Australian Nursing Federation; Ex parte - Re Munro & Ors [2003] HCATrans 373 (18 September 2003)

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Australian Nursing Federation; Ex parte - Re Munro & Ors [2003] HCATrans 373 (18 September 2003)

Last Updated: 29 September 2003

[2003] HCATrans 373

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B61 of 2003

In the matter of -

An application for Writs of Mandamus, Certiorari and/or Constitutional Relief against THE HONOURABLE JUSTICE MUNRO, THE HONOURABLE SENIOR DEPUTY PRESIDENT MARSH AND THE HONOURABLE COMMISSIONER DEEGAN AS MEMBERS OF A FULL BENCH OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION AND THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

First Respondents

THE STATE OF QUEENSLAND AND THE MATER MISERICORDIAE HEALTH SERVICES BRISBANE LIMITED

Second Respondents

Ex parte –

THE AUSTRALIAN NURSING FEDERATION

Applicant/Prosecutor

CALLINAN J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON THURSDAY, 18 SEPTEMBER 2003, AT 3.07 PM

Copyright in the High Court of Australia

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MR S.J. HOWELLS: If your Honour pleases, I appear with my learned friend, MS S.L. MOODY, for the applicant, the Australian Nursing Federation. (instructed by Roberts & Kane)

MR J.E. MURDOCH, SC: Your Honour, I appear with my learned friend, MR A.A. J. HORNEMAN-WREN. I think the position might be that I need to seek leave to appear on behalf of the proposed second respondents. (instructed by McCullough Robertson)

HIS HONOUR: Because these are prerogative proceedings, so you are not a party.

MR MURDOCH: Yes, your Honour.

HIS HONOUR: Yes, of course, you have leave. The matter before me, as I understand it, really relates to remitter, is that correct?

MR HOWELLS: That is correct, your Honour.

HIS HONOUR: Now, the applicant has no objection to remitter, is that right?

MR HOWELLS: Certainly not, your Honour. We sought it and we sought it by consent and then objection has been raised.

HIS HONOUR: Yes, Mr Murdoch.

MR HOWELLS: We had a written submission, if your Honour desires to see that.

HIS HONOUR: Yes, thank you.

MR HOWELLS: Could I hand perhaps two copies of that to your Honour. It makes just the usual points about the desirability of remitter, there being no major constitutional issue raised squarely by the proceeding.

HIS HONOUR: That is your submission, that there is not any major - - -

MR HOWELLS: We say there is not one squarely raised of a kind that would prompt the Court to consider keeping the matter, including the application for the order nisi, here in this Court and we do not see on our friend’s submissions any substantial constitutional issue raised either by them.

HIS HONOUR: Thank you, Mr Howells. Yes, Mr Murdoch.

MR MURDOCH: Your Honour, I read the affidavit of Bruce Lloyd Hayward filed on 16 September, the affidavit of Ann Allison Fitzpatrick filed on 17 September and also refer to the outline of submissions which your Honour should have.

HIS HONOUR: I have been in Sydney, Mr Murdoch. I confess I have not had a chance. If you would give me a few minutes just to read these.

MR MURDOCH: Thank you, your Honour.

HIS HONOUR: I have looked at the affidavit in support of the application for prerogative relief.

MR MURDOCH: That is Mr Rebetzke?

HIS HONOUR: Yes, but I have not - - -

MR MURDOCH: Thank you, your Honour.

HIS HONOUR: By the way, I should have said at the outset I have a certificate from the Deputy Registrar of the Court certifying that he has been informed by the Australian Government Solicitor that the first respondents, members of the Australian Industrial Relations Commission, do not wish any representations to be made on their behalf and will abide by any order save as to costs in the High Court and, if remitted, the Federal
Court of Australia. Mr Howells, you have seen a copy of the outline, have you?

MR HOWELLS: The outline? I have, your Honour, yes.

HIS HONOUR: What do you say about paragraph 7 of the outline?

MR HOWELLS: We have responded to that on page 5 of our outline in subparagraph (d) and (e), but most particularly (e). We say that in the decisions there are contained some findings about whether or not certain developments in employment relations are such as could be relied upon for wage increases. It has been indicated to us – and this would be a matter of evidence going to the affidavit material – that those conclusions will be relied upon as a bar for the future.

We say that, among other things, those conclusions were attended by error, and jurisdictional error. If those parts of the decision are quashed, then it leaves us free to be able to rely upon those in future. But we say also that there will be parts of the decision which, if quashed, would have consequences for the operation of the award.

HIS HONOUR: But you so rely upon matters in the future, would that reliance be in proceedings either for a new award or for an amendment of the award?

MR HOWELLS: It may be for new awards. The difficulty will be though, in seeking those new awards, we would be adversely affected by what has been decided against us in relation to entitlements that we say we have had prior to the making of the decision. What the two decisions purported to do, among other things, was to draw a line or create a bar for us in seeking to make any further reliance upon developments that have occurred in employment which were the basis of claims for wage increases.

HIS HONOUR: I must say I do not understand that. I would have thought if you made an application for another award, a fresh award, the making of a previous award and the findings leading to it could hardly bind the tribunal which is called upon to make a new award.

MR HOWELLS: The practice has generally been to say – take, for example, the notion of what is described in industrial jurisprudence as what they call work value change. It is said there is always a datum point from which it is measured and if that datum point is created by - - -

HIS HONOUR: But the Act does not say that, does it? Does the Act say anything about a work datum point?

MR HOWELLS: No, your Honour. These things are not some things that are provided for by the Act.

HIS HONOUR: Well, they are not law, are they? It may be the practice or it may have been what the tribunal has done - - -

MR HOWELLS: Yes, your Honour. They are simply principles - - -

HIS HONOUR: - - - but it is not written in stone somewhere in the Act - - -

MR HOWELLS: They are not enshrined as principles that emerge from the statute, your Honour, no.

HIS HONOUR: And that might be, if in fact those sorts of matters are being treated as unchangeable – I am not suggesting it necessarily is, but that might itself be a ground for an application, but that is not what we are concerned about here.

MR HOWELLS: It may be, your Honour, but so far as the award is concerned, we have foreshadowed in our outline that, if the matter is remitted, we will seek to amend the draft order nisi, the proposed order nisi, to seek relief, including by way of certiorari in relation to parts of the award. We are simply putting to your Honour that all of these questions, that is the form of the proposed order nisi and other questions about its scope, are matters appropriate to be remitted.

We should indicate, your Honour, that we understood that the application that was to be dealt with was one relating to remitter and whether all of these procedural questions, including issues in paragraph 7 – and we take what your Honour has said, it cannot be gainsaid, of course, that those matters are appropriate to be agitated before the Federal Court and if our learned friends wish to make an application then in relation to either the part or whole of relief that we might seek, then that would be better to be dealt with in the Federal Court and not take up the time of this Court.

HIS HONOUR: Thank you, Mr Howells. Mr Murdoch, what is the purpose of your affidavit material, really to demonstrate great inconvenience if the matter is prolonged? Am I wrong about that?

MR MURDOCH: To demonstrate the importance of the matter, your Honour. My clients accept that in the normal course of events the remitter would issue. However, we are greatly troubled by the poor state of the proposed draft orders nisi. Our concerns are heightened by paragraphs 18(d), (e) and (f) of my learned friend’s outline and, indeed, by paragraph 19 of his outline.

Frankly, your Honour, there is an acknowledgement that what we say is correct, that they need to do substantial repair work because, as matters stand, the proposed orders nisi are an exercise in futility. At the very least, your Honour, with respect, your Honour should, I would submit, decline to even remit the matters, send my learned friend away, let him consider the amendments that he won, let him consider the final form of his orders, then all parties will be apprised as to what is sought to be remitted.

It is an easy way out to say that the matter should not take this Court’s time up when there is an acknowledgement that great repair work is needed if there is to be any prospect of sensible orders in draft being remitted to the Federal Court.

HIS HONOUR: Mr Murdoch, I appreciate the force of what you say, but I do not think I could accede to what you have just put to me without exploring in some considerable detail all the material. Once I embark upon it, then it seems to me that it becomes an exercise that really I should not be embarking upon at this stage, not in this Court. I can tell you that I think you are much more likely to get expedition in the Federal Court than you are in the High Court.

If the course that you suggest were to be followed, the matter would then come back to me, or come back to a single Justice of this Court, and then there would have to be a consideration undoubtedly of a number of matters. That is going to take up time – that is simply in relation to remitter – and then the matter is going to have to be considered by the Federal Court or, if it remained in this Court, by the Full Court of this Court. Really, I do not see that there is sufficient reason to depart from the usual practice. I am very much inclined to remit it and all these questions can be dealt with, and it can be dealt with much more expeditiously, I think, than in the High Court. Is there anything you would wish to say about what I have just put to you?

MR MURDOCH: Only, your Honour, that, in terms of expedition, the awards are in place. There is no need to hurry. Our preference was to ensure, given the importance of the awards, that any prospective challenge be properly founded from the very start. Your Honour would not have had the opportunity to look at the material - - -

HIS HONOUR: I have looked at the principal affidavit and I must say they seem to be very fact specific. To deal with it you would have to look at the transcript in some detail, I would have thought, of the proceedings and then you would have had to have gone into the judgment or into the award and the reasons for the award in very great detail – in much more detail than I have so far.

MR MURDOCH: What your Honour says is correct. I would not pretend otherwise.

HIS HONOUR: I think there are, what, eight or nine grounds – it would be very fact specific and they relate to matters which are alleged to have happened during the hearing and subsequently to the hearing.

MR MURDOCH: Your Honour, I am sorry to take your time - - -

HIS HONOUR: No, Mr Murdoch, you make whatever submissions - - -

MR MURDOCH: - - - could I just get your Honour to take a few moments and look at the draft orders nisi as they stand.

HIS HONOUR: Yes.

MR MURDOCH: That is exhibit 5 to Mr Rebetzke’s affidavit. Your Honour, in the first of those grounds, you will see in the fourth line a reference to the matters that remain to be dealt with. Nowhere are those matters or alleged matters specified. In the second ground, which is on page 5, there is the issue that your Honour has mentioned in relation to our outline, where the challenge is solely to the reasons, not the ultimate award.

Your Honour, our concern is that if the matter proceeds it will lead to an exercise in futility in relation to awards that are extremely important and which the Commission decisions demonstrate have been the subject of much controversy.

HIS HONOUR: Mr Murdoch, the awards are in existence.

MR MURDOCH: They are, your Honour.

HIS HONOUR: The parties are governed by them.

MR MURDOCH: They are.

HIS HONOUR: If what you say is correct, the award is going to remain unchanged.

MR MURDOCH: Yes, your Honour.

HIS HONOUR: It is not a very convincing basis to depart from the ordinary practice, I am afraid.

MR MURDOCH: I cannot take the matter any further. Thank you.

HIS HONOUR: I will order that the matter be remitted to the Federal Court. Are there any orders I can or should make though, Mr Murdoch? I do not think I can. Once the matter goes to the Federal Court, it is in the jurisdiction of that court. Obviously it is highly desirable that any deficiencies in the applicant’s material be cured.

MR MURDOCH: Your Honour, it would be, in my submission, permissible for the remitter to be subject to conditions.

HIS HONOUR: Has there been an order of that kind made?

MR HOWELLS: Yes, your Honour. There is – I can help – in relation, I think, there is an AMIU matter, a decision of Justice Kirby, and there is one other, I think, that concerned the CPSU where a condition of a requirement that a document be filed or amended in a particular way take place as part of the process. I can indicate, your Honour, we would be, of course, entirely happy to undertake that we will, within 14 days or such other time as your Honour directs, file any amended draft order nisi that we seek to rely on.

HIS HONOUR: I prefer not to make an order that will bind the Federal Court, but your undertaking has been recorded and I will make it clear that I will order the remitter on the basis of the undertaking which has been given. It may be of some slight assistance to you, Mr Murdoch.

MR MURDOCH: Thank you, your Honour.

HIS HONOUR: Is there anything further then? I should reserve the costs, I suppose, or should I reserve the costs or order that the costs be at the discretion of the Federal Court?

MR HOWELLS: Well, your Honour, because of the decisions that have been made in this Court, including in Kestrel and Polites, the question where prohibition is raised, of course, the indication is that costs may flow. If, of course, the proceeding ultimately came from the Federal Court back to this Court, then it may be that a question about this application would arise and it would be best for them to be reserved, although the practice in the Federal Court seems to be, even on remitter, not to order costs in a matter under the Workplace Relations Act or so described. We would be content that the costs be reserved, your Honour, and it would seem to be the appropriate thing for your Honour to do that.

HIS HONOUR: What do you say about costs, Mr Murdoch?

MR MURDOCH: For our part, your Honour, being an industrial matter, we would be happy for it to be recorded that there be no order as to costs.

MR HOWELLS: We would be content either way.

HIS HONOUR: There will be no order as to costs. Thank you.

AT 3.29 PM THE MATTER WAS CONCLUDED