Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and Ors v Queensland Rail and Anor [2014] HCATrans 154 (28 July 2014)

Last Updated: 29 July 2014

[2014] HCATrans 154

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B63 of 2013

B e t w e e n -

COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA

First Plaintiff

THE ELECTRICAL TRADES UNION OF EMPLOYEES QUEENSLAND

Second Plaintiff

AUSTRALIAN MUNICIPAL, ADMINISTRATIVE, CLERICAL AND SERVICES UNION

Third Plaintiff

QUEENSLAND SERVICES, INDUSTRIAL UNION OF EMPLOYEES

Fourth Plaintiff

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

Fifth Plaintiff

AUTOMOTIVE, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES INDUSTRIAL UNION OF EMPLOYEES, QUEENSLAND

Sixth Plaintiff

AUSTRALIAN FEDERATED UNION OF LOCOMOTIVE EMPLOYEES, QUEENSLAND UNION OF EMPLOYEES (FEDERAL)

Seventh Plaintiff

AUSTRALIAN FEDERATED UNION OF LOCOMOTIVE EMPLOYEES, QUEENSLAND UNION OF EMPLOYEES (STATE)

Eighth Plaintiff

AUSTRALIAN RAIL, TRAM AND BUS INDUSTRY UNION, QUEENSLAND BRANCH

Ninth Plaintiff

AUSTRALIAN RAIL, TRAM AND BUS INDUSTRY UNION OF EMPLOYEES, QUEENSLAND BRANCH

Tenth Plaintiff

and

QUEENSLAND RAIL

First Defendant

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

Second Defendant

Directions hearing

KEANE J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO SYDNEY

ON MONDAY, 28 JULY 2014, AT 8.59 AM

Copyright in the High Court of Australia

____________________

MR J.K. KIRK, SC: May it please the Court, I appear for the plaintiffs. (instructed by Hall Payne Lawyers)

MR G.J.D. DEL VILLAR: Good morning, your Honour. I appear for the first defendant in this matter. (instructed by Crown Law)

HIS HONOUR: Thank you. Mr Kirk, I have read the submissions that your side provided last Friday. I might just take a moment to see what the attitude of the other side is to what you sought.

MR KIRK: May it please the Court.

HIS HONOUR: Mr del Villar, do you have any submissions to make in relation to the plaintiff’s submissions of 25 July?

MR DEL VILLAR: Only this, your Honour, that the plaintiffs appear to ask your Honour to make an order striking out a relevant portion of our defence. We would be content to file a further amended defence perhaps today or tomorrow just deleting those portions which they seek to have your Honour strike out.

HIS HONOUR: Well, so, perhaps rather than subparagraph a of paragraph 13 of the plaintiff’s submissions, you would be proposing that you have leave to amend by deleting that paragraph.

MR DEL VILLAR: Yes, your Honour.

HIS HONOUR: All right, thank you. Mr Kirk, there does not seem to be any contest of any substantive nature. It is just a question of, with all due respect, face-saving, and one can understand that. Does it cause you any problems if, instead of your paragraph 13a, the direction is that the first defendant have leave to amend its defence by deleting subparagraph 71(b)?

MR KIRK: No, not at all, your Honour. No problem at all.

HIS HONOUR: We have just been joined by the Solicitor-General.

MR P.J. DUNNING, QC, Solicitor-General of the State of Queensland: My apologies, your Honour.

HIS HONOUR: Not at all, Mr Dunning, nice to see you.

MR DUNNING: Nice to see you, too.

HIS HONOUR: We have just reached happy agreement that in relation to Mr Kirk’s submissions of last Friday, paragraph 13a, the order that would be made would be that the first defendant have leave to amend its defence by deleting subparagraph 71(b).

MR DUNNING: Thank you, your Honour. At some convenient time, could I raise one matter in relation to that?

HIS HONOUR: Yes, please do.

MR DUNNING: Your Honour, I do not expect there be any other – there are no other changes of substance than what we made. I did not settle the pleading and I do not expect, given the people who did, that I would have any occasion to want to change it, but I would like the opportunity just to give it one final read, if there were insubstantial amendments. Perhaps though the best thing to do is – was your Honour proposing to set the matter down for hearing today?

HIS HONOUR: I am not in a position to give you a hearing date unfortunately.

MR DUNNING: That is all right, your Honour. I do not think I need to trouble your Honour. I do not expect there will be any – if they were they would be inconsequential and I could raise them at the next directions hearing. Thank you for that.

HIS HONOUR: All right, thank you. Mr Kirk, the other directions you seek seem to me to be appropriate. The only comment I make really I

suppose is in relation to subparagraph b to just draw your attention to the need to ensure that the special case books include the pleadings.

MR KIRK: Yes, your Honour.

HIS HONOUR: I mean, no doubt they would have been picked up anyway but just to make sure that they do because the relief that is sought is stated in the originating proceedings and the pleadings. Is there anything further you wanted to say about the directions you have sought?

MR KIRK: No, only one thing, your Honour. In relation to paragraph 13b, it has come to my attention on rereading the draft special case for the umpteenth time that there are just a couple of very minor errors and, to give you the main example, if your Honour noted paragraph 2 of the draft special case, it abbreviates the Fair Work (Registered Organisations) Act as “FW Act”, whereas in fact that should have its own abbreviation and then, for example, in paragraph 16 we need to insert a reference to the Fair Work Act. In other words, the two Acts have become a bit confused in the drafting. So what I was going to propose respectfully is that in order b, after the date “23 July 2014” words to the effect of “but with errors corrected” be inserted. I should note there is nothing whatsoever of substance in the errors. It is just a matter of fixing up a few little mistakes.

HIS HONOUR: I wonder whether we really need that, given that the direction is to file and serve a finalised version of the special case consistent with the draft. I suspect - - -

MR KIRK: That is probably right.

HIS HONOUR: - - - you could probably deal with that without any difficulty, I think, Mr Dunning.

MR DUNNING: Yes, certainly, your Honour, I am sure we can reach agreement on that - - -

HIS HONOUR: Yes. I appreciate the point, Mr Kirk, but I think you probably can deal with it without that further addition.

MR KIRK: Yes, please the Court.

HIS HONOUR: As I say, I am not in a position at the moment to actually give you a tentative hearing date, but can I ask how long do you think the case is likely to take?

MR KIRK: We would have thought one to two days, your Honour. If it was just ourselves and the first defendant we could probably knock it off in

a day, but I would anticipate – we have already had New South Wales intervene. There are four remaining Attorneys who are yet to indicate their position and my guess is that probably a few of them will intervene and that might push it into say a day and a half, something of that order.

HIS HONOUR: Yes, okay, thank you for that. Mr Solicitor, what do you think?
MR DUNNING: We agree. We in fact think a day would not be long enough and really two days should be allocated for it. One hopes that it would not take the full two days, but I agree with Mr Kirk. The plaintiff and defendant will effectively occupy a day and, like our learned friend, we expect that there will probably be interventions from four or five Attorneys in total.

HIS HONOUR: Yes, I think that is probably prudent. All right, well, do you have anything further you want to say?

MR DUNNING: No, your Honour, we do not, thank you.

HIS HONOUR: Very well. Now, having regard to the agreement between the parties and the submissions from the plaintiff dated 25 July, the directions that I will make are these:

1. The first defendant have leave to amend its defence by deleting subparagraph 71(b).
   
2. The plaintiffs file and serve a finalised version of the special case consistent with the draft filed on 23 July 2014, together with the special case books within 14 days.
   
3. The special case and stated questions are referred to the Full Court for hearing.
   
4. Part 44 of the High Court Rules 2004 (Cth) is to apply to the matter as if it were an appeal, save as modified by these orders.
   
5. The plaintiffs file and serve their written submissions on or before 25 August 2014.
   
6. The first defendant file and serve its written submissions on or before 15 September 2014.
   
7. The plaintiffs file and serve their written submissions in reply on or before 29 September 2014.
   
8. Liberty to apply to a Justice on three days’ written notice.
   
9. Costs reserved.
   

Any further orders sought?

MR DUNNING: No, thank you, your Honour.

MR KIRK: No, your Honour.

HIS HONOUR: Thank you, Mr Kirk. Thank you, Mr Solicitor. Adjourn the Court, please.

AT 9.08 AM THE MATTER WAS ADJOURNED