Re Coldham; Ex Parte Brideson (No 2) [1990] HCA 36; (1990) 170 CLR 267 (22 August 1990)

HIGH COURT OF AUSTRALIA

Re COLDHAM; EX PARTE BRIDESON (No. 2) [1990] HCA 36; (1990) 170 CLR 267

F.C. 90/035

Industrial Law (Cth)

High Court of Australia

Deane(1), Gaudron(1) and McHugh(1) JJ.

CATCHWORDS

Industrial Law (Cth) - Conciliation and arbitration - Decision of Registrar - Appeal to Commission - Nature of appeal - Conciliation and Arbitration Act 1904 (Cth), s. 88F.

Section 88F(1) of the Conciliation and Arbitration Act 1904 (Cth) empowered the Commission to grant leave to appeal to the Commission from an act or decision of the Registrar and to hear and determine the appeal. The Commission could take further evidence for the purposes of the appeal (sub-s. (3)), and could make such order as it thought fit on the determination of the appeal (sub-s. (4)).

Held, that on an appeal under s. 88F the Commission was required to make a decision on the facts and law existing at the date of its decision.

Federated Carters and Drivers' Industrial Union v. Motor Transport and Chauffeurs' Association (1912), 6 CAR 122 at p 123, approved.

Re Federated Miscellaneous Workers Union of Australia (1974) 157 CAR 623 at p 631, disapproved.

Re Coldham; Ex parte Brideson [1989] HCA 2; (1989) 166 CLR 338 at p 348; Horne v. Locke, (1978) 2 NSWLR 88; and Strange-Muir v. Corrective Services Commission (1986) 5 NSWLR 234, considered.

HEARING

1990, June 1; August 22. 22:8:1990

MANDAMUS AND CERTIORARI.

DECISION

DEANE, GAUDRON AND McHUGH JJ. At the conclusion of the argument in this matter, the Court discharged an order nisi for the issue of writs of mandamus and certiorari directed to members of the Australian Industrial Relations Commission. The order nisi had been obtained by Andrew Brideson ("the applicant") on behalf of the Teachers' Association of Australia. The Court stated that it would publish its reasons for discharging the order nisi at a subsequent date. We now give our reasons for discharging the order nisi.

2. As Mr Dalton Q.C., counsel for the applicant, developed his argument in this Court, it became apparent that one issue in the application was whether on an appeal from an act or decision of the Registrar of the Australian Industrial Relations Commission the Commission had jurisdiction to hear evidence concerning matters which had arisen since the date of the act or decision of the Registrar. The issue arose because, in determining appeals against a decision of the Registrar to register the Teachers' Association of Australia ("T.A.A.") as an organisation of employees under the Conciliation and Arbitration Act 1904 (Cth) ("the Act") (now repealed), the Full Bench of the Commission upheld a ground of objection under s.142 of the Act which had not, and could not have, been relied upon before the Registrar. Although the Full Bench held that registration should also be refused on another ground, it was common ground in this Court that the order nisi had to be discharged unless the applicant could establish that the Full Bench had misconceived its jurisdiction in respect of the objection based on s.142. It was also common ground that, notwithstanding the commencement of the Industrial Relations Act 1988 (Cth), the proceedings fell to be resolved by reference to the relevant provisions of the Act (see Industrial Relations (Consequential Provisions) Act 1988 (Cth), s.9).

3. The application for the registration of T.A.A. as an organisation of employees was lodged on 3 November 1983. The application has been the subject of considerable litigation in the Commission and has been before this Court on two previous occasions. However, for present purposes, the history of the relevant events can be stated shortly.

4. On 17 December 1986, the Registrar confirmed an earlier statement of his intention not to reject the application for the registration of T.A.A. as an organisation of employees under the Act. On the same date, but after his decision in the T.A.A. application, the Registrar announced that he would grant registration of the Australian Teachers' Union ("A.T.U.") as an organisation of employees under the Act. A Certificate of Registration was issued to the A.T.U. on 4 February 1987. On 17 December 1986, the Registrar also confirmed his intention not to refuse to register the Independent Teachers Federation ("I.T.F.") as an organisation of employees. Both A.T.U. and I.T.F. were objectors to the registering of T.A.A. as an organisation under the Act.

5. On 25 March 1988, the Full Bench of the Commission gave its decisions in applications for leave to appeal, brought by A.T.U. and I.T.F., against the decision of the Registrar in which he declared his intention to register T.A.A. as an organisation of employees under the Act. The Full Bench gave leave, allowed the appeals and quashed the Registrar's decision. On the same date, subject to a qualification which is not presently material, the Full Bench of the Commission confirmed the Registrar's decision to register I.T.F. as an organisation under the Act. Subsequently, a Certificate of Registration was issued to I.T.F. Neither T.A.A. nor I.T.F. applied for leave to appeal against the grant of registration to A.T.U.

6. On 7 February 1989, for reasons it is unnecessary to repeat, this Court ordered the Commission to re-hear the applications for leave to appeal against the decision of the Registrar to register T.A.A. On 5 June 1989, the Full Bench commenced re-hearing the applications. On 10 August 1989, the Commission gave its decisions. It granted leave to appeal against the Registrar's decision of 17 December 1986, allowed the appeals and again quashed the decision to register T.A.A. as an organisation of employees. The Full Bench found that T.A.A. had not complied with the condition prescribed by reg.115(1)(b) of the Conciliation and Arbitration Regulations (Cth). It also refused to register T.A.A. because the members of that association "might conveniently belong", within the meaning of s.142 of the Act, to A.T.U. and I.T.F. and because there was no ground for exercising its discretion under that section in favour of registering T.A.A.

7. Section 142 of the Act provided:

"The Registrar shall, unless in all the circumstances

he thinks it undesirable so to do, refuse to register any

association as an organization if an organization, to which

the members of the association might conveniently belong,

has already been registered."

8. When the Registrar gave his decision on 17 December 1986 neither I.T.F. nor A.T.U., of course, was a registered organisation. Nor was there any other registered organisation in existence to which the members of T.A.A. might conveniently belong. Accordingly, there was no objection to the registration of T.A.A. based on s.142 of the Act before the Registrar when he gave his decision. After this Court ordered the Commission to re-hear the applications for leave to appeal against the decision of the Registrar not to refuse to register T.A.A., I.T.F. and A.T.U. lodged objections based on s.142 of the Act. They alleged that they were entitled to do so because, although they were registered after the date of the Registrar's decision, their objections were filed while the application of T.A.A. remained for determination. The notices of objection were filed well out of time. But reg.141(1)(d) states:

"For the purpose of giving effect to the Act, the

Registrar shall, in relation to any application or

proceeding with which he is authorized to deal, have power -

...

(d) to extend the time fixed by these Regulations for the

lodging of any document or the doing of any act

(whether that time has expired or not)".

9. The Full Bench rejected an argument on behalf of T.A.A. that "at the time of the decision of the Registrar under appeal viz 17 December 1986, neither ITF nor ATU was a registered organisation having the capacity to raise the objection sought and that there was no power in this Bench, as the present repository of the power given to the Registrar, to extend time". The Full Bench also rejected an argument that reg.119, which permitted the lodging of an objection under s.142, "connotes as an objector an organisation in existence as such no later than the conclusion of the hearing of the application for registration or no later than the Registrar's decision to register".

10. Since the Full Bench had no express power to permit the objections based on s.142 to be raised before it, the correctness of its decision on this point necessarily depended on whether the appeal to the Commission from an act or decision of the Registrar was in the nature of a re-hearing or an appeal in the strict sense of the term. If the appeal to the Commission was an appeal in the strict sense, then the Commission could only make such order as the Registrar should have made on the evidence before him: Quilter v. Mapleson (1882) 9 QBD 672 at p 676.

11. The right of appeal to the Commission against the decision of the Registrar was given by s.88F of the Act which provided:

"(1) The Commission may grant leave to appeal to the

Commission from an act or decision of the Registrar in

relation to a matter and may hear and determine an appeal in

respect of which leave is so granted.

(2) Where leave to appeal has been granted under this

section, the Commission may, on such terms and conditions as

it thinks fit, make an order that the operation of the

act or decision of the Registrar be stayed pending the

determination of the appeal or until further order of the

Commission.

(3) The Commission may take further evidence for the

purposes of an appeal under this section.

(4) Upon the determination of an appeal under this section

by the Commission, the Commission shall make such order as

it thinks fit and may confirm, quash or vary a decision of

the Registrar appealed from.

(5) The powers of the Commission under this section in

respect of an appeal to the Commission are exercisable by

the Commission constituted by the President or by a

presidential member of the Commission assigned by the

President for the purpose of the appeal or, in a case in

which the President so directs, by a Full Bench."

12. The power conferred on the Commission to "make such order as it thinks fit" together with the power to "take further evidence for the purposes of an appeal under this section" are strong indications that the appeal given by s.88F was by way of re-hearing. Nothing in s.88F suggested that the power to receive further evidence was limited to evidence of events which had occurred as at the date of the Registrar's decision. Moreover, when the present case was last before this Court (Re Coldham; Ex parte Brideson [1989] HCA 2; (1989) 166 CLR 338), Wilson, Deane and Gaudron JJ. said (at p 348):

"Even if the Commission's decision be quashed the

applications for leave to appeal from the Registrar's

decision allowing registration of T.A.A. will remain extant.

Those applications (if allowed) entitle the Commission to

substitute in place of the decision of the Registrar its own

decision that the requirements for registration have or

have not been met: s.88F(4). If that decision be in the

affirmative, the Commission will then need to direct its

attention to the questions posed by s.142 of the Act."

Although the point was not argued before this Court on that occasion, it is apparent that the members of the Court took it for granted that, when the Commission re-heard the matter, it would be able to consider matters which had occurred since the Registrar's decision.

13. Mr Dalton submitted, however, that the power of the Commission to take "further evidence" was limited "to the nature of the matter that it is dealing with". He submitted that the scheme of the Act showed that, once the Registrar was satisfied that the prescribed conditions had been met and that there was no organisation to which the members of T.A.A. might conveniently belong, it was entitled to registration at that point of time. On this hypothesis, the question for the Commission under s.88F was whether, on the evidence before the Commission, the decision of the Registrar was correct at the time which it was made. Support for the submission of Mr Dalton is to be found in Horne v. Locke (1978) 2 NSWLR 88 and Strange-Muir v. Corrective Services Commission (1986) 5 NSWLR 234.

14. In Horne, Sheppard J. held that, when an employee appealed to an Appeals Board, set up under the Government Railways Act 1912 (N.S.W.), against a decision of his employer refusing to promote him, the appeal had to be determined on the facts which existed at the time of the employer's decision. His Honour reached this conclusion notwithstanding that the Board was "intended to hear evidence from witnesses". In Strange-Muir, the Court of Appeal of New South Wales held that, on an appeal to the Government and Related Employees Appeal Tribunal, whether an appellant-employee was "more entitled to be appointed to the vacant office than the employee in whose favour the decision is made" had to be determined on the evidence which existed at the date of the employer's decision. In his reasons for judgment in that case, McHugh J.A. said (at p 250) that it should be taken as established that "there is a presumptive rule that in an administrative appeal to an administrative body the issue is whether the decision was correct when it was made". His Honour considered that in this respect an appeal to an administrative tribunal against an administrative act was to be contrasted with an appeal to a court against an administrative act. Be that as it may, it is well settled that, when the legislature gives a court the power to review or hear an "appeal" against the decision of an administrative body, a presumption arises that the court is to exercise original jurisdiction and to determine the matter on the evidence and law applicable as at the date of the curial proceedings: see Ex parte Australian Sporting Club Ltd.; Re Dash (1947) 47 SR (NSW) 283. Nevertheless, whether the right of appeal against an administrative decision is given to a court or to an administrative body, the nature of the appeal must ultimately depend on the terms of the statute conferring the right: Builders Licensing Board v. Sperway Constructions (Syd.) Pty. Ltd. [1976] HCA 62; (1976) 135 CLR 616 at pp 621-622.

15. In the present case, the enactment of s.88F(3) - "take further evidence", the terms of s.88F(4) - "make such order as it thinks fit", and the nature of many of the issues which came before the Commission on appeal from the Registrar point irresistibly to the conclusion that the Commission was required to decide the case on the facts and law which existed at the date of its decision.

16. In appeals against decisions to register associations as organisations for the purposes of the Act, one of the issues which the Commission often had to determine under s.88F was whether the association had complied with the prescribed conditions. Another issue which often had to be determined was whether, by reason of the provisions of s.142 of the Act, registration should be refused. It seems most unlikely that the legislature intended that, on an appeal under s.88F, the Commission had to register or confirm the registration of an association notwithstanding that, at the date of the appeal, the association no longer complied with the prescribed conditions. Furthermore, as this Court pointed out when the present case was previously before it (at p 344):

"The history of industrial regulation in this country

has shown the desirability of ensuring that industrial

representation is structured in the interests of employees

and the industry in which they are engaged, both for the

purpose of avoiding demarcation disputes and for the purpose

of ensuring effective industrial representation."

The effective administration of the Act made it a matter of importance that an association should not be registered if its members might conveniently belong to a registered organisation unless in all the circumstances it was undesirable to refuse registration. It would seem most unlikely, therefore, that the legislature intended that the Commission should register or confirm the registration of an association if, at the date of the appeal, there was an organisation to which the members of the association might then conveniently belong and the Commission did not think it was undesirable to refuse registration to the association.

17. In our opinion, upon the correct construction of s.88F, the Commission was bound to make its own decision on the evidence before it, including evidence of events which had occurred since the Registrar's decision. As Higgins J. said in Federated Carters and Drivers' Industrial Union of Australia v. Motor Transport and Chauffeurs' Association of Australia (1912) 6 CAR 122 at p 123:

"the appellant is entitled to have ... a re-hearing, a

'review' of the decision ... He is entitled to such

judgment as I can bring to bear upon the question,

independently of the Registrar, although, of course, I

should attach a good deal of weight to the Registrar's

view."

This statement was made when the predecessor of s.88F contained the word "review". Nevertheless, it is equally applicable to s.88F. Consequently, the statement of the Full Bench in Re Federated Miscellaneous Workers Union of Australia (1974) 157 CAR 623 at p 631, that "the principles relating to the function of a tribunal sitting on appeal from the exercise of a discretion should be applied" in an appeal under s.88F cannot be accepted as a correct description of the Commission's functions under that section. That is not to say, however, that those principles could not be brought to bear on the question whether leave to appeal should be granted. In determining whether leave to appeal should be granted under s.88F(1), it would have been appropriate for the Commission to refuse leave unless it thought that there was an arguable case that the Registrar 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. But once leave was granted, the Commission was bound to make its own decision on the evidence before it, including any further evidence admitted pursuant to s.88F(3).

18. It follows from what has been said above that the Commission had jurisdiction to permit the objections under s.142 to be raised. Consequently, the order nisi to review its decisions had to be discharged.

ORDER

Order nisi for writs of mandamus and certiorari discharged.