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

[1990] HCATrans 197

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No Al9 of 1990

B e t w e e n -

INDUSTRIAL COMMISSION OF
SOUTH AUSTRALIA and PUBLIC
SERVICE ASSOCIATION OF SOUTH

AUSTRALIA

Applicants

and

FEDERATED CLERKS UNION OF

AUSTRALIA SOUTH AUSTRALIAN

BRANCH and AUSTRALIAN SOCIAL

WELFARE UNION SOUTH

AUSTRALIAN BRANCH

Respondents

Application for special

leave to appeal

BRENNAN J

TOOHEY J

McHUGH J

Clerks 1 23/8/90

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON THURSDAY, 23 AUGUST 1990, AT 2.52 PM

Copyright in the High Court of Australia

MR M.D. BLEBY, QC:  May it please the Court, I appear with

my learned friend, MR P.N. MOLONEY, for the

applicant Public Service Association of South

Australia Incorporated. (instructed by Moloney &

Partners)

MR P. HEYWOOD-SMITH: If the Court pleases, I appear for the respondents in this matter. (instructed by Johnston

Withers)

BRENNAN J:	Do you have any notes of argument, Mr Bleby?
MR BLEBY:	I do not, Your Honour.
BRENNAN J: No.	Well, in that case, we shall not delay you.

We will call first on Mr Heywood-Smith.

MR BLEBY: If Your Honour pleases.

MR HEYWOOD-SMITH:  If the Court pleases, I do have a summary

of argument which I hand up with some materials.

If I can perhaps speak briefly to the submissions,

the respondents concede that the line between error

of law within and without jurisdiction is often a

difficult one to draw and the authorities in this

country, in so far as the adoption and application

of the - and as many principles as are concerned

are in some respects confusing and there may be

said to be scope for this Court to address

precisely that issue.

However, what we say is that this case is not

the correct vehicle for that to occur because under any appl,ication of the test the error that the Ful.l

Commission fell in when considering the application

for special leave from the Registrar was an error

which went to jurisdiction.

BRENNAN J: Perhaps you should address first the question of

whether there was an error?

MR HEYWOOD-SMITH:  So far as whether there was an error is

concerned, I will not address the Court on the
interpretation of the Full Court of the Supreme

Court but I say this, that the highest that it could be put is that the Registrar did have a

discretion under section 12l(S)(c). However, that
discretion excludes the matters that are referred

to in section 121(5)(a) and (b).

McHUGH J: But what about paragraph (a), "prejudicially

affect"? What about "conveniently belong"? They
are all matters which require a discretionary

judgment. They are not questions of fact.

Discretionary judgment means no more than that

there are a range of choices available in corning to

a conclusion, whether a person is fit and proper -

Clerks 23/8/90

finding that a person is fit and proper is a

discretionary judgment. In a custody case that is

the very issue. Prima facie there just seems to be

a misconception by the Full Court that these issues

raise questions of fact.

MR HEYWOOD-SMITH: With respect, if Your Honour pleases, the

1ssue that was taken in respect of the Registrar's

application of the "conveniently belong" test was

that he applied the wrong test.

McHUGH J: Well, that is not jurisdictional error?

MR HEYWOOD-SMITH:  No, but so far as the consideration of a

potential basis for refusing the application to

amend the rules is concerned, it meant that in

considering section 121(5)(b), the Registrar found

that there was no reason under that provision why

registration should be refused. But the Full

Commission, when it held that the Registrar was

simply applying an overall discretion, in my

submission, would not listen to the appellant's

submission that the Registrar had misapplied the

test as to "conveniently belong" and thereby he

approached the exercise of any discretion that he

had on an incorrect basis.

McHUGH J: But that does not mean if you make a

jurisdictional error that would enable the supreme

court to interfere. It would only mean that the

Full Bench had gone wrong.

MR HEYWOOD-SMITH: Well, with respect, if the Court pleases,

what we say is the position is that when the

appellants before the Full Commission sought

special leave the refusal of the special leave

could only be - if there was an error, could only

have been an error in respect of the exercise of

its jurisdiction because it was the exercise of its

jurisdiction that it was considering. As the

authorities that are referred to in the article by

decision is taken at that point in the case where	de Smith make clear, where it is apparent that the
the appellate body is considering its jurisdiction without considering the merits, then it is easier
for it to be said that the error occurred outside the jurisdiction.

BRENNAN J: Are we not rather confusing two stages of the

proceedings here? The appeal to the Full Bench is

not a proceeding by way of judicial review, is it,

it is a full appeal on the merits?

MR HEYWOOD-SMITH: That is right.

BRENNAN J: And it may be that there would be some argument

if leave to appeal to that Full Bench were given

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which would result in an overturning of the

Registrar's decision, perhaps because he applied

the wrong principle, misconceived whatever it was

he was about, or for whatever reason, on the merits

perhaps. But the problem that we are facing here

is one where the Full Court has decided to

intervene and judicially to review the Full Bench's decision because the Full Bench has said that there

was a discretion and the Full Court has said there

was no discretion.

MR HEYWOOD-SMITH:  Your Honour, if the Full Commission had

and came to the same decision as to the

granted special leave to appeal from the merits

application of the "conveniently belong" test and

made the same error then it may well be that the
Full Court of the Supreme Court could not have
intervened as a result of the provisions of section

95(b).

But where the litigant before the Full

Commission 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, exercising judicial review, will call upon the Full Commission to say, "Well, it's all right for an error to be

made by the Registrar but that error can only be
made as against a litigant's right to have a full

appeal." And where special leave was refused by

the Full Commission in circumstances, we say, where

there was error, we say that that is the precise

situation when the supreme court will intervene.

BRENNAN J:  Does it not come to this, that in these

proceedings, if the Full Court was wrong in saying

that there was no discretion to be exercised by the

Registrar and that the Full Bench was therefore in

error when it reached that decision on that basis, it seems to me that the Full Court's own decision	is vitiated arguably by the error that it made in
the construction of subsection (5)? You may be
able to uphold the Full Court's decision by saying,
"Well, there is another ground where the Full Bench
went outside it.", but that has not really been addressed by the Full Court.

MR HEYWOOD-SMITH:  I accept what Your Honour puts to me

but -

McHUGH J: And as a matter of fact that is what I thought

you were attempting to do. You seem to be shying

away from defending the reasoning of the supreme

court.

Clerks 4 23/8/90

MR HEYWOOD-SMITH: If the Court pleases, I approached it on

the basis of the highest position, in my

submission, that the appellant could approach it

from.

McHUGH J·: - Look at page 33, for instance. After referring

· to the fact that Judge Allan had said that:

it is not putting it too high to say that the

discretion which the Registrar has exercised

in this case was a wide one -

at line 18 and following the supreme court said

that the questions which arise under paragraphs

(a), (b) or (c) were questions of fact.

MR HEYWOOD-SMITH:  In my submission, whether or not one

registered organization - whether or not a certain

group of employees can conveniently belong to a

particular organization is a question of fact.	But
can I repeat the submission that I made.	I am

prepared to concede that a construction of

section 121(5), which is an unusually drawn

subsection because it appears to repeat a

discretion, it starts with discretionary words, and

then in section 121(5)(c) it gives to the Registrar

an apparently extremely wide discretion to take

anything into account that he wishes but it speaks

of "any other matter". So that it excludes from

that wide discretion the matters in (a) and (b).

Now. where we say here the Registrar approached

the consideration of (b), at least, on a wrong
basis, it is wrong, in our submission, for the Full

Commission to say to an appellant seeking special

leave, "Point to the error in the exercise of the

discretion by the Registrar.", because that

prevented the appellant seeking special leave from

saying, "Well, I needn't point to an error of

discretion, I need only point to the fact that the

Registrar has applied the wrong test under

121(5)(b)", because, of course, had the Registrar

applied the right test under 151(5)(b) he may well

have found a reason for rejecting the

application - - -

BRENNAN J: But where does it leave you? Where does the

Registrar's error leave you? It leaves you in the

hands of the Full Bench, does it not?

MR HEYWOOD-SMITH:	It does, but you see we never got to the Full Bench in a situation where we could make our
full appeal.
BRENNAN J:	I appreciate that and that is because the Full

Bench shut you out by refusing leave. And your

argument is that the Full Bench should not have

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done that, they should have granted you leave and

entertained the appeal.

MR HEYWOOD-SMITH: That is right.

BRENNAN J: And one reason why they should have is because

the Registrar misconceived his function. Now, when

the Full Bench did what it did and shut you out,

whether they were acting wrongly in law or not,

were they acting within jurisdiction?

MR HEYWOOD-SMITH:  On that point I can only repeat the

matters that I have put to the Court. Can I take

you to pages 4 and 5 of the supplementary materials

and the passages from de Smith commencing at the

bottom of page 4:

A tribunal does not decline jurisdiction by making an erroneous decision on the merits

of a case; but it does decline jurisdiction f

it refuses to enter into the merits because it

holds that it has no power to do so. There

arises the familiar problem of distinguishing

between the merits of a case and preliminary

jurisdictional questions. In the context of

refusal of jurisdiction, as distinct from

excess of jurisdiction, English courts have

given comparatively little attention to

analysis of this problem, but it can be

assumed that essentially the same principles

apply to both refusal and excess of

jurisdiction.

BRENNAN J:  Is there any question here of the Full Bench

saying that they had no power to entertain the

appeal?

MR HEYWOOD-SMITH:  No, but in the ensuing sentences, what

the learned textbook author says is that where the

court never gets to hearing the merits, where it

makes a decision only as to its jurisdiction, which

is what occurred here, it is easier for a court

exercising judicial review to say that the error

was in respect of its jurisdiction.

Can I also, in my submission, reiterate the point - I do not want to labour - that with a

privative section such as section 95(b), there is a necessity for a court exercising judicial review to

ensure that the tribunal which has exercised a

power has exercised it within the confines, the

scope, of the legislation and that point is made,
in my submission, strongly on page 9 of the

materials from the decision of Lord Wilberforce in

the Anisminic case at point B where he says:

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The courts, when they decide that a

"decision" is a "nullity", are not

disregarding the preclusive clause. For, just

as it is their duty to attribute autonomy of

decision of action to the tribunal within the
designated area, so, as the counterpart of
this autonomy, they must ensure that the
limits of that area which have been laid down
are observed. In each task they are carrying

out the intention of the legislature, and it

would be misdescription to state it in terms

of a struggle between the courts and the executive. What would be the purpose of defining by statute the limit of a tribunal's

powers if, by means of a clause inserted in

the instrument of definition, those limits

could safely be passed?

So what we say here is that it is correct to

say that the Registrar could make an error of law.

Were the objectors to seek to prohibit the a superior court, the superior court would quite

properly say, "Look at section 95(b). That

Registrar is entitled to make an error and we can't

look at it."

Similarly, had leave been sought to the Full

Commission and granted and the Full Commission

heard the appeal in full and made the same error,

the supreme court, again, on an application for

judicial review, would be entitled to say,

"Section 95(b), the Full Commission is entitled to

make an error of law; we can't look at it."

But where the error occurs in the taking of the appeal from the Registrar to the Full

Commission, so that the objectors are denied the

opportunity of putting their full appeal to the Full Commission, then the operation of 95(b) is

preventing the legislative system working properly

and that is when a court will intervene.

McHUGH J: But, Mr Heywood-Smith, as the presiding Justice

pointed out to you, it may be that you can support

this decision in your favour by relying on these

matters, although there is nothing in this
application book which shows any basis for the
submissions that you are putting to us, but the

fact is that the reasoning of the Full Court of the

Supreme Court in this case is, it seems to me at

least at this stage, that it is just prima facie

erroneous.

The basis upon which certiorari went, if you

look at the bottom of page 28, Mr Justice White

says:

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it follows the Registrar's discretion to

refuse was exhausted. That being so, it was

an error going to jurisdiction for the

majority of the Commission to decline

jurisdiction on the incorrect basis that

considerable weight had to be attached to an

allegedly "very wide discretion".

Mr Justice White, seemed to have thought that there is a very limited discretion. It seems to me

at the moment that the terms of section 12l(a), (b)

and (c) give the widest possible discretion to the

Registrar and the reasoning of the other justices

in the supreme court are to the same effect.

MR HEYWOOD-SMITH:  If I could take Your Honour to page 27

and to the the section, in my submission, the

interpretation by the Full Supreme Court can be

defended. The section gives by the words "may

refuse" a discretion after one of the three limbs

then following has been established. If none of

them are established and the Registrar, having

considered all of the evidence and considered the

subsection, went through in respect of each one,

(a), (b), (c), and said, "Well, I can find no

reason, under any of them.", in that circumstance

the Full Court said that his decision then to say,
"I will allow the amendment.", was not the exercise

of the discretion and, in my submission, that must

be so. Discretion will only arise when the

Registrar finds that a matter under one of the

limbs exists.

McHUGH J:  No doubt that is correct, but the issues posed by

paragraphs (a), (b) and (c) require a discretionary

judgment. That is where the very wide discretion

of the Registrar exists.

MR HEYWOOD-SMITH:  In my submission, that does not extend to

the finding that a group of _persons can

conveniently belong to one registered organization

which is one of the matters imported by 121(5)(b) which was the basis upon which the attack against

the Registrar's decision was made.

McHUGH J: But that issue has always been seen, at least in

the federal jurisdiction, as raising a

discretionary judgment.

MR HEYWOOD-SMITH:  But it was the test which the Registrar

applied, the legal test that was attached - - -

McHUGH J:  But that is another point altogether. The Full

Court seemed to take the view that the issues raised under paragraphs (a), (b) and (c) are not

discretionary matters at all but findings of fact.

Clerks 8 23/8/90

MR HEYWOOD-SMITH:  Your Honours, I do not wish to address

you any further. Can I, however, address this

submission, that if special leave is to be granted

it should be granted on the condition that is

indicated in point 1 of my submissions and I put it

o~ this basis, that in the first instance what is

being asked to be reconsidered is the

interpretation of a South Australian statute, a

local statute of the Industrial Conciliation and

Arbitration Act which does not have an application

throughout the country.

I ask the Court to note that the appellant's rights have not been finally determined in this

matter, the Full Supreme Court is simply referring

the matter back to the Full Commission with a

direction that they rehear the application for

special leave. I ask the Court to note that the

two respondents, the State registered Federated Clerks Union and the State registered ASWU, are both small organizations of respectively 5000 and

300 members and that is set out in the decision of the Registrar. The appellant in this Court is, on
the evidence, a large body in excess of some

20,000 members and in my submission in those

circumstances the leave should only be granted on

those conditions.

BRENNAN J:  We do not need to trouble you, Mr Bleby.

Mr Bleby, am I right in thinking that you are

appearing for the Public Service Association of

South Australia?

MR BLEBY:  That is so, Your Honour. I am sorry about the

confusion in the title. The Commission is not an

appellant and as far as I am aware the Commission

has taken a totally impartial and inactive role in

the proceedings thus far.

BRENNAN J: Has the Commission been served with these

proceedings, do you know?

MR BLEBY:	I am not sure whether the Commission was served with the application for leave, Your Honour.	I
cannot answer that question, I am sorry.

Undoubtedly, it would be served if leave is given,

it would be served of the appeal. All I can say is
it was represented by counsel in the Full Court

just on an indication that it would submit to any

order of the court.

BRENNAN J:  I think it would be justified to act upon the

maximum omnia praesumuntur in this case.

MR BLEBY: Certainly.

Clerks 9 23/8/90

BRENNAN J:  We could reserve leave for the Industrial

Commission of South Australia to move for whatever

relief it might feel it may be advised to do

without regard to its non-appearance on today's

application.

Subject to that there will be a grant of

special leave in this case. The Court is not

prepared to make any particular order with regard to

costs at this stage of the proceedings. The

respondent is, of course, at liberty to renew any

application it may be advised to make before the

Full Bench when the matter comes on for hearing.

There will therefore be a grant of special leave.

AT 3.19 PM THE MATTER WAS ADJOURNED SINE DIE

Clerks 10 23/8/90