Brian Rochford v Textile Union 47NSWLR47

Supreme Court of Victoria|2001-10-08

CITATION: Gration -v- HIH Casualty & General Insurance Ltd (Provisional Liquidators Appointed) [2001] NSWADT 157 revised - 08/10/2001 DIVISION: Equal Opportunity Division APPLICANT PARTIES: Richard Gration RESPONDENT HIH Casualty & General Insurance Ltd (Provisional Liquidators Appointed) FILE NUMBER: 011026 HEARING DATES: 27/07/2001 SUBMISSIONS CLOSED: 08/01/2001 DATE OF DECISION: 09/28/2001

BEFORE: Ireland G - Judicial Member; Antonios Z - Member; Clayton S - Member APPLICATION: Jurisdiction MATTER FOR DECISION: Principal matter Industrial Relations Act 1988 (Cth) LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977 Brian Rochford v Textile Union 47NSWLR47 Sydney Formworks Pty Limited (In Liq) (1965) NSWR646 Oligive - Grant vs East (1982/3)7ACLR666 Silvarich & Ors v Rathner [2000] VSC 314 CASES CITED: Helm vs Hansley Holdings Pty Ltd (In liq)[1999]WASCA 71 Brandy vs Human Rights And Equal Opportunity Commission and Ors [1995] 183CLR245 Australian Postal Commission v Dao (No.2)[1986]NSWLR511 Shell Oil Co of Australia Limited v Federal Commission of Taxation [1931] AC275 Trevor Boiler Engineering Co Pty Ltd v Morley [1983] 1VR 716 APPLICANT REPRESENTATION: In person RESPONDENT J Scarcella, solicitor ORDERS: Order that the complaint is affected by the restrictions imposed by s 471B of the Corporations Act 2001 (the insolvency provision); and the complaint cannot proceed without leave of the Supreme Court.

Background 1 The application before the Tribunal relates to an issue of the jurisdiction of the Tribunal to determine a complaint in circumstances where the Respondent Company has been placed in provisional liquidation and the Complainant has not complied with the requirements of Section 471B of the Corporations Act 2000 (Cth). It is submitted by the Respondent that it is a pre-requisite arising out of that provision, that the Complainant, before proceeding with an enquiry into his complaint before the Tribunal, obtain the leave of the Supreme Court of New South Wales and comply with such terms (if any) as the Court may impose on the Complainant as a condition to proceeding with the enquiry. 2 The Complainant, the Applicant in these proceedings, seeks a Direction from the Tribunal that he is entitled to proceed to have his complaint enquired into by the Tribunal and that Section 471B of the Corporations Act 2001 (Cth) (the insolvency provision) does not apply to prevent the Applicant from proceeding to have the Tribunal enquire into his complaint. 3 The Applicant complained to the President of the Anti-Discrimination Board by letter dated 22nd February 2001. The complaint alleges that the Respondent unlawfully discriminated against him within Sections 49F, 49G, 49D, 49A, 49B, 49C and 49M of the Anti-Discrimination Act 1977 (NSW) ("The Act"). The complaint relates to the circumstances under which and the terms on which the Respondent offered to the Applicant a salary continuance insurance policy. It is not material for the purposes of this application to canvas the details of the allegations, except to note that the Applicant stated to the Tribunal that the circumstances and terms under which the cover of insurance was offered to him by the Respondent, is similar, if not identical, to the circumstances and terms on which such cover is offered in Australia by other general insurance companies. This aspect gives rise to a question of public interest in the holding of an enquiry by the Tribunal into the alleged breaches of the Act. 4 On 15th March 2001 provisional liquidators were appointed to the Respondent and that appointment continues. 5 The Applicant informed the Tribunal that at the date of the hearing of the application the salary continuance insurance policy issued to him by the Respondent had expired and the insurance cover under the policy had ceased. If the Tribunal were to embark on an enquiry into the complaint and find that the complaint was substantiated, an important question arises as to what effective orders would be made by the Tribunal and if no effective order could be made, whether the Tribunal was justified in proceeding further to examine the questions raised in this application. The Applicant submitted that an enquiry under the Act into his complaint would examine issues concerning breaches of rights which were of importance to him, notwithstanding that his particular insurance policy had expired, and the issues raised would require a determination by the Tribunal of breaches of the Act in circumstances which were common in the general insurance industry in Australia to policies containing salary continuance provisions. The Applicant has submitted that he was entitled to have the Tribunal examine those issues at the time at which he lodged his complaint and that he would seek orders from the Tribunal which although relating specifically to his complaint, would have a much broader impact in their application generally for policies of the same type as the policy about which the Applicant complains. 6 This issue gives rise to consideration of whether the Tribunal can make an effective order of the nature sought by the Applicant in circumstances where the particular policy has expired and has ceased to be effective. An order could not be made directing the policy to be amended to avoid any unlawful discrimination arising out of the terms of the policy. The Tribunal would be entitled to consider an order for damages against the Respondent, to compensate the Applicant for any general damages or specific damage which he can establish. In view of the provisional liquidation of the Respondent, such an order may have limited value. The significance to the Applicant in pressing for an enquiry into his complaint is not, according to the submissions of the Applicant, to obtain any material result from orders which the Tribunal may make if his claim is substantiated. The importance to the Applicant is to obtain from the Tribunal a determination of his complaint such that there is a pronouncement on the lawful nature of the practice of the Respondent and the manner it offered the salary continuance insurance policy to the Applicant. The benefit that the Applicant perceives would be obtained from such an order of the Tribunal was the public benefit that other general insurers which adopted similar practices would be obliged to change those practices in order to avoid unlawful discriminatory conduct under the provisions of the Act. It is the public interest aspect of the results of an enquiry which are paramount in the Applicant's resolve to proceed to have his complaint enquired into by the Tribunal. 7 If it were not for the public interest aspect of the Applicant's proposition, the Tribunal would be unwilling to entertain an enquiry into a complaint in circumstances where only trivial consequences would result from the enquiry. Although the Applicant did not produce to the Tribunal on this Application any evidence or material to support his statement that his enquiries showed that similar circumstances operated generally in the insurance industry in relation to these types of insurance policies, the Respondent did not dispute this statement. The Tribunal is prepared to take notice that such circumstances may exist in the general insurance industry and that it would be in the public interest, having regard to the material in the report of the President to the Tribunal in this matter, which was an exhibit in the Application, that the Tribunal if not otherwise prevent it from doing so, should proceed to enquire into the complaint.

The Issue of Jurisdiction of the Tribunal. 8 The Respondent has submitted that the Tribunal is unable after 15 March 2001, to proceed further with an enquiry into the complaint, by virtue of the operation of the insolvency provision. Section 471B (the insolvency provision) provides: "While a company is being wound up in insolvency or by the Court, or a provisional liquidator of a company is acting, a person cannot begin or proceed with: (a) a proceeding in a court against the company or in relation to property of the company; or (b) enforcement process in relation to such property, except with the leave of the Court and in accordance with such terms (if any) as the Court imposes." 9 This section was introduced in 1993 (Act 210 of 1992) (Cth). It replaced Section 471(2) which provided that "no action or other civil proceeding" could proceed except with leave of the Court. The insolvency provision (Section 471B) provides that a person cannot begin or proceed with "a proceeding in a court" without leave of the Court. 10 The Applicant submitted that the distinction between the two phrases used in these Sections, demonstrates that under the earlier provision the reference to "civil proceeding" encompassed proceedings in this Tribunal and that the insolvency provision by substituting a reference to "proceeding in a court" shows an intention to limit the operation of the Section to the stay of proceedings in a court as distinct from a non-judicial body such as the Tribunal. The Applicant proceeded to examine the distinction between a court exercising judicial power on the one hand and a Tribunal which does not exercise the functions of a court on the other hand. The submission sought to demonstrate that by reference to the decisions referred to later the Tribunal did not possess the characteristics which would constitute the Tribunal a court within the meaning of that term in the insolvency provision. 11 The Respondent argued that the decisions that are referable to the insolvency provision, show that the provision should be given a purposive interpretation. This is the approach adopted by Austin J in Brian Rochford v Textile Union 47NSWLR47. At Page 61 His Honour stated: "Significantly, such an approach implies that the determination of whether a particular Tribunal is or is not a "court" is governed by the purpose for which the question is asked. Care must therefore be taken before extrapolating one decision to a different statutory context." 12 The submission proceeds to demonstrate that the purpose of the insolvency provision is to ensure that: (a) "the assets of the company in liquidation (or a company in respect of which a provisional liquidator(s) is acting) will be administered in accordance with the provisions of the Companies Act and that no person will get an advantage to which under these provisions, he is not properly entitled, and to enable the Court effectively to supervise all claims brought against the company which is being wound up (or a provisional liquidator is acting)," re Sydney Formworks Pty Limited (In Liq) (1965) NSWR646 at 649-650. (b) "The company in liquidation is not harassed and its assets wasted by unnecessary litigation." Re Sydney Formworks Pty Limited, Supra (c) The company in liquidation is not "subjected to a multiplicity of action which would be both expensive and time consuming as well as in some cases unnecessary." Oligive - Grant vs East (1982/3)7ACLR666 at 67 .

13 It was further submitted that the intention of the provision is to stay all proceedings against the company that is being wound up or has a provisional liquidator appointed. 14 In examining the question whether reference in the insolvency provision to "a proceeding in a court" is intended to apply to a an enquiry by the Tribunal under the Act requires an examination of the definition of the word "court" in the Corporations Act 2001. 15 Section 58AA(1) of the Corporations Act 2001 (Cth) was introduced into that Act in substitution for the earlier provisions of Section 58AA by Act No. 50, 2001. The new definition is in the following terms: "(1) Subject to subsection (2), in this Act: court means any court. Court means any of the following courts: (a) The Federal Court; (b) The Supreme Court of a State of Territory; (c) The Family Court of Australia; (d) A court to which section 41 of the Family Law Act 1975 applies because of a Proclamation made under subsection 41(2) of that Act. (2) Except where there is a clear expression of a contrary intention (for example, by use of the expression "the Court"), proceedings in relation to a matter under this Act may, subject to Part 9.7, be brought in any court." 16 The earlier provisions of Section 58AA defined "court" to mean "any court when exercising the jurisdiction of this jurisdiction." The new definition overcomes some of the difficulties of interpretation of the phrase "the jurisdiction of this jurisdiction." This still leaves open the determination of whether "any court" in the new definition is sufficiently broad to include a body that although exercising judicial authority is not termed a court. In his decision in Rochford (supra), Austin J says that the earlier definition of court in Section 58AA (1) of the Corporations Act did not apply to the application of Section 440D(1) of that Act, which imposes a similar stay of proceedings in a voluntary liquidation of a corporation. At Page 58 of that decision, His Honour said: "Counsel for the defendant submits, nevertheless, that this is the literal meaning of the Corporations Law and it is not appropriate for this Court to depart from it. She acknowledges that Section 109H requires that the Court adopt a purposive interpretation, but she says that Section 109H does not authorise the Court to depart from the clear meaning of Section 440D and Section 58AA. I disagree with this submission. In my opinion, even a literal meaning of Section 440D and Section 58AA requires the Court to have regard to the intention underlying Section 440D. This is because (for the reasons explained above) Section 58AA, being a definition provision, does not apply if the contrary intention appears. When one reflects on the legislative intention underlying Section 440D, it is evident that the purpose of the Section would be frustrated if the definition of "court" in Section 58AA were applied, because the general moratorium on legal proceedings which is necessary to enable the administrator to discharge the statutory function imposed by Pt 5.3A would then largely evaporate. Having regard to the structure of Pt 5.3A and the evident purpose within that structure of 440D, it is proper for the court to conclude, and I do conclude, that Section 440D in its context exhibits a legislative intention to exclude the application of the definition of "court" in Section 58AA. I reach this conclusion on the wording of the Corporations Law, taking into account Section 435A and the structure of Pt 5.3A, and the place of Section 440D in that structure." 17 Earlier, His Honour had remarked: "If the definition were to apply, its affect would be that the moratorium on proceedings imposed by Section 440D would apply only where the proceedings were proceedings of a court exercising jurisdiction under the Corporations Legislation of a State or Capital Territory against the company. In other words, the moratorium would only apply to proceedings under corporations legislation." 18 Later, His Honour made the further remarks: "To construe Section 440D as applying only to proceedings under the Corporations Law would be to frustrate the purpose of the Law because that interpretation would expose the administrator to the potential distraction of almost all classes of legal proceedings which would be brought against the company, in circumstances where the Administrator would be personally at risk as to the cost of the litigation, to the extent that the company's assets were insufficient." 19 As a result of the change to the definition of "court" in Section 58AA, if the same issue that arose in the Rochford case, were to arise under the new definition, it is most likely that the Court would hold that the new definition would apply to Section 440D of the Corporations Act and similarly would apply to the insolvency provision. 20 In the view of the Tribunal, the importance of the approach adopted by Austin J in the Rochford case, is the method of interpreting a provision such as Section 440D of the Corporations Act by reference to its purposive intent and the understanding of that intention as stated by Austin J in that decision. 21 By way of contrast, the interpretation provision (Section 60) in the ASIC Law, and the ASIC Regulations, of New South Wales contains the following definitions: "Proceedings means: (a) A proceeding in a court, or (b) A proceeding or hearing before, or an examination by or before, a Tribunal, whether the proceeding, hearing or examination is of a civil administrative, criminal, disciplinary or other nature. Tribunal means: (a) A Tribunal in Australia, or (b) Any other body, authority or person in Australia having power, by law or by consent of parties, to hear, receive or examine evidence. 22 Similar provisions apply in the ASIC Act of the Commonwealth. 23 The Applicant sought to rely on the differences in the definitions in the ASIC legislation and in the Corporations legislation to demonstrate that the parliamentary intention under the Corporations legislation was to differentiate between a court in its traditional meaning and a Tribunal as defined in the ASIC legislation. The submission proceeded that as the Corporation's act definition did not contain a distinction between a court and a Tribunal, that it was intended that the Corporations Law, including the insolvency provision, should be interpreted by excluding proceedings before a Tribunal from the operation of the stay provided in the insolvency provision. 24 The Tribunal does not accede to this submission. The Tribunal prefers to follow the approach adopted by Austin J in the Rochford case, and to prefer an interpretation of Section 471B of the Corporations Act 2001, such that the intention of that Section is to give to the Court the authority to examine and determine the extent to which proceedings against the company in liquidation can be brought or maintained and should be as wide as possible. The meaning of "court" in the insolvency provision should be given the meaning now applied under section 58AA(1), namely "any court". This then requires a determination, having regard to the legislative intent, of whether it is appropriate to include within the insolvency provision, proceedings before the Tribunal when exercising the functions of the Equal Opportunity Division of the Administrative Decisions Tribunal as constituted under the Administrative Decisions Tribunal Act (1997) NSW.

Is the Equal Opportunity Division constituted under the Administrative Decisions Tribunal Act 1997 (NSW) (theTribunal) a "court" for the purposes of Section 471B of the Corporations Act 2001 (Cth)? 25 In considering this question, the Tribunal was referred to two decisions. The first decision was that of the Court of Appeal of the Supreme Court of Western Australia in Helm vs Hansley Holdings Pty Ltd (In liq) [1999]WASCA 71. The Court of Appeal was required to determine whether, for the purposes of Section 471B of the Corporations Law, the Western Australian Industrial Relations Commission established under the Industrial Relations Act 1979 (WA) was a "court". In 1999 at the time of that decision, Section 58AA(1) of the Corporations law had not been amended in the manner referred to earlier. Kennedy J, delivering the decision of the Court, said: "9. The insuperable obstacle which the appellant faces is that, by s12 of the Industrial Relations Act , it is expressly provided that the Commission is "a Court of Record". Furthermore, in determining whether an employee has been unfairly dismissed from his employment, and in considering whether, pursuant to s23A(1)(ba), it should order the employer to pay any, and what, amount of compensation to the claimant for loss or injury caused by the dismissal, the Commission is acting judicially. 12. In New South Wales, the Industrial Relations Act 1996 established the Industrial Relations Commission and vested it with certain jurisdiction and powers. It drew a distinction between the Commission and the Commission in Court Session. The latter, which is constituted by a judicial member or members, is established as a superior court of record. The former is not established as a court of record, either superior or inferior. Certain functions of the commission are to be exercised only by the Commission in Court Session. But they do not include claims for unfair dismissal, which come within the jurisdiction of the Commission. Insofar as the Commission's jurisdiction with respect to unfair dismissals is concerned, the provisions in New South Wales and in the Western Australian legislation are broadly similar, and it is unnecessary to detail them. It is sufficient to say that the following observations by Austin J in the Brian Rochford Ltd case at 167 are entirely apposite with reference to the Western Australian Act. Having indicated that some elements of the Commission's powers are not court-like, His Honour said: "On the other hand, some of the functions of the commission suggest that it is a court, quite apart from those functions which can be exercised only by the Commission in Court Session. The Commission's power to deal with unfair dismissal cases is defined by reference to criteria which would be familiar to any court, and the orders which the Commission may make are similar [to] the kinds of orders which can be made by the Supreme Court or other superior courts of record. To the extent that compensation may be awarded for unfair dismissal, there is a similarity between proceedings before the Commission and proceedings for common law damages. The Commission is empowered to make mandatory orders for reinstatement or re-employment, but the fact that the orders are mandatory in nature does not separate the Commission from the court, since courts are well accustomed to make mandatory orders by prerogative writ or mandatory injunction." 26 Approximately 14 months later, in Silvarich & Ors v Rathner [2000] VSC 314, the Master of the Supreme Court of Victoria came to a different conclusion in relation to the question whether the Australian Industrial Relations Commission, created by the Industrial Relations Act 1988 (Cth) was a court within the meaning of Section 440D (1) of the Corporations Law. The application before the Master related to an issue involving entitlement to enhanced redundancy payments under an Award made by the Commission. The Defendant contended that the Award did not come into force prior to his appointment as Administrator of the company, and that Section 440D(1) acted as a bar to the Award becoming effective. The Master noted that the central issue in the proceedings was whether the Commission is a court within the meaning of Section 440D(1). On this question, he held: "…. I am satisfied that the Commission is not a court within the meaning of s.58AA of the Corporations Law. To conclude otherwise would involve a conclusion that the Commission has vested in it the judicial power of the Commonwealth contrary to the Constitution. Counsel for the liquidator did not advance any argument in support of such a conclusion." 27 Later, he made the observation: "In another context the many issues raised would have merited a far more detailed consideration but I considered that the justice of the case and the interests of the parties dictated a speedy resolution of the proceedings. Accordingly I have dealt with the proceedings as quickly as possible and my reasons are necessarily more brief than might otherwise have been appropriate." 28 The Master found that the award operated in law until set aside. The Master did not make reference to the Helm decision. 29 It was submitted to the Tribunal that the decision in the case of Silvarich supports the contention of the Applicant that the Tribunal should not be held to be a court as it does not exercise judicial power, and that the decision in Silvarich should be preferred to the decision in the Helm case. 30 The Tribunal does not find either decision of particular assistance. The Master in the Silvarich case acknowledged that he had not given detailed consideration to some of the issues which the matter before him, raised. It would appear to the Tribunal that the decision should be confined to its own particular circumstances, and having regard to the remarks of the Master quoted, should not be taken as a decision relating to issues relating to the exercise of judicial power in the context of Commonwealth legislation, by a body which when the extent of its structure is examined in detail, may or may not have the attributes of a court. The Tribunal also considers that the decision in Helm is not directly of assistance to it as the Court of Appeal in Western Australia relied for its decision on the Industrial Commission under the Industrial Relations Act (WA), being expressly constituted a "court of record." 31 A useful description of courts of record is contained in Halsbury 4th Edition Volume 10, Para 709: "Certain courts are expressly declared by statute to be courts of record. In the case of courts not expressly declared to be courts of record, the answer to the question whether the court is a court of record seems to depend in general upon whether it has power to fine or imprison by statute or otherwise, for contempt of itself or other substantive offences; if it has such a power, it seems that it is a court of record." 32 The Tribunal is not expressly declared to be a court of record, and as will be seen later, it does not have the authority to itself impose sanctions for contempt or for the failure of persons summoned before it either to give evidence or to produce documents, to properly respond to the summons. 33 The Tribunal was also referred to the decision of the High Court of Australia in Brandy vs Human Rights And Equal Opportunity Commission and Ors [1995] 183CLR245. In that case the High Court found that certain provisions of the Racial Discrimination Act 1975 (CTH) were invalid on the ground of inconsistency with Chapter III of the Constitution, as those provisions had the effect of conferring the exercise of judicial power on the Human Rights and Equal Opportunity Commission, which is not a court established pursuant to s.71 and constituted in accordance with s. 72 of the Constitution. The Tribunal finds it of assistance to examine the descriptions of judicial power contained in the judgments of the High Court as illustrative of some of the tests, which need to be applied generally in determining whether a particular body can be classified as a Court. In examining the indicia of judicial power as expressed by the Justices of the High Court, in the context of the Tribunal's power, it needs to be kept in mind that the issue in relation to the Tribunal's power is not to be examined by reference to s. 71 and s.72 of the Constitution. 34 The Tribunal had regard to the following extracts from the judgments of the High Court in the Brandy decision, as illustrative of the indicia of judicial authority which is most apposite to the functions of the Tribunal: "Mason CJ, Brennan and Toohey JJ: 21. Although many decision-making functions may take their character as an exercise of judicial, executive or legislative power from their legislative setting, the character of the decision-maker and the nature of the decision-making process, some decision-making functions are exclusive and inalienable exercises of judicial power (34 Reg v Davison (1954) 90 CLR at 368-370 per Dixon CJ and McTiernan J). As Dixon CJ and McTiernan J observed in Reg v Davison (35 ibid.at 369: "The truth is that the ascertainment of existing rights by the judicial determination of issues of fact or law falls exclusively within judicial power so that the Parliament cannot confide the function to any person or body but a court constituted under ss.71 72 of the Constitution ". In that statement, the expression "judicial determination" means an authoritative determination by means of the judicial method, that is an enforceable decision reached by applying the relevant principles of law to the facts as found." 22. The validity of that proposition rests not only on history and precedent but also on the principle that the process of the trial results in a binding and authoritative judicial determination which ascertains the rights of the parties (37 Reg v Davison (1954) 90 CLR at 368-370 per Dixon CJ and McTiernan J). So, when A alleges that he or she has suffered loss or damage as a result of B's unlawful conduct and a court determines that B is to pay a sum of money to A by way of compensation, there is an exercise of judicial power. The determination involves an exercise of such power not simply because it is made by a court but because the determination is made by reference to the application of principles and standards "supposed already to exist" (38 Prentis v Atlantic Coast Line (1908) 211 US 210 at 226. Per Holmes J). And the determination is binding and authoritative in the sense that there is what has been described as an immediately enforceable liability of B to pay A the sum in question (39 Se Ro Co. (1944) 69 CLR at 199 per Latham C.J). Consequently, even if the determination in such a case were to be made by an administrative tribunal and not by a court, the determination would constitute an exercise of judicial power, although not one in conformity with Ch. III of the Constitution . 26. But s. 25ZAB of the Racial Discrimination Act goes beyond providing the machinery for the enforcement of a determination. It purports to give a registered determination effect "as if it were an order made by the Federal Court". A judicial order made by the Federal Court takes effect as an exercise of Commonwealth judicial power, but a determination by the Commission is neither made nor registered in the exercise of judicial power. An exercise of executive power by the Commission and the performance of an administrative function by the Registrar of the Federal Court simply cannot create an order which takes effect as an exercise of judicial power; conversely an order which takes effect as an exercise of judicial power cannot be made except after the making of a judicial determination. Thus s. 25AB purports to prescribe what the Constitution does not permit. 33. The Commonwealth contends that the review function entrusted to the Federal Court is an exercise of federal judicial power in the form of a grant of original jurisdiction (47 ibid. at 657 per Dixon CJ). It is in that context that the Commonwealth argues that the provisions of the Act which give binding effect to a determination of the Commission and make it enforceable merely endow the determination with those attributes as incidental to the exercise of judicial power by the Federal Court. That argument is without substance for the simple reason that the determination is registered and becomes enforceable in circumstances where the review procedure is not invoked. 44. It follows from what has been said in these reasons that the Act, in providing for registration of a determination of the Commission and its enforcement as if it were an order of the Federal Court, purports to provide an exercise of judicial power by the Commission and that the jurisdiction conferred on by the Federal Court to review a determination of the commission does not provide a sufficient answer to this conclusion." 35 Deane Dawson, Gaudron and McHugh: "11. However, there is one aspect of judicial power which may serve to characterise a function as judicial when it is otherwise equivocal. That is the enforceability of decisions given in the exercise of the judicial power. In Waterside Workers Federation of Australia v. Alexander Ltd (71 (1918) 25 CLR at 451) Barton J said: "It is important to observe that the judicial power includes with the decision and the pronouncement of judgment the power to carry that judgment into effect between the contending parties. Whether the power of enforcement is essential to be conferred or not, when it is conferred as part of the whole the judicial power is undeniably complete." And in Federal Commissioner of Taxation v Munro (72 (1926) 38 CLR at 176) Isaacs J pointed out that the concept of judicial power includes enforcement: the capacity to give a decision enforceable execution. It was this characteristic of judicial power which was emphasised by Latham CJ in Rola Co. (Australia) Pty Ltd v The Commonwealth (73 (1944) 69 CLR 185 at 198-199). He pointed to the fact that in Huddart, Parker and Co Proprietary Ltd v Moorehead, Griffith CJ referred not only to the giving of a binding and authoritative decision as being indicative of the exercise of judicial power, but also spoke of such a decision being given by a tribunal "called upon to take action". Thus, Latham CJ pointed out, where a tribunal is able to give a binding and authoritative decision and is able to take action so as to enforce that decision, "all the attributes of judicial power are plainly present" (74 ibid. at 199). 12. However, notwithstanding the reference by Griffith CJ to a tribunal, "called upon to take action", it is not essential to the exercise of judicial power that the tribunal should be called upon to execute its own decision……."

36 It is necessary then, to examine in some detail the provisions of the Administrative Decisions Tribunal Act 1997 (NSW) to ascertain what indicia of a court and of the exercise of judicial power attaches to the Tribunal, in the context of determining whether the Tribunal is a court for the purposes of s. 271B of the Constitution Act (Cth) 2001. The more relevant provisions of the former act are the following: Section 3 states the object of the Act as being three-fold, namely: (1) to make decisions at first instance on matters over which it is given jurisdiction by an enactment, (2) to review administrative decision by administrators where it is given jurisdiction by an enactment to do so, and (3) generally to exercise functions conferred by statute or by law. By Section 19 the functions of the Administrative Decisions Tribunal is divided into divisions as specified in Schedule 1. The Equal Opportunity Division is one of the functions assigned to the Tribunal. Section 20 prescribes that each division is to be composed of the members assigned to it and each division of the Tribunal is to exercise the functions allocated to it by Schedule 2. Part 2 of Schedule 2 provides that the functions of the Tribunal in relation to the Equal Opportunity Division of the Tribunal is the Anti-Discrimination Act 1977. By later amendment of Schedule 2, the definition of Tribunal in the Act is replaced by a definition stating that Tribunal means the Administrative Decisions Tribunal established by the Administrative Decisions Tribunal Act 1997. Section 3 Part 2 of Schedule 2 provides for the purposes of exercising its functions under the Act, the Tribunal is to be constituted by a division member who is a judicial member and at least two division members who are non judicial members. Section 36 provides that the Tribunal may make: (a) original decisions; and (b) reviewable decisions. An original decision is defined in Section 7 as a decision of the Tribunal made in relation to a matter over which it has jurisdiction under an enactment to act as the primary decision maker. This should be contrasted with the definition in Section 8 of a reviewable decision - a decision of an administrator that the Tribunal has jurisdiction under an enactment to review. 37 The Tribunal in exercising its functions under the Act is acting as a primary decision maker and its decisions are classified as original decisions by s. 36. This is to be contrasted with the exercise by some of the other Tribunals constituted under the Administrative Decisions Tribunal Act where the Tribunal is acting as an authority to review a decision made by an administrator. 38 An overview of the original decision-making process is set out in Section 41. The Section demonstrates that the normal path of the original decision-making process involves an application to the Tribunal for an original decision from which an Appeal can be made to the Appeal Panel under Part 1 Chapter 7 and a further appeal from the Appeal Panel can be brought to the Supreme Court in accordance with Part 2 of Chapter 7. The Appeal to an Appeal Panel may be made on any question of law and, with the leave of the Appeal Panel, may extend to a review of the merits of the decision. The Appeal from a decision of the Appeal Panel to the Supreme Court is limited to a question of law. 39 By Section 118 the Appeal Panel on its own motion may refer a question of law arising in the appeal to the Supreme Court for the opinion of that Court. Part 3 of Chapter 7 preserves the power of the Supreme Court in the exercise of its original jurisdiction to review the decisions of the Tribunal but in exercising that power, Section 123 provides that the Supreme Court may refuse to grant an application for review if it is satisfied that adequate provision is made for an alternative review of the decision. 40 Section 96 of the Act provides that the Tribunal shall hold an enquiry into each complaint or matter referred to it under Sections 91(2), 94(1) or Section 95 of the Act. The authority conferred on the Tribunal by Section 96 is reinforced by Section 45 of the Administrative Decisions Tribunal Act which confers on the Tribunal, in applying its original jurisdiction, the functions conferred or imposed on it by the enactment under which the application is brought. 41 Section 73 provides generally for the procedures to be adopted by the Tribunal and includes the power to determine its own procedure; it is not bound by rules of evidence, subject to the rules of natural justice; it is to act with as little formality as the case permits but according to equity, good conscience and merits of the case without regard to technicalities or legal form; and it is to ensure that the parties before it understand the nature and implications of the assertions being made in the proceedings; and it is to act expeditiously and is to ensure that all relevant material is disclosed to the Tribunal. 42 Section 78 prescribes the means of a Tribunal, divided in opinion, reaching a decision. In relation to the Tribunal those provisions would operate to empower a judicial member to be the sole authority of questions of law to be decided by the Tribunal. On questions of fact, where the Tribunal is divided in opinion, the opinion of the majority will prevail. No distinction is drawn between the weight of opinions of a judicial member and the non-judicial members. If the situation should arise, where the two non-judicial members of the Tribunal differ in their view of the factual determination, to the view taken by the judicial member, the decision of the non-judicial members will prevail. 43 By Section 83, the Tribunal is given power to call any witness of its own motion and by Section 84 the Registrar is empowered on the application of the party or at the direction of the Tribunal to summon witnesses either to attend to give evidence or to attend and produce documents to the Tribunal. 44 Section 131 enables the Tribunal to report to the Supreme Court acts of persons who disregard the requirements of the Tribunal in the circumstances listed in the Section. The Section empowers the Supreme Court to deal with the matter referred to it as a contempt of that Court. By Section 132 of the Act, acts or omissions which may otherwise be contemptuous may be dealt with as an offence against the Act and disposed of summarily before a Magistrate in a Local Court. 45 Section 82 provides for the recovery of any amount ordered to be paid by the Tribunal, including costs, by a process which requires the Registrar to issue a certificate which is filed in the registry of a Court having jurisdiction to give judgment for a debt of the same amount and the certificate will operate as a judgment. The Court in which the judgment is filed does not have jurisdiction to review the order but on the application of a party to the proceedings the Tribunal may review the decision of the Registrar to certify the amount of the order. 46 The powers of the Tribunal to make orders after holding an enquiry under the Act, are contained in Section 113 of the Act. Sub-section 1(b) of Section 113 provides that the Tribunal may make an order for the payment of compensation not exceeding $40,000.00; make an order enjoining the respondent from continuing or repeating any unlawful conduct; order the respondent to perform any reasonable act to redress any loss or damage suffered and provides for the publication of an apology in respect of vilification complaints, and contains other powers in relation to orders in respect of vilification complaints. 47 Section 114 provides a limited power for the Tribunal to award costs. 48 Section 116 creates an offence for a person who refuses or neglects to obey an order made under Section 113(1)(b), or an interim order of the Tribunal. 49 With the exception of the effect of Section 78 which permits a decision on questions of fact to be determined by a majority decision of the non-judicial members of the Tribunal, and the effect of sections 131 and 132 which transfer to Courts other than the Tribunal, the power to punish acts contemptuous of the Tribunal, the structure of the Tribunal is an original decision-making body with judicial authority to determine complaints under the Act which effect the rights and obligations of the parties who are the subject of the complaint and with powers of determination of those rights and obligations, although in a less formal procedure that is applied in the superior courts. These functions all point to the Tribunal exercising judicial authority. When regard is had to the further indicia of judicial power as annunciated by the High Court in its decision in Brandy, supra, the Tribunal has the authority, if a complaint is substantiated, to make awards of monetary compensation and to make orders of a mandatory nature and in both cases the orders of the Tribunal, subject to the rights of appeal, are enforceable either by fine for non-compliance or in the case of the monetary award by an administrative act and the filing of the award in a court with jurisdiction to enforce the award. The only appeal against the procedure for the filing of the monetary award in another court is against the procedural step taken by the Registrar in certifying the amount of the award. This could be contrasted with the situation of the registration of the monetary award under the Racial Discrimination Act 1975 (Cth) in the Brandy decision where the Federal Court had the power to examine the decision which gave rise to the monetary award. Notwithstanding this power in the Federal Court, the High Court found that the making of the award by the Human Rights and Equal Opportunity Commission was an exercise of judicial power. 50 The status of the Tribunal as a 'court' as it was then constituted under the Act, was considered by the Court of Appeal (NSW) in Australian Postal Commission v Dao (No.2)[1986]NSWLR511. The court was considering an application under The Suitors Fund Act 1951 (NSW). It held that the Tribunal was a court for the purposes of Section 6(1) of that Act. The judgments of the Court stress that the decision is confined to that issue. Kirby P in stating that the matter is not free from doubt, referred to the decision of the Privy Council in Shell Oil Co of Australia Limited v Federal Commission of Taxation [1931] AC275. He quoted the following passage of the speech of Lord Sankey as enumerating a number of "negative propositions" as useful in the determination of whether a body is a court: "1. A Tribunal is not necessarily a Court in this strict sense because it gives a final decision. 2. Nor because it hears witnesses on oath. 3. Nor because two or more contending parties appear before it between whom it has to decide. 4. Nor because it gives decisions which affect the rights of subjects. 5. Nor because there is an appeal to a Court. 6. Nor because it is a body to which a matter is referred to another body." 51 Kirby P then considered these features in relation to the Tribunal at 512: "In the case of the present Tribunal all of the six features mentioned by Lord Sankey are present. The Tribunal applies established law to existing facts, found by it. It makes binding and final determinations between the disputing parties to the complaint. There is an appeal to the Supreme Court on a question of law. The Tribunal has power to make declarations of right, orders in the nature of injunctive relief and to award monetary compensation. True it is, there is no collection machinery. Under s 115 any amount ordered by the Tribunal to be paid may be registered as a judgment debt in a court of competent jurisdiction. However this is but one consideration: cf Trevor Boiler Engineering Co Pty Ltd v Morley [1983] 1VR 716." 52 In Dao decision, McHugh JA made the following observations about the status of the Tribunal as a court and the need to examine the issue in context of the statutory provision in which that status is to be interpreted, at 515: "Statutory interpretation may not be a creative art; but it has at least ceased to be a mechanical task. The Court's function is to give effect to the purpose of the Act. That function can not be performed by isolating the word "court" and asking whether the constitution and procedures of the Tribunal come within the supposed essence of that term. English nouns do not have the fixed meaning of scientific symbols. Dictionaries and decisions on the word "court" in other contexts are guides not determinants. The meaning of a statutory word or phrase is best ascertained when considered in its context and with the author's purpose in using it in mind. In ordinary usage the word "court" has many meanings: they range from the group who form the retinue of a sovereign to an area used to play certain ball games. Legal usage also gives the word several meanings. Thus a "court" may refer to a body exercising judicial power as in the Constitution, Ch III, or to a body exercising non-judicial power such as the Coroner's Court or to a court of petty sessions hearing committal proceedings. It may even refer to a body exercising judicial and arbitral powers such as the former Commonwealth Court of Conciliation and Arbitration or the Queensland Industrial Court. There is no a priori reason which prevents a body which determines rights and is presided over by a District Court judge from being a "court" even though it is not called a court and has lay members. Function and purpose, not labels, should be our guides."

FINDING OF THE TRIBUNAL 53 It is the view of the Tribunal that the Tribunal, in exercising the original decision making functions allocated to it under the Administrative Decisions Tribunal Act 1997 to inquire into complaints referred to it under Sections 91(2), 94(1) or Section 95 of the Act and to make a finding that a complaint is substantiated and to make orders in accordance with Section 113 of the Act, the Tribunal is exercising judicial power, and although it is not a court of record, the nature of the judicial authority exercised by the Tribunal is consistent with the preponderance of the elements of judicial authority which attaches to a court. 54 When considered in the context of section 471B of the Corporations Act 2001 (Cth), it would defeat the purposive intent of that section to hold that the Tribunal when exercising its judicial functions under the Act in relation to inquiries into complaints which may be outstanding or may be brought against a company after it is placed in liquidation or provisional liquidation, could be continued or maintained outside the otherwise orderly conduct by the Supreme Court of the liquidation of the affairs of the company. As was stated by Austin J in the Rochford decision, supra, the interpretation of the word 'court' in the context of s. 471B requires a broad rather than a narrow approach. 55 In the context of s. 471B of the Corporations Act 2001 (Cth), the Tribunal determines that the Tribunal when exercising its functions under the Act, is a court. It follows that the proceedings before the Tribunal for the Tribunal to enquire into the complaint of the Applicant, referred to the Tribunal by the President of the Anti-Discrimination Board under Section 94(1) of the Act, cannot proceed except with the leave of the Supreme Court of New South Wales and in accordance with such terms as that Court might impose. 56 The Tribunal accordingly determines that it lacks jurisdiction to proceed further with the enquiry into the complaint of the Applicant.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

Industrial Relations Act 1988(Cth)

Corporations Act 2000(Cth)

Administrative Decisions Tribunal Act 1997(NSW)

Suitors Fund Act 1951(NSW)

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