Re Truner; Madgwick & Homestead Award Winning Homes Pty Ltd [1996] HCA 11; (1996) 136 ALR 229; (1996) 70 ALJR 562 (19 April 1996)

HIGH COURT OF AUSTRALIA

In the Matter of AN APPLICATION FOR A WRIT OF PROHIBITION AGIANST THE HONOURABLE JUSTICE RODNEY NEVILLE MADGWICK (First Respondent) DENNIS TURNER (Second Respondent) AND HOMESTEAD AWARD WINNING HOMES PTY LTD (Prosecutor/Applicant)

S 96/006

Number of pages - 4

Courts - High Court Rules - Constitutional law

HIGH COURT OF AUSTRALIA

KIRBY J

CATCHWORDS

Courts - Practice and procedure - Current proceedings in Industrial Relations Court - Alleged offence against s 334(1)(ba) of the Industrial Relations Act 1988 (Cth) - Application for writ of prohibition - Claim for declaration that sections unconstitutional - Discussion of reasons for delaying determination of constitutional questions - Whether preferable first to determine factual matters - Advantage of having reasons of lower courts - Possibility of amendment of Industrial Relations Act with retrospective operation - Early consideration nevertheless important - Direction that application be adjourned and made by notice of motion before Full Court of the High Court.

High Court Rules - O 55 r 2 - Ex parte application - Opportunity for affected party to contest notice of motion.

Constitutional Law - Validity of s 127A and s 334(1)(ba) of the Industrial Relations Act - Validity undetermined.

HEARING

CANBERRA

19:4:1996

ORDER

1. The application to be made by notice of motion to a Full Court; and

2. The hearing of the application adjourned so that notice of the application may be given to interested parties.

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

DECISION

KIRBY J. Before the Court is an application for an order that a judge of the Industrial Relations Court of Australia (Madgwick J) and an informant prosecutor (Mr Dennis Turner) in proceedings in that Court, show cause before a Full Court why a writ of prohibition should not issue out of the High Court directed to the judge, prohibiting him from proceeding further in the prosecution commenced by the prosecutor.

2. The facts are deposed to in an affidavit sworn by the solicitor for Homestead Award Winning Homes Pty Ltd, which is the prosecutor in this Court, the respondent below and which I shall call "the applicant". Shortly, the facts are that the applicant is a company incorporated in the State of South Australia pursuant to the Corporations Law. It carries on business solely in that State. Its business is that of a building company. Mr Turner is a partner in a firm, D P and V M Turner. That firms carries on business as a bricklaying contractor, also in the State of South Australia.

3. During the period alleged in the summons which was issued by Mr Turner, it is claimed his firm provided bricklaying services to the applicant. It did so in the course of, and for the purposes of, its business. On 18 November 1993, Mr Turner caused an information to be issued out of the Industrial Division of the Federal Court of Australia alleging against the applicant an offence against section 334(1)(ba) of the Industrial Relations Act 1988 (Cth).

4. Subsequently, on 19 April 1994, the applicant filed an appearance to the information and summons. Because proceedings were current at that time in this Court affecting other parties, namely, A J and S L Dingjan and M K and M U Ryan, and because those proceedings were thought to have possible consequences for those of Mr Turner it was agreed between the solicitors for the parties in the Federal Court that the prosecution affecting Mr Turner and the applicant should be adjourned to await the outcome of the Court's decision in Dingjan. That course was agreed upon the footing that, if this Court held that section 127A of the Industrial Relations Act were wholly invalid, an argument would be presented that the information proceedings brought by Mr Turner could not succeed against the applicant.

5. The information proceedings continued to be adjourned from time to time by consent to await the outcome of the Dingjan litigation. On 16 March 1995, this Court pronounced its orders and delivered its reasons in Dingjan. The case is reported: Re Dingjan; Ex parte Wagner (1). Subsequently, Mr Turner's information was returned for hearing. However, it was returned before the Industrial Relations Court of Australia, that court having been established in the interval between the commencement of the prosecution and the conclusion of the Dingjan Case and having assumed the jurisdiction formerly exercised by the Federal Court of Australia - Industrial Division.

6. The first such return of the proceedings was in May 1995. However, the proceedings were again adjourned for an indefinite time because of the unavailability of a judge of the Industrial Relations Court to hear the matter. Subsequently, a judge became available. The matter was then listed to be heard on 2 and 3 April 1996 before the judge who is named in the present proceedings.

7. On behalf of the applicant, it is admitted that it is a "constitutional corporation", as that expression is used in section 127C of the Industrial Relations Act 1988. For the purposes of the proceedings the applicant also admits that the contract referred to in the information and summons was a contract relating to the business of the applicant and was for purposes of the business of the applicant. It is contended that pars (d), (e) and (f) of s 127C(1) of the Industrial Relations Act have no application to the applicant or to the contract.

8. Put shortly, the applicant's assertion is that section 127A and section 334(1)(ba) of the Industrial Relations Act, upon which Mr Turner's information depends, are void being invalid under the Constitution. It is this point which the applicant wishes to argue before this Court. It is to argue that point that the order nisi has been presented to me today in these proceedings which have been heard ex parte.

9. Examination of the decision in Re Dingjan appears to indicate that that decision did not deal with the precise point which is now sought to be argued. That point is therefore still an open one.

10. Three reasons for possible delay in the provision of the relief sought were canvassed with counsel appearing for the applicant.

11. The first was that experience teaches that it is frequently useful to have the determination of all factual matters before a court proceeds to deal with legal questions in controversy, including constitutional questions. This is because it is inconvenient to discover, in the midst of an argument on a legal or constitutional point, that some factual issue needs to be resolved and is in contest between the parties, or said to be in contest. In such a circumstance, all that the court can do is to remit the matter for determination of that contested point of fact. A great deal of cost and delay is occasioned when this occurs.

12. A second possible reason for delay is that, within the Industrial Relations Court itself, facilities exist for appellate review of decisions. I assume that such appellate review would be available to the applicant in the event that it were convicted of the offence alleged in Mr Turner's information. It would be open to the applicant, both before the single judge and in any such appeal, to raise the legal and constitutional points that it seeks to raise now by its application to this Court. This Court would then have the advantage of the reasons of the judge at first instance and of a Full Court of the Industrial Relations Court.

13. Although, where a constitutional issue is involved, it is often convenient, to avoid the delays of litigation and to resolve the issue, to bring such matters directly to the Court, it is sometimes convenient to let the trial take its course. That upholds a principle that the constitutional validity of legislation will ordinarily be assumed until it is demonstrated that such validity is absent. In the present case two days only were set aside for the hearing of the trial. However, it must be kept in mind that other prosecutions may be pending based upon the provisions of the Industrial Relations Act which are impugned. Certainly, delay and expense involving the immediate parties in the resolution of their legal position would be saved if this Court were to proceed directly to hear and determine the constitutional challenge.

14. A third possible reason for delay arises out of the fact, as can be noticed, that the Industrial Relations Act, including the provisions which are here impugned, was the subject of much public discussion during the recent federal election. It has been foreshadowed that the new Government of the Commonwealth intends to propose amendments to the Parliament to change provisions such as those which are here under scrutiny. It is a matter of speculation as to whether such amendments would include the precise paragraphs that are challenged in this case, whether any such amendments would have retrospective operation (which would, as counsel rightly observed, be unusual), and whether, in any case, such amendments proposed by the Government would be enacted by the Parliament.

15. I cannot determine any of these points now, on the information that I have. I do no more than notice the public debate about these issues. However, if the legislation were amended with retrospective operation to relieve a party, such as the applicant, of liability under the information sworn by Mr Turner, that would obviate the necessity of this Court's dealing with the issue at all, or certainly as a matter of urgency.

16. Having considered these possible reasons for delay, it nonetheless appears to me that the issue which is raised by the applicant, as I understand it at this time, is one of some importance. It, therefore, appears to be one which should have early consideration by this Court. However, in the absence of Mr Turner, who might wish to contest the course which has been urged for the applicant, and other interests which might have a claim to be heard, the correct course to be adopted is that which O 55 r 2 of the High Court Rules permits. That rule reads, relevantly:

" When application is made to a Justice in Court or in Chambers

... he may, if he thinks fit, direct that the application be made

by notice of motion ... to a Full Court, and may adjourn the

application so that notice of the application may be given

accordingly."

arguments of counsel for the applicant and having reflected upon the possible reasons for delay in bringing the matter immediately to this Court, it seems to me that this is the course that is appropriate. By the time the motion is returned, the Full Court will probably have the advantage of knowing more about the future of the industrial relations legislation. It will also have the advantage of hearing from the other party most affected, Mr Turner, and any other interest with a right to be heard, as to whether reasons of convenience or disputes as to relevant facts are such that the prosecution should take its course in the court below before this Court passes upon the constitutional validity of the legislation relied upon.

17. The orders which I make, therefore, are that the application herein be made by notice of motion to a Full Court. The hearing of the application is adjourned so that notice of the application may be given accordingly to all parties affected. The application will be returned before a Full Court, upon a day to be fixed by the Registrar. The application shall be filed and notice shall be given to the other parties affected. Having regard to the provisions of the Industrial Relations Act (2), it is not necessary to make any provision for the costs of this application.

1 [1995] HCA 16; (1995) 183 CLR 323.

2 s 347(1).