Beitseen v Johnson

RESPONDENTS: Mr S Crawshaw SC with Ms P F Lowson of counsel Construction, Forestry, Mining and Energy Union (New South Wales Branch) (Mr Alex Bukarica)

LEGAL REPRESENTATIVES: INTERVENERS: Mr D M J Bennett QC, Solicitor General, and Mr R F Crow of counsel Commonwealth of Australia Australian Government Solicitor (Mr J Heard)

Mr M G Sexton SC, Solicitor General, and Ms N L Sharp of counsel State of New South Wales Mr I V Knight, Crown Solicitor (Ms B Baker)

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES FULL BENCH

CORAM: Wright J, President Walton J, Vice-President Boland J O'Neill C

Matter No IRC 5160 of 2002 BROKEN HILL CHAMBER OF COMMERCE AND OTHERS AND THE CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION (NEW SOUTH WALES BRANCH) AND OTHERS

Application by Broken Hill Chamber of Commerce and others for leave to appeal and appeal against a decision of Deputy President Sams on 6 September 2002 in Matter No IRC 5070 of 2002

DECISION OF THE COMMISSION (Extempore) [2002] NSWIRComm 303

1 The proceedings before the Full Bench today concern an application by the Broken Hill Chamber of Commerce and associated employers for leave to appeal from a decision and interim orders of Sams DP delivered on 6 September 2002 in Matter Nos IRC 4012 and 5070 of 2002. For convenience those bodies will be referred to as "the appellants" as, subject to leave to appeal being granted, they have also appealed against the decision and interim orders of the Deputy President. This is the third Full Bench decision given in these proceedings.

2 The subject matter of the proceedings which led to the present application for leave to appeal, the orders challenged, the factual circumstances relevant to those proceedings and to these, the history of these proceedings and of the related award proceedings up to 20 September 2002 are sufficiently set out in the second Full Bench decision which was delivered on that date: see Broken Hill Chamber of Commerce and CFMEU (NSW Branch) [2002] NSWIRComm 244. It is therefore unnecessary to repeat those matters here. It is appropriate, however, to trace briefly the chronology since that time.

3 On 19 September 2002, towards the conclusion of the hearing which resulted in the second Full Bench decision, further directions were made by the Full Bench for the substantive application for leave to appeal and the appeal itself to be determined on the basis of the oral submissions made as to the earlier phases of the proceedings, together with the further written submissions to be filed by the parties.

4 There was some scope, however, within the directions for the parties to file further submissions in the light of submissions received from the interveners (that is, the parties who might appear pursuant to the notices issued pursuant to s 78B of the Judiciary Act 1903 (Cth); namely, the Attorneys General for the Commonwealth and for the State of New South Wales or (perhaps) the Commonwealth and the State of New South Wales themselves).

5 On 26 September, during the course of proceedings before the Full Bench as to the referred award matter, the Solicitors General for the Commonwealth and for the State of New South Wales appeared. It was not feasible for their submissions on the appeal to be heard, as the award proceedings had proceeded only to the extent that it had become clear they would take the whole of the hearing time that day for their conclusion. Accordingly, directions were made for further written submissions to be filed and, although it is unnecessary to set out the timetable actually fixed, it is to be observed that the timetable fixed was to conclude after the time when the Deputy President's order expired on 4 October. It is also relevant that there was no objection raised by the appellants to the timetable then fixed.

6 It might also be noted that on 24 October, after the various submissions had been filed, because of pressure of business of the Commission and in particular of the members of the Full Bench, the parties were advised by letter from the Registrar: There has been no alternative other than to allocate a time outside the normal sitting hours of the Commission. I advise that the matter has been listed for hearing on Wednesday 13th November 2002 at 8.30am ... Due to the other commitments of the Members of the Full Bench the time available for the hearing will be limited to two hours. I further advise that the Full Bench has determined that the question of leave to appeal will be dealt with at the commencement of the hearing on that day.

7 It becomes necessary, in that factual context, to deal with the issue as pressed by the respondents to the appeal as to whether there is any utility in the appeal being heard. They submit that there is no utility in the appeal being heard as the orders challenged have expired, and that leave to appeal should be refused. Counsel for the appellants however submits in response that there is considerable utility in these proceedings continuing and the issues raised by them being determined. The bases upon which that submission is made are, shortly stated, the intrinsic importance of the issues involving (it is said) important constitutional questions, and also because of the potential for the decision of the Deputy President to be used as a precedent by, or before, other members of the Commission.

8 In the course of argument today reference has been made to authorities relied upon by the parties and also to another authority raised with the parties. The cases include Beitseen v Johnson, a judgment of the Full Court of the Federal Court reported at (1989) 29 IR 336 and Ex parte Metropolitan Meat Industry Board; Re Australasian Meat Industry Employees' Union, New South Wales Branch, a judgment of the Court of Appeal reported at [1972] 1 NSWLR 259. The Full Bench considers that those particular judgments provide useful assistance in the approach which is to be adopted in matters such as the present. We consider that since the issues here are now moot, the grant of leave in respect of them, would result in the Full Bench giving an advisory opinion. We therefore consider as entirely appropriate the approach of the Full Federal Court in Beitseen v Johnson (at 337), where similar reticence was expressed as to the giving of an advisory opinion and hearing the appeal. We also note that the circumstances here are not dissimilar to those before the Court of Appeal in the Metropolitan Meat Industry Board case.

9 In the Metropolitan Meat Industry Board case, there was a challenge by way of prohibition and certiorari to orders made in the course of dispute proceedings under s 25 of the Industrial Arbitration Act 1940 which, when the substantive hearing before the Court of Appeal occurred, had run their course and become spent. Their Honours declined relief and, at 262 - 263, in the judgment of Asprey JA, who spoke for the Court, after his Honour had referred to the normal situation where prohibition is not granted where there was "nothing left to prohibit", reference was made to the discretion of the court to grant certiorari. His Honour observed that the general rule is that the writ will not be granted in the exercise of discretion where no benefit can be derived therefrom. Although it was accepted that there may be exceptional cases, such as that illustrated by the judgment in Ex parte Fitzgerald; Re Gordon (1945) 45 SR (NSW) 182 where a conviction was quashed as the grant of certiorari resulted in the removal from the applicant of the stigma of an offence he did not commit, such considerations did not apply in the case before the Court. We take a similar view as to the present circumstances.

10 In any event, s 188 of the Industrial Relations Act 1996 deals with the question of leave to appeal and materially provides: 188 Appeals to Full Bench by leave only (1) An appeal to a Full bench of the Commission under this Part may be made only with the leave of the Full Bench. (2) The Full Bench is to grant leave to appeal if, in its opinion, the matter is of such importance that, in the public interest, leave should be granted. (3) The Full Bench may deal with an application for leave to appeal separately and without conducting a hearing into the merits of the appeal. (4) ... We consider that, generally speaking, it is contrary to the public interest for leave to be granted where the issue or issues sought to be agitated in an application for leave to appeal or on appeal has or have become moot.

11 As to the submission that the decision of Sams DP may be, or may be used as, a precedent for proceedings before another member of the Commission later today, we merely observe that an interlocutory decision of a single Member of the Commission made in the context of resolving an industrial dispute is of limited "precedent" value in other industrial dispute proceedings, which themselves will rarely depend upon earlier "precedent".

12 We therefore make the following orders in disposition of these proceedings:

13 (1) Leave to appeal is refused. 14 (2) Appeal dismissed. The proceedings are thereby concluded. __________________________________________

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