R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett

THE COURT: 1 On 28 March 2001, the Court ordered that the application for orders nisi for writs of prohibition, mandamus and certiorari be dismissed and we reserved for further consideration any application for costs which might be made. 2 The only respondent to appear in the proceeding was CSL Limited ("CSL") and it has submitted that the applicants should pay its costs of the proceeding on the basis that s 347 of the Workplace Relations Act 1996 (Cth) ("the Act") does not apply to the proceeding. CSL submitted in the alternative that the first applicant, Professional Officers' Association (Victoria) ("the Association") should be ordered to pay its costs as it instituted the proceeding vexatiously or without reasonable cause. The Association has resisted CSL's application and submitted that s 347(1) of the Act applies to the proceeding and that there was no basis for contending that the proceeding was instituted vexatiously or without reasonable cause. 3 Section 347(1) of the Act provides: "A party to a proceeding (including an appeal) in a matter arising under this Act (other than an application under section 170CP) shall not be ordered to pay costs incurred by any other party in the proceeding unless the first‑mentioned party instituted the proceeding vexatiously or without reasonable cause." 4 CSL submitted that the proceeding was not a proceeding in a matter arising under the Act and that the usual order that costs should follow the event should be made. In Re McJannet; Ex parte Australian Workers' Union of Employees (Qld) (No 2) (1997) 189 CLR 654 the High Court said at 656: "The test for determining whether a proceeding is in a matter arising under the Act for the purposes of s 347(1) is whether the right or the duty that is sought to be enforced owes its existence to a provision of the Act." (see also Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission (2001) 178 ALR 61.) 5 CSL referred to the applicants' claim that they were denied natural justice when the Australian Industrial Relations Commission ("the Commission") refused to grant them leave to intervene in the application for certification of the CSL Enterprise Agreement 1999, and submitted that the applicants' case was, therefore, based upon a want of jurisdiction, giving rise to prerogative relief pursuant to s 75(v) of the Commonwealth Constitution. It was said that the right to natural justice, or the duty to accord natural justice, owed its existence to s 75(v) of the Commonwealth Constitution and depended upon that section for its enforcement. 6 However, the applicants' substantive complaint was that by reason of the denial of natural justice they were refused leave to intervene in the application. The relief they were seeking was not only prohibition and certiorari but a writ of mandamus compelling the Commission to grant them leave to intervene in the proceeding. In particular, the applicants relied upon the provisions of s 43 of the Act which provided: "(1) Where the Commission is of the opinion that an organisation, a person (including the Minister) or a body should be heard in a matter before the Commission, the Commission may grant leave to the organisation, person or body to intervene in the matter. (2) If the matter before the Commission is an application under Division 2 or 3 of Part VIB for certification of an agreement, the Commission: (a) must, on application, grant leave to intervene in the matter to any organisation of employees that was requested to represent a person as mentioned in subsection 170LK(4) in relation to the agreement, provided the request was not withdrawn; and (b) except as mentioned in paragraph (a), must not grant leave to intervene in the matter to an organisation of employees other than one that is proposed to be bound by the agreement." If the applicants had succeeded in their claim, the result would have been the application for certification of the agreement would have been re‑opened, and the Commission would have been required to determine whether the applicants should be given leave to intervene in the proceeding before the Commission. 7 The right which the applicants sought to vindicate, and the duty which they have sought to have enforced against the Commission related to their intervention in the certification procedure before the Commission. That right and duty arose under the Act, and in particular, s 43. As was said in R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141 at 154: "The relevant inquiry is whether the matter arises under the law. Thus one is compelled to the conclusion that a matter may properly be said to arise under a Federal law if the right or duty in question in the matter owes its existence to Federal law or depends upon Federal law for its enforcement, whether or not the determination of the controversy involves the interpretation (or validity) of the law. In either of these cases, the matter arises under the Federal law. If a right claimed is conferred by or under a Federal statute, the claim arises under the statute." 8 Insofar as the applicants were claiming that they were denied natural justice, they were complaining that the Commission was not performing properly its duty under the Act in considering their application for leave to intervene. Their case was that, in the circumstances, the Commission was pursuant to a duty under the Act to consider their application to be granted leave to intervene in the application and, as part of that consideration, the Commission was bound to accord them natural justice. 9 Accordingly, the matter before the Court was one which arose under the Act as the applicants, and in particular, the Association, were seeking to invoke s 43 of the Act. The Association was contending that it was an organisation of employees "proposed to be bound by the agreement" for the purposes of subs 43(2)(b) of the Act. The individual applicants were contending that they were directly affected by the application for certification. 10 The matter before the Court was, therefore, different from the matter before the Court in Re McJannet; Ex parte Australian Workers' Union of Employees (Qld) (No 2) (supra) and Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission (supra), because of the nature of the relief which was sought and was more akin to Re Polites; Ex parte Hoyts Corporation Pty Ltd (1991) 173 CLR 78 in which the applicant sought mandamus to compel a Deputy President of the Commission to continue to hear and determine a matter in respect of which he had disqualified himself. 11 If we had concluded that the applicants were not seeking to vindicate the right and enforce the duty arising under s 43, it would have been necessary to address whether any entitlement the applicants may have had to procedural fairness derived from the common law or, by implication, from the Act. There remains an unresolved issue whether an officer of the Commonwealth exercising power derived from a statute may be obliged to afford a person procedural fairness (amenable to writs under s 75(v)) because the obligation derives from the common law or, by implication, from the statute. It is an issue that has recently been considered by the High Court in Re Minister for Immigration and Multicultural Affairs; Ex parte Md Ataul Haque Miah [2001] HCA 22. The competing views were discussed by Gaudron J at pars 89 and 90. The better view appears to be that the requirement to afford procedural fairness derives, by implication, from the statute: see Gleeson CJ and Hayne J at par 52-53 and Kirby J at par 181. 12 We do not consider that there is any basis for concluding that the proceeding was instituted vexatiously or without reasonable cause. Although we formed a clear view that the application must fail, it cannot be said that there was no substantial prospect of success: Kanan v Australian Post and Telecommunications Union (1992) 43 IR 257 at 264‑265. It does not follow from the fact that the applicants' argument was unsuccessful that the proceeding was commenced vexatiously or without reasonable cause: The Queen v Moore; Ex parte Federated Miscellaneous Workers' Union of Australia (1978) 140 CLR 470 at 473. 13 Although various forms of prerogative relief were claimed, namely writs of prohibition, mandamus and certiorari, it is not appropriate, for the purposes of s 347 of the Act, to consider the claim for each writ separately. There was one proceeding before the Court and one "matter" for determination, namely whether the applicants should have been granted leave to intervene in the certification proceeding and whether they were denied natural justice by the refusal of the Commission to grant that leave. The claims for relief upon which each writ was predicated were elements of the one justiciable controversy: Thompson v Hodder (1989) 21 FCR 467 at 471. 14 We are satisfied that the proceeding involved a matter arising under the Act. We are not satisfied that the proceeding was instituted vexatiously or without reasonable cause. In the circumstances, there shall be no order as to the costs of the proceeding. I certify that the preceding fourteen (14) paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Wilcox, Moore & Goldberg.