Re Coldham;

[1986] HCA 10

HIGH COURT OF AUSTRALIA

Gibbs C.J., Wilson and Dawson JJ.

IN THE MATTER OF AN APPLICATION FOR A WRIT OF MANDAMUS, A WRIT OF CERTIORARI AND A WRIT OF PROHIBITION AGAINST MR. JUSTICE COLDHAM (A DEPUTY PRESIDENT OF THE AUSTRALIAN CONCILIATION AND ARBITRATION COMMISSION), MR JUSTICE MADDERN (A DEPUTY PRESIDENT OF THE AUSTRALIAN CONCILIATION AND ARBITRATION COMMISSION) AND MR COMMISSIONER DONALDSON (A COMMISSIONER OF THE AUSTRALIAN CONCILIATION AND ARBITRATION COMMISSION) AND THE AUSTRALIAN WORKERS' UNION; v. EX PARTE THE AUSTRALIAN BUILDING CONSTRUCTION EMPLOYEES' AND BUILDERS LABOURERS' FEDERATION

18 March 1986

Decision

GIBBS C.J., WILSON AND DAWSON JJ.: This is the return of an order nisi for writs of mandamus, prohibition and certiorari directed to three members of the Australian Conciliation and Arbitration Commission ("the Commission") and the Australian Workers' Union ("the A.W.U."). The order was made on the application of the Australian Building Construction Employees' and Builders Labourers' Federation ("the B.L.F.").

2. The application arises out of a demarcation dispute between the B.L.F. and the A.W.U. regarding the representation of workers engaged in building bridges. By an agreement ("the bridge agreement") made between the two unions in 1968, and certified by a member of the Commission under s.31 (which now appears as s.28) of the Conciliation and Arbitration Act 1904 (Cth), as amended, ("the Act") on 13 June 1969, the two unions reached agreement that the A.W.U. should have as against the B.L.F. the exclusive right to represent workers engaged in building bridges in New South Wales and overpasses and/or underpasses in New South Wales, Victoria, South Australia and Tasmania and that the B.L.F. should have as against the A.W.U. the exclusive right to represent workers engaged in the building of bridges in Victoria, South Australia and Tasmania. On 18 June 1984 the A.W.U. applied to the Commission for a variation of the Building Construction Employees and Builders Labourers (Consolidated) Award 1982 ("the B.L.F. award"). Four of the proposed variations were designed to remove references to bridges from the scope clause of the B.L.F. award. The application, which was given the number C. No. 3643 of 1984, came before Alley J. in July 1984. After hearing argument as to the effect of the bridge agreement, from which the A.W.U. claimed to have withdrawn, and as to the standing of the A.W.U. to seek to vary the B.L.F. award, Alley J. suggested that if the A.W.U. wished to bring the bridge agreement to an end it should file an application to set it aside, and adjourned the matter before him. On 16 July 1984 the A.W.U. applied to the Commission to vary the A.W.U. Construction and Maintenance Award, 1975 ("the A.W.U. award") so as to enlarge the scope of that award to cover work done in or in connexion with the construction of bridges throughout the whole area of application of the award. That application was numbered C. No. 3735 of 1984. On 23 August 1984 an application, numbered C. No. 3950 of 1984, was made by the A.W.U. to set aside the bridge agreement. On 12 September 1984 all three matters were heard together by Alley J. who, on 15 October 1984, gave a decision in which he stated that he intended to make orders to the effect sought by the A.W.U., but gave the B.L.F. a limited opportunity to show cause why those orders should not be made. After hearing submissions on behalf of the B.L.F., he published a final decision on 14 December 1984, in which he stated that he handed down orders (1) setting aside the bridge agreement; (2) varying the B.L.F. award by, inter alia, excluding the reference to bridges and (3) varying the A.W.U. award in the manner sought. Both of the decisions published on 15 October 1984 and 14 December 1984 bore a heading which referred to five matters, viz. matters C. No. 3643 of 1984, C. No. 3950 of 1984 and C. No. 3735 of 1984; also C. No. 49 of 1977 (which related to the B.L.F. award) and C. No. 1373 of 1975 (which related to the A.W.U. award). However, three separate formal orders were made.

3. On 21 December 1984 the B.L.F. applied to a Deputy President of the Commission for exemption from the requirements to file with its notice of appeal three copies of the documents referred to in pars.(b), (c), (d), (e) and (f) of reg.27(1) of the regulations made under the Act. The order granting the application was headed as follows:

"IN THE MATTER of a decision by Alley J. on the 15th October 1984 and an Order made on the 14th December 1984 C/No. 49 of 1977, C/No. 3643 of 1984, C/No. 1373 of 1975, C/No. 3735 of 1984, C/No. 3950 of 1984

and

IN THE MATTER of an Appeal against the Order of Alley J. made on the 14th December 1984."

4. On the same day the B.L.F. filed a notice of appeal. The notice bore the same heading as the order on the application for exemption made by the Deputy President on that day. However, the operative words of the notice of appeal appeared to limit it to one only of the three orders which had been made by Alley J., viz., that in matter C. No. 3643 of 1984. The notice read:

"AN APPEAL is hereby made by the Australian Building Construction Employees and Builders' Labourers' Federation against a decision of Alley J. made on the 15th October, 1984 and the 14th December, 1984 and an order made on the 14th December, 1984 whereby the Building Construction Employees and Builders' Labourers' (Consolidated) Award, 1982 was varied with respect to bridges in Clause 6.1 and Appendix K."

The notice contained grounds, two of which (grounds 7 and 8) appear to be relevant only to an appeal against the decision to vary the A.W.U. award.

5. On 6 February 1985 the solicitors for the B.L.F. gave notice to the Industrial Registrar that when the appeal came on for hearing the B.L.F. proposed to seek the leave of the Commission to amend its notice of appeal (inter alia) so as to appeal against the orders made setting aside the bridge agreement and against the order made to vary the A.W.U. award.

6. On 11 April 1985 the matter came before the Full Bench of the Commission which refused to allow the B.L.F. to amend its notice of appeal or to file a new notice of appeal out of time and held that it had no power to allow the B.L.F. to proceed with appeals against the orders setting aside the bridge agreement and varying the A.W.U. award. The Full Bench held that the notice of appeal was insufficient to refer to the decisions in matters C. No. 3735 of 1984 and C. No. 3950 of 1984, and, following an earlier decision of the Commission (Amalgamated Television Services Pty. Ltd. v. Professional Radio Employees' Institute of Australasia (1963) 105 CAR 123), held that it had no power to allow an amendment to the notice of appeal which would have the result that appeals in those two matters would be allowed to be brought out of time. It was made clear that the decision was based on a want of power, and not on the exercise of a discretion.

7. Counsel for the B.L.F., in support of the contention that the order nisi should be made absolute, submits that (1) the notice of appeal which was filed on 21 December 1984 should properly be regarded as a notice of appeal against all three decisions; (2) alternatively, the Commission had power to make the necessary amendments to the notice; and (3) in the further alternative, the Commission had power to extend the time for filing fresh notices of appeal.

8. Section 35(2) of the Act provides that an appeal lies to the Full Bench of the Commission against certain awards (an expression which includes orders - s.4(1)). By s.35(4)(a) it is provided:

"An appeal under sub-section (2) -

(a) shall be made within 21 days after the date of the award or decision appealed against ... "

Section 35(11) provides:

"The provisions of this Division relating to

the hearing and determination, or the hearing or determination, of an industrial dispute extend to the hearing and determination, or the hearing or determination, as the case may be, of an appeal under this section."

Section 35 appears in Div.1 of Pt.III. Section 41 also appears in that Division. By s.41(1) the Commission is given wide powers in relation to an industrial dispute and by s.41(2) a reference in sub-s.41(1) to an industrial dispute shall, unless the contrary intention appears, be read as including a reference to any other proceedings before the Commission. The powers given to the Commission by s.41(1) include powers to:

"(k) allow the amendment, on such terms as it

thinks fit, of any proceedings;

(l) correct, amend or waive any error, defect or

irregularity, whether in substance or in form;

(m) extend any prescribed time".

9. The provisions of the Act should be construed to give effect to its objects which, according to s.2(c), include "to provide means of preventing and settling industrial disputes not resolved by amicable agreement, including threatened, impending and probable industrial disputes, with the maximum of expedition and the minimum of legal form and technicality". By s.39(1) it is provided that in relation to "an industrial dispute with which the Commission is dealing, the Commission shall, in such manner as it thinks fit, carefully and expeditiously hear, inquire into and investigate the dispute and all matters affecting the merits of the dispute and the right settlement of the dispute". By s.40(1) it is provided that in the hearing and determination of an industrial dispute or in any other proceedings before the Commission -

"(a) the procedure of the Commission is, subject to

this Act and the regulations, within the discretion of the Commission;

(b) the Commission is not bound to act in a formal

manner and is not bound by any rules of evidence but may inform itself on any matter in such manner as it thinks just; and

(c) the Commission shall act according to equity,

good conscience and the substantial merits of the case, without regard to technicalities and legal forms."

10. In Amalgamated Television Services Pty. Ltd. v. Professional Radio Employees' Institute of Australasia, the members of a Full Bench of the Commission said that the provisions of s.35(11) of the Act (which then appeared as s.35(8)) referred only to the "hearing and determination" of an appeal and not to the making, or institution, of the appeal, and accordingly limited the application of other provisions of the Division (including s.41) to the "hearing and determination" of an appeal. They went on to say: "That being so, in our view the provisions of the division referred to in sub-section (8) do not apply to the first step in an appeal, namely, the making of it, which is not part of a hearing or determination but a necessary antecedent step before a hearing and determination can take place."

11. It can hardly be doubted that the notice of appeal lodged on 21 December 1984 was intended to be an appeal against all three orders of Alley J. That appears, not only from the facts that the three matters were so closely connected that it would have been irrational for a dissatisfied party to have appealed against one order and not against the others, and that the order granting exemption from certain requirements appears to refer to an appeal which relates to all matters, but also from the facts that the heading to the notice refers to all three matters and that grounds (7) and (8) are directly applicable to the matter concerning the variation of the A.W.U. award and not to the other matters. On the other hand, the operative words of the notice refer to one order only, that made in the matter which concerned the B.L.F. award (matter C. No. 3643 of 1984). It is true that s.35 itself provides no formalities for the making of an appeal, and that under reg.27(3) an appellant may be exempted from compliance even with the requirement to file a notice of appeal. However, the exemption in fact granted in the present case did not extend so far, and the only act done to institute the appeal was the filing of the notice of appeal. Notwithstanding the circumstances to which reference has been made, it is difficult to escape the conclusion that the notice effectively instituted an appeal only against the order to which it specifically refers, viz. the order in matter C. No. 3643 of 1984. The letter of 6 February 1985 proceeded on that view. It cannot be said that the Commission was wrong in holding that no appeal was instituted in matters C. No. 3735 of 1984 and C. No. 3950 of 1984.

12. The question that then arises is whether the wide powers given by s.41(1) were available to the Full Bench in the present case. Mr Shaw, who appeared for the A.W.U., submitted that we should not disturb the long standing decision in Amalgamated Television Services Pty. Ltd. v. Professional Radio Employees' Institute of Australasia, and that in any case the decision in that matter was correct. Further, Mr Shaw submitted that s.41, by its own terms, applies only to proceedings before the Commission (see s.41(2)) and since no appeal was instituted in two of the matters, there are no proceedings in those matters in which the powers of s.41 can be exercised. He went on to submit that the power to extend time given by s.41(1)(m) could not be invoked after the relevant time had expired and after the appeal had ceased to exist.

13. This Court of course recognizes that the Commission is entitled to determine its own practice, consistently with the provisions of the law and the requirements of natural justice. But the decision in Amalgamated Television Services Pty. Ltd. v. Professional Radio Employees' Institute of Australasia did not merely lay down a practice - it depended on the true construction of the Act. In our opinion that decision proceeded on too narrow a view of the effect of the Act. Section 41 applies "in relation to" "any . . . proceedings before the Commission". The word "proceedings" has frequently been said to have a wide and general application, and it would certainly include both an appeal and an application for an amendment or an extension of time. If a notice of appeal has been given, and, when the matter comes before a Full Bench, it appears that the notice is so defective in substance that it fails to institute the desired appeal, an application for an order allowing an amendment, or correcting the defect, or extending the time for lodging the notice of appeal, either forms part of, or in itself constitutes, proceedings before the Commission in which the powers given by s.41 to make an order of those kinds can be exercised, unless some other section of the Act indicates that the provisions of s.41 are inapplicable to the particular proceedings in question. There is no apparent reason why the general provisions of s.41 should not apply to the hearing of an appeal at all its stages, including a hearing of the question whether the appeal has been properly instituted. Section 35(11) appears to have been inserted out of an abundance of caution, but it would be unreal to regard it as indicating that a distinction should be drawn between the hearing of a question whether an appeal has been instituted and the hearing of the appeal itself, and as revealing an intention that the provisions of Div.1 of Pt.III apply to a hearing of the latter kind but not to a hearing of a former kind. The hearing of an appeal might involve the question whether the time limits prescribed by s.35(4) had been complied with, or whether the matter was of such public importance that an appeal should lie (see s.35(3)), as well as the hearing of the merits. In any case an application to the Full Bench for an amendment or an extension of time would be a proceeding before the Commission within s.41. Moreover, some provisions of Div.1 of Pt.III are of such general application that it would be difficult to suppose that it was intended that they should not be applicable in circumstances such as the present - s.37 (regarding the incapacity of a member of the Commission) and s.38 (enabling Commissioners to sit simultaneously) provide examples - and that circumstance negates the idea that s.35(11) has the restrictive effect which was attributed to it in Amalgamated Television Services Pty. Ltd. v. Professional Radio Employees' Institute of Australasia.

14. The fact that the prescribed time had expired before the application for extension was made presents no barrier to the exercise of the Commission's powers. The provisions of ss.2(c), 39(1) and 40(1)(c) reveal a clear and understandable intention that proceedings before the Commission should be directed to the merits and that technicalities and legal forms should not be regarded. The result reached in Amalgamated Television Services Pty. Ltd. v. Professional Radio Employees' Institute of Australasia, which was naturally followed in the present case, is a very technical result indeed, and contrary to the intention revealed by those provisions. There is nothing in the Act that suggests that the power given by s.41(1)(m) cannot be exercised after the prescribed time, which is sought to be extended, has expired, if the circumstances justify that course. (The expression "prescribed time" in s.41(1)(m) refers to a time prescribed by the Act or the regulations thereunder: s.17(q) of the Acts Interpretation Act 1901 (Cth), as amended.) It is true that many rules of court expressly provide that the court may extend a period of time within which a person is required or authorized to act, although the application for extension is not made until after the expiration of that period, but that does not mean that such a provision is necessary in all cases to enable a period of time which has expired to be extended. It has recently been held in England that even in the absence of any such provision a court has an inherent power to control its own procedure and enlarge time after the prescribed time has elapsed, and that the older notion, that when the time has expired without the necessary action having been taken the action is dead and cannot be revived, is erroneous: Reg. v. Bloomsbury Court, Ex p Villerwest (1976) 1 WLR 362; 1 All ER 897; Samuels v. Linzi Ltd. (1981) QB 115. In those cases the court declined to follow an earlier line of authorities which was accepted as correct by this Court in Bailey v. Marinoff (1971) 125 CLR 529 - a case which is distinguishable from the present in that the litigation there had been regularly concluded by a formal order of the court, and which in any case rests on a principle which is subject to exceptions: Wentworth v. Attorney-General (N.S.W.) (1984) 154 CLR 518, at p 526. The question in the present case must be answered by deciding what is the true intention of the statutory provision which fixes the time, and having regard to the object of the Act, and the intention revealed by the provisions already mentioned, ss.35 and 41 cannot be regarded as intended to place a technical impediment in the way of the settlement of an industrial dispute on its merits, or as denying to the Commission the power to extend the time prescribed for instituting an appeal when the Commission in its discretion considers that such an extension would be desirable.

15. For these reasons, the Full Bench had power either to amend the notice of appeal, or to extend the time for filing a fresh notice of appeal. Since it did not exercise juris- diction, wrongly believing its powers to be so restricted as to preclude it from exercising its discretion to grant the relief sought, the B.L.F. is entitled to mandamus. Section 60(1) of the Act, which provides (inter alia) that subject to the Act an award (which, as has been said, includes an order) is not subject to prohibition, mandamus or injunction in any court on any acount, does not bar this remedy. A provision such as s.60(1) cannot preclude this Court from exercising the powers directly conferred on it by s.75(v) of the Constitution, and from issuing mandamus when the Commission wrongly declines jurisdiction: see, e.g., R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust.) Ltd. (1949) 78 CLR 389; R. v. Blakeley; Ex parte Association of Architects, Etc., of Australia (1950) 82 CLR 54.

16. The Court will make absolute the order nisi for a writ of mandamus directed to the respondents, Mr Justice Coldham, Mr Justice Maddern and Mr Commissioner Donaldson, directing them to proceed with the hearing and determination in the Commission according to law of the application by the B.L.F. under s.41 of the Act for orders extending the time in which notices of appeal may be filed in matters C. No. 3735 of 1984 and C. No. 3950 of 1984 and/or amending the notice of appeal dated 21 December 1984. Otherwise the order nisi will be discharged.

Orders

Make absolute the order nisi for a writ of mandamus directed to the respondents, Mr Justice Coldham, Mr Justice Maddern and Mr Commissioner Donaldson, directing them to proceed with the hearing and determination according to law in the Conciliation and Arbitration Commission of the application by the applicant under s.41 of the Act for orders extending the time in which notices of appeal may be filed in matters C. No. 3735 of 1984 and C. No. 3950 of 1984 and/or amending the notice of appeal dated 21 December 1984.

Order nisi for writs of prohibition and certiorari discharged.