Public Transport Corporation v The Honourable Justice Alan Boulton and Others; and, Public Transport Corporation v Brendan Eames and Others [1995] IRCA 700

IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY No VI 95/6073 B E T W E E N :

PUBLIC TRANSPORT CORPORATION Applicant AND THE HONOURABLE JUSTICE ALAN BOULTON, THE HONOURABLE DEPUTY PRESIDENT IAN WATSON and COMMISSIONER MICHAEL GAY, members of The Australian Industrial Relations Commission First Respondents AUSTRALIAN RAIL, TRAM AND BUS INDUSTRY UNION; AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING & KINDRED INDUSTRIES UNION; and COMMUNICATION, ELECTRICAL, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA Second Respondents ____________________ No VI 95/6074 BETWEEN: PUBLIC TRANSPORT CORPORATION Applicant AND BRENDAN EAMES, a Commissioner of the Australian Industrial Relations Commission First Respondent THE HONOURABLE KEITH HANCOCK, a Senior Deputy President of the Australian Industrial Relations Commission; THE HONOURABLE JENNIFER ACTON, a Deputy President of the Australian Industrial Relations Commission; and MICHAEL GAY, a Commissioner of the Australian Industrial Relations Commission Second Respondents AUSTRALIAN MUNICIPAL, ADMINISTRATIVE, CLERICAL AND SERVICES UNION Third Respondent AUSTRALIAN RAIL, TRAM AND BUS INDUSTRY UNION Fourth Respondent AUSTRALIAN RAILWAY PROFESSIONAL OFFICERS ASSOCIATION Fifth Respondent ASSOCIATION OF PROFESSIONAL ENGINEERS, SCIENTISTS AND MANAGERS, AUSTRALIA Sixth Respondent COMMUNICATION, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING, AND ALLIED SERVICES UNION OF AUSTRALIA Seventh Respondent and AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION Eighth Respondent JUDGE: North J PLACE: Melbourne DATE: 19 December 1995 REASONS FOR JUDGMENT THE PROCEEDINGS VI 95/6073 By a notice of motion dated 10 November 1995, the applicant sought from the High Court an order nisi for the issue of writs of prohibition, mandamus and certiorari directed to certain members of the Australian Industrial Relations Commission ("the Commission"), namely Commissioner Eames, Senior Deputy President Hancock, Deputy President Acton and Commissioner Gay. Commissioner Eames made a number of awards which had the general effect of requiring the applicant to reclassify employees, acting for six months in a 12-month period in positions requiring a higher classification than they then held, into the higher classification required by the position. The applicant lodged appeals against the making of the awards. Senior Deputy President Hancock, Deputy President Acton and Commissioner Gay heard and rejected the appeals. The basis of the application for the issue of the writs of prohibition and mandamus is the contention that the awards are invalid as infringing the limitation on the award-making power of the Commission enunciated by the High Court in Re AEU (1995) 128 ALR 609. For present purposes it is relevant that the application was for the issue of writs of prohibition and mandamus against officers of the Commonwealth, including a Senior Deputy President and Deputy President of the Commission. By an order made on 30 November 1995, Dawson J remitted further proceedings in this matter from the High Court to this Court. VI 95/6074 By a notice of motion filed on 10 November 1995, the applicant sought from the High Court an order nisi for the issue of writs of prohibition and certiorari against, inter alia, certain members of the Commission, namely Mr Justice Boulton, Deputy President Watson and Commissioner Gay. They were the members of the Full Bench of the Commission which made the Victorian Public Transport Apprentices (Termination Pay) Award, 1995. The award provides for the payment of termination pay to certain apprentices who were employed by the applicant. The basis of the application for the issue of the writs is that the Commission lacked jurisdiction to make the award for various reasons, including lack of ambit and infringement of the limitations enunciated in Re AEU. Again, it is relevant that the application was for the issue of a writ of prohibition against officers of the Commonwealth, including a Deputy President of the Commission. By an order made on 29 October 1995, Dawson J remitted further proceedings in this matter from the High Court to this Court. THE STAY APPLICATIONS On 7 December 1995 the applicant issued a notice of motion in each proceeding seeking from this Court a stay of the relevant awards pending the hearing and determination of each proceeding. The two notices of motion were heard together. THE JURISDICTIONAL ISSUE When the notices of motion came on for hearing before me, Mr Borenstein of counsel, who appeared on behalf of a number of the respondents in each of the proceedings, raised the question of whether a single judge of this Court has jurisdiction to grant stays in proceedings such as these. Section 412(2) and (3) of the Industrial Relations Act 1988 ("the Act") confers jurisdiction on this Court to hear a remitted matter in which a writ of prohibition or mandamus is sought against officers of the Commonwealth. Section 415(2) provides that the jurisdiction is to be exercised by a Full Court. It relevantly reads: "415(2) The jurisdiction of the Court is to be exercised by a Full Court in relation to: ...... (d) matters in which a writ of mandamus or prohibition or an injunction is sought against: ...... (ii) officers of the Commonwealth at least one of whom is a Presidential member." Dr Jessup QC, who appeared with Mr McDonald of counsel for the applicant in both matters, submitted that the power of a single judge to order stays in the present proceedings derives from Order 10 rule 1(1A) of the Industrial Relations Court Rules. The rule provides: "1(1A) In any proceeding which is to be heard by a Full Court, whether in the original or appellate jurisdiction, such directions as is thought proper with respect to the conduct of the proceeding may be given by the Court constituted by a single Judge." He argued that the grant of the stay of an award for a limited period while proceedings were being determined was a direction with respect to the conduct of the proceedings within Order 10 rule 1(1A). He further argued that s.486 of the Act gave power to the judges of the Court to make rules about procedure, that an application for a stay was a matter of procedure, and therefore Order 10 rule 1(1A), being made under s.486, should be read as giving power to a single judge to grant a stay. In Adam P. Brown Male Fashions Pty Ltd v Philip Morris Incorporated and Anor (1981) 148 CLR 170 at 176, a case which concerned the proper approach to an appeal against an interlocutory injunction, the High Court adopted the distinction between substantive law and procedural law described in Salmond on Jurisprudence 10th ed. (1947) p.476 as follows: "Substantive law is concerned with the ends which the administration of justice seeks; procedural law deals with the means and instruments by which those ends are to be attained. The latter regulates the conduct and relations of courts and litigants in respect of the litigation itself; the former determines their conduct and relations in respect of the matters litigated". Such a distinction may be applied to classify claims for stays of the awards being challenged as procedural matters. Accepting such a conclusion for the construction of s.486 would treat the section as permitting the judges of this Court to make rules of court concerning stay applications. Whether Order 10 rule 1(1A) does so depends on whether its words "directions in respect of the conduct of the proceedings" encompass the granting of a stay application. In my view, Order 10 rule 1(1A) does not utilise the full extent of the power given by s.486(1). It does not give a single judge power in respect of all matters of procedure in a proceeding to be heard by the Full Court. It concerns limited procedural matters. The granting of the stay is not within the description of "directions with respect to conduct of the proceedings". While a stay is procedural in the sense that it endures in a period prior to the determination of the proceeding, and consequently does not concern "the ends which the administration of justice seeks", it does have a different quality from matters such as pleadings, discovery, interrogatories and the like. The difference is that a stay operates directly, even if temporarily, on the very subject matter of the litigation. The construction of Order 10 rule 1(1A) advocated by the applicant requires the rule to be read so as to confer power to make directions with respect to any procedural matter in a proceeding to be heard by the Full Court. The words "with respect to the conduct of the proceeding" refer to a narrower concept. In my view they do not include reference to an application for a stay. In Gas Industry Salaried Officers Federation v Municipal Officers Association of Australia & Anor (1989) 88 ALR 113, a number of employers sought to intervene in a deregistration proceeding brought by one union against another. Proceedings for deregistration were brought under s.294 and jurisdiction under that section was to be exercised by a Full Court. Wilcox J held that a single judge could hear the intervention application. In determining this issue, much consideration was directed to whether the Full Court had power to deal with procedural matters. His Honour held that it did not. That was before the passing of the present s.419 of the Act. It is now clear that the Full Court can, for instance, grant a stay in matters such as the present: Re Printing & Kindred Industries Union ex parte Nationwide News Pty Ltd & Ors (1994) 122 ALR 303. His Honour also held that Order 10 rule 1(1A) gave him power to determine the intervention application. That decision does not assist the applicant in these cases. An application for intervention is concerned with the conduct of the proceedings because it is concerned with determining some of the participants in the proceedings. It is quite different in nature from a stay application. CONCLUSION In the light of my conclusion that Order 10 rule 1(1A) does not give a single judge of the Court power to hear the present stay applications, I dismiss both of the notices of motion issued by the applicant on 7 December 1995. Although the merits of the stay applications were fully argued, it is unnecessary and undesirable that I express my views on their merits.