Coal & Allied Operations Pty Ltd, Ex parte - Re CFMEU & Ors S106/1999 [1999] HCATrans 427 (15 October 1999)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S106 of 1999

In the matter of -

An application for writs of Certiorari and Mandamus against the Full Bench of the Australian Industrial Relations Commission consisting of THE HONOURABLE JUSTICE GEOFFREY GIUDICE, PRESIDENT, THE HONOURABLE JUSTICE PAUL MUNRO, DEPUTY PRESIDENT and ANNE LARKIN, COMMISSIONER OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

First Respondents

THE CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

Second Respondent

THE AUTOMOTIVE, FOODS, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION

Third Respondent

THE COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA

Fourth Respondent

Ex parte -

COAL & ALLIED OPERATIONS PTY LTD

Prosecutor

For mention

GLEESON CJ

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 15 OCTOBER 1999, AT 2.39 PM

(Continued from 13/7/99)

Copyright in the High Court of Australia

_______________________

MR J.N. WEST, QC: May it please the Court, I appear for the prosecutor with my learned friend, MR H.J. DIXON. (instructed by Freehill Hollingdale & Page)

MR W.R. HAYLEN, QC: If your Honour please, I now appear in this matter with MR R. REITANO, that is for the second, third and fourth respondents, your Honour. (instructed by R.L. Whyburn & Associates)

HIS HONOUR: Yes. I think on the last occasion when this matter was before the Court I referred to a certificate I had been given concerning the position of the first respondent.

Mr West, I understand that you obtained special leave - your client obtained special leave to appeal on the previous occasion.

MR WEST: That is so, your Honour, yes.

HIS HONOUR: I think I indicated a tentative disposition on the last occasion that in the event special leave should be granted, it may be that the appropriate way to deal with this application for prerogative relief is simply to refer the application to the Full Court to be listed immediately following the hearing of the appeal.

MR WEST: Yes, your Honour did that.

HIS HONOUR: What is your position in relation to that?

MR WEST: Our position is, your Honour, that that, with respect, is the course that the Court would follow and we would ask your Honour to do that.

HIS HONOUR: Let me see what Mr Haylen has to say about that then. Yes, Mr Haylen.

MR HAYLEN: Your Honour, initially we thought that there was some attractiveness about that approach. Could I very briefly describe to your Honour why we think there are some difficulties and it may be a little messy.

HIS HONOUR: Yes.

MR HAYLEN: This particular application is put forward on the basis that the grounds in support of it were identical to the matters raised in the special leave application. As it turned out, the Court on the special leave application gave leave on a different basis to that sought in the application for special leave and in the draft grounds. It touched upon - or was confined to - whether the errors identified would warrant the granting of prerogative relief.

HIS HONOUR: You had better just explain that to me, Mr Haylen. Let me point out to you that I have no knowledge of what happened in relation to the special leave application, except that I have been informed it was granted.

MR HAYLEN: Your Honour, can I just go back very briefly to what the Full Federal Court did. It decided that the Full Bench of the Commission had failed to properly exercise its jurisdiction on appeal and had not properly construed a particular section, 170MW, of the Workplace Relations Act. That failure to exercise jurisdiction was the basis upon which prerogative relief was granted. When the matter came on for special leave on this applicant's application, the two grounds identified were that the Full Court was wrong about the width of the appeal power under the Workplace Relations Act, section 45, and was wrong about the construction of section 170MW of the Workplace Relations Act. On special leave the Court said, we do not really think that is the real ground for special leave. Even if those errors were identified, was there a basis for granting prerogative relief?

HIS HONOUR: Against the Full Bench?

MR HAYLEN: Indeed, yes.

HIS HONOUR: Just pausing there, the issue raised on the appeal - or an issued raised on the appeal will be whether, in the events that happened, the Full Court should have, in effect, ordered the Full Bench to have another go at the matter.

MR HAYLEN: I think that is so, your Honour. It seems at least open on this basis that regardless of whether the Full Court was right about the width of the appeal power in section 45 or the construction of section 170MW, if the relief that was granted was certiorari and mandamus, there was no error on the face of the record and the prerogative relief would not lie. That is the difficulty now, because this - - -

HIS HONOUR: The application for prerogative relief that I am concerned with is an application for prerogative relief against the second decision of the Full Bench.

MR HAYLEN: Indeed. That Full Bench making its decision as directed by the Full Federal Court granting prerogative relief.

HIS HONOUR: Now, let it be supposed that Mr West succeeds on the appeal and this Court, on the appeal, decides that for one reason or another the Full Court ought not to have ordered the Full Bench to deal with the matter again. The Full Bench has dealt with the matter again.

MR HAYLEN: Indeed.

HIS HONOUR: Its decision will stand unless set aside, will it not?

MR HAYLEN: Your Honour, could I add one more difficulty. Not only has the second decision been made, but a further Full Bench, acting on the basis of that decision, has proceeded to hear a special type of arbitration - - -

HIS HONOUR: To finality?

MR HAYLEN: And has just recently made, under section 170MX, an award. As I understand, the essence of what the applicants here want is the consequential relief, should they succeed on the appeal that is now before the High Court. It seems to us that it is very messy going by way of prerogative relief directed to the second Full Bench - or the Full Bench who sat the second time - in accordance with writs directing it to do so and which ignores an award now made by a third Full Bench, differently constituted, that are parties.

HIS HONOUR: I thought I was told on the last occasion that it was common ground that if special leave to appeal were granted, and if the appeal were successful, whatever the Full Bench might do on the third occasion, which it apparently has just done, would be of no legal effect.

MR HAYLEN: And I do not depart from that, your Honour. The only issue then is how effectively can that be dealt with, and it seems to me that if the appeal in this Court succeeds totally, resulting in that award effectively having no status but still being on the record, there are powers under the Workplace Relations Act to have that award set aside or revoked, section 111(1)(f). Or it may well be that in the appeal - and this was something my learned friend mentioned to me this morning - if a declaration to that effect was sought, that may tidy up all the loose ends.

Our problem is, it seems enormously messy to allow this to go the Full Court here in relation to the second Full Bench and a third Full Bench when the grounds are different to the special leave application that has been granted.

HIS HONOUR: I think I understand that. What is your suggestion as to the way this matter should be dealt with at the moment, Mr Haylen?

MR HAYLEN: Your Honour, I would object to - we think it is inappropriate, if not wrong, for reasons that are set out very briefly in, I think, an outline that Mr Rothman handed up when this matter was last before you, we think the better course is for the appellant to draft grounds of appeal with consequential orders that will attack the final - - -

HIS HONOUR: Pursuant to the leave?

MR HAYLEN: Yes. I do not want to complicate - - -

HIS HONOUR: And what, stand this matter over?

MR HAYLEN: This could be stood over, but we think there are real difficulties with this proceeding, your Honour. It has the potential of making the proceedings in the Full Court quite messy, as we see it.

HIS HONOUR: I will see what Mr West has to say.

I understand Mr Haylen to be suggesting that this application for an order nisi should be stood over generally, with liberty to either party to restore on a certain number of days notice, and that you should endeavour, if your appeal otherwise succeeds, to persuade the Full Court to make orders consequential upon allowing the appeal, which would get rid of the decision you are now attacking.

MR WEST: Your Honour, with respect, in our submission there are difficulties with that because, firstly, there is a substantial identity between the grounds on which the appeal comes forward, even given the restriction which was imposed by the special leave Bench. What the special leave Bench restricted us to was to, as my learned friend said, showing why it was that there were no grounds upon which the Full Federal Court could have issued prerogative relief to the Full Bench. That encompasses two essential questions which arise in this case. The first one is whether the nature of the decision which the Commission was required to make under 170MW of the Act, which was to revoke the bargaining period, was a discretionary decision or whether it was not.

Secondly, what was the true nature of the appeal, not in the sense of whether it was a re-hearing or whether it was an appeal de novo or anything like that but rather, given that the Commission had jurisdiction to hear the appeal and it heard it, what did it do which constituted an excess of jurisdiction. It had the power to do what it did. It may have, as it were, gotten it wrong, but that is not the subject of prerogative relief and could not have been. That was the way in which the Acting Chief Justice raised it with me at the opening of the applications for special leave and as the argument proceeded, it crystallised even further. It came to this, which is fundamental to the way the second Full Bench approached the matter.

It is the contention of the respondent here that when the Full Bench of the Commission sits on appeal it exercises review powers of the Wednesbury type, not of an appellate type. That is fundamental to the way in which the structure of the appeal would work. That is what the Full Court found. That is what the second Full Bench applied and when it did that, my clients lost on the second appeal. That issue pervades both cases and is central to them. If we are successful on the appeal, the Full Court's judgment would be set aside, the orders for certiorari and mandamus would be quashed, the judgment of the first Full Bench would then be restored.

HIS HONOUR: Why? You would still have a judgment of the second Full Bench, would you not?

MR WEST: Yes, your Honour, and they would be inconsistent. The inconsistency is important because, consequent upon the second Full Bench, the arbitration Full Bench proceeded to make an award.

HIS HONOUR: Now, the one thing we appear to have agreement on is that if you succeed in your appeal, for whatever reason, that award will have no legal effect.

MR WEST: That is so, your Honour. It will be in the nature of the stewards' decision in Calvin v Carr. It exists just to be quashed. It has no legal effect but it is there and it could be dealt with because the High Court, sitting in its Full Court, would be seized of jurisdiction in the matter and it can make a declaration to the effect that the award was of no legal effect. That would simply put the matter beyond argument. The parties are agreed it has no legal effect but it is still an instrument sitting there. It is not an instrument which has any particular protection. It does not have a pro..... provision protecting it. It is not that kind of award.

HIS HONOUR: But as I understand what Mr Haylen says, if you succeeded in your appeal, he would consent to a declaration to that effect being made.

MR WEST: Yes, he says that. We still have then to get rid, though, of the second Full Bench judgment which stands on its own two feet. That would not be the subject of prerogative relief in the High Court unless an application were made for it.

HIS HONOUR: Why would that not be a subject of a similar declaration? If you can get a declaration by consent that the third decision of the Full Bench is set aside, why could you not also get a declaration that the second decision is set aside?

MR WEST: Your Honour, if that were conceded, then we could proceed that way.

HIS HONOUR: And just stand this application over in the meantime in case something comes unstuck. I mean, I have not thought through the question of whether there might be any reasons why the Full Court would not go along with the view of the parties in relation to those consent declarations and you would need to protect your position by keeping these current proceedings on foot in the meantime.

MR WEST: Indeed, we would, your Honour.

HIS HONOUR: Would you be content with that, Mr Haylen?

MR HAYLEN: I would be, your Honour. It seems to me that is a lot more sensible and will not lead the proceedings to be a little untidy, to say the least. Our concerns, I think, are met by that.

HIS HONOUR: Shall we deal with it that way?

MR WEST: Yes, your Honour, we think that is an appropriate way to go.

HIS HONOUR: I will say what appears to me to reflect the position we have got to, and if either party disagrees with it, then you can interrupt me and I will consider changing it.

MR HAYLEN: Your Honour, could I just say one thing more, and I do not want to canvass it here, but it seems to us on a recent re-reading of the grounds of appeal pursued, that they do not properly reflect the leave granted by the Full Court, but we are going to take that up with our learned friends.

HIS HONOUR: That goes to the grounds of appeal, rather than the consequential relief.

MR HAYLEN: Yes, your Honour. I did not want to be hear and not at least highlight that.

HIS HONOUR: This matter was before me on 13 July 1999. Since then the prosecutor has obtained a grant of special leave to appeal against the decision of the Full Court of the Federal Court referred to in my reasons on 13 July 1999. The other development that has occurred since 13 July 1999 is that the Full Bench of the Australian Industrial Relations Commission has now made an award of the kind that was in contemplation on 13 July.

There is presently before me the prosecutor's application for prerogative relief in relation to what has been referred to, for convenience, as "the second decision of the Full Bench", that is to say, the decision after the further hearing of the matter which resulted from the order of the Full Court of the Federal Court, which are the subject of the pending appeal to this Court.

On 13 July, I was told that it was common ground between counsel for the parties that if this Court were to grant special leave to appeal from the decision of the Full Court of the Federal Court, and if the appeal were successful, any award made by the Full Bench of the Australian Industrial Relations Commission of the kind which has now been made would be of no legal effect. I am informed by senior counsel for both parties today that that is still common ground.

I am also informed by senior counsel for the second, third and fourth respondents that in the event that the appeal to this Court, pursuant to the special leave recently granted, should be allowed, his clients would consent to the making of consequential declarations to the effect that the decision of the Full Bench on the second occasion should be quashed and that the award of the Full Bench on the third occasion was of no legal effect.

I have not given any independent consideration to whether there might be any reason why the Full Court of this Court might not follow that Court in relation to the making of relief consequential upon the allowing of the pending appeal. However, it is agreed by the parties that against the possibility that some difficulty might arise in relation to giving effect to that common approach, the current application for an order nisi in relation to the second decision of the Full Bench should be kept alive pending the appeal.

In those circumstances, the order that I make in relation to the application for order nisi is that it be stood over generally with liberty to any party to restore the matter for further hearing before me on 14 days notice to the other party.

MR WEST: If the Court pleases.

MR HAYLEN: Thank you, your Honour.

HIS HONOUR: I will adjourn now.

AT 3.02 PM THE MATTER WAS CONCLUDED