Veta Ltd & Anor v Evans & Ors S245/2001 [2003] HCATrans 748 (12 May 2003)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S245 of 2001

B e t w e e n -

VETA LIMITED (A COMPANY INCORPORATED IN HONG KONG)

First Plaintiff

CATHAY PACIFIC AIRWAYS LIMITED

Second Plaintiff

and

MARK ANDREW EVANS

First Defendant

DAVID MICHAEL HONNER

Second Defendant

BRETT KENNETH ROSEWALL

Third Defendant

DAVID BRUCE SPRONG

Fourth Defendant

CHARLES BRUCE BURTON

Fifth Defendant

Summonses

McHUGH J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 12 MAY 2003, AT 10.02 AM

Copyright in the High Court of Australia

__________________

MR R.J. ELLICOTT, QC: I appear with MR G.J. HATCHER, SC, for the plaintiffs in the action and the applicants in the summons. (instructed by Freehills)

MR R.C. KENZIE, QC: Your Honour, I appear with MR S.E.J. PRINCE for the defendants in the action, and we also have a summons. (instructed by Abbott Tout)

MR M.G. SEXTON, SC, Solicitor-General for the State of New South Wales: If your Honour pleases, I appear with my learned friend, MS J.G. RENWICK, for the Attorney-General for New South Wales, who intervenes. (instructed by Crown Solicitor for the State of New South Wales)

HIS HONOUR: What is your right to intervene?

MR SEXTON: We are intervening under section 78A, your Honour.

HIS HONOUR: Does it apply to this proceeding?

MR SEXTON: We say it does, your Honour.

HIS HONOUR: Very well, Mr Solicitor. Yes, Mr Ellicott. Mr Ellicott, let me tell you right at the start I have read the submissions of the parties, I have read the cases, and I will tell you what the difficulties I see in your way, subject to your oral argument. The first is that all these issues seem to me already before the Industrial Commission. Secondly, this Court should not and does not decide constitutional issues unless it becomes necessary, and it is fairly obvious that this case could go off on a number of non-constitutional issues. Third, experience shows that stated cases are an unsatisfactory procedure unless one has had a hearing, there has been findings made by a primary tribunal, which then states the facts for an appellate court.

Fourthly, it seems to me that there is scope for factual matters in this matter. Even if you fail on your "covering the field" test, it is possible that there are operational inconsistencies, so it is a Kakariki-type case, Victoria v The Commonwealth. If ones looks at cases like Airlines of New South Wales [No 1] and [No 2], Ansett v Wardley, there are real arguments, it seems to me, as to whether or not there is a conflict between any relevant legislation. Insofar as you rely on the treaty point, you have other difficulties given the jurisprudence of this Court and what Sir Owen Dixon said about its meaning when he gave evidence before the Royal Commission back in 1927.

The next matter it seems to me is that the privative clause, which I think is section 179 of the New South Wales legislation, cannot bar your appeals because McCauley shows, if it needed any demonstration, that any remitter would be in federal jurisdiction and cases like Hume v Palmer show that limitations in State legislation cannot prevent this Court exercising its jurisdiction under section 73 of the Constitution and section 39(2) of the Judiciary Act really shows that the privative clause could not prevent an appeal being brought to this Court.

However, one question that does concern me is whether or not the Industrial Commission is a court for the purposes of the 106 provision. Curiously, and as recently as last week, I raised with Mr Jackson in argument as to whether or not it was a court and, of course, in Tana v Baxter Justice Brennan had doubts.

Subject to hearing you on these other matters, of course, and I put these matters for your consideration, if you wanted to run an argument as to whether or not the Industrial Commission is a court for the purposes of section 44 of the Judiciary Act, I think it may be a case for stating a case to the Court on that particular issue. But, having read the parties' submissions and refreshed my recollection of the authorities, my prima facie view is that it is really a case for remitter to the Industrial Commission, but that, of course, is subject to hearing your persuasive arguments to the contrary.

MR ELLICOTT: Your Honour bypasses the Federal Court in that process.

HIS HONOUR: Yes.

MR ELLICOTT: I take it your Honour is fully aware - I think it was happening when your Honour was at the Bar, with 88F - - -

HIS HONOUR: I know.

MR ELLICOTT: - - - that the procedure in the Commission is to subject the parties to a full hearing. That is their practice. If the matter goes there, what is going to happen, because Justice Haylen on the very first day said, in effect, "Of course, what we do here is deal with the whole matter on the merits and in the course of that we will come to the question of jurisdiction and deal with these constitutional issues", which no doubt they can deal with in order to determine their jurisdiction.

HIS HONOUR: Yes.

MR ELLICOTT: But what, in effect, that would do would be to subject my clients to, in effect, a merits hearing. In the course of that the result would be that we may or may not succeed on section 109, we may or may not succeed in relation to - in fact there is authority against us in the Industrial Commission on the question whether you have to have a contract in and of New South Wales. But then we will have to get leave to get to the Full Court and when we get to the Full Court and if we are not successful we will then have to face the Court of Appeal, and in the Court of Appeal there is a decision of Justice Priestley - - -

HIS HONOUR: You do not necessarily have to face the Court of Appeal; you can come straight here.

MR ELLICOTT: Your Honour, that again is a moot question. All I am saying is that what we are being subjected to is, in effect, a maze of other issues that we should not have to deal with. There are quite distinct issues, that is, section 109 - section 106 itself of the Constitution and 107, we say, having regard to earlier decisions - and it has not been decided conclusively in this Court - make any matter that raises a State Constitution a matter that involves the interpretation of the Constitution. Then, of course, we have the question of the ambit of section 179, which quite clearly has been decided as excluding any appeal to the Court of Appeal. All that adds up to a maze of procedural and other issues which, quite frankly, our clients should not have to deal with.

HIS HONOUR: Prima facie, litigation should not be fragmented. You have litigation on foot. You have started action here. You raise a number of questions which may be difficult to say are within the jurisdiction of this Court at this stage unless you can bring them under the associated jurisdiction. But what if you lose on the 109 point, then you have to go back? One of the difficulties are the matters that are set out in what I will call the defendants' affidavits concerning various facts. Until those facts are established, I am not sure that you can work out whether it is a 109 case.

MR ELLICOTT: Your Honour will understand that we set off on this track because we wanted to see if a draft case stated or a statement of facts could be put before this Court. That took some time and we thought that the defendants were involved in an activity that was fruitful and may well lead to something. In the course of that they only raised a couple of issues. They are important issues, that is to say whether or not the contracts in question were subject to the law of Hong Kong, that is putting it very broadly, or whether the Labour Ordinance of Hong Kong applied to these contracts and they are justified of course in raising those issues. Those might be, and probably are if they are not going to be accepted - those are issues of fact which would have to be ventilated and they are entitled to ventilate them.

That may involve, obviously, evidence from experts in Hong Kong law. But these other facts that they raise - and I just want to make this clear - those matters were not really raised at all in that endeavour to find the facts and the only reason we are here is because we thought we had isolated the issues, but when we took out our summons their reaction was to say, "Well, we will pursue now our remitter rights". Then they ventilated all these facts that are set out in one of the paragraphs of their argument. Now, all those facts - none of those have been the subject of any consideration, as far as I know, in terms of subjecting them to a statement of facts, by them or by us.

HIS HONOUR: Is this an application to adjourn the matter to see whether the parties can reach some agreement?

MR ELLICOTT: It is, your Honour, in that sense, because I accept that if they want those facts then they need to articulate them and we need to consider them. Our view, prima facie, is that they ought to be matters which can be the subject of admission. If they are matters that can be the subject of admission and they enable the issues to be determined, for instance, on the question of whether it is an industry in and of New South Wales or a contract in and of New South Wales, those issues can go forward, subject, of course, to the Court feeling that the parties have adequately dealt with the matter for it to go to the Full Court.

HIS HONOUR: I understand. I know, at least unless things have changed since my days at the Bar - and I doubt if they have - employers do not like going before the Commission in the 88F cases. That is the reality of the matter. You would much prefer this Court to deal with these matters. But if, for instance, agreement can be reached on these matters, and if they cannot, perhaps some affidavits can be put on to what is in issue and it may be that, reluctant as I am, a very short hearing could be had by a primary judge to determine them, if one came to the conclusion that these issues would be resolved. Particularly while these issues are outstanding, I have to say at the moment, Mr Ellicott, I would be very reluctant to state a case.

MR ELLICOTT: Your Honour, my state of mind, if I may say so, coming to the Court was that your Honour, in the light of what my friend is asking, is not going to state a case today, that your Honour is going to listen to what my friend has to say and probably conclude, "I cannot force them to admit facts. If they want to pursue those areas, it is reasonable in the circumstances" - - -

HIS HONOUR: I have indicated a little stick I will hold to them, that they may get a hearing if they cannot reach agreement.

MR ELLICOTT: Yes, your Honour. If my friend is prepared to follow that course, your Honour, that is the course that we would ask that the Court follow and that can quickly dispose of the matter today.

HIS HONOUR: Yes.

MR ELLICOTT: But there are other matters I would like to address to your Honour, but perhaps if we find out what my friend is prepared to do.

HIS HONOUR: Yes. Mr Kenzie, what about the various matters - I mean, how many days the defendants were actually required to be in Sydney during their employment, the restrictions on distance they could be away from Sydney airport, all these matters ought to be - - -

MR KENZIE: A lot of those matters might appear simple factual matters, your Honour, but what is involved overall in the process and processes of arranging for people within New South Wales to come to Sydney airport and to actually take delivery of an international airliner, the interaction that is involved, how it all happens, there are a range of issues, your Honour, and they are not all able to be simply crystallized by saying how much time.

What is ultimately facing us down the road, if all else fails, is a Kakariki-type issue, that is, is what is being involved in the New South Wales proceeding such as to raise questions of whether there is operational inconsistency with these international agreements? That, your Honour, screams out for a full understanding of what it is that is involved operationally.

We have always taken the view, your Honour, contrary to our friend's indication, that whilst we may be able to agree with the more simple areas that are found in the draft case stated, we do not disagree with anything that is in there. Our position is and always has been that this is simply not a suitable vehicle and it will not become a suitable vehicle tomorrow to try to put down in a process which requires agreement and in a way which is going to allow a proper understanding down the track as to whether there is operational inconsistency, all of these matters.

So it will not get better tomorrow, your Honour. It is not because there has been a lack of co-operation between the parties. There is a great deal of time gone. The proceedings were commenced some time ago. There has been meetings between counsel. There has been a lot of work done in relation to the development of the proceedings to this stage. But our position is and always has been that this is not an appropriate exercise, having regard to what is ultimately at stake, and it will not become one.

At the end of the day, if we go away again and spend further time in trying to deal with all of the aspects that would become potentially relevant to operational inconsistency, we are not going to walk away saying all of these matters are put to bed and the Court will not be asked to draw inferences and the like at the end of the day. It is simply not an appropriate case now and it will not be if we go away and spend another few months trying to prepare a longer document, and that will be with all the co-operation in the world, your Honour.

HIS HONOUR: Why do you say that? Take the matters that are listed in your submissions. Why cannot those matters be the subject of agreement?

MR KENZIE: Your Honour, many of them can be the subject of affidavit evidence, there is no doubt, but there can be no confidence, your Honour, having regard to the range of them, that they are not going to give rise to disagreement or controversy between the parties. They include everything that is involved in the sense of a pilot taking the step of becoming involved in the process and the interaction as between that and the operation of the treaties and the statutes.

HIS HONOUR: We are talking about ultimate facts, not evidentiary facts, still less, evidence. We are looking for the material facts that may impinge on the question of 109 issues.

MR KENZIE: Your Honour, looking, for example, at e):

the degree of interaction between the Defendants and the location "outport staff" -

changes the way in which the matters have developed over time during the contracts of the parties, changes to the operations manuals and the like and the degree to which those changes impacted. They are not such as to suggest that there is going to emerge from this process a picture which will, even if certain facts are able to be agreed - - -

HIS HONOUR: It is not unknown in stated cases for particular documents to be annexed. Why cannot, for example, annexed to the stated case be the various manuals or plans or whatever they are that specify the employment obligations?

MR KENZIE: Your Honour, to the extent that they are documented, they could be. Your Honour, there are a number of potential complications. The jurisdiction of the Commission in relation to the contracts of employment is a jurisdiction which your Honour may probably recall involves contract being defined as including arrangements. So that the jurisdiction of the Commission in terms of the relief that is sought is not going to simply and cannot simply depend at the end of the day either on written material or even ultimately the contract that is made, because if the parties have made arrangements, for example, made arrangements as to how they are going to do things in relation to it, how the thing is going to operate - - -

HIS HONOUR: I know, but this is hypothetical at the moment. It may not remain hypothetical because at some stage you may be able to persuade me or some other Justice that there are concrete issues of this nature which really just cannot be put down in a stated case. That is one of the reasons I dislike stated cases because in my experience in 14 years on this Court and a lot longer experience at the Bar is that it is an unsatisfactory vehicle in this particular case. Stated cases work reasonably well when you have had a hearing, say before a magistrate and he finds facts, then you are asked to state facts for an appellate court, but at this instance frequently you find parties wanting to add facts or something that is not there, some argument is raised.

MR KENZIE: One has experience of that, your Honour. The general point we are seeking to make, and I am not making it very well, is that those sort of issues arise and frequently arise in relation to exercises which are involved in trying to get the facts straight for the purposes of dealing with a concrete sort of situation. So if there is a statute that says if X then Y, then you get a series of facts that enables you to come to grips with that. Some of the issues in this case, a straight inconsistency issue, might fall into that category, but when one comes to issues such as the Kakariki issue, it does not fall within that category, so you are looking at a double-barrel problem.

You are looking at the problem of trying to crystallize facts, not against a tangible background, your Honour, but against a background which deals with the question of whether at the end of the day someone can form a view as to whether there is an operational inconsistency in that sort of sense.

HIS HONOUR: Yes, I know. I would not like to duplicate proceedings, but in fairness to Mr Ellicott's clients, they have started the case in this Court and subject to the remitter provisions they are entitled to have it heard. At the moment, as I understand their case, it is a case of either covering the field or, perhaps alternatively, textual collision. If they went either of those two bases, operational inconsistency does not arise. It would only arise if they fail on those two, in which case you would go to the Commission and then we might have duplication because then the operational inconsistency point comes back here.

MR KENZIE: Yes, your Honour. I am sorry I interrupted your Honour. Your Honour has just described a fragmented proceeding. The ultimate question that has to be asked, in our respectful submission, is this. In circumstances where there is a range of issues before the Industrial Commission, there is the substance of the matter, there is our friend's notice of motion in the Commission where our friend - your Honour says he started proceedings in this Court. That is not all they have done. They have started proceedings in the Commission - - -

HIS HONOUR: I know, it appears from your material there are all these issues.

MR KENZIE: And so, your Honour, the ultimate question that has to be faced in these proceedings is whether there should be a process which gives rise to the prospect of fragmentation or whether there should not. At the end of the day the other approach gives rise to the prospect of fragmentation and the approach of sending this matter back to the Commission allows the whole thing to be dealt with. That is consistent with authority of this Court, it is consistent - - -

HIS HONOUR: How long are we talking about? How long is this case going to last? The parties in this case are big boys. Although there are private defendants, I assume that the union is behind them and you have major players who are the plaintiffs in this Court. So no doubt nobody should have expense inflicted on them if it can be avoided, but the fact is that perhaps more than in many other cases these parties are in a position to run a longer case.

MR KENZIE: Indeed, your Honour. There is nothing about this case that suggests that it should be singled out from the approach that finds it way into the authorities, including the authorities of this Court, which stand in the way of fragmentation. In our respectful submission, there is no reason why our friend's client should be in a position to say, "Why should we be subjected to this in a way that others are not?" At the end of the day our friend can put it as many ways as he likes but it cannot avoid the fact that he has expressly raised and raised clearly the issue of operational inconsistency.

Once you are in that arena, you have to ask the hard question and the hard question, in our respectful submission, is this: how does a case stated procedure really fit with that? Does it fit comfortably or does it not? The answer to that question, your Honour, is it just does not fit comfortably in that scenario. Where you have a proceeding in the Commission in which everything can be dealt with and you know that can happen, our friend's notice of motion, the remitted matters, all of these matters can be dealt with, and you also know this, that they can be dealt with and none of these issue may matter all because the Commission may say, "The factual matters that are here show too tenuous a relationship with New South Wales", and on the facts the issues go away, so the constitutional issues never get dealt with and this is the other side of the coin.

HIS HONOUR: I mentioned that to Mr Ellicott.

MR KENZIE: Yes, your Honour, it is a significant issue. Why should it be presumed that the constitutional issue is going to have to be dealt with in this Court? That assumption should not be made. Our friend has raised a range of issues and they include the prospect that I have indicated, namely, that this issue may go off. There are authorities of this Court, your Honour, which are squarely in point in this regard and squarely support the approach of not dealing with the proceeding on the basis that you will deal with the constitutional point, unless one can demonstrate that there is a prospect that it will have to be dealt with.

The Solicitor-General has referred to Ravenor's Case. Your Honour has read it. We have referred to Peters' Case in the Court of Appeal. We could not find the High Court judgment but Justice Kirby's judgment summarises our position completely, namely, that the High Court in that case preferred to send the matter back, a matter which could not be distinguished from this except that this might be more complex, on the basis that it would be preferred that that matter be dealt with so that one could find out at the end of the day whether any of these issues were going to matter a hoot.

HIS HONOUR: Yes, I understand that but Mr Ellicott has some other matters he wants to put, but my inclination is - in fact it is more than an inclination - I am not going to direct the parties to do anything but I want them to co-operate to see if they can state facts. If they cannot, then on an adjourned hearing I would want them to put on affidavits indicating what the nature of the dispute is between them, then I will have to make a judgment as to whether or not it could be dealt with by a judge at first instance after a comparatively short hearing, and then there would be real prospects of the issues between the parties being finally dealt with or whether or not it looks like it would just be fragmenting hearings. That is my present view about the matter, so Mr Ellicott wants to put some other matters. Yes, Mr Ellicott.

MR ELLICOTT: Yes, your Honour. Your Honour, what my friend overlooks is that, with respect - I guess he does not but he knows it too - that this is a matter, that is to say it is a matter in this Court involving the interpretation of the Constitution. If section 109 is the only such matter, obviously the other issues are dragged in as well, that is to say, whether it is a contract or an industry in and of New South Wales.

HIS HONOUR: Maybe.

MR ELLICOTT: I would submit that prima facie that is right. You can argue about it, but at the end of the day the question of section 109 might be said to be dependent on a decision as to the other matters, but all the more reason why they are inextricably linked and that the matter, as we understand it, in constitutional terms, is properly before this Court and the Court has to decide whether under section 44 it should, in the exercise of its discretion, deal with it itself or remit it somewhere else.

It is absolutely clear on the books that your Honour has expressed a view that the Commission is an arbitral tribunal. I think your Honour goes very close in that Minister for Youth Affairs Case to saying it is not a court. I am not wanting to push your Honour that far. I am just saying it is a real question. It not only raises, we would submit, the nature of a court as against an arbitral tribunal for the purposes of section 44, but it also raises the Boilermakers' Case and whether section 44, for instance, can entertain the idea of a court being a body which offends the Boilermakers' Case. There is also of course the principles stated in Kable's Case. So the whole issue is a very complex and very interesting issue, may I suggest, but nevertheless is starkly there in front of my friend.

If your Honour, in the exercise of your discretion, were to find that you should remit it to the Commission, your Honour would be the first to understand that we might want to appeal that to the Full Court. Your Honour has mentioned stating a question and it is not.....for me to say that to your Honour, but that is all delay. The Full Court was going to look at it. It is a complex question if it looks at it and it is going to take another year probably before the matter is on the way.

HIS HONOUR: That is on your opponent's head.

MR ELLICOTT: Yes, that is it, and I suspect the employer may not mind that, your Honour, but so be it.

HIS HONOUR: No.

MR ELLICOTT: Actually, the choice, we would submit, is for either your Honour to do what your Honour has suggested your Honour is inclined to do - and we would support that course of action - or, alternatively, to send it to the Federal Court as a matter which it can entertain. It can deal with the whole of the issues and the evidence could be dealt with as an ordinary case. We would have the benefit of our discussions to date towards getting a statement of agreed facts. No doubt a judge there would also want to explore those other issues.

I would submit at this stage that the preferable course is not even to do that but to do what your Honour has indicated your Honour might do because that will fairly and squarely bring to the surface whether or not this is a matter that can be properly dealt with in this Court by way of factual statements and also indicate the area of debate. If it turns out that that is a very substantial area and it must not take up the time of this Court, as we understand, then your Honour can remit it to the Federal Court.

But none of that work that is done will be lost because if it goes to the Federal Court, it has to be determined. If it goes to the Commission, you still have to sit down and ventilate these facts and determine what they are. So really it is not a matter that is going to throw away costs. It is a matter where the parties are facing up to the reality of the case and not letting it get off, from our part, on issues about the nature of the Commission and whether it is a court and all the rest of it, whether section 179, that my friend the Solicitor is no doubt very interested in, has some effect, whether the Court of Appeal was right or not, whether the discretion of the Commission is right in dealing with the merits. We do not have to worry about all that.

From our point of view, we have either the decision of this Court to go ahead or to put it back to the Federal Court or, on the other hand, my friend avoids this other issue, which again is interesting and perhaps the sooner it is decided the better, and that is whether the Commission is truly a court. But that is not an essential part of our case, our matter, in other words, to say that the Commission is not a court. So, we would ask your Honour to pursue the course that your Honour has suggested.

HIS HONOUR: How long will the parties need to discuss these further facts?

MR ELLICOTT: Your Honour, we have come here to argue today. There is no reason why my friend and I cannot sit down and at least talk for a while and see what we can do, but if your Honour formulated a course of action which your Honour proposes to take - - -

HIS HONOUR: That is what I would prefer to do. I would prefer to specify some dates, or perhaps only one date, when I can put the matter back in. But if the parties cannot reach agreement, then I would want some affidavit material from the parties indicating what the area of disagreement is, what the general nature is, then I will have to make a judgment as to whether or not it would be possible for myself or some other Justice to make a hearing for the purpose of stating a case or whether it is likely to lead to a fragmentation of the process or whether a stated case would just be unsatisfactory. So, what sort of time period are we thinking of?

MR ELLICOTT: It is really up to my friend.

HIS HONOUR: Two weeks, three weeks?

MR KENZIE: Your Honour, I would need to get some instructions.

HIS HONOUR: Yes.

MR KENZIE: Your Honour will appreciate we came here today to argue the matter and we have a number of clients, there are a number of issues. The facts, if we are to attempt to go further, would presumably relate not just to the 109 issue but to all aspects of "in and of New South Wales" and the like, that is our assumption, and we would like to get some instructions just to say something with confidence about that, your Honour.

HIS HONOUR: Yes. You have clients I notice - one lives in the ACT, another one in Queensland.

MR KENZIE: Yes, your Honour, it is a bit of a problem. I wonder if your Honour might think it appropriate if my friend and I were given some time to come back to your Honour in relation to that time, into the time that would be required, and if we could do that relatively quickly it would allow us to get those instructions, your Honour.

HIS HONOUR: Yes. What about at the end of next week, if it was put in just for mention?

MR KENZIE: Yes, your Honour.

HIS HONOUR: Because, whatever happens, I want to dispose of this matter before the end of June anyway.

MR KENZIE: Yes, your Honour, that would be the - - -

HIS HONOUR: There is no need for senior counsel to be here.

MR KENZIE: No, your Honour, that would be suitable.

MR ELLICOTT: At 9.00 am or something like that? Is that a day for special leave, your Honour?

HIS HONOUR: Friday the 23^rd. It can be put in at 9.30 am for mention. I suppose I should ask the Solicitor-General about this matter.

MR KENZIE: Yes, your Honour, that would be suitable.

HIS HONOUR: Yes, Mr Solicitor.

MR SEXTON: We do not have any submissions to make about any of that, your Honour.

HIS HONOUR: Thank you, Mr Solicitor. We will put it in for 9.30 am for mention and see what progress is being - is that inconvenient for you? I just see you looking at your diary with a puzzled look on your face.

MR ELLICOTT: I always look at my diary with a puzzled look, your Honour. It does not indicate a problem.

HIS HONOUR: Very well. I will adjourn both summonses until 9.30 am on Friday, 23 May, for mention. The costs of today will be reserved and I certify for the attendance of senior counsel today, if and insofar as it be necessary.

AT 10.41 AM THE MATTER WAS ADJOURNED

UNTIL FRIDAY, 23 MAY 2003