point there about the construction or the ambit or the effect of the relevant provisions of the Workplace Relations Act too?

MR GYLES: Yes, your Honour.

HIS HONOUR: Would you state that again.

MR GYLES: Your Honour, Part XA of the Act, which I might remind your Honour deals with freedom of association, for the first time, in Division 3 and Division 4 but relevantly for this case Division 3, prohibits, and makes unlawful in that sense, conduct which previously - or without this would not be unlawful. In Division 6 it provides the remedies for those breaches. We say that one could not get a plainer example of Thompson.

HIS HONOUR: Is this the point where you contend that the absence of aiding and abetting provisions is of some significance?

MR GYLES: Yes, your Honour, but the immediate point, if I may put it that way, is that 298T(1) and 298U in terms require that before any remedy can be awarded or any order made, there needs to be conduct in contravention of the Part.

HIS HONOUR: What, and that there is no power to restrain contravention threatened?

MR GYLES: No, your Honour, alleged - alleged - because if your Honour goes back to Division 3, which is the substantive matter, a threat is a contravention.

HIS HONOUR: But the Full Court found power to exist in section 23, Federal Court Act, did it not?

MR GYLES: Two sources, your Honour; the first they said, agreeing with his Honour below, 298U(e), taking the words "including interim injunctions".

HIS HONOUR: Yes.

MR GYLES: The difficulty, your Honour, with that argument, if I could put it that way, or that finding, is that T and U - and this is not uncommon in statutory injunction cases - require there to be a finding of contravention before the remedy runs. We produced below and would produce here other examples of that situation. An interim injunction, your Honour, is an injunction which will operate after contravention is found and, for example, before the Court is in a position to deal with final orders. It is not an interlocutory injunction pending a hearing as to contravention. Now, your Honour, I can elaborate that argument of course. The most instructive comparison is with section 80 of the Trade Practices Act, which was indeed the section looked at in Thompson.

HIS HONOUR: I think I understand that, yes, that is a point.

MR GYLES: In many statutory offences or unlawful conduct nothing can be done by way of a penalty or redress or anything of that sort unless and until the contravention is found.

Thus, your Honour, that then leads into and provides the answer also for the second proposition which was this: even if that does not run, or if because where the Full Court said in relation to the parties immediately in the employer-employee relationship, 298U(e) gives jurisdiction. In relation to parties who are not employer and employee, they held or said it was pretty certain that those parties were not affected by the proscription in Divisions 2 and 3 because it's limited to employer and the stevedoring companies were not employers.

So, they said, the answer to that lies in sections 22 and 23. At that point, your Honour, we say that cannot be right because Thompson's case and many other cases establish the proposition that if a statute for the first time makes conduct unlawful and provides the remedies for that, then those remedies are to be taken to be the only remedies and you cannot supplement those remedies by reference to powers such as section 23 or implied or inherent jurisdiction. That was the precise finding of this Court in Thompson's case. So, your Honour, that is how the point arises.

HIS HONOUR: And if that point is good - if - it is a point that depends upon an analysis of the statute. If that analysis falls out the way you contend it should, it then turns to, is there some residual inherent or like jurisdiction. If there is, how should it be exercised in a case of this kind, and so on. Is that the nature of the ground?

MR GYLES: That is it, your Honour, giving rise to an examination of Thompson's case and Jackson v Sterling Industries.

HIS HONOUR: Yes. Your second point again, just to make sure that I understand the points, is public interest and ramifications generally.

MR GYLES: Yes.

HIS HONOUR: Is it in that sense an appeal to the 35A(a)(1), a proceeding in which the judgment to which the application relates was pronounced, involve a question of law that is of public importance, whether because of its general application or otherwise?

MR GYLES: Correct, your Honour. We also remind your Honour that 35A enumerates some matters which must be taken into consideration but does not limit the discretion of the Court.

HIS HONOUR: I understand, yes. The remaining four grounds might, with perhaps some loss of accuracy, be described as a ground contending that the trial judge was plainly wrong and that Full Court should have intervened. Does that capture the essence of it?

MR GYLES: It sums it up, your Honour.

HIS HONOUR: Why do you say - again if you would confine yourself as far as possible to propositions - why do you say the judge below, the primary judge was plainly wrong?

MR GYLES: That's a large task to be succinct on that, your Honour. Can I encapsulate it?

HIS HONOUR: I heard Gibbs J say once to counsel, "State without developing them your three best points." The Court then retired and the Judge came back and informed counsel that the Court would not be assisted by the development of any of those points.

MR GYLES: Wasn't it Oscar Wilde, your Honour, that said he apologised for such a long letter; he did not have time to write a short letter.

HIS HONOUR: Let us start with your three best. Ordinarily you would have 20 minutes, would you not, Mr Gyles.

MR GYLES: I know, your Honour, but the head is a little thick this morning. Your Honour, the Judge at first instance made it quite clear that what he was seeking to do by this regime was to not restore or maintain the status quo which pertained at or immediately prior to the litigation, but rather, was seeking to establish a regime involving what can only be described as new rights and liabilities, in order to wind back what he thought was the appropriate position.

The Full Court expressly acknowledged that that was so and approved it. So what was done was to try and recreate a situation as close to the situation as existed prior to September last year as possible. That, your Honour - and I can perhaps point your Honour to where in the judgments that appears - but perhaps the propositions I should go on with, your Honour.

HIS HONOUR: Before you do, can I interrupt you. Would you go to page 17 of the Full Court judgment. Their Honours there say, in the paragraph commencing "The true question":

... thereby subvert the effect of the labour supply agreements which his Honour believed ought to remain in force. Consonant with the orders made -

perhaps put it this way: is the effect of the orders that have been made the effect of those labour supply agreements remaining in force and operative entirely according to all of their terms or some of their terms?

MR GYLES: That is unclear, your Honour. At least, your Honour, the orders are inconsistent with clause 2.2 of those agreements.

HIS HONOUR: 2.2 saying, in effect, what?

MR GYLES: Non-exclusivity.

HIS HONOUR: Is a non-exclusive agreement.

MR GYLES: Yes, that is right.

HIS HONOUR: I am not conscious of his Honour North J mentioning that in his reasons. He may well have. I can remember reading it, wondering whether the agreements were non-exclusive or exclusive. Is the effect of the orders then that that non-exclusivity is turned into exclusivity?

MR GYLES: Yes, your Honour, and with respect, deliberately so.

HIS HONOUR: Again, since this may be a matter of some significance perhaps - - -

MR GYLES: Could I inquire what time the stay is expiring, your Honour?

HIS HONOUR: The hearing and determination of your application for stay. There were some reports in the media which, hardly surprisingly given the hour at which the order was pronounced, did not reflect that accurately. It did not expire at 0930 this morning. Mr Burnside, is there any doubt in the minds of those instructing you that the stay is to persist until hearing and determination of application of stay or further order?

MR BURNSIDE: No.

HIS HONOUR: Thank you.

MR GYLES: Your Honour had in mind I think page 23.7 of the decision of North J.

HIS HONOUR: Yes.

MR GYLES: That whole paragraph at the bottom of the page, your Honour.

HIS HONOUR: Yes, I see. So his Honour does refer plainly, contrary to my impression, to the fact that the contracts are non-exclusive. Again can I come back to it: is it your contention that the effect of the orders now made and as varied is that that which was non-exclusive becomes exclusive?

MR GYLES: Yes, your Honour.

HIS HONOUR: Why is that the effect of the orders?

MR GYLES: Because, if I can take your Honour to the orders of North J, number 4, when understood in the light of his Honour's reasons which we have just looked at.

HIS HONOUR: Yes, I see.

MR GYLES: Might I also draw your Honour's attention to Order 3 which varies - - -

HIS HONOUR: In what respect does it vary? What was the termination provision that previously existed?

MR GYLES: Your Honour, there was termination for cause and termination in various identified events such as - - -

HIS HONOUR: Are any of those significant?

MR GYLES: Administration, your Honour, is one.

HIS HONOUR: Was that an automatic termination or a cause of termination?

MR GYLES: It was, your Honour, but - - -

HIS HONOUR: No, which?

MR GYLES: But prior to the administration the stevedoring company had terminated for cause - non-performance.

HIS HONOUR: Yes. Under the agreement was administration a cause for termination or did it automatically lead to?

MR GYLES: The latter, but your Honour will understand my qualification.

HIS HONOUR: Yes, I understand your contention is that the agreement had already been terminated prior to administration. Again I suspect those are areas that might just see a touch of lively debate at some time - maybe not, Mr Gyles.

MR GYLES: No doubt, your Honour. Your Honour, I am pointing to Order 3 as varying the obligations as between the parties to those labour hire agreements. Page 17 your Honour referred me to of the Full Court decision. Could I just remind your Honour what the Full Court said at the top of that page because it makes even clearer the point.

HIS HONOUR: Yes, I understand that.

MR GYLES: Your Honour, firstly, we say impermissible object. You are rolling back something which is not the status quo. Secondly, the way it is done is to impose between parties both commercial arrangements and master-servant or employee-employer relationships against the will of those parties.

HIS HONOUR: The whole scheme of part of the Employee Relations Act is that that may be done, is it not?

MR GYLES: Yes, your Honour, only under certain limited circumstances which do not include - - -

HIS HONOUR: Which brings us back to the point you have already made.

MR GYLES: May I put this, your Honour: the reinstatement provisions of the Act which directly deal with the termination of employees have no provision for interim relief.

HIS HONOUR: I understand the point you make about that and there is a field for debate.

MR GYLES: The next major point, your Honour, is that the way in which these orders work involve the employer-employee relationships and commercial relationships forced upon people in a way which amounts to ordering specific performance of agreements which would never be specifically enforced by a Court and it does not assist to say that this is interlocutory. It requires the constant supervision of the Court. It suffers all the vices which the Courts from Lukies' case down have made clear.

HIS HONOUR: Coupled with issues of the kind discussed by Lord Hoffman in Argyll because of the asserted financial distress of one of the companies.

MR GYLES: Absolutely.

HIS HONOUR: Again I say, some Judge somewhere will have to try perhaps whether there is or is not this financial distress.

MR GYLES: Quite. But, your Honour, it cannot be, with respect, overlooked. Next, your Honour, the other effect of these orders is to reflect a public policy which is contrary, we suggest, both to Part IVA of the Trade Practices Act and the Workplace Relations Act, indeed this very part of it dealing with freedom of association. It creates a closed shop. Your Honour, the orders are too broad and impose uncertain obligations.

HIS HONOUR: Those last two matters are of a kind that they may perhaps attract a grant of special leave but uncertainty and so on are, at least ordinarily speaking, matters for the Court of Trial and the Intermediate Appellate Court, are they not, Mr Gyles?

MR GYLES: If it is a matter of tidying up, your Honour, yes. But here we say it is a fundamental point.

HIS HONOUR: I just wonder whether we may not need to cut back some of the great number of issues to see whether core issues are or are not of a kind likely to attract a grant.

MR GYLES: Yes.

HIS HONOUR: Multiplicity of issues is I think not the most persuasive of grounds for application.

MR GYLES: Your Honour, first of all the form 61 requires that one points to all the defects.

HIS HONOUR: I understand.

MR GYLES: Then we come to special leave, and there is always the advocate's dilemma, do you miss a point which might attract the mind of one of the judges or do you place all your eggs in one basket and say, "No, that's" - your Honour, we are grappling with this at the moment.

HIS HONOUR: I am delighted to be able to say to you, Mr Gyles, that is now your problem. The relief with which I say it may be quite considerable.

MR GYLES: Yes, your Honour. We are certainly conscious of what your Honour is putting: that one needs to have some sort of marksmanship involved.

HIS HONOUR: Let me again test it so that the parties know what target at which they have to shoot, to follow on your metaphor. If you are right to contend that fundamental questions arise about the nature of the interlocutory relief that can properly be given by a Court if there is conduct which it is alleged amounts to, or if effected might constitute or would constitute, a breach of Division 3 of Part XA of the Workplace Relations Act, and if you are right to contend that the effect of the orders made is not to preserve a status quo but to wind it back and not only wind it back but vary it, do we need then to go on to the various matters of fact which you contend constitute futility? That is, is it sufficient to establish - and this is a question, not a statement in the form of a question - is it sufficient to establish the last of the futility propositions that you advanced, namely that the issues, being interlocutory issues etcetera, if they are given effect to, irreparable harm is worked?

MR GYLES: Yes, your Honour, I would submit so. But we also suggest that if one needs to go further there will be a factual substratum for that. But, your Honour, we submit that the very essence of the points here are interlocutory points. Your Honour, I think I have endeavoured to encapsulate the best of our points.

HIS HONOUR: Yes. In the determination of stay or no stay, do you accept that balance of convenience is a relevant consideration?

MR GYLES: I think I must, your Honour, in view of the more recent pronouncement.

HIS HONOUR: Well, Burgundy Royale mentioned it, did it not?

MR GYLES: Yes.

HIS HONOUR: Do you contend that I should not have regard to balance of convenience issues?

MR GYLES: No, your Honour, I think those days have gone.

HIS HONOUR: I doubt I will hear from Mr Burnside what factors his clients will point to as weighing in that balance. What do you say about those issues?

MR GYLES: I say, your Honour, that on the balance of convenience on the one hand, as things stand at the moment, the ships are being loaded and unloaded pursuant to existing and valid contracts. If a stay is not granted that will be totally disturbed. Those contracts cannot be met. Those parties will be excluded from the wharves, the companies in administration placed back in command in circumstances which can only be described as cloudy from a financial point of view, in circumstances where, your Honour, it may be that the statutory priorities are being disturbed or sought to be disturbed and where the Full Court below, correctly we say, recognised the very unfortunate results of having what I would call a yoyo of workers from different sources coming on and off this job.

HIS HONOUR: Was that application for stay, that is the stay between North J's order and the hearing and determination of the Federal Court, an opposed application?

MR BURNSIDE: Yes.

MR GYLES: Yes, your Honour, I am told. I gather, your Honour, North J refused a stay but the Full Court granted a stay.

HIS HONOUR: I understood the Full Court to have granted a stay but did they grant it in a contested application?

MR GYLES: Yes, your Honour, they did. The reasons were shortly stated, your Honour, at the foot of page 1 and the top of page 2 of the Full Court judgment.

HIS HONOUR: Yes.

MR GYLES: We submit that - - -

HIS HONOUR: Undesirable to run the risk of chopping and changing etcetera.

MR GYLES: Absolutely. We submit that is a powerful factor, your Honour.

HIS HONOUR: Yes, thank you, Mr Gyles. Now, do counsel have any submissions about the order in which I should now hear counsel? Should I hear Mr Burnside first, from those who, as I said last night, may not have interests running parallel with yours?

MR BURNSIDE: Our submission is, your Honour, all parties who want to support the application for stay should go first.

HIS HONOUR: Do you say I should hear them?

MR BURNSIDE: No, we say you should not. They are not applicants for a stay.

HIS HONOUR: Yes. Well, moving down the presentment, who is next - Mr Elliott?

MR ELLIOTT: We do not have any submissions, your Honour.

HIS HONOUR: You make no submissions. Mr Harris?

MR HARRIS: I have none, your Honour.

HIS HONOUR: Thank you. Mr Fajgenbaum?

MR FAJGENBAUM: We have no submissions to add on the stay.

HIS HONOUR: Yes. Mr Pagone?

MR PAGONE: Nothing, your Honour.

HIS HONOUR: Yes. Mr Burnside.

MR BURNSIDE: It will not come as any surprise that we oppose everything Mr Gyles has said; general denial. I will move to some particulars but before I do, your Honour, may I outline briefly the essential factual background which gives rise to the problem, because most of the aspects of Mr Gyles' submissions ultimately have to be tested against the facts.

HIS HONOUR: Yes. Are these facts that are, what, identified by North J as uncontroverted or found?

MR BURNSIDE: I think everything I say will be uncontroversial on the evidence and certainly found by North J.

HIS HONOUR: Yes.

MR BURNSIDE: Your Honours, for many years, until recently, the Patrick companies have operated stevedoring operations at various wharves around Australia.

HIS HONOUR: Let me see if I can short-circuit this, Mr Burnside. See if I have it right. Until September last year a company or companies - and for present purposes it matters not - whom I will refer to as Patrick A, conducted stevedoring services at ports and for that purpose employed various workers who were, either predominantly or entirely, members of the MUA. Correct so far? In September 1997 there was a series of transactions of a kind characterisation of which is a matter of dispute.

The transactions either were intended to or did have the effect such that Patrick A sold into more than one company, but for present purposes I refer to it as Patrick B, the business until then conducted by Patrick A. Contracts were made between Patrick B and Patrick A where Patrick A would supply labour for stevedoring services thereafter to be conducted by Patrick B. Correct so far?

MR BURNSIDE: Broadly, yes.

HIS HONOUR: Yes. The labour hire agreements were non-exclusive agreements.

MR BURNSIDE: Yes.

HIS HONOUR: Those events occurred in September. There was no change in employer-employee relationship between Patrick A and its then employees. Correct?

MR BURNSIDE: Yes.

HIS HONOUR: A contention in the Federal Court is that those transactions or the giving effect to them - and I do not pause to consider which - amounted to an alteration in the position of employees, to the employees' prejudice under 298K(1) of the Workplace Relations Act, and that there was a prohibited reason for that conduct.

MR BURNSIDE: Yes.

HIS HONOUR: Thereafter on April - was it 7 - a series of events occurred. Mr Gyles tells me that the labour hire agreements were first terminated allegedly for cause. Subsequently, so he contends, administrators were appointed to the labour hire companies, those to which I have referred to as Patrick A. Is that right?

MR BURNSIDE: Yes. We are now getting to the stage where your Honour is jumping over facts that I would have included in the chronology.

HIS HONOUR: Yes. What facts would you insert in between?

MR BURNSIDE: The first fact is that the rearrangement of assets and businesses in September 1997 left the employer companies in a position where they had no assets at all, except a labour force, and they had a receivable owing to them of, at the very least, $16 million, owing by their parent company or companies further up the tree.

In addition, they had been promised a total of about $300 million for the sale of their business. Although there is no evidence to suggest that they received it, there is some evidence to suggest that it was soaked up in intercompany debts, but details are missing at the moment.

The other thing is that clause 43 of the Award which bound the employers positively required them to tell the employees of the change in circumstances of the company, but they kept it secret. In fact the existence of the labour supply agreement and the fact of the company rearrangement, including reductions of capital by share buybacks, was not revealed to the employees until the end of an application for interlocutory relief before North J.

HIS HONOUR: Is that the first of the applications that was made?

MR BURNSIDE: Yes.

HIS HONOUR: An application which I think gave rise to interlocutory or interim orders precluding termination of employment contracts?

MR BURNSIDE: That is right.

HIS HONOUR: An order which was effectively overtaken by and repeated in the orders which were the subject of the appeal to the Full Court?

MR BURNSIDE: That's right, yes. Going forward from September to late February of this year, the present applicants brought proceeding number 42 in the Federal Court, alleging against the Patrick companies and the farmers that they had done various things including contraventions of 298K and conspiring to injure by unlawful means.

HIS HONOUR: The unlawful means asserted being?

MR BURNSIDE: Contravention of the award, contravention of 298K, breach of the contracts of employment and a number of things of that sort. At all times, despite what turn out to be the terms of the labour supply agreements, the employers only ever acquired their labour from their existing employees and never sought to acquire labour from alternative sources, despite the provision of clause 2.2 in the labour supply agreements.

During March events developed and on 6 April, concern that the Patrick companies may be about to shift their assets out of the employer companies - prescient but a bit late - a notice of motion was issued returnable on 8 April seeking orders which would have prevented any of the Patrick companies from dealing with or disposing of assets otherwise than in the ordinary course of business.

HIS HONOUR: How does that help me dispose of the present application, Mr Burnside? What is the relevance?

MR BURNSIDE: The relevance is, your Honour, that the events which give rise to the disputed orders of North J happened on 7 April, after the motion was issued and before it was heard on 8 April.

HIS HONOUR: The motion being a motion to preclude transactions of a kind that had occurred much earlier in fact.

MR BURNSIDE: Yes, except that it probably would have reached as far as to prevent them from terminating the labour supply agreements, and although it's not altogether clear that it would have reached that, it certainly would have been a very risky thing to terminate the labour supply agreements had the orders been made in the form sought on the 8th.

So late in the afternoon on 7 April, three of the labour supply agreements were terminated, ostensibly for cause. One of them was not. The Tasmanian one has never been the subject of labour stoppages but it was terminated along with the others by the appointment of administrators without regard to its separate circumstances.

HIS HONOUR: Again so I can understand it, will it be your contention that the agreements properly construed provide that on appointment of administrator, that is a cause for termination, or will it be your contention that upon appointment of administrators the agreement automatically terminates?

MR BURNSIDE: No, it's not automatic. It does not say automatic. It says "will terminate immediately" but there is plenty of authority that that does not bring about an automatic termination without the election of the parties. We would say that it would be very difficult in the circumstances of the case for the parties receiving the benefit of the labour to invoke their own wrong as a ground for terminating pursuant to that clause. Anyway, that is a debate to be had at a later time.

Your Honour, the result of what happened on 7 April attended, as we would say, with very considerable suspicion because events happened - - -

HIS HONOUR: Mr Burnside, I would be much assisted if you would direct your attention to the issues which I am called on to determine.

MR BURNSIDE: I am coming to it, your Honour.

HIS HONOUR: Would you be good enough to come to it at once?

MR BURNSIDE: The effect of the events of 7 April was to leave the employer companies with a workforce for whom there was no work to do because the labour supply agreements had been terminated. They were immediately simultaneously replaced with the present farmer company, PCS, and two other outside labour suppliers.

The effect of that on the employer companies was to leave them in a position where they might either terminate the employees or not. North J decided that they should not be terminated because he thought it was a strongly arguable proposition that the appointment of administrators and the administrators' termination of the employees was itself the last stage of a larger plan to get rid of the workforce without appearing to contravene Section 298K. That is to say, the structure had been put in place and the last move was to be made by an administrator in circumstances where he had a labour force but no work for them.

HIS HONOUR: Do you accept that the consequence of the orders made by North J, as varied by the orders of the Full Court, is that companies which allege that they are in the financial distress necessary to warrant the appointment of administrators, are compelled to incur liabilities pending trial - liabilities of a kind that will rank in priority if, later, they were to be wound up.

MR BURNSIDE: They are required to incur liabilities but the only liabilities they incur are the wages and the fact that they incur the wages will directly generate revenue for them, just as it always had from September of last year. The evidence does not suggest that they incur any other debts and in addition, the evidence does not support even a tentative conclusion of insolvency for these reasons: first, it is clear that they have a receivable of $16 million and no other debts, and second, the administrator, if allowed to take the matter to a scheme of company arrangement, proposes to pay 100 cents in the dollar. So calling on insolvency as an obstacle in the circumstances of this case - - -

HIS HONOUR: And pay 100 cents in the dollar and generate a surplus for return to shareholders of a size large enough to meet the obligations which presently the Court's order would have him incur pending trial.

MR BURNSIDE: Sorry, a surplus to the holding company?

HIS HONOUR: Which would be restitution to meet the obligations which he is by order bound to incur. If he can pay 100 cents in the dollar now, can he tomorrow on your assertion?

MR BURNSIDE: Yes, he is proposing - I mean, it's very mysterious because he is proposing a total payout of $150 million, saying that the government is going to help him top up the package.

HIS HONOUR: There is the difficulty, isn't it, Mr Burnside. As an interlocutory order a Court has ordered a company which is asserted to be in financial distress, on one view of it maybe said to be unable to pay its debts as and when they fall due, to continue to incur obligations. Can you point to any authority that would support the making of such an order?

MR BURNSIDE: Having no notice of the point because it was not raised below, I cannot offhand, but I can put the matter in the broader context, your Honour; that the difficulty presented by this case and the reason the orders are relatively unusual is that the position which has been deliberately - leave aside motive - but deliberately put in place by the Patrick companies, is that they will leave the employer companies in a position of either running their business and being able to pay the wages, or not running the business and inevitably dismissing the workforce.

At trial it is practically impossible to imagine that the Court will be able to grant to the applicants the relief that Section 298K and 298U contemplate. The primary relief that 298U contemplates is restoring employees to their position. That is cold comfort when the employer has gone out of existence by virtue of the very scheme which contravenes 298K.

HIS HONOUR: And for those reasons you contend the orders made by North J are well made.

MR BURNSIDE: We say that they are clearly within the range of proper discretion.

HIS HONOUR: Within power and properly made, given the circumstances.

MR BURNSIDE: Yes.

HIS HONOUR: That is the contention. Is not the immediate issue that falls for my decision whether the agitation of those issues is likely to attract a grant of leave, notwithstanding the interlocutory nature of the orders and the propositions of the kind I put to Mr Gyles out of Paringa, and if it is likely or there is a sufficient prospect that the Court may grant leave, then status quo and balance of convenience and like issues - - -

MR BURNSIDE: First proposition: we submit that given that the orders made can be understood when the context is understood, there is no sufficient error disclosed and no reasonable prospect of special leave being granted, despite the difficulty your Honour rightly points out. Of course it's unusual but these are highly unusual circumstances and North J recognised the dilemma in which the applicants were placed and to some extent the dilemma in which the employer companies were placed.

The only way out of that dilemma which would preserve the rights in litigation of applicant - the only way out that would preserve their rights was to make sure the employer companies remained afloat and the only way to do that was to restore the status quo that existed on 6 April.

HIS HONOUR: And you say that, as I understand it, the orders were founded in power and well made. The power to which you resort in this respect is, as I understand it, first the power in - is it Division 6 of the relevant part of the Act?

MR BURNSIDE: We would look first to Section 23 of the Federal Court Act.

HIS HONOUR: Do you depend upon both; that is, Division 6 as alternatives or cumulatives? I am not saying - - -

MR BURNSIDE: As alternatives.

HIS HONOUR: You place your chief reliance upon Federal Court Act 23.

MR BURNSIDE: Yes, really because, your Honour, the purpose of these orders was not an attempt to foreshadow the orders that might be made at trial. It is not a form of the orders that 298U contemplate. These orders are to preserve the subject matter of the litigation and prevent the rights of the applicants from being destroyed, pending trial.

HIS HONOUR: May that not itself raise a further point of general application which this Court ought to consider; namely, whether orders can or should be fashioned in this general area of difficulty that - trying to put it as blandly as I can - are very different from the kinds of final relief that might go?

MR BURNSIDE: The answer to the direct question is no, there is no difficulty with that and there has never been any difficulty for Courts exercising equitable jurisdiction, fashioning orders to suit the demands of the occasion.

HIS HONOUR: Exactly so, but the limits of that power, as for example to oblige parties to perform that which was a non-exclusive contract exclusively, may - it may not - raise a point of underlying principle about the length to which a Court of equity can or ought go.

MR BURNSIDE: Your Honour, in our submission there is no difficulty - there may be an interesting question whether that can be done as permanent relief. That might be much more difficult to justify. But in order to preserve the rights of the parties pending trial, we would submit that the Court should have no difficulty because there is no alternative. There is no alternative way of maintaining a continuity of employment and a prospect of restoring the position that existed before the first breaches of the Act unless these orders are made.

Certainly no-one for the Patrick companies, either before North J or before the Court of Appeal, suggested any other form of orders that would achieve that result. So the Court is then placed in this position - - -

HIS HONOUR: Various orders had been put forward, Mr Burnside, but let us not stay to debate, the issue - such, for example, as an order restraining winding up. That was contended to be sufficient. Let us get on, shall we?

MR BURNSIDE: I beg your pardon, your Honour, that is right, I think. The difficulty with that was that it would leave all the present applicants in limbo so that they either were employed but sitting around for months or had to resign in order to be able to support themselves and their families, which means that instead of the administrator sacking them without recourse then they do the job for themselves. Not surprisingly the Full Court thought that that was simply unrealistic. It was not preserving their rights in the litigation at all. It was forcing them to abandon those rights.

Now, your Honour, the question of principle, if one exists, seems to be this: has the Court got power to fashion orders, however unusual, that will preserve the rights of parties to the litigation when a sufficient issue for trial has been established. In our submission, that is a question which can only be answered one way and has always been answered one way, which is that the Courts do have that power. At trial, the orders which may be made under 298U, are quite different and they would not be in the same form as the orders which we got for interlocutory purposes. The order for trial would be directed to reversing the transactions that happened in September, restoring the status quo that existed before the breaches in September last year.

In our submission, your Honour, the full extent of the powers provided by 298U do not presently arise, although if driven to it, of course, we would submit that they are sufficient to provide power for the interlocutory relief which was sought. Ultimately the question that Mr Gyles has to contend for on the interpretation of 298U is that 298U by implication repeals all of the Court's powers under section 23 of the Federal Court Act and its inherent ancillary powers to the extent that they operate in connection with a 298K breach. That, in our submission, is not a question that is likely to have any prospect of getting special leave to appeal.

HIS HONOUR: Another way of putting it might be, as the Court put it in, I think, the case of Downey v Transwaste, whether the conferral of specific power represents the ambit of the power and resort may not then be had to the general power. There is a stream of authority. I argued Downey v Transwaste and it is therefore written on my heart, Mr Burnside, but there is a stream of authority which supports that proposition which may be another way of putting the point against you.

MR BURNSIDE: Then Mr Gyles' other point operates against him because he says 298U is only directed to the orders which can be made after a contravention is proved. If that is right then it operates only at trial and it does not speak at all of the Court's powers on an interlocutory matter where the Court, in our submission, must retain its ability to prevent the litigation process from being subverted by events running ahead of the Court's ability to deliver justice, and that is precisely this position.

In our submission, your Honour, there is simply no reasonable prospect of the High Court granting special leave to contend for the proposition that the Federal Court has no power to preserve the rights of the parties pending trial.

HIS HONOUR: Yes.

MR BURNSIDE: Can I just make one other observation? My learned friend said several times that the provisions in 298U are new provisions. They are not - well, 298K at least. There have been provisions equivalent to 298K since 1904 and your Honour can trace them back to section 334 of the Industrial Relations Act in 1988.

HIS HONOUR: Are you saying therefore that there some established principle or stream of authority that governs their construction? Has the Court previously had to examine them in a way which you will contend later represents the establishment of principle from which the Court should not depart?

MR BURNSIDE: No, your Honour, I corrected myself. It is 298K that goes all the way back.

HIS HONOUR: Yes, I understand that.

MR BURNSIDE: The question then is, have the powers under 298U, which are recently introduced - are they broader than the powers the Court once had at trial? The short answer is yes, because previous provisions provided for orders against employers only. But, your Honour, I think the short answer to your proposition is 298U, if correctly read and deals with only what can be done at trial, has no application to what can be done to preserve the rights of parties pending trial.

HIS HONOUR: If that proposition is right that means that the orders made are to be assessed according to more general principles of injunction.

MR BURNSIDE: Yes, and that was the primary point - - -

HIS HONOUR: Can you point to any authority which would support the grant of interlocutory orders of the kind that were made here? I had understood you to say the orders made were, in truth, unusual.

MR BURNSIDE: Yes, they are unusual. I certainly wouldn't say they are egregious or extraordinary as my learned friend did. Your Honour, it is really a matter of picking examples, because all orders that seek to preserve the position and prevent the trial from being futile, must depend on the particular circumstances.

HIS HONOUR: Can you point to any order which has been made, for example, which would compel a party to a non-exclusive contract thereafter to treat it as exclusive pending trial?

MR BURNSIDE: I cannot offhand think of an analogous point.

HIS HONOUR: Do you point to any case in which a Court has ordered an insolvent, or allegedly insolvent party, to continue to incur obligations?

MR BURNSIDE: Offhand I cannot, your Honour.

HIS HONOUR: Do you accept that Lord Hoffman in Argyll can be read, perhaps, as suggesting that the Court should not make such orders?

MR BURNSIDE: No, because Lord Hoffman was dealing with permanent relief. We are dealing with interlocutory relief to preserve the subject matter of the action.

HIS HONOUR: Do you accept therefore that his Lordship may be read - I do not seek to bind you to some narrow submission, Mr Burnside, but simply that he might be read as suggesting that the Court should grant no permanent relief which would compel an insolvent to continue to incur obligations?

MR BURNSIDE: Yes, I agree with that and that would not be the form of the relief that we seek at trial.

HIS HONOUR: Yes.

MR BURNSIDE: The form of relief we would seek at trial is quite different in its operation and form than the relief which we seek to preserve the rights of the parties.

HIS HONOUR: Yes, and may that itself represent a point of principle worthy of the attention of this Court?

MR BURNSIDE: No, your Honour, because the single objective of interlocutory orders of the sort we seek here, and which have been granted in many Courts in many cases, is to make sure that the rights of the litigants are not destroyed before the trial is concluded. Your Honour, it is just not remarkable that such orders are made. It is inevitable that such orders are made and if there were some sensible alternative scheme of orders which would preserve the rights of the parties in a real way pending trial then we would be delighted to see what they are. But it is extremely difficult, in the circumstances which present themselves to the Court, to fashion orders which would realistically preserve the rights of the applicants, which have been established on a sufficient prima facie basis pending the trial.

HIS HONOUR: Yes.

MR BURNSIDE: Your Honour, it would be great if we could come up with cases which closely matched the facts of this case, but it is a very unusual case. We haven't got a close analogous case. However, the Courts have repeatedly said they are able to provide justice to parties and an essential ingredient of providing justice to parties must be that their rights are not destroyed before they come to trial, and although the appellate system has worked very efficiently thus far in this case it cannot be hoped that the matter will come to trial within the next week or so. In fact several parties have suggested discovery will take six months.

HIS HONOUR: It is Friday, Mr Burnside, and I used to deal with such arguments in the commercial list on Friday.

MR BURNSIDE: Your Honour, I have forgotten what day it is.

HIS HONOUR: I will not pursue that at all, Mr Burnside.

MR BURNSIDE: Your Honour, that was my learned friend's first proposition, that he has got some good arguable point - - -

HIS HONOUR: Your contention is again, if I can play it back to you so that I understand it, that all that has been done is an ordinary exercise of jurisdiction to preserve status quo. To the extent that it is novel it is to preserve the capacity of the Court to grant final relief. No point of novelty or general principle arises. In any event the decisions below are not attended by doubt. Is that the nub of it?

MR BURNSIDE: It is, and when you say status quo we mean status quo "ante".

HIS HONOUR: Yes, I understand that.

MR BURNSIDE: But not as ante as Mr Gyles suggests, only the status quo as at 6 April, not the status quo at September last year. That is a question for another time. And it is not merely preserving the status quo, your Honour, it is preserving the ability of the applicants to seek and, if appropriate, get the rights which section 298U provides for them at trial.

HIS HONOUR: Namely the right to what?

MR BURNSIDE: The right to reverse the steps which were operated in contravention of 298K - namely, the entry into the agreement to sell the business and to hire labour. Those were found to be prima facie contraventions of 298K. Those rights are important rights for the applicants to exercise. They cannot be exercised if the labour supply agreements go out of existence and the labour employing companies go out of existence and the applicants go off and find other work at another place. Those rights, those remedies, will simply disappear.

HIS HONOUR: Yes, I understand the contention you make.

MR BURNSIDE: But it is a little more than preserving the status quo, your Honour.

HIS HONOUR: I understand that.

MR BURNSIDE: The other broad question my learned friend relies on, even assuming that I am wrong thus far and he has got a strong case for special leave he also has to show that unless a stay is granted today the application for special leave will be futile. Now, in our submission, he simply cannot make that out. The balance of convenience comes into the question down the line. All the cases seem to accept that you must first find that appeal or application for special leave will be futile unless a stay is granted.

HIS HONOUR: No, they do not, Mr Burnside, I would suggest to you. The very basis of the jurisdiction that was exercised in Tait's case was not founded upon some prediction of outcome, was it?

MR BURNSIDE: No.

HIS HONOUR: Are we at cross purposes?

MR BURNSIDE: I think we are. That was based solely on futility.

HIS HONOUR: Yes, we were at cross purposes, sorry.

MR BURNSIDE: All of the recent cases - we are not talking about urgent overnight stays, but all of the recent cases about stay pending appeal or stay pending a special leave application all identify the proposition that first of all you have got to show that you have got a substantial prospect of getting special leave and that you have to show that if you don't get a stay in the meantime the application will be futile. Then you might also have to show that the balance of convenience favours the grant of a stay. I have in mind the case of re Moore ex parte Pillar, a decision of Dawson J. Could I hand a copy of that to the Court.

We have handed you a copy of 103 ALR 11. The factual question underlying this was a question of whether a proposed merger of two unions should or should not be stayed pending a question about the ability of the commission to order the day on which it was to occur, and his Honour said at page 15, in dealing with the stay application:

In the end however I am not persuaded after argument that if the stay which I granted were to be lifted, the prosecutor would effectively be denied the relief which he seeks in the event that he is successful in this Court. What he seeks by means of one or other of the prerogative writs is to stop the consequences which the Act prescribes upon the fixing of an amalgamation day.

He bases his claim to relief upon the invalidity of the amalgamation day fixed by the deputy president. But if he establishes the invalidity of the amalgamation day and his argument is sound, the consequences prescribed by the Act will not have taken place. The subject matter of these proceedings, the validity of the amalgamation day fixed by the Deputy President, is a question which remains alive whether or not there is a stay.

No doubt it is the prosecutor's contention that if the two organisations proceed on the basis that the amalgamation day has been validly fixed and has passed and it is ultimately established that the day was not validly fixed, there may be consequences which are irreversible. However, that does not mean that the proceedings would prove to be futile. In particular, whether or not amalgamation has occurred would not be an empty issue.

Furthermore, I am not satisfied that the consequences which the Act prescribes as flowing from amalgamation or any steps which the parties might take upon the basis that amalgamation has occurred would prove irreversible. It does not appear to me that the two organisations couldn't be restored or substantially restored to their former position, even with regard to the matters most likely to be affected, namely membership and assets if the Court were eventually minded to grant relief.

So there was a case where the Court refused a stay and allowed an amalgamation of unions to proceed, even against the possibility that it might have to be unwound in the event that the appeal was successful?

HIS HONOUR: Was then the Full Court of the Federal Court wrong to conclude as it did, that it was undesirable to run the risk of the chopping and changing that would occur if the orders were allowed to operate for a short time and were then set aside on appeal? I quote, as you know, from page 2 of their Honour's reasons.

MR BURNSIDE: Yes. The Full Court, in our submission, did not apply the tests which operate in relation to stays in this Court. Whether they were right or wrong - - -

HIS HONOUR: Let it be accepted that stays in this Court are properly classified as extraordinary, exceptional - various other terms no doubt can be applied - the discretion to grant a stay is no doubt ample. Would you accept that?

MR BURNSIDE: Ample but must be exercised in accordance with principle.

HIS HONOUR: Plainly, and the principle would include, would it, having regard to the consequences if stay were refused?

MR BURNSIDE: Yes and no. You have regard to the consequences if a stay is refused in order to find out whether the appeal or further step would be rendered futile if a stay were not granted. That is the threshold test.

HIS HONOUR: If it were rendered futile, as for example the prisoner were executed, that is a plain ground for stay.

MR BURNSIDE: Yes.

HIS HONOUR: If in refusing stay, the consequence were that there were to be chopping and changing on the waterfront of this country, attended by the difficulties that have been seen over recent days, is that a proper matter for me to take into account in deciding whether or not to grant a stay?

MR BURNSIDE: No, and that for two reasons. First, "chopping and changing", as an expression, suggests repeated and rapid alteration of position.

HIS HONOUR: Might I remind you that the matter will be in the Full Court at 10.15 on Monday and that, as Mr Gyles has accepted, the very furthest ambit of the stay which presently is under consideration is 5 pm Monday or further earlier order.

MR BURNSIDE: Yes, and it's also possible that the application on Monday turns out to be a hearing of the appeal. We don't know. Your Honour has flagged the possibility.

HIS HONOUR: That will be a matter for the Full Court, not for me.

MR BURNSIDE: Indeed. If it turns out that is the position, then there is a prospect, presumably, if there is any substance in his points, of the matter being under reservation for some months, in which case one then has the agonising decision, well, if their points are that much better that they take a couple of months to decide, should the position be left as it presently is, notwithstanding that the applicants have succeeded at first instance and succeeded unanimously on appeal.

HIS HONOUR: It is of the first importance no doubt in considering the exercise of the jurisdiction to grant a stay, to bear in mind that prima facie parties are not to be deprived of the fruits of their judgments. This proceeding has been through the hearing at first instance. It has been through an appeal. All judges who have considered it have formed the view which you now seek to defend. I understand the importance of that, Mr Burnside. Let it be assumed for the purpose of argument that I were persuaded that there is a sufficient prospect of the grant of special leave. May I take into account then the length of the stay under consideration, the consequences if I do not grant a stay; namely, that if the orders remain entirely unaffected; what, in 40 minutes there will be a change of workforce on the wharves?

MR BURNSIDE: Yes, your Honour should not be concerned about that and the reason I say that is this. As I understand it, the wharves are presently empty. As I understand it, Mr Corrigan has been saying he wants the MUA people to come back at 12 o'clock. I have just been handed an affidavit which is still warm which deposes to that circumstance.

HIS HONOUR: You might be good enough to show this to your opponents before you either show it to me or disclose its contents, Mr Burnside.

MR BURNSIDE: Yes.

HIS HONOUR: This I think is the first indication I have had from you that you intend to adduce any evidence in support of this, is it not?

MR BURNSIDE: It is the first indication I had. I was handed the affidavit there at - - -

HIS HONOUR: Mr Burnside, I am not fussed about that at all. I am fussed about the fact that this is the first indication that you have given me that you propose to adduce evidence. It is I assume therefore the first indication that your opponents have had.

MR BURNSIDE: That is true.

HIS HONOUR: This is not trial by ambush. Be good enough to show it to your opponents and then we will consider what is to be done about it. Perhaps in the interim, if you would be good enough to proceed.

MR BURNSIDE: Yes. Your Honour, as I say, chopping and changing is an expression that suggests frequent - or rather, quick change from one position to another.

HIS HONOUR: Yes.

MR BURNSIDE: In our submission - - -

HIS HONOUR: From midday Friday to 5 pm Monday.

MR BURNSIDE: But the alternative, your Honour, is this: let it be supposed that the Full Court grants special leave on Monday. There is no reason for your Honour to suppose that the Full Court would then change the position if it was the fact that the MUA employees went back today. There would be no compelling reason to change the position again. If it happens that the appeal is heard in a short while and a decision is received in several months and even supposing then that we lost, the position that would have occurred is that the replacement workforce has been in place for two weeks now, I think it is, and the previous workforce which had been there for years would have been back for a couple of months, and then they would be out again. That can hardly be described as chopping and changing, in our submission.

What the Full Court said, the context in which the Full Court said chopping and changing, was where they said, "You have had a decision this afternoon. We will hear the appeal tomorrow morning and decide it on Thursday." So on any view the outcome of the appeal would happen within two days. There you could fairly say there was the prospect of chopping and changing but that is not the position here, in our submission.

The second matter, your Honour, is this: the stay application is supported by an undertaking as to damages. An undertaking as to damages is all very nice. But the reality is that 1400 workers have been told by four judges that they are entitled to be restored to work and prima facie, in our system, they are entitled to enjoy the success in litigation which they have had. That is the prima facie position. It is very difficult to remedy in an award of damages the sense of grievance which they will naturally feel if they are now told, "You are going to have to wait for a further undetermined time in order to see whether or not you will get the benefit of the judgments in your favour."

Your Honour, that is not a problem that can be remedied by an award of damages by any Court. Your Honour also mentioned that chopping and changing on the waterfront was undesirable because we have seen all the difficulties which have occurred in recent times. That is undeniably so. But your Honour might take into account that one source of the difficulties which has occurred recently is borne directly of the sense of grievance which the applicants have and which, on a prima facie test, both the trial Judge and the Full Court have said they are entitled to have; that is to say, they suffer a sense of grievance because they have been wrongly excluded from the workplace. They are entitled to feel that sense of grievance, your Honour, and four judges have said so. That sense of grievance is naturally a source of trouble on the waterfront and it is regrettable that the trouble has boiled over into arguably unlawful activities at times - perhaps not surprising but regrettable.

Your Honour is faced with the prospect of further disappointing their legitimate aspiration that they will be restored to work today, or of returning them to work in accordance with the orders of the Courts below, and if it is ultimately the fact that they are to be removed, then they will be removed knowing that a Court has said, "Yes, you should be removed from your place of work." At the moment they are excluded and Courts say they should not be.

If they are told hereafter to leave because a judgment of the Court has gone against them, there is much less likely cause for any sense of grievance amongst them. In our submission, your Honour, there is an overwhelming case for allowing the order of the Full Court to stand and not staying its operation until the determination of any appeal which might ultimately be heard by the High Court.

HIS HONOUR: You misunderstand, Mr Burnside. The stay under consideration is a stay until 5 pm Monday or further order. Do you wish to add to your submissions in light of that apparent misunderstanding?

MR BURNSIDE: I thought I had not misunderstood it, your Honour, but I understand it is a shorter - - -

HIS HONOUR: You said at the end of your contention that the stay was pending hearing and determination of the appeal to the Court. It is not. The stay under consideration, let there be no doubt of it, is until 5 pm Monday or further order and the matter will come before a Full Court at 10.15 on Monday and it will be then for the Full Court to determine the future course of the proceeding.

MR BURNSIDE: Yes. Then may I supplement what I said by just two observations. The first is that it must necessarily exercise the mind of the Full Court on Monday about whether or not to grant any continuing stay, that to do - - -

HIS HONOUR: That will be a matter for the Full Court, Mr Burnside, not for me now.

MR BURNSIDE: I understand that, your Honour, but it is important to your decision in this way. If the Full Court is likely to take into account the undesirability of keeping the present workforce out in the present circumstances, until they resolve an appeal, then it is likely that they would incline against a stay. If that reasoning is right, your Honour should likewise incline against a stay because to stay the operation of the orders between now and Monday would serve no good purpose, would not avoid any harm that has been identified and would cause quite understandable grievance amongst 1400 successful litigants who will never - - -

HIS HONOUR: Who live in a society governed by the rule of law, part of which involves the capacity of parties to apply to this Court for special leave. Let there be no misunderstanding of that, Mr Burnside, and I suspect that part of your submissions seeks to assert that it should be put to one side.

MR BURNSIDE: No, not at all, your Honour. One of the features of the rule of law which I appeal to is that the litigant who establishes his or her claim is entitled to the benefit of that success. Only in exceptional circumstances will the Court displace that success. An exceptional circumstance must include, in this context, both that a strong arguable case for special leave is shown and that irreparable harm, in the sense of a destruction of the rights of the appellant, will occur if a stay is not granted. Nothing at all has been shown to this Court to suggest that the rights of the applicants for leave - or the applicants for a stay - nothing has been suggested to show that their rights will in any way be impaired if they do not get this stay.

All they point to is inconvenience if there is a quick chopping and changing at the waterfront. In our submission, your Honour, it is just not enough for a grant of a stay to say, "It's inconvenient that we lost below." That is what it amounts to. The case that I handed up, Moore ex parte Pillar, is perhaps a high-water mark of the application of the test. In that case you can see it is no doubt extremely inconvenient to have a merger of two large organisations which may ultimately have to be unpicked. Compared to that, it is our submission that a restoration of this workforce, pending appeal, does not involve any destruction of rights of the sort that is required.

All I can say in conclusion, your Honour, is that in all of the cases recently decided in this Court, applications for stay have this one common theme: that the applicant for a stay must show that their application will be rendered futile if the stay is not granted. That has not been shown.

Can I hand to the Court a copy of Cohen v Peko-Wallsend [1986] HCA 70; 68 ALR 394, a decision of Gibbs CJ and Mason and Wilson JJ. That perhaps is a starting point because it identifies the fact that it is rare indeed for the Court to grant special leave to appeal in connection with interlocutory orders. Can I hand a copy of Manfal v Trade Practices Commission 65 ALJR 256.

HIS HONOUR: What proposition do you say that supports?

MR BURNSIDE: That supports the proposition, your Honour, that the underlying test is that the refusal of a stay must render nugatory the appeal in aid of which the stay is sought. In refusing the stay, Toohey J said at page 258:

The circumstances here are not exceptional and in particular the refusal of a stay will not render nugatory any appeal by Manfal.

In Jennings Construction v Burgundy Royale which is - - -

HIS HONOUR: I have that.

MR BURNSIDE: In that case Brennan J also identified the requirement that for a case to fall within the exceptional class of cases that justify a stay, it must be shown that the application in aid of which the stay is sought would be rendered nugatory unless the stay is granted. One other is Gerah Imports Pty Ltd v the Duke Group [1994] HCA 3; 119 ALR 401.

HIS HONOUR: That is Dawson J about compulsory examinations, is it not?

MR BURNSIDE: Yes, it is. His Honour allowed the compulsory examination to proceed notwithstanding that that would obviously alter the position of the parties substantially but he said that it would not render the application for leave and the subsequent appeal nugatory.

Your Honour, there is nothing in our submission that has been put before the Court to suggest that any of the rights which the present applicants seek to vindicate will be destroyed, rendered nugatory, if a stay is not granted. There is no point they have identified that can be said to be rendered nugatory in the event that there is no stay. The only attempt to identify such a point was that my learned friend said he would lose the opportunity of saying that there should not have been an interlocutory order made, but that is not right. He could in fact establish the point of principle that an interlocutory order could not have been made. The point remains alive, just as the point about the validity of the amalgamation day in Moore's case remained alive even though the amalgamation day might have taken effect.

The question will remain open and available and not moot as my friend says - will remain open to be decided whether or not a stay is granted. In our submission your Honour would be proceeding on the wrong principle if you granted a stay without there being some question, some point, which would be rendered nugatory in the event that a stay were not granted. If your Honour please.

HIS HONOUR: Thank you, Mr Burnside. Mr Gyles, do you wish to reply?

MR GYLES: I only wish to hand to your Honour, if your Honour does not have at hand the passage of Dawson J in the Myer Emporium case which I read earlier.

HIS HONOUR: I think I have it but hand it up again.

MR GYLES: Thank you, your Honour. Your Honour, the case of Moore was not a case in this context; it was in another context.

HIS HONOUR: Yes.

MR GYLES: That is all I wish to say, your Honour. Might I, however, seek your Honour's leave to amend the application for special leave by adding paragraph 2(a) - - -

HIS HONOUR: Can I deal with that at the moment?

MR GYLES: Yes, your Honour.

HIS HONOUR: The course I propose to adopt is to retire presently to consider my decision and formulate reasons for it. I would hope to be in a position to deliver my decision, with reasons, in relatively short time and counsel should not leave the Court precincts.

Given that the matter is to come on before a Full Court at 10.15 on Monday, it will in any event be necessary to give directions to the parties about the preparation, filing and service of various documents. I have had prepared a list of subject matters that seem to me to be matters that may need to be considered in formulating those directions. When I retire, my associate will make those available to counsel and solicitors.

It seems to me that directions will need to be given about filing and service of things like the summary of submissions, draft notices of appeal and the like, as well also as directions to be given about the preparation of application books. Time is very short. If the members of the Court are to have an opportunity to consider any of these papers over the weekend it is obviously desirable that as many of them as possible can be put together and presumably, if they are not unduly voluminous, faxed to Canberra for distribution to the members of the Court. But those are matters that I will wish to take up with counsel when I have dealt with this question of stay.

MR FAJGENBAUM: Before your Honour retires to consider your Honour's decision, I should inform your Honour that my clients are giving active consideration to making their own special leave application. A decision will be made in the course of the next hour or so. If a decision is taken to make that application, papers will be ready in accordance with whatever directions your Honour gives.

HIS HONOUR: There being no application yet, Mr Fajgenbaum, I would give no direction.

MR FAJGENBAUM: Very well.

HIS HONOUR: It will be a matter entirely for your clients what course they adopt.

MR FAJGENBAUM: If your Honour pleases.

ADJOURNED [11.48 am]

RESUMED [12.32 pm]

HIS HONOUR: The applicants seek a stay of proceedings pending the hearing of their application for special leave to appeal from the judgment of the Full Court of the Federal Court of Australia, which gave leave to appeal, varied the orders of North J made in the Federal Court on 21 April 1998 in ways which I do not now notice, but otherwise dismissed the appeals.

The principles to be applied in such an application are well established. The jurisdiction to grant a stay is part of the inherent jurisdiction of the Court and finds its most frequent use in order to preserve the subject matter of litigation. Thus, as was mentioned when the matter first came on before me last night, in Tait v The Queen [1962] HCA 57; (1962) 108 CLR 620, the jurisdiction was invoked to prevent the execution of sentence upon Tait. There it was exercised:

without giving any consideration to or expressing any opinion as to the grounds upon which the substance of an application to the Court was to be based, but entirely so that the authority of this Court may be maintained and we may have another opportunity of considering it. ((1962) [1962] HCA 57; 108 CLR 620 at 624, Dixon CJ)

It is then an ample jurisdiction.

To speak only of preserving the subject matter of litigation may in some cases obscure the fact that the jurisdiction can be invoked, if to grant a stay is necessary to prevent the exercise of rights of appeal being rendered futile (compare Wilson v Church (No 2) (1879) 12 Ch Div 454; Erinford Properties Ltd v Cheshire County Council (1974) Ch 261) or their exercise in circumstances where restoration of the status quo cannot be achieved (see for example Federal Commissioner of Taxation v Myer Emporium Ltd (No 1) [1986] HCA 13; (1986) 160 CLR 220 at 224, per Dawson J).

The jurisdiction to grant a stay is, however, an extraordinary jurisdiction and exceptional circumstances must be shown before its exercise is warranted (Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) [1986] HCA 84; (1986) 161 CLR 681 at 684, per Brennan J; Marconi's Wireless Telegraph Co Ltd v Commonwealth (No 3) [1913] HCA 23; (1913) 16 CLR 384 at 386).

It is equally clear that it is very important to bear steadily in mind that the grant of a stay would deprive the respondents to this application of the benefit of the orders which they obtained from North J and which were in substance upheld by the Full Court of the Federal Court (see Advanced Building Systems v Ramset Fasteners Australia Pty Ltd [1997] HCA 24; (1997) 71 ALJR 814 at 816, per McHugh J).

The orders made by the primary judge as varied by the Full Court are in part orders restraining conduct, but in part are orders compelling the performance of acts by the applicants. It is perhaps least inconvenient to refer to the parties by the designation which they bore in the proceedings in the Full Court of the Federal Court of Australia, when I say that the first and 13th appellants are restrained from acting upon or giving effect to the purported termination in April 1998 of certain labour supply agreements which were allegedly made on 23 September 1997 (Paragraph 1 of North J's order).

The third, fourth, fifth and sixth respondents and the first appellant are restrained from terminating those agreements without first giving the Maritime Union of Australia 14 days' written notice of that intention and the reason for the proposed termination (Paragraph 3 of North J's order). Further, the first and 13th appellants are restrained from acquiring the stevedoring services which, until 7 April 1998, they acquired from the third, fourth, fifth and sixth respondents, from any person other than those respondents.

I was told that the labour supply agreements concerned were non-exclusive agreements; that is, the companies taking the supply of labour were entitled to seek the provision of labour elsewhere than from the parties that in the Federal Court were the third, fourth, fifth and sixth respondents.

The applicants contend that the effect of the orders made by North J is that they are now bound to take labour exclusively from the companies which I have referred to as the labour supply companies.

The third, fourth, fifth and sixth respondents are restrained also from doing anything having the effect that the employment of the employees engaged in their stevedoring businesses is or will be terminated (Paragraph 5 of North J's order). The applicants contend that this order has the effect of compelling companies in the financial distress sufficient to warrant the appointment of administrators to continue to incur obligations, notwithstanding that distress - obligations which would, on the winding-up of a company, rank in priority to many other debts.

The first to 13th appellants were also restrained, in effect, from dealing with their assets otherwise than in the ordinary course of business, but as I understood it, no stay is now sought in respect of that order and its detail need not be noticed further. Similarly, the third, fourth, fifth and sixth respondents, and the first and 13th appellants, are ordered to -

continue to treat the labour hire agreements as remaining on foot and binding upon the parties to those agreements -

and to -

give effect to the terms of those agreements.

(Paragraph 2 of North J's order).

All of the orders that I have mentioned were made upon certain undertakings given by the present respondents, the Maritime Union of Australia and Others, that they -

will not engage in any industrial action -

and that they would not -

hold the administrators appointed to the labour hire companies personally liable for their wages and other benefits arising from their employment with those labour hire companies, for which the administrators would otherwise incur personal liability as administrators during the course of their administration.

In the Full Court a further order was made, intended as I would understand it, to give effect to the intention lying behind the undertaking I have just described. The Full Court ordered that Part 5.3A of the Corporations Law should operate in relation to each of the labour hire companies in such a way that section 443A(1) of that law is not to operate in respect of services rendered to those companies by employees who are members of the Maritime Union of Australia. The effect of that order would be to relieve the administrator of the companies of the personal liability which otherwise he would incur by the continued employment of persons whilst the company was in administration.

It is however, as I would understand it at the moment, not an order which would prevent each of the companies concerned continuing to incur the liabilities for wages to their employees.

The applicants contend that the effect of these orders is to oblige them to use workers in their stevedoring operations other than the workers whom now they are using. They submit, in effect, that the orders require them to give effect to agreements which, so they contend, have been terminated, and, again so they contend, to do so otherwise than in accordance with the terms of those agreements. They contend further that they are obliged by the orders, if the orders are to have effect, to use in the course of stevedoring operations persons who since 7 April 1998 they have excluded from premises under their control.

They submit that if the operation of the orders made by North J, as varied by the Full Court, is not stayed, and if their application for special leave to appeal to this Court is granted and the appeal allowed, it will not be possible to restore them to the position that existed before the impugned orders were made.

No doubt as was observed in Paringa Mining and Exploration Co PLC v North Flinders Mines Ltd [1988] HCA 53; (1988) 165 CLR 452 at 458, per Mason CJ and Brennan and Gaudron JJ:

In general, the orderly administration of justice would be impeded if this Court intervened in interlocutory proceedings in a matter pending in a Court of trial. It is the responsibility of a Court of Trial to determine the course of interlocutory proceedings, subject to appeal to the relevant intermediate Appellate Court.

Ordinarily, of course, the subject matter of litigation will not be lost, or for that matter injuriously affected, if interlocutory orders made in the action are permitted to operate according to their terms. Usually interlocutory orders are directed to the preservation of the subject matter of the action, not to its alteration, let alone its destruction.

In the course of argument counsel adverted to many of the large number of reported decisions in this Court about the grant or refusal of stay pending application for the grant of special leave. All of those decisions must be read in the light of the circumstances of the individual cases. Nothing that is said in them is to be read as identifying immutable principles which fetter the Court's jurisdiction to grant a stay. The jurisdiction is ample. The relevant question which falls for decision is whether it should be exercised in this case.

The present applicants applied to the Full Court of the Federal Court for a stay of proceedings pending their application to this Court for special leave. That application for stay was refused. In considering whether now to grant a stay, it is important to consider first whether there is a substantial prospect that special leave to appeal will be granted, to consider also what effects the grant or refusal of stay would have, and to consider where lies the balance of convenience.

Various matters were canvassed in the course of argument which were said to be possible grounds warranting the grant of special leave to appeal to this Court. Notwithstanding that the orders which it is sought to challenge are in the first instance interlocutory orders, I consider that the applicants' prospects of obtaining special leave are not insignificant. Since that application has yet to be argued, it is in my view inappropriate to say more.

Again, lest it be misunderstood, I emphasise that I express no concluded view that the matters which were canvassed in argument arise in the proceeding or that it is only the matters that were mentioned in argument which might attract a grant of special leave, or for that matter that the applicants should succeed in their application for special leave. Those are all questions that must await full argument and upon them I express no view greater than that I am of the opinion that the applicants' prospects of obtaining leave are not insignificant.

What loss would the respondents to the present application suffer if a stay were granted? No contract of employment has yet been terminated, whether by the administrators of the labour hire companies that are now in administration or by any of the applicants. Staying the orders that were made will not change that.

In the end, as I understood it, the respondents' principal contention in this regard was that the legitimate expectations of the respondents to enjoy the fruits of their success in the Courts below would be dashed were stay now to go. Against that consideration, powerful as it may be, must be balanced, among other things, what was said by the Full Court in connection with the application that had earlier been made to that Court for a stay of North J's orders pending the hearing of the appeal to that Court. Their Honours in the Full Court said:

We stayed those orders -

I interpolate "North J's orders" -

not because we had any view about their merits, at that stage we had not even seen North J's reasons, but simply because it seemed to us undesirable to run the risk of the chopping and changing that would occur if the orders were allowed to operate for a short time and were then set aside on appeal.

The stay which now is sought is very short. As I have already indicated to the parties, a Full Court will be assembled in Canberra to deal with these matters at 10.15 on Monday next.

I am persuaded that the harm to be suffered by the respondents being kept out of the fruits of the orders which they have obtained is outweighed by the disruption that would be caused were the position to be changed after proceedings were heard on Monday next. Importantly, I consider that there is a real risk that it would not be possible for the present applicants, if ultimately successful in an appeal to this Court, to be restored substantially to their former position if the orders made by North J were now to be executed.

Given the brevity of the period involved and the various considerations to which I have referred, I am of the opinion that if - but only if - the undertaking as to damages which was proffered at the hearing before me last night were to be renewed in substantially identical terms, there should then be an order staying paragraphs 1, 2 and 4 of the orders of North J made on 21 April 1998, until 5 pm, 27 April 1998 or further order.

It will be noted that I have not dealt, in that proposed form of order, with the variations or orders made by the Full Court in respect of some of the paragraphs of the orders of North J to which I referred. I have not done so because it seems to me that the Full Court's orders, being, as they were, stays of the operation of North J's orders, need not be noticed in the form of order which I propose. However, that is a matter about which counsel may care to address me.

As I have also indicated to counsel, it will be necessary also to give directions very quickly about the steps that must be taken to permit the further prosecution of the application for special leave before the Court on Monday next. Again those are matters on which I will hear counsel. No doubt also it will be necessary to make some order dealing with the costs of the present application.

First then, may I hear from counsel on the question - from you, Mr Gyles, of whether an undertaking as to damages is proffered, and then next on anything you may say about the form of the order for stay that I propose.

MR GYLES: Your Honour, firstly I am instructed to give the undertaking for damages in the terms given last night, substituting the identification of the parties to their respective positions in the - - -

HIS HONOUR: On behalf of the same parties?

MR GYLES: On behalf of the same parties, to the same parties.

HIS HONOUR: Yes, I understand.

MR GYLES: Your Honour, I do not suggest that your Honour should alter your Honour's orders in view of the orders of the Full Court. They do not qualify or vary the actual substantive orders.

HIS HONOUR: Yes. Do you have anything else to say about the form of order?

MR GYLES: No, your Honour.

HIS HONOUR: Yes, thank you. Does any other party seek to be heard before I call on Mr Burnside? No.

MR GYLES: I should say, your Honour, so far as costs are concerned, we would seek them, but it may be your Honour would care to reserve them to the full bench. I am in your Honour's hands.

HIS HONOUR: Reservation is looking the more likely disposition at the moment, Mr Gyles. Leave aside costs pro tem, Mr Burnside; form of orders first.

MR BURNSIDE: Form of orders, fine; form of undertaking, fine. Luckily you do not have to decide costs because in the jurisdiction invoked under 298K costs orders need not be made.

HIS HONOUR: Well, any question of costs is one which I would desire to reserve, Mr Burnside.

MR BURNSIDE: Yes.

HIS HONOUR: I would not, by doing so, seek to exclude you from mounting the argument you foreshadow.

MR BURNSIDE: I rather thought it might have been my learned friend's argument, your Honour. Generally a litigant who asks for an indulgence pays for it. But costs reserved is all we need.

HIS HONOUR: Yes. Then may I, Mr Gyles, ask you to read, so that it may be transcribed, the form of the undertaking which you proffer?

MR GYLES: Yes, your Honour.

HIS HONOUR: Do you have access to the transcript of last night?

MR GYLES: I do not at the moment, your Honour, I am afraid.

HIS HONOUR: I do. May I hand it down to you so. That might be of assistance to you.

MR GYLES: Yes, thank you, your Honour, it would be. On behalf of the first to the 13th applicants inclusive, I am instructed to undertake to pay the Maritime Union of Australia, Peter Breukers, Jake Haub, Kieran Coyle and the individuals referred to in paragraph 1 of the statement of claim in action VG 152 of 1998 in the Federal Court of Australia, whom Kieran Coyle represents, to Patrick Stevedores No.1 Pty Ltd, No.2 Pty Ltd, No.3 Pty Ltd and National Stevedoring Tasmania Pty Ltd, adversely affected by the stay granted by this Court, such compensation if any as the Court thinks just in such manner as the Court directs.

HIS HONOUR: Yes, thank you, Mr Gyles. Mr Burnside, is that your understanding of the undertaking that is proffered?

MR BURNSIDE: Yes, your Honour.

HIS HONOUR: You have nothing to say further about it?

MR BURNSIDE: No.

HIS HONOUR: Thank you, Mr Burnside. Upon that undertaking then, there will be an order staying paragraphs 1, 2 and 4 of the orders made by North J in the Federal Court of Australia on 21 April 1998, until 5 pm, 27 April 1998 or further order. Lest there be any doubt of it, my reference to further order encompasses earlier order that might be made.

Now, ladies and gentlemen, the question of costs. My disposition would be to reserve the costs of the present application and to certify the attendance of counsel. Ladies and gentlemen, the question of directions. Has there been any discussion at the bar table? Is it something that I might conveniently deal with now? Is it better that I come back at 2 o'clock?

MR BURNSIDE: We would rather you deal with it now, your Honour. We have reached agreement about the order of things.

HIS HONOUR: Yes.

MR GYLES: Could I deal with one matter before we get to the timetable?

HIS HONOUR: Yes.

MR GYLES: I wish to seek your Honour's leave to amend the application for special leave. May I hand to your Honour a handwritten copy of what I seek and I will read it out for the benefit of my learned friends, your Honour?

HIS HONOUR: Yes. You have not seen this yet, Mr Burnside?

MR BURNSIDE: No.

HIS HONOUR: Thank you.

MR GYLES: It is only just off the press, your Honour.

HIS HONOUR: Yes.

MR GYLES: Leave to amend the application for special leave by: (1) adding in paragraph 2(8), after the word "labour;", the words "require companies to continue incurring liabilities whilst in administration, regardless of solvency or otherwise, and on a basis which alters the priority of debts; are designed to mitigate harm"; (2) by adding paragraph 2(18) in the following terms, "that the Court had no jurisdiction to make Order 3, or, alternatively, if it had jurisdiction, exercised it on wrong principles and did not afford the applicants a real opportunity to consider such an order." I hand to my learned friend my note so he can check that, your Honour.

HIS HONOUR: Do you oppose the application for leave to amend, Mr Burnside?

MR BURNSIDE: I do, your Honour, but I recognise the Judge's point is always the best one and the outcome of opposition may not be very good for us. But yes, we oppose it.

HIS HONOUR: Yes, on what basis?

MR BURNSIDE: I cannot say anything in amplification of my point.

HIS HONOUR: Yes. There will be leave to amend. Would you be good enough to prepare an amended document?

MR GYLES: Yes, your Honour.

HIS HONOUR: Now, directions. I say this: it has been a very long morning. It was not exactly a short night either. Are counsel agreed?

MR BURNSIDE: Yes, there has been nothing out of the ordinary about today or last night, your Honour, I can assure you. It has been pretty relaxed. As I understand, what we have agreed, your Honour, is that the applicants' summary of argument and draft notice of appeal should be delivered to us by 5 pm today.

HIS HONOUR: Yes.

MR BURNSIDE: Our summary of argument should be delivered by 5 pm Saturday.

HIS HONOUR: Yes.

MR BURNSIDE: And the applicants' reply at 5 pm Sunday, to be delivered to us somewhere in Canberra. You will give further and better particulars.

MR GYLES: "Reply (if any)", your Honour.

HIS HONOUR: Yes.

MR BURNSIDE: May I address the question, what evidence tendered below should appear in the application book. I think we are all agreed, your Honour, that in view of some of the grounds it is necessary that all the evidence should be in and practicality makes it desirable for this reason.

HIS HONOUR: How big is the volume?

MR BURNSIDE: The volumes - five volumes, your Honour.

HIS HONOUR: I am not going to make an unbridled order that you can just dump five volumes on the Court Monday morning.

MR BURNSIDE: Not my application, your Honour. It is their appeal.

HIS HONOUR: I understand, Mr Burnside, and the answer is still no.

MR BURNSIDE: Two of their grounds at least say that the Court below acted on a misapprehension of the facts; misapplied the facts. In our submission, the facts need to be before the Court.

HIS HONOUR: That is a matter that counsel may care to mention to me later in the day when they have given further thought to it and discussed it further, but I tell you now, I will take a considerable degree of persuasion to the proposition that simply five volumes of record below is to be dumped on the Court without culling.

MR BURNSIDE: Then, your Honour, if I may say, I am not unduly troubled by that. It is my learned friend's problem. But if a reduced version of the evidence is to be put in, we would ask your Honour to make whatever directions are needed to ensure that the material that goes in bears the same volume and tab numbering system as existed in the present book. We are all under a lot of pressure and for us to have to master a new system is going to be extremely difficult.

HIS HONOUR: There can no question but that pagination will be preserved. If there is a pagination volume system, that must be preserved. Is that understood? Is there any difficulty about that?

MR GYLES: I don't think so. It just means removal of pages.

HIS HONOUR: Yes.

MR BURNSIDE: I should leave it to my learned friend perhaps to contend for the fuller volumes that he wants.

HIS HONOUR: When are you going to file any of this? Firstly, is there any reason, Mr Gyles, why in the course of the early afternoon there cannot be filed with the registrar the amended application for special leave, the application to the Federal Court of Australia, the amended statement of claim in that Court, the reasons for judgments and orders of the primary judge in the Full Court and the notice of appeal to the Full Court?

MR GYLES: No, your Honour, I think - - -

HIS HONOUR: By what time can that be done?

MR GYLES: Your Honour, it depends on the number of copies required.

HIS HONOUR: One copy could be made available by what time?

MR GYLES: 2.30, your Honour.

HIS HONOUR: Yes.

MR GYLES: I think indeed your Honour has a bundle of them now.

HIS HONOUR: Yes, I do, but I want a clean set that can, if needs be, hit a fax to Canberra now. So one set please by 2.30 today. Seven copies, I think is the standard number, obviously will take longer to produce. Subject to further thought about it, it may be that is Monday morning - 0900 or something Monday morning for the seven. I am anxious obviously that those who are to constitute the Full Court should have any papers that are available that can be usefully read before the proceeding begins.

What is to be done about the arguments? If it is 5 pm, 5 pm and 5 pm, I assume they will not be available to the Court until early Monday morning. For the moment I see no way round that. Can counsel offer anything?

MR BURNSIDE: Your Honour, I was proposing that ours would be e-mailed to the Court or faxed, if that is more convenient, and it can be done at 5 o'clock tomorrow.

HIS HONOUR: Probably e-mail it and fax it. The difficulty is that the members of the Court will almost all, if not all, leave Canberra this afternoon, I would have thought.

MR GYLES: Your Honour, we had thought that we would deliver by 5.00 this afternoon our summary of argument.

HIS HONOUR: Assuming it is a practical step to take, can the parties fax their documents as soon after service as they may to the registry in Canberra, unless the registry has communicated some other desire to you? It may be that there will have to be a slightly different distribution. What are we going to do about all this record, Mr Gyles?

MR GYLES: Your Honour, we would be content if in the index, items 1, 2, 2A, 7 - these are the ones that we would like.

HIS HONOUR: Rather than have you do it on the run - I mean, I know the pressures you have all been under recently and I would rather you had an opportunity to stop and think about it.

MR GYLES: Is that something we could take up with the registrar, your Honour?

HIS HONOUR: You might find my hand intervening somewhere.

MR GYLES: Your Honour, we will do whatever is the most expeditious.

HIS HONOUR: Would it be too inconvenient to counsel if I were to say that at 3 o'clock this afternoon, unless indicated to the contrary, I would come back and resolve those questions?

MR GYLES: Yes, your Honour.

HIS HONOUR: But do please keep in touch with the registry and if we can avoid it, we will. You have all got other better things to do than be settling indexes.

MR GYLES: Your Honour will understand I will be doing some arguments rather than indexes at that stage.

HIS HONOUR: You astonish me, Mr Gyles. Is there any other matter I need to deal with immediately? Yes, Mr Pagone?

MR PAGONE: Only if we can be excused from attending at 3 o'clock. It doesn't really affect us, your Honour.

HIS HONOUR: By all means, Mr Pagone, but at your own risk, but

thank you for the Courtesy. I will adjourn until 3 o'clock this afternoon.

ADJOURNED [1.11 pm]

RESUMED [3.06 pm]

HIS HONOUR: Mr Middleton.

MR MIDDLETON: If your Honour pleases, we are in agreement, as I understand it, your Honour, in relation to the material that we seek to have placed before the Court. Could I hand up to your Honour a copy of an index, which is a document which we can, if I may, use to indicate to your Honour the material which we seek to have put before the Court.

HIS HONOUR: Yes.

MR MIDDLETON: Items 1, 2 and 2A can have a line put through because that will be obviously in another form. It is sought to have items 3, 4, 5 - item 5 can have a line through, your Honour. We do not need that.

HIS HONOUR: Which one?

MR MIDDLETON: Item 5A. Item 6, the affidavit of Jonathan Kramersh, but not all the exhibits, only tab G and tab A. Item 7. Items 8, 9 and 10 can be deleted. Items 11, 11A, 12 and 13 would be included. Item 14 will be deleted. Item 15 would be included and there would be another affidavit of Arthur Butterell, which was not in the index which was an affidavit of 8 April. So there would be two affidavits of Butterell. Items 16, 17 and 18 would be deleted for this purpose.

As to the transcript of hearing we would only propose that the evidence in relation to Mr Butterell and Mr Clayton. There are short passages of evidence, your Honour. I think it is about 30 pages. Otherwise it is just a matter of legal argument.

HIS HONOUR: The total volume of papers that you there describe is what?

MR MIDDLETON: It is about half the five volumes, your Honour - two and a half.

HIS HONOUR: Are you seriously standing there and telling me that the resolution of the application for special leave is going to require a Full Court to consider that volume of material?

MR MIDDLETON: I would hope not, your Honour.

HIS HONOUR: Then why are we being vexed with it?

MR MIDDLETON: Well, your Honour, it depends upon which way the arguments go in relation to the material which is before the Court at the Full Court stage, your Honour.

HIS HONOUR: How you conduct your case is entirely a matter for you. I do not think I reveal more than any blinding glimpse of the obvious if I say that special leave applications commonly concern points of principle rather than a detailed examination of a factual substratum. It is for you, Mr Middleton, and those advising you for whom you appear, of course, to frame your application as you see fit. Anything I say should be understood in that light and in none other. But two and a half lever arch files; is that what we are talking?

MR MIDDLETON: I believe so, your Honour.

HIS HONOUR: It is a matter entirely for you.

MR MIDDLETON: Can I indicate to your Honour. I had not finished, your Honour, with the index.

HIS HONOUR: There is more, is there?

MR MIDDLETON: Well, there was one further matter, your Honour. There was an affidavit which was filed by my learned friend, Mr Fajgenbaum, a Broome affidavit, which should be, in our respectful submission, included in the material, which is still within the confined, your Honour, of the two and a half volumes which I understood would be included.

Your Honour, there is the eventuality that could arise that the Court may wish to deal with the whole matter on the one day and could deal with the whole matter on the one day.

HIS HONOUR: Yes, including the hearing of any appeal or treating the application for leave as the hearing of the appeal and dealing with the appeal instanter, yes.

MR MIDDLETON: So I am mindful of that, your Honour, that one may need to have this other material in relation to that and I am also mindful, of course, of the arguments - not only what we wish to put, but your Honour did ask us to consult Mr Burnside and we have done that and I have to be cognisant of perhaps what Mr Burnside would want to put, even though they are matters which I would not normally have and not normally think would be appropriate. But I should not - and we have come to an agreement as to the material on both sides to be fair to the presentation of both sides' case, your Honour. We would not want to have an argument before your Honour today about which material should be there and - - -

HIS HONOUR: As I say, it is a matter entirely for you. I had understood the course of debate this morning to have at least commenced a process of identifying whether there were perhaps some questions of principle raised. I have no view yet whether there is or not. Questions of principle, although arising out of a factual substrate, commonly can be isolated from that factual substrate in view of the findings made below; understanding, as I do, that the findings made are the provisional finding that is of a kind commonly encountered in interlocutory injunction reasons.

MR MIDDLETON: Your Honour will appreciate, having of course heard argument this morning and seen our application for special leave, that the large majority of matters deal with in the application matters of principle which we say can be derived from the judgment of the Full Court and, if necessary, reference to his Honour North J's decision and in some sense that is all one would need to go to. But argument does develop and I put those submissions. So that is the position we have reached by agreement, your Honour.

HIS HONOUR: Yes.

MR MIDDLETON: Can I mention one other matter, your Honour, which we did not propose to burden the Court with, but which we anticipate an agreement about, that if it eventuates that at the end of debate and submissions to the Court on the Monday that an extension of a stay is necessary then it may be that further material, which has already of course been before the Court, could be relied upon and we will come to an arrangement for that, but it did not seem to us that we needed to burden the Court in relation to that matter, at least at this stage, your Honour. So, if your Honour pleases, that is the position we have reached at this time.

HIS HONOUR: Yes. Is there anything you want to say, Mr Burnside?

MR BURNSIDE: Not in relation to the contents of the application book, your Honour, no.

HIS HONOUR: Is there anything else that other counsel desire to raise about the contents of the application book?

MR FAJGENBAUM: No, your Honour.

HIS HONOUR: Is there anything then more generally about the directions that need now to be given?

MR MIDDLETON: I believe not, your Honour.

HIS HONOUR: Yes, Mr Burnside?

MR BURNSIDE: There is one thing I should have perhaps said this morning, your Honour, about the amendment to the grounds of the application. I would not want it to be thought, your Honour, that by opposing, without developing the opposition, that we were thereby prevented from arguing that the applicants for leave should not be allowed to rely on points that were not argued before the judge at first instance or on appeal, and obviously we would wish to preserve that. But that is not a matter for your Honour to decide and it is appropriate that the Full Court should be entitled to look at the ground if only to say they can't rely on it.

HIS HONOUR: Yes. Since the proceedings are a Melbourne proceeding, it may be as well if the directions which I give about filing by facsimile transmission to the registry, that documents be filed by fax to the registry both in Canberra and in Melbourne. That will perhaps keep the Melbourne file running. It may be unnecessary but I do not think it will present any difficulty, will it?

MR MIDDLETON: I do not believe so, your Honour.

HIS HONOUR: Other parties have been represented in the course of the hearing before me. Understanding as I do that you, Mr Fajgenbaum, have said that some consideration has been given to some other application on your part in this application, is it intended that you, or for that matter other parties, will make any submissions?

MR FAJGENBAUM: It is intended that we will not be making an application. It is anticipated that we may be making some submissions, your Honour, insofar as the orders that are under attack affect our business.

HIS HONOUR: What attitude will you be taking; seeking to support or attack the orders?

MR FAJGENBAUM: We are seeking to attack. We join with my learned friend Mr Middleton.

HIS HONOUR: Then should you not be on terms that your outline of submissions be in by 5 pm today so that the respondent may have full information about the case that is to be made against the respondents?

MR FAJGENBAUM: There is a practical difficulty about that, your Honour. Mr Merrills has been brought into the case as well and he is now being instructed, as I stand here.

HIS HONOUR: Those are difficulties, Mr Fajgenbaum, that I was trying to avoid when I foreshadowed, as early as I did last night, that this thing might be coming on very urgently - I think I said that, I may be mistaken - that the parties should order their affairs on that assumption.

MR FAJGENBAUM: Yes, your Honour.

HIS HONOUR: Yes. Why should I not direct that 5 pm today is the time by which your papers are submitted?

MR FAJGENBAUM: Your Honour, I have nothing that I can add to that which I have already said, other than to refer to our status as that of a respondent to the appeal. If your Honour pleases.

HIS HONOUR: Yes. Mr Harris, what attitude is your client taking in the present applications?

MR HARRIS: Your Honour, we will be supporting Mr Middleton's clients in the application. It is not presently envisaged that there will be the need to make any submissions on behalf of either Mr Corrigan or Mr Dunn.

HIS HONOUR: Support without submissions, is it?

MR HARRIS: It appears so, your Honour.

HIS HONOUR: I will not pursue the thought.

MR HARRIS: If your Honour pleases.

HIS HONOUR: Yes. I speak only for myself but were parties to come to the hearing saying later that they desired to be heard at length and had not chosen to file submissions at the appropriate time, it may be a matter that may bear upon whether they should be heard. The Full Court will no doubt regulate its procedure as it sees fit. Mr Elliott?

MR ELLIOTT: Your Honour, the companies which Mr Murdoch and I appear on behalf of are in a difficult position because of lack of funds. We announced an appearance before the Full Court as a matter of courtesy but said we were not in a position to agitate the matters before the Court. As I stand here at the moment, your Honour, I do not have instructions one way or the other as to whether or not we will be making submissions on Monday but it is quite possible that we will be.

HIS HONOUR: My present inclination, gentlemen, is to direct that the applicants and any person desiring to be heard in support of the applicants file and serve within a limited time, and then that the respondents - I do not think it would be necessary to say "the respondents and any person desiring to support them". I think, Mr Burnside, so far as parties are concerned, you have the carriage of the opposition to the application, do you not, and there is no other party who will join you?

MR BURNSIDE: Yes, that is right.

HIS HONOUR: Yes. Subject to anything that counsel may say about the form of the directions, they will be as follows:

(1) On or before 5 pm, 24 April 1998, the applicants and any other party seeking to support the application will serve on all other parties and file, by facsimile transmission to the registries of the Court in Canberra and Melbourne, their summary of argument in support of the application, and in the case of the applicants their draft notice of appeal.

(2) On or before 5 pm, 25 April 1998, the respondents will serve on all other parties and file, by facsimile transmission to the registries of the Court in Canberra and Melbourne, their summary of argument in opposition to the applications.

(3) On or before 5 pm, 26 April 1998, the applicants will serve on all other parties and file, by facsimile transmission to the registries of the Court in Canberra and Melbourne, their summary of argument in reply.

Pausing there, it will be noted that the reply is confined to the applicants. Supporting parties will on that analysis have an opportunity to submit once but not to reply.

Again pausing there, it will be seen that I have described it as summary of argument in support of or in opposition to the application. I say again, the course that the Full Court will take will be a matter regulated by the Full Court. A course that is open to the Court is of course to treat the application for leave as the hearing of the appeal. No doubt counsel will bear that in mind in the preparation of their papers.

The preparation of the papers, done as it will be under considerable pressure of time and no little difficulty, must nevertheless bear, at the forefront of consideration, the need to identify and isolate for the consideration of the Court the points which it is sought to make and the arguments which are advanced in their support. I cannot stress sufficiently the need to refine the arguments as much as can be done. I know time is short. I know the pressures will be and are already very hard.

So far as the application book is concerned, I understand there has already been filed with the registrar in Melbourne a bundle comprising the application to the Federal Court of Australia, the amended statement of claim, the reasons for judgment of North J, the order of North J, the notice of appeal to the Full Court of the Federal Court of Australia, the reasons for judgment of the Full Court of that Court and the order of that Court. It will be necessary, contrary to what I said earlier today, to have 10 copies of those documents available in Canberra on Monday.

So far as the other documents that it is sought to include in the application book, counsel have heard what I have said. I have heard what counsel have said. I will give no direction about the contents of the application book because as I understand it parties are agreed that the documents listed by Mr Middleton should be included in them. If on further consideration the parties were to form a view that any or many of those documents might properly be omitted, no order would I think be needed from me to omit it. Now, is there any other direction needed?

MR GYLES: For the applicants' part, no, your Honour.

HIS HONOUR: Any other party?

MR BURNSIDE: No, your Honour.

HIS HONOUR: I have made I think orders dealing with costs and certificates and so on this morning, have I not? Very well. Yes, I will adjourn sine die.

MATTER ADJOURNED AT 3.27 PM