Gerrard v Mayne Nickless
[1995] IRCA 25
•08 February 1995
CATCHWORDS
INDUSTRIAL LAW - Review by Industrial Relations Commission of unfair contracts for services entered into by independent contractors - proceedings instituted in Commission before legislative amendment transferred jurisdiction to Court - no transitional provisions - whether right to have application determined by Commission is an accrued right - enforceability of interim orders of the Commission
Industrial Relations Act 1988 s 45(1)(ea), s 127A, s127B,
s 127C
Acts Interpretation Act 1901 (Cth) s 8
Director of Public Works v Ho Po Sang [1961] AC 901
Robertson v City of Nunawading [1973] VR 819
Esber v The Commonwealth of Australia (1991-1992) 174 CLR 430
ALLAN GERRARD & ANOR v MAYNE NICKLESS LTD
No VI 1052 of 1994
NORTHROP J
MELBOURNE
8 FEBRUARY 1995
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
No VI 1052 of 1994
VICTORIA DISTRICT REGISTRY
B E T W E E N :
ALLAN GERRARD & ANOR
Applicants
A N D :
MAYNE NICKLESS LTD
Respondent
COURT: NORTHROP J
PLACE: MELBOURNE
DATE: 8 FEBRUARY 1995
MINUTES OF ORDER
THE COURT ANSWERS THE SEPARATE QUESTION AS FOLLOWS:
Did the Interim Order made by Justice Munro on 3 February 1994 cease to have effect on 30 March 1994 on the coming into operation of section 71 of the Industrial Relations Reform Act 1993?
Answer: No
THE COURT ORDERS THAT:
The further hearing of the application is adjourned to a directions hearing at 9.45 am on Wednesday 1 March 1995.
Note:Settlement and entry or orders is dealt with in Order 36 of the Industrial Relations Court Rules
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
No VI 1052 of 1994
VICTORIA DISTRICT REGISTRY
B E T W E E N :
ALLAN GERRARD & ANOR
Applicants
A N D :
MAYNE NICKLESS LTD
Respondent
COURT: NORTHROP J
PLACE: MELBOURNE
DATE: 8 FEBRUARY 1995
REASONS FOR JUDGMENT
The applicants have brought this application as a representative proceeding under section 435 of the Industrial Relations Act 1988. The application is brought on behalf of a group of persons called owner drivers, being persons who had been engaged by Mayne Nickless Ltd as owner drivers. The application was issued in the Federal Court of Australia on 11 March 1994 at a time after the Industrial Relations Reform Act 1993 ("the Reform Act") had been enacted but before it came into operation on 30 March 1994. In these reasons the Industrial Relations Act in force immediately before 30 March 1994 shall be referred to as the "Unamended Act" and that Act as amended by the Reform Act will be referred to as the "Amended Act".
The application was made pursuant to subsection 127B(5) of the Unamended Act which provided:
"127B(5) A party to the contract may apply to the Court to enforce an order by injunction or otherwise as the Court thinks fit."
In that subsection at that time "the Court" meant the Federal Court of Australia.
The order sought to be enforced by the applicants was an interim order made under subsection 127B of the Unamended Act by the Industrial Relations Commission on 3 February 1994.
On 22 and 23 November 1994 the Court heard submissions on certain questions to be heard separately from other questions before the trial of the application, see Order 21 of the Industrial Relations Court Rules. The facts giving rise to these questions are not in dispute and it is helpful to refer to these facts before referring to the questions raised.
for the provisions is that the relevant contracts were in r Sections 127A, 127B and 127C were inserted into the Unamended Act with effect from 23 July 1992, see section 7 of the Act No 109 of 1992. The purpose of the sections was to confer a power on the Industrial Relations Commission to consider and, where necessary, to remedy what can be described as unfair contracts for services entered into by independent contractors. For present purposes, the constitutional basis elation to a contract to which a constitutional corporation, namely the respondent, was a party. In substance section 127A conferred a power on the Industrial Relations Commission constituted by a Presidential Member or a Full Bench, to review a contract entered into by an independent contract on the application of a party on one or more of three specified grounds namely that the contract was (a) unfair, (b) harsh or (c) against the public interest. In reviewing the contract the Commission could have regard to certain specified matters including any matter the Commission thought relevant. If the Commission formed the opinion that a specified ground had been established the Commission was required "to record its opinion, stating whether the opinion relates to the whole or a specified part of the contract".
The whole of section 127A of the Unamended Act is set out:
"127A(1) In this section:
"contract" means:
(a) a contract for services that:
(i) is binding on an independent contractor; and
(ii)relates to the performance of work by the independent contractor, other than work for the private and domestic purposes of the other party to the contract; and
(b) any condition or collateral arrangement relating to such a contract.
Application may be made to the Commission (constituted by a Presidential Member or a Full Bench) to review a contract on any or all of the following grounds:
(a) the contract is unfair;
(b) the contract is harsh;
(c) the contract is against the public interest.
(3)An application under subsection (2) may be made only by:
(a) a party to the contract; or
(b)an organisation of employees of which the independent contractor is (or has applied to become) a member, if it is acting with the written consent of the independent contractor; or
(c)an organisation or association of employers of which the person contracting for the services is (or has applied to become) a member, if it is acting with the written consent of the person.
(4)In reviewing the contract, the Commission may have regard to:
(a)the relative strength of the bargaining positions of the parties to the contract and, if applicable, any persons acting on behalf of the parties; and
(b)whether any undue influence or pressure was exerted on, or any unfair tactics were used against, a party to the contract; and
(c)whether the contract may have an adverse effect on the development of the skills of employees performing work of the relevant kind in the industry, including any system designed to provide a trained labour force (for example, apprenticeship or any arrangement for improving the skills of employees); and
(d)whether the contract provides total remuneration that is, or is likely to be, less than that of an employee performing similar work; and
(e) any other matter that the Commission thinks relevant.
(5) If the Commission forms the opinion that a ground referred to in subsection (2) is established in relation to the whole or part of the contract, it must record its opinion, stating whether the opinion relates to the whole or a specified part of the contract.
(6) The Commission may form the opinion that a ground referred to in subsection (2) is established in relation to the whole or part of the contract even if the ground was not canvassed in the application.
(7) The Commission must exercise its powers under this section in a way that furthers the objects of this Act as far as practicable."
At the same time as section 127A was inserted into the Unamended Act, paragraph 45(1)(ea) was inserted. That paragraph permitted an appeal to a Full Bench of the Commission, with the leave of the Full Bench, against:
"(ea)an opinion formed by a member of the Commission under section 127A or a decision by a member of the Commission not to form such an opinion."
If the Commission recorded an opinion under section 127A, section 127B of the Unamended Act conferred power on the Commission to make orders in relation to the opinion. The Commission could by order set aside the whole or part of the contract or by order vary the contract. The section also empowered the Commission to make an interim order to preserve the position of a party to the contract.
The whole of section 127B of the Unamended Act is set out:
"127(1) If the Commission records an opinion under section 127A in relation to a contact, it may make one or more of the following orders in relation to the opinion:
(a)an order setting aside the whole or part of the contract, as the case may be;
(b) an order varying the contract.
(2)An order may only be made for the purpose of placing the parties to the contract as nearly as practicable on such a footing that the ground on which the opinion is based no longer applies.
(3)While the application is pending, the Commission may made an interim order if it thinks it is desirable to do so to preserve the position of a party to the contract.
(4)An order takes effect from the date of the order or a later date specified in the order.
(5)A party to the contract may apply to the Court to enforce an order by injunction or otherwise as the Court thinks fit.
(6)This section does not limit any other rights of a party to the contract."
At the same time section 127B was inserted into the Unamended Act, paragraph 45(1)(eb) was inserted. That paragraph permitted an appeal to a Full Bench of the Commission, with the leave of the Full Bench, against:
"an order made by a member of the Commission under section 127B or a decision by a member of the Commission not to make such an order."
In January 1994 a number of owner drivers were parties to individual contracts with the respondent, those contracts, apparently, being contracts within the meaning of section 127A of the Unamended Act. On 14 January 1994 the applicant Gerrard and a number of other owner drivers who had entered into contracts with the respondent made application to the Commission under section 127A for a recording of the opinion of the Commission that each contract, which for present purposes can be treated as identical, was unfair, harsh or against the public interest. By the same application, the owner drivers sought orders under subsection 127B(1). Because of perceived matters of urgency, the owner drivers sought interim orders under subsection 127B(3) to preserve their position. The Commission had not formed the opinion that any of the specified grounds had been established nor had it recorded its opinion to that effect, see subsection 127A(5). On 28 January 1994 the Commission constituted by a Deputy President, Munro J, commenced to hear the application for the interim order. On the same day his Honour gave an oral decision that he would make an interim order. The decision and reasons were published in writing on 1 February 1994, see Print L1480. A further interim decision was published in writing on 3 February 1994, see Print L1536. The interim order was made and expressed to take effect from 10 am on 3 February 1994, see Print L1517. On 4 February 1994 the respondent commenced terminating the contracts of a large number of its owner drivers. The applicants allege that in doing this the respondent was acting in contravention of the interim orders of the Commission. On 11 March 1994 the applicants commenced their application under subsection 127B(5) of the Unamended Act seeking orders from the Federal Court to enforce the interim orders by injunctions and by damages.
The Reform Act came into operation on 30 March 1994. That Act amended sections 127A and 127B of the Unamended Act. Paragraphs 45(1)(ea) and (eb) were not amended and are in the same form in the Amended Act as in the Unamended Act. The Reform Act constituted the Industrial Relations Court of Australia and, pursuant to the provisions of sections 63 to 67 of that Act, the proceedings that had been commenced by the applicants were transferred from the Federal Court to the Industrial Relations Court. In the Amended Act "the Court" refers to the Industrial Relations Court.
The essential differences effected to sections 127A and 127B of the Unamended Act are that an application under subsection 127A(2) of the Amended Act to review a contract is made to the Court, not the Commission, and the only grounds specified are that the contract is unfair or that the contract is harsh. The ground that the contract is against the public interest is no longer a specified ground.
Otherwise the provisions of s127A remain the same except "the Court" replaces "the Commission". A similar position applies with respect to s127B. The provisions of s127B of the Amended Act remain the same as s127B of the Unamended Act except "the Court" replaces "the Commission". The amendments to sections 127A and 127B of the Unamended Act were effected by sections 71 and 72 of the Reform Act. With the exception of a consequential amendment to subsection 127A(1) of the Unamended Act and the substitution of a new subsection 127A(2), the amendments were effected by omitting the word "Commission" and substituting the word "Court" in each of the sections.
Section 127A(2) of the Amended Act is to be contrasted with section 127A(2) of the Unamended Act. Section 127A(2) of the Amended Act reads:
"Application may be made to the Court to review a contract on either or both of the following grounds:
(a) the contract is unfair;
(b) the contract is harsh."
At the beginning of the hearing before the Court on 22 November 1994, the parties agreed that the following questions be tried separately before the further trial of the proceeding:
"1.Did the Interim Order made by Justice Munro on 3 February 1994 cease to have effect on 30 March 1994 on the coming into operation of section 71 of the Industrial Relations Reform Act 1993?
Is the Interim Order invalid and beyond power?
Does the Industrial Relations Court have jurisdiction or power under section 127B of the Industrial Relations Act or at all to make an award for damages arising out of non-compliance with an Interim Order made under section 127A?
Is it appropriate that this proceeding continue as a representative proceeding under Part XIV Division 6 of the Industrial Relations Act 1988?"
During the course of the hearing, it became apparent that serious questions arose as to whether the Court had jurisdiction to determine question 2. The parties agreed to adjourn the hearing of argument on that question. Counsel for the applicants announced that the applicants would not pursue their claim for damages under subsection 127B(5) of the Industrial Relations Act. Accordingly question 3 need not be considered. The parties agreed to adjourn consideration of question 4. In the result, the only matter before the Court is the consideration of question 1.
In order to complete the scene, it is noted that the applicants sought consideration of other questions relating to the interpretation of the Interim Order but, by agreement, the hearing of those questions has been adjourned.
Further, by motion notice of which is dated 18 November 1994 the applicants sought leave to amend their application and statement of claim to include claims based upon associated matters or the accrued jurisdiction of the Court. The hearing of this motion has been adjourned.
The essence of the submissions made on behalf of the applicants illustrates the issue raised by question 1. On their behalf it was contended that the application commenced by the applicants in the Commission under sections 127A and 127B of the Unamended Act constituted a right which had accrued under that Act and that the rights accrued and the obligations so incurred by the interim order made under subsection 127B(3) of the Unamended Act, came within section 8 and in particular paragraph 8(c) of the Acts Interpretation Act 1901 with the result that the applicants' proceedings in the Commission could be continued in the Commission and any rights conferred upon the applicants and any obligation imposed on the respondent by the interim order could be enforced as if the Reform Act had not been passed.
Section 8 of the Acts Interpretation Act is set out in full:
"8.Where an Act repeals in the whole or in part a former Act, then unless the contrary intention appears the repeal shall not:
(a)revive anything not in force or existing at the time at which the repeal takes effect; or
(b)affect the previous operation of any Act so repealed, or anything duly done or suffered under any Act so repealed; or
(c)affect any right privilege obligation or liability acquired accrued or incurred under any Act so repealed; or
(d)affect any penalty forfeiture or punishment incurred in respect of any offence committed against any Act so repealed; or
(e)affect any investigation legal proceeding or remedy in respect of any such right privilege obligation liability penalty forfeiture or punishment as aforesaid;
and any such investigation legal proceeding or remedy may be instituted continued or enforced, and any such penalty forfeiture or punishment may be imposed, as if the repealing Act had not been passed."
The essence of the submissions made on behalf of the respondent was that the interim order made 3 February 1994 ceased to have effect on 30 March 1994 when sections 71 and 72 of the Reform Act came into operation and thus the rights and obligations acquired or incurred under the interim order could not be enforced and that the application commenced by the applicants in the Commission under sections 127A and 127B of the Unamended Act was not a right accrued under that Act within section 8 of the Acts Interpretation Act, that in any event the interim order made on 3 February 1994 ceased to have effect on 30 March 1994 when the Reform Act came into operation, that thereupon the rights and obligations acquired or accrued under the interim order ceased and thus the rights could not be enforced. Counsel contended that section 8 of the Acts Interpretation Act had no application to the facts of this proceeding.
It must be remembered that the validity of the interim order is not raised at this stage.
The issue before the Court is whether section 8 of the Acts Interpretation Act applies to the facts of this case. This involves a consideration of a number of authorities analysed by counsel in the course of submissions but in order to understand those authorities and the principles of law to be applied, it is necessary to discuss the nature of proceedings that can be brought under sections 127A and 127B of the Unamended Act and the Amended Act.
There can be no doubt that the nature of proceedings brought under either Act is, with one exception, identical. The exception is that the ground that the contract is against the public interest cannot be relied upon as a ground in a proceeding brought under section 127A of the Amended Act. Otherwise, the nature of the proceedings are identical, the only difference is that under the Unamended Act a proceeding is to be commenced in the Commission while under the Amended Act the proceeding is to be commenced in the Court. It is accepted that the Commission is not exercising the judicial power of the Commonwealth. It is exercising administrative power but in a manner essentially the same as the manner a Court exercises its judicial power. In the Commission, an applicant makes a claim against a respondent. The parties to the application appear before the Commission and present their cases. The Commission makes a decision and publishes its reasons for making that decision. Counsel for the respondent labelled such a decision as a discretionary judgment of an administrative kind. An appeal could be taken against against a decision made by a Presidential Member to a Full Bench. Decisions made under section 127B could be enforced by an order of the Federal Court, see subsection 127B(5) of the Unamended Act.
Since 30 March 1994 an application under section 127B of the Amended Act is commenced by an applicant making a claim in this Court against a respondent. The parties to the application appear before the Court and present their cases. The Court makes a decision and publishes its reasons for making that decision. The decision is, in truth, discretionary, but is made in the exercise of a judicial discretion. An unsuccessful party may appeal to a Full Court against a decision of the Court constituted by a single Judge. Subsection 127B(5) still provides that a party may apply to the Court to enforce an order but the need for this subsection is doubtful since the Court already has ample powers to enforce its orders.
The nature of an application under sections 127A and 127B of either Act is not novel or unusual. A jurisdiction or power conferred on a tribunal to exercise a discretion if certain facts are found is common. Two illustrations are sections 208 and 209 of the Industrial Relations Act and the earlier sections they replaced. Others, possibly more appropriate for comparison with the present case, are sections 258 and 259 of the Industrial Relations Act. Illustrations of proceedings of this kind extend beyond industrial relations to matters such as schemes of arrangements under Companies legislation and the cy-pres doctrine applied with respect to certain charitable trusts the objects of which have failed. The nature of proceedings of this type have been discussed in many cases principally when considering whether the power is judicial or not, see for example Barrett v Opitz (1945) 70 CLR 141, The Queen v Commonwealth Industrial Court Ex Parte The Amalgamated Engineering Union, Australian Section (1960) 103 CLR 368 (Shearer's Case), Cominos v Cominos (1972) 127 CLR 588 and R v Joske Ex Parte Shop Distributive and Allied Employees' Association (1976) 135 CLR 194. I discussed these principles in Re Gallagher and Federated Cold Storage and Meat Preserving Employees' Union of Australasia (1983) 51 ALR 657 at 672 to 676. Sections 127A and 127B of the Unamended Act appear to have conferred a similar power on an administrative tribunal. For present purposes, the validity of that power must be accepted.
A consideration of the authorities referred to in submissions relating to the application of section 8 of the Acts Interpretation Act and its equivalent in other jurisdictions, disclose a dual approach depending upon the nature of the right, or rather the accrued right, sought to be continued or enforced.
A different approach has been taken to cases where an administrator, whether a natural person for a statutory body, has a statutory power to confer a right or privilege on a member of the public. In practice, the person seeking the right or privilege may be required to give notice of the application to enable other persons to make representations to the administrator in opposition to the application. To this extent, the procedures adopted by the administrator may have the appearance of legal or quasi-legal proceedings between competing parties but in truth what is being sought by the applicant is the grant of a right or privilege at the disposal of the administrator. In these reasons, this type of case will be described as a true administrative application.
The other type of case arises where one person is in dispute with another person and seeks a resolution of that dispute by making an application to a tribunal, whether administrative or judicial, for orders determining the dispute between those persons. Here there are in truth opposing parties and normally orders made by the tribunal confer rights or privileges on one of the parties ad impose co-relative duties or obligations on the other. In some cases, it might be difficult to identify the competing parties, for example in cases of applying the cy-pres doctrine where the Attorney-General normally is a party to protect the concept of the charity or an administrator to assist the Court as in Re Gallagher, above. In this type of case the tribunal, whether a natural person, a statutory body or an institution has no privileges or rights at its disposal to confer upon the successful litigants. The duty of the tribunal is to determine the dispute between the parties according to law without fear or favour affection or ill-will. In these reasons, this type of case will be described as a quasi-judicial application.
The authorities show that a claimant in a true administrative application is not afforded the protection given by section 8 of the Acts Interpretation Act in cases where the claimant has commenced proceedings to obtain the privilege or right at the disposition of the administrator. On the other hand, the authorities show that a claimant in a quasi-judicial application does have the protection of section 8 at least where the claimant has instituted that claim before the Act conferring the right or privilege sought to be enforced is repealed.
The position is made clear by a reference to Director of Public Works v Ho Po Sang [1961] AC 901 in which the Privy Council considered the application of an equivalent provision to section 8 of the Acts Interpretation Act where an administrator had a statutory power to approve a building development. In short form the facts were that on 9 April 1957, when the relevant legislation was repealed, a lessee was involved in proceedings seeking the grant of a permit to rebuild. At 920-21 their Lordships said:
"In the present case the position on April 9, 1957, was that the lessee did not and could not know whether he would or would not be given a rebuilding certificate. Had there been no repeal, the petitions and cross-petition would in due course have been taken into consideration by the Governor in Council. Thereafter there would have been an exercise of discretion.
The Governor would have directed either that a certificate be given or be not given, and the decision of the Governor in Council would have been final. In these circumstances their Lordships conclude that it could not properly be said that on April 9 the lessee had an accrued right to be given a rebuilding certificate. It follows that he had no accrued right to vacant possession of the premises. It was said that there were accrued rights to a certificate, and consequently to possession, subject only to the risk that these rights might be defeated, and it was said that in the events that happened the rights were not defeated. In their Lordships' view such an approach is not warranted by the facts. On April 9 the lessee had no right. He had no more than a hope that the Governor in Council would give a favourable decision. So the first submission fails."
Further, their Lordships said at 922:
"It is to be observed that under section 10(e) a repeal is not to affect any investigation, legal proceeding or remedy "in respect "of any such right." The right referred to is the right mentioned in section 10(c), i.e., a right acquired or accrued under a repealed enactment. This part of the provisions in paragraph (e) of section 10 does not and cannot operate unless there is a right as contemplated in paragraph (c). It may be, therefore, that under some repealed enactment a right has been given but that in respect of it some investigation or legal proceeding is necessary. The right is then unaffected and preserved. It will be preserved even if a process of quantification is necessary. But there is a manifest distinction between an investigation in respect of a right and an investigation which is to decide whether some right should or should not be given. Upon a repeal the former is preserved by the Interpretation Act. The latter is not."
This line of principle is illustrated by Robertson v City of Nunawading [1973] VR 819 in a judgment of the Full Court constituted by Winneke CJ and Gowans and Starke JJ. That case involved approval by a government authority of a subdivision of land. After the application had been made, existing statutory provisions were repealed and others, more stringent, were enacted. The applicant sought to pursue his application under the repealed legislation. Not surprisingly, the applicant failed since the applicant was seeking a privilege or right at the disposal of a statutory body. The judgment is of interest because it states the position at common law, see 823-4, which for present purposes, is similar to section 8 of the Acts Interpretation Act. At 825-6 the Court said:
"The mere locus standi of a member of the community to take advantage of an enactment is not a right within the principle being discussed, for otherwise there could be no effective repeal or amendment of any such enactment: cf. Abbott v. Minister of Lands, [1895] A.C. 425, at p. 431). There must be a specific right. Resort to the enactment by the making of an application is not itself productive of such a right. The applicant, by reason of the mere launching of the application, acquires no vested right to have the application determined irrespective of the repeal of the enactment. The making of the application sets in train a procedure, but in the absence of some right otherwise existing, there is no right to have the procedure continued in the fact of the repeal of the enactment under which it was instituted. This must be taken to be the effect of the judgment of the Privy Council in Director of Public Works v. Ho Po Sang, [1961] A.C. 901; (and in particular at pp. 922 and 924-5): "The validity of 'anything duly done' before 9 April 1957 was not affected by the repeal. Accordingly the procedural steps which had been taken as a preliminary to obtaining a decision of the governor were not invalidated: they were, however, rendered abortive for the repeal ended the hope of possibility of being given a re-building certificate. The lessee enjoyed no right which was kept alive. He did not have any right even of a contingent nature ... . In the present case the lessee had taken procedural steps in the hope of being able to obtain a re-building certificate, but at the date of repeal he had no accrued right." These observations were made in relation to the operation of the Interpretation Ordinance of Hong Kong, but they would appear to be equally applicable to the application of the common law principle."
The authorities show that a claimant in a quasi-judicial application is afforded the protection conferred by section 8 of the Acts Interpretation Act. This can be illustrated by a reference to Esber v The Commonwealth of Australia (1991-1992) 174 CLR 430. There the appellant applied to the Administrative Appeals Tribunal, an administrative tribunal, not a court, for a review of a determination by a delegate of the Commissioner for Employees' Compensation ("the Commissioner") under the Compensation (Commonwealth Government Employers) Act 1971. Before the review came on for hearing the relevant provisions of that Act were repealed. The issue was whether the appellant could continue the review under the repealed provisions. In a joint judgment, Mason CJ, Deane, Toohey and Gaudron JJ, possibly by way of obiter, said at 440-41:
"Once the appellant lodged an application to the Tribunal to review the delegate's decision, he had a right to have the decision of the delegate reconsidered and determined by the Tribunal. It was not merely "a power to take advantage of an enactment" Mathieson v. Burton (1971), 124 C.L.R. 1, at p.23, per Gibbs J.; and see Robertson v. City of Nunawading, [1973] V.R. 819. Nor was it a mere matter of procedure see Newell v. The King (1936), 55 C.L.R. 707, at pp.711-712; it was a substantive right see, by way of analogy, Australian Coal and Shale Employees Federation v. Aberfield Coal Mining Co. Ltd. (1942), 66 C.L.R. 161, at pp.175, 178, 185, 194; Colonial Sugar Refinery Co v. Irving, [1905] A.C. 369, at pp. 372-373. Section 8 of the Acts Interpretation Act protects anything that may truly be described as a right, "although that right might fairly be called incoate or contingent" Free Lanka Insurance Co. Ltd. v. Ranasinghe, [1964] A.C. 541, at p.552, see also Continental Liqueurs Pty. Ltd v. G.F. Heublein and Bro. Inc. (1960), 103 C.L.R. 422, at pp. 426-427; Director of Public Works v. Ho Po Sang, [1961] A.C. 901. This was such a right. It was a right in existence at the time the 1971 Act was repealed. That being so, and in the absence of a contrary intention, the right was protected by s.8 of the Acts Interpretation Act and was not affected by the repeal of the 1971 Act."
In all the circumstances, Esber is a particularly strong authority. In exercising its powers of review, the Administrative Appeals Tribunal is standing in the shoes of the Commissioner performing the duties and exercising the powers of the Commissioner. At the same time, the Commissioner can appear before the Tribunal as if it were a party to the review. The true position is described and explained by Brennan J in Bushell v Repatriation Commission (1992) 175 CLR 408 at 424-5. See also what I said in Nation v Repatriation Commission (1993) 18 AAR 273 at 275-6. To this extent, it may appear the Commissioner and the Tribunal are to be equated with the administrator in Ho Po Sang and Robertson. This is not so because the relevant Act conferred rights on a person, here Mr Esber, who was entitled to enforce those rights before the Commissioner and the Tribunal. This brought the claim by Mr Esber within the class of cases where rights and duties are created between identified persons, there Mr Esber and the Commonwealth of Australia respectively. The Commissioner and the Tribunal were required to determine the dispute between the parties arising from those rights and duties. In the case before this Court, the dispute is between the owner drivers and their employer. At the relevant time, the Commission had jurisdiction to determine that dispute.
In my opinion, the statement of the law in Esber as set out applies to the first question before this Court. Upon the applicants commencing their application in the Commission pursuant to sections 127A and 127B of the Unamended Act they had the right to have that application heard and determined by the Commissioner. It was an accrued right within the meaning of the provisions of paragraph 8(c) of the Acts Interpretation Act. There is no contrary intention disclosed. The interim order made by the Commission on 3 February likewise was an accrued right within the meaning of paragraph 8(c). Accordingly the answer to question 1, namely,
"Did the Interim Order made by Justice Munro on 3 February 1994 cease to have effect on 30 March 1994 on the coming into operation of section 71 of the Industrial Relations Reform Act 1993".
is "No".
The further hearing of the application is adjourned to a directions hearing at 9.45 am on Wednesday 1 March 1995.
I certify that this and the preceding twenty one (21) pages are a true copy of the Reasons for Judgment of The Honorable Justice R.M. Northrop.
Associate:
Date: 8 February 1995
ATTACHMENT
Counsel for the Applicants: Mr H. Borenstein
Solicitor for the Applicants: McMullin Coate & Co
Counsel for the Respondent: Mr N.J. Young QC with
Mr D.J. O'Callaghan
Solicitor for the Respondent: Freehill Hollingdale & Page
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