Construction Forestry Mining and Energy Union v Director of the Fair Work Building Industry Inspectorate & Anor [2016] HCATrans 249 (19 October 2016)

Last Updated: 20 October 2016

[2016] HCATrans 249

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A37 of 2016

B e t w e e n -

CONSTRUCTION FORESTRY MINING AND ENERGY UNION

Plaintiff

and

DIRECTOR OF THE FAIR WORK BUILDING INDUSTRY INSPECTORATE

First Defendant

A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

Second Defendant

NETTLE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON WEDNESDAY, 19 OCTOBER 2016, AT 9.29 AM

Copyright in the High Court of Australia

MR M.L. ABBOTT, QC: If your Honour pleases, I appear with my learned friend, MR R.F. GRAY, for the plaintiff. (instructed by Lieschke & Weatherill Lawyers)

MR N.J. WILLIAMS, SC: May it please the Court, I appear with MR B.K. LIM for the first defendant, the moving party on today’s summons. (instructed by Australian Government Solicitor)

HIS HONOUR: Mr Williams, I assume that you will go first, will you?

MR WILLIAMS: Yes, your Honour.

HIS HONOUR: Thank you.

MR WILLIAMS: Your Honour, I move on the summons filed on 5 October 2016. I read in support of it the affidavit of Anthony Peter Hall affirmed on 4 October this year, and I tender for the sake of the record the application for an order to show cause filed on 12 August, and the affidavit of Mr Ats affirmed on 12 August 2016.

HIS HONOUR: I will receive those and they will be marked as exhibit A1.

EXHIBIT A1: Affidavit of Anthony Peter Hall affirmed 4 October 2016; application for an order to show cause filed 12 August; and affidavit of Mr Ats affirmed 12 August 2016.

MR WILLIAMS: May it please the Court. The short point of our application for summary dismissal is that the plaintiff should have appealed to the Federal Court and its pre-emptive application to this Court is inappropriate and should be dismissed.

It is uncontroversial that, subject to an extension of time, the plaintiff could have appealed the substantive judgment – that making declarations and imposing penalties – to a Full Court of the Federal Court. The Director accepts that whether or not the plaintiff is in law capable of contravening section 500 is necessarily open to argument in such an appeal.

There are two other appeals on foot raising that constructional question and it is anticipated they will be listed in the February 2017 sittings of the Full Federal Court. The Director also accepts that the plaintiff could have appealed the interlocutory decision, although the CFMEU – the plaintiff disputes that.

HIS HONOUR: I do not suppose it really could have, practically speaking, because her Honour brought down final judgment, I take it, at the same time as the interlocutory judgment.

MR WILLIAMS: That is so. We do not submit that they could have appealed in a practical sense between the two, but we submit – although it is controversial as between the parties today – that they could appeal the interlocutory decision as well as the substantive decision.

HIS HONOUR: But, in any event, it would have been open on an appeal against final judgment for the Full Court to take into account the interlocutory ruling, would it not?

MR WILLIAMS: Indeed. For this Court to deal with the application to show cause will call into contention the interlocutory judgment and the questions raised at clauses 1, 2 and 3 of the application to show cause. Those are matters that will not arise, or will not necessarily arise, on an appeal against the substantive judgment, nor will the constitutional questions that are raised by the 78B notice that the plaintiff has served to the extent to which those matters properly arise at all.

Moreover, in this Court the constructional questions will not necessarily be resolved if the matter were to proceed. They will arise only if the error alleged is jurisdictional or if certiorari is available for error of law on the face of the record. The availability of certiorari will raise constitutional questions in this Court. For those reasons, in our submission, the plaintiff’s application is inappropriate and should be dismissed.

HIS HONOUR: It raises constitutional issues in the sense that certiorari is sought under section 75(v) of the Constitution or something else?

MR WILLIAMS: Yes.

HIS HONOUR: Yes, I see.

MR WILLIAMS: There will be a question about the scope of certiorari in relation to a superior court of record under 75(v), traditionally, of course, it being a writ that did not extend to superior courts of record but a question will arise whether it should so extend in order to enforce jurisdictional limits pursuant to 75(v).

HIS HONOUR: Even now that is something which is in doubt, is it, as a matter of authority?

MR WILLIAMS: Well, it is in doubt whether it goes further than that, as the plaintiff contends. The plaintiff contends that it goes to error of law on the face of the record.

HIS HONOUR: Yes, I see. Is it accepted that if there were error in her Honour’s determination, either on the interlocutory application or final judgment by reason of that, there would be error of law on the face of the record or is that too in dispute?

MR WILLIAMS: That too would be an open question. The scope of the record – would your Honour excuse me a moment?

HIS HONOUR: Certainly.

MR WILLIAMS: Well, it is on the face of the penalty judgment but not the interlocutory judgment.

HIS HONOUR: So it is accepted it is on the face of the penalty judgment?

MR WILLIAMS: Yes.

HIS HONOUR: Thank you. Is there nothing that could be got by constitutional writ that can be obtained by appeal to the Full Court?

MR WILLIAMS: Subject only to the controversy between us about the appealability of the interlocutory decision, the answer to that is no.

HIS HONOUR: Why is that a relevant controversy? It is gone in effect. Is it not inasmuch as the Full Court may take into account the consequences of that order?

MR WILLIAMS: Well, we submit that it is gone in the relevant sense, but it is the subject of three grounds in the relief sought.

HIS HONOUR: Yes, I see. Yes, thank you, Mr Williams.

MR WILLIAMS: Yes, thank you, your Honour.

HIS HONOUR: Mr Abbott.

MR ABBOTT: Our starting point, your Honour, is that what the learned judge did in this case was not an exercise of judicial power, both in refusing leave to file the interlocutory application and in determining the penalty – which were in fact liability and penalty proceedings – without considering whether, regardless of the admissions the CFMEU could as a matter of law be liable for a breach of section 500 of the Fair Work Act. As to the refusal of leave to file the interlocutory application, we say that this is a jurisdictional error because the refusal of leave constituted her Honour acting outside the limits of her Honour’s jurisdictional power.

HIS HONOUR: That is an administrative jurisdiction, is it?

MR ABBOTT: Yes, she was exercising an administrative jurisdiction and refused leave to file, and did so not because the interlocutory application was proper or appropriate but for no reason – no valid reason, we say, and we say that the law as laid down by Justice Gaudron in Re Macks; Ex parte Saint seems to point at and at least support what we have to say in this regard. Could I take your Honour to Re Macks; Ex parte Saint [2000] HCA 62; (2000) 204 CLR 158. I am reading from page 185, paragraph 53 of her Honour’s judgment:

In establishing the Federal Court as a “superior court of record”, the Parliament has, at the very least, validly authorised that Court to make a binding determination on the question whether or not it has jurisdiction in a matter, subject only to the parties’ right to appeal or to seek relief pursuant to s 75(v) of the Constitution. And, if the Federal Court determines that it has jurisdiction –

which is what her Honour did in this case:

it is obliged, subject only to limited and well recognised exceptions, to exercise that jurisdiction to determine the rights and liabilities in issue.

In the footnote at (87) her Honour says:

In general terms, those exceptions relate to proceedings which are an abuse of process –

et cetera. In other words, we say what her Honour has done in this case is to decline to exercise judicial power but has instead exercised administrative power, done an administrative act, and that is referred to by our learned friends in their outline at paragraph 14 where our friends say this:

Although the actual order of the primary judge was that leave to file the proposed interlocutory application be refused, it is clear that her Honour’s reasons for making that order were that the relief sought by the proposed interlocutory application would be refused. That is, the primary judge, in effect, dealt with the interlocutory application on its merits, refusing leave to file presumably because there would be no utility in the application being filed.

HIS HONOUR: Sorry, just take one step back, please. You said that her Honour had been guilty of jurisdictional error, or constructive jurisdictional error, by declining to exercise judicial power.

MR ABBOTT: Yes.

HIS HONOUR: Presumably, judicial power which you say she declined to exercise is to determine the meaning of section 793?

MR ABBOTT: And determine not just whether there should be leave to file but should have granted leave to file and determined the interlocutory application as a matter of law.

HIS HONOUR: Why? The question was whether you should have leave to file an application for leave to withdraw an admission. That was the jurisdiction she was exercising, namely, the determination of that application. Why does that necessarily bespeak a requirement to make a binding determination as to the meaning of 793 still less your liability?

MR ABBOTT: Because we say, your Honour, that the learned judge failed to consider, or adequately consider, the issue of section 793 liability in determining the issue of leave to file.

HIS HONOUR: Just bear with me.

MR ABBOTT: In that sense, by failing to properly determine that issue her Honour failed to determine the interlocutory application - - -

HIS HONOUR: You say, do you not, that the interlocutory application was an interlocutory application of an administrative kind?

MR ABBOTT: Yes, we do.

HIS HONOUR: So, thus, her Honour was exercising – according to your submission – an administrative jurisdiction?

MR ABBOTT: And we are here initially – we brought these proceedings because those then acting for the first defendant agreed and conceded that it was an administrative power.

HIS HONOUR: Yes, I saw that but it is hardly determinative, is it?

MR ABBOTT: No, I am not saying it is determinative. I am just saying that is why, if your Honour wants an explanation as to why we are here - - -

HIS HONOUR: No, no, I understand.

MR ABBOTT: - - - and arguing in these proceedings, that is the cause.

HIS HONOUR: But you say that by failing to make an, as it were, authoritative determination as to the meaning of section 793 for the purposes of determining whether to allow you leave to file your application, her Honour failed to exercise the administrative jurisdiction to decide whether you should be permitted to file?

MR ABBOTT: I think it is more nuanced than that, your Honour. We say that this was not an interlocutory application that was frivolous or vexatious or an abuse of the court’s processes. Ergo, the order should have been leave to file granted. The question of determination of it, once filed – once leave to file was given – is another matter. We then turn to that and we say that even if one assumes, as my learned friends would want the Court to assume, as per their outline of argument, that in effect her Honour had dealt with the interlocutory application on its merits, we say even looking at that issue, that did not happen.

So, there is a twofold error here, we contend. Her Honour did not allow us leave to file, did not properly construe the Act which had impact on both the determination of the merits of the interlocutory application and, of course, was sent to a determination of the penalty issues. So, on any view, we say her Honour never undertook a detailed examination of the section 793 issues and never properly considered and determined the section 793 issues which were essential for a judicial determination of both the merits of the interlocutory application and, of course, the penalty application itself. We have set out the relevant passages in our - - -

HIS HONOUR: Can I ask you this? If you had been permitted leave to file the notice and after all the paperwork had been done you had gone back to her Honour and she had refused you leave to withdraw the admission for the same reasons that she gave for refusing you leave to file the application, would there still be, would you say, a jurisdictional error?

MR ABBOTT: Yes, we would.

HIS HONOUR: Because?

MR ABBOTT: The jurisdictional error is failing to construe the statute, failing to construe section 793, and failing to act judicially in determining the outcome of the interlocutory application.

HIS HONOUR: Well, let us assume for the sake of argument - - -

MR ABBOTT: Now, that may be appealable - - -

HIS HONOUR: Yes, I am with you. Assume for the sake of argument she had let you file a bit of paper and there had been a properly constituted application for leave to withdraw the admission - - -

MR ABBOTT: Yes.

HIS HONOUR: - - - why would it have been jurisdictional error for her Honour to hold – as in effect she did in this case – that it requires exceptional circumstances to permit a party to advance further arguments after judgment stands reserved and she was not persuaded they were sufficiently exceptional?

MR ABBOTT: Because we say that her Honour – as I have said, your Honour – failed to construe the statute, failed to examine the merits of does section - - -

HIS HONOUR: No, I appreciate that, but - - -

MR ABBOTT: - - - does section 793 result in a pathway home for liability for the CFMEU in respect of a section 500 breach?

HIS HONOUR: I am with you on that point, but what I am asking is the new argument was, in effect, section 793 properly construed cannot result in CFMEU having contravened section 500.

MR ABBOTT: Yes.

HIS HONOUR: The question was ought you be permitted to advance that new argument after judgment stood reserved.

MR ABBOTT: Yes.

HIS HONOUR: Why would it be a jurisdictional error – put aside other kinds of error – for her Honour to have said, no, you may not be permitted to advance that new argument because the circumstances are not sufficiently exceptional?

MR ABBOTT: Because, on our submissions, we say it is the case, or at least fairly arguable the case, that CFMEU’s liability cannot be made out.

HIS HONOUR: Is the contention then in the end that, contrary to what her Honour found, the cases were sufficiently exceptional?

MR ABBOTT: Yes, were sufficiently exceptional, but I do not put it on the grounds of exceptionability because that is not a jurisdictional error.

HIS HONOUR: No, that is the problem.

MR ABBOTT: I put it on the basis of section 793 was never properly construed by her Honour. She never went to section 793.

HIS HONOUR: I know she did not, but she said I am not going to because the case is not sufficiently exceptional to let you put that new argument. Why is that jurisdictional?

MR ABBOTT: Because we say that the law requires her to determine the issue between the parties, and what - - -

HIS HONOUR: It does not. I mean, if you come along with a new argument after judgment stands reserved, it is the law, is it not, that you have to show exceptional circumstances?

MR ABBOTT: Well, no, your Honour, not if it is plain on the – well, your Honour is using the word “exceptional”. I am saying it is plain on the face of section 793 and section 720, I think it is – sorry, 512 – that the CFMEU could never be a permit holder. I say it is obvious that section 793 – sorry, that section 500 could not be infringed by the CFMEU, and that whether one regards it as exceptional or obvious, her Honour was obliged as a matter of hearing and determining the issue to grapple with the issue as to the application of section 793 to section 500 and this her Honour never did. It is that failure which we say constitutes the jurisdictional error. It may well be an error on the face of the record as well, as my learned friend I think concedes.

Could I move to the failure that we contend is the failure to construe the statute, your Honour? We say whether or not the admissions were - - -

HIS HONOUR: I am sorry, just before you go there – you do not in your application, do you, seek certiorari to quash the orders?

MR ABBOTT: We seek certiorari to quash; yes, we do.

HIS HONOUR: In the application for order to show cause?

MR ABBOTT: We do. We do, your Honour.

HIS HONOUR: You have certiorari against the Registrar for the papers.

MR ABBOTT: Yes.

HIS HONOUR: I did not find any more certiorari.

MR ABBOTT: Well, I am sorry, your Honour, we sought mandamus.

HIS HONOUR: Yes.

MR ABBOTT: Yes.

HIS HONOUR: Well, that will not go for error of law on the face of the record, will it?

MR ABBOTT: Well, your Honour, it may be that, in view of what your Honour has just said, we should amend, or apply to amend.

HIS HONOUR: Yes, I see.

MR ABBOTT: In my submission, our application should not be defeated by an inelegance of drafting.

HIS HONOUR: I understand. Just to come back to the substance of the matter, what I am driving at – is there any point that you make that because this was an application for leave to file a document rather than an application for leave to withdraw the admission that makes it a failure to exercise jurisdiction or is it in each case the same, the failure is the failure to make a determination about the meaning of 793?

MR ABBOTT: No, your Honour, we say it is the failure to permit us to give leave to withdraw - - -

HIS HONOUR: The admission.

MR ABBOTT: - - - leave to file, your Honour. It is failure - - -

HIS HONOUR: So you do draw a distinction between them.

MR ABBOTT: Yes, we do draw a distinction between them.

HIS HONOUR: It is important to your case that it be an administrative application, is it – be seen as such?

MR ABBOTT: Yes, your Honour.

HIS HONOUR: Because if it had been the case that her Honour had let you file a piece of paper and you had gone back and argued whether you should have leave to withdraw the admission, that plainly would have been an exercise of judicial power. I take it you would accept - - -

MR ABBOTT: Yes, your Honour, and that may or may not give rise to an application for certiorari, depending upon what type of error it was then alleged that her Honour had committed.

HIS HONOUR: Yes.

MR ABBOTT: It would also, as your Honour has pointed out, give rise to a right of appeal in respect of errors of law. But the characterisation of the errors of law would depend on whether or not certiorari was available or not.

HIS HONOUR: Is it clear that the reasons for judgment for the interlocutory decision are a part of the record?

MR ABBOTT: Well, we contend that they are part of the record, yes, though they may not be.

HIS HONOUR: I mean, it used to be clear but then Craig made it unclear, did it not?

MR ABBOTT: It is debatable on the authority of Kirk. I was hoping to avoid that debate.

HIS HONOUR: I would like to avoid it too but I rather imagine I have to get into it, do I not? I mean, if your case is going to come down to certiorari for error of law on the face of the record it has to be at least reasonably arguable that there is error of law, on the face of the record.

MR ABBOTT: It is a matter that has been the subject of comment by the Full Court in Kirk about the question of whether Craig should be reopened and, obviously, it would require the reopening of Craig to discuss this matter.

HIS HONOUR: All right, thank you.

MR ABBOTT: Your Honour, could I turn to the failure to construe the statute? Our point on this is simple, that whether or not the admissions were withdrawn – and we know that they were not able to be withdrawn – the penalty decision, we say it was infected with error - that is, error not only on the face of the record but jurisdictional error – because as a Chapter III judge her Honour had a duty to consider and determine the issue as to whether the CFMEU could contravene section 500 of the Fair Work Act by reason of section 793, and I call that construing the statute.

This constitutes a jurisdictional error because her Honour failed to properly hear and determine that issue. It is also, of course, a denial of – if I am right, a denial of procedural fairness and, of course, it is a failure to give any reasons because if she did not deal with the substance of this error then she did not give any reasons for it and that failure is also a jurisdictional error.

HIS HONOUR: You know, in the criminal courts it not infrequently happens that people are convicted on the basis of a plea which they have sought to withdraw. It is not suggested as a rule that the judge has thereby committed a jurisdictional error. It might be suggested it is been productive of a substantial miscarriage of justice and the conviction should be set aside, but it is accepted normally that what has been done is within the exercise of jurisdiction. Why is it any different here?

MR ABBOTT: I think I can answer that quite simply, your Honour. The High Court has said that it is always open to an accused to admit guilt. An admission of guilt in respect of an adversarial system where the prosecution lays a charge and there is an admission of guilt, the High Court – and I do not have the case at hand but your Honour probably knows it better than I do – that is always open to an accused person, even though they are innocent.

HIS HONOUR: Yes. Maxwell, Masterton, those cases.

MR ABBOTT: Yes. But you cannot admit guilt to an offence not known to law. That is the issue here. We say this offence was not known to law.

HIS HONOUR: I appreciate that, but you can do it physically even though there is no such offence, and you can be convicted on the basis of such an admission and it will stand unless you successfully appeal against conviction.

MR ABBOTT: Not if the offence was not known to law. I mean, that is what happened in R v Cook; Ex parte Twigg.

HIS HONOUR: Yes.

MR ABBOTT: The unfortunate solicitor, Mr Twigg, was in effect convicted of contempt in circumstances where the offence was - - -

HIS HONOUR: I know, I appreciate - - -

MR ABBOTT: - - - as Justice Gibbs said, not known to law.

HIS HONOUR: But it was not a case about jurisdictional error, was it?

MR ABBOTT: Well, we did not say it was a case about jurisdictional error. That is what Justice Gibbs said it was.

HIS HONOUR: Yes, all right.

MR ABBOTT: It was a case of jurisdictional error and it was an error of law on the face of the record. I mean, we are really in no different position from the unfortunate Mr Twigg. The record revealed – to use Justice Gibbs’ words:

that the charge was unsustainable in law and that there was no evidence to support it.

He said that:

The record constituted by the conviction and charge read together reveals on its face a fundamental error in law.

HIS HONOUR: Yes. Did he say it was jurisdictional or just error in law on the face of the record? It was certiorari, was it not?

MR ABBOTT: Yes.

HIS HONOUR: Did his Honour say it was jurisdictional or just error of law on the face of the record?

MR ABBOTT: I think he said it was error of law on the face of the record.

HIS HONOUR: So do I. We come back to the question, why it ought be regarded as a jurisdictional error for a judge to convict upon a plea which he has refused leave to withdraw?

MR ABBOTT: Well, R v Cook; Ex parte Twigg stands for the proposition that certiorari lies in those circumstances.

HIS HONOUR: I am with you on that but it is just the jurisdictional point.

MR ABBOTT: Well, I need to go back to my original proposition, namely, that the function of the Chapter III judge is to hear and determine the issue, and the issue in this case is whether or not section 793 could impose liability for breach of section 500 by the employees of the CFMEU. That is the issue which the learned judge was required to hear and determine, to use the words in Re Macks. We say that her Honour did not “hear and determine” that issue, and to make good that I need to take your Honour to what her Honour in fact did do at – I will need to refer you to the pages of the affidavit where her Honour’s judgment is set out.

Could I take you first of all to page – I am now dealing with the penalty provisions - page 40, and this is the start of her Honour’s decision. At page 40 she dealt with the three matters, and you will see at page 40 she deals with SAD 59 of 2015, and over on page 41, the third dot point from the bottom, she says this is what I am proceeding on, these are the agreed facts, and the third dot point:

The CFMEU is taken by the operation of s 793 of the FW Act to have engaged –

Over the page, SAD 60, and then to page 43, the third dot point down, the same words appear. Then on page 43 SAD 61 is referred to and, finally, on page 45, the first dot point:

The CFMEU was taken by the operation of s 793 –

The only other references to section 793 that I have found in her decision are at page 51, paragraph 22 of her Honour’s judgment where, in the fourth dot point, her Honour says:

in relation to the CFMEU, noting that its liability is pursuant to s 793(1)(a) –

and similarly, she repeats that on page 52, paragraph 24 in the third dot point and at paragraph 26 in the second dot point. Lastly, at page 54, paragraph 34, her Honour says:

It is common ground that, at material times, the individual respondents were all officials of the CFMEU for the purposes of s 793 –

Those are the only references to section 793 in the penalty judgment. The declarations that were made in respect of the penalty judgment are at pages 31, 35 and 37 and her Honour’s declarations at page 33, paragraph 1(b) – her Honour declares that by reason of section 793; at page 35, similarly; and page 37, similarly.

So we say that what has happened is a total failure by her Honour to carry out the functions of a Chapter III judge and construe the statute. Her Honour has proceeded on the agreed facts and acted in an excess of jurisdiction by determining liability and therefore penalty, not on any proper construction of the statute but on the agreed, but disputed, agreed facts.

But even on the agreed facts, the CFMEU is not liable because there was no agreed fact that the CFMEU was a permit holder. I acknowledge that there was an agreed fact that they conceded that they had breached section 500, but they had not conceded anywhere on the agreed facts that they were a permit holder and we say that the issue of whether or not the CFMEU was a permit holder is a sine qua non. It must be established, and we say it cannot be established because the Fair Work Act sets down conditions as to who can and who are permit holders.

We therefore say that in this case we are no different from R v Cook; Ex parte Twigg. We have been penalised, as was Mr Twigg, for a contravention of the Fair Work Act which is unknown to the law, namely for a breach of section 500 based upon section 793 of the Fair Work Act. We say that whilst this may be an error of law on the face of the record, it is also a jurisdictional error because her Honour has found liability against the CFMEU on the basis of a liability unknown to the law. I think that is all I really want to say about the penalty decision, your Honour. I think any more would be repetitious.

HIS HONOUR: Thank you.

MR ABBOTT: Can I just briefly say, as to the inappropriate invocation of jurisdiction, I think our first point is that they are now saying the contrary of what they submitted to Justice Collier. As of Monday my learned friends admitted that that submission was wrong, and whilst that may not carry much weight today, it explains why we are here and when you add to that that this is an issue of general importance and we pray in aid of that submission what we have said in our reply submissions at paragraph 3.6 – and I will not read them out, but if your Honour goes to page 3 of our reply submissions, at 3.6.1, 3.6.2, 3.6.3, 3.6.4 and 3.6.5 we have set out five reasons why the order for dismissal sought by my learned friends should not be made on the discretionary grounds.

In 3.6.1 we have referred to the fact that there are currently 28 identified matters before the Federal Court which involve at least 120 allegations of this type. So the question we say is of general importance and the proper exercise of the judicial power of the Commonwealth, that is the question of jurisdictional limits, calls for a determination of interlocutory applications properly brought, not as in this case, leave to file the interlocutory application being refused, and that it is only in cases, as I have said, where the interlocutory application, on its face, is frivolous, vexatious or an abuse of process that leave to file should not be allowed.

A further issue which we pray in aid of the appropriate invocation of jurisdiction is that the issue of the enforcement of the jurisdictional limits of the Federal Court when the court acts outside what my learned friends have referred to as the norms of conduct, or what we say is an excess of jurisdiction, are properly matters for this Court to consider.

HIS HONOUR: I trust it is not too prosaic, but the effect of that submission is that what you are seeking, amongst other things, is a determination that when there is an application of this kind, namely to withdraw a plea in relation to a liability or offence which is unknown to the law, it is essential to the appropriate exercise of jurisdiction to make that determination of what is known to the law.

MR ABBOTT: Yes.

HIS HONOUR: Is that right?

MR ABBOTT: Yes, because that is what Justice Gordon and, I assume your Honour has somewhere in one of your own judgments said that is the nature of judicial power, determining the disputes according to law. So we say, your Honour, that her Honour Justice Collier failed in three ways: firstly, in refusing the leave to file - we characterise that as acting outside the jurisdiction; secondly, the way in which her Honour refused leave and refused to consider the statutory construction argument – we say that constituted a denial of procedural fairness; and thirdly, in both refusing leave to file and then failing to consider the statutory construction argument on the penalty decision, but merely relying upon the admissions, her Honour failed to exercise the jurisdiction that she was required to exercise as a Chapter III court – in essence, failed to determine, properly determine the statutory construction point regardless of whether or not there were any admissions. Of course, obviously her Honour, on that scenario, failed to give reasons.

So whilst we accept that some or all of the matters that I have mentioned may be errors on the face of the record, we say that like was said in Kirk, the conclusion that jurisdictional error is shown makes consideration of whether there is error on the face of the record superfluous, in our submission, the demonstration of jurisdictional error is enough, non constat that it may be error on the face of the record. Is it appropriate that I address your Honour on costs because my learned friend - - -

HIS HONOUR: I have a couple of questions first and then later certainly. This issue of whether the determination of whether you should be allowed to file your application, being judicial or administrative, why is it not a judicial determination?

MR ABBOTT: Why is the decision - - -

HIS HONOUR: The decision to refuse - - -

MR ABBOTT: To refuse to file?

HIS HONOUR: Yes.

MR ABBOTT: Well, we have said in our outline that we rely on Manolakis where there are apparent – could I put it this way? At worst for us we say there are conflicting decisions of the Full Federal Court and other jurisdictions as to whether or not this is an administrative or a judicial act.

HIS HONOUR: Manolakis does not say that this is administrative, does it?

MR ABBOTT: It says that an aspect of it is administrative.

HIS HONOUR: It says that a direction by the judge to the registrar not to receive something for filing is administrative.

MR ABBOTT: Not open to review.

HIS HONOUR: We are not dealing with that there. We are dealing here with an application by you for leave to file.

MR ABBOTT: Yes.

HIS HONOUR: That is a bit different, is it not?

MR ABBOTT: Yes, it is.

HIS HONOUR: I am just trying to find why it should be thought as a matter of principle this is other than a judicial determination, albeit a pretty low level one.

MR ABBOTT: All I can say in response to that is, as we have said in our outline, in our submission it is arguable that it is judicial; it is arguable that it is administrative. In a sense what the learned judge did – her orders are just leave to - - -

HIS HONOUR: Leave to file is refused.

MR ABBOTT: Leave to file is refused. That constituted, we say, an administrative direction to the registrar not to accept the documents.

HIS HONOUR: Yes, I see. Now, the second point is – let us assume for the sake of argument it was administrative and therefore not the subject of a right of appeal to the Full Court, why could you not have just appealed against, not conviction, but liability and penalty?

MR ABBOTT: I have never said we cannot in respect of the penalty decision.

HIS HONOUR: Right.

MR ABBOTT: What I do say is that we also can seek certiorari and prohibition because of the jurisdictional errors. We may be able to appeal because they are errors of law on the face of the record and therefore appealable errors of law but there are two ways of going. We have come here, as I said, because of the concession that was made that the only course open to us was by way of administrative action and therefore judicial review.

HIS HONOUR: Plainly you could have argued before the Full Court on appeal against liability that there has been a miscarriage because we were denied the ability to withdraw a plea in relation to something we could never have committed. All of that could have been agitated, could it?

MR ABBOTT: Your Honour, today, my learned friend says the Director, in effect, if there were to be an appeal, says this. We have not heard that before.

HIS HONOUR: But it matters not if it be the fact, does it?

MR ABBOTT: No. We do not want to go down the appeal route and have the Director saying this is an administrative matter and there is no right of appeal.

HIS HONOUR: It does not matter much, with respect, what he says. It is what the Full Court says about it.

MR ABBOTT: Of course. But in any event, your Honour, I think that the main factor that I can urge - point your Honour to refer this to the High Court, the Full Court of this Court, is that this case raises for the consideration of the Court what are the limits of a Federal Court judge’s jurisdiction and were those limits exceeded. That is a Chapter III issue, par excellence, in my submission.

HIS HONOUR: Yes. All right, you wanted to say something about costs.

MR ABBOTT: I assumed from the outline that costs are still an issue.

HIS HONOUR: I suppose if the Director wins he wants his costs, I assume.

MR ABBOTT: I make then the following points. First of all, costs are discretionary. We should not be penalised in costs for pursuing a remedy that the first defendant, by their approach in the court below, indicated was appropriate and, as I said, it is only on Monday - - -

HIS HONOUR: Sorry to interrupt, but can I stop you. I did look in your material for someone saying we were misled by the Director’s contentions below to think that we could not do other than seek prerogative writ, or constitutional writ relief. Is there anything to that effect anywhere in it?

MR ABBOTT: No, we do not say we were misled. All we say is that they made the concession - we thought they were right. We proceeded on that basis. We proceeded on the basis that the refusal of leave to file was administrative - - -

HIS HONOUR: That is what I am driving at. Your side took them at face value and proceeded on that basis.

MR ABBOTT: No higher than that, your Honour.

HIS HONOUR: Approached it on the basis that the view was on your side, that “Well, gee, if it’s administrative, we can’t go by appeal”.

MR ABBOTT: Yes, that was the deal. They have now, in their outline, changed their position again because they now say that her Honour necessarily decided even implicitly that the CFMEU was capable of contravening section 500. I think the strongest point, though, is that, on our view, the case was reasonably arguable. The first defendant accepts - and this is paragraph 27 of their outline:

It may be accepted that existing authority in the Full Court of the Federal Court, to which the CFMEU refers, holds that a judge’s direction to a registrar of the Court not to accept a document for filing is not a “judgment” within the meaning of the Federal Court of Australia Act 1976 (Cth) that would be amenable to appeal –

In their reply submissions at paragraph 10, the Director says:

the Director would accept: (a) that there is an arguable error of law in relation to the construction of ss 500 and 793 of the Fair Work Act 2009 (Cth); (b) that that error appears on the face of the record of the penalty decision, because it appears from the declarations of contravention without recourse to the reasons for judgment; and (c) that it is arguable that certiorari lies for error of law on the face of the record.

We say that all those are indications and concessions that what we have done is reasonable in the circumstances and that we should only be penalised by way of costs for an unreasonable application brought in before your Honour. We do not see that it is necessary for your Honour to decide whether the issue of the High Court Act and Rules deal with the issue of costs and that section 570 does not apply.

All we say about that is that section 570 of the Fair Work Act at least points the way in which your Honour’s discretion ought to be exercised and we refer to the case on the combined list of authorities of De L v Director-General, Department of Community Services [1997] HCA 14; (1997) 190 CLR 207 at 222, case number 9, only that in that decision – and they were dealing obviously with a different set of regulations and a different Act, but the Court said, and this is about two-thirds of the way down, just before the last complete paragraph:

That is not to say that reg 7 is not a relevant consideration in the exercise of the Court’s power under s 26. It is enough to say that, in the circumstances of this case, the regulation is not a compelling reason against the order for costs –

All we say, your Honour, is that section 570 should be taken into account as a relevant consideration as to what the normal order should be in cases like this, and notwithstanding the existence of section 26, which gives your Honour power, coupled with your Honour’s discretion and coupled with the fact that this was, on any view, a reasonable application, were your Honour to be against us an order for costs should not be made.

HIS HONOUR: Thank you. One further question just occurred to me on the substantive matter, let us say the Full Court took the determination of section 793 on, it still would not resolve the issue, would it? It would have also to consider whether or not the proper construction of section 500, I suppose, is whether you are a permit holder or whether it is necessary that you be a permit holder.

MR ABBOTT: It is not argued, not put against us that we are permit holders.

HIS HONOUR: That you are permit holders. Yes, I see.

MR ABBOTT: Or capable of being a permit holder.

HIS HONOUR: So it is all down to 793?

MR ABBOTT: Yes, your Honour, all down to 793.

HIS HONOUR: Does it follow from that that if there were a favourable determination, that is favourable to the CFMEU, as to the meaning of 793, the liability would have to be set aside?

MR ABBOTT: Yes, your Honour, and the 28 cases in which it is similarly raised would all follow the same course.

HIS HONOUR: One further question – I know you are out of time now for an appeal to the Full Court. Is it to be supposed one way or another that leave to appeal out of time would be refused, given the way in which the Director has behaved until very recently?

MR ABBOTT: I cannot speculate on that. It would depend upon the ruling of three of their Honours in the Federal Court.

HIS HONOUR: Yes, thank you. Yes, Mr Williams.

MR WILLIAMS: Could I take your Honour to page 103 of the affidavit?

HIS HONOUR: Yes, certainly.

MR WILLIAMS: Perhaps more accurately, the foot of 102. This is a document that commences at page 99, being the “CFMEU Supplementary Submissions on Leave to File”, the sentence that starts at the foot of 102:

The proposed application which the CFMEU seeks leave to file concerns the substantive rights of the CFMEU in litigation before the Court and the question of leave to file an interlocutory proceeding in such circumstances involves an exercise of judicial rather than administrative power.

Notwithstanding that in certain senses we took a different view below, that submission, with respect, is plainly right for the reasons that are given in our reply submissions – paragraph 4 of our reply submissions quoting from the decision of the Full Court of the Federal Court in Bizuneh v Minister for Immigration and Multicultural and Indigenous Affairs:

An application to a Judge for such leave, pursuant to which submissions would be presented and considered, would be determined in the exercise of judicial power.

That is, with respect, plainly correct. The concession or the point that we made in our substantive submissions at paragraph 27 concerned the quite different case of a power, admittedly in the registrar, to be exercised ex parte in the ordinary course whether to accept a document for filing or not, which is then the subject of a question, as it were, from the registrar to a judge. Determined ex parte without a hearing of the parties is a quite different question.

The interlocutory decision here was plainly made in the exercise of judicial power, we submit, and we made our position clear in our substantive submissions in this matter and not simply in the reply. The submission that her Honour should have dealt with the matter by way of accepting the filing of the document, and then ruling on it, rather than refusing leave to file is one that elevates form over substance. It is essentially a contention that her Honour filled out the forms wrongly and a submission of that kind would not command acceptance.

But leaving all of these questions aside, it does not explain at all why an appeal was not brought from the substantive judgment, from the penalty judgment. No submission has been put on the other side that an appeal could not be brought from the substantive judgment and we accept that the 793 questions would be in play in respect of such a decision.

So, in one sense the questions about administrative versus judicial characterisation of the interlocutory decision are beside the point, given the capacity to bring – the admitted capacity to bring, if brought within time - - -

HIS HONOUR: Might I assume that the Director would support an application for leave to appeal out of time?

MR WILLIAMS: Whether or not we would support one would depend on the terms in which it is put. Your Honour has made the observation that there is nothing in the material that explains why the course was taken of coming to this Court, not the Federal Court, in circumstances where it is admitted on the other side of the record that an appeal against the penalty judgment was always understood to be available, or at least it is admitted that it was available.

There is no explanation as to why that course has been taken. It is not for us to consent to such an extension, of course. It is still a matter for the exercise of a discretion. Having said all of that, the application to this Court was brought three days after the appeal period against the substantive decision expired. Three days is not the kind of period that would lead the Director in the ordinary course to have a meritorious objection to an extension of time and, subject only to the nature of the explanation that is given as to why the matter was brought in this Court rather than in the Federal Court, one might assume the direction in which that court might exercise its jurisdiction. But that is a question for that court’s jurisdiction and not one for the Director’s consent.

One can imagine circumstances in which a frank explanation of the reason why the proceeding was brought in this Court might lead the Full Court to take a sceptical view, but that is all a matter which, at the moment, is not the subject of any evidence before your Honour.

HIS HONOUR: All right.

MR WILLIAMS: Of course, it would ultimately be a matter for a judicial – exercise of a judicial discretion by a Judge or three Judges of the Full Court. I should say, your Honour, that we do not take any point about the form of the second prayer for relief, the form of the prayer for certiorari. We understand it to be an application to quash both judgments.

Your Honour raised with our friend the question about whether the matters would be resolved in this Court if the Court were in the plaintiff’s favour on the constructional question. They will not be resolved in this Court unless the questions, in part constitutional questions and certainly difficult questions about the nature and scope of the writs are resolved in the plaintiff’s favour as well. Those are questions that do not arise in the Full Court.

So whether the error is jurisdictional, this matter being one that the application of a norm of conduct in the Federal Court is one that is normally within that court’s discretion to get right or get wrong, whether certiorari runs to error of law on the face of the record is still an open question, and those matters will arise and that, of course, has a constitutional dimension as well. Those matters will arise in this Court and will not arise in an appeal against the substantive judgment in the Federal Court.

HIS HONOUR: Are they reasons, therefore, to refer the matter to the Full Court, or reasons not to?

MR WILLIAMS: Reasons not to, your Honour. The Court does not lightly take on constitutional questions and in circumstances where there is an avenue of appeal available in which those questions will not arise the Court would take its ordinary course of avoiding the determination of a constitutional issue.

HIS HONOUR: Yes.

MR WILLIAMS: Until a vehicle that necessarily raises it comes before the Court.

HIS HONOUR: Yes, thank you.

MR WILLIAMS: If I could turn then to costs. If your Honour were in our favour in relation to the substantive questions, there is an issue whether section 570 of the Fair Work Act applies but even if it does apply, if your Honour were to dismiss the application on the basis on which we seek dismissal, it would follow, in our submission, that the proceedings were instituted without reasonable cause, there being an accepted avenue of appeal available against the substantive judgment in the Federal Court.

HIS HONOUR: Yes.

MR WILLIAMS: So within section 570(2) of the Fair Work Act costs would follow the event, there being no reasonable cause.

HIS HONOUR: Yes, thank you.

MR WILLIAMS: Unless there are matters your Honour wishes to raise, those are our submissions.

HIS HONOUR: No. Thank you very much, Mr Williams. I propose to reserve my decision, although, ladies and gentlemen, I will endeavour to give it fairly quickly – not today but within the near future.

Adjourn now, sine die.

AT 10.29 AM THE MATTER WAS ADJOURNED