Alan Rowe, Employment Advocate v National Union of Workers

[1999] FCA 857

FEDERAL COURT OF AUSTRALIA

Alan Rowe, Employment Advocate v National Union of Workers [1999] FCA 857

ALAN ROWE, THE EMPLOYMENT ADVOCATE V THE NATIONAL UNION OF WORKERS & ANOR

NG 867/97

THE HON JUSTICE MARCUS EINFELD AO
SYDNEY
16 JUNE 1999

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 867 OF 1997

BETWEEN:

ALAN ROWE, THE EMPLOYMENT ADVOCATE
Applicant

AND:

THE NATIONAL UNION OF WORKERS
First Respondent

PETER ANDREW HEARNE
Second Respondent

JUDGE:	THE HON JUSTICE MARCUS EINFELD AO
DATE:	16 JUNE 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. At the opening of the case, the applicant sought an amendment to the proceedings to delete the name of Alan Rowe and thereafter to proceed in the name of the Employment Advocate.  I postponed argument about the matter in order to come to grips with what the case was actually about and some of the statutory provisions, but at the end of the applicant's case, the respondents have taken the point that as a matter of law the amendment cannot be granted and that the case must fail because on the evidence, Mr Rowe is no longer the Employment Advocate.  This fact was established when the applicant tendered two affidavits of an officer of the Employment Advocate, which stated that Mr Rowe's term of office had commenced on 11 December 1996 and concluded two years thereafter, and that his replacement, Jonathan Mark Hamberger, was appointed on 17 December 1998 for two years.   It is possible that there was a period of time during which there was no holder of the office and the evidence appears to indicate that that in fact was possibly the case between 11 and 17 December 1998.  However, it is quite unlikely that the people employed by the Employment Advocate ceased to have employment because there was no holder of the office at the time, so the office remained and I suspect that there was an acting officeholder. 

2. Very early in the preparation of this case, long before the hearing, I raised the question as to whether the proceedings should have been taken in the name of Mr Rowe in the first place and whether the statutory scheme had in mind that the person holding the office of Employment Advocate should be taking any proceedings at all.  Those who drafted the proceedings had a little bit on all sides of the argument by naming Mr Rowe and stating that he was the Employment Advocate.  But the courts have in recent years made a number of decisions to depersonalise proceedings brought in the name of people holding official office.  It is now not appropriate, for example, to name the temporary holders of ministerial portfolios as litigants in proceedings, whether as an applicant or prosecutor or as a respondent or defendant, nor is it appropriate to name, for example, particular members of Tribunals who exercise powers and make decisions, but rather to name the particular body itself where it is necessary to have them as a litigant.  Certainly it is the case that holders of official government offices do not take proceedings or issue documents in the name of the office holder.  The various Directors of Public Prosecutions do not issue indictments or other proceedings in their own names.  The Commissioner of Taxation does not issue assessments of taxation in the name of the temporary holder of the office at the time.

3. Senior counsel for the applicant met this position by saying that each case depends upon the nature of the statute.  He correctly said that in some statutes the office holder is constituted as a corporation in which case the consequence is fairly obvious.  In other cases there is provision in the statute for the functions and powers of the particular office holder to attach to the office and not to any individual.  I think there is something in that submission and therefore it is appropriate to go to this particular statute and the way in which this position is established.  I say again by way of explanation that the application made by the applicant in this case was to delete the name of Mr Rowe.  It was not to substitute the name of Mr Hamberger as Mr Rowe's replacement.  That is relevant because a question may arise if an individual has to be named as to when is the time to test the relevant legal criteria.

4. It is conceded that Mr Rowe was holding the office of the Employment Advocate at the time when the proceedings were launched, but that he is no longer in office when these proceedings are being heard.  It would be an extraordinary result, unique in our system, to have a situation where proceedings had to be brought in the name of the individual in office when the proceedings were launched, and then have to be reconstituted when the case was being heard because there had been a change of office holder.  I know of no precedent for that idea.  Obviously, if the name of the person is irrelevant, as I have always thought it probably was, then it does not matter who holds the office at any particular time.  There may be a problem if the office was not held by anybody, as appears to have happened in those few days in December 1998, but if so, the problem does not have to be resolved in this case because that period is irrelevant for these proceedings which were neither launched nor heard then.

5. Section 83BA of the Workplace Relations Act establishes the office. This section appears in Part IVA of the Act headed "The Employment Advocate" and occurs in Division 1 headed "Functions, powers, etc. of the Employment Advocate". Section 83BA simply states that there is to be an Employment Advocate. Section 83BB then sets out the functions of the Employment Advocate and goes on to make specific provisions as to how the Employment Advocate should go about the allocated work. There are then provisions for directions by the Minister, the employment of staff who are employed under the Public Service Act, the power of the Employment Advocate to delegate the functions which the office is entitled to carry out, and provisions to make an annual report to the Minister who must then lay the report on the table of the Parliament. Further on in the statute, there is power for the Employment Advocate to issue proceedings of one kind or another, particularly in relation to matters which deal with freedom of association.

6. The respondents argued that whereas Mr Rowe presumably was entitled to issue the proceedings, he is not entitled to carry them on.  His successor is not entitled to carry them on because they were launched in the name of his predecessor, and there is no power in the Act to constitute the proceedings in the name of the office of the Employment Advocate.  I reject those submissions.  In my view the proceedings should have always been brought in the name of the Employment Advocate and not of Mr Rowe who was merely the temporary holder of the office.  The office constituted by Parliament is the Employment Advocate.  It is the Employment Advocate who is authorised to carry out the various functions laid down for the office in the Act.  It is that office that should be bringing these proceedings, and similar proceedings.  I grant the amendment.  The proceedings will henceforth be constituted as the Employment Advocate against the respondents.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marcus Einfeld AO.

Associate:

Dated:            16 June 1999

Counsel for the Applicant:	Mr J. L. Trew QC and Mr S. B. Lloyd
Solicitor for the Applicant:	Australian Government Solicitor
Counsel for the Respondents:	Mr W. R. Haylen QC
Solicitor for the Respondents:	Ryan Carlisle Thomas
Date of Hearing:	16 June 1999
Date of Judgment:	16 June 1999