Certiorari - Privative clause - Error of law on face of record - Decision of tribunal not liable to be challenged, appealed against, reviewed, quashed or called in question by any court on any account whatsoever - Whether review by certiorari for error of law on face of record excluded - Expressio unius est exclusio alterius - Industrial Arbitration Act 1940-1981 (N.S.W.), s. 84(1).

THE COURT delivered the following written judgment: -

These appeals each raise the same question, and were heard together. The make an order in the nature of certiorari quashing a decision of the Industrial Commission of New South Wales ("the Commission") given on an appeal pursuant to s. 76A (7) of the Factories, Shops and Industries Act 1962-1979 ("the Act"). (at p90)

2. Section 76A provides for the registration of small shops, the proprietors of which may then engage in extended trading hours. The registration is effected on the decision of the Under Secretary of the Department, and the section sets out the criteria which are to guide him in that decision. If he should refuse an application for such registration, the shopkeeper may appeal to the Commission. So far as material, s. 76A (7) provides as follows:

"(7) From every decision of the Under Secretary -

(a) refusing an application under subsection (3), or

(b) . . .

in respect of any shop, the shopkeeper of the shop may within twenty-one

days appeal to the Industrial Commission of New South Wales. The appeal shall be by way of rehearing and shall be made as prescribed by regulations made under the Industrial Arbitration Act, 1940, as amended by subsequent Acts.

The Industrial Commission of New South Wales shall thereupon determine the matter of the appeal and its determination shall be final and shall be given effect to by the Under Secretary."

In the present cases, the appellants made application under subs. (3), and the applications were refused. They thereupon appealed to the Commission. The appeals failed. They then sought relief from the Supreme Court on the basis, not of any allegation that the Commission had exceeded its jurisdiction, but rather that the orders of the Commission were infected by errors of law appearing on the face of the record. When the matters came before the Court of Appeal, their Honours (Moffitt P., Hope and Samuels JJ.A.) held that the Court had no jurisdiction to entertain the proceedings. It was in respect of that decision that this Court granted the special leave which grounds these appeals. (at p91)

3. The conclusion of the Court of Appeal did not flow from the provisions of s. 76A of the Act. The Court held that s. 76A (7) did not affect the Supreme Court's jurisdiction to grant relief by way of prerogative writ, and that conclusion was common ground between the parties in this Court. The argument before us turned on the effect of s. 84 of the Industrial Arbitration Act 1940-1981 (N.S.W.). (at p91)

4. Their Honours found that the provisions of that section applied so as to deny jurisdiction to the Court. Section 84 reads:

"84. (1)(a) Except as provided in section 14 any decision of the commission in court session or of any member of the commission sitting alone, whether pursuant to a delegation or otherwise, shall be final; and no award and no order, proceeding or contract determination of the commission in court session or of any such member shall be vitiated by reason only of any informality or want of form or be liable to be challenged, appealed against reviewed, quashed or called in question by any court of judicature on any account whatsoever.

(b) No writ of prohibition or certiorari shall lie in respect of any award, order, proceeding, direction or contract determination of -

(i) the commission in court session, or

(ii) any member of the commission sitting alone, whether pursuant to a

relating to any industrial matter or matter in respect of which a tribunal has jurisdiction or any other matter which, on the face of the proceedings, appears to be or to relate to an industrial matter or matter in respect of which a tribunal has jurisdiction." Because the appellants' complaints are confined to errors of law said to appear on the face of the record, and involve no suggestion of want or excess of jurisdiction, disregard of the requirements of natural justice or other impropriety, we are concerned only with the operation of s. 84 upon certiorari to quash for such errors. What follows is to be understood as so confined. (at p92)

5. In this Court, the appellants rely on two submissions. In the first place, they say that on its proper construction, s. 84 (1) (a) does not oust the jurisdiction of the Supreme Court to grant the relief claimed. The Court of Appeal found their jurisdiction ousted by that paragraph, and therefore did not find it necessary to consider whether the decision of the Commission was a decision "relating to any industrial matter, etc." within the meaning of those words in par. (b). If these appeals were to succeed on this first ground, it would be necessary to remit the matter to the Court of Appeal when the application of par. (b) will require consideration. In the second place, the appellants say that in any event the whole of s. 84 is excluded from application to the present cases because s. 76A (7) of the Act constitutes an exclusive code on the subject of review of decisions of the Commission under that section. There is no appeal as such, but the prerogative writs are available to deal with, inter alia, errors of law on the face of the record. (at p92)

6. With respect to the first submission, Mr. Bennett, counsel for the appellants, relies on the application of the maxim expressio unius est exclusio alterius. He points to par. (b) of s. 84 (1). That provision refers expressly to the prerogative writs of prohibition and certiorari, excluding their application to decisions of the Commission which relate in substance to any industrial matter or matter in respect of which a tribunal has jurisdiction. The reference to a "tribunal" is a reference to the contract regulation tribunals which may be appointed in accordance with amending Act No. 107 of 1979. That amending Act is not material to the present problem, and therefore we put aside any consideration touching tribunals. It follows, in Mr. Bennett's submission, that the legislature could not have intended to exclude unrestricted supervision by way of certiorari and prohibition in respect of all other decisions of the Commission. On the assumption, therefore, that the decision touching the registration of a small shop does not relate to an industrial matter, the Supreme Court has jurisdiction to entertain the appellants' applications for orders in the nature of certiorari. (at p92)

7. We turn now to examine pars. (a) and (b) of s. 84 (1). The reference in par. (a) to s. 14 may be put aside; that section provides for an appeal in some circumstances from a member of the Commission sitting alone to the Commission in court session (s. 14 (8)). It is the final phrase in par. (a) upon which the respondents rely in upholding the judgment of the Court of Appeal. It is provided that a decision of the commission is not "liable to be challenged, appealed against, reviewed, quashed or called in question by any court of judicature on any account whatsoever". The first question is whether these words are capable of the effect which the Court of Appeal attributed to them, namely, of ousting the jurisdiction of the Supreme Court to review the decision of the commission for errors of law made within jurisdiction. (at p93)

8. In South East Asia Fire Bricks Sdn. Bhd. v. Non-Metallic Mineral Products Manufacturing Employees Union (1981) AC 363 , the Judicial Committee of the Privy Council had occasion to consider whether similar words appearing in the Industrial Relations Act 1967 of Malaysia ousted the jurisdiction of the Malaysian High Court to issue writs of certiorari to the Industrial Court. In the course of delivering the judgment of their Lordships, Lord Fraser of Tullybelton, after reviewing the earlier words of the section, said (1981) AC, at p 370 :

". . . the final words 'quashed or called in question in any court of law' seem to their Lorships to be clearly directed to certiorari. 'Quashed' is the word ordinarily used to describe the result of an order of certiorari, and it is not commonly used in connection with other forms of procedure (except in the quite different sense of quashing a sentence after conviction on a criminal charge). If 'quashed' were for some reason not enough, the expression 'called in question in any court of law' is in their Lordships' opinion amply wide enough to include certiorari procedure. Accordingly they are of opinion that paragraph (a) does oust certiorari at least to some extent."

In the result their Lordships concluded that the words in question ousted the jurisdiction of the High Court to grant certiorari in respect of errors of law not going to the jurisdiction of the Industrial Court. (at p93)

9. In our opinion the observations we have cited from their Lordships' judgment are wholly applicable to the similar words appearing in par.(a). Unless the presence in the section of par.(b) imposes some restraint on the meaning which would otherwise be attributed to par.(a), the words of that paragraph necessarily have the effect of limiting the range of judicial review of any order or decision of the Commission. but Mr. Bennett argues that par. (b) evinces a legislative intention to deal explicitly and exhaustively with the writs of prohibition and certiorari and to limit the ouster of those remedies to decisions relating to industrial matters. It follows, then, so the argument runs, that par.(a) should be construed so as not to inhibit recourse to the writs in relation to any decisions of the Commission in matters that are not industrial. If that consequence does not follow, then it is difficult to see how par.(b) has any independent operation or effect at all. (at p94)

10. It seems to us that the submission cannot be accepted. In the first place, par.(b) does not purport to limit the operation of par.(a) in any way at all. In terms, each paragraph is a separate provision in no way dependent upon the other. Furthermore, although there may be considerable overlap in the operation of the two provisions, there is no contradiction between them. Both provisions can operate according to their terms without any difficulty. To deny to par.(a) the operation which is so well established by authority would not only deny it any significant effect but would require the Court to close its eyes to a plain legislative intent. In these circumstances there is no room for the application of the maxim expressio unius. That maxim must always be applied with care, for it is not of universal application and applies only when the intention it expresses is discoverable upon the face of the instrument: Saunders v. Evans [1861] EngR 335; (1861) 8 HLC 721, at p 729 [1861] EngR 335; (11 ER 611, at p 615) . It is "a valuable servant, but a dangerous master": Colquhoun v. Brooks (1888) 21 QBD 52, at p 65 . (at p94)

11. In the second place, leaving historical considerations aside, there may well be a sensible explanation of the presence, as a separate provision, of par.(b). That paragraph does not confine it subject matter to a matter which is within the jurisdiction of the Commission. It is not limited to decisions upon industrial matters. It deals, so far as is relevant to the present case, with any award, order, proceeding, or direction of the Commission "relating to any industrial matter . . . or any other matter which, on the face of the proceedings, appears to be or to relate to an industrial matter . . . ". Furthermore, it is not content to rest its injunction on the formula of the traditional privative clause. It says bluntly "No writ of prohibition or certiorari shall lie . . . ". It seems to us, on a consideration of the two paragraphs of s.84 (1), that the legislative scheme is to distinguish between industrial matters and other matters within the jurisdiction of the Commission, and to take unusual steps to protect the Commission from judicial review of awards, orders or proceedings in relation to industrial matters while allowing the usual doctrine with respect to privative clauses to apply to the latter. Thus even excess of jurisdiction in relation to industrial matters may not suffice to attract the prerogative writs. It will not do so if it is a matter which, on the face of the proceedings, nevertheless appears to be or to relate to an industrial matter. It may be that the elucidation of established doctrine which is contained, for example, in R. v. Hickman; Ex parte Fox [1945] HCA 53; (1945) 70 CLR 598, at p 615 , has brought the two paragraphs closer together in their operation and effect, but that does not deny the reality of the legislative scheme as we have discerned it. That scheme found expression in its present form as long ago as 1912, shortly after the decision of this Court in Baxter v. New South Wales Clickers' Association [1909] HCA 90; (1909) 10 CLR 114 . (at p95)

12. Mr. Bennett appeals to the history of the legislation to explain the significance of the distinction between the two paragraphs. He traced that history from s. 32 of the Industrial Arbitration Act 1901 through s. 52 of the Industrial Disputes Act 1908 to s. 58 of the Industrial Arbitration Act 1912. The last-mentioned provision appears in substantially the same form as s. 84 in the present Act. It reflects the determination of the legislature to prevent the important work of the Arbitration Court, later the Commission, in the field of industrial matters from being impeded by constant resort to the Supreme Court for the issue of prerogative writs, and to do so by allowing some excess of jurisdiction to pass without exposure to judicial review: see Bank of New South Wales v. United Bank Officers' Association and Court of Industrial Arbitration (1921) 21 SR (NSW) 593, at p 614 . This history explains how and why the legislature came to deal expressly with awards orders and proceedings in relation to industrial matters, first in s. 58 (2) in the 1912 Act, and then in s. 84 (1) (b) in the present Act. But it falls short of carrying Mr. Bennett's argument to its intended destination, because it does nothing to deny to par. (a) the effect of excluding recourse to the prerogative writs to correct errors of law on the face of the record in matters otherwise falling within the Commission's jurisdiction. (at p95)

13. For these reasons, we are unable to accept the first submission of the appellants. (at p95)

14. It is then argued for the appellants that in any event s. 84 has no application to the present cases because of s. 76A (7) of the Factories, Shops and Industries Act. We have already set out that provision. It provides for an appeal by a shopkeeper to the Industrial Commission of New South Wales. The established principles that apply in such a case were stated by a full bench of this Court in Electric Light and Power Supply Corporation Ltd. v. Electricity Commission (N.S.W.) [1956] HCA 22; (1956) 94 CLR 554, at p 560 as follows:

"When the legislature finds that a specific question of a judicial nature arises but that there is at hand an established court to the determination of which the question may be appropriately submitted, it may be supposed that if the legislature does not mean to take the court as it finds it with all its incidents including the liability to appeal, it will say so. In the absence of express words to the contrary or of reasonably plain intendment the inference may safely be made that it takes it as it finds it with all its incidents and the inference will accord with reality."

The legislature, having chosen the Commission as the body to hear and determine the appeal, must be taken to have intended its orders made in exercise of this jurisdiction to be subject to s. 84 of the Industrial Arbitration Act unless s. 76 manifests a contrary intention. It does not. Mr. Bennett relies on the words "its determination shall be final" appearing in s. 76A (7) as reflecting a "reasonably plain intendment" in favour of the exclusion of s. 84. On the other hand, Mr. Handley, counsel for the Under Secretary, argues that the use of the word "final" in s. 76A (7) is practically devoid of legal effect and quite insufficient to establish an intention contrary to the operation of the general rule. There is very little that can be said by way of development of the argument on either side. The word "final" finds its place in a narration of the steps pertaining to the appeal. The appeal shall be heard and determined, there shall be no appeal from the determination, and the Under Secretary shall give effect to it. In the circumstances we can discern no legislative intent to deny to the decision of the Commission on the appeal the protection from judicial review afforded by s. 84. Such protection is entirely congruent with the provisions of the sub-section. The minor overlap with s. 84 provided by the reference to finality is altogether too weak to establish an intention contrary to the operation of the general rule. We therefore hold against the appellants on this ground also. (at p96)

15. It follows that we agree entirely with the decision of the Court of Appeal. (at p96)