Public Service Association of South Australia v Federated Clerks Union of Australia South Australia Branch

[1991] HCATrans 35

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A25 of 1990

B e t w e e n -

PUBLIC SERVICE ASSOCIATION OF

SOUTH AUSTRALIA

Appellant

and

FEDERATED CLERKS UNION OF

AUSTRALIA SOUTH AUSTRALIAN

BRANCH and AUSTRALIAN SOCIAL

WELFARE UNION SOUTH AUSTRALIAN

BRANCH

Respondents

BRENNAN J
DEANE J
DAWSON J
GAUDRON J

MCHUGH J

Clerks(2) 8/2/91

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 8 FEBRUARY 1991, AT 9.31 AM

(Continued from 7/2/91)

Copyright in the High Court of Australia

BRENNAN J: Yes, Mr Kenzie.

MR KENZIE:  If it please the Court, we were addressing at

the adjournment the question of the extent to which
the words in section 121(5), that is, the opening

words of section 121(5), gave a discretion to the

Industrial Registrar. Your Honour, we leave aside

for the purposes of our first submission the
question of whether (a) to (c) of section 121(5)
involve matters of discretion or fact, but

concentrate on the effect of the words "may refuse

if" in section 121(5).

Your Honours, the primary submission of the

respondent is that the interpretation accepted by

the Supreme Court of South Australia in this regard

was correct, and that is to be found on page 62 of

the appeal book.	Mr Justice Mohr on that page said
this at point 4:

It is clear from the reasons given by the

Registrar that he found none of the grounds

referred to in section 121(5)(a), (b) or (c)

to have been made out ..... 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 section 121(5)

can be stated thus:

If having heard evidence and submissions you

find any of the following grounds (viz those

set out in 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 section 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

sub-section only arises if one or more of the

matters in (a), (b) or (c) are made out.

So that His Honour was clearly interpreting

the opening words of section 121(5) and the word "may" as giving rise to a discretion but only in certain circumstances. If the objections under (a)

to (c) were not made out then, in the view of the

supreme court, the discretion that section 121(5)

gave was irrelevant.	The case for the exercise of
the discretion never arose.	Now, that is, that if

the grounds were not made out, then there was an

entitlement to have the rule alteration made.

DEANE J:  Mr Kenzie, one problem with this case is

terminology. Would you dispute that 5(a), that is

Clerks(2) 49 8/2/91

the formulation of an opinion by the Registrar on

the matters involved there, was the formation of a

discretionary judgment?

MR KENZIE:  Yes, we would, Your Honour. We would submit

that -

DEANE J: Well, then, do you not need to say what you mean

by discretionary judgment?

MR KENZIE:  Yes, we do, and Your Honour, may I say I am not seeking to avoid that question. We come to that

squarely in paragraph B of our submissions but I am
dealing for the moment only with the question of

the work that the words "may refuse if" have to

do -

DEANE J: But it is not going to be enough for you to say

what you mean by discretionary judgment because in

ordinary terminology the opinion in S(a) would be
described as being discretionary judgment in that

it involves matters of value, assessment,

comparing, competing factors as to whose value

different minds might reach different conclusions.

MR KENZIE:  We will seek to persuade Your Honour to the

contrary, that that, in fact, is not the basis upon

which a discretionary judgment can be distinguished

from a decision as to fact or, indeed, law.

DEANE J:  You might seek to persuade us, but what I was

putting to you is that discretionary judgment is

commonly used as applicable to the formation of such

opinions. It was used by Justice Sholl, for

example, in the case we were referred to.

MR KENZIE: Yes, Your Honour, and it is conceded that one

may, at the extreme, shade off into the other. For

example, difficulties arise in relation to, for

example, (S)(c), we concede. If you look

at (S)(c), the Registrar is there dealing with the

question of whether it is proper:

for any other reason ..... that -

et cetera, in his opinion, and, Your Honour, it may

conceded that at that point you are dealing with what might described as a discretionary judgment

but in - - -

DEANE J: Well, take (a) and say that there were half a

dozen factors which were thought to advantage the

members and half a dozen factors which were thought

to disadvantage the members and the opinion is

whether the variation would prejudicially affect

the members. In my terminology, that is the making

of a discretionary judgment.

Clerks(2) 8/2/91

MR KENZIE: Well, Your Honour, that is because different

people may put different values on each of those

considerations.

DAWSON J:  Can you have a discretionary judgment as to a

question of fact?

MR KENZIE: In our respectful submission, there is truly a

distinction between the two.

DAWSON J: Different people might come to different answers.

MR KENZIE: That is right.

DAWSON J:	You are shading into deep areas, are you not?
MR KENZIE:	Yes, Your Honour, we accept that but we say that

there is a distinction that is certainly

discernible in relation to questions such as that

are raised in (a). More difficulty arises, we

concede, when you come to questions such as those

in - - -

DAWSON J:  Where one person has a choice and makes a choice

between two alternatives, which is not so in a

decision of fact, he has to decide (a) is or is

not, or (b) is or is not. Is that a distinction?

MR KENZIE:  Your Honour, it is no more an exercise of

discretion for the Registrar to say, "Look, I think
the members of the applicant association or
organisation are prejudiced by this alteration."

than it is to form a view as to whether, for

example, language is abusive or something is

reasonable or unreasonable."

DAWSON J: Because you say he has to come to a definite

conclusion, not make a choice between two

alternatives. That is the difference.

MR KENZIE:	He has to come to a conclusion.
DAWSON J:

And that is the difference between deciding,

well, a question of fact - if you want to put it

that way - and the exercise of discretion.

MR KENZIE: Yes, Your Honour, it is a very basic proposition

but that is it.

DEANE J: But nobody would dispute that there is a

difference between those things. All I am pointing

out to you is that the starting point is that many

people use a discretionary judgment to refer to an

opinion which involves an assessment of the

comparative value of different factors. Well now,

that means that we are almost reduced here to

Clerks(2) 51 8/2/91

analysing in what sense the Commission used the

reference to exercising a discretion.

MR KENZIE: In a sense, Your Honour, I concede that is so

but, Your Honour, whatever difficulties may be

encountered in that regard in relation to what the
Full Commission did ultimately in relation to (a)

and (c), when one comes to (b), on any view, what the Commission was dealing with - and I will have

to take the Court to it in due course - were clear

findings of fact and law, Your Honour, and it is a

horse of a different colour, with respect.

DEANE J: But we then come to the point that if that is what

is involved in terms of reasons for refusing

special leave to appeal and if that was all that

was involved it strikes me as a very strange

proposition that there is an excess or failure to

exercise jurisdiction if they got it wrong.

MR KENZIE: Well, Your Honour, in our respectful submission,

if the Full Commission misunderstood that its

function was to correctly determine the - - -

DEANE J:  But on what I am putting to you - I am not going

to the further aspect - on what I am putting to

you, your argument is that the Commission

misunderstood what the Registrar had done, on this

aspect of the case.

MR KENZIE:  And what the Registrar was obliged to do, with

respect, Your Honour.

DEANE J: Yes.

DAWSON J: Well then it did not tackle the question of

whether the	Registrar had done what he ought to
have done.	That is really what you are saying, is
it not?

MR KENZIE: Yes, Your Honour.

DAWSON J:  And if it did not tackle the question and that

was the question before it, it did not exercise the

jurisdiction ..... , it exercised some other

jurisdiction.

MR KENZIE: Exactly. It was obliged to consider.

DEANE J:  But it did not have to tackle that question. It

had to decide whether it was giving leave to

somebody to raise that question before it.

MR KENZIE: But Your Honour, if it approached the question -

in deciding whether to grant leave, it had a very

wide jurisdiction and it was obliged to consider

matters which bore upon - - -

Clerks(2) 52 8/2/91

DAWSON J: One thing that was relevant to leave is to whether

there is a prima facie error.

MR KENZIE:	Yes, Your Honour.
DAWSON J:	It could not decide whether there was an error or not if it did not even tackle the question of what
the man was meant to do.

MR KENZIE: That is right, Your Honour. That is precisely

it, with respect, and the Full Commission never got

around to considering whether the Registrar was

obliged to determine these matters finally. It

never got around to determining whether, on appeal,

these matters would be required to be determined by
the Full Commission. It was obliged to consider

whether there have been a prima facie error in

relation to the matters before it. It simply

declined to consider those questions, in our

respectful submission. It did so because it

conceived that all it was doing was entertaining an

application for leave to appeal from an exercise of

discretion, because that is all the Registrar was

doing.

Now, if the Registrar was doing more, then the

Full Commission failed to understand the magnitude of the application for leave before it and it simply never got around to exercising that part of

its jurisdiction on the application for leave to

appeal which called upon it to decide whether there

was a prima facie error in relation to those

matters.

GAUDRON J: This comes back to where is that notice of

appeal, I must say.

MR KENZIE:  Yes, Your Honour, can I attend to that

GAUDRON J: Before you do that, can I just clarify for myself, is your submission really this: the

Registrar never considered whether the proposed

membership could conveniently belong to the

appellant associations because he formed a wrong

view in law that as a matter of law they were not

eligible for membership of those associations?

MR KENZIE:	Yes, Your Honour.
GAUDRON J:	And that the Industrial Commission simply failed to address your arguments that the Registrar had
refused to form a judgment about "conveniently
belong"?

MR KENZIE:  Yes, Your Honour. The applicants for leave to

appeal went to the Full Commission and asked the

Full Commission to grant leave to entertain an

Clerks(2) 53 8/2/91

appeal in which the applicants for leave were
seeking to persuade the Full Commission that the

Registrar made an error in that regard and the Full

Commission - - -

GAUDRON J:  Not only made an error, made an error as to his

own jurisdiction.

MR KENZIE:  Made an error as to his own jurisdiction and, in

that regard, the Full Commission failed to have

regard to what the applicant sought to have argued

before it.

BRENNAN J: Could I clarify it a little further for my

benefit now? Made an error as to his own

jurisdiction or made an error as to the manner in

which his jurisdiction was exercised?

MR KENZIE:  Your Honour, it was being asked to exercise its

jurisdiction to entertain an application for leave
to appeal. It was obliged to consider, in that

application, what it was that the applicants sought

to have argued on appeal. It was within the

jurisdiction of the Full Commission to consider

whether there was a prima facie error on the part

of the Registrar in forming the view that you never

got around to conveniently belong because, as a

matter of law, relevant persons could not be

enrolled into the objecting unions. It never got

around to considering that question because it did

not think that that question was raised before it

or would be raised before it on the appeal. It was

wrong in that and it simply failed to exercise its

jurisdiction.

BRENNAN J: At the basis, as it were, of all of this, your

clients were saying that there was a discretion to

refuse registration because paragraph (b) was

satisfied.

MR KENZIE:	Yes.
BRENNAN J:	And he was saying that paragraph (b) was

satisfied because the "conveniently belong"

argument on the true construction of the rules was

to be answered in your favour.

MR KENZIE: Yes.

BRENNAN J:	The Registrar found that that argument was to be answered against you because he misconstrued the
rules.

MR KENZIE: Yes.

Clerks(2 54 8/2/91

BRENNAN J: 

You then wish to agitate on appeal the question

of whether the Registrar had been right or wrong in
his construction of the rules?

MR KENZIE: 

Yes, Your Honour, as distinct from the question of whether it was reasonably open to the Registrar

to form the view that he did on this or any other

matter, yes, Your Honour. It was contended that

the Registrar was wrong in that regard.

BRENNAN J: Because he had misconstrued the rules?

MR KENZIE: Yes, Your Honour.

BRENNAN J:  And the Full Court said it was no more than a

discretionary exercise?

MR KENZIE: That is right and, therefore, never got around,

in our respectful submission, to considering

whether it should exercise its jurisdiction in

relation to rehearing the argument on the question

of law.

BRENNAN J: Well, the Full Commission then said, "It was a

discretion only on our construction of (5)".

MR KENZIE:	Yes.
BRENNAN J:	"And we do not think we should grant leave". matter, under subsection (5) and we cannot discern
MR KENZIE:	Because we construe it as only a discretionary

any failure to properly exercise the discretion,

leave must be refused.

BRENNAN J:  Does that not mean that what the Full Commission

did was that it misapprehended, on your argument,

the nature of your argument in reaching its

conclusion?

MR KENZIE: It did that.

BRENNAN J: Did it do any more?
MR KENZIE:	Your Honour, it assumed that notwithstanding

that the applicants were putting to it that it was

required to correct an error of law, it proceeded

on the basis that its function was only to correct

errors of discretion. It amounted to more than a

failure to understand the argument; it amounted to

a determination that unless the applicant could

disclose a failure to properly exercise a

discretion, that that was the end of the matter.

DEANE J:  It misapprehended the question which would be

involved in the appeal?

Clerks(2 55 8/2/91

MR KENZIE:  Yes, Your Honour and to that extent

misapprehended the scope of the appeal.

DEANE J:  No, it misapprehended the question which would be

involved in the appeal and your argument has to be

that when a court has a function of granting leave
to appeal and it refuses leave in circumstances

where it misapprehends the question which would be

involved in the appeal, it has acted in excess or

want of jurisdiction and its jurisdiction to grant

or refuse leave to appeal.

GAUDRON J:	Or has refused to exercise its jurisdiction?
MR KENZIE:	Yes, Your Honour, and where the Full Commission

was exercising jurisdiction to leave, it was

obliged to consider matters relevant to the

exercise of leave, and if it misconceived the

question before it, it can truly be said that it

failed to appreciate its task.

BRENNAN J:  One has to identify what is the question before

it before one can say that that question was

misconceived, and it might be of importance for you

to frame with some precision what you say was the

question which was misconceived in order to

determine whether or not the decision on that

question is, on your submission, an erroneous
decision, but within jurisdiction as distinct from

an erroneous decision which takes it outside

jurisdiction.

GAUDRON J: Yes, and while you are thinking about that I am

been presuming that one was talking about

jurisdictional error so that it covered, for

example, a refusal to exercise jurisdiction, but

that is not what section 95(b) is concerned with at

all. It is concerned with an error by which the

Commission exercises a jurisdiction it does not

have.

DEANE J: It is only excess or want of jurisdiction??
MR KENZIE:	Yes, Your Honour.

McHUGH J: In your favour, the South Australian Supreme

Court has interpreted those words to cover every

case where a prerogative writ would lie.

MR KENZIE:  I was about to refer His Honour to

Chief Justice Bray's decision in that regard.

McHUGH J:  I must say I query whether those cases in South

Australia are right.

Clerks(2) 56 8/2/91

BRENNAN J: Well now, you have a lot of questions on your

plate at the moment, Mr Kenzie. You can deal with

them in whatever order you think appropriate.

MR KENZIE:  We were proposing to rely on the approach of

Chief Justice Bray in relation to the construction

of section 95(b) and the availability of the prerogative writs in the event of an alleged

failure to exercise jurisdiction, and we will take

Your Honours to the relevant authority.

DAWSON J:  I suppose you can say that if a particular

question would be relevant on appeal, the same
question must be relevant on an application for

leave to appeal, and if on that application the

Commission addresses some entirely different

question and answers it, it is in a sense acting

outside its jurisdiction.

MR KENZIE:  Your Honour, that really is the approach that we

have submitted. It is impossible, in our

respectful submission, to properly exercise

jurisdiction to deal with an application for leave

to appeal if there is a fundamental misconception

as to the nature of the appeal. It could not truly

be said that a tribunal entertaining a leave

application is exercising its jurisdiction if it so

misapprehends the nature of the matter which it

would ultimately be called upon to determine if

leave is granted.

DAWSON J:  In other words, want of jurisdiction to do what

it did because it ought not to have done what it

did. It was not that which was before it.

MR KENZIE: Yes, Your Honour. It was required to consider

one question because that was the question that was

going to be put before it on appeal. If it

fundamentally misconceived that question, it cannot

be said that it brought its mind to bear on the

question of whether leave ought to be granted for

that to be argued.

DAWSON J: But that is just a failure to exercise

jurisdiction. You would have to go further and

say, "But it did answer a question" and that is

what motivated it to give its decision and that was

a question which was not before it, and that was

the excess of jurisdiction.

MR KENZIE:  Yes, Your Honour. Your Honour, we would put it

both ways, but in the

McHUGH J: Well, I have difficulty with your proposition.

Take the Court of Criminal Appeal. Supposing on

leave to appeal against a conviction, the applicant

says leave should be granted because evidence was

Clerks(2) 57 8/2/91

wrongly admitted and the Court of Criminal Appeal

says, "We refuse leave because the trial judge has

got a discretion about whether he admits evidence".

Counsel says, "My point was, as a matter of law it

shouldn't have been admitted". Now, you can hardly

say, in those circumstances, the Court of Appeal

had failed to exercise its jurisdiction or

misconceived its jurisdiction. It just made a

mistake.

MR KENZIE:  Your Honour, we would contend to the contrary,

with respect. If the question that the tribunal is
being asked to decide at the end of the day is

whether to overturn as a matter of law or fact a

determination, it perceives that all it is being

asked to do is to interfere with an exercise of

discretion, that it is addressing its mind to quite

a different proposition; quite a different

exercise, Your Honour. This is independent of the
question as to whether it is engaged in the task of

rehearing the matter entirely, of course.

BRENNAN J:  Mr Kenzie, you use the term "fundamental", for

example; "quite a different" is another phrase, and

this, I take it, is to bring the case within the

Anisminic principle?

MR KENZIE:  Your Honour, it is to bring the case within the

well-established principle which was discussed by

this Court in the first Brideson case. That is,
"Did the tribunal so misapprehend its task that in

truth it can be said that it has failed to exercise

its jurisdiction?".

GAUDRON J:  You have to go one step further than that which

is the point of what Justice Dawson has been

putting to you.

MR KENZIE: Well, Your Honour, we submit to the contrary,

but I understand. May we come to that? Now,

Your Honours, could I perhaps develop the matters

in the outline of submissions and come to some of

the difficult questions that Your Honour has

addressed to us.

Your Honours, we were dealing with the opening

words of section 121(5), and adopting the approach

of the supreme court on page 62, we say that that

approach to the construction of the section is

supported, Your Honours, by a number of
considerations. Firstly, it is supported by the

words of the section, "may refuse if". Secondly,

it is supported by the history of the legislation.

Your Honour Justice Gaudron asked a question

yesterday as to the history of the section in so

far as it involved the introduction of what is now

subsection (6). May we attend to that by referring

Clerks(2) 58 8/2/91

Your Honours to the history of the legislation.	We
gave copies of the relevant document to the Court
this morning.

DAWSON J: Is that a copy of the previous legislation?

MR KENZIE:	Yes, it looks like Your Honour has it.
BRENNAN J:	The first page is Industrial Conciliation and

Arbitration Act, 1972-1975, section 119.

MR KENZIE: That is right, Your Honour. Your Honour, just

by way of explanation of the documents Your Honours

have, the first two pages are from the 1972 Act

when section 121(1) provided:

A registered association may, in the

prescribed manner, and on compliance with the
prescribed conditions add to, alter, or

rescind any of its rules, including -

constitution rules, and -

(3) The Registrar shall, upon application

made to him for the purpose in manner

prescribed, and on being satisfied that all

the prescribed conditions and requirements

have been complied with, register any addition

to, alteration or rescission .... but -

he -

shall not be required to register any such addition, alteration, rescission or change which, in his opinion, would prejudicially

affect the members of the applicant

association or of any other association.

And then (4), Your Honour, which finds reflection

in current subsection (6), provided that:

Notwithstanding anything in

may register any addition subsection (3) of this section, the Registrar	to ..... notwithstanding that the addition .....
may prejudicially affect -

in order

to bring those rules -

into line with those of a federally registered

organization.

So that you had there, in the 1972 Act, a

clear indication that absent the single matter that

was available by way of objection, the Registrar

Clerks(2) 59 8/2/91

was obliged to register the rule change and he was

given a discretion to do so even in the event that

that matter was made out in certain circumstances.

The third page of the document that

Your Honours have is the 1984 amendments when the

Act was really brought into line with the present

provisions. There have been amendments made since
then and Your Honours have those in the last two
pages but they are amendments that do not affect
the debate that is before the Court.

Your Honours can see that in 1984 the Act was amended to introduce subsection (5), so what went

out was the provision that dealt with the duty of

the Registrar to register on being satisfied that
the prescribed conditions were complied with and

you came to subsection (5).

All that we submit about that is that the

history is consistent with - not one of a general

discretion in the Registrar to refuse or grant,

regardless of the outcome of objections, but that

the prima facie position is that an organization is

entitled to have its rule alterations approved and

certified unless one of the objections is made out.

And you could not read the introduction of

subsection (5) in 1984 as giving rise to a general
discretion for the first time, having regard to the

history of the legislation and the language of the

legislation.

Your Honours, that approach, in our respectful

submission, is consistent with the approach of this

Court in the first Brideson case, 166 CLR 338, a

case which, as Your Honours will know, involved the consider matters consonant with the policy and
Court deciding that the federal Industrial
objects of the Act in determining whether an
organization would be registered, this being so

because of the context of the Act and because the

Act went on to set out the considerations which	would be brought to bear when the Registrar	exercised his decision on an application to
register.

Your Honours, the case involved section 132,

as Your Honours can see from the headnote which

provided that:

certain associations might be registered as

organizations of employees on compliance with

the prescribed conditions.

There was section 142 which I will not trouble

Your Honours with at the moment but that had its

Clerks(2) 60 8/2/91

own residual discretion and what the Registrar did

on application for registration in that case was to

determine the matter on the basis of his views as

to the general industrial desirability or otherwise

of allowing the registration.

On page 342, the Court points out that:

The Act, ins 132(l)(b) and (c), defines the

associations that may be registered as

organizations of employees and provides that

any such association "may, on compliance with

the prescribed conditions, be registered in

the manner prescribed as an organization".

And the Act went on to deal with the conditions to

be complied with. The Court referred to

section 142, and I do not trouble the Court with

that. At page 344, point 2, the Court said this:

The Commission held that objections could

be taken and registration refused on grounds

other than those specified in pars (a), (b)

and (c) of reg 119(2), provided that the

grounds were not extraneous to the purposes of

the Act.

At the bottom of the page, about point 9:

determination is whether and, if so, to what extent the Act and the Regulations permit the	The question which now arises for the power conferred bys 88F(4) of the Act, to refuse to register an association by reference
to those considerations.

At the bottom of the following page 345:

Regulation 119(2) gives expression, in

pars (a), (b) and (c), to the only grounds

which the Act (in ss 132 and 142) and the

Regulations (in reg 115) expressly recognise

registration of an association.

as constituting impediments to the

And the Court then dealt with earlier authority

which suggested that the Registrar's discretion was

not relevantly fettered - the Sulphide case - and

on page 347 at point 2, the Court said this:

A legislative direction to decide does

not, as a matter of ordinary statutory

construction, import a discretion to give

effect to that which, having regard to the

scope and purposes of the legislation, is in

the opinion of the decision-maker desirable.

Clerks(2) 61 8/2/91

A discretion of that nature will be implied

only if the context (including the subject-

matter to be decided) so necessitates as, for

example, where the context provides no

positive indication of the considerations by

reference to which a decision is to be made -

reference to authority. And then at point 4:

Neither the Act, as it stood at the time

of the decision in the Sulphide Case, nor the

1913 Regulations gave any positive indication

as to the conditions upon which a change of

constitution could be effected, the nature of

the objections that might be taken, or the
considerations to be taken into account by the

Registrar in determining whether to allow the

change. The present context is very

different. Sections 132 and 142 and reg. 115

identify the conditions necessary for

registration. Regulation 119 identifies

available grounds of objection, albeit that it

doBs not exclude any ground of objection

upon the Registrar by reg. 123 is expressly made "subject to the Act and these Regulations". The context does not permit, and the express subjection of the decision-

otherwise available under the Act or

making power to the Act and Regulations makes

it impossible for reg. 123 to be treated as

the source of, a general discretion to do that

which, in the opinion of the Registrar, is

industrially desirable. If there is a general discretion allowed to the Registrar it must be

found elsewhere.

And the Court found that the Registrar had erred in

circumstances where the governing words of

section 132 that an organization -

may ... be registered -

but none the less the Registrar had erred in

deciding that he had general discretion to do that

which he found was in accordance with the policy of

the Act, that is, for example, consider general

questions like the undesirability of competition

between unions and the like, and the Court said

that that was not open to the Registrar, having

regard to the context, the context including the

selection by Parliament of particular grounds of

objection.

Now, Your Honour, of course it is a different

Act, but the context in the South Australian Act, the selection of the bases for objection, the

Clerks(2) 62 8/2/91

language of section 121(5) in the opening words,

make appropriate the conclusion that the supreme

court reached in relation to the scope of the

discretion, if any, of the Registrar.

Now, Your Honour, the matter may be thought not to be entirely free from doubt. It may be that

the supreme court has, in effect, seen a discretion

existing because of the opening words of

section 121(5) that is truly not there and that is

what we address in paragraph A.2. The alternate

argument, one which does not help our learned

friends, is that in truth the words "the Registrar

may" do not import a discretion even in the event

of the objections being made out as found by the

supreme court. Again - this is a matter which may

not have to be decided, Your Honours, but we do

point out that it is an unlikely construction of

section 121(5) that a discretion to register could

exist in the face of a finding that an objection

under subsection (S)(c) had been made out. In

other words, if the Registrar formed the view that

there were other reasons, reasons other than (a)

and (b) that would make it not proper for the

application to be granted then it is difficult to
conceive that the Registrar was intended to have a

discretion none the less to decide to the contrary.

Now, Your Honour, that approach is an approach

which found support in the decision of this Court

in Finance Facilities case, 127 CLR 106. The case

concerned relevantly section 46 of the Income Tax

Assessment Act which provided that subject to other provisions the Taxation Commissioner:

may allow a shareholder, being a company that

is a private company ..... a further rebate ... if

the Commissioner is satisfied that -

and then you found set out conditions (a) to (c)
and (c), and I am reading from the head note on

page 107, was:

or

(c) having regard to all the circumstances, it
would be reasonable to allow the further

rebate."

And the question that arose for determination in

the Finance Facilities case was whether, because of

the words "the Commissioner may", in the opening

part of section 46(3), the Commissioner had a

discretion notwithstanding an active finding in

relation to (a) or (c). The matter was initially

determined by His Honour Mr Justice Gibbs who

initially determined that notwithstanding the

indications in (c) and the possibly inconvenient

Clerks(2) 63 8/2/91

result there was a residual discretion and

His Honour did that at page 124 of the judgment

applying Ward v Williams at point 4 accepting that:

the form of paragraph (c) does lend some forth
to the taxpayer's argument, it seems to me

clear, upon the proper construction of

section 46, that the power given by

section 46(3) is discretionary.

And Your Honour, this Court subsequently formed a

contrary view, having regard to the clear

indications in subsection (c), and Your Honours

will find that, for example, in the decision of

His Honour Justice Windeyer at page 133 to 135.

His Honour says at 133, point 5:

In the present case condition (a) was

fulfilled.	Of that the Commissioner was in
fact satisfied.	He could not have been

otherwise than satisfied. Condition (c) is

thus irrelevant, except for such light as it
throws upon the critical question in the case,

which is, the Commissioner being satisfied of

the matters set out as (a), must he allow the

further rebate provided for in the sub-section

or has he a discretion to refuse to do so?

The case for the Commissioner is that, as the

Act says that he "may allow a further rebate" he is not bound to do so notwithstanding that

a condition precedent be met. The case for

the taxpayer ..... is that, if the condition be

fulfilled to the satisfaction of the

Commissioner, he must allow the rebate.

"May", it was said, should be read as if it

were "shall".

And His Honour deals with that on page 134.	There
is a discussion as to the use to be given to	the
words "may allow", on page 134 at point 6. His Honour points out that:

the scope of the permission or power given is

circumscribed. Conditions precedent for its

exercise are specified as alternatives. The
question then is, must the permitted power be

exercised if one of those conditions be

fulfilled?

This does not depend on the abstract

meaning of the word "may" but of whether the

particular context of words and circumstance

make it not only an empowering word but

indicate circumstances in which the power is

to be exercised - so that in those events the

"may" becomes a "must" .

Clerks(2) 64 8/2/91

On page 135 point 2 he says:

If the Commissioner, having considered the matter, is satisfied of facts out of which the

power to allow a rebate arises, he cannot

nevertheless refuse to allow it. That is

obvious in the case of condition (c): and it

seems to me to be so also in the case of the

alternatives (a) and (b).

And, Your Honours, we simply observe that it is

equally an unlikely construction that if the

Registrar formed a view under (c) of section 121(5)

that he could thereafter have a discretion to come

to a different view and if that be the case in

relation to 5(c) it is really difficult to see the

opening words doing different work in relation to

5 ( a ) and ( b) .

BRENNAN J: I suppose the converse or implication of that

proposition is, if there is discretion in the

opening words of (5), then there is a discretion in

(5) (c).

MR KENZIE: Yes, Your Honour, I think that must follow. We

go on to say that there may be a difference between

(S)(c) on the one hand and (a) and (b) but,

Your Honour, we do accept that. We go on to say

that even if we are wrong about (c) ultimately,
that none the less there was an obligation of the
part of the Registrar and, in turn, the

Full Commission, to consider the correctness or otherwise of decisions relevant to and necessary for the formation of views under (a) and (b).

Now, Your Honours, in paragraph B of our

outline we come to the question of the issues the

subject of the application for leave to appeal. It

is our respectful submission that the

determinations envisaged are in fact determinations

of fact and may we perhaps add to that. In so far

as (b) is concerned, determinations of law as

opposed to questions of judicial discretion.

BRENNAN J:  Now, could we just identify these terms a

little. By "fact", do you mean a phenomenon or

event which, if examined, must be found in the same

way by any person who addresses the task?

MR KENZIE: Well, Your Honour, not must inevitably be so

found but is capable of a right and wrong answer.

By that I mean, it is to be expected that in

relation to various questions different people will

have different views.

BRENNAN J: Well, I am not following this at all because if

there is a right and wrong answer, it must be right

Clerks(2) 65 8/2/91

or wrong by reference to some criterion. If it is

not a phenomenon as an existing thing, then the

criterion must be something else - ..... values.

MR KENZIE:  Your Honour, we do submit that there is a

distinction between something which is capable of a

so called right or wrong answer although it may in

fact be determined differently and perhaps

erroneously by one person as opposed to another and

an exercise of discretion, and the exercise of discretiom really involves the creation of new

rights on the basis of determinations which might

be determinations of fact, law and inference.

Your Honour, can we make the matter as clear

as we can by taking Your Honour to the discussion
of this in Salmond, which we have put on our list

of authorities.

BRENNAN J: Well, by all means take us to it but it would be

of great assistance if you could identify what, in

your argument, is said to be fact - law, I presume,

is not in issue - and what is opinion or

discretion.

MR KENZIE:	Your Honour, law is in issue, with respect.
BRENNAN J:	I appreciate it is an issue in the circumstances of the case but the meaning of the term.

MR KENZIE: Yes, Your Honour. Could we perhaps, before

answering Your Honour, take Your Honour to the

passage in Salmond which we have put in our list of

authorities - in the 12th edition, pages 68 to 69 -

where this question, which is not without

difficulty, is discussed.	Your Honours, at about
point 6 this appears:

There is, however, a narrower and more

specific sense, in which the expression

question of fact does not include all

questions that are not questions of law, but

of fact is opposed to a question of judicial	only some of them. In this sense a question
discretion. The sphere of judicial discretion
includes all questions as to what is right, just, equitable, or reasonable ..... A question of judicial discretion pertains to the sphere of right, as opposed to that of fact in its stricter sense. It is a question as to what
ought to be, as opposed to a question of what
is. Matters of fact are capable of proof, and are the subject of evidence adduced for that
purpose. Matters of right and judicial
discretion are not the subject of evidence and
demonstration, but of argument, and are

Clerks(2) 66 8/2/91

submitted to the reason and conscience of the

court -

and then examples are given, Your Honour. If I may

refer Your Honours to page 69.

BRENNAN J: Unfortunately, we have a wrong reproduction. We

have got section 68 and 69 instead of pages.

MR KENZIE:	I am sorry, Your Honours.
BRENNAN J:	No, it is not a problem but you might bear that

in mind in your citation.

MR KENZIE:  Your Honours, I will not read on, but examples

of the distinction are given:

Whether the accused has committed the criminal

act ..... is a question of fact; but whether, if

guilty, he should be punished by way of

imprisonment or only by way of find, is a

question of judicial discretion or of right.

Now, questions of whether a divorce court is entitled to make orders on the basis of whether certain acts have occurred, in former times,

adultery, raise questions of law and fact. What

ought to happen as a result of those findings is a

question of discretion and those findings, of
course, would be findings of fact of law, or

inferences drawn by the court or tribunal from the

facts as found.

Now, Your Honour, what we say is that the matters addressed in (a), (b) and (c) do not become

matters of discretion because the section in which

the relevant words are found are cast in general

terms and use words in general usage which might be

construed by person A in one respect and person B

in another respect. Notwithstanding the fact that

different people might form different views as to

whether something is abusive language, for example,

the courts have held consistently that findings as

to whether language is abusive are findings of fact

and those are findings which are capable of being

overturned on appeal.

DEANE J:  You put that (c) is a question of fact, do you?

MR KENZIE: Primarily, Your Honour.

DEANE J: In the sense explained by Salmond?

MR KENZIE: Yes, Your Honour. Just because the question is

one of whether something is proper does not mean

that it is not a question of fact. Just because

Clerks(2) 67 8/2/91

the section addresses itself to the opinion of the

Registrar as to whether something is proper - - -

McHUGH J: But, do you accept that the section as a whole

requires a discretionary judgment on the

Registrar's point?

MR KENZIE:	No, Your Honour.	We submit - - -
McHUGH J:	You say there are no discretions at all?	It is

not a discretionary judgment.

MR KENZIE:  We say two things. We say, firstly, the

supreme court recognized that there was a

discretion in the section but only in certain

circumstances. That is, in the circumstances where

the grounds under (a) to (c) were made out, that

"may" meant may, but only where those grounds were

made out so that the section was discretionary but

only to that extent. We say that - - -

McHUGH J:  Look, you will have to help me because I must say

my mind just seems to be on a different plane to

everybody else's in this case. At page 23 in the

president's judgment at lines 25-35, is it not
plain, when you read his judgment as a whole that

all the Deputy President Allan is doing is saying

that the section involves a discretionary judgment.

Do you accept that?

MR KENZIE: Yes, Your Honour. He is saying that.

McHUGH J:  He is answering an argument that he should have a

full argument before you hear the leave to appeal,

and he refers to the cases and the practice in New

South Wales, and then on page 23 at line 25 he says

the section confers a discretion and a wide

discretion. Then in the bottom paragraph he talks

about what you have to do to overturn, and then on

page 24 he says:

It seems to me, therefore, that unless the

applicant for leave to appeal ..... can

demonstrate that there is a real likelihood

that the exercise of discretion has

miscarried, leave to appeal should be refused.

Then he says he does not think there was such a

likelihood. Then he deals with the arguments -

and he deals with them at very considerable length

- that are put. Finally he says on page 30 at line

35:

It was for these reasons I thought leave

to appeal should be refused. I was not

satisfied that there existed a real likelihood

Clerks(2) 68 8/2/91

that the exercise of the discretion had

miscarried. It had not been demonstrated

et cetera, and so on. I am afraid I must be lost.

I cannot see any possible error or any criticism

that could be levelled at this judgment.	I just do
not understand what it is all about.

MR KENZIE:  Your Honour, in our respectful submission, the

passages that you have just read demonstrate that

what the Full Commission thought it was about was

discovering whether there was an error in the

Registrar's decision of the nature discussed in

cases such as House v Rand Gronow's case. It was

looking only at the question of whether there was a

real likelihood that the exercise of the discretion

had miscarried.

McHUGH J: That could be because he made a wrong finding of

fact, a wrong conclusion of law, but I cannot see

anything there, if you read his judgment fairly as

a whole, that indicates that he did not know what

he was about.

MR KENZIE:  Your Honour, in our respectful submission, if

the Full Commission was deciding that the question

before it was whether the Registrar was wrong in

findings of fact and law that he had made, that

that would have appeared in the judgment. But that

is not what the Full Commission is saying, with

respect. What the Full Commission was asked to

address was the question of whether there had been

errors of fact and law.

McHUGH J:  They go through and they deal with your arguments

on the questions of law. He deals with

Mr Heywood-Smith's arguments and he deals with it

for pages.

MR KENZIE: Yes, Your Honour, but the Full Commission

addressed it on the basis that they would not

interfere, or indeed be entitled to interfere,

unless there was a demonstrated error in the sense

of a failure to exercise a discretion.

DAWSON J:  Your proposition is the question is whether a

discretion arose at all, not whether a discretion

had miscarried. They missed the first question and

went straight to the second.

MR KENZIE:	They were asked to consider whether he was wrong and they said, we are only going to consider the
question of whether there was grounds for assuming
or finding that he had fallen into error in the question.

Clerks(2) 69 8/2/91

McHUGH J:  But that depends upon the nature of the sort of

jurisdiction conferred on the Registrar by

section 121(5).

MR KENZIE: Yes, it does.

McHUGH J:  Now I hear you deny that it is a discretionary

judgment, full stop. I must say at this stage you

are a long way from convincing me that it is not a

discretionary judgment, but in the course of it

there are many findings of fact, questions of law, questions of principle and so on, that have got to be considered, but in accordance with appeals

against discretionary judgment, you can only

succeed if you prove that there was some error of

law or fact and so on and Deputy President Allan

considered that. Now he may have got it wrong, but

he was not under any misconception as to what he

was about.

MR KENZIE:  If we are wrong about the effect of

section 121(5) then the argument falls,

Your Honour.

McHUGH J: Well that is the beginning and end of the case,

is it not?

MR KENZIE:  Your Honour, if section 121(5) is about and

only about the exercise of discretion, then the considered the question which was before them.

McHUGH J: Well, what about a custody case? That is a

discretionary judgment, whether somebody is a fit

and proper person to have custody of a child.

There are many questions of fact and law involved

in that. That is House v R itself.

MR KENZIE:  Your Honour, section 121(5) expressly calls upon

the Registrar to make findings on certain matters. It is not simply a section that says the Registrar

can decide whether to give custody or not. It

calls upon the Registrar to decide certain matters

and, as we put it - this is the effect of the
Brideson case -	you cannot answer the question by

simply saying, well look the Registrar has got a

general discretion. I mean, if that were the - - -

MCHUGH J: But he has a discretion, for instance, under (c).

Jurisdiction conferred under (5) must be a

discretionary jurisdiction. He can throw out an

application for a reason which, in his opinion, is

sufficient for it - - -

MR KENZIE: Yes, Your Honour. Any other reason, that is,

(c) is separate from (a) and (b), so the fact that

he could do that, and we may be wrong in relation

Clerks(2) 70 8/2/91

to (c), does not mean that he is not obliged to

consider questions under (a) and (b), including the

questions of fact.

McHUGH J:  No, of course not, but (c), if anything else,

really underwrites the point that it is a

discretionary judgment. As a whole, the section

confers a discretion on the Registrar and to

undermine that sort of judgment you have got to

attack it on House v R principles.

MR KENZIE:  Your Honour, if we be wrong in this, we concede

the debate.

McHUGH J: Well, is that all the case is about then?

MR KENZIE: Well, if the section is discretionary, the

Full Commission said it was discretionary and they

were concerned with an appeal from an exercise in

discretion, they made no error and that is the end

of the matter.

DEANE J: Well, are you conceding a little bit too much

there in that your argument in point 9, which does

not seem to have been relied on by the Full Court,

is a completely distinct argument.

MR KENZIE:  Yes, Your Honour, I am sorry, I am dealing with

the - - -

DEANE J:  You were conceding that it was the end of the

case.

MR KENZIE:  I am sorry. It is certainly the end of the

matters that I am presently addressing. The

question of Brideson (No.2) is a separate question,

Your Honour.

BRENNAN J:  You have canvassed section 121(5) fairly

extensively. You have identified the areas of

argument, I think.

MR KENZIE: Yes, Your Honour. Could we refer Your Honours

now to the application for leave to appeal, which

we have had made available over the adjournment in

response to the questions that were raised

yesterday, to demonstrate that what the

Full Commission was being asked to do was to

consider afresh the matters considered by the

Registrar. Do Your Honours have that document?	It
is an application for leave to appeal dated
2 August 1989.

Your Honours, this document makes it clear, in

our respectful submission, that what the Full

Commission was being asked to do was to consider

the matter in terms of its jurisdiction under 104

Clerks(2) 71 8/2/91

and 105 and form its own view as to the outcome of

the applicant's application.

Your Honours, that is made clear, we would

submit, by the orders that were sought on the

appeal, the bottom of the first page. They

include, of course, simply orders setting aside

orders 1 and 2 but order 3, an order dismissing the

application of the applicant to amend its rules.

So the applicants for leave to appeal were seeking

to have the Full Commission dismiss the application

of the applicant in the exercise of its powers

under section 104 and 105 and, as we would have it,

section 121(5).

The grounds on which the appeal was sought to

be prosecuted - I will not read them because they
are numerous, but Your Honours will see, from a
perusal of the grounds, that the grounds were that
the Registrar was in error in forming the views

that he did and he was in error, for example, in

holding in ground 20, that the coverage of the ASWU

at the two organizations did not extend beyond the

types of groups in which it currently has members.

I do not read the rest of the grounds but the

language of the application was not cast in terms

of whether there were reasonable ground for

believing that there had been a failure to exercise

a discretion.

The applicants for leave to appeal were

placing before the Full Commission an application

calling upon the Commission to exercise its
jurisdiction to determine whether the Registrar was

right or wrong. In our respectful submission, the

Full Commission treated the matter as involving no

more than the question of whether there had been a

failure to exercise discretion. It was wrong in

that regard and, to that extent, it failed to

appreciate the task before it.

Your Honours, I will not reread sections 104

and 105 but I should take Your Honours to the

second Brideson case which we understand has been
handed to Your Honours;	64 ALJR 526.

Your Honours, the case involved the question of whether the Full Bench of the Federal Commission

was entitled, in an appeal under section 88 of the

then federal Act, to have regard to evidence which

was obviously not available at the time of the

proceeding before the Registrar and the case

involved the nature of the powers that the Full

Bench was being asked to exercise.

At page 527, in the second column, the Court

said this:

Clerks(2) 72 8/2/91

The right of appeal to the Commission

against the decision of the Registrar was

given bys 88F of the Act which provided:

"(l) The Commission may grant leave to appeal

to the Commission from an act or decision of

the Registrar in relation to a matter and may
hear and determine an appeal in respect of

which leave is so granted.

(2) Where leave to appeal has been granted

under this section, the Commission

may ..... make an order that the

operation ..... be	stayed .....
(3)	The Commission may take further evidence

and power to -

confirm, quash or vary a decision of the

Registrar -

and, Your Honours, language which is similar to,

although, of course, not identical to that which is

found in the South Australian provisions.

The Court said this, at 528:

The power conferred on the Commission to

"make such order as it thinks fit" together

with the power to "take further evidence for

the purposes of an appeal under this section"

are strong indications that the appeal given

bys 88F was by way of re-hearing. Nothing in

s 88F suggested that the power to receive

further evidence was limited to evidence of

events which had occurred as at the date of

the Registrar's decision.

There is a reference to the first Brideson case.

And on the same page, in the second column, at

about line F:  In appeals against decisions to register

associations as organisations for the purposes

of the Act, one of the issues which the

Commission often had to determine under s 88F

was whether the association had

complied ..... Another issue with often had to

be determined was whether, by reason of the

provisions of s 142 of the Act, registration

should be refused. It seems most unlikely

that the legislature intended that, on an

appeal under s 88F, the Commission had to

register or confirm the registration of an

association notwithstanding that, at the date

Clerks(2) 73 8/2/91

of the appeal, the association no longer

complied with the prescribed conditions.

Furthermore, as this Court pointed out when

the present case was previously before it (at

344) :

"The history of industrial regulation in

this country has shown the desirability of ensuring that industrial representation is structured in the interests of employees and

the industry in which they are engaged, both
for the purpose of avoiding demarcation

disputes and for the purpose of ensuring

effective industrial representation."

The effective administration of the Act

made it a matter of importance that an

association should not be registered if its

members might conveniently belong to a

registered organisation unless in all the

circumstances it was undesirable to refuse

registration. It would seem most unlikely,

therefore, that the legislature intended that

the Commission should register or confirm the

registration of an association if, at the date

of the appeal, there was an organisation to

which the members of the association might

then conveniently belong and the Commission

did not think it was undesirable ..... upon the correct construction of s 88F, the Commission

was bound to make its own decision on the

evidence before it, including evidence of

events which had occurred since the

Registrar's decision -

reference to Mr Justice Higgins in the Carters and

Drivers' case -

"the appellant is entitled to have ... a

re-hearing, a 'review' of the decision ... He

is entitled to such judgment as I can bring to

bear upon the question, independently of the

Registrar, although, of course, I should

attach a good deal of weight to the

Registrar's view."

This statement was made when the

predecessor of s 88F contained the word
"review". Nevertheless, it is equally
applicable to s 88F. Consequently, the

statement of the Full Bench in Re Federated

Miscellaneous Workers Union of Australia,

"that the principles relating to the function

of a tribunal sitting on appeal from the

exercise of a discretion should be applied" in

an appeal under s 88F cannot be accepted as a

correct description of the Commission's

Clerks(2) 8/2/91

functions under that section. That is not to say, however, that those principles could not

be brought to bear on the question whether

leave to appeal should be granted. In

determining whether leave to appeal should be

granted under s 88F(l), it would have been
appropriate for the Commission to refuse leave
unless it thought that there was an arguable

case -

et cetera -

given weight to irrelevant matters -

et cetera. Your Honour, that, I think, bears upon

the observation Your Honour Mr Justice McHugh was

making. It is not contended by us that it would have been wrong for the Commission to have regard

to those matters. The problem with the judgment of

the Full Commission, however, is that it did not
take that approach; it regarded its role as

circumscribed by those matters and did not consider the question as to whether the Registrar had fallen

into error in relation to the question of fact and

law.

BRENNAN J: There is the distinction, is there not, at least

verbal, between the second Brideson case and the
present case in that the power which is to be

exercised in the present case under section 121(5)

is a power to refuse registration.

MR KENZIE: Yes.

BRENNAN J:  And that power is conditioned upon the formation

of an opinion by the primary repository of the

power, namely the Registrar.

MR KENZIE:	Yes, Your Honour.
BRENNAN J:	The problem then arises whether the appeal

provisions in 105 extend to the formation of the

requisite opinion on appeal but not by that

repository of the power but by the Full Commission.

MR KENZIE: Yes, Your Honour, and it may be conceded readily

that it is not perhaps easy to seat section 105

with the references to opinion in section 121(5).

But may we submit this, that it is of overwhelming

importance that the South Australian Act provides

for the admission of further evidence on appeal as

did the federal Act and that fact makes it
altogether unlikely that it is not within the

province of the Full Commission in hearing an

appeal to form its own opinion so that - - -

BRENNAN J:  Not outside the province?

Clerks(2) 75 8/2/91

MR KENZIE:  Yes, it is part of the province of the Full

Commission to form its own opinion and that section 121(5) is to be applied by the Full Commission itself upon the granting of an

application for leave to appeal. Otherwise,

Your Honour, the result would be that the Full

Commission was hearing an appeal from the Registrar

but could only investigate the question of whether

he actually had an opinion which would be an

unlikely construction of the Act.

BRENNAN J: 

Or it may be a question of examining the

correctness of the opinion as formed and sending it
back to him to reform it, then that would be a

possibility.

MR KENZIE:  Yes. Perhaps there may be wider grounds,

Your Honour, but may we submit, primarily, that although we do concede that there is some work to

be done, the primary consideration is that fresh

evidence is admissible and if fresh evidence is

admissible, Your Honour, it makes it difficult to

conceive that the Full Commission is doing anything

other than conducting a rehearing as was found in

Brideson's case.

Now, that being the case, the Full Commission

being asked to exercise its jurisdiction under

sections 104 and 105 to entertain an application

for leave to appeal so that the matters could be

reagitated before it, it was an error for the

Commission to approach its task on the basis that

it did not have that jurisdiction. It actively

formed the view that its jurisdiction was

circumscribed by House v King and Gronow

principles. So, it made an active determination

about its jurisdiction and accordingly addressed

itself to quite the wrong question in the sense

contemplated by the authorities including Brideson, and, in our respectful submission, this case raises

no new principles in this regard and does not raise

the difficult questions of whether Anisminic is to

be applied in all its potential effect. It raises

questions such as those addressed in the first
Brideson case, 166 CLR 338.	The Court, having

found that the Registrar had fallen into error in

determining the extent of his jurisdiction, said

this at 349:

An error of construction will not of

itself attract the grant of mandamus.	It is
otherwise if the error results in a constructive failure to exercise
jurisdiction -

reference to Wade v Burns and Toohey. At the

bottom of the page:

Clerks(2) 76 8/2/91

Because the Act and the Regulations

confer an entitlement to registration,

qualified in the manner indicated, the

Commission's task in exercising the power

conferred by s.88F(4) of the Act was to

determine whether the requirements for

registration of T.A.A. had been met. The

Commission's wrong construction of the Act and

the Regulations led it to believe that it had

the quite different task of deciding whether

in the circumstances it was desirable to allow

the registration of T.A.A. In the result the

Commission not only misunderstood the nature

of its task, but it failed to perform the task

which the Act and Regulations required. This

amounted to a constructive failure to exercise

jurisdiction.

Their Honours refer to the passage in the decision
of the Chief Justice in the Hetton Bellbird
Collieries Ltd and to the well-known passage in the

judgment of Chief Justice Jordan in Ex parte Hebburn Ltd which was relevantly read by our

learned friend yesterday.

Your Honour, in our respectful submission, it

is correct to say that the Full Commission did
misunderstand the nature of the task before it in

the sense contemplated by these authorities. It

certainly misunderstood the task before it if it
conceived that all it was entitled to do was to

decide whether there was an error of discretion and

no more. It misunderstood that task because we say

that the legislation is on all fours with that

discussed in Brideson.

Your Honour, to that extent, the failure of the Full Commission was a failure to understand the

magnitude of its jurisdiction under the sections

which gave the Full Commission jurisdiction to act,

they being the provisions dealing with the

jurisdiction to hear an application for leave to

appeal. The task before the Full Commission was to

determine whether leave to appeal should be granted

so as to allow questions of fact and law to be

overturned. It simply refused to address that

question, and it did so because it misconceived the

extent of the power available under section 105.

McHUGH J:	Now, to finish this off you have to make good the point that the Milk Supply case rightly interprets
section 95, do you not?

MR KENZIE: Yes, Your Honour.

BRENNAN J:  From the point of view of time, Mr Kenzie, how

is your argument going?

Clerks(2) 77 8/2/91

MR KENZIE:	Your Honour, subject to dealing with the question that His Honour Justice McHugh has just
reminded me of, I am going to conclude. I think
the Court has the two-fold nature of our submission
in relation to the failure of the Commission to
appreciate the magnitude of its jurisdiction, both by reference to sections 104 and 105, but regardless of that, even if the Commission simply
misconceived the nature of the Registrar's
jurisdiction under section 121, it was so far from
conceiving the nature of the task before it that it
failed to address itself to the task at hand. So
we put it on a two-fold basis.

Your Honour, we think the proposition is that

which has been addressed, I think not in the Milk

Supply case but in the Minda Homes case which

Your Honour will find in 11 SASR 333, and the

Chief Justice directed attention to section 95(b)

at page 337. His Honour found that section 95(b)

preserved the power of the court to intervene in

cases where the Commission has erroneously

refrained from doing something which it had

jurisdiction to do as opposed to doing something

which it had no jurisdiction to do and,

Your Honour, that appears at 337 point 3:

Clearly, section 9S(b) preserves the

power of the Court to grant the prerogative

writs on the ground of excess or want of

jurisdiction. It says nothing about declining
jurisdiction. It could be argued that this

Court can interfere on jurisdictional grounds

when the Commission is asked to do something

which it has no jurisdiction to do

(prohibition), or has purported to do

something which it has no jurisdiction to do

(certiorari), but not when it has refrained

from doing something which it has jurisdiction

to do under the erroneous belief that it had

no such jurisdiction (mandamus).

Some degree of plausibility is lent to

this argument by the words "excess or want of

jurisdiction", which seem more apt to cover

cases of going too far than cases of refusing

to go far enough. But any such interpretation

would produce a one-sided and partial result.

It would mean in the present case, for

example, that if the Commission had wrongly

decided that there was a valid appeal before

it we could interfere, but not if, as the Home

alleges here, it had wrongly decided that

there was no valid appeal before it.

It has been said on several occasions

that when a tribunal refuses to act as the

Clerks(2) 78 8/2/91

result of taking into account matters which it

should not have taken into account, and

thereby fails to hear ..... it has exceeded its

jurisdiction ..... It would be a strange result

if the Court could grant mandamus when the

Commission declined jurisdiction because it

took into account matters which it ought not

to have taken into account, but not when it

declined jurisdiction because it failed to

take into account matters which it should have

taken into account.

I think the words "save on the ground of

excess or want of jurisdiction" should be

given a wide meaning so as to include all the

jurisdictional matters which at common law

would have induced the Court of Queen's Bench

to interfere by the machinery of the

prerogative writs. I agree, with respect,

with the conclusion reached by the Full Court

of Queensland -

et cetera, and I do not think it is necessary to

read that to Your Honours.

Your Honour, we would submit that the present case is one where the Full Commission really, on

one view, did refuse to act as a result of taking

into account matters which it should not take into

account, that is, the taking into account the

exercise of a supposed discretion when, in fact,

one did not relevantly exist. That is on the

construction accepted by the Full Supreme Court
that although section 121(5) did have room for a
discretion, the occasion for the exercise of that

discretion had not relevantly arisen because of the

findings of the Registrar. On that basis we would

submit that section 95 would clearly cover the

case.

In any event, Your Honours, we commend the

judgment of Chief Justice Bray to Your Honours,

simply because it would indeed be a strange result	if the jurisdictional error was categorized in one
way rather than the other. Clear words would have to be found to accomplish that result. Whilst I
think His Honour concedes that there may be some
support for the contrary proposition, the words
cannot be described as clear. The result is one
that would not be arrived at in the absence of
clear words, in our respectful submission.

McHUGH J: This second argument that you have put was not

dealt with by the Full Court of the Supreme Court?

MR KENZIE:  Your Honour, it was

Clerks(2) 79 8/2/91

DEANE J: That was what I was going to ask you. Can I add, was it put to the supreme court, that is that even

if this is treated as a discretionary judgment,

none the less the Full Commission misapprehended

their function on an appeal.

MR KENZIE:  Your Honour, the answer is yes, that was put.

What was put was that, under section 104 and 105,

the Full Commission was engaged clearly in the task

of a rehearing and, Your Honour, we have - - -

DEANE J: Well the Full Commission would be, not was.

MR KENZIE:  Would be, yes, Your Honour, would be under

section 104 and 105 and that was squarely put,

Your Honour, over the adjournment, obviously it is not in the appeal materials.

DEANE J: Well, unless there is some dispute about it - - -

MR KENZIE: Yes, Your Honour.

BRENNAN J:  The affidavit which was placed before the Court,

at pages 36 and following of the appeal book, seems

to put it on a rather different basis, namely that

there was a refusal to exercise a jurisdiction

conferred upon the Industrial Commission, being a

jurisdiction to consider the proper operation of

the "conveniently belong" provision.

MR KENZIE: Unless there is some dispute about this,

Your Honour, we do contend that it was sufficiently

squarely advanced to the Court that - - -

GAUDRON J: But is it not even one more removed from want or

excess of jurisdiction? If they simply failed to exercise a jurisdiction because they thought they

had less than they had, you go right back to

section 9 5 ( b) .

MR KENZIE: Well, Your Honour, we submit that although there

are indications within section 95(b) that there is a distinction in kind for statutory purposes, such

a result would be a strange result and for the

reasons advanced by the Chief Justice in the

Minda Homes case, that is a distinction which is

not relevant for the purposes of section 95(b).

Your Honours, it was put to the supreme court

that sections 104 and 105 would give rise to a full

rehearing if leave was granted. The decisions of

different members of the Full Commission lend some

support to the contention that this was so. On

page 34 of the appeal materials at line 46 - this

appears in the judgment of Deputy President Lee:

Clerks(2) 80 8/2/91

Counsel for the P.S.A. argued that leave

to appeal should not be granted unless the

appellants can show that an important point of

industrial principle is at stake or that a

substantial injustice has been done.

Although the construction of a provision

of practical relevance to the administration of the Act would seem necessarily to involve

an important point of principle, there is no

need in my view for the test to be as

stringent as that. The cases cited by counsel

demonstrate that the nature and extent of the

test will ordinarily depend upon the

legislative setting of the relevant

prescription. I do not see why the necessity

for leave imposed by section 104 should

reflect any higher legislative purpose than

the desirability of shielding the Full

Commission from appeals which raise no

reasonably arguable point of law or fact.

Now, Your Honours, we will abide with what our

friends say about this, but we have investigated
the matter for the purpose of answering the

questions that were raised yesterday and I can tell

Your Honour that it was actually advanced to the

court that these sections would give rise to a

rehearing and we have done that by - - -

McHUGH J:  I notice in the transcript of the special leave

application Mr Heywood-Smith said that:

where the litigant before the Full

Ccoomission was prevented from putting its

full arguments on the appeal from the

Registrar, in circumstances where that appeal

is a full rehearing, then, in my submission,

that is the precise situation when a superior

court ..... will call upon the Full Commissiom.

MR KENZIE: Yes, Your Honour. It displayed a certain amount

of prescience on the part of my learned junior to

put submissions like that prior to the decision in Brideson's case, but none the less it was done and

we have looked at the written submissions, Your

Honours, to answer Your Honour's question.

McHUGH J:	I think it was the day after Brideson's case.
MR KENZIE:	Your Honours, the only other matter in our

submissions that we did desire to go to is, really,

an associated matter and that is that in

paragraph 11 of the outline and that is the fact of
the refusal to grant leave amounted to a declining

of jurisdiction and not a dismissal on the merits

was shown by the fact that the Full Commission

Clerks(2) 81 8/2/91

unanimously declined the invitation of - it says
the appellants and that was the then appellants -
that it hear full argument on the appeal before

considering whether appropriate to grant leave and

that, I think, is the matter Your Honour is

referring to.

Your Honours, for those reasons, we submit

that there was an error within the contemplation of

95(b). It was a relevant error, notwithstanding

that it falls within the category that Your Honour

Justice Gaudron has described for the reasons that

the Chief Justice of the Supreme Court of South

Australia advanced. And whether we be right on the

wider formulation that we have advanced or not, we

say that there was a constructive failure to

exercise jurisdiction. May it please the Court.

BRENNAN J: Thank you, Mr Kenzie. Yes, Mr Rothman.

MR ROTHMAN:  If the Court please. My learned friend, by

virtue both of his outline of submissions and the

questioning from Your Honours has essentially

covered all of the ground that we would have sought

to cover and I do not wish to repeat anything that he put. I certainly adopt the submissions he put,

save and except for two matters. It is our primary
submission that my learned friend's alternative

submission as to the construction of section 121(5)

of the South Australian Act is the correct

interpretation; that is that the word "may" in the

preamble to subsection (5) does not confer a

discretion on the Registrar.

GAUDRON J:  What you say is that it means subject to

subsection (6), that he shall refuse if, but only

if?

MR ROTHMAN:	Indeed, and we say that the proper construction of section 121 is on all fours with the decision of
Brideson (No 1). Subsection (1) is a provision
which allows any association that so wishes to be
registered and does not confer a discretion and
there is, indeed, again, no discretion on the virtue of subsection (5). But subsection (5) makes
mandatory the refusal of registration if paragraphs
(a), (b) or (c) are satisfied.
GAUDRON J:	It would be strange if it were mandatory at the

registration process and all that could be set at

naught by a rule change.

MR ROTHMAN:	Indeed, and if one looks at the proper construction of section 115, which is the
registration process, again, we say that is even
more a provision which is intended to mirror the

Clerks(2) 82 8/2/91

Conciliation and Arbitration
then federal Act, the the two of them have to be seen together as a

scheme to allow for the registration and control of

registration of organizations or associations

registered under the South Australian Act.

In both instances, the registration process is

mandatory save and except for the specific

about compliance with certain conditions

empowering or enabling provisions granted to the provisions

in section 115, and the provisions in relation to

alteration of rules in section 121(5).

We therefore say that the "may" does not

confer any discretion at all and, in a sense, to

answer the question that Your Honour Justice McHugh

posed to my learned friend, Mr Kenzie, the overall

effect of subsection (5) is not discretionary.	we
can concede for that purpose that paragraph (c)
would confer discretion but that, with respect, does not aid a proper analysis of the Full

Commission's decision because paragraph (c) was not

the major or, indeed, any part of the argument of
the objectors before the Registrar, the appellants
before the Full Commission.

Paragraphs (a) and (b) were, indeed, the basis of the objections that were framed and

paragraph (b) imports into it both the type of

association that can be registered and continue to

be registered which is not, in any sense, a matter

of discretion nor, indeed, the formation of an

opinion. It also imports into it section 116(2)

which what has been called the "conveniently

belong" argument. Now, that "conveniently belong"

argument has a minor residual discretion which was

never reached by the Registrar nor the Full

Commission, and I do not go to that because it

complicates what is already a complicated issue in

relation to exercises of discretion. But,

nevertheless, if one satisfies the requirements of

section 121(5)(a) or (b), that is, one being the

objector, if the objector satisfies those

requirements, then the application for alteration

of rules must fail and it is wrong to categorize

that exercise as an exercise of discretion overall.

The major argument that was put before the Registrar and, indeed, it was put as a matter that

had to concern the Full Commission on appeal, was

that the ISWU in relation to my client, the second

respondent, had the rules to cover all the

employees of the employers said to be covered and
those persons sought to be covered, all of them,

could conveniently belong. That went off

Clerks(2) 83 8/2/91

preliminary on the basis of the misconstruction of

the Registrar of the rules of the ISWU.

Construction of the rules is, as this Court has

found on a number of occasions, a question of law

and occasionally a question of jurisdictional fact,

but it is not a question of discretion. And that

exercise, that is, the construction of the rules of in the case of the Full Commission, they failed to realize that the nature of the appeal before them
the second respondent, we say, and said before the

was not an exercise of discretion and was indeed

very much a rehearing on matters of fact and law.

And if one - - -

McHUGH J: That is the second point, that is the second

argument?

MR ROTHMAN: Well, the rehearing part of that is the second

argument, the question of fact and law is still the

first argument, that is, do the rules of the rswu

allow them to cover these people and therefore is

there a question of conveniently belonging. That

was never addressed by the Registrar because he

said initially the rules do not cover. It was

never addressed by the Full Commission in allowing

leave to appeal because they said, "Look, this is

all a question of discretion therefore we do not

have to look at any of this. We have to see

whether there is manifest error not whether we
would have decided differently in relation to the

construction of the rules or indeed on conveniently

belonging". And that is why there is an error of

jurisdiction in relation to importing House v King

and Gronow, that is the second argument.

We say, it does not matter how one labels the

error of the Full Commission as long as one labels
it in a way which clearly imports the fact that

they either fail to take into account a relevant

consideration or took into account extraneous

considerations, the extraneous considerations being

that it was merely a matter of discretion, the

failure being to take into account the fact of law.

Your Honour Justice Brennan in the dissenting

judgment in the QEC case, (1987) 61 ALJR 393 -

Your Honour's judgment commences at page 396 -

essentially puts that. That was, indeed, a

prerogative writ sought against the exercise of

discretion by the Full Bench of the Commission, a

statutory tribunal in very similar terms, vis-a-vis

the Commonwealth, as is the Industrial Commission

of South Australia in relation to South Australia.

While the majority found as a matter of fact that

the discretion was exercised, Your Honour

Justice Brennan and Your Honour Justice Deane

found, as matters of fact, that the discretion was

Clerks(2) 84 8/2/91

not exercised but there was no difference between

the majority and of the dissenting judgments as to

the principles to be applied. And Your Honour

Justice Brennan, at page 398, said this in relation

to the exercise of discretion - it is on the right-

hand column at just below point E:

In essence, the Commission's decision

really amounted to a refusal of the
application for an overriding federal award

without a full hearing as to whether such an

award ought or ought not to be made. That

decision was erroneous. It is not necessary

to give a label to the Commission's error: it

might be said to be an error of law as to the

nature of the public interest which might

warrant the Commission refraining from further

hearing an application for an award, or an

error of law as to the nature of the

discretion to be exercised, or the making of a

decision not to make an overriding federal
award without taking account of all the
matters which, on a full hearing, would have

been relevant to that decision. However the

error is labelled, the Commission was not

empowered in the circumstances of this case to

refrain from hearing the prosecutor's

application for an award covering Queensland

power industry employees unless it decided

that a federal award ought not to be made to

override the Queensland laws and awards.

Now, similarly, we say, in relation to the exercise

of jurisdiction or failure to exercise jurisdiction

by the Full Commission in South Australia, that it

does not matter how one labels that failure or that

excess, without giving a full hearing on questions

that were raised by the applicants for leave, the

Commission has exceeded its jurisdiction or failed

to exercise its jurisdiction.

GAUDRON J: Well, the fail to exercise is clear enough in

that submission; the exceeding, I must say, is not

clear to me.

MR ROTHMAN:  Your Honour, can I say this: the courts have

long taken fairly strict and narrow views of xxx

privative clauses. This Court has done so

federally and, indeed, the English courts have done

so in relation to the jurisdiction conferred on

them and, similarly, this Court has done so in

relation to the State courts and State Acts.	In my
respectful submission, there would never be
circumstances where a failure to exercise

jurisdiction in the proper sense is not in some way

an excess of jurisdiction.

Clerks(2) 85 8/2/91

DAWSON J: Well, he did exercise his jurisdiction. It is

obvious: he dismissed the application.

MR ROTHMAN:  Indeed, and it dismissed the application - and

that is the point I make: you could always

categorize something one way or the other. In this

case one can see it exceeds jurisdiction because it
dismisses the application without taking into

account relevant matters.

GAUDRON J: It may be categorized as an excess of

jurisdiction if it answered a question that simply

was not there. But you say it does not matter

whether you categorize them as having done that or

not. At least your written submissions seem to go

so far as to say any constructive failure to

exercise jurisdiction is the same as acting in

excess of jurisdiction. That is to say, you seem

to overlook the distinction between prohibition and

mandamus.

MR ROTHMAN:  Your Honour, it is probably unnecessary for me

to go so far and probably was unnecessary for me to

go so far in the written outline. Clearly, in this

case, it can be categorized as an excess of

jurisdiction because it is - - -

GAUDRON J: Because it answered questions that simply were

never asked.

MR ROTHMAN:	Indeed.
GAUDRON J:	Do you put it arty higher than that?
MR ROTHMAN:	I also say it is an excess of jurisdiction

because it makes an order without considering

relevant matters. In other words, it does not take

into account a relevant consideration in the making

of - I am assuming in that that the refusal to

grant leave is an order.

GAUDRON J:  I do not understand that to be anything other

than error, I must say.

MR ROTHMAN: Well, Your Honour, that is our submission, with

respect. However, I should say we also do say, as

my learned friend Mr Kenzie did say, that it was

answering a question that was not put. I mean, it

was answering a question that was not before it.

I do not think, at this stage, given that the

debate has occurred to the degree that it has,

anything else can be added to the other points that

my learned friend Mr Kenzie raised otherwise than

putting my learned friend's alternative argument as

my first argument, we would otherwise fully adopt

Clerks(2) 86 8/2/91

my learned friend Mr Kenzie's submissions. If

Your Honours please.

BRENNAN J:  Thank you, Mr Rothman. Mr Bleby?

MR BLEBY:	If the Court pleases. We would suggest, in relation to the construction of section 121(5), we
would adopt, with respect, what fell from
Your Honour Justice McHugh.
Section 121(5) at the end of the day is about the exercise of a discretion but I will not retill
that ground. It obviously involves, in the course
of the exercise of that discretion, the finding of
facts such as the existence, for example, of
employees or the fact that people are employed, the fact that they are or are not members, or have been
accepted into membership of a particular
association. It will also involve making decisions
on questions of law, such as entitlement to membership of particular organizations and it may
be possible to show that if the Registrar in a particular case made mistakes of law, that that
vitiated the exercise of his discretion. But, what
the Full Commission at the end of the day was saying, was "Assuming all those things go correctly
and it's not been demonstrated to us that there's been any such error made, it is still a question of
the exercise of the discretion". Judge Allan made it clear that he was the answering the submissions
that had been put to the Commission on where it was
suggested the Registrar had erred for the purpose
of considering this leave application, even on that question of conveniently belong and I refer to
page 29. Indeed, it is somewhat contrary to my
learned friend's Mr Rothman's submissions as to
what the Commission said. This is page 29,
line 22. In dealing with section 121(S)(b) and
having dealt with the submissions that were put to
him, he says:

Mr Heywood-Smith submitted that, having decided to apply the 'conveniently belong'

test, so far as it was applicable, the

Registrar erred in the way he dealt with it.

I did not accept that submission. It seemed

to me that, on this topic, the matter of real

substance lay in the penultimate paragraph of
the passage I have cited above from the

reasons for decision of the Industrial

Registrar on this topic -

that being:

So, taking the FCWU and the ASWU together, I

find that they could not cover the majority of

persons sought to be covered by the PSA.

Clerks(2) 87 8/2/91

That is from the Registrar's decision.	His Honour
says:

Now, whether that is an application of the

'conveniently belong' test or not, it is a matter
relevant to the exercise of the discretion -

that is, the extent to which the other associations

could enrol people -

and Mr Heywood-Smith did not suggest the

Registrar was in error in finding that the appellants could not cover the majority of

persons sought to be covered by the proposed

addition.

That is contrary to what my learned friend,

Mr Rothman, submitted a moment ago. All we say

about that is that the Commission did have its mind
addressed to the elements which went to the

exercise of the discretion and was not satisfied at

the end of the day that the Registrar had erred in

any of those elements. Now, if the Commission was

wrong in that - and let us say the Commission was

wrong in saying that the Registrar correctly

applied the law - it was still, in our respectful
submission, of course, making that error in the

course of the proper exercise of its jurisdiction

in considering that leave application.

So far as the alleged distinction is concerned

between fact and law, it is not quite as simple,

with respect, as my learned friend, Mr Kenzie,

suggests. Indeed, we would adopt what appears in

.Salmond on page 70 - it is a passage which my

learned friend did not read - and the learned

authors concluded - it is the page following that

which my learned friend read from. Having regard

to this distinction, they say all:

Matters and questions which come before a

court of justice, therefore, are of three

classes:

(1) Matters and questions of law - that is to

say, all that are determined by authoritative

legal principles;

(2) Matters and questions of judicial

discretion - that is to say, all matters and
questions as to what is right, just,

equitable, or reasonable, except so far as

determined by law;

(3) Matters and questions of fact - that is

to say, all other matters and questions

whatever.

Clerks(2) 88 8/2/91

We would suggest, with respect, that the matter

that was before the Registrar in each case was of

that second category.

Again, if I might just return briefly to the construction of section 121(5). My learned

friend's first submission in paragraph 1 of his

outline is, we would suggest with respect,

incorrectly stated and it may have led to some

confusion.

It is not a question of the discretion to

register a rule amendment arising once a ground for

objection has been established. How the Act is

framed is to say that there is a discretion not to

register if the ground is made out. We have

maintained there is a discretion, but that is the

correct way in which the Act formulates it. It is

not a discretion to register at the end of the day,

and in that sense it does not matter much for the

purpose of our argument whether if the grounds are

not made out the function of the Registrar is

mandatory, that is, that he shall refuse; but what

the Act does say if that interpretation is correct,

if my learned friend Mr Rothrnan's contention is

correct, it merely says, in effect, that the

Registrar shall refuse but only if certain matters are made out, certain matters of opinion which he

has to form. The fact remains that that is still

at the end of the day a discretionary judgment.

I think that is all I wish to say, if the

Court pleases.

BRENNAN J: Mr Bleby, one question perhaps: is it common

ground that it was argued before the Full Court

that the jurisdiction of the Commission extended to

the entertainment of an appeal de novo?

MR BLEBY:  I frankly cannot remember, Your Honour. I

appeared in the Full Court.	I am prepared to
accept my learned friend's submission if that is
what he asserts.	I am in no position to dispute
it.	The argument, however, as Your Honour

Justice Brennan properly pointed out, was based

initially upon an affidavit on somewhat limited

grounds, and the relevant parts appear at page 38.

BRENNAN J:  I understood Mr Kenzie to say that that may be

so, that that was the affidavit, but the argument

that was put before the court extended at least to

saying that the propositions that are now founded

on Brideson (No 2) were applicable in the present

case.

MR BLEBY:  It may have been put in the course of argument,

but the way the argument did develop before the

Clerks{2) 89 8/2/91

Full Court was essentially the point that the before the Full Court was principally that, which the Full Court answered in favour of the present

respondents. Now, I cannot recall frankly,

incidentally, whether there was any mention made of

the scope of an appeal under section 105, but it

was in the nature of a rehearing.

It certainly did not seem to be a matter that

was addressed by the Full Court and the Full Court
was principally concerned with what they perceived

to be the error of law of the Commission in the

interpretation of section 121(5) and that was

certainly the major thrust, as I recall it, of the

present respondents argument before the Full Court,
because I was particularly conscious of the fact

that it did not seem to follow the grounds that

were set out in the affidavit.

BRENNAN J: Well, would it be right to say that the position

at the bar table is this, that the argument, which

I will call for the purposes of identification, the

Brideson (No 2) argument, the Brideson (No 2)

argument was, in the understanding of the present

first respondent, raised before the Full Court, but

that proposition is not accepted by counsel for the

present appellant?

MR BLEBY:  I think, with regret, I would have to say that,

Your Honour. I am not trying to be difficult at

all and if there was some way of demonstrating to

me that I am wrong, I would readily accept any such

correction. My learned friend has just pointed out

to me a passage of the written submission that was
tended before the Full Court and there, certainly,

I concede, is a passage in that which does make

that submission.

BRENNAN J:  Does make that submission?

MR BLEBY:  Yes. But it was not one that was to the

forefront, certainly, of the respondent's

submission.

BRENNAN J:  Yes. The Court will consider the matter.

AT 11.28 AM THE MATTER WAS ADJOURNED SINE DIE

Clerks(2) 90 8/2/91