Re Coldham; Ex parte Brideson [No 2] [1990] HCA 36

On 7 February 1989, for reasons it is unnecessary to repeat, this Court ordered the Commission to rehear the applications for leave to appeal against the decision of the Registrar to register T.A.A. On 5 June 1989, the Full Bench commenced rehearing the applications. On 10 August 1989, the Commission gave its decisions. It granted leave to appeal against the Registrar's decision of 17 December 1986, allowed the appeals and again quashed the decision to register T.A.A. as an organization of employees. The Full Bench found that T.A.A. had not complied with the condition prescribed by reg. 115(1)(b) of the Conciliation and Arbitration Regulations (Cth). It also refused to register T.A.A. because the members of that association "might conveniently belong", within the meaning of s. 142 of the Act, to ATU and ITF and because there was no ground for exercising its discretion under that section in favour of registering T.A.A.

The Registrar shall, unless in all the circumstances he thinks it undesirable so to do, refuse to register any association as an organization if an organization, to which the members of the association might conveniently belong, has already been registered. When the Registrar gave his decision on 17 December 1986 neither ITF nor ATU, of course, was a registered organization. Nor was there any other registered organization in existence to which the members of T.A.A. might conveniently belong. Accordingly, there was no objection to the registration of T.A.A. based on s. 142 of the Act before the Registrar when he gave his decision. After this Court ordered the Commission to rehear the applications for leave to appeal against the decision of the Registrar not to refuse to register T.A.A., ITF and ATU lodged objections based on s. 142 of the Act. They alleged that they were entitled to do so because, although they were registered after the date of the Registrar's decision, their objections were filed while the application of T.A.A. remained for determination. The notices of objection were filed well out of time. But reg. 141(1)(d) states: For the purpose of giving effect to the Act, the Registrar shall, in relation to any application or proceeding with which he is authorized to deal, have power -

(d) to extend the time fixed by these Regulations for the lodging of any document or the doing of any act (whether that time has expired or not).

The Full Bench rejected an argument on behalf of T.A.A. that "at the time of the decision of the Registrar under appeal viz 17 December 1986, neither ITF nor ATU was a registered organization having the capacity to raise the objection sought and that there was no power in this Bench, as the present repository of the power given to the Registrar, to extend time". The Full Bench also rejected an argument that reg. 119, which permitted the lodging of an objection under s. 142, "connotes as an objector an organization in existence as such no later than the conclusion of the hearing of the application for registration or no later than the Registrar's decision to register".

Since the Full Bench had no express power to permit the objections based on s. 142 to be raised before it, the correctness of its decision on this point necessarily depended on whether the appeal to the Commission from an act or decision of the Registrar was in the nature of a rehearing or an appeal in the strict sense of the term. If the appeal to the Commission was an appeal in the strict sense, then the Commission could only make such order as the Registrar should have made on the evidence before him: Quilter v Mapleson [1] .

The right of appeal to the Commission against the decision of the Registrar was given by s. 88F of the Act which provided:

(1) The Commission may grant leave to appeal to the Commission from an act or decision of the Registrar in relation to a matter and may hear and determine an appeal in respect of which leave is so granted.

(2) Where leave to appeal has been granted under this section, the Commission may, on such terms and conditions as it thinks fit, make an order that the operation of the act or decision of the Registrar be stayed pending the determination of the appeal or until further order of the Commission.

(3) The Commission may take further evidence for the purposes of an appeal under this section.

(4) Upon the determination of an appeal under this section by the Commission, the Commission shall make such order as it thinks fit and may confirm, quash or vary a decision of the Registrar appealed from.

(5) The powers of the Commission under this section in respect of an appeal to the Commission are exercisable by the Commission constituted by the President or by a presidential member of the Commission assigned by the President for the purpose of the appeal or, in a case in which the President so directs, by a Full Bench.

The power conferred on the Commission to "make such order as it thinks fit" together with the power to "take further evidence for the purposes of an appeal under this section" are strong indications that the appeal given by s. 88F was by way of rehearing. Nothing in s. 88F suggested that the power to receive further evidence was limited to evidence of events which had occurred as at the date of the Registrar's decision. Moreover, when the present case was last before this Court (Re Coldham; Ex parte Brideson [2] ), Wilson, Deane and Gaudron JJ. said [3] :

Even if the Commission's decision be quashed the applications for leave to appeal from the Registrar's decision allowing registration of T.A.A. will remain extant. Those applications (if allowed) entitle the Commission to substitute in place of the decision of the Registrar its own decision that the requirements for registration have or have not been met: s. 88F(4). If that decision be in the affirmative, the Commission will then need to direct its attention to the questions posed by s. 142 of the Act. Although the point was not argued before this Court on that occasion, it is apparent that the members of the Court took it for granted that, when the Commission reheard the matter, it would be able to consider matters which had occurred since the Registrar's decision. 1. (1989) 166 C.L.R. 338. 2. (1989) 166 C.L.R., at p. 348.

Mr. Dalton submitted, however, that the power of the Commission to take "further evidence" was limited "to the nature of the matter that it is dealing with". He submitted that the scheme of the Act showed that, once the Registrar was satisfied that the prescribed conditions had been met and that there was no organization to which the members of T.A.A. might conveniently belong, it was entitled to registration at that point of time. On this hypothesis, the question for the Commission under s. 88F was whether, on the evidence before the Commission, the decision of the Registrar was correct at the time when it was made. Support for the submission of Mr. Dalton is to be found in Horne v Locke [4] and Strange-Muir v Corrective Services Commission [5] .

1. [1978] 2 NSWL.R. 88. 2. (1986) 5 NSWL.R. 234.

In Horne , Sheppard J. held that, when an employee appealed to an Appeals Board, set up under the Government Railways Act 1912 NSW, against a decision of his employer refusing to promote him, the appeal had to be determined on the facts that existed at the time of the employer's decision. His Honour reached this conclusion notwithstanding that the Board was "intended to hear evidence from witnesses" [6] . In Strange-Muir , the Court of Appeal of New South Wales held that, on an appeal to the Government and Related Employees Appeal Tribunal, whether an appellant-employee was "more entitled to be appointed to the vacant office than the employee in whose favour the decision is made" had to be determined on the evidence that existed at the date of the employer's decision. In his reasons for judgment in that case, McHugh J.A. said [7] that it should be taken as established that "there is a presumptive rule that in an administrative appeal to an administrative body the issue is whether the decision was correct when it was made". His Honour considered that in this respect an appeal to an administrative tribunal against an administrative act was to be contrasted with an appeal to a court against an administrative act. Be that as it may, it is well settled that, when the legislature gives a court the power to review or hear an "appeal" against the decision of an administrative body, a presumption arises that the court is to exercise original jurisdiction and to determine the matter on the evidence and law applicable as at the date of the curial proceedings: see Ex parte Australian Sporting Club Ltd.; Re Dash [8] . Nevertheless, whether the right of appeal against an administrative decision is given to a court or to an administrative body, the nature of the appeal must ultimately depend on the terms of the statute conferring the right: Builders Licensing Board v Sperway Constructions (Syd.) Pty. Ltd. [9] .

1. [1978] 2 NSWL.R., at p. 100. 2. (1986) 5 NSWL.R., at p. 250. 3. (1947) 47 S.R. (NSW) 283. 4. (1976) 135 C.L.R. 616, at pp. 621-622.

In the present case, the enactment of s. 88F(3) - "take further evidence", the terms of s. 88F(4) - "make such order as it thinks fit", and the nature of many of the issues which came before the Commission on appeal from the Registrar point irresistibly to the conclusion that the Commission was required to decide the case on the facts and law which existed at the date of its decision.

In appeals against decisions to register associations as organizations for the purposes of the Act, one of the issues which the Commission often had to determine under s. 88F was whether the association had complied with the prescribed conditions. Another issue which often had to be determined was whether, by reason of the provisions of s. 142 of the Act, registration should be refused. It seems most unlikely that the legislature intended that, on an appeal under s. 88F, the Commission had to register or confirm the registration of an association notwithstanding that, at the date of the appeal, the association no longer complied with the prescribed conditions. Furthermore, as this Court pointed out when the present case was previously before it [10] :

The history of industrial regulation in this country has shown the desirability of ensuring that industrial representation is structured in the interests of employees and the industry in which they are engaged, both for the purpose of avoiding demarcation disputes and for the purpose of ensuring effective industrial representation. The effective administration of the Act made it a matter of importance that an association should not be registered if its members might conveniently belong to a registered organization unless in all the circumstances it was undesirable to refuse registration. It would seem most unlikely, therefore, that the legislature intended that the Commission should register or confirm the registration of an association if, at the date of the appeal, there was an organization to which the members of the association might then conveniently belong and the Commission did not think it was undesirable to refuse registration to the association. 1. (1989) 166 C.L.R., at p. 344.

In our opinion, upon the correct construction of s. 88F, the Commission was bound to make its own decision on the evidence before it, including evidence of events which had occurred since the Registrar's decision. As Higgins J. said in Federated Carters and Drivers' Industrial Union of Australia v Motor Transport and Chauffeurs' Association of Australia [11] :

the appellant is entitled to have a re-hearing, a "review" of the decision He is entitled to such judgment as I can bring to bear upon the question, independently of the Registrar, although, of course, I should attach a good deal of weight to the Registrar's view. This statement was made when the predecessor of s. 88F contained the word "review". Nevertheless, it is equally applicable to s. 88F. Consequently, the statement of the Full Bench in Re Federated Miscellaneous Workers Union of Australia [12] that "the principles relating to the function of a tribunal sitting on appeal from the exercise of a discretion should be applied" in an appeal under s. 88F cannot be accepted as a correct description of the Commission's functions under that section. That is not to say, however, that those principles could not be brought to bear on the question whether leave to appeal should be granted. In determining whether leave to appeal should be granted under s. 88F(1), it would have been appropriate for the Commission to refuse leave unless it thought that there was an arguable case that the Registrar had acted upon a wrong principle, given weight to irrelevant matters, failed to give sufficient weight to relevant matters or made a mistake as to the facts or that the decision was plainly unreasonable or unjust. But once leave was granted, the Commission was bound to make its own decision on the evidence before it, including any further evidence admitted pursuant to s. 88F(3). 1. (1912) 6 C.A.R. 122, at p. 123. 2. (1974) 157 C.A.R. 623, at p. 631.

It follows from what has been said above that the Commission had jurisdiction to permit the objections under s. 142 to be raised. Consequently, the order nisi to review its decisions had to be discharged.