Queensland Police Union of Employees and Ors v State of Queensland [2014] HCATrans 115 (27 May 2014)

Last Updated: 3 June 2014

[2014] HCATrans 115

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B48 of 2013

B e t w e e n -

QUEENSLAND POLICE UNION OF EMPLOYEES

First Plaintiff

QUEENSLAND NURSES’ UNION OF EMPLOYEES

Second Plaintiff

QUEENSLAND TEACHERS UNION OF EMPLOYEES

Third Plaintiff

and

STATE OF QUEENSLAND

Defendant

Summons for directions

KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON TUESDAY, 27 MAY 2014, AT 10.16 AM

Copyright in the High Court of Australia

MR N.J. OWENS: If the Court please, I appear for the plaintiffs. (instructed by Hall Payne Lawyers)

MR P.J. DUNNING, QC, Solicitor-General of the State of Queensland: May it please the Court, I appear for the defendant. (instructed by Crown Solicitor (Qld))

HER HONOUR: Mr Owens, just one inquiry about the amended statement of claim. Paragraph 40(i), which alleges that “there are less restrictive, and equally practicable and available, alternative means”, etc. One example given is schemes of the sort embodied in Chapters 8 to 10 of the Fair Work (Registered Organizations) Act 2009 (Cth), but I take it that that is not going to be the only example alluded to or relied upon.

MR OWENS: We chose that language so not to limit ourselves. I am afraid I have not directed my attention to this in months and I am afraid if your Honour is going to ask me what is another one I cannot tell you on the spot.

HER HONOUR: No, it is not that so much as the question whether it should be pleaded because theoretically there could be factual matters necessary to be identified.

MR OWENS: That is possible. We are happy to write a letter, or amend the pleading if that is the preferred way of doing it, to identify any other schemes upon which we rely.

HER HONOUR: Because I think we – apart from that I do not see a real problem with disputed facts.

MR OWENS: Well, unfortunately, your Honour - - -

HER HONOUR: There are?

MR OWENS: Well, not so much disputed as not yet agreed. That might seem like an odd distinction but I will have to tell your Honour what has been happening over the last six months.

HER HONOUR: Yes, please do.

MR OWENS: At the moment there are three topics, I think it is probably fair to say, dealt with by the special case in relation to which the State says it cannot, at the moment, agree. In no instance does the State say that it would contend for an identified different or further fact upon a remitter. Rather, the State says to us we are unable, or we are not presently positively

persuaded by the material that my clients have provided that the fact they use is either true or complete or something along those lines.

We have suggested that it is in fact a useful tool by which to address these sorts of disputes to ask for what fact would the State contend if the matter were remitted. To give your Honour one example, we have, in the draft special case, said that we have obtained quotations from Australia Post to do the various things necessary to comply with the postal ballot requirements in the regulations. We have included that quotation in the special case.

The State does not say they disagree with that quotation, that it is not a bona fide quotation, that it addresses matters that are not required to be done pursuant to the regulations, the State just says there are people other than Australia Post who could do this. Perhaps they would do it cheaper and we have said that is entirely possible, if you have another quotation we are more than happy to put it in. We are more than happy to have that as the sole quotation or to have the special case framed on the basis that there is a range of quotations that have been obtained.

We have said to them if you do not have an alternative quotation we do not really understand what we are doing because if the matter is remitted we will tender that quotation, maybe you can pick at the side so that some cheaper paper could be used or something. But if you are not going to say here is organisation B that can do it more cheaply, presumably the court to which the matter is remitted will say “I have a quotation from Australia Post which is not disputed as a genuine quotation. That is the only evidence before me as to how much this would cost”.

So as I say we are not talking about disputed facts in the sense that the sense that the State says “It’s not A, it’s B” or the State says, “In addition to A, we want B”. We have said in all cases if you give us B, we will either look at A and see whether we can agree or otherwise, we can, we are sure, draft the special case in a way that accommodates both.

HER HONOUR: Have you attended to a draft – have you drafted a case thus far? Is that what you have - - -

MR OWENS: I can hand your Honour a copy of the current draft if that would assist.

HER HONOUR: Do you have any objection to me seeing - - -

MR DUNNING: No, not at all.

HER HONOUR: Thank you.

MR DUNNING: I am reluctant to interrupt my learned friend, but might I just raise one matter?

HER HONOUR: Yes.

MR DUNNING: We have written to our learned friends asking that the matter be adjourned for a period of two months. The proceedings have caused us to review the legislation. That process is in train at the moment. Now, a potential consequence of that review might well be some amendments to the legislation. That would bear upon, amongst other things, the issues in the special case. So I am reluctant to interrupt my learned friend, but we were sort of progressing on a path that canvassed that issue and I thought I should at least inform your Honour that that was going to be the State’s position today.

HER HONOUR: When you say adjourn it for two months, that is to – I mean the alternative would be that the matter simply proceeds to settle a case so it is ready to be referred in so that there would not be too many costs thrown away if it became redundant but it would at least – I mean it would be some months before the matter could be heard in any event.

MR DUNNING: Yes.

HER HONOUR: I will hear it from the plaintiff, from Mr Owens, of course, but they may have some concerns. It has not moved apace, I suppose that that is one aspect that - - -

MR DUNNING: Without meaning to speak for him, I understand from our discussions prior to Court that they do have some issues with, in effect, simply today being adjourned - - -

HER HONOUR: Without the matter proceeding towards a hearing.

MR DUNNING: Yes, and I accept that is what your Honour says regarding the fact that the costs of finalising the special case are not - - -

HER HONOUR: Are not the major costs one would - - -

MR DUNNING: No, they are not an obstacle in that sense.

HER HONOUR: You would want to avoid a hearing – hearing costs would be the main thing.

MR DUNNING: Principally, and we are also mindful of the fact that the Court is one that has a finite amount of cases that it can hear and determine

and that if ultimately this legislation, as a result of the review, were to be amended, in respect of topics upon which our learned friends have raised by way of their proceedings, then there would be really little utility in that deployment of court resources.

HER HONOUR: What do you say about the matters of fact which have not been the subject of agreement? Are there many which are outstanding and yet to be resolved?

MR DUNNING: No, there are not many and essentially as our learned friend, Mr Owens, put it we would be content with his description of how matters progressed. I would not necessarily accept his characterisation that it is for us to nominate B because in reality the moving party here says that the way this law operates is to affect an organisation such as ours in this way. So it is not really as apt as other cases for.....the position of the States they will now affect in this way. Nonetheless, we received - - -

HER HONOUR: Still, most of this evidence would be objective and can be ascertained.

MR DUNNING: Indeed, and that process is under way. Our learned friends sent us some more material late last week and we are in the process of reviewing that to see to what extent, even perhaps potentially completely, that resolves the outstanding issues as Mr Owens indicated. A draft special case had been prepared. A good deal of that is not controversial between the parties. We are working through those issues that remain controversial. Thank you, your Honour.

HER HONOUR: Mr Owens, what is the plaintiff’s position about the request for an adjournment for a couple of months?

MR OWENS: The application is opposed for two fundamental reasons. The first is that all we have been told by the State as of yesterday afternoon for the first time is that the legislation is being reviewed. There is, of course, no undertaking not to enforce the legislation in the meantime. It remains on foot in a period when a by-election is soon to be held and there will be a general election required to be held within a year. The next point is simply by saying that the legislation is being reviewed really leaves open a fairly wide range of possibilities. At the end of that review presumably the legislation might - - -

HER HONOUR: I do not mean to cut you short, but I do not think there is a sufficient basis for an adjournment of the length of time proposed by the State of Queensland, so the question is how far do we take it. Perhaps the matter should simply proceed to the resolution of the special case with the taking account of the further facts which you may plead to paragraph 40(i) and then bring it back on for directions. At that point, if there is a review undertaken, we might have a better timeframe, a more finite timeframe.

MR OWENS: Yes, that is essentially what I was going to ask your Honour to do. It is possible that the timetable that I had in mind might be a little shorter than the one your Honour has in mind.

HER HONOUR: No, I had a short one in mind. Perhaps you could tell me – do you have draft directions?

MR OWENS: I am afraid I do not. Things have been moving a little - but what I was going to suggest is that the State respond in relation to any outstanding issues in relation to the draft special case within two weeks. I think taking into account – well, actually, even with the public holiday that is 10 June and then we would propose, perhaps, that the matter come back, subject to your Honour’s convenience, of course, in perhaps the week after that.

HER HONOUR: Well, you have to provide further particulars, if any, of paragraph 40(i) and you would need to factor – you would need to provide details of facts relevant to any particular so provided, if there is a factual substratum that needs to be fleshed out in the special case.

MR OWENS: Can I indicate without binding myself that at the moment we had not considered that it would be necessary in relation to any matter relevant to 40(i) that we would have to have agreed facts.

HER HONOUR: Is that because the alternative means that you will be relying upon – are already the subject of legislation?

MR OWENS: Correct, correct.

HER HONOUR: So do you want to have an opportunity to consider it or you are content that there will be no further amendment required?

MR OWENS: I think I am content to say that any additional particulars will be references to legislation, not to any other matter.

HER HONOUR: And that, because it is legislation, there would be no underlying factual issues?

MR OWENS: Not from our point of view. Of course, if our friends say that it would be required we would happily include that.

HER HONOUR: How long would you – I would prefer you to have turned your mind completely to it and resolved it. How long would you need – a week?

MR OWENS: I was going to say one week, yes.

HER HONOUR: That should not hold up the State’s response. If I make a direction that the plaintiff provide further particulars, if any, of the alternative schemes to be relied upon in connection with paragraph 40(i) of the amended statement of claim, if there are no further to be provided you would simply either amend the terms to take the word “including” out or provide a letter.

MR OWENS: Yes.

HER HONOUR: Thank you. I will so direct that the plaintiff does so by 3 June. What about the timeframe for the response to the outstanding issues, Mr Dunning?

MR DUNNING: Your Honour, the State would like a little longer, but before I deal with that issue can I just deal with the issue regarding section 40. Respectfully, we would submit that it cannot be that the cost of how a typical – whatever that is, a typical ballot under the alternate scheme can be determined without some facts around what that would cost. If one looks at the way 40 is pleaded, it is said that the Act seeks to achieve a legitimate end that is not reasonably appropriate and adapted. That is said to be because it is disproportionate and ill-adapted because there is a less restrictive, and equally practicable and available alternative means. That is set out in (i).

Now, it is a relative concept that is being asserted and that relativity cannot be resolved in a vacuum so you really need to say well, under the Queensland scheme that is sought to be impugned, a ballot for this would cost X dollars and would take X time, whereas if you adopted the fair work scheme it would cost Y dollars and take Y time. You cannot embark upon that evaluative and relative analysis with only one set of figures. So in those circumstances it would seem that not only do our learned friends need to commit to there being no other scheme, but they need to nominate what they say is the relative value of the alternate – or is the value of the alternative so that that relative analysis can take place.

HER HONOUR: I have not had a look at the special case but I take it that that has not been gone into in any way.

MR OWENS: It has not been gone into, no. Can I make clear, the alternative schemes to which we will refer are not alternative balloting

schemes? They are alternative regulatory regimes pursuant to which there are controls on the use of member money and accountability of officeholders for that use.

HER HONOUR: Yes, I see. How much time would the State require in response?

MR DUNNING: The State would like three weeks to respond, your Honour.

HER HONOUR: 17 June.

MR DUNNING: Thank you.

HER HONOUR: I will therefore direct that the State of Queensland respond to the outstanding issues relating to the special case by 17 June and then list the matter for further directions.

MR OWENS: Yes. It would suit me, personally, if it could be in that same week of 17 June just because I have a two-week hearing starting the following Monday.

HER HONOUR: Well, the Court will be sitting in that week so I will be in Canberra.

MR OWENS: Well, I have to fly either here or Canberra so it does not trouble me – that may mean that Mr Dunning – I am not sure whether video link might be possible. Alternatively, if it were to be held later, if your Honour would permit me to appear by video link in Sydney, perhaps, at 9.30, that might overcome my problems.

HER HONOUR: I will make it the following week, 24 June in Brisbane, but if you require a video link that can be organised. You just need to give us some notice.

MR OWENS: I am sorry to trouble your Honour with this very boring level of detail. I think on Tuesday, the 24th, I will be on.....in far-western Sydney so perhaps if it could be the Wednesday.

HER HONOUR: Wednesday, yes.

MR OWENS: Thank you.

HER HONOUR: Mr Solicitor, is that suitable to you, the 25th at 9.30?

MR DUNNING: It is, thank you, your Honour.

HER HONOUR: Mr Owens, if you could advise the Court if a video link is required sooner rather than later. I will not direct that I have asked the parties if there are going to be matters that need to be resolved on that day about the special case, if there are still some outstanding matters that they provide short outlines of argument identifying the issues to be dealt with on the directions hearing 48 hours before.

MR OWENS: Yes. Can I indicate that from my client’s point of view I think we are really now reaching a point where if agreement is not going to be reached we need to look at remitter and moving it forward somehow?

HER HONOUR: Yes. That is what we will be looking at at the next directions hearing, whether or not a remitter is necessary so I would expect the parties to be able to identify with some precision where they say the area of factual inquiry is necessary. No further orders?

MR OWENS: Nothing from me, your Honour.

MR DUNNING: Thank you, your Honour.

HER HONOUR: Thank you, gentlemen. The Court will adjourn.

AT 10.34 AM THE MATTER WAS ADJOURNED