FRENCH CJ, GUMMOW, HAYNE, HEYDON, CRENNAN, KIEFEL AND BELL JJ
PUBLIC SERVICE ASSOCIATION OF SOUTH AUSTRALIA INCORPORATED APPLICANT
AND
INDUSTRIAL RELATIONS COMMISSION OF SOUTH AUSTRALIA AND ANOR RESPONDENTS
Public Service Association of South Australia Incorporated v Industrial Relations Commission of South Australia [2012] HCA 25 11 July 2012 A7/2011
ORDER
1.Special leave to appeal granted.
2. Appeal treated as instituted and heard instanter, and allowed.
3.Set aside the orders of the Full Court of the Supreme Court of South Australia made on 15 March 2011.
4.Remit the matter to the Full Court of the Supreme Court of South Australia for determination of the appellant's summons for judicial review, including any questions of costs in the Full Court.
5.The second respondent, the Chief Executive, Department of the Premier and Cabinet of South Australia, pay the costs of the appellant in this Court.
On appeal from the Supreme Court of South Australia
Representation
P A Heywood-Smith QC with P N Moloney for the applicant (instructed by Moloney and Partners)
Submitting appearance for the first respondent
M G Hinton QC, Solicitor-General for the State of South Australia with D F O'Leary for the second respondent and intervening on behalf of the Attorney-General for the State of South Australia (instructed by Crown Solicitor (SA))
S J Gageler SC, Solicitor-General of the Commonwealth with G R Kennett SC and C D Bleby intervening on behalf of the Attorney-General of the Commonwealth (instructed by Australian Government Solicitor)
W Sofronoff QC, Solicitor-General of the State of Queensland with G J D del Villar intervening on behalf of the Attorney-General of the State of Queensland (instructed by Crown Law (Qld))
G L Sealy SC, Solicitor-General of the State of Tasmania with S D Gates intervening on behalf of the Attorney-General of the State of Tasmania (instructed by Crown Solicitor for Tasmania)
S G E McLeish SC, Solicitor-General for the State of Victoria with P R D Gray SC intervening on behalf of the Attorney-General for the State of Victoria (instructed by Victorian Government Solicitor)
R M Mitchell SC, Acting Solicitor-General for the State of Western Australia with A K Sharpe intervening on behalf of the Attorney-General for the State of Western Australia (instructed by State Solicitor (WA))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Public Service Association of South Australia Incorporated v Industrial Relations Commission of South Australia
Administrative law – Judicial review – Excess or want of jurisdiction – Appellant commenced proceedings in Industrial Relations Commission of South Australia ("Commission") – Commission had jurisdiction with respect to "industrial disputes" which meant a dispute about an "industrial matter" as defined by Fair Work Act 1994 (SA) ("Act") – Commission determined that it lacked jurisdiction because there was no industrial dispute – Full Court of Supreme Court of South Australia dismissed summons for judicial review because s 206 of Act excluded review except for "excess or want of jurisdiction",…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Public Service Association of South Australia Inc v Industrial Relations Commission of South Australia [2012] HCA 25
Case
[2012] HCA 25
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal by the Public Service Association of South Australia Inc. (the appellant) against a decision of the Full Court of the Supreme Court of South Australia. The dispute arose when the Industrial Relations Commission of South Australia (the Commission) determined it lacked jurisdiction to hear a matter because there was no "industrial dispute" as defined by the relevant Act. The appellant sought judicial review of this decision, but the Full Court dismissed the summons, interpreting section 206 of the Act as precluding review except for "excess or want of jurisdiction," which it held did not encompass a failure to exercise jurisdiction.
The central legal issues before the High Court were whether a State legislature could prevent a State Supreme Court from exercising judicial review for a wrongful failure to exercise jurisdiction, whether section 206 of the Act purported to do so, and whether the Commission had a duty to exercise its jurisdiction in this instance. The High Court was required to consider the application of the principles established in *Kirk v Industrial Court (NSW)* regarding the defining characteristics of State Supreme Courts under Chapter III of the Constitution and whether the power to issue mandamus to inferior courts and tribunals was such a characteristic.
The High Court reasoned that wrongly denying the existence of jurisdiction constitutes a jurisdictional error, and mandamus is an appropriate remedy for such a denial. The Court held that the principles in *Kirk* precluded a State legislature from preventing a State Supreme Court from reviewing jurisdictional error, including a wrongful failure to exercise jurisdiction. The Court found that section 206 of the Act, as interpreted by the Full Court, did purport to limit the Supreme Court's jurisdiction in a way that was impermissible. The Court concluded that the Commission had a duty to exercise its jurisdiction and that its erroneous finding that no industrial dispute existed was a jurisdictional error.
Consequently, the High Court allowed the appeal, set aside the orders of the Full Court of the Supreme Court of South Australia, and remitted the matter to the Full Court for determination of the appellant's summons for judicial review. The second respondent was ordered to pay the appellant's costs.
Orders
Orders of the court
1. Special leave to appeal granted.
2. Appeal treated as instituted and heard instanter, and allowed.
3. Set aside the orders of the Full Court of the Supreme Court of South Australia made on 15 March 2011.
4. Remit the matter to the Full Court of the Supreme Court of South Australia for determination of the appellant's summons for judicial review, including any questions of costs in the Full Court.
5. The second respondent, the Chief Executive, Department of the Premier and Cabinet of South Australia, pay the costs of the appellant in this Court.
Background
Background to the litigation
Counsel for the applicant opened his address by observing that "this is a relatively short point and can be determined relatively easily." The trouble is that opinions have differed about what the short point is and how it should be determined. The orders that the other members of the Court propose should be made, but for different reasons. Background A Full Bench of the Industrial Relations Commission of South Australia concurred with the decision of Commissioner McMahon at first instance. Commissioner McMahon had decided that there was no "industrial dispute" between the applicant and the second respondent (the Chief Executive of the Department of Premier and Cabinet)[78]. Commissioner McMahon therefore held that he lacked jurisdiction. Assuming that there was in fact an industrial dispute, his decision was a failure to exercise jurisdiction, and, subject to s 206 of the Act, relief in the nature of mandamus was available to compel the exercise of jurisdiction. [78]The expression "industrial dispute" is defined in s 4(1) of the Fair Work Act 1994 (SA) ("the Act") as meaning "a dispute, or a threatened, impending or probable dispute, about an industrial matter". Section 4(1) gives an extensive meaning to "industrial matter". The Full Court of the Supreme Court of South Australia dismissed the applicant's summons for judicial review. The Full Court held that it lacked jurisdiction because of s 206 of the Act. This holding was contrary to a concession by the second respondent. Section 206 permits challenges before the Full Court to determinations of the Commission only on the ground of "an excess or want of jurisdiction."[79] The Full Court correctly treated the Commission as having failed to exercise jurisdiction[80]. But the Full Court held that the words "an excess or want of jurisdiction" did not apply to a failure to exercise jurisdiction by reason of an erroneous finding that there was no industrial dispute. The Full Court reached this conclusion in the light of dicta in Public Service Association (SA) v Federated Clerks' Union, which considered a precursor to s 206 of the Act[81]. [79]See above at [46].[80]Public Service Association of SA Inc v Industrial Relations Commission of SA (2011) 109 SASR 223 at 229 [16]-[17].[81](1991) 173 CLR 132; [1991] HCA 33. This application raises three questions. First, in view of the principles stated in Kirk v Industrial Court (NSW)[82], is a State legislature precluded from preventing a State Supreme Court from engaging in judicial review of a wrongful failure by a tribunal to exercise jurisdiction? Secondly, if it is, does s 206 purport to do that? Thirdly, did the Act create a duty to exercise jurisdiction? For the reasons which follow, each question should be answered "Yes".[82](2010) 239 CLR 531; [2010] HCA 1.First question: is Kirk's case relevant to mandamus for failure to exercise jurisdiction? The applicant's submissions on Kirk's case. The applicant's submissions rested on two incontrovertibly correct propositions. One was that wrongly to deny the existence of jurisdiction is to make a jurisdictional error[83]. The other was that mandamus is a remedy granted to deal with denial of jurisdiction[84]. The applicant submitted that it was beyond the power of the South Australian legislature to prevent the Supreme Court of South Australia from engaging in review of jurisdictional error. Kirk's case dealt with a privative clause which purported to exclude all relief by way of the prerogative writs. It purported not only to exclude orders of certiorari (quashing decisions based on jurisdictional error) and prohibition (preventing decisions based on jurisdictional error from being made), but also orders of mandamus (requiring the performance of a duty to exercise jurisdiction which the decision-maker had actually or constructively failed to exercise). The decision in Kirk's case did not distinguish between categories of jurisdictional error. It did not suggest that jurisdictional error arising when a decision-maker purports to exercise jurisdiction that that decision-maker lacks should be treated differently from jurisdictional error arising when a decision-maker wrongly fails or refuses to exercise jurisdiction which that decision-maker possesses. Further, the reasoning in Kirk's case was not limited to privative clauses preventing judicial review of courts for jurisdictional error; it extended to privative clauses preventing judicial review of tribunals for jurisdictional error. [83]Kirk v Industrial Court (NSW) (2010) 239 CLR 531 at 573-574 [72]; Edwards v Santos Ltd (2011) 242 CLR 421 at 439 [46]; [2011] HCA 8.[84]Darling Casino Ltd v NSW Casino Control Authority (1997) 191 CLR 602 at 633; [1997] HCA 11; Bodrudazza v Minister for Immigration and Multicultural Affairs (2007) 228 CLR 651 at 675 [70]; [2007] HCA 14.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
FRENCH CJ
(dissent)
GUMMOW, HAYNE, CRENNAN, KIEFEL AND BELL JJ
(dissent)
HEYDON J
In Minda Home the Full Court awarded mandamus against the Industrial Commission on the basis that that Commission had wrongly construed a provision of the ICAA 1972 as not giving it discretion to allow an amendment to a defective notice of appeal. Absent amendment, the Industrial Commission lacked jurisdiction to entertain the appeal. Bray CJ relied upon reasoning in the decision of the Full Court of the Supreme Court of Queensland in R v Licensing Commission; Ex parte Nicolosi[22] for the proposition that an administrative body which misconstrues its own governing statute strays beyond the limits of its jurisdiction[23]. Wells J, in a separate concurring judgment, also held that, in declining to exercise a discretion to allow an amendment to the defective notice, "the Full Commission … must have relied – upon grounds of fact or law or both that lay beyond the bounds of its jurisdiction" and that "[i]n short, its decision was based upon an excess or a want of jurisdiction."[24] When the basis upon which mandamus issued in Minda Home is considered, the wide construction of "excess or want of jurisdiction", rejected in the 1991 PSA Case, may not have been necessary to support the grant of that prerogative remedy.[22][1962] Qd R 90.[23](1975) 11 SASR 333 at 338.[24](1975) 11 SASR 333 at 344.The decision of the Full Court The decision of the Full Court in this case, that it did not have jurisdiction to entertain the PSA's summons, applied to s 206 of the Fair Work Act the construction of s 95 of the ICAA 1972 which was adopted in the 1991 PSA Case. Chief Justice Doyle delivered the judgment of the Court. Duggan and Vanstone JJ agreed with his Honour's reasons[25]. [25](2011) 109 SASR 223 at 232 [30] per Duggan J, 232 [31] per Vanstone J. The Chief Justice referred to the observation in the joint judgment in Kirk[26] that "[l]egislation which denies the availability of relief for non‑jurisdictional error of law appearing on the face of the record is not beyond power."[27] His Honour observed that s 206 of the Fair Work Act permitted the Supreme Court to correct decisions by the Commission which exceeded its jurisdiction[28]. However he did not go on to suggest that a wrongful failure to exercise jurisdiction would not amount to jurisdictional error. The Chief Justice also held that it was not open to the Full Court to hold that the 1991 PSA Case had been reversed by the decision of this Court in Kirk, even though Kirk was based on submissions not considered in the 1991 PSA Case[29].[26]Public Service Association of SA Inc v Industrial Relations Commission of SA (2011) 109 SASR 223 at 225-226 [5].[27](2010) 239 CLR 531 at 581 [100] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ.[28]Public Service Association of SA Inc v Industrial Relations Commission of SA (2011) 109 SASR 223 at 226 [6].[29](2011) 109 SASR 223 at 226 [6]. The Chief Justice elaborated on his conclusion that the Full Court lacked jurisdiction by discussing the 1991 PSA Case in some detail. His Honour rejected, as inconsistent with the reasoning in that case, a submission that the Commission, having mistakenly denied the existence of the jurisdiction, had no jurisdiction to dismiss the appeal before it and was therefore in excess of jurisdiction in purporting to do so[30].[30](2011) 109 SASR 223 at 229 [16].