Unions NSW & Ors v State of New South Wales [2013] HCATrans 156 (25 July 2013)

Last Updated: 26 July 2013

[2013] HCATrans 156

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S70 of 2013

B e t w e e n -

UNIONS NSW

First Plaintiff

AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION KNOWN AS THE AUSTRALIAN MANUFACTURING WORKERS’ UNION (AMWU)

Second Plaintiff

NEW SOUTH WALES LOCAL GOVERNMENT, CLERICAL, ADMINISTRATIVE, ENERGY, AIRLINES & UTILITIES UNION

Third Plaintiff

NEW SOUTH WALES NURSES AND MIDWIVES’ ASSOCIATION

Fourth Plaintiff

NEW SOUTH WALES TEACHERS FEDERATION

Fifth Plaintiff

TRANSPORT WORKERS’ UNION OF NEW SOUTH WALES

Sixth Plaintiff

and

STATE OF NEW SOUTH WALES

Defendant

Directions hearing

FRENCH CJ

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 25 JULY 2013, AT 9.28 AM

Copyright in the High Court of Australia

____________________

MR N.J. OWENS: If the Court pleases, I appear for the plaintiffs. (instructed by Holding Redlich Lawyers)

MR M.G. SEXTON, SC, Solicitor-General for the State of New South Wales: If the Court please, I appear with my learned friend, MS A.M. MITCHELMORE, for the defendant. (instructed by Crown Solicitor for New South Wales)

HIS HONOUR: Thank you.

MR OWENS: Has your Honour received and, if so, had a chance to look at the joint submissions that have been filed on behalf of the parties?

HIS HONOUR: Yes, I have seen the joint submissions and the draft special case.

MR OWENS: Yes. So your Honour will appreciate then that the parties have agreed a special case, save in respect of six paragraphs. The lack of agreement in respect of those six paragraphs is reflective really of the fact that people are still doing some adding up and checking. It does not reflect any fundamental disagreement between us and the parties are confident that complete agreement will be reached within a very short period of time.

In those circumstances, if your Honour did not have any difficulty with the form of the special case, the parties are of the view that it is appropriate that it now be referred for hearing by a Full Court of this Court and we have, as your Honour will have seen, proposed some directions.

HIS HONOUR: Yes. Can I just ask, in relation to some of the paragraphs – this only arrived yesterday so I have only had a chance to go through it a couple of times – rule 27.8.03 contemplates special case raising questions of – setting out issues of agreed fact upon which questions of law can be referred to the Court. Now, there are some forms of statement in the special case. I wonder whether or not they are, in truth, statements of law or imply questions of law which I am sure are not contentious but, for example, 48, 49 and I think 54 and 59 – take 59, for example:

Payments from the Policy Development Fund to eligible registered political parties are made by the Election Funding Authority, in accordance with the provisions of the EFED Act and the Policy Development Fund Policy, the current version of which is reproduced –

now. The statement “are made”, is that just a statement about how the Act works or is a statement about what is in fact done?

MR OWENS: I think it is both. What is done is done in accordance with the Act.

HIS HONOUR: Yes.

MR OWENS: Perhaps I should leave the primary defence of that to my friend because it is – the reason it is in there is because it is a matter that is raised in my friend’s defence.

HIS HONOUR: I see, yes.

MR OWENS: That said, I would imagine that, as your Honour said, it is entirely uncontroversial that these funds exist and that they are administered in accordance with certain policies. I do not think there would be a difficulty on either side in excising it from the special case - - -

HIS HONOUR: Well, it is something I think that perhaps ought to be considered. I am not suggesting it is fact but, on the other hand, I want to make clear that the questions of law are based on questions of fact and not on assumptions about the law.

MR OWENS: Quite.

HIS HONOUR: The other question I wanted to raise is – and again, maybe it is a question for the Solicitor-General rather than for yourself but there seemed to be in the defence questions perhaps of a factual nature which might imply questions of a factual nature going to the “reasonably appropriate and adapted” criterion.

MR OWENS: My friend obviously contends that these provisions are reasonably appropriate and adapted to achieving a - - -

HIS HONOUR: So far as you are concerned that does not raise anything that is not arguable, just on the face of the law itself?

MR OWENS: No.

HIS HONOUR: Yes, all right. Can I just indicate, before hearing from the Solicitor, what I would propose to do is not to, as it were, write you a blank cheque on whatever special case you happen to put in by 12 August, but rather to make an order along the following lines: that the plaintiffs are to file and serve the agreed special case in final form by 12 August together with a proposed consent order for referral in the special case and questions set out in it for hearing before a Full Court and for further directions as to filing of submissions.

So, in other words, once you get your special case in, and subject to it being in satisfactory form, a consent order can be made and all those directions can be made without, as it were, losing any time or requiring a further directions hearing unless some problem appears on the face of the special case.

MR OWENS: Yes. That would certainly be fine from our point of view.

HIS HONOUR: Yes, all right. Thank you, Mr Owens. Yes, Mr Solicitor.

MR SEXTON: As your Honour appreciates, we are basically in agreement in relation to the orders that are proposed. We will consider the matter that your Honour has raised in relation to those paragraphs of the special case. From our point of view they really simply reflect the operation of the legislation and so they could equally, in a sense, have said that section X of the legislation provides for this to happen. I suppose there is an assumption that the law will be followed and that therefore that is the system that is currently in operation.

HIS HONOUR: Yes. What about the second limb of the Lange test? You have mentioned that in the defence, I think, in effect.

MR SEXTON: That is right.

HIS HONOUR: That is simply something you are prepared to argue on the face of the legislation?

MR SEXTON: Yes, in terms of the overall scheme that is right, your Honour, yes.

HIS HONOUR: Yes, all right. Do you have any difficulty with the order I propose?

MR SEXTON: No, we do not, your Honour.

HIS HONOUR: There will then be an order in the following terms:

The plaintiffs are to file and serve the agreed special case in final form by 12 August 2013, together with a proposed consent order for referral of the special case and the questions set out therein, for hearing before a Full Court of this Court and for further directions as to filing of submissions by parties and interveners.

Can I take it from the program that you have proposed that you would be ready for hearing sometime in October if it were listed in October?

MR SEXTON: Can I mention one thing about October? I realise only too well, your Honour, that this Court does not take the convenience of counsel into account, but if I can just mention – if everything else is equal there are three sitting weeks in October. I will be overseas for the middle one of those, which is 8, 9, 10 October. I think Mr Owens has – if I can speak for him – some difficulties with the first of those sitting weeks in October but we realise, your Honour, that the Court’s program - - -

HIS HONOUR: The common ground of convenience at the moment is the third week.

MR SEXTON: That is right, your Honour.

HIS HONOUR: Is Mr Walker leading you?

MR OWENS: He is, your Honour, yes.

HIS HONOUR: All right. Those will be the orders. Thank you.

The Court will now adjourn.

AT 9.36 AM THE MATTER WAS ADJOURNED