AUSTRALASIAN MEAT INDUSTRY EMPLOYEES UNION, TASMANIAN BRANCH

AUSTRALASIAN MEAT INDUSTRY EMPLOYEES UNION, TASMANIAN BRANCH

Administrative Law - Judicial review legislation - Existence of other rights of review - Right of appeal to the Full Bench of the Industrial Commission - Question of statutory construction to ascertain the extent of the jurisdiction of Industrial Commission - Whether discretion should be exercised to summarily dismiss application for review.

Judicial Review Act 2000 (Tas), s12(b).

Industrial Relations Act 1984 (Tas), ss29(1), 30(1) and 70(1)(b).

Boral Gas (NSW) Pty Ltd v Magill (1993) 32 NSWLR 501; Weinel v Judge Parsons [1994] SASC 5155; (1994) 62 SASR 501; R v Hillingdon London Borough Council, Ex parte Royco Homes Ltd [1974] QB 720; Ex parte Waldron [1986] 1 QB 824, followed.

Attorney-General Director of Public Prosecutions

Judgment Number: [2003] TASSC 142

v TASMANIAN INDUSTRIAL COMMISSION, AUSTRALASIAN MEAT INDUSTRY EMPLOYEES UNION, TASMANIAN BRANCH

v TASMANIAN INDUSTRIAL COMMISSION and AUSTRALASIAN MEAT INDUSTRY EMPLOYEES UNION, TASMANIAN BRANCH

1 The issue is whether, in the exercise of the discretion conferred by the Judicial Review Act 2000 ("the Review Act"), s12(b), two applications to review a decision of the Tasmanian Industrial Commission ("the Commission") should be summarily dismissed because adequate provision to review that decision, viz, a right of appeal to the Full Bench of the Industrial Commission, is conferred by another law.

2 In late 2001, Blue Ribbon Pty Ltd was placed in administration. For many years this company had been in the abattoir and meat processing business at Killafaddy Road, Launceston. Upon Blue Ribbon Pty Ltd going into administration, its production workers were all sacked, but immediately rehired on a "daily hire basis". On 17 December 2001, three new companies were incorporated, namely, Blue Ribbon Products Pty Ltd ("Blue Ribbon"), Newemploy Pty Ltd ("Newemploy") and Working Investments Pty Ltd. Blue Ribbon is a subsidiary of Working Investments Pty Ltd.

3 At about the end of 2001, Newemploy started to supply Blue Ribbon with the labour it needed to carry on the business of Blue Ribbon Products Pty Ltd. Although this was not clear from the material upon the application, I assume that Blue Ribbon Products Pty Ltd purchased the shares or the assets of Blue Ribbon Pty Ltd or by some other means, took over its business. On 7 January 2002, the labour force, with a few exceptions, entered into a three month contract of employment with Newemploy, the terms of which were in accordance with the terms of the Meat Processing Industry Award.

4 At the expiration of the contracts and in circumstances that are immaterial for present purposes, the labour force entered into training contracts with another company. These contracts were for 12 months from 2 April 2002. Newemploy took the view that by signing the training agreement, the relationship of employer and employee would come to an end at the expiration of the 12 month training period. Thereafter, Newemploy proposed offer to place each worker on its list of skilled independent contractors and those who were on that list might be found work with Blue Ribbon, but not as employees of either that company or Newemploy, but as independent contractors. Most of these people had worked for Blue Ribbon Pty Ltd for very many years. The training agreements came to an end on 2 April 2003 and the assertion of the new arrangements by Newemploy immediately gave rise to an industrial dispute.

5 By written notice dated 4 April 2003, the Australasian Meat Industry Employees Union (Tasmanian Branch) ("the Union") applied to the President of the Commission pursuant to the Industrial Relations Act 1984 ("the Act"), s29(1), for a hearing in respect of an industrial dispute. The application referred to a picket line being in place. It sought an order that the Commission order Newemploy to allow the named employees to return to work with no loss of pay or other entitlements.

6 Pursuant to the Act, s29(2), the President appointed Commissioner Shelley to hear the dispute, fixed 8 April 2003 as the hearing date, and gave notice of the hearing to the Union, Newemploy and the relevant Minister. According to the reasons for the Commission's decision, the hearing lasted for a total of nine days. At some stage after the commencement of the hearing, the Union gave notice that it might wish to seek orders against Blue Ribbon. On 2 June 2003, Blue Ribbon appeared by counsel and submitted that the Commission had no power to join Blue Ribbon as a party to the proceedings, that in any event, the proceedings were then so advanced that any joinder would deny the party joined natural justice, and that Blue Ribbon was not an employer of any of the persons involved in the dispute.

7 The Commission adjourned the hearing for 28 days and served notice on Blue Ribbon to attend the hearing. The same notice gave directions with respect to furnishing Blue Ribbon with a transcript of proceedings to date and other related matters. Blue Ribbon chose not to call witnesses or cross-examine witnesses but, by its counsel, made submissions that no order should, or could, be made against it.

8 On 1 October 2003, the Commission made an order to the effect that Newemploy and Blue Ribbon "reinstate the employment arrangements that existed immediately prior to 2nd of April 2003" with respect to the persons named in the order and that Newemploy pay them "the amount of wages they would have received from 2nd of April 2003 [to date] less any income from paid work performed during that period ...".

9 By notices given in timely manner, Blue Ribbon and Newemploy appealed to the Full Bench of the Commission against Commissioner Shelley's decision. See the Act, s70(1)(b), which provides:

"70 - (1) An appeal may be made to the Full Bench against -

(b) an order made by a Commissioner under section 31(1) after a hearing relating to an industrial dispute in respect of any termination of employment, including termination resulting from redundancy, or long service leave, or breach of an award or a registered agreement by -

10 By virtue of the Act, s71(4), the lodgement of a notice of appeal operates as a suspension of the order until the appeal is determined.

11 Within a day or two of filing the notices of appeal to the Full Bench, Blue Ribbon and Newemploy filed applications in this Court seeking a review of the Commission's decision, pursuant to the Review Act, s17. Pursuant to that Act, s39, the Attorney-General intervened and thereby became a party to both applications for a judicial review. Upon becoming a party, the Attorney-General took out an interlocutory application seeking an order (inter alia) that the applications for review be dismissed:

"By reason that the decision the subject of the originating application, is the subject of an appeal to the Full Bench of the Tasmanian Industrial Commission brought by [Newemploy/Blue Ribbon]."

12 Thus the issue arose. The Attorney-General relied upon the discretion conferred by the Review Act, s12(b), which provides:

"12 - Despite section 10, but without limiting section 38, the Court may dismiss an application under section 17, 18 or 19 that was made to the Court relating to a reviewable matter because -

(b) adequate provision is made by a law, other than this Act, under which the applicant is entitled to seek a review of the matter by the Court or another court or a tribunal, an authority or a person."

13 The other respondents to the application for judicial review, the Commission and the Union, did not seek to be heard on the interlocutory application. Submissions for the Attorney-General were put by Mr Turner, by Mr O'Farrell for Newemploy and by Mr McDermott for Blue Ribbon.

The applications for review and the appeals to the Full Bench

14 In its application for judicial review, Newemploy relies upon seven grounds to support a claim that there was no jurisdiction to make the impugned order. Two of these grounds have a number of subsidiary grounds. In addition, the notice pleads two grounds to support a claim of procedural unfairness and alleges two additional errors of law. All these grounds are also set out in the notice of appeal to the Full Bench of the Commission. That notice contains 16 additional grounds, all of which could be grouped together upon the basis that they arise out of the evidence given at the hearing and the findings made with respect to that evidence.

15 In its application for judicial review, Blue Ribbon asserts:

16 All of these grounds, without additions, appear in the appeal to the Full Bench of the Commission.

17 At the heart of this litigation is the issue of whether the Commission had power to make Blue Ribbon a party to the industrial dispute before it, and whether it had jurisdiction to make any order affecting the company. It appears quite clear to me that if the Commission had no such power and no such jurisdiction, it is extremely unlikely that any of the other grounds set out in the Newemploy appeal to the Full Bench would need to be determined. Thus, it was urged upon me by counsel for Newemploy and counsel for Blue Ribbon that because a foundational issue of the jurisdiction of the Commission had been raised, and because that required an interpretation of the provisions of the Act, it would be appropriate for this Court to determine that issue now without waiting for the decision of the Full Bench of the Commission.

18 For the Attorney-General, Mr Turner argued that the proper exercise of the discretion required the summary dismissal of the application for a judicial review, as Parliament had provided Newemploy and Blue Ribbon with an alternative remedy by way of appeal to the Full Bench of the Commission and it was only in an exceptional case that a court would intervene to consider a grant of what used to be called prerogative relief, before that remedy had been exhausted.

19 The Review Act, s12(b), enacts a well-established principle of administrative law, namely that the issue of a prerogative writ will be denied if there is another "equally effective and convenient remedy", per Widgery CJ in R v Hillingdon London Borough Council, Ex parte Royco Homes Ltd [1974] QB 720 at 728. As to what matters should be considered when determining whether there is an equally effective and convenient remedy, Glidewell LJ said in Ex parte Waldron [1986] 1 QB 824 at 852:

"Whether the alternative statutory remedy will resolve the question at issue fully and directly; whether the statutory procedure would be quicker, or slower, than the procedure by way of judicial review; whether the matter depends on some particular or technical knowledge which is more readily available to the alternative appellate body; these are amongst the matters which a court should take into account when deciding whether to grant relief by way of judicial review when an alternative remedy is available."

20 In Boral Gas (NSW) Pty Ltd v Magill (1993) 32 NSWLR 501, Kirby P (as he then was) reviewed the authorities dealing with this principle and then set out, at 511, relevant considerations that he had earlier gathered in Ballam v Higgins (1986) 17 IR 131, which support a general rule that the Court should not intervene until the other remedies conferred by Parliament have been exhausted:

"1 It recognises and gives effect to the legislative scheme provided by Parliament for internal appeals ...

2 It affords a proper place to the specialised tribunal which may have a superior advantage in ready knowledge of the developments of jurisprudence under scrutiny which this Court does not initially enjoy. Furthermore, that tribunal frequently has a superior armoury of remedies at its disposal than this Court can offer;

3 Whilst it may involve the possibility of additional cost or delay, it affords this Court the advantage of having the opinion of the appellate tribunal should the Tribunal determine the question of jurisdiction and should it still be the intention of a party to challenge jurisdiction;

4 It allows complete exhaustion of any additional factual issues which may be relevant to establishing the facts said to ground jurisdiction, which facts may more readily be determined below than in this Court; and

5 It conserves to cases where no other remedy exists, the discretionary and exceptional remedies provided by writs in the nature of prerogative writs and recognises the pressure of business in this Court, including in the exercise of its general supervisory jurisdiction."

21 King CJ referred with approval to Boral in Weinel v Judge Parsons [1994] SASC 5155; (1994) 62 SASR 501 when he said, at 504 - 505:

"Remedies by way of judicial review are discretionary. They are generally not granted where there is another equally effective and convenient remedy; R v Hillingdon London Borough Council ex parte Royco Homes Ltd (1974) 1 QB 720 per Lord Widgery at p728. Judicial Review should not be used as an alternative to the exercise of a right of appeal and the discretion may be exercised to discourage the procedure from being so used; R v Ross Jones ex parte Green [1984] HCA 82; (1984) 156 CLR 185 per Wilson and Dawson JJ at p214. The authorities were considered by the judges of the Court of Appeal of New South Wales in Boral Gas (NSW) Pty Ltd v Magill (1993) 32 NSWLR 501. The judgments in that case make it unnecessary for me to examine the cases further in this judgment."

22 Mr O'Farrell submitted that if his client's argument that the Commission had no power to make it a party is correct, then it has no alternative remedy by way of appeal to the Full Bench because relevantly, that remedy is only conferred on "a party to whom the order relates". Mr Turner contended that upon its face, the order clearly relates to Blue Ribbon and therefore it has a right of appeal. It seems to me that in the absence of a definition of "party" in the Act, the only way this question can be solved is by a determination of the principal argument that the Commission had no jurisdiction to join Blue Ribbon as a party. This argument involves a serious question of statutory interpretation and a determination of the extent of the Commission's arbitral powers. Consideration will have to be given (inter alia) to the proper meaning of "industrial dispute" and "industrial matter" in the Act, s3(1), and the extent of jurisdiction conferred by ss29(2)(b) and 31(1). So far as I can see, all the facts required to properly ground the arguments raised by the applications for judicial review have either been found by the Commission or are not in dispute. The issues raised by the applications for judicial review involve questions of law and do not depend in any way upon the specialised knowledge and skills of the Commission.

23 Subject to an argument about whether the Commission's decision is a decision within the meaning of the Review Act, s4(1), the circumstances of these cases are such that it seems to me that the jurisdictional question will fall to be determined by this Court either now or later. The cases of Boral and Weinal were concerned with legislation that conferred a right of appeal to a superior court of record comprising judges who have the same qualifications as State Supreme Court judges. In this case, the right of appeal is conferred on a bench of at least three Commissioners, one of whom is likely to be the President or Deputy President. See the Act, s14(1). The qualifications for eligibility for appointment as an Industrial Commissioner, set out in the Act, s5(4), do not equate to those necessary for appointment as a judge of this Court. See Supreme Court Act 1887, s4.

24 I hasten to add that I do not refer to these matters to suggest in any way that the President and the Commissioners of the Commission are not very well qualified to carry out the duties imposed upon them by the Act. I have every confidence that with respect to matters touching and concerning industrial relations, all the Commissioners are very experienced and have skills that enable them to deal with such matters far more effectively and efficiently than any member of this Court. But the issues raised by the applications for review and the appeals to the Full Bench of the Commission relate to the law rather than to industrial relations. They require determinations of law to ascertain the extent of the Commission's jurisdiction, and it seems to me that it will be quicker and more effective if the Court that has ultimate supervisory jurisdiction over the Commission definitively determines these questions before the appeals to the Full Bench are heard. In this respect I refer to the judgment of McHugh JA (as he then was) in Ballam v Higgins (supra) at 133:

"...as a general rule, this Court should not entertain applications for prerogative writs in respect of s 88F applications until the appellate procedures of the Commission has been exhausted. However, I would like to leave open those special cases where the jurisdictional facts are not in dispute. It may be that in that class of case it would be proper for this Court to intervene even before the proceedings are heard before a member of the Commission at first instance."

25 It seems to me that this is just such a case. Accordingly, the application to summarily dismiss the applications for judicial review is dismissed. I will hear the parties with respect to the listing of this matter for hearing and any necessary pre-hearing steps that need to taken.