Re Ludeke; Ex parte Customs Officers' Association of Australia, Fourth Division [1985] HCA 31

High Court of Australia|1983-01-18|Before: Dawson JJ, Ludeke J

High Court of Australia Gibbs C.J. Mason, Brennan, Deane and Dawson JJ. Re Ludeke; Ex parte Customs Officers' Association of Australia, Fourth Division [1985] HCA 31

This is an application by the prosecutor, the Customs Officers' Association of Australia, Fourth Division, to make absolute an order nisi for a writ of prohibition or, alternatively, a writ of certiorari. The application is a step in a demarcation dispute between the prosecutor and the Administrative and Clerical Officers' Association, Australian Government Employment ("ACOA"), both of which claim to be entitled to represent officers employed by the Australian Customs Service. Early in 1983, both unions made applications to the Public Service Arbitrator. The application by the prosecutor, dated 18 January 1983, was to vary a determination made in 1926 relating to the pay and conditions of customs officers and assistant customs officers. This application came before an Acting Arbitrator, who, on 25 March 1983, granted ACOA leave to intervene. The matter was then adjourned. In the meantime, on 10 March 1983, ACOA had made an application to the Public Service Arbitrator for a determination relating to the pay and conditions of service of members of ACOA employed by the Australian Customs Service and other related areas of the Department of Industry and Commerce in any of the following designations:

and other administrative and clerical designations in the Australian Customs Service and other related areas of the Department of Industry and Commerce.

On 17 August 1984 ACOA's application came before Ludeke J. sitting in the Australian Conciliation and Arbitration Commission. It is not now contested that by that time the Commission was empowered to deal with matters of that kind by s. 70B of the Conciliation and Arbitration Act 1904 Cth, as amended ("the Act"). Ludeke J. granted the prosecutor leave to intervene in the proceedings and the matter was adjourned. On 3 September 1984 ACOA's application (which by then was described as matter C No. 3908 of 1984) came before Mr. Commissioner Hastings. Counsel for the prosecutor then challenged the jurisdiction of the Commission on the ground that the work of customs officers and assistant customs officers was not within the conditions of eligibility of ACOA. Counsel for ACOA submitted that the prosecutor, as an intervener, should be allowed to argue only the question of its own capacity to represent customs officers, and that it should not be allowed to raise the question of the scope of the conditions of eligibility of ACOA which, it was said, had been decided by Ludeke J. in other proceedings on 31 July 1984. The matter was adjourned to enable the parties to engage in discussions, and has not since been relisted.

On 21 September 1984, and again on 27 September 1984, the prosecutor's application, which had been adjourned on 25 March 1983, came before Ludeke J. The prosecutor submitted that in some way the two sets of proceedings - ACOA's application and the prosecutor's application - should be joined. ACOA submitted that the leave previously granted to the prosecutor to intervene in ACOA's application should be limited by precluding the prosecutor from challenging the jurisdiction of the Commission to entertain that application. Ludeke J. did not formally deal with the question of joinder, but he accepted ACOA's submission and varied the order which he had made in the proceedings instituted by ACOA's application. He ordered that the leave granted to the prosecutor to intervene in matter C No. 3908 be continued subject to the limitation that it should not be open to the prosecutor to raise in those proceedings the question of the constitutional capacity of ACOA to cover customs officers and assistant customs officers.

The reason which Ludeke J. gave for imposing the limitation on the leave granted to the prosecutor to intervene was that he had recently, in other proceedings to which both the prosecutor and ACOA were parties, decided, adversely to the prosecutor, the very question which the prosecutor wished to canvass in matter C No. 3908. On 2 March 1984 the Deputy Industrial Registrar at Sydney had given a decision on an application by the prosecutor to alter its rule relating to eligibility for membership, and, in refusing the application had in effect upheld objections made by ACOA to that application. From this decision the prosecutor had appealed under s. 88F of the Act. The appeal was head by Ludeke J. who, on 31 July 1984, dismissed it. One of the submissons made by the prosecutor on the appeal was that the eligibility rules of ACOA which, so far as they are material, apply to officers "employed on administrative and clerical duties" did not cover customs officers whose principal duties were those of law enforcement. After a hearing that extended over several days, Ludeke J. rejected this submission in a reasoned judgment. He held that the Deputy Industrial Registrar was correct in deciding that the customs officers were eligible to be members of ACOA.

In one sense the question which the prosecutor sought to be entitled to raise as an intervener was not quite the same as that which Ludeke J. had decided on 31 July 1984. After the date of the decision by the Deputy Industrial Registrar, but before the hearing before Ludeke J., there had been legislative changes to the structure of the Australian Public Service which the prosecutor submitted were relevant. Ludeke J. determined the appeal without taking these changes into account. It is not suggested that he was wrong in so doing but the fact that this aspect of the argument had not been considered was relied on in support of the prosecutor's contention, to be discussed below, that it has been denied natural justice.

The prosecutor now seeks a limited or partial prohibition, directed to (inter alios) Ludeke J. and Mr. Commissioner Hastings, prohibiting them from proceeding further with the hearing and determination of ACOA's application without hearing the prosecutor on the issue of jurisdiction and particularly on the question whether ACOA was capable of representing the customs officers. In the alternative it seeks certiorari to quash the order made by Ludeke J. on 27 September 1984.

The case for the prosecutor is that the effect of the order made by Ludeke J. on 27 September 1984 limiting its right to intervene in ACOA's application is to deny the prosecutor natural justice. The prosecutor does not suggest that the order itself was made in breach of the rules of natural justice; that suggestion could not successfully be advanced, for the prosecutor was given a fair opportunity to be heard before that order was made. The submission is that, as a result of the order, the prosecutor will be prevented from arguing that ACOA's eligibility rules do not extend to cover the customs officers and thus from raising an objection to the jurisdiction of the Commission to hear ACOA's application. It was said that the consequence will be likely to be that there will be a diminution of the prosecutor's membership and that the prosecutor will be prevented from seeking changes to its own eligibility rule which, if granted, would cut across ACOA's eligibility rules as presently interpreted.

As part of its submission the prosecutor contended that it could not have appealed to the Full Bench of the Commission from the decision of Ludeke J. given on 31 July 1984 and further that if, on ACOA's application, an order is made in favour of ACOA, the prosecutor, not being a party, and having only limited rights of intervention, will not be able to appeal to the Full Bench, or, if it can appeal, may be faced with the possibility that the facts on which it wishes to rely will not have been fully ventilated before Ludeke J. It can be seen that the suggested denial of natural justice lies in part at least in the fact that the prosecutor may be prevented from obtaining the determination by the Full Bench of the question whether the conditions of eligibility of ACOA extend to cover customs officers.

The subject of appeals to the Full Bench is dealt with by s. 35 of the Act. The section leaves a broad discretion to the Commission; the cases in which an appeal will lie are, in the first instance, defined widely by s. 35(2) but sub-section (3) goes on to provide that an appeal does not lie under sub-section (2) "unless, in the opinion of the Commission, the matter is of such importance that, in the public interest, an appeal should lie". Subject to sub-section (3), an appeal lies, inter alia, and subject to an immaterial exception, against an award made by a member. By s. 4(1) of the Act, "award" is defined to include "an order". It was submitted on behalf of the prosecutor that s. 119 of the Act, which deals with the imposition and recovery of penalties for breach or non-observance of a term of an order or award, provides an indication that an order or award for the purposes of the Act must have the characteristic of being enforceable by the imposition of a penalty under that section. However, s. 119 does no more than show that some orders or awards may be enforceable in that way; it does not cut down the meaning of "award" as defined by s. 4(1). It appears therefore that, subject of course to s. 35(3), the prosecutor could have appealed to the Full Bench against the order of Ludeke J. made on 31 July 1984 or against his order made on 27 September 1984. Whether the prosecutor will be able to appeal against such order as may finally be made on ACOA's application will depend on whether the prosecutor can be said to be a "person aggrieved" by such order (see s. 35(4)(b)(i)), a question which cannot be answered in the abstract. In any case, having regard to the possible obstacle to an appeal which is presented by s. 35(3), the fact that an appeal might possibly have been brought or may yet be brought to the Full Bench cannot be determinative of the present case.

The critical question is whether the prosecutor will be denied natural justice if it is allowed to intervene in ACOA's application only to the limited extent allowed by Ludeke J. It may be said immediately that it is clear that notwithstanding the wide discretion in matters of procedure given to the Commission by s. 40(1) of the Act, the Commission is bound to observe the rules of natural justice: Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group [1] ; Reg. v. Moore; Ex parte Victoria [2] ; Reg. v. Isaac; Ex parte State Electricity Commission (Vict.) [3] . That means that a person whose rights will be directly affected by an order made by the Commission must be given a full and fair opportunity to be heard before the order is made. That requirement will not necessarily be satisfied if the Commission relies only on the fact that the person concerned has been heard on the same question by the same member of the Commission on a previous occasion. In general, the rules of natural justice are not satisfied unless the opportunity to be heard is afforded in the proceeding in question, although the fact that there had been an earlier hearing would be relevant in determining what constituted a full opportunity to be heard. However, natural justice does not require that everyone who may suffer some detriment as an indirect result of an order of the Commission is entitled to be heard before the order is made. Orders made by the Commission may affect many members of the community who are not parties to the proceedings in question but that does not mean that any member of the community who will be indirectly affected by an order of the Commission has a right to be heard in those proceedings. It has been held that a person who is not a party to a dispute, but who may nevertheless be affected, indirectly and consequentially, by an order made in settlement of the dispute is not entitled to be heard before the matter is determined: Reg. v. Moore; Ex parte Victoria; Reg. v. Isaac; Ex parte State Electricity Commission (Vict.). Those were cases where the person affected sought to be heard as a party; the reasoning in those judgments supports the view that the rules of natural justice do not require the Commission to allow a person who is not a party to the proceedings in question and whose rights will not be directly affected by them to be heard in those proceedings, and therefore do not require the Commission to grant such person leave to intervene. The Commission has power - which, like other powers to which reference has already been made, allows it a wide discretion - to allow any person or organization to intervene in any matter, provided that the Commission is of the opinion that it is desirable that the person or organization should be heard: s. 36(2) of the Act. The provisions of that sub-section reinforce the view that a person whose rights are not directly affected by a proceeding is not entitled to intervene in the proceeding, although in many cases considerations of fairness may incline the Commission to allow someone who is likely to be indirectly affected by the outcome of the proceedings to intervene in them.

(1969) 122 C.L.R. 546, at p. 552. 2. (1977) 140 C.L.R. 92, at pp. 101-102. 3. (1978) 140 C.L.R. 615, at p. 620.

In the present case, no order was sought against the prosecutor by the application of ACOA which instituted the proceedings in which the prosecutor seeks an unlimited leave to intervene. By that application ACOA sought a determination of conditions of employment that would apply only to its own members. If an order is made on the application it will not govern the conditions of employment of persons who are not eligible to be members of ACOA. If the submissions which the prosecutor wishes to have considered are entirely correct, that will mean that there will be no persons who will be affected by the determination. If the Commission makes a determination when the employees to whom it relates are not eligible to be members of ACOA, and if that means that the Commission had no jurisdiction to make the determination, the prosecutor, although a stranger to the proceedings, could seek prohibition: see Reg. v. Holmes; Ex parte Public Service Association (N.S.W.) [4] , and cases there cited. The submission made on behalf of the prosecutor that the order made by Ludeke J. on 27 September 1984 will prevent the prosecutor from arguing that ACOA's eligibility rules do not extend to include the customs officers is correct only if it is understood to mean that the prosecutor cannot advance such an argument in the proceedings begun by ACOA (matter C No. 3908). The order would not prevent the prosecutor from advancing that argument in any proceedings begun by its own application, or in any other proceedings to which it may be a party, and in which the submission may be relevant. No decision in ACOA's proceedings will prevent the prosecutor from seeking changes to its own eligibility rules. That ACOA's application may prove successful and as a result may have indirect consequences detrimental to the prosecutor does not mean that the prosecutor has an unfettered right to intervene in ACOA's application.

For these reasons the order made by Ludeke J. will not have the effect of denying natural justice to the prosecutor either in the proceedings in which it was made or in the proceedings begun by ACOA's application.

Section 36(2) of the Conciliation and Arbitration Act 1904 Cth recognizes that the Commission has power to grant leave to intervene in any matter before it. By providing that the power "shall not be exercised except in a case where the Commission is of the opinion that it is desirable that a person or organization should be heard", the sub-section acknowledges that the grant of leave to intervene is a matter within the discretion of the Commission (see also s. 40(1)) and that a grant will not be made unless the Commission considers it desirable that the applicant be heard.

Intervention is a procedure unknown to the common law. It is very much the creature of statute as the United States experience demonstrates. There courts are often empowered to allow intervention. In some instances the exercise of the discretion is largely uncontrolled, as it is with s. 36(2); in other instances it is regulated, in particular by a requirement that the applicant have an interest in the property or transaction which is the subject of the action: Federal Rules of Civil Procedure, r. 24(a)(2). In general, the applicant is required to have an interest which is a substantial interest, a legal interest or one which is known and protected by the law. In this respect the applicant must be interested in the outcome or the result of the litigation because he has a legal right which will be directly affected thereby or a legal liability which will be directly enlarged or diminished by the judgment - the interest must be direct and immediate rather than merely consequential: 59 Am. Jur. (2d) ss138-139.

Much the same approach was adopted by Dixon J. when he expressed in Australian Railways Union v. Victorian Railways Commissioners [5] the principle according to which intervention is allowed in constitutional cases in these terms:

Normally parties, and parties alone, appear in litigation. But, by a very special practice, the intervention of the States and the Commonwealth as persons interested has been permitted by the discretion of the Court in matters which arise under the Constitution. The discretion to permit appearances by counsel is a very wide one; but I think we would be wise to exercise it by allowing only those to be heard who wish to maintain some particular right, power or immunity in which they are concerned, and not merely to intervene to contend for what they consider to be a desirable state of the general law under the Constitution without regard to the diminution or enlargement of the powers which as States or as Commonwealth they may exercise. 1. (1930) 44 C.L.R. 319, at p. 331.

No doubt the Commission in exercising its discretion in accordance with s. 36(2) will pursue a somewhat similar approach, making due allowance for the circumstance that it is a tribunal, not a court, and that the nature of the determinations which it is called upon to make in the sphere of industrial relations will require some reformulation of what is a relevant or necessary interest for the purposes of intervention. An interest which in its nature is inadequate to support intervention in legal proceedings in a court may be sufficient to support intervention in a matter of industrial arbitration before the Commission.

In the proceedings to which the present application for prohibition and certiorari relates ACOA sought against the Minister for Industry and Commerce an award regulating the salaries, allowances and conditions of employment of assistant customs officers and customs officers (bands 1-7). On the prosecutor's application Ludeke J. initially granted it leave to intervene unconditionally in these proceedings, the prosecutor having then indicated that it reserved its position in relation to the eligibility of ACOA to cover those employees. At a later stage in the proceedings the prosecutor argued that the Commission had no jurisdiction to entertain ACOA's application for an award either in whole or in part on the ground that the whole or part of the work of a customs officer is not within the conditions of eligibility of ACOA because the work could not be described accurately as clerical or administrative work under ACOA's eligibility rule. The ultimate response of ACOA to this contention took the form of a submission to Ludeke J. to limit the prosecutor's leave to intervene so as to exclude any argument on ACOA's capacity to cover assistant customs officers and customs officers in the categories mentioned.

This submission was based on an earlier decision given by Ludeke J. on 31 July 1984 which was adverse to the argument to be presented by the prosecutor. That decision arose out of an application by the prosecutor for consent to an alteration of its eligibility rule which was opposed by ACOA and refused by the Deputy Industrial Registrar. The prosecutor's application was designed to enable it to offer membership to all assistant customs officers and customs officers employed in the Department of Industry and Commerce, thereby extending the ambit of its rule beyond Fourth Division officers to include Third Division officers. The application arose out of a restructuring of the Australian Customs Service which in some respects cut across former Public Service classifications in that Service. The prosecutor's case was directed to establishing that, as a result of the restructuring, the dominant characteristics of the work of its members and of Third Division officers, predominantly members of ACOA, were law enforcement, rather than clerical and administrative. In the result Ludeke J. decided that the Deputy Industrial Registrar was correct: (1) in refusing to hold that the duties of the new customs officer positions were correctly described as law enforcement rather than clerical and administrative; and (2) in holding that customs officers could conveniently belong to ACOA.

The importance of the decision for present purposes is: first, that it accepts that the prosecutor does not have coverage in respect of the officers in question; secondly, that its rule should not be altered to give it such coverage; and, thirdly, that ACOA has such coverage. The decision was given on the footing of extensive evidence called by the parties although it did not take account of submissions made by the prosecutor arising out of amendments made to the Public Service Act 1922 Cth which came into effect after the Deputy Industrial Registrar gave his decision, the effect of which was to enable as from 1 July 1984 appointments to be made to the Service without reference to divisional structure.

On 27 September 1984 Ludeke J. acceded to ACOA's submission and limited the prosecutor's leave to intervene in the proceedings by ACOA for an award so as to exclude it from raising the question of ACOA's capacity to cover assistant customs officers and customs officers. His Honour did not express any reason for the order which he made, although he did refer to his earlier decision, noting that it determined the issue sought to be argued by the prosecutor. Although his Honour did not regard that decision as amounting to res judicata or issue estoppel, he seems to have regarded it as a decision that the prosecutor had no interest to sustain intervention because it lacked relevant coverage and he appears to have attached some importance, at least in argument, to the prosecutor's failure to take any step to challenge it. I should mention that, although the prosecutor had earlier in the proceedings by ACOA for an award indicated an intention to argue that it had a capacity under its eligibility rule to cover customs officers in the relevant categories, it ultimately abandoned this argument. The prosecutor's change of attitude was the result of a belated recognition that Ludeke J. had in his decision on 31 July 1984 disposed of arguments arising out of changes made to the structure of the Australian Public Service, arguments which the prosecutor had thought would justify reagitation of the question.

As I see it, the prosecutor's strategy in September 1984 was first, notwithstanding the adverse decision of Ludeke J. on 31 July 1984, to seek to obtain a fresh decision that ACOA lacked relevant coverage. In reality it was looking to a favourable decision from a Full Bench of the Commission because it was unrealistic to expect that a Commissioner or Deputy President would decline to follow Ludeke J. In the event of obtaining such a decision it would then reapply for a rule change designed to give it coverage on the footing that a binding decision that ACOA lacked capacity would undermine the basis on which its earlier application for consent to its rule change had been refused.

The question whether the conditions of eligibility under ACOA's constitution extended to the work of customs officers and assistant customs officers was not one the outcome of which directly affected any legal right, liability, power or immunity of the prosecutor. On the other hand, if the prosecutor had relevant coverage under its eligibility rule, then it had a real and substantial practical interest in the determination of the scope of ACOA's eligibility rule. If it were held that ACOA had no power to represent customs and assistant customs officers in relation to the work in question the prosecutor, on the hypothesis stated, would have the only right to represent them and secure for them an award settling pay and conditions of employment in the event of a dispute with the Public Service Board. But if it were held that ACOA had the power to represent the officers in question the obtaining by it of such an award would set standards regulating salaries and conditions applicable to work done by members of the prosecutor and would damage the prosecutor's prospects of enrolling customs officers and assistant customs officers as members and endanger its retention of its existing members. And it might lead to the resolution of the demarcation dispute between the two organizations by the making of an order under s. 142A of the Act giving one organization the right to represent such officers to the exclusion of the other. On the hypothesis that the prosecutor had coverage there could be no doubt that it had a substantial interest sufficient to sustain its intervention: see Reg. v. Holmes; Ex parte Public Service Association (N.S.W.) [6] , where it was held in such circumstances that the prosecutor had a substantial interest sufficient to support an application for prohibition. If an organization has a substantial interest sufficient to sustain an application to this Court for prohibition then, generally speaking, it is desirable that the Commission should recognize that interest, subject to discretionary considerations, as a basis for intervention. It is, or should be, obvious that a point of jurisdiction should be argued and considered by the Commission, when it is convenient to do so, before the question is brought to this Court on an application for prohibition.

However, as we have seen, the prosecutor's interest was much more tenuous. It lacked coverage; by re-agitating a question already decided against it, it hoped to obtain a favourable decision on ACOA's lack of coverage and used that as a platform for a rule change giving it coverage. In these circumstances it was open to the Commission to conclude in the exercise of its admitted discretion that the prosecutor lacked an adequate interest to sustain intervention or, alternatively, if its interest was adequate, that other factors warranted the imposition of a limitation on its leave to intervene excluding argument on ACOA's capacity.

I do not agree with the suggestion that there was no avenue of appeal open to the prosecutor from the decision given by Ludeke J. on 31 July 1984. Under s. 35(2) an appeal lies to the Full Bench of the Commission from an award made by a member (an expression which includes the President, a presidential member and a Commissioner) otherwise than under s. 28, subject to the matter being, in the opinion of the Full Bench, of such importance, that, in the public interest, an appeal should lie (s. 35(3)). "Award" includes an order, except where otherwise clearly intended (s. 4). The meaning of "award" is not cut down by the circumstance that s. 119 of the Act imposes penalties for breach or non-observance of an award. This provision does not yield an implication that all awards must be susceptible of enforcement by imposition of a penalty. The decision given by Ludeke J. on 31 July 1984 fell within the statutory definition of "award" because it took the form of an order dismissing an appeal by the prosecutor under s. 88F from the Deputy Industrial Registrar who had refused an application by the prosecutor to alter its eligibility rule. Although s. 88F makes special provision for appeals from the Registrar to the Commission (constituted by the President, a presidential member or a Full Bench), it does not exclude a further appeal under s. 35 where an appeal from the Registrar is heard by a presidential member.

It is material that the prosecutor made no attempt to appeal to the Full Bench from the decision given on 31 July 1984. The proposition that res judicata and issue estoppel do not apply to determinations made by the Commission (Reg. v. Gough; Ex parte Municipal Officers' Association [7] ; Australian Transport Officers' Federation v. State Public Services Federation [8] ) does not mean that the Commission cannot take into account the fact that an issue has been previously determined between the parties on evidence after full argument in deciding whether to allow intervention which is designed to bring about a fresh determination of the issue. The high importance and the urgent need to settle industrial disputes tells strongly against the notion that the Commission should as a general rule in such circumstances grant leave to intervene for that purpose.

(1975) 133 C.L.R. 59. 2. (1981) 50 F.L.R. 438; 34 A.L.R. 406.

Indeed, the principal object of intervention is to ensure that all interested parties will participate in a single resolution of a controversy instead of being relegated to a resolution of the controversy in several proceedings. It is the attainment of this object that justifies intrusion into the litigant's right or interest in pursuing his proceedings as he chooses to constitute them. In exercising his discretion Ludeke J. was quite entitled to conclude that unconditional intervention by the prosecutor would lead to delay in the outcome of the proceedings by ACOA for an award in settlement of an industrial dispute and undesirable duplication of an argument which had already been determined.

It follows that the order of which the prosecutor complains was one which fell within the discretion of Ludeke J. It has not been shown that there was an erroneous exercise of that discretion, let alone an erroneous exercise that amounted to a denial of natural justice which is the only basis on which this Court could grant prerogative relief in this case. I do not doubt that in some circumstances the refusal of leave to intervene or the limitation of leave to intervene may work a denial of natural justice by denying to an interested party an opportunity to present his case in proceedings which may result in a determination affecting his rights or interests. This is not such a case.

I agree generally with the judgment of the Chief Justice, but I would add the following observations. A claim was before the Conciliation and Arbitration Commission relating, inter alia, to the conditions of employment of customs officers and assistant customs officers who are members of the Administrative and Clerical Officers' Association ("ACOA"). The claim had been submitted to the Public Service Arbitrator by ACOA pursuant to s. 12(2) of the Public Service Arbitration Act 1920 Cth before the Conciliation and Arbitration Amendment Act (No. 2) 1983 Cth came into operation. The claim came before the Commission after that Act came into operation.

We are not now deciding whether the Commission's jurisdiction to make an award on that claim depends on the capacity of ACOA to create an industrial dispute. Assuming without deciding that the Commission has no jurisdiction to make an award on the ACOA claim with respect to the conditions of employment of customs officers and assistant customs officers if the eligibility rule of ACOA does not permit that organization to enrol customs officers and assistant customs officers as members, the question is whether the Commission is bound to hear the prosecutor as an intervener wishing to submit that the ACOA eligibility rule does not extend so far. The prosecutor would have standing to seek a writ of prohibition challenging a decision by the Commission that it has jurisdiction to make and that it should make an award on the ACOA claim relating to the conditions of employment of customs officers and assistant customs officers, and the prosecutor may have a sufficient interest to warrant the grant of prohibition if the Commission should decide that matter erroneously (Reg. v. Graziers' Association of N.S.W.; Ex parte Australian Workers' Union [9] ; Reg. v. Watson; Ex parte Australian Workers' Union [10] ), but it does not follow that the Commission is bound to hear the prosecutor, who is not a party to the claim, before deciding whether the Commission has jurisdiction to make and should make such an award on that claim. There is no necessary correspondence between an interest which warrants the issue of a prerogative writ in the exercise of the court's discretion and an interest which requires the repository of a statutory power to hear the person who has that interest before making an order that affects it.

(1956) 96 C.L.R. 317, at p. 327. 2. (1972) 128 C.L.R. 77, at pp. 81, 88, 96-97.

There can be no universal criterion by which to determine whether a repository of a statutory power is bound to hear a person who is not directly involved in its proceedings before making an order that indirectly affects that person's interests: see de Smith, Judicial Review of Administrative Action, 4th ed. (1980), p. 196. Regard must be had to all the circumstances of the case, including the language of the statute, the nature of the power and of the body in which the power is reposed, the nature of the proceedings, the procedural rules that govern the proceedings (especially any provision for intervention by a person not directly involved in them), the interests which are likely to be affected, directly or indirectly, by the exercise of the power and the stage the proceedings have reached when the repository of the power learns of those interests. Generally speaking, a decision that will affect adversely a person's legal rights or his proprietary or financial interests or his reputation ought not to be taken without first giving him an opportunity to be heard provided such an opportunity can be reasonably given (F.A.I. Insurances Ltd. v. Winneke [11] ), even if that person is not directly involved in the proceedings which lead to the making of the decision: cf. Reg. v. Town and Country Planning Commissioner; Ex parte Scott [12] . But that is not an absolute rule.

(1982) 151 C.L.R. 342, at pp. 411-412. 2. [1970] Tas. S.R. 154, at pp. 182-187; 24 L.G.R.A. 108, at pp. 137-141.

In the present case, the proceedings before the Commission were being contested between ACOA and the employing authority. The claim was for an award only for ACOA members. The making of such an award would not affect the legal rights and obligations of the prosecutor association or of any of its members. The interest which the prosecutor seeks to protect by unrestricted intervention in the proceedings on the ACOA claim is no more than the comparative attractiveness of membership of the prosecutor association which might be adversely affected if an award is made on the application of ACOA. The prosecutor's interest could be affected only indirectly by the making of an award. Even if that be regarded as a financial interest of the prosecutor association, the Commission had a discretion whether to allow intervention and whether to limit any intervention (s. 36 of the Conciliation and Arbitration Act 1904 Cth). The Commission was not required to stay its hand in determining the claim in order to provide an opportunity for the prosecutor to challenge for a second time the scope of the ACOA eligibility rule. The prosecutor has not shown that the Commission was bound to permit it unrestricted rights of intervention. No error of principle is shown to have affected the exercise by the Commission of its discretion under s. 36 of the Act to permit intervention and to limit the intervention permitted. It follows that the prosecutor has not made out a ground for granting prohibition. The order nisi should be discharged.

The primary function of the Australian Conciliation and Arbitration Commission ("the Commission") under the provisions of the Conciliation and Arbitration Act 1904 Cth ("the Act") is the prevention or settlement of industrial disputes by conciliation or arbitration. In relation to matters under Pt III, Div. 1A ("Industrial Matters - Commonwealth and Territory Employees") of the Act, that primary function is augmented by a power "to settle by conciliation, or to hear and determine, industrial matters, whether or not an industrial dispute exists in relation to those matters" (s. 70B). For the purposes of that Division, "industrial matter" is defined (s. 70A(1)) to mean any matter in relation to the salaries, wages, rates of pay or other terms or conditions of employment of the relevant Commonwealth or Territory Government employees and as including, among other things, disputes between organizations of employees in relation to the employment of members and questions as to the demarcation of functions of employees.

The proceedings which have given rise to the present application for prohibition or certiorari involve the performance by the Commission of its arbitration functions under Div. 1A of Pt III. The Commission's arbitration functions, whether under the general provisions of the Act or under the special provisions of that Division, are ordinarily performed (as they are being performed here) in the course of proceedings inter partes, that is to say, between the parties to the industrial "dispute" or "matter". In hearing such proceedings, the Commission is bound to observe the rules of procedural fairness which are commonly referred to as the principles of natural justice: see Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group [13] . While their precise content may vary according to the circumstances of the particular case, those rules will ordinarily require the Commission to extend to the parties and to others who will be directly affected by its orders an adequate opportunity of being heard. They do not, however, require the Commission to ignore the nature of proceedings inter partes and to extend an opportunity of being heard to every person who, while not being a party, claims merely to have an indirect interest in the proceedings in the sense that he is likely to be indirectly advantaged or disadvantaged by an order or award which the Commission may make. In that regard, the Commission's obligations under the principles of natural justice correspond with those of a court or any other tribunal entrusted with the function of dealing with an issue in dispute between the parties to the particular proceedings before it: cf. Australian Railways Union v. Victorian Railways Commissioners [14] ; Reg. v. Moore; Ex parte Victoria [15] .

(1969) 122 C.L.R. 546, at p. 552. 2. (1930) 44 C.L.R. 319, at p. 331. 3. (1977) 140 C.L.R. 92, at pp. 100-102, 106-107.

What has been said above does not mean that the Commission is precluded from granting leave to intervene in proceedings to a non-party who has no direct interest in them. To the contrary, sub-s. (2) of s. 36 of the Act recognizes "the power of the Commission to grant leave to a person or organization to intervene in any matter" before it. That sub-section goes on, however, to provide its own restriction of the exercise of that general power to grant leave to intervene: it "shall not be exercised except in a case where the Commission is of the opinion that it is desirable that a person or organization should be heard". In other words, the Act expressly provides that the power to grant to a non-party leave to intervene can only be exercised by the Commission if it is persuaded that it is desirable that the applicant for such leave should be heard in those proceedings. Subject to that restriction, the general power to grant leave to intervene encompasses the power to grant such leave in a limited form: cf. Reg. v. Evatt; Ex parte Master Builders' Association (N.S.W.) [16] . Indeed, conformably with the statutory restriction upon the exercise of the power and subject to the general observation that it ordinarily would not be open to the Commission to fail to be of the opinion that it was "desirable that a person or organization should be heard" in relation to a part of the proceedings in which he, she or it was directly interested, one would expect that, in a case where the Commission is "of the opinion that it is desirable that a person or organization should be heard" in relation to part only of proceedings before it, the grant of leave to intervene would be limited so that it related only to that part of those proceedings.

A person or organization who makes application to the Commission for leave to intervene in proceedings between others has a direct interest in that particular application and in any order made in pursuance of it. The principles of natural justice will ordinarily require the Commission to extend to such an applicant an adequate opportunity of being heard on the questions whether or not leave to intervene should be granted, whether any such leave should be subject to limitations and whether or not any leave to intervene which has been granted should be withdrawn or subjected to limitations. The Commission will not, however, be acting in breach of those principles if, having decided that a non-party should be refused leave to intervene or that such leave should be subject or subjected to particular restrictions, it proceeds to deal with the matter between the parties before it on the basis of its decision in that regard unless it appears that the non-party has a direct interest in the proceedings in the sense that the non-party will be directly affected by an order which is being sought or which it is proposed to make.

The prosecutor in the present case is not a party to the proceedings before the Commission. Those proceedings, which were originally instituted before the Public Service Arbitrator and are being dealt with by the Commission pursuant to Div. 1A of Pt III of the Act, are arbitration proceedings between the respondent ACOA and the respondent Public Service Board in which the prosecutor has no direct interest. They arise from a claim which has been made by the ACOA and which is, in terms, restricted to relate only to the relevant members of that organization. The prosecutor's claimed "interest" in the proceedings is merely that any award made might indirectly affect the conditions of employment of its own members and, by way of converse reaction to the entitlement attaching to membership of the ACOA and the scope of the ACOA's eligibility rule, the identity and numbers of its own members and the likelihood of success of any application by it to the Commission to amend its own eligibility rule. No order is sought or threatened against the prosecutor or any of its members. It is not suggested that the Commission failed to observe the requirements of natural justice in the actual determination of the question whether the prosecutor should be granted leave to intervene or, subsequently, of the question whether the leave that had been granted should be restricted. In these circumstances, it was plainly within the competence of the learned Deputy President of the Commission (Ludeke J.) to limit the prosecutor's leave to intervene in the manner which he did, that is to say, by precluding the prosecutor from pursuing, in proceedings to which it is not a party and in which it has no direct interest, an issue between itself and the ACOA which had been determined against it by the same Deputy President in other proceedings to which both the prosecutor and the ACOA had been parties.

At a glance

Court

Decision date

Before

Source

Judgment (44 paragraphs)

Cited By (2)