It submits this Rule cannot be used for the issue of a summons to show cause by the Commission in Court Session sitting on a s139 application.
17 The applicant employer invites the court to reject both submissions. It submits as to the effect of s162(2)(i) that s162 is a general procedural provision applying to the Commission and a general procedural provision must give way to a specific provision in any Act. In this matter there is specific provision under s139(2) which directs the Commission in Court Session to act in a specific manner.
18 The issue as to the specificity of a provision being in conflict with a general provision of an Act was examined in Downey v Trans Waste Pty Ltd ([1990-1991] 172 CLR 167 at 181) per Dawson J:
Where there is a repugnancy between the general provisions of a statute and provisions dealing with a particular subject matter, as a matter of general construction the latter must prevail. As Deane J. pointed out in Refrigerated Express Lines (A/asia) Pty. Ltd v Australian Meat and Live-stock Corporation (No.2) (1980) 44 FLR 455, at p 469; 29 ALR 333, at p 347:
"Repugnancy can be present in cases where there is no direct contradiction between the relevant legislative provisions. It is present where it appears, as a matter of construction, that special provisions were intended exhaustively to govern their particular subject matter and where general provisions, if held to be applicable to the particular subject matter, would constitute a departure from that intention by encroaching on that subject matter."
And in Anthony Hordern and Sons Ltd. v. Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1, Gavan Duffy C.J. and Dixon J. observed, at p 7:
"When the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power."
Dixon J. referred to the same principle in R. v. Wallis (1949) 78 CLR 529 when he said of the Commonwealth Conciliation and Arbitration Act 1904, at p 550:
"If it confers a specific power with respect to a limited subject or specifies a manner of dealing with it or otherwise provides what the duty or authority of the arbitrator shall be, then upon ordinary principles of interpretation the provision in which that is done should be treated as the source of his authority over the matter, notwithstanding that otherwise the same or a wider power over the same matter might have been implied in or covered by the general authority given by s.38. This accords with the general principles of interpretation embodied in the maxim expressum facit cessare tacitum and in the proposition that an enactment in affirmative words appointing a course to be followed usually may be understood as importing a negative, namely, that the same matter is not to be done according to some other course.
This applies especially when the power or duty affirmatively conferred or imposed is qualified by some condition, limitation or direction."
19 In The King v Wallis (1949) 78 CLR 529 in referring again to Anthony Hordern and Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia ((1932) 47 CLR 1 at 7) Dixon J said (at 551):
. . . When the Legislature explicity gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power.
20 An analysis of the above authorities reveals applications similar to the one before the Commission under past State Industrial legislation with similar provisions and under past Rules of the Commission have been initiated by the issue of summons and affidavit verifying the allegations. Marks J in Director-General, Department of Education and Training v NSW Teachers Federation [2000] NSWIRComm 17 published 13 March 2000 examined in detail the legal effect of the provisions of the Act related to an application for dispute orders. He examined relevant authorities: Australasian Meat Industry Employees Union & Ors v Mudginberri Station Pty Ltd (1986) 161 CLR 98; Witham v Holloway (1995) 183 CLR 525; The King v The Associated Northern Collieries & Ors (1910) 11 CLR 738 esp 742 et seq; Gapes v Commercial Bank of Australia Ltd (1979) 38 FLR 431. His Honour concluded s139 proceedings were civil proceedings but he commented they should be conducted "in the nature of criminal proceedings". He went on to require the proceedings should be conducted by adopting an appropriately higher standard of practice and procedure than civil practice and procedure simplicity.
21 Given the authorities before the Court and a close examination of the IR Rules, it is the court's view this application should have been commenced under Part 28 of the Rules and therefore there should have been issued a summons with an affidavit verifying the allegations.
22 I am persuaded Part 28 is the relevant provision of the Rules for the following reasons: the proceedings before the Court relate to "civil penalty" (per headnote of Part 28) and the jurisdiction of the Commission under s139 of the Act is exercisable only by the Commission in Court Session and IR Rule 218(1) deals with the proceedings before the Commission in Court Session. While I accept the applicant's submission the proceedings are not to "recover" a civil penalty I do not believe IR Rule 218(2) precludes this application under Part 28 as the words of the Rule say only the Part covers proceedings which "include" proceedings to recover a civil penalty.
23 I further find s139(2) of the Act specifically requires the Commission in Court Session to issue the summons to show cause and that is what occurred in this case. The action of the Commission was in accordance with the specificity of the Act. It may well be that a failure by the Commission in Court Session to proceed, once an application has been made pursuant to s139(1), the said application not being constrained by the provisions of the Act, would in itself expose the Commission to a writ of mandamus requiring it to exercise its public duty and to issue the summons pursuant to s139(2).
24 I do not believe s162(2) is relevant in relation to the issues before the Court. The Commission in Court session cannot be found to have initiated the proceedings. It was initiated by the employer. Further, the Commission in Court session cannot be found by the issue of a summons to show cause to have initiated a proceeding. Notwithstanding the above, the Commission in Court Session was in any event obliged to issue a summons to show cause under s139(2) of the Act.
25 In accordance with the specific provision s139(2) I find the AWU was properly issued with a summons to show cause. However, in finding the appropriate Rules governing such an application are under Part 28 of the IR Rules, I find these rules are silent as to procedures to be followed under s139(2) for the issue of a summons to show cause. I find IR Rule 15 was not an appropriate rule to be relied upon for the issue of this summons to show cause. Nonetheless, I find s139(2) has been complied with and there has been a proper issue of the summons to show cause under the Act notwithstanding the Rules are silent.
26 The orders applied for are most serious and of a very punitive nature if the maximum allowed under the Act is ordered. I find the application on its reading comprehensively outlines the grounds and reasons for the application. It provides specificity in its particulars. I reject the submission that this application should be found a nullity because it does not comply with the appropriate rules. There is however an irregularity in the application. On such a serious matter there should be a sworn affidavit verifying the application. Having found Part 28 applies, and given the serious nature of the proceedings, I find it proper the particulars be provided in the appropriate form namely an affidavit verifying the allegations.
27 However, this court is also required by s139 of the Act to deal with the application "expeditiously". The hearing is listed for 10 am Wednesday 7 June and 10 am Thursday 8 June 2000.
28 Section 170 of the Act relevantly empowers the Commission to order any amendment it considers necessary in the interests of justice:
IRA 170 Amendments and irregularities
170 (1) [Amendments] The Commission may, in any proceedings before it, make any amendments to the proceedings that the Commission considers to be necessary in the interests of justice.
(2) [When amendment may be made] Any such amendment may be made:
(a) at any stage of the proceedings, and
(b) on such terms as the Commission thinks fit (including, if it can award costs in the proceedings, terms as to costs).
(3) [Failure to comply] If this Act, the regulations or a rule of the Commission is not complied with in relation to the institution or conduct of proceedings before the Commission, the failure to comply is to be treated as an irregularity and does not nullify the proceedings, any step taken in the proceedings, or any decision in the proceedings.
(4) [Commission may set aside proceedings] For the purposes of subsection (3), the Commission may wholly or partly set aside the proceedings, a step taken in the proceedings, or a decision in the proceedings.
29 Having found an irregularity in the proceedings before the Commission in Court Session in accordance with s170 of the Act the Commission gives the following orders: