s.45 appeal against orders Print Nos. S2023 and S2024

s.170CE application for relief in respect of termination of employment

[1] On 20 December 1999 Commissioner Blair made two orders binding on Kellow-Falkiner Motors Pty Ltd (Kellow-Falkiner). The orders arose out of an application for relief filed by a Mr Peter Edghill in respect of the termination of his employment. Mr Edghill was a former employee of Kellow-Falkiner Motors Pty Ltd. The application for relief was listed for arbitration on 15 December 1999 before Commissioner Blair. At the conclusion of proceedings on that day the Commissioner issued a decision in transcript in which he found that "the termination of Mr Edghill was at the instigation of the employer" and that the termination of Mr Edghill's employment was "harsh, unjust and unreasonable".[1] The Commissioner awarded Mr Edghill nine weeks' pay, at the rate of $596 per week. On 20 December 1999 the Commissioner issued the following order:

"The Commission, having determined that the termination of the Applicant's employment by the Respondent was harsh, unjust or unreasonable, hereby orders that the Respondent pay to the Applicant on or before Friday 24 December 1999, compensation in lieu of reinstatement, being nine weeks' pay, at a rate of $596 gross per week, less the appropriate tax."[2]

In this decision we refer to the order in Print S2023 as the first order.

[2] During the proceedings on 15 December 1999 the Commissioner also heard and determined an application for costs made on behalf of Mr Edghill. The Commissioner awarded costs against Kellow-Falkiner Motors Pty Ltd. On 20 December 1999 the Commissioner issued an order in the following terms:

"1. The Respondent is to pay the Applicant's legal and professional costs and disbursements associated with his application for relief in relation to termination of employment, being application number U31912 of 1999.

2. The Applicant is directed to file with the Commission, and serve upon the Respondent, by no later than 5.00pm on Monday 20 December 1999, a schedule of costs and disbursements that are claimed in relation to the abovementioned order.

3. If the Respondent files and serves objections to the Applicant's memorandum of costs and disbursements, then the memorandum and objections are to be referred to the appropriate Presidential member for settlement of a final sum payable."[3]

In this decision we refer to the order in Print S2024 as the second order.

[3] On 10 January 2000 Kellow-Falkiner filed a notice of appeal against the two orders made by Commissioner Blair on 20 December 1999. That appeal was listed for hearing before this Full Bench on 20 March 2000. The notice of listing was sent on 10 February 2000 and was accompanied by directions which required the appellant to file written submissions in support of the appeal by 28 February 2000 at 4.00 p.m. The appellant failed to comply with these directions. On 14 March 2000 the presiding member wrote to Mr Shellard, a director of Kellow-Falkiner, in the following terms:

"As you are aware your appeal regarding the above matter is listed for hearing at 10.00 am on Monday 20 March 2000.

The listing notice (copy attached) set out directions for the filing of your written submissions. To date you have not complied with these directions.

You are now directed to file your written submissions in support of your appeal as soon as possible."

[4] On 17 March 2000 Mr Shellard replied as follows:

"Thank you for your letter of 14th March requesting written submissions to be filed asap.

I request to seek extra time to file my written submissions with the commission. I understand these submissions were directed to be filed by the 10th March 2000 and I wish not to waste the commission's time on these overdue submissions.

If you have any queries please contact myself by fax on 9563 0277."

[5] On the same day Mr Shellard was advised, in writing, that the hearing of the appeal would take place, as previously listed, on 20 March 2000 at 10.00 a.m.

[6] At the commencement of the proceedings on 20 March 2000 Mr Shellard, appearing for Kellow-Falkiner, sought an adjournment of seven days. The adjournment application was opposed by Ms Caylock, appearing for the respondent. In response to questions from the Commission, Mr Shellard indicated that he was content for the appeal to be determined on the basis of written submissions.

[7] We decided to determine the appeal by written submissions. We also stated our intention to have regard to the transcript of the relevant stay proceedings on 18 January 2000. Each party acquiesced to this course. The appellant was advised to file written submissions in support of the appeal by 4.00 p.m. Monday 27 March 2000. In the event that this direction was not complied with the appeal would be dismissed for want of prosecution.

[8] As the respondent had already filed written submissions - having regard to what Mr Shellard had argued during the stay proceedings - we did not require further submissions from the respondent at this stage.

[9] The appellant filed written submissions on 27 March 2000. As we advised the parties during the course of the proceedings on 20 March 2000 we have determined the appeal on the basis of the written submissions and the transcript of the stay proceedings.

[10] In respect of the first order Mr Shellard, on behalf of the appellant, advanced two points in support of his appeal.

[11] First, it was submitted that the appellant was denied an opportunity to be heard in the proceedings below. The relevant factual matrix is not in dispute. Mr Edghill's s.170CE application for relief was originally set down for hearing at 9.00 a.m. on 19 November 1999. The case was on the reserve list for that weeks' arbitration roster. On 18 November 1999 the hearing was adjourned to a date to be fixed.

[12] On Friday 3 December 1999 the parties were sent a notice of listing advising that the application would now be heard on Wednesday 15 December 1999 at 10.00 a.m. On Monday 6 December 1999 the hearing time was amended from 10.00 a.m. to 9.30 a.m. on 15 December 1999.

[13] Mr Shellard submitted that on Monday 6 December 1999 he spoke to Mr Kevin Donnellan, an employee of the Australian Industrial Registry (the Registry), and informed him that he could not attend the hearing on 15 December 1999. According to Mr Shellard, Mr Donnellan suggested a new hearing time of 4.30 p.m. on 15 December 1999, to which Mr Shellard agreed.

[14] After this telephone conversation Mr Shellard sent a facsimile message to Mr Donnellan, in the following terms:

"I would like to confirm our recent telephone conversation regarding adjournment of hearing on the 15th December 1999.

I am unable to attend this hearing and would appreciate an adjournment to a later date.

Any queries please contact myself on 9563 0177 or fax 9563 0277."[4]

[15] The following day, Tuesday 7 December 1999, a further notice of listing was sent to the parties advising that the time of the hearing on 15 December 1999 had been amended from 9.30 a.m. to 9.00 a.m. on that day.

[16] Mr Shellard acknowledged that he received all of the relevant notices of listing,[5] including the listing notice sent on Tuesday 7 December 1999.

[17] No appearance was made on behalf of the appellant at the hearing on 15 December 1999. As Kellow-Falkiner had been notified of the hearing the Commissioner proceeded to deal with the application in their absence.

[18] In the grounds of appeal it is said that the appellant was not represented at the hearing due to a belief that the hearing had been rescheduled for 4.30 p.m. on the same day.

[19] It is against this factual background that the appellant contends that it was denied procedural fairness in the proceedings below. Before dealing with this submission we propose to set out the general principles in respect of procedural fairness.

[20] The procedure of the Commission is, subject to the Workplace Relations Act 1996 (the WR Act) and AIRC Rules, within the discretion of the Commission. The Commission is not bound by the rules of evidence but is obliged to act according to "equity, good conscience and the substantial merits of the case, without regard to technicalities and legal forms."[6]

[21] Despite the fact that members of the Commission are not bound by the rules of evidence it is clear that they are bound to act in a judicial manner and that the principles of natural justice are applicable to hearings before the Commission.[7] The term "natural justice" has been essentially equated to an obligation to act fairly or to accord procedural fairness.[8]

[22] The requirements of natural justice or procedural fairness are not prescribed in a fixed body of rules. What is required in one case may be quite different from what is required in another. In Russell v Duke of Norfolk[9] Tucker LJ said:

"The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject matter that is being dealt with, and so forth."

[23] Similarly, in Mobil Oil Australia Pty Ltd v FC of T Kitto J said:

"What the law requires in the discharge of a quasi-judicial function is judicial fairness. This is not a label for any fixed body of rules. What is fair in a given situation depends upon the circumstances."[10]

[24] In the context of this matter the particular powers of the Commission which are set out in s.111 of the WR Act are also relevant. Section 111(1)(h) provides:

"(1) Subject to this Act, the Commission may, in relation to an industrial dispute: ...

(h) hear and determine the industrial dispute in the absence of a party who has been summoned or served with notice to appear; ..."

[25] Subsection 111(2) provides that a reference in s.111(1) to an industrial dispute includes a reference to "any other proceeding before the Commission."

[26] In applying these general principles to the matter before us the central question is whether the Commissioner provided the appellant with procedural fairness, or to put it more simply whether he acted fairly in proceeding to determine the application before him on 15 December 1999 in the absence of the appellant.

[27] It is contended on behalf of the appellant that it was denied procedural fairness. We do not agree. We have reached this conclusion having regard to all of the circumstances in this case. The following points are particularly relevant in this regard.

[28] First, the appellant failed to attend two conciliation conferences convened in respect of this matter. The first conference was to take place before Mr Tom Talbot on 14 July 1999. It is apparent that Mr Shellard received notice of this conference, because on 9 July 1999 he wrote to Mr Talbot in the following terms:

I refer to the above case listed to be heard on the 14th July 1999. I will not be able to attend this hearing as I have another case listed at [t]he Magistrates Court on the same day.

Could you please re-list this case and advise accordingly, by fax to 9563 0277."

The conference went ahead on 14 July 1999, but there was no appearance on behalf of Kellow-Falkiner. A subsequent conference was listed for 2 August 1999. Again there was no appearance on behalf of Kellow-Falkiner.

[29] Senior Deputy President Watson subsequently issued a certificate pursuant to s.170CF(2) of the WR Act. The assessment of the merits on the face of the certificate is in the following terms:

"The Respondent failed to attend the conciliation conference listed.

It is not possible to make an assessment due to a conflict in the factual position and the necessity to hear evidence."

[30] The relevance of this is that it should have put Mr Shellard on notice that it was not sufficient to simply advise that he was unavailable to attend on the day where proceedings had been set down. It cannot be presumed that the Commission will simply act in accordance with a party's wishes.

[31] Second, the conversation which Mr Shellard says he had with an employee of the Registry took place on 6 December 1999. It is not suggested that an adjournment was formally granted on that occasion. Indeed any such suggestion would be inconsistent with the facsimile message Mr Shellard subsequently sent to Mr Donnellan (see paragraph 14 above). In that message Mr Shellard says that he is unable to attend the hearing on 15 December and "would appreciate an adjournment to a later date". The language used suggests that Mr Shellard was seeking an adjournment - not confirming one that had already been granted.

[32] In the stay proceedings on 18 January 2000 Mr Shellard relied on the fact that the letter concluded in the following terms "Any queries please contact myself on 9563 0177 or fax 9563 0277." As there was no contact with him he presumed that his request had been granted.[11]

[33] The difficulty with this proposition is that Mr Shellard did receive a subsequent communication from the Commission. On 7 December 1999 - the day after his conversation with Mr Donnellan - he received a notice of listing informing him that the hearing would take place at 9.00 a.m. on 15 December 1999. There is no suggestion that Mr Shellard took any action after receipt of this listing notice to ascertain whether an adjournment had been granted. He apparently simply proceeded on the basis that his request had been granted. In our view, having regard to the notice of listing of 7 December 1999, such an approach was patently unreasonable. Mr Shellard's assertion that "the case proceeded without the knowledge of the defendant"[12] is incorrect.

[34] We have taken into account that although the appellant was not legally represented, Mr Shellard is a company director and should be familiar with the legal process through his involvement in other court proceedings. In the letter to Mr Tom Talbot dated 9 July 1999 which we have set out at paragraph 28 above, Mr Shellard stated that he would be unable to attend a conciliation conference scheduled for 14 July 1999 "as I have another case listed at [t]he Magistrates Court on the same day." In the stay proceedings Mr Shellard relied on his own experience "with Court matters" in the course of his submissions[13] and also stated that the appellant is currently involved in proceedings in the Victorian Supreme Court.[14]

[35] The third point relates to the nature of unfair dismissal proceedings. A statutory ceiling applies to the amount which the Commission may award a successful applicant, in lieu of reinstatement. The amount awarded may be significantly eroded by an application's legal costs.[15] In such circumstances it is necessary to ensure that applications are determined quickly and with a minimum of cost to both parties.

[36] The appellant submits that the Commissioner should have adjourned to proceedings on 15 December 1999 when it became apparent that the appellant would not be represented on that day. But such an adjournment would have added to the applicant's costs in circumstances where no reason for the adjournment request was put to the Commissioner.[16]

[37] The fourth point relates to Mr Shellard's reliance on the correspondence sent by the Commission in respect of the appeal hearing on 20 March 2000. It was contended that such an approach should have been taken by the Commissioner in the proceedings below. The written submission filed by Mr Shellard states:

"On the 17th March Vice President Ross was wise in sending a letter to confirm that the case would proceed on the 20th March at 10am. This letter was in response to a letter requesting an adjournment to the matter. Adjournment was subsequently given after personal appearances by all parties. If such a letter was sent prior to the first case, the result may have been different. The defendant was not in a position to attend on that day but a member of the firm would have been able to attend to advise the Commission that the company could not be represented and the reason for it and to seek an adjournment."[17]

[38] Three observations may be made in respect of this submission. The first is that the letter sent by the presiding member on 17 March 2000 was not in response to a letter requesting an adjournment. It was sent in response to Mr Shellard's letter of 17 March 2000 in which a request was made for extra time in which to file the appellant's written submissions. At no stage prior to the hearing on 20 March 2000 did Mr Shellard seek an adjournment. The Commission's letter of 17 March 2000 was sent to make it clear that the hearing of the appeal would proceed despite the fact that the appellant had not complied with the Commission's directions regarding the filing of written submissions.

[39] In other circumstances a hearing would not go ahead if the initiating party - in this case the appellant, in the proceedings below it would have been Mr Edghill - failed to comply with directions for the filing of written submissions. We chose not to adopt that course on this occasion and we wished to make it clear to the parties that the hearing would proceed. The respondent was also advised of our intention in this regard. There is no parallel with the circumstances in the proceedings below.

[40] The second observation we wish to make is that contrary to the appellant's written submission the appeal was not adjourned on 20 March 2000. Rather, we decided to determine the appeal on the basis of written submissions and the transcript of the stay proceedings, without the need for oral submissions.

[41] The final matter arising from this aspect of the appellant's submission is that according to the appellant's own written submissions Kellow-Falkiner was in a position to send a member of the firm to attend the hearing before Commissioner Blair on 15 December 1999 in order to seek an adjournment of the proceedings. This would have been the appropriate course. It was not done and in our view no good reason has been advanced as to why it was not done.

[42] Finally, we have had regard to the manner in which the proceedings below were conducted. In particular, when Mr Edghill gave evidence the Commissioner put the allegations contained in earlier material filed on behalf of Kellow-Falkiner to Mr Edghill.[18]

[43] The Commissioner, in our view, did everything that could be expected of him to ensure that the appellant had a fair opportunity to present his case. He was not required to ensure that the appellant took the best advantage of the opportunity presented.

[44] In Sullivan v Department of Transport Dean J stated:

" ... it is important to remember that the relevant duty of the Tribunal is to ensure that a party is given a reasonable opportunity to present his case. Neither the Act nor the common law imposes upon the Tribunal the impossible task of ensuring that a party takes the best advantage of the opportunity to which he is entitled."[19][emphasis added]

[45] We are satisfied that Kellow-Falkiner was given a reasonable opportunity to present its case to the Commission in the proceedings below and Mr Shellard must bear responsibility for the fact that he failed to take the best advantage of the opportunity presented.[20]

[46] The second point advanced in support of the appeal against the first order relates to the manner in which the Commissioner conducted the proceedings.

[47] In the matter below summonses to appear were issued to two witnesses, a Ms Joan Fraser and a Ms Elizabeth Symonds. A summons to produce certain documents was issued to Mr Shellard. The two witnesses were summonsed to give evidence on behalf of the applicant, Mr Edghill. The witnesses did not attend the hearing on 15 December 1999. After the applicant's representative outlined his case at the commencement of the proceedings below he went on the make the following statement:

"In these circumstances, Commissioner, I don't wish to call upon the summons to witness upon Joan Fraser and Elizabeth Symons [sic]. Joan Fraser was a former, employee of the company. She - I am instructed that she has recently started a new job and is currently on a trial period. She is available and if you desire it we can get her here at very short notice. Elizabeth Symons [sic], well, she I understand is working - still working with the respondent.

We don't have any explanation as to why she hasn't - she is not here. In the circumstances we will call on - I call on the applicant to give evidence."[21]

[48] The appellant contends that the Commissioner should have insisted that the two witnesses attend and give evidence. The essence of Mr Shellard's submission on this point is set out in the following extract from the transcript of the stay proceedings:

"His Honour: All right. But, really, the heart of it is that you say Ms Fraser and Ms Symonds should have given their evidence.

Mr Shellard: Definitely. The Commissioner should have made himself aware of the - I am not saying the evidence is pertinent, good, bad or indifferent, but the Commissioner had before him this letter and various other correspondence to indicate to him that there was some form of evidence that may be worthwhile hearing. He may have disregarded the lot but I believe he should have put himself in the position of being able to make that decision rather than deny himself and everybody else that particular decision and clutter this Court up with additional cases."[22]

[49] We think that the appellant's submission on this point is misconceived. Unfair dismissal proceedings are essentially adversarial in nature, not inquisitorial. The Commissioner was not obliged to require Ms Fraser and Ms Symonds to give evidence in circumstances where they had been summonsed to give evidence on behalf of the applicant and the applicant no longer wished to call upon them.

[50] We are not satisfied that the appellant has established that the Commissioner was in error in respect of his decision to make the first order.

[51] The second order imposed a requirement that the appellant pay Mr Edghill's legal and professional costs and disbursements associated with his application for relief. Mr Shellard contended that the appellant had been denied an opportunity to be heard in the proceedings below.

[52] The essence of the appellant's case is that it had no notice of the s.170CJ costs application. The cost application was made in transcript on 15 December 1999 at the conclusion of the arbitral proceedings. The following extract from the transcript of the proceedings below is relevant:

"Mr Gray: But in respect of remedy, the appropriate principles as applied from Sprigg ... Licensed Festival Grocers, is that when you boil it down it is basically economic loss for that - that would amount to the sum of $596 multiplied by eight weeks in this case. That is a fairly moderate outcome for the applicant. His costs in the matter could well be two thirds to three quarters of that, well, actually after - when you take tax into consideration, the costs would be almost equivalent to that and that is a difficulty that suggests that the Commission ought to seriously considering departing from the simple principle of economic loss. ...

The Commissioner: Why don't you make an application for costs?

Mr Gray: Well, I think we will, Commissioner, if you are inclined to - - -

The Commissioner: I think the principles in terms of calculating the method - the method in which you calculate the amount I think have been pretty well established as you have just indicated and I am not inclined to depart from that.

The Commissioner: If there is an issue of costs, then make a claim for costs.

Mr Gray: Certainly, Commissioner. Well, if you are able to hear that application, I would like to make that application now.

[53] The notices of listing in respect of the proceedings below refer to Mr Edghill's s.170CE application for relief (U No. 31912 of 1999), they do not make any reference to an application for costs. The applicant's costs application was not formally made in accordance with the Rules of the Commission;[24] nor was a copy of the application served on the appellant.

[54] The respondent contends that the appellant was given notice of its intention to pursue a costs order. In this regard the respondent relied on two items of correspondence sent to the appellant by Mr Edghill's solicitors. The first document is a letter dated 3 August 1999 which says, among other things:

"... we wish to put you on notice that should this case proceed to arbitration, and our client is successful, these costs will be claimed. Currently our clients' legal costs stand at $1,200.00 and will be likely to be approximately $4,000.00 after the matter is arbitrated."[25]

[55] On 8 November 1999 the applicant's solicitors sent the appellant a further letter, in the following terms:

"Your failure to attend the Conciliation Conference, failure to comply with Directions and failure to respond to our correspondence of 3 August 1999 containing an offer of settlement has resulted in our client incurring unnecessary expenses in addition to the financial loss he has suffered as a result of the termination. We again draw your attention to the decision of Andrew Betts -and- Madafferi Haulage Pty Ltd which was handed down on the 9 April 1999 by Commissioner Smith and wish to put you on notice that should this case proceed to arbitration, and our client is successful, an application for costs will be made. Currently our client's legal costs stand at approximately $2,000.00 and are likely to be approximately $4,000.00 after the matter is arbitrated."[26]

[56] Contrary to the respondent's submissions we think that the correspondence relied on simply informs the appellant of an intention to make an application for costs. Notification of an intention to make an application is not sufficient.

[57] The failure to provide a party with notice of the time and venue of a hearing and the issues to be considered denies that party the opportunity to present his case. In R v North; Ex parte Oakley the link between the need for notice and the right to be heard is made clear in the judgement of Scrutton LJ:

"... one of the most fundamental principles of English law is that if you are going to impose on a person a penalty for an offence, you must first clearly inform him that an application to that effect is going to be made against him, so that he may know what he is charged with and have an opportunity of attending to meet it." [27] [emphasis added]

[58] We are satisfied that the appellant has established that it was denied procedural fairness in respect of the second order.

[59] Section 170JF is relevant to appeals from orders arising from the determination of whether a termination was harsh, unjust or unreasonable. It states:

"(1) An appeal to a Full Bench under section 45 may be instituted by any person who is entitled under section 170JD to apply for the variation or revocation of an order under this Part.

(2) For the avoidance of doubt, an appeal to a Full Bench under section 45 in relation to an order made by the Commission under Subdivision B of Division 3 may be made only on the grounds that the Commission was in error in deciding to make the order."

[60] Section 45(2) provides that a Full Bench shall grant leave to appeal if "in its opinion, the matter is of such importance that, in the public interest, leave should be granted". Having regard to the terms of s.170JF(2) we think that leave to appeal should generally not be granted unless the appellant satisfies the Commission that there is an arguable case that the member at first instance had either made a legal error or had acted upon a wrong principle, given weight to irrelevant matters, failed to give sufficient weight to relevant matters or made a mistake as to the facts or that the decision was plainly unreasonable or unjust. In the absence of an arguable case of either legal error or that the discretion was miscarried the Commission would not grant leave merely to substitute its decision for the decision under appeal.

[61] In relation to the first order we have concluded that the appellant failed to establish an arguable case of either legal error or that the discretion was miscarried. It follows that the matter is not of such importance that, in the public interest, leave to appeal should be granted. Nor are there any other considerations which would lead us to grant leave in the circumstances of this case. We have decided to refuse leave to appeal and we dismiss the appeal in respect of the first order.

[62] In relation to the second order we are satisfied that the appellant was not notified of the application for costs and was denied procedural fairness as a consequence.

[63] We have decided to grant leave to appeal in respect of the second order, uphold the appeal and quash the order in Print S2094. Pursuant to s.45(7)(c) we remit the respondent's application for costs to Commissioner Blair for hearing and determination.

Termination of employment - unfair dismissal - appeal - practice and procedures - appellant, the respondent in original proceeding, failed to attend two conferences convened for conciliation purpose - sought adjournment of substantive arbitration hearing - adjournment granted - substantive hearing proceeded in absence of respondent - respondent sought adjournment from rescheduled hearing - notice of listing sent confirming rescheduled hearing would proceed - respondent failed to attend - arbitration hearing proceeded in absence of respondent - order made for compensation and order made for costs - appellant claimed denial of natural justice in respect of both orders - full bench dismissed appeal against first order - appellants claim that matter proceeded without his knowledge was incorrect - appellants properly notified that rescheduled arbitration hearing would proceed as planned - full bench upheld appeal against costs order - satisfied appellant not notified of costs application thereby denied natural justice.

Printed by authority of the Commonwealth Government Printer

[1] Transcript 15 December 1999 at p.14.

[4] See Exhibit A1 in the stay proceedings.

[5] Transcript, 18 January 2000, p.3 at lines 13-22; p.4 at lines 25-31 and p.5 at lines 1-7.

[7] R v The Commonwealth Conciliation and Arbitration Commission and others; Ex parte Angliss Group (1962) 122 CLR 546; Re The Australian Bank Employees Union; Ex parte Citicorp Australia Limited [1989] HCA 41; (1989) 167 CLR 513.

[8] Kioa and others v Minister for Immigration and Ethnic Affairs and another [1985] HCA 81; (1985) 62 ALR 321 at 347 per Mason J.

[9] (1949) 1 All ER 109 at 118.

[10] [1963] HCA 41; (1963) 113 CLR 475 at 504.

[11] Transcript, 18 January 2000, p.6 at lines 1-3.

[12] Appellant's written submission of 27 March 2000 at paragraph 7.

[13] Transcript, 18 January 2000, p.15 at lines 16-20.

[15] Indeed in this case Mr Edghill's representative estimated that more than 75 per cent of the amount awarded would be absorbed in meeting such costs. See Transcript, 15 December 1999 at p.11.

[16] See Transcript, 15 December 1999, p.14 at lines 10-17.

[17] Appellant's written submissions of 20 March 2000 at paragraph 7.

[18] Transcript, 15 December 1999 at p.8.

[19] (1978) 20 ALR 323 at 343; Cf: Gaudron J, in Re: Association of Architects of Australia; Ex parte Municipal Officers Association of Australia [1989] HCA 13; (1989) 63 ALJR 298 at 305.

[20] See Australian Theatrical Employers Association v Hayden Pty Ltd & Others (1983) 5 IR 335.

[21] Transcript 15 December 1999, p.2 at lines 35-37 and p.3 at lines 1-7.

[22] Transcript, 18 January 2000, p.15 at lines 24-33.

[23] Transcript, 15 December 1999, p.11 at lines 2-33.

[27] (1927) 1 K.B. 491 at 502.