High Court of Australia Kirby J Re Application to Appeal by AFC Abattoirs Pty Ltd ORDER Orders accordingly Kirby J. These proceedings have been returned before this Court urgently at the request of AFC Abattoirs Pty Ltd and the National Meat Association of Australia (the prosecutors). The stated reason for the urgency was the stated intention of a Commissioner of the Australian Industrial Relations Commission, Commissioner Henry Dempsey (the first respondent) to exercise jurisdiction under the Workplace Relations Act 1996 Cth which the prosecutors say the Commissioner does not have. By their notice of motion the prosecutors sought orders abridging time for the service of the notice, requiring the respondents to show cause why writs of prohibition and certiorari should not issue out of this Court directed to the Commissioner, remitting the writs to the Industrial Relations Court for hearing and providing for the costs of the motion and for any other orders that were appropriate. The first respondent submitted to the orders of this Court, save as to costs. By the Australian Government Solicitor he also indicated that he would submit to any orders of the Industrial Relations Court to which the proceedings would be remitted under the third of the orders sought by the prosecutors. The Industrial Relations Court continues to exercise jurisdiction and will do so until 25 May 1997, after which date, as this Court has been informed, its jurisdiction will be transferred to the Federal Court of Australia. However, at the moment, the order sought by the prosecutors is the correct one in the event that remittal is appropriate. The second respondent to the proceedings is the Australasian Meat Industry Employees' Union (the Union). It opposed the making of any interim orders. It argued that remitter to the Industrial Relations Court was premature. The prosecutors sought an urgent return of the summons on the footing that they were entitled to immediate relief to prevent the Commissioner from entering into an exercise of jurisdiction not provided by law. The exercise alleged was that involved in the Commissioner's assisting employees in the negotiation of workplace agreements. This Court's Registry was informed that the Commissioner had declined a request to stay or delay proceedings before him to permit his jurisdiction to be reviewed before a Full Bench of the Australian Industrial Relations Commission. According to an affidavit read before me today, the prosecutors asked the Commissioner to relist the proceedings before him for a telephone conference on this day so that submissions could be made on the question of the Commissioner's jurisdiction. On 30 April 1997 the prosecutors caused a letter to be sent to the Registry of the Australian Industrial Relations Commission indicating that they were considering an appeal to the Full Bench of that Commission to test the Commissioner's jurisdiction. According to the evidence, at 9.30 am yesterday, the Commissioner telephoned an officer of the second prosecutor to inform both of the prosecutors, in effect, that he intended to proceed with the matter today. However, in apparent response to the listing of the matter before this Court, the Court has been informed that the Commissioner has indicated that he will not proceed to any exercise of jurisdiction today. This indication took away part of the urgency which had resulted in the return of the motion before me. The proceedings were given a high measure of expedition because it was understood that the prosecutors were suggesting that the want of jurisdiction in the Commissioner was plain and that orders should be made immediately to restrain the proceedings before him, pending a determination of the point in contention. Against the possibility that the prosecutors might lose rights unless these questions were considered quickly, and before the proceedings before the Commissioner resulted in any award or otherwise, I directed that they be returned this morning. It is clear that the matter is not one which would be appropriate for hearing, at least in the first instance, by this Court. Although the Court has jurisdiction to deal with all such matters pursuant to the Constitution, s 75(v), its invariable practice is to remit such matters to the appropriate Federal court. Doing so conserves the time of this Court. In the ordinary course, it ensures a much earlier hearing of the substance of the matter. And it provides avenues for appeal or further redress, including in this Court, which the Constitution and the applicable legislation afford, but with the reasoned opinion of the Commissioner or of a federal court to assist this Court to discharge its functions. It is plain that an order of remittal should be made in this case. However, the question remains whether any other ancillary relief should be granted in the meantime to preserve the status quo as between the parties pending the resolution of the prosecutors' objection to jurisdiction. In the context of appeals, this Court has held that parties should ordinarily exhaust the facility of seeking such relief in the court below. [1] Does that principle also apply in this case where the prosecutors have a constitutional right to approach this Court, where there are at present no proceedings in any other federal court and where the prosecutors can make out a case for relief? I am inclined to believe that the same rule of convenience does apply. It is reflected, in my view, in the opinion of Mason J in R v Marks; Ex parte Australian Building Construction Employees & Builders' Labourers' Federation , [2] and in what Brennan J said in Re Griffin; Ex parte Professional Radio and Electronics Institute (Aust) . [3] However, it is unnecessary to explore these questions in these proceedings because I am not persuaded that any such relief should be granted by this Court: (1) No irreparable harm to the prosecutors has been shown if interim relief is refused, particularly now that the Commissioner has delayed the exercise of the jurisdiction objected to; (2) The prosecutors can move a Full Bench of the Australian Industrial Relations Commission, as they have foreshadowed, for an urgent hearing on the provision of interim relief which it would be open to a Full Bench to provide if it were persuaded to do so; (3) The want of jurisdiction of the Commissioner is not so manifest as to demand immediate relief from this Court. It is not as if, in this case, there has been an obvious slip or an oversight which, once seen, deprives the Commissioner of jurisdiction. The want of jurisdiction raised by the proceedings is, and will be, a matter for argument and persuasion; and (4) It is a serious step for any Court to intervene in proceedings before a body whose jurisdiction has been invoked and upheld by the body itself over objection. Except in a clear case, a rule of deference is, in my view, ordinarily appropriate on the part of the courts, given that interruptions can cause delay and the accumulation of costs and given further that avenues of appeal and review are still available once the proceedings are concluded. 1. See Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) (1986) 161 CLR 681. 2. (1981) 147 CLR 471 at 484. 3. (1988) 167 CLR 37 at 40-41. I do not consider that remittal by this Court to the Industrial Relations Court is premature. However, whether, in the Industrial Relations Court, it would be premature to provide relief pending any consideration of the matter before the Full Bench of the Industrial Relations Commission, will be a matter for the Industrial Relations Court (or the Federal Court after 25 May 1997) to determine. The orders which I make are those in the annexure H to the affidavit which was read this morning and which I initial and will leave with the papers. The orders in that document will be amended to reflect the foregoing reasons and the new style of the Court's orders. In due course the document will be signed by the Deputy Registrar. The result will be that the proceedings will be remitted to the Industrial Relations Court of Australia. All exhibits and affidavits will be sent to the Industrial Registrar and further and other orders will be made as set out in Ex H. I will not make any orders in relation to costs.