Mt Thorley Operations Pty Ltd v Burgess [2001] FCA 117 (23 February 2001)

Last Updated: 23 February 2001

FEDERAL COURT OF AUSTRALIA

Mt Thorley Operations Pty Ltd v Burgess [2001] FCA 117

INDUSTRIAL LAW - inconsistency between state and federal law - whether orders sought under s 106 of Industrial Relations Act 1996 (NSW) inconsistent with a certified agreement made pursuant to Commonwealth legislation- whether s 152 of the Workplace Relations Act 1996 (Cth) has application to an industrial agreement certified under the Industrial Relations Act 1988 (Cth) - whether s 152 of the Workplace Relations Act 1996 (Cth) has application to orders not yet made

PRACTICE AND PROCEDURE - declaratory orders - whether question of inconsistency hypothetical - where inconsistency arises from orders sought rather than orders issued

Judiciary Act 1903 (Cth) s 39B(1A)(c)

Workplace Relations Act 1996 (Cth) ss 152, 153, 170LZ and 412

Industrial Relations Act 1996 (NSW) s 106

Burgess v Mount Thorley Operations Pty Ltd (No 2) (1999) 100 IR 260 referred to

Gordonstone Coal Management Pty Ltd v Australian Industrial Relations Commission [1999] FCA 298; (1999) 93 FCR 153 referred to

Telstra Corporation Limited v MacBean [2000] FCA 437; (2000) 98 IR 10 referred to

Australian Education Union v Department of Training and Employment [1999] FCA 1858; (1999) 94 IR 386 referred to

University of New South Wales v Moorhouse [1974] HCA 27; (1975) 131 CLR 1 referred to

Commissioner of Taxation v De Vonk (1995) 61 FCR 564 referred to

Telstra Corporation Ltd v Worthing [1999] HCA 12; (1999) 197 CLR 61 referred to

Australian Broadcasting Commission v Industrial Court of South Australia [1977] HCA 51; (1998) 138 CLR 399 referred to

Bass v Permanent Trustees Co Ltd [1999] HCA 9; (1999) 198 CLR 334 referred to

MT THORLEY OPERATIONS PTY LTD (ACN 000 013 249) v MICHAEL JOHN BURGESS, RAYMOND GORDON WILLS, MARVYN SMITH, RODNEY WILLIAM JONES, GEOFFREY IAN BRIGHT, CHARLES ANTHONY MITCHELL, BARRY FONG, LESLIE JAMES IRVINE, WILLIAM ROBERT HOYE, FREDERICK GEORGE VEIGEL, MICHAEL BRUCE SAMPSON, ROSS ALLEN BROWN,MICHAEL MATTHEW PHILLIPS, JOHN DOUGLAS CUDDIGAN

N 777 OF 2000

MOORE J

23 FEBRUARY 2001

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 777 OF 2000

BETWEEN:	MT THORLEY OPERATIONS PTY LIMITED ACN 000 013 249 APPLICANT
AND:	MICHAEL JOHN BURGESS, RAYMOND GORDON WILLS, MARVYN SMITH, RODNEY WILLIAM JONES, GEOFFREY IAN BRIGHT, CHARLES ANTHONY MITCHELL, BARRY FONG, LESLIE JAMES IRVINE, WILLIAM ROBERT HOYE, FREDERICK GEORGE VEIGEL, MICHAEL BRUCE SAMPSON, ROSS ALLEN BROWN,MICHAEL MATTHEW PHILLIPS, JOHN DOUGLAS CUDDIGAN RESPONDENTS
JUDGE:	MOORE J
DATE OF ORDER:	23 FEBRUARY 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS AND DIRECTS THAT:

1. The application of Mt Thorley Operations Pty Ltd, matter No N 777 of 2000, be stayed until further order of the Court.

2. Mt Thorley notify the associate of Moore J in writing, within 7 days of the making of the orders, that final orders have been made in matters 3614 to 3627 of 1998 in the Industrial Commission of New South Wales.

3. Liberty to apply on 7 days notice.

4. The hearing date of 16 March 2001 is vacated.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 777 OF 2000

BETWEEN:	MT THORLEY OPERATIONS PTY LIMITED ACN 000 013 249 APPLICANT
AND:	MICHAEL JOHN BURGESS, RAYMOND GORDON WILLS, MARVYN SMITH, RODNEY WILLIAM JONES, GEOFFREY IAN BRIGHT, CHARLES ANTHONY MITCHELL, BARRY FONG, LESLIE JAMES IRVINE, WILLIAM ROBERT HOYE, FREDERICK GEORGE VEIGEL, MICHAEL BRUCE SAMPSON, ROSS ALLEN BROWN,MICHAEL MATTHEW PHILLIPS, JOHN DOUGLAS CUDDIGAN RESPONDENTS

JUDGE:	MOORE J
DATE:	23 FEBRUARY 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

Introduction

1 On 19 July 2000 Mt Thorley Operations Pty Ltd ("Mount Thorley") filed an application seeking relief under s 39B(1A)(c) of the Judiciary Act 1903 (Cth), ss 152, 153 and 412 of the Workplace Relations Act 1996 (Cth) ("WR Act") and ss 21, 22 and 23 of the Federal Court of Australia Act 1976 (Cth) ("FC Act"). Mount Thorley seeks declaratory relief concerning orders sought in proceedings brought by fourteen former employees ("the applicants"). Those proceedings have been brought under s 106 of the Industrial Relations Act 1996 (NSW) ("the State Act") seeking relief under that section ("the 106 proceedings"). The gravamen of the application by Mount Thorley in these proceedings is that the orders sought in the 106 proceedings will, if made, be inconsistent with the terms of a certified agreement which presently has legal effect by operation of the WR Act. If that is so, then because of this inconsistency, the orders will be invalid. Declaratory relief to that effect is sought.

The background

2 On 29 September 1996 the Australian Industrial Relations Commission ("the Federal Commission") certified an agreement under what was then entitled the Industrial Relations Act 1988 (Cth) ("the IR Act") called the Mount Thorley Operations Enterprise Agreement 1996 ("the Agreement"). The Agreement contained provisions dealing with termination of employment, introduction of change, redundancy, severance and retrenchment and security of employment. On 28 November 1997 Mount Thorley terminated the employment of each of the applicants. On 3 July 1998 the applicants commenced the 106 proceedings in the New South Wales Industrial Relations Commission ("the State Commission"). The orders then sought are conveniently set out in a judgment of Marks J given on 24 May 1999: Burgess v Mount Thorley Operations Pty Ltd (No 2) (1999) 100 IR 260 at 262-263. Somewhat simplified, the orders sought were orders declaring the contract of employment of each applicant void, and/or unfair, harsh and unconscionable and contrary to the public interest and consequential orders varying the contract of employment requiring the payment of specified sums on termination, giving specified notice on termination and procedures to be followed prior to termination.

3 The judgment of Marks J concerned an application by Mount Thorley for orders striking out the 106 proceedings. The grounds were summarised by his Honour at 261:

"The first is that this Court lacks jurisdiction by reason of the operation of

s 109 of the Australian Constitution and either s 152 or s 170LZ of the Workplace Relations Act 1996 (Cth). The second reason advanced is that each applicant seeks that this Court exercise powers under a State law which is inconsistent with and/or in conflict and/or which would impair or detract from the operation of an industrial agreement certified under the Workplace Relations Act 1996. The third reason advanced is that upon a proper interpretation the provisions of Ch 2 Pt 6 of the Act within which s 106 is contained do not and were not intended to extend to employees whose terms and conditions of employment are governed by a certified agreement of the Australian Industrial Relations Commission made pursuant to the Workplace Relations Act 1996 or its predecessor."

His Honour dismissed the application and published lengthy reasons explaining why. Marks J canvassed the legal principles concerning inconsistency and, in relation to the alleged inconsistency between the relief sought in the State Commission and the Agreement, said at 282:

"I conclude therefore that although the nature and effect of any orders that this Court may make may be affected by the provisions of the industrial agreement, I am unable in the circumstances to discern any intention from the provisions of the industrial agreement itself that the jurisdiction of this Court should ipso facto be excluded.

On this basis it is not necessary that I consider the other arguments advanced by Mr Kenzie, namely that some of the provisions of the industrial agreement provide for minimum entitlements only and do not prevent the payment of enhanced benefits whether pursuant to the agreement itself or by any order of this Court. Such arguments may, however, fall to be considered on any occasion when this Court is called upon to make orders.

There is another aspect of this argument. Whilst it is true that the industrial agreement does deal exhaustively with the circumstances of the termination of employment and in particular redundancy it does not purport to deal with the underlying contract of employment. I do not detect from the provisions of the industrial agreement any intention to exclude any inconsistent terms and conditions of a contract of employment which is concurrently regulated by the industrial agreement. It is clear that a contract of employment can subsist concurrently with an industrial agreement even though there may, prima facie, be some tension."

His Honour then dealt with an argument concerning inconsistency between Division 3 of Part VIA of the WR Act though that matter is not presently relevant in these proceedings. His Honour went on to deal with submissions concerning the scope and operation of s 106 in so far as it might apply to employees or former employees employed under an award or agreement made or certified under the WR Act. His Honour, in substance, rejected the submission that proceedings under s 106 could not be instituted by employees whose employment had been regulated by a federal industrial instrument and/or heard and determined by the State Commission.

4 Leave to appeal against the judgment of Marks J was refused by a Full Bench of the State Commission on 2 November 1999. Leave was refused seemingly on the footing that the decision of Marks J was to be treated as involving the exercise of a discretion.

5 Since the decision of Marks J the 106 proceedings have been case managed in the State Commission and are fixed for hearing for several weeks later this year. It is against this background that it is necessary to determine an application by the respondents in this Court that the application by Mount Thorley be dismissed because this Court lacks jurisdiction to grant the relief sought or stayed pending the hearing and determination of the 106 proceedings in the State Commission ("the interlocutory application").

The legislative background

6 Before considering the issues that have been raised in this interlocutory application, it is convenient to refer to some of the applicable legislative provisions. Section 152 of the WR Act relevantly provides:

"(1) Subject to this section, if a State law or a State award is inconsistent with, or deals with a matter dealt with in, an award, the latter prevails and the former, to the extent of the inconsistency or in relation to the matter dealt with, is invalid.

(1A) If a State law provides protection for an employee against harsh, unjust or unreasonable termination of employment (however described in the law), subsection (1) is not intended to affect the provisions of that law that provide that protection, so far as those provisions are able to operate concurrently with the award.

(2) ...

(3) ...

(4) ...

(5) ..."

Section 153 provides:

"(1) A person interested may apply to the Court for a declaration that a State law dealing with an industrial matter, or a State award, is invalid under section 152.

(2) The applicant shall give 14 days' notice of the application to the Attorney-General of the State concerned, who shall have the right to appear on the hearing of the application.

(3) The Court shall hear and determine the application and make such declaration as it considers appropriate."

Section 170LZ relevantly provides:

"(1) Subject to this section, a certified agreement prevails over terms and conditions of employment specified in a State law, State award or State employment agreement, to the extent of any inconsistency.

(2) ...

(3) If a State law provides protection for an employee against harsh, unjust or unreasonable termination of employment (however described in the law), subsection (1) is not intended to affect the provisions of that law that provide that protection, so far as those provisions are able to operate concurrently with the certified agreement.

(4) ...

(5) In this section:

...

State law means a law of a State or Territory (including any regulations or other instrument made under a law of a State or Territory), but does not include a State award or a State employment agreement."

It should be noted that s 4 of the WR Act contains the following definitions:

" `award' means an award or order that has been reduced to writing under subsection 143(1), but does not include an order made by the Commission in a proceeding under Subdivision B of Division 3 of Part VIA"

and

" `certified agreement' means an agreement certified under Division 4 of Part VIB"

and

" `State award' means an award, order, decision or determination of a State industrial authority".

Three things emerge from these provisions. The first is that s 152 and s 170LZ operate in relation to a subsisting State law or State award and concern the present relationship between such a law or award and an award or certified agreement made under the WR Act. Second, s 153 contemplates that an application may be made seeking a determination that a subsisting State law or State award is invalid at the time the declaration, if not application, is made. The third is that, in terms, the combined scope of the definition of "award" and "certified agreement" appear not to comprehend a certified agreement not made under Division 4 of Part VIB of the WR Act. This last matter assumed some significance in the hearing of the interlocutory application. I was informed that in the proceedings before Marks J the applicants had conceded that the Agreement was an award for the purposes of s 152 and s 153 of the WR Act. No such concession is made in these proceedings. In order to explain the issue the applicants seek to raise by withdrawing the concession, it is necessary to refer briefly to the recent legislative history of the WR Act.

The legislative history of the WR Act

7 The WR Act is the IR Act whose name was changed (and the provisions of which were amended extensively) by the Workplace Relations and Other Legislation Amendment Act 1996 (Cth) ("WROLA Act"). Between 1989, when the IR Act came into force, and 1993 there existed a statutory regime for the making and certification of industrial agreements. Amendments made to the IR Act in 1994 by the Industrial Relations Reform Act 1993 (Cth) ("the Reform Act") altered the statutory regime for the making and certification of industrial agreements. Further and significant amendments were made to the regime for the making and certification of industrial agreements by the WROLA Act. The history of the amendments and their effect has been discussed by at least two Full Courts of this Court. First in Gordonstone Coal Management Pty Ltd v Australian Industrial Relations Commission [1999] FCA 298; (1999) 93 FCR 153 and second in Telstra Corporation Limited v MacBean [2000] FCA 437; (2000) 98 IR 10.

8 In Gordonstone Coal Management Pty Ltd v Australian Industrial Relations Commission the Full Court dealt with an application for prerogative relief against members of the Federal Commission. One matter in issue was whether an industrial agreement certified by the Federal Commission on 21 October 1996 was a certified agreement for the purposes of s 89A of the WR Act. A submission had been made by the second respondent to the proceedings in the Court (the union) that s 89A only applied to agreements entered into after the commencement of Sch 8 of the WROLA Act, namely 25 November 1996. The agreement in question was not a certified agreement for the purposes of s 4(1) of the WR Act. The Full Court concluded at 164:

"We reject the submission that the agreement is not a certified agreement for the purposes of the Workplace Relations Act. Although the provisions of

Sch 8 may not be applicable to the certified agreement because they only apply to agreements made after the commencement of Sch 8 (see Item 23 in Sch 8), s 89A is contained in sch 5 and is not so limited and is generally applicable in respect of all certified agreements whenever made."

9 Telstra Corporation Ltd v MacBean raised a different question. In issue was the status of a certified agreement which had been certified by the Federal Commission on 27 April 1993 pursuant to the statutory regime embodied in the IR Act as originally enacted. At that time, "award" was defined in the IR Act as including a certified agreement. One issue was whether the certified agreement was an award for the purposes of provisions in Sch 5 of the WROLA Act requiring the removal from awards, by their variation, of provisions so the awards only dealt with what was elsewhere prescribed as "allowable award matters". The Full Court concluded that the certified agreement in question was not an award though the members of the Court published separate reasons for so concluding. For reasons which will be apparent shortly, it is unnecessary to descend into greater detail about the approach of each member of the Full Court nor discuss in much greater detail the amendments (including transitional provisions) that may impact upon the issue raised in these proceedings.

The issues and their consideration

10 The applicants submitted in this matter that the proceedings should be stayed pending the determination of the 106 proceedings or, alternatively, dismissed because this Court lacks jurisdiction to determine them. Ultimately counsel for the applicants submitted that the jurisdictional issue was a factor to be considered in the application for an order staying the proceedings and, in substance, invited the Court not to determine the jurisdictional issue at this stage. Counsel for Mount Thorley submitted that it had properly invoked the jurisdiction of this Court under s 153 of the WR Act (perhaps when read with s 39B of the Judiciary Act) or s 39B of the Judiciary Act when read with s 170LZ of the WR Act. It was further submitted that the declaratory orders sought could be made notwithstanding that no orders had yet been made in the State Commission. That was because the applicants have identified what orders were sought in the 106 proceedings, and issues of inconsistency could be determined by reference to those proposed orders (or perhaps, additionally, as those orders have been amended) and the Agreement. It is convenient to set out the orders sought by Mount Thorley in these proceedings. They were:

"1. A declaration that the orders sought by the respondents in summonses numbered 3614 to 3627 of 1998 filed in the Industrial Relations Commission of New South Wales on 3 July 1998 against the applicant are invalid.

2. An order that the respondents and each of them be restrained from pursuing or otherwise advancing their claims for the orders sought in summonses numbered 3614 to 3627 of 1998 in the Industrial Relations Commission of New South Wales against the applicant.

3. Such other relief as the Court sees fit."

11 The trial in the 106 proceedings is scheduled to commence in the State Commission in May 2001. Since its application was filed in this Court, Mount Thorley has submitted that the proceedings in this Court should be heard and determined before the trial commences. Indeed a principle reason advanced by Mount Thorley for this Court to hear and determine its application before then, is to avoid the inconvenience and expense of a trial seeking orders, it is submitted, that will have no legal effect.

12 On 24 October 2000, I listed the application by Mount Thorley for hearing on Friday 16 March 2001 though subject to the outcome of this interlocutory application which was listed for hearing on 9 February 2001. The applicants raised, on 9 February 2001, a jurisdictional argument turning on whether the Agreement is either an award or certified agreement for the purposes of s 152 or s 130LZ respectively. As noted earlier, the definition of "award" and "certified agreement" in the WR Act do not suggest, in terms, that an agreement certified under earlier statutory regimes is comprehended by either definition. However the question of whether s 152 has application to an industrial agreement certified under the IR Act (under the statutory regime in force at the time of the amendments made by the WROLA Act) and whether such an agreement is an award for the purposes of s 152 was answered, affirmatively, in Australian Education Union v Department of Training and Employment [1999] FCA 1858; (1999) 94 IR 386. French J said at 400:

"But s 152 in its original form, reflected a long standing statement of the statutory intention that awards made pursuant to the Commonwealth Act were to operate to the exclusion of any State law. That statement of statutory intention has been substantially narrowed in its scope by the amendments which, to that extent, have worked a repeal of the section in part. They have carved out of its previous operation that which is incorporated by reference in the words `subject to this section' with which it now begins. The statement of statutory intention operative, by virtue of s 152 as it stood at the time of the making of pre-amendment awards, including certified agreements, therefore continues in effect in relation to them. In terms of s 8 of the Acts Interpretation Act the repeal, in part, of s 152 does not `affect the previous operation' of the part of the section so repealed or anything done or suffered under it. The statutory intention applied by the force of s 152 to pre-amendment awards, including certified agreements, therefore continues in effect."

13 However, even if the judgement of French J provides an answer to the jurisdictional point first raised by counsel for the applicants on 9 February 2001, the power of this Court to determine the Mount Thorley application at this stage, is, for other reasons, open to doubt. As noted earlier, s 152 operates, in terms, in relation to a subsisting State law or State award and the jurisdiction conferred on this Court by s 153 is to determine whether there is an inconsistency of the type identified in s 152. In my opinion there is a real issue about whether, under s 153, the Court can grant declaratory relief in relation to orders that have been sought but not yet made. Until orders are made by the State Commission there is no State award for the purposes of ss 152 and 153. The application by Mount Thorley in this Court does not seek to impugn s 106 itself. That is, Mount Thorley does not seek to argue that s 106 is, itself, a State law on which s 152 operates. Its application is directed only to the proposed orders and their inconsistency, if made. It may be that the Court has jurisdiction to make declaratory orders about the legal status of proposed orders qua an award because of s 39B of the Judiciary Act: see Transport Workers' Union v Lee (1998) 84 FCR 60, notwithstanding the express terms of s 152 and s 153 though this must be doubtful given that, absent a State award on which s 152 might operate, there would appear to be no "immediate right duty or liability to be established by the determination of the Court": see Re Judiciary and Navigation Act [1921] HCA 20; (1924) 29 CLR 257 at 265. The fact that the Court's jurisdiction is not clear and will need to be determined may not, of itself, justify the order sought by the applicants in the interlocutory application. It is, however, a factor that tends to militate against the hearing and determination of Mount Thorley's application in this Court before the trial of the 106 proceedings in the State Commission if other considerations point in the same direction.

14 Moreover, while the circumstances in which a declaration might be made should not be viewed narrowly: see Oil Baisins Ltd v The Commonwealth [1993] HCA 60; (1993) 178 CLR 643 at 648 - 650 and Forster v Jododex Australia Pty Ltd [1972] HCA 61; (1972) 127 CLR 421 there are nonetheless limits on when such orders should be made if they relate to future conduct or circumstances: see Sanderson Computers Pty Ltd v Urica Library Systems BV (1998) 44 NSWLR 73 at 78 - 80; Klefend Pty Ltd v Santom Pty Ltd (1994) 88 LGERA 307; T v F [1999] FamCA 738; (1999) 25 Fam LR 36; and Briar Holdings Pty Ltd v Capolingua (1997) 37 ATR 135. In Sanderson Computers Pty Ltd v Urica Library Systems BV, Sheller JA set out a passage from the judgment of Gibbs J in University of New South Wales v Moorhouse [1974] HCA 27; (1975) 131 CLR 1 at 9-10:

"However the power [to make declaratory orders], although wide, is not unlimited. In Forster v Jododex Australia Pty Ltd [1972] HCA 61; (1972) 127 CLR 421 at 437, I expressed the opinion that the Scottish rules summarised by Lord Dunedin in Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438 at 448 should in general be satisfied before the discretion is exercised in favour of making a declaration. The first of those conditions is that `the question must be a real and not a theoretical question'. As a general rule, the power to make a declaration will not be exercised when the Court is called upon to answer a question that is purely hypothetical: see In re Barnato (dec'd); Joel v Sanges [1949] Ch 258 at 270. In accordance with that principle, the Court of Appeal in Odhams Press Ltd v London and Provincial Sporting Newsagency (1929) Ltd [1936] Ch 357 refused to make a declaration that the plaintiffs, who were unable to prove any specific infringement of copyright, were joint owners of the copyright in compilations of starting prices or betting odds made by their representatives . ... Many other examples may be found in the books of cases in which a declaration has been refused because it was claimed in relation to circumstances that had not occurred and might never happen."

15 In Commissioner of Taxation v De Vonk (1995) 61 FCR 564 a Full Court considered whether a declaration made by the primary judge should stand. It was a declaration concerning the questioning of a person, under compulsion, before a question had been asked. Both the Full Court and the primary judge concluded the questioning could not take place because it would constitute interference with the administration of justice. The primary judge declared the questioning would constitute a contempt of court: see (1995) 59 FCR 203 at 220. This declaration was set aside by the Full Court. Hill and Lindgren JJ said at 589:

"We are, however, of the same view as the learned trial judge, namely, that circumstances might arise where questions were put to Mr De Vonk which might constitute a real, or substantial risk of interference with the course of justice. The abstract nature of this conclusion inevitably raises difficulty in the framing of appropriate relief. If a declaration had to be formulated to give effect to the foregoing reasons, it could only be one to the general effect that the conduct of an interrogation prior to the hearing of the criminal charges and covering the same factual circumstances as those covered by the criminal charges could constitute a contempt of the court before which such charges are to be heard. A declaration in such terms being hypothetical and `advisory' and relating to a procedural question, should not be made. For the same reason, the second order and declaration made by Carr J should be set aside. His Honour's reasons and our own foregoing reasons speak for themselves."

16 The central point raised by Mount Thorley in resisting the interlocutory application and pressing for an early hearing of its application is the cost and inconvenience associated with defending, at trial, the 106 proceedings if, at the end of the day, any orders made have no legal effect because they are inconsistent with the Agreement. While Mount Thorley is entitled to have this Court exercise such jurisdiction as is conferred by s 39B and/or s 153: see Ward v Williams [1955] HCA 4; (1955) 92 CLR 496 at 505 - 506; Mitchell v The Queen [1995] HCA 59; (1996) 184 CLR 333 at 345 - 346; Gould v Brown [1998] HCA 6; (1998) 193 CLR 346 at 458, the question raised by the interlocutory appliation is when it is to be exercised, assuming jurisdiction.

17 Of some significance, in my opinion, is the fact that the issues sought to be raised in this Court have already been ventilated in the State Commission. A judge of that Commission, in the face of arguments very similar to those advanced in outline and proposed to be advanced more fully by Mount Thorley in this Court, has decided that the 106 proceedings should go to trial. That conclusion has been tested in an application to a Full Bench for leave to appeal, and leave refused. While I should not be taken to be expressing a view about the conclusions of Marks J or the Full Bench, it is appropriate, in my opinion, that the procedural consequences of the conclusions they reached be acknowledged in these proceedings. That is, the trial is to take place because the tribunal invested with the jurisdiction to hear the application has decided to hear it.

18 In addition, it is desirable that the question of inconsistency, if it remains an issue in this Court, be determined at a time when the State award or State law which is said to give rise to the inconsistency has crystallised by orders having been made by the State Commission, assuming the absence of orders does not, as discussed earlier, deny jurisdiction to make the declaration sought. I accept that there are instances, referred to by counsel for Mount Thorley, where questions of inconsistency have been determined when proceedings in another Tribunal or Court had not concluded: see Telstra Corporation Ltd v Worthing [1999] HCA 12; (1999) 197 CLR 61 and Australian Broadcasting Commission v Industrial Court of South Australia [1977] HCA 51; (1998) 138 CLR 399. However in both instances the state law that was said to be inconsistent with a federal law was not the orders that might emerge from the proceedings, but rather the legislation pursuant to which the proceedings were being maintained.

19 At present, Mount Thorley only seeks to have determined the question of whether the orders sought by the applicants in the 106 proceedings would be, if made, inconsistent with the Agreement. Amendments have already been made to the applications and it is conceivable that further amendments will be made and/or orders made by the State Commission which do not accord precisely with the orders sought. Obviously, it may transpire that no orders are made.

20 It is necessary to bear in mind the observations of the majority of the High Court in Bass v Permanent Trustees Co Ltd [1999] HCA 9; (1999) 198 CLR 334 at 357 which, though directed to a slightly different issue, are apt:

"Courts have traditionally declined to state - let alone answer - preliminary questions when the answers will neither determine the rights of the parties nor necessarily lead to the final determination of their rights. The efficient administration of the business of courts is incompatible with answering hypothetical questions which frequently require considerable time and cause considerable expense to the parties, expense which may eventually be seen to be unnecessarily incurred."

21 The applicants accepted that if an order was made staying the proceedings in this Court, the proceedings could be revived if and when orders were made by the State Commission in the 106 proceedings. It was also accepted that Mount Thorley could then test, in these proceedings, whether there was inconsistency between those orders and the Agreement. In my opinion this is the preferable course. It will enable, as noted earlier, the resolution finally of the legal issue between Mount Thorley and the applicants.

22 In the orders I propose to make I will give the parties liberty to apply on 7 days notice. I do so to enable either party to have the matter relisted if there is a material change in the circumstances concerning the hearing and determination of the 106 proceedings. Unless the liberty to apply is exercised, it is my intention to list this matter shortly after the 106 proceedings have been determined with a view to considering what steps should be taken to hear and determine the application by Mount Thorley.

I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

Associate:

Dated: 23 February 2001

Counsel for the Applicant:	H J Dixon SC
Solicitor for the Applicant:	Freehills
Counsel for the Respondent:	S Howells
Solicitor for the Respondent:	R. L. Whyburn & Associates
Date of Hearing:	9 February 2001
Date of Judgment:	23 February 2001