CPSU, Community and Public Sector Union v Commonwealth of Australia
[1999] FCA 653
•14 MAY 1999
FEDERAL COURT OF AUSTRALIA
CPSU, Community & Public Sector Union v Commonwealth of Australia [1999] FCA 653
INDUSTRIAL LAW – Interlocutory relief – breach of statutory duty – whether conduct of the respondent contravened the statutory scheme provided by the Public Service Act 1922 (Cth) – whether breach of contract – whether respondent’s intended restructure undertaken for a prohibited reason within the meaning of ss 298L & 298K of the Workplace Relations Act 1996 (Cth) – whether the respondent applied duress contrary to s170WG(1) of the WorkplaceRelationsAct1996 (Cth) in stipulating the signing of an Australian Workplace Agreement to be a precondition to selection for a new position – whether serious issue to be tried – whether proceeding should continue as a representative proceeding – whether Deputy Registrars of the Family Court are officers of the Commonwealth and members of the representative group
Workplace Relations Act 1996 (Cth) ss 170VZ, 170WG, 298K, 298L
Public Service Act 1922 (Cth) s 27, Div 6 of Part III
Federal Court of Australia Act 1976 (Cth) s 33EFederal Court of Australia Amendment Bill 1991(Cth)
Family Law Act 1975 (Cth) ss 37, 37A, 37B, 38A, 38B, 38Q, 38N
The Continuous Improvement in the APS Enterprise Agreement 1995-96
Director-General of Education (NSW) v Suttling (1987) 162 CLR 427, distinguished
Re Winton; Ex p Jolliffe (1987) 17 FCR 89, appliedCPSU, THE COMMUNITY AND PUBLIC SECTOR UNION and OTHERS v COMMONWEALTH OF AUSTRALIA
V 183 of 1999
MARSHALL J
MELBOURNE
14 MAY 1999
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
V 183 of 1999
BETWEEN:
CPSU, The Community and Public Sector Union
First ApplicantGuy Burridge, Dianne Pendergast, Susan Gardiner, Elisa Harris, Andrea Bowler, Julieanne A'Iezzaddin, Joe Pesce, Pam Richards, Brian Leaver, Jane Houston and Helen Jukes
Second ApplicantsAND:
The Commonwealth of Australia
RespondentJUDGE:
MARSHALL J
DATE OF ORDER:
14 MAY 1999
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
In the circumstances the Court makes the following orders:
1.The applicants’ application for interlocutory relief be dismissed.
2.The respondent’s notice of motion be adjourned to 10.15 am on 7 June 1999.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
V 183 of 1999
BETWEEN:
CPSU, THE COMMUNITY AND PUBLIC SECTOR UNION
First ApplicantGUY BURRIDGE, DIANNE PENDERGAST, SUSAN GARDINER, ELISA HARRIS, ANDREA BOWLER, JULIEANNE A'IEZZADDIN, JOE PESCE, PAM RICHARDS, BRIAN LEAVER, JANE HOUSTON AND HELEN JUKES
Second ApplicantsAND:
THE COMMONWEALTH OF AUSTRALIA
Respondent
JUDGE:
MARSHALL J
DATE:
14 MAY 1999
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
On 20 April 1999 the applicants filed an application pursuant to ss170VZ and 298K of the Workplace Relations Act 1996 (Cth) (“the WR Act”) and the accrued jurisdiction of the Court. The application was brought by the second applicants as representative parties. It was stated in the application that:
“The group members to whom this proceeding relates are the Deputy Registrars of the Family Court of Australia…”
The applicants claimed that certain conduct of the Family Court of Australia (“the Family Court”) in relation to its Deputy Registrars was conduct which entitled the applicants to remedies pursuant to the WR Act and at common law. The first applicant is a registered organisation of employees. The second applicants comprise some of the Deputy Registrars of the Family Court.
Two essential complaints were made by the applicants. The first was that the Family Court intended to create and fill new offices of Deputy Registrar by replacing current holders of the office of Deputy Registrar without regard to the statutory scheme provided by the Public Service Act 1922 (Cth) (“the PS Act”) for removing an office holder from her or his office.
The second complaint was that Deputy Registrars are required to enter into an Australian Workplace Agreement (“AWA”) as a condition of appointment to a new office of Deputy Registrar.
On 30 April 1999 and 10 May 1999 the Court heard the applicants’ application for interlocutory relief and the respondent’s notice of motion (“the motion”) in which the respondent sought that the proceeding no longer continue as a representative proceeding under Part IVA of the Federal Court of Australia Act 1976 (Cth) (“the FC Act”).
Background
The Family Court is a superior court of record which is established by the Family Law Act 1975 (Cth) (“the FL Act”). Pursuant to s38A of the FL Act the Chief Justice of the Family Court is responsible for managing the administrative affairs of the Family Court. The Chief Justice is assisted in that undertaking by a Chief Executive Officer (“CEO”) pursuant to s38B of the FL Act. The current CEO is Mr Glare. Under s38Q of the FL Act the CEO has powers equivalent to those of a Secretary of a Department in the Australian Public Service. In accordance with s27 of the PS Act, the CEO is empowered to create and abolish offices within the Family Court.
Section 38N(1) of the FL Act inter alia, creates the offices of:
· Principal Registrar of the Family Court;
· Registrars of the Family Court; and,
· Deputy Registrars of the Family Court.
The holder of each such office is an officer of the Family Court.
Section 38N(2) of the FL Act provides that:
“The officers of the Court, other than the Chief Executive Officer, have such duties, powers and functions as are given to them by this Act or by the Chief Judge.”
There are approximately 50 deputy registrars who are classified as “Legal 2”, which is a classification just below the Senior Executive Service (“SES”) level.
Section 37 of the FL Act provides as follows:
“(1)In relation to a proceeding under this Act, the officers of the Court have such duties, powers and functions as are given by this Act or the Rules of Court or by the Chief Judge.
(2)The Principal Registrar of the Court may, subject to this Act, the regulations, the Rules of Court and any directions of the Chief Judge, give directions to the officers of the Court…in relation to the manner in which the functions and duties of those officers are to be performed and the powers of those officers are to be exercised in relation to proceedings under this Act.”
Section 37A of the FL Act permits the making by judges of the Family Court of Rules of Court which delegate to Registrars and Deputy Registrars certain powers of the Family Court.
Under s37B(1)(c) of the FL Act Deputy Registrars are subject to the control and direction of the Chief Justice, the Principal Registrar and Registrars.
Section 37B(2) of the FL Act states that:
“Without limiting the generality of subsection (1), the Principal Registrar may, subject to this Act and to any directions of the Chief Judge, make arrangements as to the Registrars or Deputy Registrars who are to perform any functions or exercise any power under this Act, under the regulations or under the Rules of Court (including a power delegated by Rules of Court under subsection 37A(1) in particular matters or classes of matters.”
Section 37B(4) of the FL Act provides that:
“Where the Principal Registrar, a Registrar or a Deputy Registrar (in this subsection referred to as the Registrar) has failed to fulfil his or her duty as an officer within the meaning of the Public Service Act 1922 in relation to the performance of a function or the exercise of a power under this Act, under the regulations or under the Rules of Court (other than a power delegated by Rules of Court under subsection 37A(1)), the Registrar may be dealt with under Division 6 of Part III of the Public Service Act 1922 if and only if the Chief Judge requests the person who is the Chief Officer in relation to the Registrar within the meaning of that Act so to deal with the Registrar.”
The current Principal Registrar of the Family Court is Ms Filippello. She has held that office since 9 February 1996. Ms Filippello has had an extensive career with the Family Court. The respondent relied upon an affidavit of Ms Filippello upon which she was not cross-examined.
In that affidavit Ms Filippello makes the following salient points:
· Ms Filippello discharges her responsibility under s37B(2) of the FL Act in consultation with the Chief Justice.
· In consultation with the Chief Justice she issues documentation setting out the arrangements to be put in place.
· Those arrangements deal with the issue regarding which particular Deputy Registrars are authorised to exercise which particular delegations.
· Prior to 1996 Deputy Registrars had not been authorised to undertake divorce lists. To quote Ms Filippello, at that time Deputy Registrars were selected for office:
“on the basis that their work was in the area of dispute resolution and the delegated functions that they exercised were limited and exercised in Chambers.”
· In May 1996 certain Deputy Registrars were authorised to exercise divorce delegations. Ms Filippello prohibited the exercise of that delegation on circuit other than in the most exceptional circumstances.
· Special arrangements are in place in the Hobart, Canberra and Darwin registries where additional delegations over those ordinarily given to Deputy Registrars have been given.
· From June 1996 to June 1997 Deputy Registrars undertook a small part of the Registrars’ workload. Ms Filippello received adverse comments from the legal profession and sources within the Family Court regarding the competence of some Deputy Registrars in the exercise of divorce powers.
· From 1 June 1997 the exercise of divorce powers by Deputy Registrars was significantly curtailed.
· The “s37B arrangements” have remained in place but Ms Filippello authorises each exercise of the powers and the particular Deputy Registrar who is to exercise them.
· A delegation pursuant to Order 36A of the Rules of the Family Court cannot be exercised without an arrangement being in place under s37B of the FL Act.
· Ms Fillipello’s specific approval is required before Deputy Registrars are permitted to sit in a divorce list.
· From 31 May 1999 an interim arrangement is to be put in place for the use of Deputy Registrars in Directions Hearings where a Registrar is unavailable.
In late 1998 the Family Court created a new office of SES Band 2 Registrar. It is intended that the holders of such offices will exercise extended delegations regarding interim matters involving children.
Mr Glare gave evidence, by way of affidavit, that a consequence of the creation of the new Registrar position was that some of the delegations which were exercised by SES Band 1 Registrars would be delegated to Deputy Registrars.
The SES Band 2 Registrar positions have been filled and those officers will commence to exercise their delegated powers on 31 May 1999. Not all SES Band 1 Registrars were selected for the higher position and some have informed Mr Glare that they wish to be considered for “reduction” to the position of Deputy Registrar.
Mr Glare gave the following uncontested evidence concerning the creation of new Deputy Registrar positions:
· The Family Court will create new Deputy Registrar positions “to which the Judges propose to delegate judicial powers beyond those currently exercised by the existing Deputy Registrars”.
· It is proposed that the new positions will have a loading of 2 percent attached to them over the salary of existing Deputy Registrars.
Significantly Mr Glare gave evidence that he had been advised by the Chief Justice “that the additional duties that will be delegated to the new Deputy Registrars are significantly different and enhanced from those currently exercised by the Deputy Registrars so as to constitute genuine new positions rather than the current positions with minor modifications to the duties.”
Mr Glare said that a key selection criterion for the new position is an ability to exercise judgment in a judicial manner. This criterion was described by him as “judicial capacity”. He also said that “the range of powers intended to be delegated to the new Deputy Registrars generally will be wider than those delegated previously”.
The Chief Justice and other judges of the Family Court are not satisfied as to the competence of all current Deputy Registrars to exercise the delegations which later on this year the Family Court intends to give to persons occupying the new office of Deputy Registrar.
Mr Glare gave the following evidence about the selection process for the new positions at the following paragraphs of the first of two affidavits he swore in the proceedings:
“25.The Deputy Registrars have been advised that the new positions would be advertised and that, if they were interested in pursuing a position, they would have to lodge an application and compete through the merit based selection process. They were told that the expectation was that those who were unsuccessful in obtaining a new position would be excess to the Family Court’s requirements. They were also told that there may be some displaced SES Registrars who would wish to be placed on reduction by consent as Deputy Registrars and who would need to be considered in the selection process.
26.The Deputy Registrars were also told at meetings which have been conducted since March 1999 and which I have attended that if the number of suitable applicants for the new positions was insufficient to fill the positions available then some of the existing positions may need to be retained until sufficient suitable applicants could be found. I am obviously unable to say whether that will in fact happen until the Family Court is able to process the applications, proceed to the selection process, make offers of appointment to the successful applicants and receive acceptances of those offers. I am also unable to say how long it may take to fill the new positions required.
27.The former Deputy Chief Justice of the Family Court, The Hon. Alan Barblett AO RFD, has been engaged by the Family Court to test and assess all applicants for the new Deputy Registrar positions. He will test and assess the applicants for judicial capacity as a precursor to the selection panel assessment against the selection criteria. The selection panels are intended to include representatives from the Legal Profession and senior Family Court personnel from non-legal disciplines.”
Mr Ramsey is a solicitor in the employ of the first applicant (“the CPSU”). He was formerly a National Industrial Officer whose responsibilities extended to catering for the industrial interests of Deputy Registrars of the Family Court, some 25 of whom are members of the CPSU. Some 225 other employees of the Family Court are also members of the CPSU.
Mr Ramsey gave evidence concerning the industrial prescription that applies to Deputy Registrars. In a nutshell that prescription is as follows:
· The Continuous Improvement in the APS Enterprise Agreement 1995-96 (“the APS Agreement”) applies to Deputy Registrars, even though its nominal expiry date has passed.
· A formal ballot is currently being conducted on an agreement between the staff of the Family Court and the Family Court which is intended to replace the APS Agreement.
· There is a high level of support for the proposed agreement among members of the CPSU.
The CPSU has been negotiating with Mr Glare concerning the Family Court’s proposal to introduce a new Deputy Registrar position. The CPSU was not aware of the precise proposal until it obtained a copy of a memorandum directed to all Deputy Registrars from Mr Glare. The memorandum was dated 2 March 1999. Its contents bear repeating and were as follows:
“As you will be aware, the Court has recently reviewed the SES Registrar structure and positions were restructured and reclassified from SES Band 1 to SES Band 2.
As a result of the selection process it is expected that there will be some SES Registrars who may need to be placed. Discussions prior to the commencement of the selection process resulted in an agreement that these Registrars would be considered for other positions in the Court. Concurrently, structural changes, such as changed responsibilities expected to flow from the appointment of SES Band 2s and the redistribution of responsibility for the provision of information sessions, have created a need to review the role of Deputy Registrars. The current review of resourcing by KPMG is also likely to lead to a change in the numbers of Deputy Registrars in some locations.
A new Duty Statement and revised Selection Criteria have been established and approved and a copy of each is attached for your information. It is intended to conduct a selection exercise for all Deputy Registrar positions nationally and all current Deputy Registrars who are interested in undertaking these new roles will need to lodge an application and compete through merit based selection. It is expected that those who are unsuccessful in the selection process will be excess to the Court’s requirements. In accordance with our existing industrial relations policies we will be consulting with the CPSU on these changes.
I will keep you informed of progress and, in the meantime, if you require any further information, please contact Andrew Phelan, General Manager Corporate Services on (02) 6243 8616.
Len Glare
Chief Executive Officer”On 12 March 1999 a National Industrial Officer of the CPSU, Mr Bedford wrote to Mr Glare concerning the proposed Deputy Registrar restructure, in which he noted the “outcomes” of a meeting held on 9 March 1999.
The correspondence noted that there was disagreement at the meeting concerning “the effect of changes in the proposed duties statement and selection criteria on existing Deputy Registrar officers”.
It is also noted inter alia that:
“All existing DRs who apply for the new positions will be granted an interview.”
In a further letter to Mr Glare dated 22 March 1999, Mr Bedford in a spirit of co-operation made some suggestions for “a way forward” to settle differences about the restructure that had emerged between the CPSU and Mr Glare. The first two of these suggestions were as follows:
·“desist from typifying officers who neither apply for the new positions nor resign as excess due to technological or other change
·allow present DRs who successfully apply for the new DR positions to access their conditions of service through a collective agreement”
The Causes of Action
The applicants rely on four causes of action in their statement of claim. The cause of action that was most strongly relied upon in the application for interlocutory relief was that of breach of statutory duty. The other causes of action referred to were breach of contract and breaches of ss170WG(1) and 298K of the WR Act respectively.
Breach of Statutory Duty
The applicants contended that the duties and functions of the new offices are the same or substantially the same as those of existing Deputy Registrars. In particular, it was alleged that existing and new Deputy Registrars have and will have the role of performing duties which are delegated from time to time pursuant to s37A(1) of the FL Act.
The applicants further contended that Mr Glare is concerned that some of the Deputy Registrars are not properly exercising the powers currently delegated to them or may not have the capacity to undertake such duties in the future.
The restructure, it was submitted, was an attempt to deal with Deputy Registrars who the Family Court considered were unable to fulfill certain duties or anticipated duties. In effect it was submitted that the Family Court was trying to rid itself of what it saw as inefficient officers without affording such officers the protection provided by the disciplinary provisions of the PS Act. Those provisions are contained in Subdivision C of Division 6 of Part III of the PS Act.
The CPSU contended that Mr Glare, as CEO of the Family Court, has a statutory duty to deal with what he perceives as failure of Deputy Registrars to be efficient or an anticipated failure to be efficient in the new positions. The CPSU further contended that the Family Court had breached its statutory duty by effecting the proposed restructure which would require Deputy Registrars positions to be “spilled”.
In response the respondent submitted that it is not in breach of any statutory duty it has in respect of its Deputy Registrars. It submitted that no question of inefficiency of Deputy Registrars arises. Its contention was that Deputy Registrars could not be said to be inefficient in respect of duties which they had not been asked to perform. This, it was said, followed notwithstanding that technically it may be currently open for such new duties to have been already delegated to Deputy Registrars.
The respondent further contended that the disciplinary processes provided by Division 6 of Part III of the PS Act are not applicable to the manner in which a power delegated to a Deputy Registrar is performed, having regard to s37B(4) of the FL Act. It was also pointed out that other performance issues may only be the subject of a relevant process under the PS Act if the Chief Justice so requests.
It is the view of this Court that the allegation that the Family Court is in breach of its statutory duty to deal with Deputy Registrars in accordance with the provisions of the PS Act rather than engage in the proposed restructure does not, on the current state of the evidence, raise a serious issue to be tried. Mr Glare is entitled to create a new office of Deputy Registrar on the basis that the judges of the Family Court wish to delegate the power of the Family Court to a class of persons having certain characteristics.
The CPSU’s correspondence with Mr Glare, to which earlier reference has been made, identifies the new Deputy Registrar offices as “new positions”. Paragraphs 31 and 32 of the applicants’ statement of claim also refer to the new offices as new positions. It is technically incorrect to assert that Deputy Registrars are being invited to apply for their own jobs, although in a broader sense that might be a consequence in lay person’s terms of the restructure.
This Court is of the opinion that the correct legal analysis is that new offices are to be created for which current Deputy Registrars may apply. As a consequence of the restructure the current offices of Deputy Registrar may come to be abolished and the occupants of those offices may need to be re-deployed or retired pursuant to Division 8C of Part III of the PS Act.
The Court discerns no breach of statutory duty by the Family Court in connection with its Deputy Registrar restructure.
Mr Bromberg with Mr Langmead, both of counsel, appeared for the applicants and referred to the process of restructuring as:
“…designed to weed out those persons who are regarded as not being up to scratch and not suitable for doing particular functions, that is, the divorce function at least, and the requirement for what’s called judicial capacity seems to be directed to that end. That occurs in circumstances where there is a statutory scheme or code for dealing with registrars who don’t fulfull their duties.”
The evidence does not disclose that the restructure is designed to deal with the current Deputy Registrars in respect of their present duties. On the contrary the evidence discloses that the Family Court desires to establish a new concept involving a new role for Deputy Registrars in which wider and more responsible delegations will be made. It is not to the point that current Deputy Registrars may theoretically be empowered to receive such delegations. In practice such delegations are not made to the extent that it is intended that they will be made under the restructure.
The Court accepts the submission of counsel for the respondent (Dr Jessup QC with Mr McDonald) that whether the Deputy Registrars perform all the powers which they have is a completely different question from whether they possess those powers.
What Deputy Registrars in fact do is a different matter from what they technically may be empowered to do as a result of exercising particular delegations, if such delegations are given.
Mr Bromberg referred the Court to the judgment of the High Court of Australia in Director-General of Education v Suttling (1987) 162 CLR 427 to support his submissions on the breach of statutory duty point. In Suttling it was held that a period of appointment of a teacher was not capable of being shortened without cause and that the power to abolish positions in the teaching service was not capable of being exercised in derogation of the right of a teacher to a fixed time temporary appointment.
In the instant matter there has as yet been no abolition of the current offices of Deputy Registrar. Whether such abolition will occur may depend on how many suitable candidates are appointed to the new positions. Further, as has been explained, the inefficiency provisions of the PS Act are inapplicable as a matter of fact and law to the current position of existing Deputy Registrars.
Contractual Claims
Mr Bromberg submitted that the second applicants’ claims for breach of contract arose from the same matters upon which they relied in relation to the claim for breach of statutory duty. It must follow as a consequence of the Court’s views on the question of breach of statutory duty that there is no serious question to be tried with respect to the contractual claims.
Section 298K of the WR Act
There is no evidence currently before the Court to support the submission of the applicants that the restructure has been undertaken for a prohibited reason within the meaning of s298L of the WR Act, when read with s298K of that Act.
The applicants allege that the restructure is being effected for reasons which include the reason that Deputy Registrars are entitled to the benefit of the APS Agreement. This allegation seems to draw strength, on the face of the statement of claim, from an earlier insistence by Mr Glare that the terms and conditions of employment of persons holding office in the new position of Deputy Registrar be subject to an AWA, which would operate to the exclusion of existing industrial prescription for Deputy Registrars.
During the course of the interlocutory hearing Dr Jessup, on instructions, informed the Court that any person who occupied the new position of Deputy Registrar would not be required as a condition of holding such position to enter into an AWA. Dr Jessup said that an AWA would be offered to successful applicants and they could choose to become a party to an AWA or not as they saw fit. The AWA would be complementary to other existing industrial prescription (presumably by then the new certified agreement). It would merely offer an extra 2 percent increase in salary in return for the abolition of the provision of time off in lieu of overtime. It would be up to each individual successful applicant to consider if giving up time off in lieu of overtime is worth a 2 percent wage increase.
Given that the AWA would be complementary to existing and proposed collective methods of industrial regulation it is difficult to discern how it can be said that the Family Court is threatening to terminate, injure or alter the position of Deputy Registrars to their prejudice because of their entitlement to the APS Agreement.
No serious issue to be tried is raised on the current state of the evidence in respect of the alleged breach of s298K of the WR Act.
Section 170WG(1) of the WR Act
The way in which the Family Court intends to offer the AWAs as referred to above means that no serious question arises to be tried concerning the allegation that the Family Court has applied duress contrary to s170WG(1) of the WR Act by making the signing of an AWA a condition of being selected for the new position. No such condition is in place. An earlier stipulation to that effect has been abandoned. In fact the willingness or otherwise of an applicant for such a position to sign an AWA will not be relevant to the selection process. The Family Court has undertaken through counsel that “none of the applicants (for the position) will be required to indicate whether or not he or she would be prepared to enter into an AWA during the process of interview for the position”.
Conclusion on Interlocutory Relief
As none of the matters raised by the applicants meets the test of being a serious issue to be tried, as the evidence now stands, the application for interlocutory relief must be dismissed. Consequently there is no present need for the Court to have recourse to questions relevant to the balance of convenience.
The Motion
The motion sought an order that the proceeding no longer continue as a representative proceeding under Part IVA of the FC Act.
The respondent’s contention was that the proceeding was unable to be so continued in the absence of the written consent of all members of the representative group. This was said to flow from the provisions of s33E of the FC Act which provides that:
“33E(1)The consent of a person to be a group member in a representative proceeding is not required unless subsection (2) applies to the person.
(2)None of the following persons is a group member in a representative proceeding unless the person gives written consent to being so:
(a)the Commonwealth, a State or a Territory;
(b)a Minister or a Minister of a State or Territory;
(c)a body corporate established for a public purpose by a law of the Commonwealth, of a State or of a Territory, other than an incorporated company or association; or
(d)an officer of the Commonwealth, of a State or of a Territory, in his or her capacity as such an officer.”
In particular reliance was placed on s33E(2)(d) of the FC Act.
It is not in dispute that Deputy Registrars of the Family Court are officers of the Commonwealth. See Re Winton; Ex p Jolliffe (1987) 17 FCR 89 at 93, 96.
What is in dispute is the issue as to which Deputy Registrars are members of “the group” for purposes of this proceeding in their capacities as such officers.
Mr Bromberg submitted that s33E(2)(d) of the FC Act does not affect claims by such officers in their “individual” as distinct from “public” capacity.
In support of that submission Mr Bromberg referred to the relevant portion of the Explanatory Memorandum which accompanied the Federal Court of Australia Amendment Bill 1991(Cth). It provides as follows:
“14. This section provides that the consent of a person to be a group member is not required unless that person is the Commonwealth, a State or Territory or a Minister, officer or certain agencies of the Commonwealth, a State or Territory. The activities of Governments, government agencies, Ministers and officials may be subject to legislative and other restraints which make inappropriate the inclusion of such persons in a representative proceeding without consent.”
The Explanatory Memorandum identifies a reason as to why the Federal Government felt it necessary to introduce the provision. It does not purport to provide the only reason for such inclusion. Whether an officer of the Commonwealth is a member of a group in a representative proceeding in her or his capacity as such or in some other capacity will always be a question of fact to be determined in every case.
In this matter the members of the group are defined by reference to the fact that they hold office as Deputy Registrars. This is not a case where a Deputy Registrar is pursuing some individual right divorced from the holding of her or his office, for example a consumer-related complaint.
The Court is of the view that the members of the representative group in this proceeding are members in their capacity as officers of the Commonwealth. Consequently written consent of those of them who are not named as second applicants is required for the proceeding to continue to be a representative proceeding. If such written consents are forthcoming the size of the group will be commensurate with the number of such persons who give that consent together with the named second applicants.
In accordance with the agreement of counsel the Court is content to adjourn the motion to a later date. This will enable the applicants to deal with the consequences of the Court’s reasons on this issue in the context of a separate notice of motion returnable later this afternoon. Subject to further submissions the Court proposes to adjourn the respondent’s motion to 7 June 1999 at 10.15 am at which time it may be formally dismissed or otherwise dealt with in accordance with the wishes of the parties.
Order
In the circumstances the Court makes the following orders:
1. The applicants’ application for interlocutory relief be dismissed.
2. The respondent’s notice of motion be adjourned to 10.15 am on 7 June 1999.
Further Directions
The Court will now deal with the adjourned directions hearing in the substantive proceeding and the applicants’ notice of motion dated 11 May 1999 concerning the giving of written consents by members of the representative group who are not second applicants.
I certify that the preceding sixty-nine (69) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall. Associate:
Dated: 14 May 1999
Counsel for the Applicants: Mr M Bromberg with Mr D Langmead Solicitor for the Applicants: Mr S Ramsey Counsel for the Respondent: Dr C N Jessup QC with Mr M McDonald Solicitor for the Respondent: Gadens Lawyers Date of Hearing: 30 April 1999, 10 May and 14 May 1999 Date of Judgment: 14 May 1999 (ex-tempore as revised from the transcript)
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