Australian Social Welfare Union South Australian Branch v Bryan Vincent Shillabeer and Public Service Association of South Australia Incorporated No. SCGRG 92/1139 Judgment No. 3790 Number of Pages 10

[1992] SASC 3790

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA MULLIGHAN J

CWDS
Administrative law - judicial review on grounds of ultra vires or defective exercise of powers - Judicial review - industrial law - decision of Registrar that alteration to rules of an Association be registered over objections - application for judicial review on the ground that Registrar's decision was wrong in law - decision made over three years ago - intervening appeal applications for leave to appeal refused - application for extension of time in which to apply for judicial review - application refused - no reasonable prospect of success of substantive application - application dismissed. Federated Clerks Union of Australia and Anor v Industrial Commission of SA and Public Service Assoc of South Australia Inc (1990) 53 SASR 524 and Public Service Association of South Australia v Federated Clerks' Union of Australia, South Australian Branch (1991) 65 ALJR 610 referred to. Industrial Relations Act 1972 ss 95, 104, 116(2) and 121 and Supreme Court Rules 1987.

HRNG ADELAIDE, 20 August 1992 #DATE 24:12:1992
Counsel for plaintiff:        Mr P Heywood-Smith
Solicitors for plaintiff:     David Henderson Wilson
Counsel for defendant:        Mr D J Bleby QC with
  Mr P M Jakobsen
Solicitors for defendant:     Moloney and Partners
No appearance by defendant Shillabeer

ORDER
Application refused.

JUDGE1 MULLIGHAN J By summons dated 15th May 1992 as amended the plaintiff seeks judicial review of an order made on 21st July 1989 by the first defendant, the Industrial Registrar appointed pursuant to s.48 of the Industrial Relations Act 1972, whereby he registered alterations to the rules of the second defendant. The plaintiff seeks orders, in the nature of certiorari and mandamus, that the order be quashed and that the first defendant reconsider the application of the second defendant for alterations to its rules in the light of reasons given by this court. As the application for judicial review is made outside the period of six months provided in R.98.06 of the Supreme Court Rules 1987, the plaintiff seeks an extension of time in which to bring the application. The second defendant opposes the application for judicial review and for an extension of time and has applied for orders striking out or dismissing the application pursuant to R.3.04(b) (as an abuse of the process of the court) and R.98.05(3) (as there is no reasonable prospect that an order in the nature of judicial review would be granted). 2. These applications came on for hearing by a Master and were referred to a Judge. 3. In order to resolve the various issues raised at this stage of the proceedings, it is necessary to set out briefly the history of the application of the second defendant to alter its rules. Both the plaintiff and the second defendant are unions and associations registered under Division 1 of Part IX of the Industrial Relations Act 1972. The plaintiff was registered in 1978 to cover "the industry of professional social work" which, in 1986, was altered to "the industry of social welfare work". In 1989 it had about 300 members, four of whom were employed by the Crippled Children's Association of South Australia Incorporated and 38 of whom were employed by Spastic Centres of South Australia Incorporated. The second defendant has a large membership. The proposed alteration to its rules was to add these two organizations. The effect was to allow an unlimited number of persons employed by them to be members of the second defendant including persons entitled to be members of the plaintiff. The second defendant applied to the Industrial Registrar to register this alteration to its rules pursuant to s.121 of the Act and four associations, including the plaintiff, objected to the registration. Pursuant to s.121(5) of the Act, the Industrial Registrar may refuse the application:-
    "(a) if, in the Registrar's opinion, the addition to ...
    or variation of, the rules would prejudicially affect the
    members of the applicant association or any other registered
    association;
    (b) for any reason for which an application by an
    association for registration could be refused; or
    (c) if for any other reason it is, in the opinion of the
    Registrar, proper that the application should be refused." 4. Two of the objectors withdrew their objections and the Registrar heard the application. The plaintiff, the other remaining objector, the Federated Clerks Union of Australia South Australian Branch ("the FCU") and the second defendant, were represented by counsel. The Registrar granted the application and allowed registration of the alteration. In his reasons for decision, he said that:-
    "... the thrust of the objection by (the plaintiff) is that
    its efforts to expand its membership in the two entities
    concerned would be prejudiced if the application was granted,
    and that, in turn, would prejudicially affect its existing
    members because, being a small association with limited
    resources, any improvement in services could only come from
    funds obtained through increased membership. It was also put to
    me on behalf of (the plaintiff) that it could lose members if
    the application was granted." 5. The Registrar accepted that the plaintiff would be in direct competition with the second defendant for members and may not be able to expand its membership at the two organizations, but he rejected the contention that its members would be prejudicially affected for that reason because, as he expressed it, "You can't lose what you haven't got". Furthermore, he found that the evidence suggested that the existing members of the plaintiff would remain as members and that there was no evidence to suggest that they would receive less service should the application be granted. Consequently, he found that the members would not be prejudicially affected. He went on to consider whether the employees of the two organizations could "conveniently belong" to associations other than the second defendant and, if so, whether registration of the alteration should be refused for that reason. He was satisfied that the majority of the persons sought to be covered by the second defendant could not be covered by the plaintiff and the other objector let alone conveniently belong to them and, consequently, it was unnecessary "to turn to the factors which decide the question of 'conveniently belong'". 6. Lastly, the Registrar was not satisfied that there was any other reason to refuse the application. 7. The "conveniently belong" consideration was presumably raised because of the provisions of s.116(2) of the Act which provides:-
    "116.(2) The Registrar will, whether or not an objection
    has been made by any registered association, unless in all the
    circumstances it is, in the Registrar's opinion, undesirable to
    do so, refuse an application to register an association where,
    in the same locality and connected with the same industry, there
    exists a registered association to which, in the Registrar's
    opinion, the members of the association applying for
    registration (referred to in this section as 'the applicant
    association') might conveniently belong, but if the registered
    association is registered under the Commonwealth Act or is a
    branch or forms part of an organization so registered and the
    applicant association is registered under the Commonwealth Act
    or is a branch or forms part of an organization so registered,
    the Registrar cannot refuse to register the applicant
    association merely on the ground that its members might
conveniently belong to the other association." 8. The Registrar was prepared to consider this matter because he took the view that an association:- "... should not be able to extend its coverage under an application to alter its rules when it might well be precluded from obtaining the coverage sought under or on application for registration ...". The plaintiff and the FCU sought leave to appeal to the Full Industrial Commission pursuant to s.104 of the Act. That application was heard on 8th September 1989 and was refused, by majority, on 24th November 1989. 9. The majority, Deputy President Allan and Commissioner Perry, took the view that the decision of the Registrar was made in the exercize of a judicial discretion and that no grounds had been established, on the well recognized principles, to interfere with the manner in which he had exercized the discretion. They doubted that the "conveniently belong" question was relevant to an application under s.121, but in any event the Registrar had considered it and had done so appropriately in the circumstances. Deputy President Lee would have granted leave to appeal as he took the view that the "conveniently belong" test did apply to an application under s.121 in the circumstances, and the Registrar did not consider that matter adequately. 10. The plaintiff and the FCU then sought judicial review of the decision of the Full Commission which application was heard by the Full Court of this Court. On 7th June 1990 the application was granted and the order of the Full Industrial Commission refusing leave was quashed and the matter was remitted for re-hearing. The Full Court decided that the majority of the Full Industrial Commission was in error in concluding that the Registrar was exercising a "very wide discretion" in granting the application. Mohr J, who gave the leading judgment, said, Federated Clerks Union of Australia and Anor v Industrial Commission of SA and Public Service Assoc of South Australia Inc
(1990) 53 SASR 524 at pp.527-528:-
    "The first question to be decided is whether or not this
    was a correct description of the Registrar's function in the
    circumstances of this case.
    In my opinion it is not correct. It is clear from the reasons
    given by the Registrar that he found none of the grounds
referred to in s.121(5)(a), (b) or (c) to have been made out. In
    other words he decided questions of fact which, having been
    decided in the way in which they were, precluded him from doing
    other than grant the application. In my opinion the clear
meaning of s.121(5) can be stated thus:
    If having heard evidence and submissions you find any of the
following grounds (viz those set out in s.121(5)(a), (b) and (c)
    made out then you will turn to consider whether or not you will
refuse the application. The opening words of s.121(5) 'The
    Registrar may refuse an application under this section if ...' mean
    that if none of the matters in (a), (b) or (c) are made out
    then there is no discretion to refuse. The discretion imported
    by the word 'may' in the opening words of the subsection only
    arises if one or more of the matters in (a), (b) or (c) are made
    out.
    For the foregoing reasons I am of the opinion that the
    majority of the Full Commission proceeded on an incorrect view
    of the task they were undertaking in considering whether or not
to grant leave." 11. The second defendant sought special leave to appeal to the High Court. Special leave was granted and the appeal was heard on 7th and 8th February 1991. Judgment was given on 29th August 1991: Public Service Association of South Australia v Federated Clerks' Union of Australia, South Australian Branch (1991) 65 ALJR 610. The appeal was dismissed. 12. In effect, all members of the Court held that the Full Commission erred in concluding that the Registrar was exercizing a wide discretion. Whilst the minority, Deane and McHugh JJ, would have allowed the appeal on the ground that the Full Commission did not make any jurisdictional error so as to justify judicial review, they acknowledged that the Full Commission did misunderstand the nature of the decision of the Registrar. Brennan J discussed the role of the Registrar in discharging his function under s.121(5) and accepted that the "conveniently belong" test was a material matter upon an application to register an alteration to rules of an association: p.612. He went on to say that the Full Commission was vested with jurisdiction to determine for itself:
    "(i) the 'conveniently belong' issue and, if that be
    determined adversely to the applicant for registration, whether
    in the opinion of the Commission it is nevertheless undesirable
    to refuse registration (par (b));
    (ii) whether the proposed rule alteration would prejudicially
    affect members of the applicant association or of any other
    registered association (par (a)); and
    (iii) whether there is any other reason making it proper to
    refuse registration (par (c))." 13. With respect to the "conveniently belong" question Dawson and Gaudron JJ in their joint judgment said, at p.621:
    "Thus far it has been convenient to refer to the issues,
    raised by s 116(2) of the Act as the 'conveniently belong'
    question. It is, however, important to bear in mind that it
    involves three distinct issues. The first is whether there is a
    registered association to which the members or the prospective
    members of the applicant association might belong. That is a
    question of fact and of interpretation of the eligibility rule
    of the association to which it is said those members might
    belong. The second is that of convenience, a matter upon which
    the Registrar is required to form an opinion. The third is
    whether the Registrar is of the further opinion that it is
    undesirable to refuse registration. The Full Commission again
    heard the application for leave to appeal in December 1991 and
    gave judgment on 11th March 1992. It was comprised of the same
    members and once again refused leave to appeal by majority.
    Deputy President Allan, with whom Commissioner Perry agreed,
    after reviewing the judgments of the High Court referred to the
    passage of the joint judgment of Dawson and Gaudron JJ, to
    which I have referred and went on to say:- "I think it must
    follow that, if the answer to the first issue is negative, no
    need arises to move to the second issue; that is the issue of
    convenience; and, as I read his reasons for decision, that is
    the course followed by the Registrar. He decided the first issue
    against the appellants, and that is why he said:- 'In the
    circumstances it is unnecessary to turn to the factors which
    decide the question of "conveniently belong"'. I see nothing wrong with that approach. I think it is not in any way indicative of a misunderstanding or misapplication of the 'conveniently belong' principle." 14. He then went on to consider other contentions of Mr. Heywood-Smith, who appeared for the plaintiff and the other objector, which he rejected. He concluded that the plaintiff, and the other objector, did not have a reasonably arguable case. 15. Deputy President Lee would have given leave to appeal. He concluded that the employees of the two organizations could be divided into two categories, those who are eligible to be members of, and could conveniently belong to, the plaintiff and the other objector and those who are not eligible to be members of either of them. Those in the second category out-number those in the first. He went on to say:-
    "I take the Registrar to mean by those words that the,
    predominance of employees in the second category provides a
    sufficient ground, on its own, to rule against the appellants'
    objection to registration of the amendment based upon the
combined operation of sections 121(5)(b) and 116(2) of the Act.
    In my opinion, it is reasonably arguable that, in overlooking or
    ignoring in relation to employees in the first category the
    consequence of competition between associations and the
    potential for demarcation disputes, the Registrar fell into
error." 16. It is against that background that the issues raised by the respective applications of the plaintiff and the second defendant must be resolved. 17. The FCU has not joined in the present application for judicial review. The plaintiff brings this application as it acknowledges correctly, in my view, that s.95 of the Industrial Relations Act prevents judicial review of the second decision of the Full Commission. That section provides:-
    "95 Except as is provided by s.96 -
    (a) every award, order or decision of the Commission ... is
    final and no such award, order or decision can be removed to
    any other court; and
    (b) no award, order or proceeding of any kind of the
    Commission ... can be challenged, appealed against,
    reviewed, quashed or called in question except on the ground
    of excess or want of jurisdiction." 18. The policy underlying these provisions was discussed by Deane J upon the appeal against the decision of the Full Court. At p.616 he said:-
    "Clearly, the section was effective to deny to the Full
    Court jurisdiction to entertain the challenge to the Full
    Commission's order unless that challenge was 'on the ground
    of excess or want of jurisdiction' and therefore within the
exception contained in s 95(b). Indeed, as I followed the
    argument, so much was common ground.
Section 95 of the Act manifests a legislative policy that,
    subject only to the exception in relation to 'excess or want of
    jurisdiction', the awards, orders and decisions of the
    Industrial Commission of South Australia should be immune from
    challenge or review in the ordinary courts. Such a legislative
    policy in relation to the decisions of industrial tribunals is
    commonplace in this country. Its rationale is not difficult to
    identify. Industrial tribunals, when they are not themselves
    specialist courts of law, customarily include members who either
    are judges of a court or are possessed of legal training and
    experience comparable to that required of an appointee to
    judicial office: see, eg, Pt III of the Act. Their functions
    commonly extend to the making of awards or orders which lay down
    general standards of conduct which bind whole sections of the
    community in their future conduct relations. The efficient
    discharge of such quasi-legislative functions may well require
    departure from traditional curial methods and procedures. Even
    where the resolution of a narrow actual dispute between
    individual parties is involved, the advantages of compulsory
    mediation or conciliation have been availed of by industrial
    tribunals to an extent unaccepted in most ordinary courts: see,
    eg, s 26. In a context where prompt action - sometimes at a
    tribunal's own initiative (see, eg, s 27) - to prevent and
    resolve disputes is necessary in the public interest, there is
    much to be said for the view that such specialist industrial
    tribunals should be empowered to determine promptly and with
    finality the questions involved in the actual and potential
    industrial disputes which they are called upon to resolve: see,
    eg, Baxter v New South Wales Clickers' Association (1909) 10 CLR
    114 at 161; Bank of NSW v United Bank Officers' Association and
the Court of Industrial Arbitration (1921) 21 SR(NSW) 593 at
    614-615. The delays and expense of proceedings in the ordinary
    courts of this country serve to reinforce such a policy and its
    rationale. Indeed, at least in so far as delay is concerned, the
    present case provides a good example. As has been mentioned, the
    decision of the Registrar was to approve an amendment to the
    Association's eligibility rule. The object of the amendment,
    which was not effective unless and until approved, was to allow
    two groups of employees to become members if they so desired. It
    is now more than two years since the Registrar decided to
    approve the amendment and more than one and a half years since
    the Full Commission disposed of the application for leave to
    appeal. The result of the proceedings in the ordinary courts is
    that the Association still does not know whether the desired

    amendment to its eligibility rule will become effective. Perhaps
    even more important, the members of the two groups of employees
    are still left to speculate about the identity of the union or
unions which they might join." 19. Although Deane J was in the minority these observations are not contrary to the reasons for decision of the majority. Brennan J considered the effect of s.95(b). He said at p.614:-
    "Judicial review on the ground of excess or want of
    jurisdiction is available when a body purportedly acting in
    exercise of jurisdiction has no jurisdiction to act in the
    particular way. Judicial review on that ground stands in
    contrast with judicial review on the ground of a wrongful
    failure or refusal to exercise jurisdiction. In the former case,
    there is no jurisdiction to exercise; in the latter, there is
jurisdiction but no exercise of it. The exception in s 95(b)
    covers the former case; there is no acceptable canon of
    construction by which it can be extended to cover the latter
case. Thus, s 95(b) appears to permit erroneous assumptions of
    jurisdiction to be checked by judicial review, but not erroneous
    refusals to exercise jurisdiction." 20. Dawson and Gaudron JJ expressed themselves this way, at p.622:-
"Privative clauses such as s 95 of the Act are construed
    by reference to a presumption that the legislature does not
    intend to deprive the citizen of access to the courts, other
    than to the extent expressly stated or necessarily to be
    implied: see, for example, Clancy v Butchers' Shop Employees
Union (1904) 1 CLR 181, per O'Connor J, at 204; and Hockey v
Yelland (1984) 157 CLR 124, per Gibbs CJ, at 130, and per Wilson
    J, at 142. See also Anisminic, per Lord Reid, at 170. Thus, a
    clause which is expressed only in general terms may be construed
    so as to preserve the ordinary jurisdiction of a superior court
    to grant relief by way of the prerogative writs of mandamus or
    prohibition in the case of jurisdiction error constituted by
    failure to exercise jurisdiction or by an act in excess of
    jurisdiction.
Section 95 of the Act is a clause which both excludes and,
    with some precision, allows for judicial review. Because it
    expressly allows for review on the grounds of excess or want of
    jurisdiction, it must be interpreted as allowing an 'award,
    order or proceeding' to be reviewed only on those grounds. And
    those grounds are not made out if all that is established is
that there was a refusal or failure to exercise jurisdiction." 21. Consequently, the plaintiff now seeks to challenge the decision of the Registrar made over three years ago. 22. I have taken time to set out not only the history of the application of the second defendant to alter its rules, but the approach taken by the Full Commission on both occasions and observations made upon the High Court appeal as they are pertinent to the issues which are to be decided upon the present application. 23. Mr. Heywood-Smith contended that both the decision of the Registrar and the decision of the Full Commission in refusing leave to appeal were plainly wrong as the "conveniently belong" question had been misunderstood and not properly considered. Neither the Full Court nor the High Court was required to apply the "conveniently belong" test. The majority of the Full Commission, on the second occasion, did not appreciate the argument which the plaintiff wishes to present if leave had been granted and consequently the plaintiff has been denied the opportunity of appropriate consideration of its contention that the Registrar was in error in his approach, although Mr. Heywood-Smith does concede that the Full Commission was informed of the features of the argument. What all this means is that the plaintiff complains that throughout the period since the Registrar made his decision, it has not been able to present and develop its argument. As it contends that the decisions of the Registrar and the Full Commission on the second occasion were plainly wrong, there has been injustice which can only be redressed by permitting the present application to be heard and determined. 24. It must be acknowledged that judicial review of a decision of the Registrar is available even though the Act provides for an appeal, by leave, from an act or decision of the Registrar: s.104. In The Queen v. Di Fazio; Ex Parte General Motors-Holdens Limited (1979) 20 SASR 559 and The Queen v. Cawthorne; Ex parte Federated Clerks' Union of Australia; South Australian Branch (1979) 22 SASR 433 there was judicial review of acts or intended acts of Industrial Magistrates even though there was a right of appeal from their decisions to the Full Industrial Court and a similar privative provision with respect to decisions of that Court. In The Queen v. Chislett; Ex Parte Public Service Association of South Australia Incorporated (1973) 4 SASR 427 it was not suggested that judicial review of an act or decision of the Registrar did not lie because of the existence of an appeal process. 25. However, relief by way of judicial review is a discretional remedy: Ex Parte Foote (1933) SASR 142, The Queen v. Elliott (1974) 8 SASR 329, Re Construction, Forrestry and Mining Employees Union and Anor; Ex Parte Multiplex Constructions Pty. Ltd. (1922) 105 ALR 291. I would not refuse to grant an extension of time within which to bring this application merely because of the length of time since the Registrar made his decision as I am inclined to the view that the plaintiff can be "excused" for the substantial delay as it was caught up in the appeal and other judicial review processes. It was reasonable to pursue the application for leave to appeal and if it had not done so and had promptly sought judicial review of the decision of the Registrar, it is very likely that such relief would have been refused in the exercize of discretion: see The Queen v. Elliott (supra) per Sangster J at p 366 and the cases therein referred to and Re Construction Forrestry and Mining Employees Union and Anor; Ex Parte Multiplex Constructions Pty. Ltd. (supra). However there are other reasons which require the extension of time to be refused. The extension should not be granted if the plaintiff has no removable prospect of succeeding on the substantive application. In my view the plaintiff could not succeed. It seeks to begin again despite the long history of the litigation which I have recited. There is no suggestion that the Registrar or the Full Commission on the second occasion acted in errant or excess of jurisdiction. The plaintiff has not been denied the opportunity of presenting full argument to the Registrar or of pursuing the application for leave to the Full Commission. For present purposes I am prepared to accept that the Full Commission did not hear full argument on the application for leave to appeal, but that is what usually occurs upon applications of that nature. The plaintiff did have, and availed itself of, the opportunity to adequately argue the application for leave by informing the Full Commission of the reason why leave should be granted. The majority rejected that argument. The passages of the judgments delivered by the High Court, which I have mentioned, disclose that the "conveniently belong" question was of relevance and gave some instruction as to how it should be applied. The Full Commission had the benefit of those judgments and referred to them. Even if the majority of the Full Commission wrongly interpreted and applied "the conveniently belong" test, as Mr. Heywood-Smith contends, that could not afford a reason to permit the plaintiff to commence the whole process again. If the application was allowed to proceed it would, in my view, necessarily be referred in the exercize of discretion even if it could be established that there was an error on the part of the Registrar of the nature which ordinarily would admit judicial review. 26. In reaching these conclusions I have not found it necessary to consider the other arguments of Mr. Bleby QC in support of his contention that the extension of time should be refused and the application of the plaintiff dismissed. 27. I refuse the application for an extension of time and I dismiss the application for judicial review.