Consideration of the issues
19 I turn to consider the first issue raised in this application. It concerns whether Commissioner Ozdowski erred in taking the approach that he was precluded from considering the question of whether there was relevant inequality between the applicant and other persons seeking a favourable exercise of discretion conferred by s 76V(2). Having regard to the submissions made by the applicant, Commissioner Ozdowski was considering whether the theoretical possibility adverted to by Wilcox J in [42] of his reasons existed in the case of the applicant. It is to be recalled that in the paragraph of Commissioner Ozdowski's reasons preceding the observation that he was precluded from considering the question, the Commissioner appears to be suggesting that such a comparison could be made for the purpose of determining whether there had been discrimination of the proscribed type. Thus, the Commissioner can be taken to have been indicating he was precluded, as a matter of law, from considering the applicant's position in a way involving comparison with other people of essentially the same age seeking exercise of the discretion.
20 While Commissioner Ozdowski does not explain why he believed he was constrained in this way, it is presumably because either Wilcox J had stated the relevant operation of the law as part of the ratio of his judgment or because the order made by his Honour required the Commission to give effect to the conclusion reflected in [43] of his Honour's reasons (though this may possibly be two different ways of describing essentially the same thing).
21 Wilcox J had been called on to resolve an issue raised by the Commonwealth in its application for judicial review, namely, whether Commissioner Sidoti had erred in law in concluding that the Commonwealth had discriminated against the applicant. The Commonwealth's submission to Wilcox J had been that Commissioner Sidoti had failed to appreciate that there was an essential preliminary step of identifying a distinction, exclusion or preference when determining whether there had been discrimination. However the Commonwealth had also argued that Commissioner Sidoti had failed to recognise that any relevant distinction, exclusion or preference must have a particular effect to be discrimination. Specifically, that it must have the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation. As part of this general submission, counsel for the Commonwealth submitted a comparison could be made, not with Commonwealth employees who had not yet attained the age of 65, but rather with employees who had attained that age and sought the exercise, in their favour, of the discretion provided by s 76V(2). However the submission went further and was to the effect that it was logically impossible for there to be a distinction, exclusion or preference made between such people on the ground of age because they were of the same age.
22 Counsel for the applicant answered these submissions by submitting to Wilcox J that it was not necessary to make a comparison between the position of the applicant and anybody else. However, in addressing a matter raised by Wilcox J, counsel for the applicant submitted that if consideration of matters such as "equality of opportunity" and "equality of treatment", required comparisons, then the proper comparison was between the treatment afforded to the applicant and the position of other people who might be candidates for his position.
23 It is clear from Wilcox J's reasons, and in particular [41], that his Honour took the view that any consideration of whether there had been discrimination, in a case such as that raised by the applicant, required consideration of equality of opportunity or treatment and that, in turn, required a process of comparison. It is also clear that his Honour rejected the proposition that such a comparison could be with candidates for the applicant's position who were less than 65 years of age. That is, his Honour was rejecting the comparators identified by counsel for the applicant. His Honour also rejected, in [43], the comparators apparently relied on by Commissioner Sidoti, namely younger officers for whom career opportunities should be provided. The critical question is whether Wilcox J was also rejecting as possible comparators, in the last two sentences of [43], other officers approaching the age of 65 years and seeking extensions, and his Honour was doing so because they could not be comparators as a matter of law.
24 I accept, as counsel for the applicant submitted in these proceedings, that on one view, all Wilcox J was saying in the last two sentences of [43] was that the applicant had not been in competition with other officers of the same age seeking extensions as a matter of fact and the primary decision maker (Mr Ayers) had not denied the applicant equality with those officers as a matter of fact. However, in my opinion, Wilcox J was going further. His Honour was rejecting the suggestion, particularly in the last sentence, that a comparison of any legal relevance could be made with that group of officers and that, by reference to that group, no question of denying equality could arise. His Honour was, in effect, accepting the submission the Commonwealth had made, namely that comparison was required, the relevant comparators might be officers of the same age seeking extensions but that it was a legally irrelevant comparison because the applicant and the comparators were of the same age.
25 In my opinion the conclusions reached in the last two sentences of [43] were steps in the reasoning process which led Wilcox J to conclude, by reference to the submissions that had been made, the decision of Commissioner Sidoti was infected by legal error. However were they part of the ratio of his Honour's judgment as the Commonwealth now contends in these proceedings? A convenient recent summary of the applicable law concerning what constitutes the ratio of a judgment is found in Wu v Minister for Immigration and Multicultural Affairs (2000) 182 ALR 548 at [24] to [27]. The Full Court said:
"The principles governing how a Court determines what is the ratio of an earlier judgment are difficult to articulate with precision and can be difficult to apply. A recent example of differing approaches to this issue is found in Bristol-Myers Squibb Company v F H Faulding & Co Ltd (2000) 97 FCR 524. In that matter a Full Court considered whether observations of two members an earlier Full Court in Anaesthetic Supplies Pty Ltd v Rescare Ltd (1994) 50 FCR 1 about whether a method of medical treatment of the human body is patentable under the Patents Act 1990 (Cth) formed part of the ratio or were obiter dicta. Black CJ and Lehane J were prepared to assume (at 529) the observations were obiter. Their Honours then considered the issue themselves and came to the same conclusion. Another specific question arose in Bristol-Myers Squibb Company v F H Faulding & Co Ltd about the operation of s 117 of the Patents Act 1990 (Cth). That specific question had been the subject of observations by the same members of the Full Court in Anaesthetic Supplies Pty Ltd v Rescare Ltd. Black CJ and Lehane J viewed the earlier observations on this question as obiter. That was because the observations were unnecessary to the decision and made without elaboration and in passing.
The other member of the Full Court in Bristol-Myers Squibb Company v F H Faulding & Co Ltd was Finkelstein J. His Honour addressed directly the question of whether the Full Court in Anaesthetic Supplies Pty Ltd v Rescare Ltd had determined the question of whether a method of medical treatment of the human body was patentable. After surveying at length authorities (569-573) concerning what constitutes the ratio of a judgment, Finkelstein J concluded (at 573) that the answer given by the majority in the earlier case formed part of the ratio. His Honour adopted a fairly broad view of what, as a matter of general principle, should be viewed as constituting the ratio.
Another recent example where the Court (a single judge) had to consider whether observations of an early at Full Court formed part of the ratio is found inWoolworths Ltd v Commissioner of Taxation [1999] FCA 102. Hely J had to determine whether observations of Lehane J (with whom the other members of the Full Court agreed) in CCA Beverages (Sydney) Pty Ltd v Federal Commissioner of Taxation (1997) 143 ALR 212 about a credit ground of Table 3 of Schedule 1 to the Sales Tax Assessment Act 1992 (Cth) were obiter. While Lehane J had considered a ground (CR 5) different to the one (CR 4) confronting Hely J, there was no material difference in the language of the two grounds. On the question of whether the observations of Lehane J were obiter or not, Hely J said:
'The respondent submits that the observations which I have quoted are obiter, uncritical in character, unsupported by any reasoning process and that they cannot be correct.
Professor Cross described the ratio decidendi as:
"Any rule of law expressly or implicitly treated by the judge as a necessary step in reaching his conclusion having regard to the line of reasoning adopted by him …."
R Cross and J W Harris: Precedent in English Law (4th Edn) p 72.
Sir Anthony Mason, when writing extra-judicially, said:
"The ratio is the principle or statement of law on which the previous decision is based to the extent to which it is essential to the decision.";
The Use and Abuse of Precedent (1988) Australian Bar Review 93 at p 103.
The trial judge expressly stated (at 133 ALR 776) that he was not required to determine whether CCA was entitled to a credit for the purpose of deciding its entitlement to the relief sought. Nor did the full Court treat it as "necessary" to determine whether there was a credit entitlement in order to determine the appeal. The observations earlier quoted were amongst a number of reasons why CCA's arguments based on s 95 of STAA failed. The Commissioner did not seek to disturb the trial judge's conclusion that there was an entitlement to a credit under CR4, and, in any event, the sale of the containers to CCA was subject to an exemption by virtue of Item 27 of Schedule I to the E & C Act.
That being so, I do not believe that I am bound to reach a result in the present case which accords with the declaration as to the entitlement to a credit made in CCA. Nor is there any reasoning process to be found in the judgments which, if applied to CR5, would require a conclusion that goods which have ceased to be assessable goods are nonetheless covered by Table 1, when the effect of Note (1) is that Table 1 does not apply to a dealing with them.'
The question of whether an earlier authority was a binding precedent has also recently been considered by another Full Court though in relation to the effect in this Court of a decision of the High Court: see Foster v Northern Territory of Australia [1999] FCA 1235."
26 In my opinion, the conclusions expressed by Wilcox J in the last two sentences of [43] were an integral part of his Honour's reasoning when determining how the relevant provisions of the HREOC Act operated in the circumstances considered by Commissioner Sidoti as part of determining whether the Commission had erred in law. It is true that the issue identified by the Commonwealth in ground (a) raised directly the approach of the Commissioner to the expression "on the basis of". However that ground, together with the submissions that were made, in particular by the Commonwealth, required Wilcox J to consider the operation of the entire definition of "discrimination" in the factual context raised by the applicant. Moreover the Commonwealth's contention that Commissioner Sidoti had considered irrelevant considerations required Wilcox J to address what were and were not relevant considerations of s 3.
27 A submission was made by counsel for the applicant in these proceedings that what is comprehended by "age" in the HREOC Act is not the same as that which is comprehended by "age" in s 76V of the PS Act. On this basis, it was submitted, the conclusion embodied in the last two sentences of [43] was not correct. As I understood the submission, I was effectively being invited to adopt a different construction of s 3 to that adopted by Wilcox J. However this is plainly a case where I should apply with full rigour the principle that one judge should follow the judgment of another judge on issues of construction, unless the judge is satisfied the other judge is plainly or clearly wrong. It is an approach that should be followed, particularly where issues of construction are concerned, for reasons of principle which were discussed at length by the Full Court Telstra Corp Ltd v Treloar (2000) 102 FCR 595. The need to adopt this approach is all the more acute in a case such as the present where the earlier judgment concerns the same parties and the same legislative provisions applying to the same substratum of facts. I am not satisfied that Wilcox J was plainly wrong in concluding that the definition of "discrimination" did not permit a comparison between the applicant and others approaching 65 years of age seeking the exercise of the discretionary power under s 76V(2).
28 It is also true that what I believe were the conclusions reached by his Honour left little, if any, scope for the application of those provisions in the applicant's favour. Thus it might be thought that I have overstated the conclusions reached by Wilcox J because he remitted the matter the Commission. On what I view were his Honour's conclusions, there were limited prospects of the applicant succeeding if the matter was remitted to the Commission. However no submission was apparently made (at least in the sense that none is recorded in his Honour's reasons as having been made or was made by the Commonwealth in their written submissions to his Honour) that the matter should not be remitted to the Commission because to do so would be futile.
29 The applicable principles concerning whether it is futile to remit a matter in the context of judicial review of administrative action are conveniently summarised by Finn J in S115/00A v The Minister for Immigration and Multicultural Affairs [2001] FCA 540:
"[It is open to a Court] to decline to grant relief and to affirm a Tribunal decision notwithstanding an error infecting it, where it would be futile to remit the matter to the Tribunal for reconsideration: Rahim v Minister for Immigration and Ethnic Affairs (1997) 78 FCR 223 at 238. Illustrative of circumstances where the "futility principle" may properly be applied are (i) where notwithstanding the Tribunal's error, the decision arrived at was clearly correct on the material before it: see Morales v Minister for Immigration and Ethnic Affairs (1995) 60 FCR 550 at 560-562; or where the same result would be inevitable on the remitter: Nguyen v Minister for Immigration and Multicultural Affairs (1998) 88 FCR 206 at 213-214; see also Carlos v Minister for Immigration and Multicultural Affairs [2001] FCA 301. But where it is possible for reasons of change of mind, reappraisal of the evidence, or otherwise that a different result could ensue, the Court should be slow to exercise its discretion to shut an applicant out of relief on the basis of futility: Santa Sabina College v Minister for Education (1985) 58 ALR 527 at 540."
30 In the present matter, Wilcox J acknowledged the theoretical possibility of a decision under s 76V(2) involving proscribed discrimination on the grounds of age and it is likely his Honour did so, at least in part, in deference to the views of Branson J in Burgess with which he generally agreed on other matters. However it is relatively clear that his Honour could not give content to the theory in the sense that he indicated he could not conceive of examples. It is probable that in the absence of argument that the matter should not be remitted, his Honour proceeded on the footing that the applicant should be given the opportunity of establishing that his circumstances were, in fact, an example of the theoretical possibility. The result would have been likely to have been the same had a submission been made that there should be no remitter for reasons of futility. That is because Wilcox J would probably have concluded that he could not be satisfied it was inevitable that the applicant would fail before the Commission. However I am satisfied that his Honour did not intend that the applicant could bring himself within the unidentified "theoretical possibility" by simply calling in aid as comparators, 65 year old applicants for exemption or younger Commonwealth employees which were the bases on which the case was most recently advanced by the applicant before the Commission.
31 In my opinion, Commissioner Ozdowski did not err in dealing with the applicant's complaint on the basis that he was precluded by what was said by Wilcox J in [43] from considering the question of whether there was relevant inequality as between the applicant and other persons seeking a favourable exercise of the discretion conferred by s 76V(2). The Commissioner was bound to do so, as the conclusions Wilcox J had reached about the proper construction of the relevant provisions of the HREOC Act and the application of those provisions to the circumstances of the applicant formed part of the ratio of his Honour's judgment.
32 Having regard to this conclusion it is probably unnecessary to consider in detail the alternative basis on which the same result might be arrived at, namely that the actual order made by Wilcox J required the Commission (which was bound by the order) to approach the matter on the basis discussed in the preceding paragraph. However an order requiring an administrative decision maker to deal with a matter "according to law" obliges the decision maker to apply established principles of law: see O'Donovan v Vereker (1987) 18 FCR 101 at 123. The decision maker is bound to apply the construction of legislation determined by the Court: see Harradine v Secretary, Department of Social Security (1990) 25 FCR 35 at 36 and also Kapagama v Minister for Immigration and Multicultural Affairs [1999] FCA 1881 and Yulianti v Minister for Immigration and Multicultural Affairs [2001] FCA 142. Accordingly the Commission was bound by the order to determine the matter on the construction of the HREOC Act adopted by Wilcox J as applied to the circumstances in question.
33 It was accepted by counsel for the applicant in these proceedings, I think correctly, that the challenge to the decision concerning the production of documents was a subsidiary one and the application would be effectively resolved by determining whether Commissioner Ozdowski erred in relation to the decision, in substance, to dismiss the complaint. Accordingly it is unnecessary to deal with this subsidiary matter.
34 In the result, the application should be dismissed with costs.