CSL Pacific Shipping Inc, Ex parte - Re Members of the AIRC & Maritime Union of Aus & Ors S391/2002 [2002] HCATrans 606 (18 November 2002)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S391 of 2002

In the matter of -

An application for Writs of Prohibition and Certiorari against THE HONOURABLE JUSTICE PAUL MUNRO, THE HONOURABLE SENIOR DEPUTY PRESIDENT ANNE HARRISON and COMMISSIONER FRANCIS RAFFAELLI, MEMBERS OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION and THE MARITIME UNION OF AUSTRALIA and THE AUSTRALIAN INSTITUTE OF MARINE AND POWER ENGINEERS and THE AUSTRALIAN MARITIME OFFICERS' UNION

Respondents

Ex parte -

CSL PACIFIC SHIPPING INC

Applicant/Prosecutor

GAUDRON J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 18 NOVEMBER 2002, AT 9.30 AM

Copyright in the High Court of Australia

_____________________

MR C.N. JESSUP, QC: May it please your Honour, I appear with my learned friend, MS M.A.C. PAINTER, on behalf of the prosecutor/applicant, CSL Pacific. (instructed by Blake Dawson Waldron)

MR A.S. BELL: If it please the Court, I appear with MS K.M. RICHARDSON, for the second respondents. (instructed by W.G. McNally & Co).

HER HONOUR: Yes, thank you. I have a certificate from the Deputy Registrar who certifies that she has been informed by the solicitor for the first respondents that they do not wish any representations to be made on their behalf and will abide by any order save as to costs. Yes, thank you.

MR JESSUP: Your Honour, the proceedings involve an application for prohibition and certiorari directed to the members of the Full Bench of the Industrial Relations Commission in relation to an assumption of jurisdiction by them in which the present second respondents, that is the unions, to whom I will refer as "the respondents", sought to have our client bound as a party to an existing industrial award covering seafarers.

Your Honour, this was done by way of an application for variation of that award with which your Honour will have some understanding. The Commission assumed jurisdiction not because there was an industrial dispute but because there was an industrial issue under the provisions of the Workplace Relations Act 1912 which permit the Commission to deal with industrial issues where there is a matter involving maritime employees and where the matter is related to trade and commerce either overseas or interstate. In brief, your Honour, that is what the proceedings this morning concern.

Our client seeks to challenge the Commission's assumption of jurisdiction on a number of grounds which are summarised in the affidavit which we have filed and also in the outline which we filed on Friday afternoon. Your Honour, the present state of play in the proceedings in the Commission is that in accordance with their decision, the Full Bench referred the matter back to the single member of the Commission,

Commissioner Raffaelli, who had been dealing with it before it was referred to a Full Bench. Commissioner Raffaelli listed the matter and was about to embark upon what might be called the "award making process" when this application was foreshadowed.

HER HONOUR: "This application" being the application for a stay or for an order nisi?

MR JESSUP: For an order nisi, your Honour.

HER HONOUR: Now, that was made months ago and nothing done about it, was it not?

MR JESSUP: No, the application for an order nisi was made on 30 October, your Honour.

HER HONOUR: I am sorry. When was the decision of the Full Bench?

MR JESSUP: It was 27 September.

HER HONOUR: Yes, thank you.

MR JESSUP: The view which the Commission took, that is Commissioner Raffaelli, was that he would continue to proceed with the matter before him unless a stay were granted. Now, your Honour, as it seems to us, the first question which your Honour will consider is whether the matter should remain in this Court or be remitted to the Federal Court.

HER HONOUR: That is exactly right, yes.

MR JESSUP: Yes. You are so nice about it, your Honour. If your Honour determines that it should be remitted, as we apprehend the procedure, your Honour would do nothing further except remit it and then any issue of a stay or further procedure would be for the Federal Court. If, on the other hand, your Honour should choose to keep it here in this Court, then your Honour would consider whether we have an arguable case such as would warrant the making of an order nisi and then whether, in all the circumstances, a stay should be granted.

Your Honour, we would, in the normal course - and we are here today to do this - we would propose making submissions to your Honour about what the case is about, what the merits of it are, that is to say, the constitutional merits - not constitutional, but the jurisdictional merits - and from those your Honour would understand, we would hope, why it should be kept in this Court rather than sent to the Federal Court which is the course for which we contend. I do not want to foreshadow what my learned friend would say about that but - - -

HER HONOUR: It is purely a statutory construction point, at the end of the day, is it not?

MR JESSUP: Well, it is statutory construction but there is not a lot of "purely" about it, with respect, your Honour. It is to the statutory construction - - -

HER HONOUR: No, because you seek to construe it by reference to other legislation.

MR JESSUP: Yes, and we would also submit, your Honour, that this legislation is to be construed against the background of a consciousness of the international obligations and agreements which Australia has and that - - -

HER HONOUR: How do you say it should be construed? You want to read it down, essentially, do you not?

MR JESSUP: That is probably a pejorative way of putting what we are suggesting, your Honour.

HER HONOUR: You do not want to read it up.

MR JESSUP: We want to know what it means.

HER HONOUR: And you do not want to read it according to its natural and ordinary meaning.

MR JESSUP: We do, your Honour. We do.

HER HONOUR: Well, why do you need to construe it against the overseas material or overseas obligations?

MR JESSUP: They inform the natural and ordinary meaning, your Honour.

HER HONOUR: "Natural and ordinary meaning" has a new meaning in that case.

MR JESSUP: I suppose I should have accepted your Honour's invitation to suggest that we want to read it down because that is probably more of a High Court type of activity than anything else, if I may say so with respect. But, your Honour, what we submit in relation to the conventions is that here you have a vessel which is flagged, crewed and owned by foreign people and foreign companies. Its only connection with Australia is that its present trade is from port-to-port along the Australian coast. There is a regime of - - -

HER HONOUR: So, there is no doubt it would be within constitutional power, on any view, is there?

MR JESSUP: There is a doubt, your Honour. There is a doubt, and for this reason: the ship is being used for the purpose of interstate trade and commerce, undoubtedly, but it is not being used by our client and so there is an important question here as to whether the use of the ship for trade and commerce along the coast brings within it, under the trade and commerce power, all the industrial arrangements, not that the ship user, that is to say, not that the company engaging in trade and commerce makes but that the shipowner makes because this ship has been wet chartered to the Australian company. So, there may be a question, your Honour, as to whether the trade and commerce power - although I accept that it has been long held that the trade and commerce power does extend to the regulation of industrial terms and condition of what might be called people on trade and commerce ships but I do not believe it has ever been considered whether this applies where those people do not have any employment relationship with the entity which is engaging in that trade and commerce.

So, whilst that is a point which might be decided either way, your Honour, I would not be prepared at this early stage of the argument to say that there was no doubt that it was within the constitutional power. What we submit is that the constitutional power and the conventions inform the meaning which must be given to the legislation, so it is not really - - -

HER HONOUR: What meaning do you say must be given to it?

MR JESSUP: We say, first of all, the trade and commerce concerned must be Australian trade and commerce and, secondly, we say that the - - -

HER HONOUR: Yes. That does not take you very far.

MR JESSUP: No. Secondly, we say that the matters which have to relate to that trade and commerce actually have to relate to the trade and commerce, that is to say, when you are getting into employment matters - - -

HER HONOUR: Can you say in a sentence what you say the definition of "industrial issue" relevantly is in this case?

MR JESSUP: Yes, your Honour. I will need to have the definition before me. Does your Honour have a copy of the - - -

HER HONOUR: No, I do not think I do.

MR JESSUP: I think we might have filed some materials which include a copy of the Act but it would be even easier if I handed up a loose-leaf version.

HER HONOUR: Thank you.

MR JESSUP: Your Honour needs to turn to section 5(3) which is after the definitions section in the Act. First of all, your Honour will see that subsection (1) says that the Act has an additional effect as provided by the section and that, in effect, an "industrial issue" is treated as though it was an industrial dispute. Then in subsection (3)(b) we have the kind of industrial issues with which we are here dealing.

Now, relevant to the point that your Honour is addressing to me at the moment, we would have to accept, of course, that the Australian company which has chartered this vessel is engaging in trade and commerce within the meaning of paragraph (b). What we say is that the relationship which our client has with its employees who are working on the vessel does not relate to that trade and commerce and that simply being on the vessel and working on it is not sufficient.

HER HONOUR: Is that the argument that was put to the Full Bench of the Commission?

MR JESSUP: It was amongst them, your Honour. There were many arguments put to the Full Bench of the Commission. I am bound to say two things: (a) I was not appearing at that point but, (b) that the Full Bench of the Commission does, with respect to them, less than justice to a number of the arguments which were advanced on behalf of our client and in due course we would develop that if we needed to.

Your Honour commenced by asking me whether all this is really just a matter of statutory construction.

HER HONOUR: Well, it is the meaning of the word "relate" you say it comes down to.

MR JESSUP: Yes, in that sense, yes.

HER HONOUR: Well, that is a matter of construction, is it not?

MR JESSUP: Yes, it is, but it might be necessary to construe that word against section 51 of the Constitution as to whether "relate" in section 5(3)(b) picks up the expression "with respect to" that we find in section 51 and, in our submission, of course, it could not go any further than that. So, it is not simply a matter of saying what "relate" would mean standing alone, as it were, it is question of saying what does "relate" mean when we know that it cannot say more than "with respect to". There are other aspects, of course, your Honour. It may be - - -

HER HONOUR: Is that argument reflected in your draft order nisi?

MR JESSUP: Yes. If your Honour has the outline of argument that was filed on Friday, there was an amended order nisi attached to that, I believe.

HER HONOUR: Of 15 November, yes.

MR JESSUP: There is, your Honour?

HER HONOUR: Yes, I have it.

MR JESSUP: The particular point is dealt with in ground 2, particularly subparagraph (d), and then in the remainder of the terms of that ground.

HER HONOUR: I would not have read it that way.

MR JESSUP: Well, perhaps it does not fully illuminate the constitutional - - -

HER HONOUR: Or even the construction point.

MR JESSUP: Well, your Honour, it is a ground. It is not an argument and it - - -

HER HONOUR: No, but were I to remit or even were I to say there will be no remitter, it would be important for me to know what the issues are that are raised by the order nisi.

MR JESSUP: Yes.

HER HONOUR: And I would not have read ground 2 as raising either the meaning of the word "relate" or the relationship required for the purposes of section 5(3)(b), nor would I have read it to say that it is - if it is an issue, that to the extent that "relate" is a meaning of wider import than "with respect to", that 5(3)(b) was unconstitutional.

MR JESSUP: Well, that is an observation that we must take on the chin, your Honour, but that is certainly what was - it is within the way we would want to develop that ground wherever we should be arguing it. It is more specifically the alternative part of ground 2 that starts at the foot of page 3 of the draft and goes to the top of page 4.

Your Honour, the other grounds, if I could just take you to them very, very briefly: the first ground is something that your Honour will appreciate the force of, in our respectful submission, having constituted part of the majority in the Financial Clinic Case. Generally speaking, when one is talking of "industrial disputes", we start from the proposition prior to the Metal Trades Case many, many years ago that a union can raise an industrial dispute on behalf of its present or future members. Then Metal Trades told us, "No, it can also raise the industrial dispute on behalf of anyone within the class of employees whom it represents as party principal."

Kirsch's Case and Financial Clinic then tell us that the reason that is so is because its present members in their present employment with someone other than the recipient of the log of claims have an interest in making sure that other people are not employed at lesser conditions. There are two particular angles to that which arise in this case and which perhaps have not been considered previously by this Court. The first is that this is not an industrial dispute as such. It is said to be an industrial issue and there will be a question whether that type of jurisprudence attaches also to an industrial issue.

Now, one quick answer might be, it does not because you do not even need a dispute when you have an issue, but if you look at the Act the Commission has to conciliate the issue, it has to hear and determine the issue and treat the issue as a dispute within the Act. The second particular angle to it, your Honour, is that although the seafarers in question here were ostensibly within the eligibility coverage of the unions, and to that extent in a conventional sense they would be in the realm over which an industrial demand could be made. Nonetheless, they were only working in the circumstances that they were because no other ship was available for that purpose.

I do not know whether your Honour has sufficiently grasped the way the permit system under the Navigation Act works but, broadly speaking, the system is this: that you have licences issued by the Minister to operate what is called the coasting trade. You cannot operate the coasting trade unless you have such a licence, with some exceptions including the one in which our client finds itself, but coming to that in a moment. You cannot operate the coasting trade unless you have a licence.

If you do have a licence and operate the coasting trade then, in effect, you have to pay Australian industrial wages and conditions and there is a provision in the Navigation Act that says that the presentation or the production of an award would be, prima facie, a case of what those conditions are.

You then get our client's situation, your Honour, in which we do not have a licence. We are operating under permits which are granted under section 286. Those permits can only be granted if the Minister is satisfied that there is no vessel available which could conduct the particular service, that is, the particular trade from point A to point B. Our point here, your Honour, is that in those circumstances it cannot be said that the unions representing seafarers on other vessels had any legitimate interest in the Financial Clinic sense which was threatened by our client's employment of other persons on other wages and conditions, and therefore, we would submit, that it was not an industrial issue. That, your Honour, is the first ground.

The second ground I have already mentioned to your Honour, but it covers not only the question of what "relate" means in the context of section 51 of the Constitution, it covers also the general proposition that this relationship which the Commission sought to regulate was not sufficiently connected with Australia, as a matter of construction for the legislation to apply.

The third ground is the one which relates to the construction of the provisions of the Workplace Relations Act in the light of the Navigation Act and your Honour will have seen what we say in that respect is that the Navigation Act provides detailed provisions for vessels which are either operating in the coasting trade and/or are registered in Australia, and there are a couple of other connections there which do not apply in this case. When you look at that in the light of the conventions you will see that the conventions provide, essentially, for ships to be flagged in various countries and the country of the flag of a ship has responsibilities under each convention for the administration of the ship and there are provisions for people on board these ships to be covered by agreements with the International Transport Federation. The people on this ship - and this is in the affidavit, your Honour - are covered by agreements with that federation.

Our submission, your Honour, would be that in those circumstances there is a legislative assumption that the Workplace Relations Act provisions do not extend to that kind of a situation, that is to say, a foreign-flagged, foreign-crewed, vessel.

HER HONOUR: Well, that argument will not go very far, will it? You are relying on the Navigation Act. When was it most recently amended?

MR JESSUP: I would not know, your Honour, but it has been amended on a very regular basis.

HER HONOUR: Yes, but if I look just at the dates there, why would not the Workplace Relations Act 1912 override, if you like, it being a 1996 Act, the provisions of the Navigation Act ? Why would you look to a 1912 Act to construe a 1996 Act?

MR JESSUP: Your Honour, one reason would be because the 1912 Act deals with a specific situation and the Workplace Relations Act deals with industrial disputes and issues generally. Another reason would be that when the provisions of the Workplace Relations Act upon which the Commission relied were first introduced, that is to say the industrial issue provisions, that was in 1952, and they were actually introduced into the Navigation Act at that time. At that time we would have submitted that there would have been a very clear argument for a construction of the provisions of the then Conciliation and Arbitration Act - I am sorry - for a construction of those new provisions in the Navigation Act that made them harmonious with the scheme of the Navigation Act as a whole. In 1956 they were brought into the mainstream Conciliation and Arbitration Act, and since then the changes have been terminological ones or plain English changes and would not have affected the meaning.

The final point that we make, your Honour, is a Gosper v Sawyer point. In Gosper v Sawyer there were proceedings in the New South Wales Industrial Commission, proceedings in its Unfair Contracts jurisdiction, I believe, in which it was sought to make an order that would have the effect of altering the provisions of a trust or of altering the obligations of trustees under a trust which existed in Victoria and was regulated by Victorian law. For that purpose, the proceedings were served upon the trustees in Victoria and in Gosper v Sawyer this Court said that that could not be done because it constituted extraterritorial service of the New South Wales process, and there was no provision for extraterritorial service in the legislation and, therefore, there was no jurisdiction.

Now, in this case our client was served - if that is the right word - at its registered office overseas in the Barbados.

HER HONOUR: But is there not a fundamental difference here? Were we not talking about service as the foundation for jurisdiction in Gosper v Sawyer and in the ordinary court sense, as distinct - whereas service is not ordinarily the foundation of jurisdiction in the Commission.

MR JESSUP: Your Honour, that was what was held against us. It was held that we were talking about a fundamental distinction, and the Commission followed one of its earlier decisions in a case called ISM - International Ship Management - and we have referred to that in our outline. Your Honour, that really is the point that we want considered by this Court. We would submit that there is not a fundamental distinction.

Once the Commission has determined that there is an industrial dispute or an industrial issue, it can exercise powers of coercive nature such as the power to order people to come to a compulsory conference. The process on which it is engaged which involves the assumption of jurisdiction over an overseas company is analogous to what the Court was considering in Gosper v Sawyer.

I accept, your Honour, that on the face of it there is some attractiveness in saying it is really only a matter of natural justice and the Commission is quasi-legislative and things of that kind but we would submit that these are inter partes proceedings in the Commission. It may perhaps be different when the Commission was acting of its own motion but it was not. The proceedings had to have an applicant and a respondent, and they did have. The way the respondent got there was by a process which we would say finds no legitimate legislative foundation in the Act.

Your Honour, I could not fairly contend that that fourth ground is something which would justify the matter being kept in this Court. So, perhaps - I do not know how far your Honour wanted me to go to develop the case for the - - -

HER HONOUR: It is a matter for you. I thought I was here today to hear an application for a stay but you seem to have strayed much beyond that.

MR JESSUP: Your Honour, we believe that this is the application for an order nisi. Your Honour's power to grant a stay is in Order 55 rule 10.

HER HONOUR: Yes. But that is what I thought I was here for today but - - -

MR JESSUP: You would grant that stay - - -

HER HONOUR: Only if I granted the order nisi, you would say.

MR JESSUP: Only if your Honour granted the order nisi.

HER HONOUR: Yes, I think that is right.

MR JESSUP: And you would not grant the order nisi if you were of the view that it should go back to the Federal Court. So, really, that is where we get to the present point. Has your Honour had a chance to read the outline which we filed?

HER HONOUR: Yes.

MR JESSUP: Your Honour, insofar as the merits of the order nisi are concerned, I believe that I have developed that to the extent that I want but in doing so I am assuming that your Honour is at least broadly familiar with our points as referred to in the outline.

With respect to the stay, we really - perhaps I can go back a step. Many years ago when industrial orders nisi were granted ex parte, then the existence of an order nisi would usually persuade the Commission that it should not proceed further in proceedings in which its jurisdiction to be doing so was seriously under challenge and had been the subject of a prima facie consideration by a member of this Court. It is a little bit different now in the sense that we find ourselves in contested proceedings and we also have asked the Commission to withhold further proceedings until this matter is resolved, but the Commission has taken the view that it will proceed unless it is stayed from doing so by this Court or the Federal Court.

Your Honour, it is the Commission's jurisdiction to proceed in the very hearing in which it is engaged which we challenge and which we say we have an arguable case is deficient in a number of ways. It is not as though any action by our client is threatening long-established practices or the status quo. This is an application in the Commission by the unions to bind our client to an award by which it is not presently bound. If it is bound by that award, it will necessarily have to make changes to its industrial relationships if it is to comply with that award.

As the material shows, it is already bound by an agreement with its seafarers and an agreement with the International Transport Federation. If, at the end of the day, all of our attempts to resist this award are unsuccessful, then it may be that all these eggs will need to be unscrambled but we certainly do not want a position in which, without this Court or, if it should be, the Federal Court having an opportunity to consider the jurisdictional points that we raise, we find ourselves bound by two different industrial instruments. We have the International Transport Federation agreement; we would have the award of the Industrial Relations Commission, then we might ultimately prove successful. So, there is a very strong argument on the basis of convenience for staying further proceedings.

Lest it be said, your Honour, that it should be a matter for the Commission to consider whether the final act of making an award should be made that in the meantime the time might as well be used to have the proceedings in the Commission. These proceedings, on our present instructions, will be involved, they will be lengthy and they will be expensive. That will be the case for our client and we anticipate it will necessarily be the case for the unions as well because there are arguments which our client would wish to put to the Commission based upon the section of the Act which empowers the Commission to determine to go no further in the public interest - section 111(1)(g).

Then, if that argument is unsuccessful, there will be questions as to whether all of the terms of the award are apposite for application to an overseas company whose crew members are resident elsewhere. Without going into any detail in that, the leave provisions are very different in the International Transport Federation agreement from those presently found under this award.

If we have to give people quite different leave from that that they now have, where do they take the leave? What are our obligations? Are we supposed to make sure that people remain on holidays for a certain number of weeks in the Ukraine? There are issues which will inevitably need to be addressed and the proceedings, we would contend and we assert, your Honour, will be very involved. Now, the position is that if our jurisdictional submissions should be successful, not only will those proceedings have been pointless but they will have been beyond jurisdiction and that is no light matter, in our respectful submission.

So, your Honour, our submission for your Honour this morning is that you should keep the matter in this Court, you should grant an order nisi and you should make the stay which we have sought. Your Honour, I think it is probably appropriate that I should say nothing further at this stage. I am not saying I want to see which way the wind blows but it might help to see whether any of the propositions that we put are subject to serious contest and, if so, at what level. Would that be convenient, your Honour?

HER HONOUR: Yes, thank you. Yes, Dr Bell.

MR BELL: Your Honour, we, like your Honour, had been under the impression that this morning's application was simply for a stay and we were a little surprised when, very late on Friday afternoon, we received submissions on the more substantive points. We have sought to respond to those with a short supplementary set of reply submissions which I think may have gone through your Honour's associate this morning.

HER HONOUR: This morning, yes.

MR BELL: Your Honour, my clients' position is to oppose the stay and if the route by which my friend seeks a stay is the making of an order nisi and then additionally overcoming the exceptional threshold of granting a stay, it is necessary to oppose the making of the order nisi now. We do. So, we oppose the stay. We say there are really two possibilities which arise: either a remitter of the matter to the Federal Court or, alternatively, as has been done in other cases in this Court, simply standing over the notice of motion and then adjourning its hearing pending the hearing by the Commission of the variation application on its merits, because although - - -

HER HONOUR: Now, why is it necessary for a separate 111(1)(g) proceeding? Why would it not all be caught up in one, in the Commission?

MR BELL: We had, your Honour, understood, essentially, that the main issue between the parties was jurisdiction. It was in the course of the hearing of the jurisdictional challenge that Mr Hatcher, then appearing for the prosecutor, said his client wished to make submissions on the merits. What is significant, your Honour, is that the Commission, towards the end of their decision, indicated a provisional view in favour of varying the award to add CSL to it. Does your Honour have a copy of the decision? I think it is in exhibit DL-3 to the affidavit of Mr Lloyd of 30 October 2002.

HER HONOUR: Yes. Page of that decision?

MR BELL: Picking up at page 41, your Honour, and then paragraph [106], the matter which is not insignificant:

The evidential material relied upon by Mr Hatcher and the submission he put . . . are readily transposable as considerations going to the merits of the application to vary.

In other words, much the same material as was deployed before the Commission is to be redeployed, apparently, on the merits in the form of statements. Mr Hatcher did say he wanted specifically to be heard on the merits. And then [107]:

in the interests of expediency the appropriate course is to indicate a provisional view but allow and require the parties to show cause before Raffaelli C against the determination we propose.

And then the provisional view is there set out.

Now, that is significant, your Honour, because we have the Commission with a provisional view expressed and we know from the other affidavit filed in these proceedings, that is the affidavit of Mr Seck of 7 November 2002, that the Commission has made directions. The directions were consented in by Mr Hatcher whereby CSL's evidence is due to be filed on the merits on Wednesday of this week. Orders were made on 31 October for the evidence in support of the - going to the merits of the variation to be filed within 21 days, which in my calculation is Wednesday of this week. That is to be found, if your Honour needs a reference, in the transcript which forms an annexure to Mr Seck's affidavit towards the end of the transcript passage, and the Commission has set down 10 December as the first day for the hearing of that matter.

Now, whether or not it takes eight days, as has been put in the affidavit, comes as a bit of a surprise to us given that the material is going to be, as we are told, in the form of statements and much of it will be tracking the same ground but, be that as it may, just as my learned friend says, "Well, those costs may all be thrown away and quite unnecessary", if the matter is before this Court and there is a finding that jurisdiction does not exist in the Commission, we seek to make the point that so too may the costs of the High Court proceedings be wasted and, indeed, the matter moot if CSL succeeds, as no doubt it seeks to succeed, in opposing the variation of the award. In other words, the matter is really not yet ripe for determination in this Court. That is why one of the possibilities I put to your Honour in opening in opposing the stay was to simply adjourn the notice of motion before your Honour today to a date soon after the Commission has entertained the merits application.

On that occasion, that adjourned occasion, it would be appropriate for a single Judge of this Court, assuming that the variation is made on my clients' application on that occasion - not today but on that occasion, it would be, in our submission, appropriate for a member of this Court to entertain, one, the question of whether the order nisi ought be made and, two, whether any stay should be granted.

An order of that kind was made - there is no doubt your Honour has power but by way of example, an order of that kind or not dissimilar was made by Justice Kirby in the case of Re Turner; Ex parte Homestead Award Winning Homes Pty Ltd [1996] HCA 11; (1996) 70 ALJR 562. I can provide your Honour with just the report of that case. One sees from the orders the course followed by his Honour was to, in that case, direct that the application "be made by notice of motion to a Full Court", but to adjourn the hearing. It is a variation on that sort of order that is one possibility, as we would apprehend it, for your Honour today.

Can I then turn to address the reasons against the making of any order nisi, really going to what we respectfully submit are the very weak arguments presented for the substantive relief, noting that even if these matters are said to be arguable, they would not, in any event, be of sufficient force to warrant the granting of a stay and that distinction between the arguability of matters and their perceived strength was a point made by his Honour Justice McHugh in the Nurses Case which I will take your Honour to, if necessary, in a moment.

Much of what fell from your Honour in the interchange with my learned friend we would embrace as well as referring to our written submissions on the point. At the heart of the prosecutor's case would seem to be the statutory construction argument. The argument does involve, as the Commission correctly pointed out and as your Honour observed, a reading down or a reading into the Act of words of limitation which do not exist. We made the point before the Commission and the Commission - - -

HER HONOUR: Well, except in relation to the word "relation" in 5(3)(b).

MR BELL: Without wishing to cavil, your Honour, I was there. It is not an argument that I recall.

HER HONOUR: I did not notice anything about it in the decision when I read it either.

MR BELL: No, it is not an argument I detected in the draft order, either the original or the amended, but in any event, on that point, your Honour, we drew the Commission's attention to and the Commission referred to a number of passages from a number of cases, including decisions of your Honour about the principle that court or tribunals powers, jurisdictional powers in particular, should be broadly construed. There is a passage in the joint judgment in the Owners of the "Shin Kobe Maru" Case 181 CLR and I think your Honour said much to the same effect in the Knight v Special Assets Case about the power to make - - -

HER HONOUR: We were talking about courts there though.

MR BELL: That is true. We put it by analogy though.

HER HONOUR: But it is a definition and ordinarily you proceed on the assumption that a definition says what it means and means what it says, I suppose.

MR BELL: That is so, but we would add to that that in the context of the powers of a body such as the Commission, by way of analogy with what the Court has said on a number of occasions in relation to courts' powers, one would expect them to be broadly construed. One of the points your Honour made is that a court, and no doubt the Commission, is expected to act in accordance with rules of natural justice which is a further reason which is in favour of reading generously the powers of the Commission.

Then, your Honour, there is another argument which has been put. The second argument as I understood it goes to the sufficiency of connection. That really is at least in part a factual matter which is another reason why the course I proposed of adjourning the notice of motion pending the outcome of the variation hearing may well be an appropriate one, especially bearing in mind what this Court has said about separate questions and matters going forward on agreed or assumed facts which is not necessarily the ideal way to go forward.

As we read the affidavit of Mr Seck, a vast volume of material is proposed to be put before the Commission which will relate, amongst other things, one would expect, to this connection question. I do not think I need to take your Honour to Mr Seck's affidavit but it is an affidavit which, whether or not in terrorem says that "a lot of material will be put before the Commission against the variation, including evidence about the economy of the Bahamas", et cetera.

Now, if that is so, your Honour, that question of sufficiency of connection which is raised, I think in the second paragraph of the draft order, is a factual question which will be affected by and turn upon what the Commission decides in light of the material before it on the merits hearing. But even on such facts as has been agreed or as were agreed for the purposes of the first leg of the hearing, your Honour, what one has in this case is - and this is in the judgment again - on page 9 where the Commission has set out the agreed facts - page 9 of exhibit DL-3, paragraphs 9 and 11, in particular, your Honour, make it abundantly clear that the vessel in question is operating along the Australian coast, transporting the goods of Australian shippers, for reward.

Then, in addition, your Honour, and perhaps contrary to the status quo submission put my learned friend, in paragraph [23] there is some additional material which was put before the Commission. It is on the following page of the actual decision where the additional contention was put. "The gist" being stated to be:

that steps to secure business of shipping a standard cargo item were made by CSL Pacific under contracts from an Australian shipper. The offer, if accepted, would have displaced an established contract with ships licensed to operate in the coasting trade.

And, of course, there is a distinction between ships so licensed and this ship operating under the ministerial permit.

So, it is difficult, subject, perhaps, to this "with respect to/relating to" argument, to see much strength at all in this argument based on alleged inadequacy of connection or insufficiency of connection, even on the agreed facts. But as I have sought to say that is a matter which this Court may be in a better position, if necessary, to look at once the full factual picture which CSL obviously wants to put before the relevant body is determined.

The next argument your Honour advanced and another, with respect, weak argument is one relying on the Navigation Act and we embrace what your Honour said about the point of construction as did, unsurprisingly, the Commission.

The final point then made by my learned friend related to the Gosper v Sawyer point. There is an obvious and fundamental distinction between a court's jurisdiction which depends upon service - services the foundation of a court's jurisdiction and jurisdictional considerations relevant to a body such as the Commission with award-making power. We say that the attempt to call in aid Gosper v Sawyer was, again, with respect, quite misconceived and overlooked that fundamental distinction and that it is perfectly obvious that the Commission's power does not depend on service. There are some service provisions for the service of documents, not of process, in the regulations or in the Rules, and they go to discharging the Commission's natural justice obligations.

The corollary of this service argument is that a company in the position of the prosecutor would be able to choose whether or not, notwithstanding, ex hypothesi, it was engaging in Australian trade or commerce, would be able to choose, by dint of a decision, whether or not to enter an appearance following through the service analogy; whether or not it was to be bound by an award, and that is, with respect, a nonsensical suggestion that that consequence could flow; that an important body such as the Commission's awards could be circumvented by unilateral decision whether or not to appear.

So, they are, in addition to what we have put in the short reply document, all reasons against the making of the order nisi.

HER HONOUR: Now, what about remitter to the Federal Court which nobody seems to want to contemplate?

MR BELL: Your Honour, we do not oppose that either. We put that as one of the two possibilities, both of which are consistent with refusal of a stay. One of the decisions which is obviously of importance in the Commission proceedings was the decision of this Court in Foster's Case [1959] HCA 10; 103 CLR 256. We do not apprehend our learned friend to be challenging that decision. So, it is not a case where High Court authority is really being challenged but it is, nonetheless, a case which raises, if I can put it in that way, Foster's Case in a very direct way.

There is some apparent difference in the emphasis in the various judgments in Foster's Case in relation to the question of the extent of the connection or the sufficiency of the connection required and so that it may be thought desirable, given that the subject matter of this dispute is a matter of some public important, in my submission. It may be appropriate, in those circumstances, that it stay in this Court. But my clients are most anxious too for a course to be followed which results in the relief which it seeks and which the Commission has provisionally indicated it is inclined to grant being made as expeditiously as possible.

All of this, whether it goes to the Federal Court or stays in this Court, might be moot if my learned friend succeeds in the Commission in their substantive opposition. That is the reason why adjourning the matter is one possibility and then it may also be appropriate to consider the remitter question. In other words, once the Commission has - on the assumption that it makes the variation - made that variation and published its reasons for doing so, that may be the appropriate occasion to revisit the question of remitter, stay and order nisi.

Your Honour, there were a few discretionary matters which my learned friend put at the conclusion of his submissions. He suggested that ordering a stay would be to preserve the status quo. We submit that is not right, especially in light of the provisional view indicated by the Commission. In other words, the status quo prior to my friend's application is that the Commission was set to, subject to receiving this further evidence his client wants to put forward, vary the award. There has been, as we have put in our principal submissions, no - - -

HER HONOUR: I presume there is no question of retrospective operation of any award that would be made in this case.

MR BELL: That is what I was about to say. What Mr McNally invited on the occasion when a stay application was made before Commissioner Raffaelli was such an undertaking to be given.

HER HONOUR: Where do I find that?

MR BELL: In the affidavit of Mr Seck, your Honour, of 7 November 2002 there is transcript that forms the final annexure to the affidavit and then - this is not numbered, your Honour, but I think it is probably going to be best - - -

HER HONOUR: Well, I see on the last page Mr McNally says "Only if there's a stay." Will I find it somewhere in relation to that?

MR BELL: If your Honour could - sorry to do this to your Honour, but eight pages in from the - not my affidavit, your Honour.

HER HONOUR: Eight pages in.

MR BELL: Eight pages in.

HER HONOUR: One day this Court is going to work out some basis on which we can make sense of the affidavits.

MR BELL: There are paragraph numbers, your Honour. It is paragraph 58, sorry.

HER HONOUR: Yes, thank you. Yes.

MR BELL: This is Mr McNally following Mr Hatcher:

What my friend has not said on behalf of his client, and I invite him to do so, is that in the event of the proceedings in the High Court resulting in a finding of jurisdiction in the Commission. His client would consent to an award operative from today, which speaks to the position that I put -

et cetera, and then Mr McNally pointed out at paragraph 60 that:

There are some difficulties in relation to retrospectivity . . . My friend put forward that it could be made retrospective but what he didn't say was that we wouldn't oppose that course.

And then Mr Hatcher says:

Clearly I don't have instructions to that effect but one anticipates what the unions submissions would be in the event that we were unsuccessful in the High Court.

There was an opportunity to give the undertaking. The opportunity has remained. Nothing has fallen from my friend about any such undertaking. All that has fallen from my friend is that there will be difficulties in complying with the award and one may well imagine that were my clients ultimately to succeed and the question of retrospectivity arise, CSL would make just the sort of arguments that Dr Jessup made to you today, your Honour. "Well, it should not be made retrospective because it was uncertain and my clients had difficulty complying with the international award and an Australian award", et cetera, but thus far at least there is silence - and we made this point in paragraph 17 of our original submissions as well, your Honour. So another powerful reason.

Then, thirdly, again relating to the status quo, there are related proceedings before the Commission relating to another CSL ship, foreign crewed now, which - - -

HER HONOUR: Let me take you to paragraph 17:

The unions do not seek to alter the contract of employment of the crew.

Now, I know that is based on what this Court has said, but you do seek to alter the wages and working conditions of the crew. Yes, paragraph 17 of your original written submissions. Your angels on a pinhead argument, which has good legal authority.

MR BELL: Yes. The paragraph 17 I was referring your Honour to was in our submissions filed this morning.

HER HONOUR: Well, have a look at the paragraph 17 of 17 November - that is today. Yes, that is today.

MR BELL: Yes.

HER HONOUR: Yes. Well, you do seek to alter their wages and conditions.

MR BELL: Yes, that is right, your Honour, and - - -

HER HONOUR: And do you seek to alter them retrospectively?

MR BELL: Yes. Well, our principal submission is this your Honour - I hope, as gleaned from what I have been saying, is that we want the award to be varied as soon as possible. We seek the award to be varied as soon as possible, your Honour, and the Commission is set to embark on that hearing on 10 December and presuming no stay is granted, no doubt it will take effect from the date on which the variation is made.

The alternate prospect, your Honour, is this: assume the matter either stays in this Court or the Federal Court or goes to the Federal Court, for that matter, and is stayed, there will then obviously be a time period before the matter can come on for hearing. If it is in the Federal Court, that will be subject to appeal in any event. Assume the Commission's decision is upheld, as we submit is likely, based on the strength of the arguments put, what would then happen is no doubt my learned friend or Mr Hatcher, whoever has the carriage of the matter at that time, would then say to the Commission - and this may be 12 months or 18 months on - "All right. Now we want to tell you the reasons why the award should not in any event be varied, notwithstanding the High Court or the Federal Court has confirmed that you do have jurisdiction." And that decision or that hearing will no doubt be potentially subject to further challenge, either in this Court or by way of an appeal to the Full Bench of the Commission, if it stays before a single judge.

So what we would have is a significant time delay in circumstances where it is, from my clients' perspective, a very important matter. These are former ANL ships formerly manned by Australian crews, in the same trade and which are involved, as your Honour has seen, indubitably in interstate trade and commerce.

Just on the question of timing, can I give your Honour a reference and provide your Honour with a short judgment of Sir Gerard Brennan in Re Griffin; Ex parte Professional Radio and Electronics Institute of Australia where a stay was sought and his Honour indicated that:

Exceptional circumstances need to be shown to warrant the making of an order by this Court -

staying the decision of a member of the Commission -

before it determines the legality of an impugned decision, which affects the merits of a problem in industrial relations.

His Honour developed that discussion at page 42 of the report where just under the collection of cases he indicated that:

There are sound reasons for this rule.

That is, the rule that exceptional circumstances were required. They are there set out. I will not read them out to your Honour, but they make absolute commonsense.

So against that test of exceptional circumstances, all that we really apprehend to be put in favour of the stay - and this was the word my learned friend used - are matters of convenience and the affidavit material before the Court, Mr Seck's affidavit, is all about cost. Now, that is going to be a consideration in every case. We think it is greatly exaggerated, the eight-day estimate, given that the material is going to be on statements and is going to cover at least some of the same ground already traversed, but in any event costs are going to be incurred one way or the other and they may be unnecessarily incurred one way or the other. In those circumstances there is no particular reason or special reason why that consideration merits the description "exceptional", especially in the context of, one, the absence of any undertaking as to retrospectivity and, two, the public interest considerations in the Commission making an award, which it is, it is indicated, inclined to make. May it please the Court.

HER HONOUR: Yes, Dr Jessup.

MR JESSUP: Your Honour, we would oppose any adjournment. The authority to which my learned friend referred you, the - - -

HER HONOUR: Re Turner; Ex parte Homestead.

MR JESSUP: Yes. No, your Honour. I was really not going to refer to that. I was going to take your Honour more to the judgment of Justice McHugh in Re Australian Nursing Federation [1993] HCA 8; 67 ALJR 377 which is, I believe, in the folder of materials that we have supplied to your Honour. This was one of a number of orders nisi which ultimately led to this Court's judgment in Re AWU. On page 382 in the second column under the heading "Orders nisi", in the second paragraph under that column his Honour said:

To obtain an order nisi for a writ of prohibition of certiorari, a party must show that he or she has an arguable case that the tribunal to whose proceedings the writ is directed has gone beyond its jurisdiction. The respondents concede that the applicants have an arguable case. However, they contend that the applications are premature and should be refused. As Brennan J pointed out in Re Griffin -

which was the other case my learned friend handed up -

although this Court is bound to exercise the jurisdiction invested in it by s 75(v) of the Constitution, it may be premature to grant an order where the applicant has refrained from applying to the Commission for relief which is available at its hands.

Your Honour, we are not aware of any case in which this Court has simply adjourned an application for an order nisi where the argument has been fully heard and decided by the Commission at the jurisdictional level. Admittedly, what Justice McHugh was concerned about was not this point but, rather, it was there submitted that the applicants had rushed off to the High Court before giving the Commission a chance to assess its own jurisdiction and for reasons which he developed he decided not to adjourn the matter on those grounds.

Your Honour, the application for an adjournment is, in a sense, in opposition to our application for a stay under another name. As we said in our outline, if this Commission should make a finding of an industrial issue, which it has not yet done, then that would be binding under section 101(3) and we would then be prejudiced at a later stage. If this Commission should make an award which the applicants ask it to do - and the whole point of their opposition to the stay is because they want that award - then section 150, the privative provision of the Act, would cut in and we would be significantly prejudiced there.

In our outline we referred to what Justice Toohey said in that respect. I will not ask your Honour to read it, but his Honour took the view that that was a consideration which would be inclined to move a High Court Justice - that was in paragraph 30 of our outline, your Honour - to grant the stay. So, your Honour, what we have here is that we have actually developed this argument before the Commission unsuccessfully and now the Commission proposes to go ahead on the merits and to do so against the submission - - -

HER HONOUR: That puts it a bit highly, does it not, Dr Jessup? I mean, what is happening is you are going to run what is in substance a 111(1)(g) argument against the making of an award.

MR JESSUP: Yes.

HER HONOUR: Well, that has to be determined.

MR JESSUP: Yes. That is the merits though, your Honour. That is part of the Commission's process in a matter which would otherwise be and which is within jurisdiction. In fact, it has been held in this Court that section 111(1)(g) is the only basis upon which the Commission can on a discretionary ground decline to exercise a jurisdiction which it has and we submit that it is a serious matter if the tribunal proceeds when its jurisdiction is under challenge. Your Honour, it is the actual assumption of jurisdiction which we challenge, not merely the outcome in terms of an award or an order.

On the matter of retrospective operation, at the discretionary level, may we say that it is not as though the people, that is to say the employees in question or anyone who speaks on their behalf is seeking protection of the Commission. It is not as though they are bereft of what might be described as conventional industrial coverage. Your Honour, one of the exhibits to the affidavit of David Lloyd is the ITF agreement. Does your Honour have that before you? This is exhibit F to the agreed contentions of fact.

HER HONOUR: This is the affidavit of 30 October?

MR JESSUP: Yes Your Honour, one of the exhibits to that affidavit was the agreed contentions of fact. That is exhibit DL-2. Then you will find a lot of pages after that which have numbering at the foot of them. It might be the best way to turn up to exhibit F. In page number 46, or it might be 646 - no, I think it is 46. Does your Honour have that?

HER HONOUR: I am getting close. Yes. Attachment F.

MR JESSUP: The ITF special agreement. Your Honour will see from page 48, that is two pages over, there is schedule 1. The third vessel in the list is the CSL Pacific, which is this vessel. Your Honour will see that this was an agreement entered into with the International Transport Federation on 7 June 2001. If your Honour would turn over, your Honour will then see the agreement itself set out. It is a very substantial document. It covers something like 80 or 90 pages, I think, your Honour. Could I ask your Honour to turn, just by way of example, to what is paginated with a stamp at the foot as page 65. There you have the monthly pay rates of the employees on this ship in US dollars.

I just give your Honour that as an example. I do not want to try your patience by taking you through this agreement. In fact, I doubt that I could on my present understanding of it. But the point we make is that it is not as though the non-application of peculiarly Australian terms and conditions of service is going to leave these people adrift. The question is not whether these people should be protected by industrial coverage, because they are. The question is whether Australian standards should be applied to them.

Now, that is a very important question, of course, in the Commission, but when one comes to consider discretionary matters and what might broadly be called the balance of convenience, it is, we submit, a powerful consideration that they are already covered by something.

HER HONOUR: I do not know that a stay is granted simply on the balance of convenience in this Court.

MR JESSUP: Well, I did not want to perhaps - I meant to say something like the balance of convenience. The interests of the parties and the interests of those who would be affected, third parties and things of that kind. I notice my friend has not put it on this basis. He has not said that these people need coverage, but the issue of retrospective operation necessarily invokes that kind of concept.

Why we are not minded to say anything by way of an undertaking in relation to retrospective operation, your Honour, is that it is quite an open-ended issue. There would be so much involved, as my friend suggested, in reconstructing backwards how the Australian award would have affected the existing agreement, that it would be a leap of faith really to give such an undertaking and to pretend that the question should be involved on that basis.

We say that there are serious questions, your Honour, that need to be resolved. Obviously everyone would like them to be resolved instanter but this is clearly an important case which is going to have to be resolved at a very high level. My learned friend tended to imply that there might be appeals from the Federal Court. The matter will, of course, be dealt with by a Full Court in the first instance because it comes from a Full Bench of the Commission, but on our present instructions the matter is viewed sufficiently seriously for our clients to presently be unaware of any reasons why they would not want to test it in this Court anyway, one way or the other.

Now, the only other thing I wanted to say, your Honour, is to comment upon or to make a submission about my friend's reference to Griffin. If your Honour would turn to page 39 of the report in Griffin that my learned friend handed up, Justice Brennan said that:

Commissioner Griffin decided to vary the Award by increasing the rates of pay and wage-related allowances by 3 per cent and by $10 per week, the variations coming into effect from the first pay periods commencing on or after -

particular dates. So the Commission had made its industrial judgment on the merits and it was for that reason that Justice Brennan said on page 42:

A stay of a Commissioner's decision is exceptional . . . Decisions of the Commission are made in a climate of industrial relations and of economic conditions which presents a multitude of considerations which the Commission must evaluate in deciding where the merits lie.

Now, the point is that in this case we are not seeking to stay any outcome by way of an order or decision. We are simply seeking to stay the proceedings on jurisdictional grounds. In the cases to which we have referred in our outline, your Honour, there is a distinction, as we apprehend it, applied by the Justices of this Court between staying of an order - and relevantly in the Griffin context we could include a decision in that - on the one hand, and the staying of proceedings on another. The Court has taken the view that you need a strong case to stay an order or an outcome which the Commission has actually arrived at as a result of applying its own jurisdiction, whereas that, your Honour, is not this case.

Your Honour, it is a minor matter of detail. It has been pointed out to me that under Article III of the ITF agreement, which is on page 48 of that document I have taken you to before, the agreement has a 12-month life, which, of course, has expired, but Article III provides that it remains in force for 12 months and thereafter from year to year unless terminated in accordance with Article IV. So we apprehend the agreement still applies, in case there should be any question about that. If your Honour pleases.

HER HONOUR: Yes, thank you.

In this matter I propose that there should be an order nisi and that the matter should remain in this Court. However, I do not think grounds for the stay have been made out.

At this stage, substantial rights and liabilities are not affected by any order that the Commission has made. The basis of the stay seems to be directed only to the convenience of a hearing being conducted. Accordingly, I refuse the application for a stay and grant the order nisi and certify for the attendance of counsel. Perhaps you need to think about a notice under the Judiciary Act in relation to the trade and commerce point.

MR JESSUP: Yes, we will see that that is done, your Honour.

HER HONOUR: I do not know if you need it but you may need to think about it.

MR JESSUP: Yes.

HER HONOUR: Very well, that is all I need do in this matter, I think, thank you. Is that correct?

MR JESSUP: There is nothing further, your Honour.

HER HONOUR: Yes, thank you. We will call the next application.

AT 11.01 AM THE MATTER WAS CONCLUDED