Appeal - competency of appeal - s.45(1)(b) - whether issue of certificate pursuant to s.170CF(4) an order - leave to appeal - operation of s.170CF(2)(d), (3), (4) and (5) - exercise of powers in s.170CF(4) - General Steel Industries Inc. v Commissioner for Railways (NSW) and Others [1964] HCA 69; (1964) 112 CLR 125 considered - whether correct approach followed in this case.

[1] On 6 August 2002, Deputy President McCarthy issued a certificate under s.170CF(4) of the Workplace Relations Act 1996 (the WR Act) in relation to an application by Thomas Wright (the appellant) for relief under s.170CE in respect of the termination of his employment by the Australian Customs Service (the respondent). In that certificate, the Deputy President stated, amongst other things, that he had formed a view that the appellant "has no reasonable prospect of success at arbitration in relation to the ground that the termination was harsh, unjust or unreasonable". On 26 August 2002, the Deputy President issued a statement of reasons[1] for his decision to issue a certificate in such form. This is an appeal, for which leave is required, against the decision to issue the certificate.[2]

[2] It is appropriate that we deal first with the question of the competency of the appeal.

[3] The appellant contends that the decision to issue the certificate may be appealed under s.45(1)(b) of the WR Act. Section 45(1)(b) allows appeals to be brought, by leave, against "an award or order made by a member of the Commission, other than an award or order made by consent of the parties to an industrial dispute". In the appellant's submission, a decision to issue the certificate constitutes an order within the meaning of that word as it is used in that subsection. The appellant's contention in this respect was disputed by the respondent.

[4] What is meant by the word "order" as it is used in the WR Act and its predecessors has been the subject of substantial judicial consideration. The modern starting point appears to be the decision of the High Court in R. v Ludeke; Ex parte Customs Officers' Association of Australia, Fourth Division.[3] Briefly stated, the background to that decision consisted of two decisions by Ludeke J as a member of the former Australian Conciliation and Arbitration Commission. On 31 July 1984, His Honour dismissed an appeal against a decision of a Deputy Industrial Registrar refusing an application by the Customs Officers' Association of Australia, Fourth Division (the COA) for consent to an alteration of eligibility rules. In doing so, His Honour found that the Deputy Industrial Registrar was correct in deciding that customs officers were eligible to be members of the Administrative and Clerical Officers' Association, Australian Government Employment (the ACOA). On 27 September 1984, in relation to proceedings instituted by the ACOA, he ordered that leave previously granted to the COA to intervene in those proceedings be continued subject to the limitation that it should not be open to the COA to raise the question of the ACOA's constitutional capacity to cover customs officers and assistant customs officers. He did so on the basis that the issue of the ACOA's eligibility in this respect had already been determined adversely to the COA in proceedings in which the COA and the ACOA had been parties.

[5] The High Court decided that both decisions were of a type that was appealable under s.35(2)(a) of the Conciliation and Arbitration Act 1904 (the C&A Act) as "an award made by a member". At the relevant time, s.4 of the C&A Act defined "award" as including "an order". For the purposes of s.35(2)(a) of the C&A Act, the word "order" was not to be seen as being limited to an order that had the characteristic of being enforceable by the imposition of a penalty under that legislation.[4]

[6] Section 35(2)(a) of the C&A Act also allowed for an appeal against "a decision of a member not to make an award". Subsequently, in Building Workers Industrial Union of Australia v G James Glass & Aluminium Pty Ltd & Others[5], a Full Bench of the Commission held that the refusal of a member of the Commission to grant an adjournment was appealable under s.35(2)(a) as "a decision of a member not to make an award". In reaching that conclusion, the Full Bench stated -

"We are of the view that there is contained, certainly by implication, in the foregoing statement of the Commissioner, a refusal by him to grant the adjournment sought by the BWIU representative. The question then arises whether that refusal amounted to "a decision not to make an order".

Until R v Ludeke; Ex Parte Customs Officers Association of Australia [1985] HCA 31; (1985) 155 CLR 513; 13 IR 86_, a view was held that the awards or orders of the Commission which were open for consideration on appeal to a Full Bench were those of a final nature which were enforceable under the Act in the event of breach. That case dispelled any such view. The granting of leave to intervene subject to conditions was there held to be an appealable order. That case must be considered as having decided that orders made in the course of arbitral proceedings are appealable. Therefore, if the grant of adjournment is to be considered as an order and therefore appealable, so also must a refusal of an adjournment amount to a refusal of an order and be appealable under section 35(2)(a)._

Having regard to the judgment of the High Court we are of the view that the refusal of Commissioner Connell to grant the adjournment sought by the BWIU was a valid foundation for an appeal under section 35(2)(a) of the old Act.[6]"

[7] There then followed a number of decisions concerning the issuing of certificates under s.186 of the Industrial Relations Act 1988 (the IR Act) authorising a prosecution for breach of a bans clause. In Re The Australasian Meat Industry Employees Union and Others[7], a Full Bench found that "a decision to issue certificates and their issue is not ... a matter that is appealable per se". On the other hand, a Full Bench, in Meat and Allied Trades Federation of Australia v The Australasian Meat Industry Employees Union and Others[8], held that the issue of such a certificate constituted the making of an "order" for the purposes of s.111(1)(f) of the Industrial Relations Act 1998 and concluded that there was, therefore, a power conferred by that sub-section to cancel such a certificate. In the course of its decision, the Full Bench stated -

"In the present case it is necessary to consider whether the provisions of the IR Act as a whole and of Division 2 of Part VII, in particular, militate against the view that the issue of a certificate constitutes the making of an order, for the purposes of s.111(1)(f). We should add that if it is an "order" for those purposes then it is likely to be an order for other purposes and it would, for example, be capable of being appealed against (s.45(1)(b) and (c)).[9]"

That Full Bench, however, added a note of caution. It went on to state that its decision, in this respect, might be inconsistent with that expressed by the Full Bench in the earlier decision and expressly left the question for determination in a matter where its resolution was necessary to dispose of an appeal.[10]

[8] Inevitably, the question then did arise in another case, one that involved the same parties.[11]. In that case, the Full Bench determined that the decision to issue a certificate under s.186 of the IR Act and the issue of such a certificate was not a matter that was appealable under s.45(1)(b) as an "order made by a member" but might be appealable under s.45(1)(g) where the appeal raises a question of jurisdiction. After referring to the "two recent decisions of Full Benches of this Commission which touch upon this question", it went on to state -

"The issue of a certificate is appealable if it comprehended the expression "order" as it appears in s.45(1)(b) which reads:

"45. Subject to this Act an appeal lies to a Full Bench, with the leave of the Full Bench against:

(b) an award or order made by a member of the Commission otherwise than under s.112

and a right to bring an appeal exists under s.45(3).

The question arises whether the word "order" in s.45(1)(b) includes a certificate issued under s.186 or some other provision in Division 2 of Part VIII of the IR Act. It has been decided that it is an "order" as that word appears in s.111(1)(f). While a word appearing in one section of an Act is often treated as having the same meaning as it has in other sections (see generally Pearce & Geddes, Statutory Interpretation in Australia, 3rd edition, paras 4.5 - 4.6; Gifford, Statutory Interpretation page 61 et seq.), such an approach is by no means an immutable rule of construction. In R v Ludeke; Ex Parte Customs Officers Association of Australia (1985) 154 CLR 513 both Gibbs CJ and Mason J appear to have accepted that "award" in s.35 of the Conciliation and Arbitration Act 1904 had a wider meaning than the same word in the enforcement provisions (s.119).

The scope and effect of s.45(1)(b) is limited by s.45(3)(a) which authorises appeals only by, for present purposes, "an organisation or person bound by the ... order". This limitation arises either because, as a matter of construction, s.45(1)(b) should be treated as only referring to orders binding a person or organisation and not other orders or, alternatively, because the limits on who may appeal in s.45(3)(c) necessarily restricts appeals to those orders binding an organisation or person even if, in s.45 (1)(b), "order" is given a wide meaning. It is, however, really a distinction of no substance as the practical consequence of each is the same. Appeals only arise in relation to orders which bind a person or organisation.

Can it be said that a certificate is an order binding a person or organisation named in it? While the IR Act identifies who is to be treated as bound by an award (s.149) there is no corresponding indication as to who is to be treated as bound by an order. We note in passing that a person or organisation bound by an award is generally given standing to apply to the Commission to perform a function or exercise a power whereas a person or organisation bound by an order is not, at least expressly (see s.33).

An order would ordinarily be said to bind a person if it required them to do something or refrain from doing something or, in the context of litigation, it bound parties in that it determined rights or disposed of proceedings (whether interlocutory or final). What is an order and what is its effect will vary and range from judicial order (see eg. O'Toole v Charles David Pty Ltd (1990) 171 CLR 232) to other orders (see eg. R v Clarke (1969) 2 QB 91

Returning to the IR Act, the Commission is empowered to make orders which clearly require something to be done (s.122 - preference) or which may prevent certain action (s.127 - industrial action in the public sector). Such orders would bind the persons to whom they were directed. The Commission may also make orders disposing of litigation such as an order dismissing an appeal (see Customs Officers Association [1985] HCA 31; (1985) 155 CLR 513, at 526 per Mason J) and it is at least arguable that the parties to such proceedings are bound by the order (as to which see Gibbs CJ in Customs Officers Association [1985] HCA 31; (1985) 155 CLR 513, at 519_)._

In the present case the certificates do not, on their face, bind anyone nor do they determine rights or dispose of proceedings. The analogous process of a Minister giving consent to a prosecution and the effect of the consent have been described by Mansfield J of the Supreme Court of Queensland in Cody v Joseph Pease (Pty) Ltd (1945) St R Qd 81; see also Buffier v Bowen (1987 32 A Crim R 215) in the following way:

"In my opinion the correct view to take is that the consent of the Attorney-General under s.4, subsec.4, of the Black Marketing Act is a decision approving the invocation of the judicial power and for the purpose of initiating a controversy, and therefore is an act preliminary to the exercise of judicial power by a judicial tribunal.

By his consent the Attorney-General does not decide any controversy, nor does he give any binding or authoritative decision which determines questions of rights and liabilities. His consent may affect the liability of a person after a controversy has been decided by an appropriate judicial tribunal, but his consent does not in any way determine a right or liability. The Attorney General's act, in my opinion, an executive act authorised by Parliament as incidental to its legislative power. See also re Coorey ([1945] [1944] NSWStRp 60; 62 N.S.W. W.N. 167)."

The certificate issued by the Commission is an instrument which an applicant for a penalty under s.178 must have obtained authorising proceedings for breach of a bans clause. In our view, the persons and organisation in respect of whom the certificates issued are not bound by the certificates. It follows that they are not comprehended by the expression "an organisation or person bound by (an) order" as it appears in s.45(3)(a). It also follows that, for the reasons we discussed earlier, the certificates and their issue cannot be the subject of appeal under s.45.

There may be cases where an appeal against the issue of certificates raises question of jurisdiction and an appeal would lie under s.45(1)(g). Some aspects of this appeal were said by the appellants to raise such questions. Even if the appeal is in some respects competent we have, as earlier discussed, not formed the opinion that the appeal concerns a matter of such importance that leave should be given. In those circumstances it seems unnecessary to embark upon an analysis of the grounds identifying those which raise questions of jurisdiction and those that do not.

We refuse leave to appeal.[12]"

[9] In The Queen in the Right of the State of Tasmania and Another v Health Services Union of Australia[13], a Full Bench found that directions issued by a member of the Commission, on the facts of that case, "constituted no more than a strongly worded recommendation" and "were not intended to be enforceable in any ordinary sense". It did not, therefore, -

"consider that any of the directions was intended to be an order within the meaning of the Act. Accordingly we are disposed to find that the appeal against the decision to make the directions is not a competent appeal.[14]

[10] In State Transit Authority of New South Wales v Construction, Forestry, Mining and Energy Union[15], a Full Bench was prepared to assume that "the words `or order' in s.45(1)(b) must be given a wider meaning if they were not to be redundant" and in Bloor v BP Refinery (Bulwer Island) Ltd[16], a Full Bench has found that a decision not to issue a summons is not an "order" for the purposes of s.45(1)(b).

[11] Finally, in The Australasian Meat Industry Employees Union v G & K O'Connor Pty Ltd[17], a Full Bench held that, whilst the "WR Act excludes a decision to certify an agreement from the concept of an award, ... a decision certifying an agreement is comprehended by other words in s.111(1)(f), specifically the terms "order" and "other decision of the Commission".[18]

[12] We agree with the observation of the Full Bench in Meat and Allied Trades Federation of Australia v The Australasian Meat Industry Employees Union and Others[19] that what constitutes an "order" as that word might appear in the legislation "will doubtless vary and will depend upon the specific context in which it appears and the nature and function of the body empowered to make the order".[20] However, what, in our view, is abundantly clear from these decisions is that a decision of a member of the Commission that effectively disposes of the proceedings before the Commission (at least in a final manner) is properly to be described as an "order" for the purposes of s.45(1)(b) of the WR Act.

[13] The certificate in this case was issued pursuant to s.170CF of the WR Act. Section 170CF(1) requires the Commission to attempt to settle any s.170CE(1) application by conciliation. The section goes on to provide -

"(2) If the Commission is satisfied that all reasonable attempts to settle the matter by conciliation are, or are likely to be, unsuccessful so far as concerns at least one ground of the application, the Commission:

(a) must issue a certificate in writing stating that it is so satisfied in respect of that ground or each such ground; and

(b) must indicate to the parties the Commission's assessment of the merits of the application in so far as it relates to that ground or to each such ground; and

(c) if the Commission thinks fit, may recommend that the applicant elect not to pursue a ground or grounds of the application (whether or not also recommending other means of resolving the matter) ; and

(d) if the Commission considers, having regard to all the materials before the Commission, that the application has no reasonable prospect of success, it must advise the parties accordingly.

(a) the ground or one of the grounds of the application is the ground referred to in paragraph 170CE(1)(a); and

(b) the Commission has indicated that the applicant's claim in respect of the ground so referred has no reasonable prospect of success;

the Commission must invite the applicant to provide further information in support of that ground within a period specified by the Commission.

(4) If, in relation to an application to which subsection (3) applies:

(a) the applicant does not provide further information regarding the applicant's claim in respect of the ground referred to in paragraph 170CE(1)(a); or

(b) after consideration of the original application and the further material provided by the applicant in support of that ground;

the Commission concludes that the application has no reasonable prospect of success at arbitration, it must issue a certificate to that effect.

(5) If the Commission issues a certificate under subsection (4) in respect of an applicant's claim in respect of the ground referred to in paragraph 170CE(1)(a), the application is dismissed, insofar as it relates to that ground, with effect from the date of issue of the certificate."

[14] Sub-section (5) only comes into operation if a certificate is issued under sub-section (4). However, once a certificate is issued under sub-section (4), the application is dismissed in so far as it relates to the ground referred to in paragraph 170CE(1)(a). Whilst it may be open to an applicant to proceed with the application in a court of competent jurisdiction in so far as it relates to one of the other specified grounds, the issuing of a certificate effectively disposes of the proceedings before the Commission in a final manner. The consequence of the issuing of such a certificate is the determination of a substantive right. In our view, the issuing of such a certificate constitutes an "order" for the purposes of s.45(1)(b) of the WR Act. An appeal may, therefore, be brought under that sub-section against the issuing of such a certificate. In our view, the appeal in this case is competent.

[15] We note also that s.45(3)(aa) provides that, in the case of an appeal under s.45(1)(b) against an order under Part VIA, an appeal may only be instituted "by a person entitled under section 170JF to institute the appeal". Section 170JF(1), in turn, allows for an appeal under s.45 to "be instituted by any person who is entitled under section 170JD to apply for the variation or revocation of an order under this Part". Section 170JD relevantly provides that the "Commission may vary or revoke an order under this Part on application by ... (b) any employee, or representative of any employee, to whom the order relates (whether or not named or described in the order)". An appeal under 45(1)(b) against an order under Part VIA may, therefore, in the case of an employee, only be instituted by the employee to whom the order relates or that employee's representative. A decision to issue a certificate under s.170CE(4) and the issuing of such a certificate clearly relate to the applicant employee. That this is so supports a conclusion that the issue of such a certificate constitutes an "order" for the purposes of s.45(1)(b).

[16] The issue of a certificate under s.186 of the IR Act provided an authority to institute proceedings for breach of a bans clause. The issue of such a certificate, however, did not bind the parties to the relevant application. Nor did it determine their rights or dispose of the proceedings in any final manner. The same may be said about the issue of a certificate under s.166A of the WR Act. Such a certificate is issued as a prerequisite to the commencing of certain actions in tort against an organisation of employees and/or its officers, members or employees. Decisions that the issue of either of these types of certificate is not appealable as an "order made by a member" are not applicable, in our view, to a case such as this where the certificate is one issued under s.170CF(4) of the WR Act. The issue of the latter has an entirely different effect. As we have already stated, that effect is to bring the matter to an end, at least in so far as the application relates to the ground specified in s.170CE(1)(a).

[17] We have so far been concerned with the competency of the appeal under s.45(1)(b). Full Benches of this Commission and its predecessor have consistently held that the issuing of a certificate under s.186 of the IR Act [21] or a certificate under s.166A of the WR Act[22] may be appealable under s.45(1)(g) as constituting a decision by a member that the member has jurisdiction. In our view, there may be circumstances in which an appeal would lie against the issue of a certificate under s.170CF(4) of the WR Act because a question of jurisdiction is raised. However, in this case, the appellant specifically did not seek to pursue the appeal under this paragraph of s.45(1). As we have heard no argument in this respect, we make no finding as to the availability of s.45(1)(g) in this matter.

[18] Section 45(1) of the WR Act makes it clear that an appeal lies to a Full Bench only with leave of the Full Bench. Section 45(2) requires a Full Bench to grant leave if it forms the opinion that the matter is of such importance that, in the public interest, leave to appeal should be granted. If such an opinion is formed, the Full Bench is obliged to grant leave. However, that obligatory basis for granting leave is additional to and does not replace the conventional grounds for granting leave. Such conventional grounds include -

"... whether, in all the circumstances, the decision is attended with sufficient doubt to warrant its being reconsidered by the Full Bench, or whether substantial injustice would result if leave were refused.[23]"

[19] This is the first time that a Full Bench of the Commission has been required to consider the approach to be applied in exercising the power in s.170CF(4). We consider that the public interest requirement of s.45(2) has been satisfied and we grant leave to appeal.

[20] Another preliminary issue requires consideration. The certificate was issued by the Deputy President on 6 August 2002. The Deputy President issued a statement of reasons for his conclusion that the application had no reasonable prospect of success on 26 August 2002. The appellant lodged its notice of appeal on 10 September 2002, expressed to be against the decision to issue the certificate. No objection was taken to the wording of the notice of appeal. Because r.11(2) of the Commission's Rules requires that an appeal be filed within 21 days of the award, order, decision or opinion appealed against, it is clear that the appeal was lodged out of time. The Commission may dispense with compliance pursuant to r.6. The respondent did not seek to be heard in opposition to that course. In the circumstances it is appropriate to waive compliance with the 21 day requirement and we do so.

The principles to be applied to the issue of a certificate under s.170CF(4)

[21] Sections 170CF(2)(d), (3), (4) and (5) were introduced into the WR Act, with effect from 30 August 2001, by the Workplace Relations Amendment (Termination of Employment) Act 2001.[24] They are, therefore, of relatively recent origin. The provisions are set out earlier.

[22] The new provisions impose the following additional obligations on a member of the Commission, once that member "is satisfied that all reasonable attempts to settle the matter by conciliation are, or are likely to be, unsuccessful so far as concerns at least one ground of the application" -

· if the member considers that the application has "no reasonable prospect of success", the member "must advise the parties accordingly" (s.170CF(2)(d)),

· if the member has indicated that the application has "no reasonable prospect of success" in relation to the ground that the termination of employment was harsh, unjust or unreasonable, the member "must invite the applicant to provide further information in support of that ground within a period specified by the" member (s.170CF(3)),

· if either the applicant does not provide further information or, after considering the original application and any further material provided by the applicant, the member concludes that the application has "no reasonable prospect of success" in relation to the ground that the termination was harsh, unjust or unreasonable, the member "must issue a certificate to that effect" (s.170CF(4)), and

· if the Commission issues a certificate the application is dismissed insofar as it relates to that ground (s.170CF(5))

[23] In our view, the act of issuing of a certificate under s.170CF(4) should be considered in its proper context. That context is an application by an employee under s.170CE of the WR Act. Section 170CE(1) entitles an employee to seek relief in respect of the termination of that employee's employment. Subject to the existence of the requisite jurisdiction and merit, that relief may be obtained, depending upon the ground upon which the claim is based, from either the Commission or a court of competent jurisdiction. The exercise of the power conferred by s.170CF(4) is one that brings proceedings in the Commission to an end in a summary way. The legislative intention, in our view, is to provide the Commission with a means of terminating at an early stage applications which, in so far as they relate to the ground specified in s.170CE(1)(a), are manifestly untenable or groundless. It is important to note that the issue before the Commission in such circumstances is not whether the applicant would probably succeed in the substantive application against the employer. It is whether the material before the Commission demonstrates that the substantive application should not be permitted to go to a hearing in the ordinary way because it is apparent that it must fail.

[24] In this respect, the exercise of the power may be seen to be similar, if not equivalent, to the exercise of the power of a court to terminate an action summarily for want of a cause of action. The power of a court to do so may arise from an inherent jurisdiction or from statute or the court's own rules. In the case of the Commission, the power to issue a certificate and thus bring an end to the application, at least in relation to the ground that the termination was harsh, unjust or unreasonable, arises from the WR Act. The effect of the exercise of the power by the Commission is the same as the effect of the exercise of a court's power to summarily dismiss an application.

[25] In General Steel Industries Inc v Commissioner for Railways (N.S.W.) and Others (General Steel)[25], Barwick CJ accepted that "the jurisdiction summarily to terminate an action is to be sparingly employed and is not to be used except in a clear case where the Court is satisfied that it has the requisite material and the necessary assistance from the parties to reach a definite and certain conclusion". His Honour went on to state -

"It is sufficient for me to say that these cases uniformly adhere to the view that the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action - if that be the ground on which the court is invited, as in this case, to exercise its powers of summary dismissal - is clearly demonstrated. The test to be applied has been variously expressed; "so obviously untenable that it cannot possibly succeed"; "manifestly groundless"; "so manifestly faulty that it does not admit of argument"; "discloses a case which the Court is satisfied cannot succeed"; "under no possibility can there be a good cause of action"; "be manifest that to allow them" (the pleadings) "to stand would involve useless expense".

At times the test has been put as high as saying that the case must be so plain and obvious that the court can say at once that the statement of claim, even if proved, cannot succeed; or "so manifest on the view of the pleadings, merely reading through them, that it is a case that does not admit of reasonable argument"; "so to speak apparent at a glance".

As I have said, some of these expressions occur in cases in which the inherent jurisdiction was invoked and others in cases founded on statutory rules of court but although the material available to the court in either type of case may be different the need for exceptional caution in exercising the power whether it be inherent or under statutory rules is the same. Dixon J. (as he then was) sums up a number of authorities in Dey v. Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62 where he says (at p.91): "A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury. The fact that a transaction is intricate may not disentitle the court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process." Although I can agree with Latham C.J. in the same case when he said that the defendant should be saved from the vexation of the continuance of useless and futile proceedings (at p 84), in my opinion great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal. On the other hand, I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff's claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed.[26]"

[26] In Fancourt and Another v Mercantile Credits Limited[27], the High Court observed that the "power to order summary or final judgment is one that should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried".[28] Further, in Webster and Another v Lampard[29], the High Court said that "[n]owhere is that need for exceptional caution more important than in a case where the ultimate outcome turns upon the resolution of some disputed issue or issues of fact".[30]

[27] That a similarly strict test should be adopted by this Commission in the exercise of its powers under s.170CF(4) gains support from the decision of the Full Court of the Federal Court in Paul Barbaro v Human Rights & Equal Opportunity Commission and Another.[31] The Court was there concerned with an appeal from an order summarily dismissing an application for judicial review. The primary judge had dismissed the application for judicial review on the basis that "there was no reasonable prospect of the substantive application succeeding".[32] Referring to the decision in General Steel, the Full Court stated that the test to be applied in such cases "is a strict one designed to ensure that claims that may possibly have merit are not summarily dismissed". The Court went on to find that "the primary Judge had the appropriate strict test in mind when he found that the application for judicial review had `no reasonable prospect of success'". It would, therefore, appear that the strict test for determining whether or not an application for judicial review should be summarily dismissed is, as is the case for the issue of a s.170CF(4) certificate, whether the substantive application has no reasonable prospect of success. This is the term that is used in s.170CF(4) to describe the conclusion that the Commission must reach before an obligation arises to issue the requisite certificate.

[28] The manner in which such a conclusion is to be reached is again governed by the relevant context. The conclusion is to be reached after an attempt has been made to settle the matter by conciliation (s.170CF(1) & (2)). The process of conciliation does not, of course, involve a formal hearing and the taking of evidence. Its function is directed towards the resolution of the matter by amicable agreement. During the process, concessions may well be made for the purpose of achieving such a resolution. Should the matter not be resolved by conciliation, such concessions would not be binding upon a party in any subsequent arbitration. It was recently recognised by a Full Bench in Fletcher v Crest Engineers Australia Pty Ltd[33] that "... conciliation conferences ... may proceed on material which is distinguishable from that relied on in formal hearings". The conciliator is not limited by the scope of the application itself. Agreement with respect to matters which may not be within the province of a potential arbitration may assist in bring about a resolution. The classic examples are the provision of a reference and the making of an apology for the manner in which the termination was effected.

[29] The conclusion envisaged is one that relates to the merits of the application. It should be emphasised, however, that, in considering the merits, the Commission has not had the benefit of sworn evidence and is not, therefore, in a position to make findings of fact on contested issues. The fact that the member is involved in conciliation and not arbitration provides a sound reason against the member embarking on a detailed consideration of the substantive case for the purposes of reaching a conclusion under s.170CF(4). A detailed exploration of the allegations and counter-allegations of the parties may unnecessarily prolong the proceedings overall with consequent waste of time and resources and lead thereby to the frustration of the objective which the provisions in question are designed to achieve. Furthermore, and speaking generally, it would be wrong if an applicant's right to have his or her application determined by arbitration was abrogated by a procedure in which findings of fact were made without proper process. The legislature could not have intended such a result.

[30] We draw attention to the terms of s.170CF(3). If the Commission has indicated that the applicant's claim has no reasonable prospect of success on a particular ground it is required to invite the applicant to provide further information in support of that ground. The Commission is not required to invite the respondent to provide further information to reinforce the Commission's view. This omission reinforces the view that in considering whether there is a reasonable prospect of success primary consideration should be given to the applicant's own case. The provision of further material by the respondent is not contemplated by the section nor can we envisage circumstances in which it would be necessary.

[31] It is also important to point out that while the determination of an application for relief in relation to termination of employment on the basis that the termination was harsh, unjust or unreasonable may involve findings of law and findings of fact it may also involve value judgements about conduct. That is an additional matter to be borne in mind in assessing whether the application has any reasonable prospect of success.

[32] We reiterate that, in our view, in considering whether the requisite conclusion should be drawn, the Commission should proceed with exceptional caution and only draw that conclusion where, on all the materials before the member, the substantive application is manifestly untenable or groundless. Where, on those materials, there is a real issue of fact to be determined and that issue is relevant to the resolution of the substantive application, it would be unlikely that a conclusion could be formed that the application has "no reasonable prospect of success at arbitration".

[33] One further matter requires comment at this stage. Conciliation conferences are ordinarily conducted in private and no record is kept. It is desirable that, in a conciliation conference, the parties genuinely pursue attempts to resolve the matters. To this end, a party should be encouraged and should be able to speak frankly without fear of being disadvantaged in later arbitral proceedings by what was said by that party in such a conference. That public interest consideration may not ordinarily warrant, as a matter of discretion, the rejection of evidence of whatever was said or done in conciliation proceedings where that evidence is adduced to support independent proceedings for contempt of court.[34] However, the same consideration dictates that conciliation proceedings under s.170CF, subject to waiver by a party, either express or implied, have and retain the privilege of being conducted in confidence and without prejudice. Further, it is possible that the Commission may merely issue a certificate without reasons.[35]

[34] We can foresee a potential difficulty arising for a Full Bench in an appeal against the issue of a certificate where there is no record of the proceedings in conference and no reasons are given for the decision to issue the certificate. It would be a matter for any Full Bench which is faced with such a quandary. However, in our view, in such circumstances, a Full Bench would need to consider hearing at least an outline of the employee's substantive case in order to determine whether the requisite strict standard had been applied. In the case before us, we have had the benefit of the substantial material that was before the Deputy President.

[35] We have had regard to the original file in order to establish the sequence of relevant events. The appellant's employment was terminated by the respondent on 26 April 2002. He lodged an application for relief in relation to the termination on 11 April 2002. There was a conciliation conference before Mr Negus on 1 May 2002 and further conferences before Deputy President McCarthy on 6 June and 24 June 2002. For the purpose of the latter conference Deputy President McCarthy requested that the parties provide written submissions in support of their positions. On 26 June 2002 the Deputy President informed the appellant, through his legal representative, that he considered that in so far as the application was based on the ground that the termination was harsh, unjust or unreasonable it had no reasonable prospect of success. He invited the appellant to provide any further information to him in support of the application. The appellant provided further material under cover of a letter dated 16 July 2002. In his certificate issued on 6 August 2002, the Deputy President outlined his assessment of the merits of the application and the basis for his conclusion that the application had no reasonable prospect of success in relation to the ground that the termination was harsh, unjust or unreasonable relevantly in the following terms -

"After considering the original application, the conciliation proceedings on 6 June 2002 and 24 June 2002, the written material provided by the parties for the conference on 24 June 2002, and the further information provided by the applicant on 16 July 2002, I have formed the view that:

(a) There was a valid reason for the termination of the applicant's employment, which related to the conduct of Mr Wright.

(b) If there were any inadequacies on the part of the respondent with respect to notifying the applicant of the reason or providing the applicant with sufficient opportunity to respond, they were not such that the applicant's claim would have a reasonable prospect of success at arbitration.

(c) Other matters that I regard as relevant and that I have taken into consideration include:

(i) The nature of the respondent's operations and related responsibilities.

(ii) The responsibilities associated with the applicant's position.

(iii) The applicant's knowledge of his responsibilities.

(iv) The extent of trust expected and required by the respondent of its officers."

[36] In his statement of reasons issued on 26 August 2002, the Deputy President expanded upon the above outline. In doing so, he canvassed the legislative background of s.170CF(4) and concluded -

"[11] The provisions of the Act and the intent of Parliament are clear and consistent, viz. that to prevent unnecessary and avoidable litigation, the certificate issued under s.170CF should state that there is no reasonable prospect of success at arbitration, if that is the conclusion that is reached. Procedural fairness requirements and the "fair go all round" obligations under the Act are relevant to the interests of both the employer and employee as it can be an expensive and time-consuming exercise to have a matter of this nature proceed to arbitration. It is not a matter of simply letting a litigant have his day in court regardless of the matter's merit, requiring the employer to defend the matter because of that desire. There must be a reasonable basis to arbitrate and that basis must be that the Commission concludes that there is a reasonable prospect of success after the requirements of s.170CF have been met. I see that there is an obligation on the Commission to sift out claims on this basis.

[12] Of course, the Commission must be in a position to make that conclusion. If the facts are substantially disputed, it may not be able to make a conclusion without accepting formal submissions and evidence in arbitration. But if the applicant's own version of the facts are such that, in the Commission's view, there is no reasonable prospect of success, then a certificate must be issued to that effect under s.170CF(4) of the Act."

[37] It appears to us that the Deputy President's formulation of the appropriate test in that last paragraph does not differ in substance from our view as expressed earlier. The question is whether or not the Deputy President applied that test.

[38] In his statement of reasons, the Deputy President identified what he described as matters of "common ground between the parties". Identification of matters of common ground perhaps highlights one of the major difficulties faced by the Commission in deciding whether or not to issue a certificate. Matters may become "common ground" during a conciliation conference purely as a result of concessions made for the purposes of conciliation. Should the matter go to arbitration, such concessions may well be withdrawn and matters that were so conceded may become strongly contested. Be that as it may, from an examination of the material that was before the Deputy President in this matter, we agree with the appellant that this is a misdescription of the matters so identified. A number of those matters were challenged by the appellant in his written submissions provided for the purpose of the conciliation conference held on 24 June 2002. It is sufficient to refer to one matter only. The Deputy President found that it was common ground that:

"From 1997 to 2001 the applicant was involved in a business (Horizon Lubrication) with his brother-in-law that dealt with exports, so had the potential to put him in a position where a conflict of interest could arise. It was against ACS policy for the applicant to be involved in a private enterprise that had the capacity to compromise him in his role at ACS and the applicant had decided not to inform ACS of this involvement. ACS did not become aware of the applicant's involvement in this business until 2001.[36]

The appellant had denied that his involvement in the business was such as to raise a potential conflict of interest, alleging that he was not involved in the day to day conduct of the business at all. It appears to us that the Deputy President's finding that there was common ground is erroneous.

[39] There are other matters which in our view indicate the proper test was not applied. The appellant had been employed with the employer for some 25 years. The Deputy President had regard to that lengthy period of service. In doing so, he accepted that length of service might, in the circumstances of this case, be a two-edged sword as far as the appellant's claim was concerned. In our view, this is a matter that would be best left to be determined by arbitration. We make the same comment with respect to the contention by the appellant in the proceedings before the Deputy President that there had been some condonation by the employer of at least some of the conduct which was said to justify termination of employment. A decision on such issues should normally be preceded by evidence and submissions.

[40] The matters we have referred to in the preceding two paragraphs, demonstrate that the appellant's substantive application was not manifestly untenable or groundless. It follows that the Deputy President made an error in the decision-making process.

[41] We also note that the procedure followed by the Deputy President in relation to the conciliation conference of 24 June 2002 required the parties to lodge with the Commission written submissions. The parties were not, however, required to exchange copies of such submissions. In fact neither party saw the other's submissions prior to the appeal proceedings. Each party, therefore, participated in the conference without having read the other party's written submission. We make no comment as to the content of those submissions or as to the effect those submissions might have had on the Deputy President's decision. We would, however, make two observations.

[42] Firstly, the procedure resulted in an informal arbitration. That in turn encouraged, in our view, the making of findings rather than the application of the appropriate test. As we have indicated above, on the material before us it appears that the Deputy President made findings on questions of fact which were in contest.

[43] Secondly, and perhaps more importantly, the fact that the appellant was not provided with the respondent's material may have prejudiced the appellant's position. For that reason the procedure was also unfair. Termination of employment is a serious matter for most, if not all, employees. Section 170CE of the WR Act provides an employee with the opportunity to seek redress for such termination. The issue of a certificate under s.170CF(4) removes that opportunity to a substantial and significant extent. In the course of the determination of an application, the applicant is entitled to be heard in relation to matters alleged to be adverse to the application. The applicant is also entitled to know the extent of the matters so alleged. Those entitlements should not be diminished in the implementation of the process described in s.170CF(3) and (4). In our view fairness required that the appellant be given the opportunity to comment on the respondent's submissions.

[44] The respondent submitted that the appellant was aware of the Deputy President's request that both parties provide an outline of submissions and ought reasonably have expected such an outline to exist. It was contended that the onus was therefore on the appellant to seek access to the respondent's outline. It was also submitted by the respondent that the belatedness of the appellant's complaint about the procedure stands against the appellant on the merits of the appeal. While it is true that the appellant ought reasonably to have known that the Deputy President had received an outline from the respondent, we do not think the submission based on the appellant's inaction should be accepted. On the material before us the appellant was not aware until 26 June 2002, two days after the conference, that his application was in jeopardy of early dismissal. Prior to that, of course, the respondent's outline was only of interest in that it might have given some indication of the possibility of the application being settled. Termination of the application was not in contemplation. After 26 June the appellant might reasonably have taken the view that it was not open to him to do other than what was then asked i.e. provide further information. In the circumstances we do not think it would be fair to hold the appellant accountable for this error in procedure.

[45] For the reasons set out above, we consider that the Deputy President was in error in concluding that the appellant's application had no reasonable prospect of success in respect of the ground referred to in s.170CE(1)(a) and in issuing the certificate. We quash the certificate issued by the Deputy President on 6 August 2002. Because of the conclusions which the Deputy President has expressed about the merits of the appellant's application rather than remit the matter to him we think it is more appropriate that another member of the Commission deal with the application. Pursuant to s.45(7)(c), we direct Commissioner O'Connor to deal with the appellant's application pursuant to s.170CF.

D. Heldsinger of counsel and E Carlose for Thomas Wright.

A. Jenshel of counsel for the Australian Customs Service.

2 The Notice of Appeal both as originally filed and as subsequently amended states that the appeal is against the decision of 6 August 2002 to issue a certificate that the appellant's s.170CE application had no reasonable prospects of success.

3 [1985] HCA 31; (1985) 155 CLR 513.

4 [1985] HCA 31; (1985) 155 CLR 513, at 519 (Gibbs CJ), at 526 (Mason J).

5 (1989) 32 IR 229 (Coldham J, MacBean DP and Griffin C).

6 (1989) 32 IR 229, at 231.

7 Print J3193, 29 June 1990 (Peterson J, Moore DP and Turbet C).

8 (1991) 39 IR 41, 1991/5 CAR 243, Print J7846, 24 May 1991 (Ludeke J, Moore DP and Hoffman C).

9 (1991) 39 IR 41, at 42-43, 1991/5 CAR 243, at 245.

10 (1991) 39 IR 41, at 44-45, 1991/5 CAR 243 at 247.

11 The Australasian Meat Industry Employees Union and Others v Meat and Allied Trades Federation of Australia 1991/7 CAR 546, Print J8528, 26 July 1991 (Keogh DP, Moore DP and Oldmeadow C).

13 (1993) 47 IR 172, Print K6365, 20 January 1993 (Munro J, Williams SDP and McDonald C).

14 (1993) 47 IR 172, at 179-180.

15 Print M2607, 8 June 1995 (Hancock SDP, Harrison DP and Jones C).

16 (2001) 106 IR 327, Print PR904139, 11 May 2001 (Boulton J, Lacy SDP and Hoffman C).

17 Print R8918, 8 September 1999 (Giudice J, Ross VP and Lewin C).

18 Print R8918, 8 September 1999 (Giudice J, Ross VP and Lewin C), para [12]. See also Confectionery Workers and Food Preservers Union of Australia v National Union of Workers and Peck's Australia Pty Limited Print K8536, 23 July 1993 (Williams DP).

19 (1991) 39 IR 41, 1991/5 CAR 243, Print J7846, 24 May 1991 (Ludeke J, Moore DP and Hoffman C).

20 (1991) 39 IR 41, at 42, 1991/5 CAR 243, at 245.

21 The Australasian Meat Industry Employees Union and Others v Meat and Allied Trades Federation of Australia 1991/7 CAR 546, Print J8528, 26 July 1991 (Keogh DP, Moore DP and Oldmeadow C).

22 Western Australian Builders' Labourers, Painters and Plasterers Union v Wettinger Homes (1996) 70 IR 85, Print N5580, 14 October 1996 (McIntyre VP, Hancock SDP and O'Connor C); Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Australia and Others v Mobil Oil Australia Limited and Others (1996) 72 IR 27, at 29, Print N8195, 20 January 1997 (Munro J, Maher DP and Leary C); Construction, Forestry, Mining and Energy Union v Coal & Allied Operations Pty Ltd (1997) 77 IR 142, at 143, Print P5522, 30 September 1997 (McIntyre VP, Harrison SDP and Foggo C); Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Workers Union v Transfield Obayashi Joint Venture (1999) 94 IR 1, at 18, Print R3884, 19 April 1999 (Ross VP, Watson SDP and Frawley C), para [18].

23 Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission (1998) 84 IR 314, 333; see also Wan v Australian Industrial Relations Commission [2001] FCA 1803; (2001) 116 FCR 481 at 489, para 30.

24 Act No. 100 of 2001, Schedule 1, items 13 and 14.

25 [1964] HCA 69; (1964) 112 CLR 125.

26 [1964] HCA 69; (1964) 112 CLR 125, at 129-130.

27 [1983] HCA 25; (1983) 154 CLR 87.

28 [1983] HCA 25; (1983) 154 CLR 87, at 99.

29 [1993] HCA 57; (1993 177 CLR 598.

30 [1993] HCA 57; (1993 177 CLR 598, at 603.

31 Unreported, [1998] 1543 FCA, 25 November 1998 (Black CJ, Von Doussa and Mansfield JJ.

32 Paul Barbaro v Human Rights & Equal Opportunity Commission and Another Unreported. [1998] 573 FCA, 29 May 1998 (O'Loughlin J.

33 Print PR923596, 15 October 2002 (Marsh SDP, Blain DP and O'Connor C).

34 Australian Building Construction Employees' and Builders Labourers' Federation and Others v Viner and Others [1982] FCA 131; (1982) 43 ALR 189, 63 FLR 253, 2 IR 53.

35 Although, in this respect, under Rule 46, a party to proceedings under Subdivision B of Division 3 of Part VIA of the WR Act may, within 7 days of the date of a decision, request, in writing, the member who made the decision to give the party a statement of the reasons for the decision.