Unions NSW & Ors v State of New South Wales [2018] HCATrans 194 (26 September 2018)

Last Updated: 26 September 2018

[2018] HCATrans 194

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S204 of 2018

B e t w e e n -

UNIONS NSW

First Plaintiff

NEW SOUTH WALES NURSES AND MIDWIVES’ ASSOCIATION

Second Plaintiff

ELECTRICAL TRADES UNION OF AUSTRALIA, NEW SOUTH WALES BRANCH

Third Plaintiff

AUSTRALIAN EDUCATION UNION

Fourth Plaintiff

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

Fifth Plaintiff

HEALTH SERVICES UNION NSW

Sixth Plaintiff

and

STATE OF NEW SOUTH WALES

Defendant

BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 26 SEPTEMBER 2018, AT 9.30 AM

Copyright in the High Court of Australia

____________________

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

MR J.K. KIRK, SC: May it please the Court, I appear with my learned friend, MR B.K. LIM, for the defendant. (instructed by Crown Solicitor’s Office (NSW))

HER HONOUR: Yes.

MR OWENS: Has your Honour both our submissions and the consent orders that were most recently provided to the Court?

HER HONOUR: Yes, I have. Well, in short, Mr Owens, I see the force of the submissions that the matter should not be remitted and I understand there is some urgency about the matter.

MR OWENS: Yes, your Honour will have gathered from the submissions that the legislation starts - - -

HER HONOUR: It cuts in on Monday of next week.

MR OWENS: On Monday. Exactly.

HER HONOUR: Yes.

MR OWENS: So from Monday this legislation will be affecting the ability of my clients to participate in public discourse about the next election.

HER HONOUR: Yes.

MR OWENS: But the orders that have been drafted have been drafted against the hope – perhaps is the way of putting it – that the Court might be able to afford us a hearing in December, if that were possible. My clients would obviously be grateful for any earlier date but we anticipate there would just be a range of practical problems with achieving that.

HER HONOUR: I suspect that is so. I have made some inquiries, having seen what I took to be consent orders; I was not quite sure what their status is.

MR OWENS: I think they are consent but they were pessimistically consented to by us that December would be the earliest feasible thing. I think my friend would say – he would say any earlier than December is difficult for him. We would say we will obviously move heaven and earth to meet whatever the earliest convenient date of the Court would be.

HER HONOUR: Yes. Mr Owens, it would be practical for this matter to be listed on Tuesday, 4 December. I suspect that is the most sensible course. One other possibility would be Friday, 9 November, but – well, perhaps I should – do I understand from you that - - -

MR OWENS: Can I tell your Honour that we will do whatever we need to do to take 9 November, if that were available. I suspect that my learned friend would try to persuade your Honour that December should remain the date.

HER HONOUR: Yes. All right, perhaps I had better hear from Mr Kirk.

MR OWENS: Thank you, your Honour.

MR KIRK: Your Honour, I think we would seek the December date, the 4th, essentially for a couple of reasons. Although we are obviously very hopeful and, indeed, reasonably confident that we will be able to agree a special case, nevertheless there is a degree of research and work that has to go into preparing the material that would go into the special case.

HER HONOUR: Am I right in understanding that a draft has been served on you?

MR KIRK: Correct. So we are simultaneously working on the defence and getting materials together for the special case and so forth. So in the consent orders, the proposed consent orders, your Honour would see that it is proposed that we file a defence by next Friday, that is the 5th, and provide additional amendments and so forth in relation to the proposed special case by the Friday thereafter. On instructions, we think we are moving pretty expeditiously but we do need a bit of time to gather relevant material. So, as a matter of timing, we prefer the December hearing.

The other point worth making I think is that in Unions NSW (No 1), if I can call it that, and in McCloy, both of them went into a second day, taking account of interventions by at least the Commonwealth and I think one, two or more States and Territories.

HER HONOUR: Yes.

MR KIRK: So our own estimate for this matter is it probably would go into a second day, given the nature of the issues, and so that probably militates in favour of the December hearing rather than squeezing it on a Friday.

HER HONOUR: Yes.

MR KIRK: Unless I can assist your Honour - - -

HER HONOUR: Mr Owens, there is some force to that, I think.

MR OWENS: All I can say is we think it would be possible, with a great deal of hard work, for everyone to get their submissions and everything on in time for November. In terms of whether one day is sufficient, we would just observe that in a sense because of Unions NSW (No 1), McCloy and Brown we would think that the scope for more general discussion is probably more limited.

HER HONOUR: To date, I note that South Australia has intervened. Mr Owens, the other thing I must say, the legislation I think was enacted in May of this year.

MR OWENS: Yes. I accept that there was a period of time in which we were working on the pleadings and so on so - - -

HER HONOUR: Yes. Well, that is – look, I appreciate it is water under the bridge now but, Mr Owens, I must say I think that the wiser course is to take the 4 December date.

MR OWENS: Yes, your Honour.

HER HONOUR: So, on that basis, I can make orders in conformity with the consent orders that have been filed. We need to add in order 5, a date for the matter to come back in the event that there is a difficulty in agreeing on the form of the special case.

MR OWENS: Could I just say two things in relation to that?

HER HONOUR: Yes.

MR OWENS: The first is – and I have had a brief word to my learned friend about this – I think we both think that whether or not the parties are able to agree, it is probably worthwhile the matter coming back.

HER HONOUR: Yes.

MR OWENS: If nothing else, your Honour would need to be satisfied that the special case was in a form appropriate for referral.

HER HONOUR: Indeed.

MR OWENS: So I think we agree that there would be a need for a directions hearing, whatever the status of agreement is, and then subject to the agreement of the – or the convenience of the Court, of course, given our submissions are, on this timetable, due on 24 October, and the special case agreement position is supposed to have been resolved by the 19th, if it was suitable to your Honour we were going to propose either Monday, the 22nd or Tuesday, 23rd.

HER HONOUR: Which date better suits the two of you?

MR OWENS: I am fine either way, and I think my learned friend is equally indisposed on both days.

MR KIRK: But Mr Lim will be available and that would be more than sufficient, your Honour.

HER HONOUR: Excellent.

MR OWENS: Whatever suits your Honour.

HER HONOUR: Tuesday, the 23rd at 9.30?

MR OWENS: Thank you, your Honour.

HER HONOUR: Very well. There are no further matters to attend to?

MR OWENS: No, your Honour.

HER HONOUR: It suffices for me to make orders in conformity with the consent orders signed by the parties, dated 21 September 2018, noting that order 5 now provides that the matter be listed for directions before the Court in Sydney at 9.30 am on 23 October 2018.

MR OWENS: Thank you, your Honour.

HER HONOUR: Thank you.

AT 9.38 AM THE MATTER WAS ADJOURNED