Re Maddern; Ex Parte Australian Hotels Association

[1993] HCA 25

HIGH COURT OF AUSTRALIA

Toohey J.

RE: AN APPLICATION FOR A WRIT OF MANDAMUS AND A WRIT OF CERTIORARI AGAINST THE HONOURABLE JUSTICE MADDERN, PRESIDENT OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION; THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION and AUSTRALIAN LIQUOR, HOSPITALITY AND MISCELLANEOUS WORKERS UNION EX PARTE AUSTRALIAN HOTELS ASSOCIATION

(1993) 112 ALR 650

7 May 1993

Orders

Application for an order nisi for a writ of mandamus and a writ of certiorari dismissed.

Decision

TOOHEY J This is an application by the Australian Hotels Association for an order nisi for prerogative relief against the President of the Australian Industrial Relations Commission, against the Commission itself and against the relevant union.

2. The application arises out of a decision by the President refusing an application by the prosecutor that, pursuant to s.107(6) of the Industrial Relations Act 1988 (Cth) ("the Act"), a Full Bench of the Commission be constituted to deal with matter C No.32443 of 1992.

3. The "matter" sought to be referred is an application to vary the Hotels, Resorts and Hospitality Industry Award 1992 by the inclusion of wage rates and relativities under the Structural Efficiency Principle referred to in National Wage Case decisions. In making formal application to Commissioner Fogarty for a reference to the Full Bench, Mr McKendry for the prosecutor said:
"A range of matters regarding this application raise
questions of general public interest, which require the matter to be dealt with by way of Full Bench."

4. The application for relief relies upon s.107(6)(b) of the Act which requires the President to grant an application made under s.107(2)(b) where the President is of the opinion:
"that the industrial dispute or the part of the industrial
dispute is of such importance that, in the public interest, it should be dealt with by a Full Bench".

5. On 13 April 1993 the President issued a memorandum in which he said that he had read the transcript of proceedings and had conferred with Commissioner Fogarty. He concluded:
"Having regard to the subject matter and the reasons for
the application ... I am not of the opinion that, in the public interest, a Full Bench should be constituted."

6. In support of the application for mandamus and certiorari, Mr Tracey QC for the prosecutor submitted that the decision of the President differed significantly from the requirement of s.107 for "the formation of an opinion on the part of the President as to whether or not the dispute or part of it is of such importance that in the public interest the matter should be dealt with by a Full Bench". Essentially, the prosecutor's contention was that the President failed to apply the test demanded by s.107(6)(b) because he failed to identify the degree of importance of the industrial dispute as his reason for refusing to refer the matter to a Full Bench.

7. Counsel referred to the decision of Dawson J in Re Australian Insurance Employees Union; Ex parte Academy Insurance Pty. Ltd. ("the AIEU Case") ((1) (1988) 78 ALR 466.). In that case, his Honour granted an order nisi for a writ of mandamus and proceeded to make the order absolute at first instance. The decision complained of was a refusal by the President of the Commission to refer a hearing to a Full Bench ((2) The application was brought under s.34(6)(b) of the Conciliation and Arbitration Act 1904 (Cth), the precursor of s.107(6)(b) of the Act.), with the comment that "no special or extraordinary circumstances exist in this case". Dawson J found that the test provided for had not been applied, rather that the President had concerned himself with the presence or absence of a special feature not determinative of the application.

8. The present case clearly differs from the AIEU Case where the President had made no reference whatsoever to the public interest element of the test. Although the precise formulation of the Act was not adopted by the President in this case, he used words capable of incorporating the elements required by s.107.

9. The prosecutor also pointed to other provisions in the Act which contain a public interest element but which do not refer to the "importance" of the industrial dispute ((3) For example, ss.90, 111(1)(g)(iii), 113(2B).). However, the President referred specifically to s.107 in his memorandum of decision and there is no reason to believe that he confused the test provided for by that section with any public interest test contained elsewhere in the Act.

10. It appears that there is no right of appeal from the decision of the President as to whether a matter should be referred to the Full Bench. Section 45 of the Act provides for appeals to the Full Bench in relation to the matters contained in s.45(1). A decision under s.107(6) is not among those listed. Although the lack of an appeal right reduces the available means of review, this factor does not affect the nature or extent of the power of the Court to grant prerogative relief in the present case.

11. While the President's memorandum refusing the application is brief, I see no reason to conclude that he misunderstood the criteria which the Act requires to be applied. In the circumstances it would have been extraordinary had he done so. The words "the subject matter and the reasons for the application" are wide enough to embrace the statutory criterion. As this Court said in Re Media, Entertainment and Arts Alliance; Ex parte Hoyts Corporation Pty. Limited ((4) (1993) 112 ALR 193, at p 194.):
"Ascertainment of where the public interest lies is very
much a question of fact and degree". The Court was there speaking of s.111(1)(g)(iii) of the Act but the words are equally apposite to s.107(6)(b).

12. I am not persuaded that the prosecutor has made out an arguable case that the President has acted in such a way that prerogative relief is appropriate. The application must be refused.