CTHHCA

Re Coldham; Ex parte Australian Building Construction Employees' & Builders Labourers' Federation [1986] HCA 87

[1986] HCA 87

High Court of Australia|1984-12-21|Before: Dawson JJ, Alley J, Coldham J, Maddern J

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At a glance

Source facts

Court

High Court of Australia

Decision date

1984-12-21

Before

Dawson JJ, Alley J, Coldham J, Maddern J

Source

Original judgment source is linked above.

Judgment (27 paragraphs)

[1]

The application arises out of a demarcation dispute between the B.L.F. and the A.W.U. regarding the representation of workers engaged in building bridges. By an agreement ("the bridge agreement") made between the two unions in 1968, and certified by a member of the Commission under s. 31 (which now appears as s. 28) of the Conciliation and Arbitration Act 1904 Cth, as amended, ("the Act") on 13 June 1969, the two unions reached agreement that the A.W.U. should have as against the B.L.F. the exclusive right to represent workers engaged in building bridges in New South Wales and overpasses and/or underpasses in New South Wales, Victoria, South Australia and Tasmania and that the B.L.F. should have as against the A.W.U. the exclusive right to represent workers engaged in the building of bridges in Victoria, South Australia and Tasmania. On 18 June 1984 the A.W.U. applied to the Commission for a variation of the Building Construction Employees' and Builders Labourers' (Consolidated) Award 1982 ("the B.L.F. award"). Four of the proposed variations were designed to remove references to bridges from the scope clause of the B.L.F. award. The application, which was given the number C. No. 3643 of 1984, came before Alley J. in July 1984. After hearing argument as to the effect of the bridge agreement, from which the A.W.U. claimed to have withdrawn, and as to the standing of the A.W.U. to seek to vary the B.L.F. award, Alley J. suggested that if the A.W.U. wished to bring the bridge agreement to an end it should file an application to set it aside, and adjourned the matter before him. On 16 July 1984 the A.W.U. applied to the Commission to vary the A.W.U. Construction and Maintenance Award 1975 ("the A.W.U. award") so as to enlarge the scope of that award to cover work done in or in connexion with the construction of bridges throughout the whole area of application of the award. That application was numbered C. No. 3735 of 1984. On 23 August 1984 an application, numbered C. No. 3950 of 1984, was made by the A.W.U. to set aside the bridge agreement. On 12 September 1984 all three matters were heard together by Alley J. who, on 15 October 1984, gave a decision in which he stated that he intended to make orders to the effect sought by the A.W.U., but gave the B.L.F. a limited opportunity to show cause why those orders should not be made. After hearing submissions on behalf of the B.L.F., he published a final decision on 14 December 1984, in which he stated that he handed down orders (1) setting aside the bridge agreement; (2) varying the B.L.F. award by, inter alia, excluding the reference to bridges and (3) varying the A.W.U. award in the manner sought. Both of the decisions published on 15 October 1984 and 14 December 1984 bore a heading which referred to five matters, viz. matters C. No. 3643 of 1984, C. No. 3950 of 1984 and C. No. 3735 of 1984; also C. No. 49 of 1977 (which related to the B.L.F. award) and C. No. 1373 of 1975 (which related to the A.W.U. award). However, three separate formal orders were made.

[22]

This Court, of course, recognizes that the Commission is entitled to determine its own practice, consistently with the provisions of the law and the requirements of natural justice. But the decision in Amalgamated Television Services Pty. Ltd. v. Professional Radio Employees' Institute of Australasia did not merely lay down a practice - it depended on the true construction of the Act. In our opinion that decision proceeded on too narrow a view of the effect of the Act. Section 41 applies "in relation to" "any proceedings before the Commission". The word "proceedings" has frequently been said to have a wide and general application, and it would certainly include both an appeal and an application for an amendment or an extension of time. If a notice of appeal has been given, and, when the matter comes before a Full Bench, it appears that the notice is so defective in substance that it fails to institute the desired appeal, an application for an order allowing an amendment, or correcting the defect, or extending the time for lodging the notice of appeal, either forms part of, or in itself constitutes, proceedings before the Commission in which the powers given by s. 41 to make an order of those kinds can be exercised, unless some other section of the Act indicates that the provisions of s. 41 are inapplicable to the particular proceedings in question. There is no apparent reason why the general provisions of s. 41 should not apply to the hearing of an appeal at all its stages, including a hearing of the question whether the appeal has been properly instituted. Section 35(11) appears to have been inserted out of an abundance of caution, but it would be unreal to regard it as indicating that a distinction should be drawn between the hearing of a question whether an appeal has been instituted and the hearing of the appeal itself, and as revealing an intention that the provisions of Div. 1 of Pt III apply to a hearing of the latter kind but not to a hearing of a former kind. The hearing of an appeal might involve the question whether the time limits prescribed by s. 35(4) had been complied with, or whether the matter was of such public importance that an appeal should lie (see s. 35(3)), as well as the hearing of the merits. In any case an application to the Full Bench for an amendment or an extension of time would be a proceeding before the Commission within s. 41. Moreover, some provisions of Div. 1 of Pt III are of such general application that it would be difficult to suppose that it was intended that they should not be applicable in circumstances such as the present - s. 37 (regarding the incapacity of a member of the Commission) and s. 38 (enabling Commissioners to sit simultaneously) provide examples - and that circumstance negates the idea that s. 35(11) has the restrictive effect which was attributed to it in Amalgamated Television Services Pty. Ltd. v. Professional Radio Employees' Institute of Australasia.

[23]

The fact that the prescribed time had expired before the application for extension was made presents no barrier to the exercise of the Commission's powers. The provisions of ss. 2(c), 39(1) and 40(1)(c) reveal a clear and understandable intention that proceedings before the Commission should be directed to the merits and that technicalities and legal forms should not be regarded. The result reached in Amalgamated Television Services Pty. Ltd. v. Professional Radio Employees' Institute of Australasia, which was naturally followed in the present case, is a very technical result indeed, and contrary to the intention revealed by those provisions. There is nothing in the Act that suggests that the power given by s. 41(1)(m) cannot be exercised after the prescribed time, which is sought to be extended, has expired, if the circumstances justify that course. (The expression prescribed time in s. 41(1)(m) refers to a time prescribed by the Act or the regulations thereunder: s. 17(q) of the Acts Interpretation Act 1901 Cth, as amended.) It is true that many rules of court expressly provide that the court may extend a period of time within which a person is required or authorized to act, although the application for extension is not made until after the expiration of that period, but that does not mean that such a provision is necessary in all cases to enable a period of time which has expired to be extended. It has recently been held in England that even in the absence of any such provision a court has an inherent power to control its own procedure and enlarge time after the prescribed time has elapsed, and that the older notion, that when the time has expired without the necessary action having been taken the action is dead and cannot be revived, is erroneous: Reg. v. Bloomsbury Court; Ex parte Villerwest Ltd. [3] ; Samuels v. Linzi Ltd. [4] . In those cases the court declined to follow an earlier line of authorities which was accepted as correct by this Court in Bailey v. Marinoff [5] - a case which is distinguishable from the present in that the litigation there had been regularly concluded by a formal order of the court, and which in any case rests on a principle which is subject to exceptions: Wentworth v. Attorney-General (N.S.W.) [6] . The question in the present case must be answered by deciding what is the true intention of the statutory provision which fixes the time, and having regard to the object of the Act, and the intention revealed by the provisions already mentioned, ss. 35 and 41 cannot be regarded as intended to place a technical impediment in the way of the settlement of an industrial dispute on its merits, or as denying to the Commission the power to extend the time prescribed for instituting an appeal when the Commission in its discretion considers that such an extension would be desirable.

Re Coldham; Ex parte Australian Building Construction Employees' & Builders Labourers' Federation [1986] HCA 87 - HCA 1984 case summary — Zoe