R v Watling R J; Ex Parte

[1998] TASSC 61

61/1998

PARTIES:  R
v
  WATLING R J (Commissioner)

PEARSON, Andrew; ex parte

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  M85/1997
DELIVERED:  13 May 1998
HEARING DATE/S:  1 May 1998
JUDGMENT OF:  Wright J

[Edited edition of reasons for judgment given orally]

CATCHWORDS:

Appeal and New Trial - Practice and procedure - Powers of Court - Appeal Costs Fund Act - Proceeding in nature of an appeal - Application for certiorari and mandamus - Whether an "appeal".

Appeal Costs Fund Act 1968 (Tas), ss2 and 8.
Ex parté Parsons, Re Suitor's Fund Act (1952) 69 WN (NSW) 380; R v His Honour Judge McGuire and Hanlon Homes Pty Ltd; ex parté Builders' Registration Board of Queensland [1986] 1 Qd R 61, applied.
Aus Dig Appeal and New Trial [4]

REPRESENTATION:

Counsel:
           Applicant:  L O Rheinberger

Solicitors:
           Applicant:  C N Dockray

Judgment category classification:
Court Computer Code:  
Judgment ID Number:  61/1998
Number of pages:  1

Serial No 61/1998
File No M85/1998

THE QUEEN v COMMISSIONER R J WATLING;
ex parté ANDREW PEARSON

REASONS FOR JUDGMENT  WRIGHT J

(REASONS GIVEN ORALLY AND EX TEMPORE)  13 May 1998

This was an application for writs of certiorari and mandamus in respect of the rejection by the Industrial Relations Commission of an applciation arising out of the dismissal of Andrew Pearson from the services of Gunns Pty Ltd.  Gunns was served with the papers when the order nisi was granted and became a respondent to the proceedings as a consequence.

On 1 May 1998, I made an order upholding the prosecutor's submissions and directing that the appropriate orders issue, directing the Industrial Relations Commission against whom the orders were sought, to determine the matter before it according to law.  I ordered that Gunns Ltd pay the prosecutor's costs of the proceedings.  Counsel for Gunns Ltd now makes application for a certificate under the provisions of the Appeal Costs Fund Act 1968 ("the Act"), s8.

Upon that application the question arises, firstly, whether or not the proceedings for certiorari and mandamus were "proceedings in the nature of an appeal" so as to fall within the definition of "appeal" in the Act, s2 and thus within the enabling provisions of the Act, s8(1)(a)(ii) and, secondly, whether or not the Industrial Relations Commission is "a Board or other body or person" from whose decision the "appeal" was brought to this Court.

Mr Rheinberger has referred me to two cases of very significant authority upon the first point, namely, Ex parté Parsons; Re Suitor's Fund Act (1952) 69 WN (NSW) 380. The unanimous Banco Court came to the conclusion in that case that proceedings of this kind were proceedings in the nature of an appeal and that consequently the type of certificate provided for in the equivalent New South Wales legislation could be granted. Similarly in R v His Honour Judge McGuire and Hanlon Homes Pty Ltd; ex parté Builders' Registration Board of Queensland [1986] 1 Qd R 61 at 71, Andrews ACJ, expressed the view consistently with Ex parté Parsons (supra) that in respect of equivalent legislation in Queensland, it was permissible and appropriate to regard an application for a writ of prohibition as a proceeding in the nature of an appeal.  Andrews ACJ's views were concurred with by McPherson J and, also apparently, Derrington J.

On the basis of that authority, I am left in no doubt that the same approach should be adopted in this Court, and I take the view, therefore, that for the purposes of the Act, an application for a prerogative writ is a proceeding in the nature of an appeal and thus within the permissive ambit of the Act, s8.

The second question is whether the Industrial Relations Commission is a Board, body or person within the Act, s8(1)(a)(ii). I think that adopting the same line of reasoning as was apparent in both McGuire's and Parsons' cases, the conclusion should be reached that it is such a body and consequently that the order sought can properly be made within the terms of s8 in the current proceedings.

I can see no reason to exercise a discretion adverse to the applicant.  I think it an appropriate case where the indemnity order sought should be made and consequently I will grant a certificate of the kind requested.