Visscher, Ex parte - Re Munro & Ors [2004] HCATrans 356 (14 September 2004)

--

Visscher, Ex parte - Re Munro & Ors [2004] HCATrans 356 (14 September 2004)

Last Updated: 16 September 2004

[2004] HCATrans 356

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S578 of 2003

In the matter of -

An application for Writs of Certiorari and Mandamus against THE HONOURABLE JUSTICE MUNRO, THE HONOURABLE SENIOR DEPUTY PRESIDENT DUNCAN, COMMISSIONER ROBERTS AND COMMISSIONER RAFFAELLI OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION AND THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

First Respondents

BHP PETROLEUM PTY LTD

Second Respondent

Ex parte –

TIMOTHY VISSCHER

Applicant/Prosecutor

GUMMOW J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 14 SEPTEMBER 2004, AT 9.41 AM

Copyright in the High Court of Australia

__________________

MR P. KINTOMINAS: If it please, your Honour, I appear for the applicant/prosecutor with my learned friend, MR D.W. RAYMENT. (instructed by Turnbull Hill)

MR. C. GUNST, QC: If you Honour pleases, I appear with my learned friend, MR B.D. LAWRENCE, on behalf of the second respondent. (instructed by Holding Redlich)

HIS HONOUR: Now, the Court holds a certificate from the Deputy Registrar that she has been informed by the solicitors for the first respondents, the members of the Australian Industrial Relations Commission, that they will abide by any order save as to costs in the High Court and if an order for remitter is made in the Federal Court of Australia.

MR KINTOMINAS: May it please, your Honour, it is the application of the applicant/prosecutor that the matter be remitted to the Federal Court.

HIS HONOUR: Yes. Well, that would appear to be the statutory intent of provisions like section 412(2) of the Workplace Relations Act. What is said in opposition to that course, I will ask your opponent.

MR GUNST: There are two grounds, if your Honour pleases, the first procedural and the second substantive. The procedural ground we have identified in our outline of submissions that we filed with the Court last Friday.

HIS HONOUR: Yes, I have looked at those.

MR GUNST: It is twofold. Firstly, there has been a non-compliance with the Rules so far as the application for mandamus is concerned. The Rules provide that the application shall be made within one month - - -

HIS HONOUR: Yes, there is an explanation proffered for that though, is there not?

MR GUNST: Some explanation of a hearsay nature, your Honour.

HIS HONOUR: It is a fairly transient client, if I can put it that way.

MR GUNST: The second part of the procedural opposition is that the Rules require the applicant to file an affidavit setting out his application and that has not been done. The only affidavit material filed on behalf of the applicant is a hearsay affidavit from his solicitor. We understand the applicant is not here today in Court, nor for that matter, as we understand it, is his solicitor, the deponent of the affidavit. But the second and more substantive ground is this, your Honour, that we say that the application, notwithstanding that it commenced with 14 grounds and now stands with 28 grounds, is beyond arguable foundation.

HIS HONOUR: Yes, you may be right, but why should the burden of deciding that rest on this Court rather than the Federal Court?

MR GUNST: We understand the force of what your Honour says in that regard. The provisions of section 415 of the Workplace Relations Act require that because this was a case heard by a presidential member, that is, on the Full Bench of the Commission, it must be heard by a Full Court of the Federal Court rather than a single judge, so that your Honour will always be reluctant - - -

HIS HONOUR: There is only seven of us.

MR GUNST: Yes, we understand that, your Honour, and dozens of Federal Court judges your Honour would say with some accuracy no doubt. Nonetheless, as his Honour Justice McHugh said quite tellingly in Marks’ Case – and we have given a copy of that in our materials - - -

HIS HONOUR: I am not sure I agree with that.

MR GUNST: Well, I was about to say, what his Honour says is that the threshold is a low one and we accept that that is the case. The threshold for the grant of the order nisi and the threshold for the remittal, as his Honour says, can be no higher than that, but his Honour goes on to say that this Court should not burden the Federal Court with - - -

HIS HONOUR: Well, that seems to be putting it the wrong way around, but I understand your reliance on what is said.

MR GUNST: Yes, and that must be especially so, we would urge your Honour, where the matter must be heard by three judges rather than simply a single judge of the Federal Court of Australia. Now, your Honour, there are 28 grounds advanced. They fall into several categories or groups - - -

HIS HONOUR: Yes, but, I mean, the legislature seems to have directed its specific attention to this situation, as it were, by requiring a Full Bench in the Federal Court. One way of looking at it is to say that really should not readily be obviated by doing it here with one.

MR GUNST: Well, we understand your Honour’s point of view. If in the end your Honour is of the view that your Honour does not have the time or does not wish to be taken through the material, then, of course, we will abide your Honour’s order, but the material - - -

HIS HONOUR: Well, I have looked at it all. That has already taken some time, you see.

MR GUNST: Yes, and there is a danger that when one looks at the material one sees a big stack of paper and says there must be an argument in there somewhere. It is open to us to urge your Honour to look at the material, and your Honour has read our submissions at least. The material is voluminous and, if remitted, the matter will be a great burden on the parties. Your Honour sees on the Bar table all of those white arch folders. They constitute at the far end the transcript at first instance before the Commissioner and then the material that was before the Full Bench of the Commission.

HIS HONOUR: It is not a question of having time; it is an institutional question of what is the right place to start. If the applicant has, on one view of it, realised the error of his ways, you seek to retain the benefit of that wrong locus of commencement.

MR GUNST: Yes. We say to your Honour – and we say it compellingly and firmly – we have taken some trouble with our submissions to, as best we can, given that there is no affidavit other than hearsay affidavit, articulate what it is the arguments boil down to and then to demonstrate that for various reasons they are simply unarguable. For example, the argument – it is towards the end of our submissions – in respect of the identity of the employer, that is an argument that it is an abuse of process to run. That is perhaps the simplest and most succinct argument I can put to your Honour this morning.

There were proceedings before the Commission. The Commission had a power to amend in section 111 of the Act. The Commission had a power to amend the parties. It did so. The matter proceeded to a conclusion with our client, BHP Petroleum, identified as the employer, as indeed it was, for a collateral reason, one suspects to do with marine
salvage. The applicant now wishes to say he was employed by somebody else other than the owner of the ship in respect of which he made an unsuccessful claim before Justice McClelland in the Supreme Court here. But there have been other proceedings between these two parties in which the identity of the employer was in issue and was conclusively determined. That was the proceeding before Justice McClelland. We say it is an abuse of process simply to attempt to re-litigate an issue that has already been conclusively determined by a court of competent jurisdiction.

Now, that is simply one of the arguments that is made by the applicant, your Honour. A number of the others are equally unarguable.

HIS HONOUR: Well, there is a question too, I suppose – perhaps it is the threshold question – of whether on any view of it there was any jurisdictional error by the Commission.

MR GUNST: That is one of the earlier arguments we make. It is not sufficient just to say something went wrong or an error of law was made or an error of fact was made about the identity of the party. It is necessary, as indeed your Honour has identified in a number of judgements – and we set them out – that it is necessary for jurisdictional error to be determined. Your Honour, we have our written submissions. I do not want to take up your Honour’s time in reading them.

HIS HONOUR: I will ask your opponent what he says about that.

MR KINTOMINAS: Your Honour, we were advised, of course, by the Registry of the policy of this Court to remit matters. That is what we have sought to do.

HIS HONOUR: Yes. What is the explanation for the absence of the affidavit?

MR KINTOMINAS: Your Honour, two matters. My client is not so much elusive as peripatetic. He has for the - - -

HIS HONOUR: He will have to come to court at some stage.

MR KINTOMINAS: Yes, I understand that your Honour. Your Honour, in terms of the affidavit – certainly he has been in Australia on and off on several occasions and I have seen him. We took the view – and perhaps if I have to take the blame I will take the blame – that this matter really ought to be remitted and when this question came up about whether it would be remitted or not, our view was, as your Honour has just expressed the Court’s view to my learned friend, that this was a matter that could just be attended to and if a direction needs to be made it can just be made, but an affidavit will be filed. We were looking to file it in the Federal Court as soon as the matter was remitted.

HIS HONOUR: Yes, very well. What do you say about the enlargement of time for the mandamus application?

MR KINTOMINAS: Well, your Honour, it was only out, as I understand it, by a short period of time.

HIS HONOUR: It was, yes.

MR KINTOMINAS: And we have never been put on notice that anybody needed to be cross-examined either – obviously Mr Visscher has not put on an affidavit, but it was not suggested to us that my instructing solicitor be cross-examined. The Court’s attention has been drawn to the fact that he is not here. He asked me especially if the matter arose to convey his apologies to the Court. There was a crisis meeting in his partnership this morning which is quite extraordinary, otherwise he would have been here.

HIS HONOUR: Yes, thank you. What do you say about the extension of time for the mandamus application? If I were to remit it, should I deal with that first?

MR GUNST: We would invite your Honour to do so and we say there is simply no material to justify the extension of time. It is out by about a month and a half. The Full Bench decision was 18 September of last year and the application was filed in this Court on 1 December, as we read it. The Rules provide for one month and that is two and a half. There is simply no material put forward as to why it could not have been done within time, in our submission.

HIS HONOUR: Yes. Is there any such material at the moment or were you proposing to put that before the Federal Court, on the enlargement question, the mandamus question? It is out by a matter of weeks rather than months, I know.

MR KINTOMINAS: Yes, your Honour. Certainly I would be advising, if the matter is not settled definitively today, that when the affidavit is sworn by the applicant himself that material from the applicant himself about his movements, et cetera, during that period of time go before the court. But in saying so, I would not concede that what Mr Karpin deposed to is insufficient to activate your Honour’s discretion to allow the extension of time. But if your Honour were of a view that it was insufficient, or may be insufficient - - -

HIS HONOUR: You rely on Mr Karpin’s affidavit filed on 1 December, paragraphs, I guess, 8, 9 and 10, is that right?

MR KINTOMINAS: Yes, your Honour.

HIS HONOUR: Yes, I think I should make that enlargement, but I might deal with the question of compliance with Order 55 rule 18.

MR KINTOMINAS: If your Honour pleases.

HIS HONOUR: All right. It would be the New South Wales District Registry, would it not, gentlemen, of the Federal Court?

MR KINTOMINAS: Yes, your Honour.

HIS HONOUR: Will there be any question of costs in this litigation?

MR GUNST: The provisions of section 347 say, essentially, no, your Honour.

HIS HONOUR: They do, with some override, is there not?

MR GUNST: In the event that it is determined the matter is frivolous or vexatious - - -

HIS HONOUR: That is what I think you might have in mind.

MR GUNST: I cannot say that there is not, your Honour, no.

HIS HONOUR: I will say any costs in this Court be considered as incurred in the Federal Court for the purposes – is it 347?

MR GUNST: Yes, it is, your Honour.

HIS HONOUR: I will read what I propose first.

1. Order that the period prescribed by Order 55 rule 3 of the High Court Rules be extended up to and including 1 December 2003;

2. Remit the application to the Federal Court of Australia New South Wales District Registry, including the application for relief from the requirements of Order 55 rule 18(2) of the High Court Rules made in paragraph 11(2) of the affidavit of Mr Karpin filed 1 December 2003;

3. Subject to order 2, further proceedings in the matter be as directed by the Federal Court;

4. Any costs in this Court be considered as incurred in the Federal Court for the purposes of section 347 of the Workplace Relations Act 1996 (Cth);

5. Certify for counsel.

MR GUNST: If your Honour pleases.

HIS HONOUR: I make orders as indicated. I will now adjourn.

AT 10.05 AM THE MATTER WAS CONCLUDED