Robertson v Civil Service Association of Western Australia Inc
[2003] WASCA 284
•27 NOVEMBER 2003
JURISDICTION : WESTERN AUSTRALIAN INDUSTRIAL APPEAL COURT
CITATION: ROBERTSON -v- CIVIL SERVICE ASSOCIATION OF WESTERN AUSTRALIA INC [2003] WASCA 284
CORAM: ANDERSON J (PRESIDING JUDGE)
HASLUCK J
EM HEENAN J
HEARD: 3 NOVEMBER 2003
DELIVERED : 27 NOVEMBER 2003
FILE NO/S: IAC 9 of 2003
BETWEEN: DIANE MARGARET ROBERTSON
Appellant
AND
CIVIL SERVICE ASSOCIATION OF WESTERN AUSTRALIA INC
Respondent
Catchwords:
Rules of an organisation - Power of Commission exercisable by President under s 66 of Industrial Relations Act 1979 - Nature of discretion to exercise power - Basis necessary for refusal to exercise power - Error of law - Nature of relief
Legislation:
Industrial Relations Act 1979, s 66, s 90
Labour Relations Reform Act 2002
Result:
Appeal allowed
Category: A
Representation:
Counsel:
Appellant: Mr G McCorry
Respondent: Mr D H Schapper
Solicitors:
Appellant: Labourline
Respondent: Ilberys
Case(s) referred to in judgment(s):
Commissioner of State Revenue (Victoria) v Royal Insurance Australia Ltd (1994) 182 CLR 51
Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1971) 127 CLR 106
Jones v CSA (Application No PRES 3 of 2002)
Julius v Bishop of Oxford (1880) LR 5 AC 214
R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389
Tortola Pty Ltd v Saladar Pty Ltd [1985] WAR 195
United Construction Pty Ltd v Birighitti [2003] WASCA 24
Ward v Williams (1955) 92 CLR 496
Case(s) also cited:
Callaghan v Federated Clerks Union of Australia (1987) 22 IR 346
Carter v Drake (1992) 72 WAIG 2501
Jess v Scott (1984) 52 ALR 393
Neville Jones v Civil Service Association of WA Inc (2003) WAIRC 08115
ANDERSON J (PRESIDING JUDGE): This is an appeal from a decision of the President of the Western Australian Industrial Relations Commission in which the President declined to make the orders and declarations sought by the appellant in an application made pursuant to s 66 of the Industrial Relations Act 1979.
Section 66 relevantly provides:
"66(1)…
(2)… the president may make such order or give such directions relating to the rules of the organisation, their observance or non‑observance or the manner of their observance, either generally or in the particular case, as he considers to be appropriate…"
The appellant was the president of the respondent which is a State organisation, she having obtained that position in virtue of her election to the position of branch president of the Community and Public Sector Union (the "CPSU"). The latter is a federal organisation. A certificate has been issued under s 71 of the Act and it is common cause that the general effect of the certificate is that all of the office bearers elected to office in the State branch of the CPSU hold the same office in the respondent. Apparently there is a challenge to the validity of the s 71 certificate, but that challenge is in other proceedings and does not affect the issues which arise for consideration in this case.
In November 2002 persons who were members of both organisations and who were interested in contesting the next elections for offices within the State branch of the CPSU (and hence for offices within the respondent) commenced their campaigns. This in itself caused some degree of dissension because the elections had not yet been called. Campaigning was seen in some quarters to be premature. The appellant began to receive complaints from members about this and to the effect that the campaigning methods on the part of the candidates‑to‑be were out of order. There were complaints that electioneering material was being distributed in an unorthodox manner, that union funds were being misused for campaigning purposes and that confidential information was being used in order to facilitate the distribution of campaign "flyers". The appellant commenced to make enquiries of the people concerned but they were not co‑operative and she did not get far. Some people told her that she had no authority to make the enquiries or to require staff members to report on the matters the subject of the complaints. The appellant decided to obtain legal advice as to her powers and responsibilities, which she apparently did in the name of the respondent, although the information about this is scant. Ultimately, the appellant decided to call a special meeting of the respondent's Council to deal with the complaints and she gave notice of a special Council meeting to be held on 20 November 2002. There was considerable disputation about the formalities with respect to the calling of the meeting, it being alleged against the appellant by some members of the Council that proper procedures had not been followed. The meeting did go ahead. It would appear it was a meeting of the Council of the respondent and not a meeting of the Council of the State branch of the CPSU; nor was it a joint meeting. Once again, however, the information we have about this is rather vague. The minutes of the meeting have not been placed before the Court. At the meeting the appellant presented a report with respect to the complaints she had received and the results of the investigations which she had made into those complaints. It is evident that her report received a hostile reception from the majority of Council members and a motion was put and passed in the following terms:
"Resolution SCM06/02
Council receives the report submitted by the president and expresses great concern with the president's failure to:
1.Act in consultation with the principal officers.
2.Comply with the rules of the Union.
3.Afford procedural fairness.
4.Convene Council meetings appropriately and comply with standing orders;
and directs that the president desists from further action on this matter."
This was in effect and in the circumstances a censure of the appellant for acting improperly by seeking to obtain a report from officers of the respondent in respect of the matters the subject of the complaints, failing to consult other officers before convening the special meeting, failing to comply with the rules and standing orders with respect to the convening of meetings, obtaining legal advice at the expense of the respondent without the authority of the respondent and failing to accord procedural fairness to the persons referred to in her report. The appellant was aggrieved by the resolution. In essence she maintained that she had acted entirely in accordance with the rules and within her powers as president of the respondent and in discharge of her duties as president of the respondent; and therefore the resolution censuring her was unjustified. I gather that she sought the removal of the resolution from the minute book and I gather that when she was unsuccessful in persuading the Council to rescind the resolution these proceedings were commenced. In the application the appellant sought the following orders:
"1.An order or directions under s 66(2) of the Act requiring the council and the executive council of the respondent to observe its rules in regard to the powers of its President.
2.A declaration that the applicant as President of the respondent is empowered under the rules of the respondent to obtain a report from the officers of the respondent on matters arising from the distribution of a fundraising flyer related to the 2003 union elections.
3.An order directing the council of the respondent to remove and keep removed from the minute book of the meeting all references to the resolution SCM06/02 carried on 20 November 2002 at a special council meeting as it was factually and legally incorrect.
4.A declaration that the applicant as President of the respondent is able to obtain legal advice reasonably required to enable her to perform her duties as President without first obtaining the approval from the council of the respondent.
5.A declaration that all such legal costs reasonably incurred by the applicant as President of the respondent in the performance of her office are expenses incurred by or on behalf of the respondent and for which the respondent is liable to pay."
Sharkey P declined to make any orders or declarations in favour of the appellant and dismissed her application. It is from the dismissal of her application that the appellant now appeals to this Court.
Due to the amendments that were made to the Industrial Relations Act in August 2002 this Court's appellate jurisdiction is very limited. It is defined in s 90 as follows:
"90(1)Subject to this section, an appeal lies to the Court in the manner prescribed from any decision of the President, the Full Bench, or the Commission in court session -
(a)on the ground that the decision is in excess of jurisdiction in that the matter the subject of the decisions is not an industrial matter
(b)erroneous in law in that there has been an error in the construction or interpretation of any Act, regulation, award, industrial agreement or order in the course of making the decision appealed against; or
(c)on the ground that the appellant has been denied the right to be heard
but upon no other ground."
It is clear that the President's decision to dismiss the application was not in excess of jurisdiction in the way referred to in s 90(1)(a) and it is also clear that the appellant was not denied the right to be heard within the meaning of s 90(1)(c). The President was not engaged in the construction or interpretation of any regulation, award, industrial agreement or order within the meaning of s 91(b). Therefore the question on which the competence of the appeal depends is simply whether the President's decision to dismiss the application arguably involved "an error in the construction or interpretation of any Act". If so, the appeal is competent but otherwise it is not.
Mr McCorry, who appeared for the appellant, contended that there was an error of that kind in as much as the President misconstrued s 66 as conferring upon him an absolute discretion to decline to grant relief even where an applicant has proved that an irregularity of the kind referred to in s 66(2) has occurred. As I understood his argument it was to the effect that s 66(2) obliged the President to grant the relief sought by the appellant because the appellant had established before him (and the President appeared to accept) that the rules of the respondent were not observed or were observed in an inappropriate manner; and that because the President decided not to grant any relief at all and to dismiss the appellant's application the President must have erred in his construction of the Act as regards the ambit of his discretion.
Whether this is correct or not depends on an analysis of the reasons why Sharkey P declined relief. If he did take the approach that whilst the merits of the case lay with the appellant she should be refused relief on discretionary grounds a question might arise, and probably would arise, as to the proper construction of s 66(2), that question being: Does the section confer a discretion to refuse relief even in a meritorious case?
I would say in passing that I would doubt that s 66(2) confers an absolute discretion. I would doubt that the discretion imported by the empowering word "may" in s 66(2) is wholly unregulated in the sense that there is no duty or obligation in the President to use the power which is conferred on him by the section. I can find nothing in the Act which would indicate that this was parliament's intention. In my opinion, the power given to the President by s 66(2) is a power given for the purpose of ensuring that the persons identified in s 66(1) (members of an organisation or persons who wish to become members of an organisation) have a means of enforcing the rules of that organisation. The power is to be used for the benefit of such persons if the conditions on which they are entitled to call for its exercise are proven to exist. We can perhaps put to one side frivolous complaints of trivial non‑observances of purely procedural rules, but a power such as is conferred by s 66(2) ought to be exercised if good reason for its exercise is shown to have arisen: Julius v Bishop of Oxford (1880) LR 5 AC 214 per Lord Cairns at 225. See also Ward v Williams (1955) 92 CLR 496 at 505 ‑ 506; Tortola Pty Ltd v Saladar Pty Ltd [1985] WAR 195 at 199 ‑ 200.
If therefore Sharkey P had approached the case on the basis that although the appellant had proved a case for relief under s 66(2) there was an absolute and unfettered discretion to decline to grant relief, that would have been arguably an erroneous view of the extent of his discretion under the section and, as such, it arguably would have involved a misconstruction of the section.
However, I think Mr McCorry's submission proceeds upon a misunderstanding of the President's decision. I shall try to explain why I think this is so.
As to par 1 of the orders sought by the appellant Sharkey P appears to have regarded this as an introductory or generalised head of claim which did not of itself provide a basis for the grant of specific relief. I would agree. There was no point in the President making a general order that the governing body of the respondent "observe its rules in regard to" the powers of its president. Insofar as the refusal to make an order in terms of par 1 was an exercise of discretion, I think it was well within the ambit of the discretion conferred by s 66(2).
As to par 2 of the orders sought the President observed that the report referred to in this head of claim had in fact been obtained by the appellant so there was no purpose in making a declaration that the appellant "is empowered" to obtain it. I must say with respect that this approach rather misses the point. The appellant had been censured by (or believes she had been censured by) the Council through resolution SCM60/02 for seeking to obtain the report or reports in question. I think she wanted this declaration in order to attack the validity of this aspect of SCM60/02. As I understand her case, she wanted Sharkey P to declare that her action in obtaining the report(s) was within power and that there was no ground on which she should have been censured for so acting. But whether the President was right or wrong in his understanding of the basis of this head of claim I do not see that in refusing the relief sought he was acting on a misconstruction or misinterpretation of s 66(2).
As to the claim in par 3 of the orders sought (the claim to have SCM60/02 removed from the minute book of the respondent) the President took the approach, I think, that the resolution related in substance to the affairs of the State branch of the CPSU and not to the affairs of the respondent. His reasoning was, as I follow it, that in order to enquire into the question whether the resolution was "factually and legally incorrect" as alleged by the appellant, he would have to enquire into the conduct of the appellant in her capacity as branch president of the federal body, which he had no authority to do. Whether or not the President was right about the nature of the enquiry which he was being called upon to undertake, his decision does not involve the construction or interpretation of any Act. Specifically his refusal to make an order was not based upon a misunderstanding of the ambit of his discretion as conferred by s 66(2).
It is to be noted that the President observed that one basis upon which SCM60/02 could have been attacked as a resolution of the Council of the respondent was that the respondent had no right to concern itself with or resolve upon matters which were exclusively the concern of the federal body. However, he held that because this point had not been argued, he would not base a decision upon it. This was an application of natural justice principles, and did not involve the construction or interpretation of any Act.
As to the claim in item 4 of the orders sought, which is a claim for a declaration that in deciding to obtain legal advice the appellant had acted within the powers of her office Sharkey P held that she did have that power as the respondent's president but only in relation to the affairs of the respondent. She could not, in the name of the respondent, obtain legal advice with respect to her powers and duties as an office holder in the federal organisation. He thought that this is what she had done so he declined to grant relief.
Once again, this might be right or wrong in point of fact but it does not involve the construction or interpretation of the Industrial Relations Act.
As to the relief sought in item 5, which is a declaration that all legal costs reasonably incurred by the appellant as president of the respondent in the performance of her office are expenses incurred by or on behalf of the respondent and for which the respondent is liable to pay, Sharkey P declined to grant the declaration, for the same reason as he had declined to grant the declaration sought in item 4. It is implicit in his reasons that if the appellant had incurred legal costs in the name of the respondent in her capacity as president of the respondent and in respect to the affairs of the respondent he would have made the declaration. But he took the view, rightly or wrongly, that in fact the legal costs in question were incurred in relation to the affairs of the federal organisation. Hence, no purpose would be served by making a declaration with respect to the appellant's authority to incur legal costs as president of the respondent in relation to the affairs of the respondent. It is of course arguable that because the election of office bearers in the federal body would automatically determine the office bearers in the respondent, the appellant had a dual responsibility to both organisations to exercise her powers of office to investigate allegations of improper conduct with respect to the elections, they being the only elections that were to be held. If so, legal costs incurred in the discharge of that dual responsibility arguably were the joint responsibility of the two organisations. Whether this is so or not I cannot see that the decision which Sharkey P arrived at can be said to
be erroneous in law "in that there has been an error in the construction or interpretation of any Act…" within the meaning of s 90(1)(b).
I would dismiss the appeal on the ground that the decision of the President does not attract the appellate jurisdiction of this Court.
HASLUCK J: I have had the advantage of reading in draft the reasons for judgment of EM Heenan J. It follows that there is no need for me to describe the circumstances giving rise to the appeal or to undertake a full review of the relevant statutory provisions. I am generally in agreement with the views expressed by his Honour and with his central conclusion that the learned President, having largely vindicated the actions of the appellant, erred in failing to afford relief to the appellant.
This brings me to the jurisdiction of the Industrial Appellate Court and the question of whether it is open to this Court to deal with the issues raised by the appeal. It was common ground at the hearing of the appeal that the crucial provision in the circumstances of the present case is s 90(1)(b) which provides that an appeal lies to the Industrial Appeal Court from any decision of the President on the ground that the relevant decision is erroneous in law in that there has been an error in the construction or interpretation of any Act, regulation, award, industrial agreement or order in the course of making the decision appealed against, but upon no other ground.
Until comparatively recent times s 90(1) provided that an appeal lay to the Industrial Appeal Court in the manner prescribed from any decision of the President on the ground that the decision was erroneous in law or was in excess of jurisdiction but upon no other ground. The effect of the Labour Relations Reform Act 2002, which took effect on 1 August 2002, was to amend the Industrial Relations Act 1979 so as to introduce the new provision I mentioned earlier. Section 90(1) in its amended form clearly reflects a parliamentary intention to limit the jurisdiction of the Industrial Appeal Court to certain prescribed areas of disputation and that intention must be respected: United Construction Pty Ltd v Birighitti [2003] WASCA 24 at pars 88 ‑ 105.
However, in the circumstances of the present case I share the view expressed by EM Heenan J that, both in construing the nature of the discretion which existed for the Commission to exercise power or to grant or to refuse a remedy on an application under s 66 of the Act and in purporting to exercise that statutory discretion, the Commission has erroneously interpreted its powers under the Act. In declining to
exercise a discretion to grant relief it has done so with reference to factors which are outside the scope of a proper exercise of the discretion which this section confers, with the result that the appeal lies within the jurisdiction of the Industrial Appeal Court under s 90(1)(b) of the Industrial Relations Act.
Accordingly, for these reasons, I consider that the appeal should be allowed and that orders should be made in the terms proposed by EM Heenan J.
EM HEENAN J: By an application filed on 27 February 2003, the present appellant, then the President of the Civil Service Association of WA Inc ("CSA"), sought orders and declarations from the President of the Industrial Relations Commission, under s 66 of the Industrial Relations Act 1979, concerning a resolution (SCM 06/02) carried by the Council of the respondent on 20 November 2002 which, his Honour the learned President later found in his decision "was in its terms condemnatory of Ms Robertson's action as president" (reasons for decision par 54). The basis upon which the appellant sought to have the learned President exercise the jurisdiction of the Commission under s 66 of the Act was contained in the submission, made in the Commission and again at the hearing of this appeal, that the majority of the Council of the respondent, in passing that resolution and thereby purporting to give it effect, misconstrued and so failed to observe the Rules of the respondent organisation, and the powers of the appellant then as president of the organisation. She sought orders, declarations or directions of the Commission designed to secure the observance, or the manner of the observance, of the rules of the organisation by correcting the record of the Executive which, so it was submitted, wrongly characterised the nature and significance of the appellant's conduct.
In the result, the learned President of the Commission, after a full hearing, dismissed the application, on what appear to be discretionary grounds, notwithstanding that the learned President found that a number of the basic grounds of the appellant's application had been established. From that order dismissing her application, the appellant appeals to this Court under s 90 of the Act and, in effect, seeks declarations and orders from this Court which she submits should have been made by the learned President in the Commission.
In order to succeed in the present appeal the appellant must establish that:
(a)she had made out a case before the President sitting as the Commission entitling her to orders or declarations relating to the rules of the respondent organisation, their observance or non‑observance or their matter of observance, which are of a nature which might be made by the Commission under s 66(2) of the Act;
(b)having established grounds for relief to be granted under s 66(2) of the Act it was erroneous in law for the learned President to decline to grant relief of the nature sought, either wholly or in part and, insofar as the learned President may have had any discretion to decline to grant the relief sought, either in whole or in part, there had been an error in law in the exercise of the discretion to withhold relief; and
(c)that this appeal is from a decision of the President erroneous in law within the meaning of subs 90(1)(b) of the Act and that it has not been shown, to the satisfaction of this Court, that no injustice has been suffered by the appellant, or even if so, that there is good reason not to confirm the decision which is the subject of appeal – s 90(3a).
In order to appreciate the significance of these prerequisites for success in this appeal it is necessary to outline, although only somewhat briefly, the background of events which led to the appellant's initial application to the Commission for relief under s 66 of the Act.
Background
The respondent is an organisation of employees registered under Div 4 of Pt II of the Act and, as such, by virtue of s 61:
" ... the organisation and its members for the time being shall be subject to the jurisdiction of the Court and the Commission under this Act; and subject to this Act, all its members shall be bound by the rules of the organisation during the continuance of their membership."
Also, as is not uncommon, the respondent organisation was and is closely associated with a sister federal registered organisation the Community and Public Sector Union ("the CPSU"). For reasons which were subsequently explained by the Commission in Jones v CSA (Application No PRES 3 of 2002), a decision given after this present dispute had arisen, it turns out that the members of the Executive of the respondent, the CSA, mistakenly believed at the material time that elections held for office bearers of the State branch of the federal union (the CPSU) would result in the persons who were elected to those offices, also becoming office bearers of the State organisation by reason of an erroneous belief that a certificate under s 71 of the Act was in effect at the material times – see subs 71(5). The decision of the Commission in Jones v CSA (supra) held that there was no such certificate applicable at the material times with all the implications which that has for the method of election of office bearers for the State registered organisation, and for the tenure of office of those individuals who were acting as office bearers of the State organisation on the basis that their election as office bearers of the federal organisation conferred on them the status of office bearers of the State body. Nevertheless, recognition of the mistaken anticipation by all the parties involved at the time, that election as an office‑bearer of the CPSU would result in appointment to a corresponding position of office bearer in the CSA, is necessary to comprehend fully the conduct of the parties which led to the present controversy and the appellant's application to the Commission.
The background facts are fully set out by his Honour President Sharkey in his reasons for decision in the Commission. His Honour describes how the applicant, Ms Robertson, had been President of the CSA since 1993 and that, by November 2002, it was anticipated that an election for office bearers of the CSPU would be held and, as a result of the common misapprehension which I have already mentioned, that this election would lead to those elected becoming appointed to corresponding positions in the CSA. Before a date for the CPSU elections had been set, and before nominations were called for candidates for that election, a group of persons intending to stand as candidates for that election distributed "flyers" to office members of the CSA within the organisation's premises, and to certain members and other supporters. The appellant was not one of this group but those members were opposed to her policies for the organisations, although in the end nothing turns on this. This early start in what amounted to an unofficial election campaign caused some concern and disapproval among certain members of the respondent organisation, who complained about this to the appellant. She also shared these concerns. Some of the concerns relayed to the appellant as president, or entertained herself, were about whether or not the conduct of the candidates in distributing "flyers" was permitted by the rules of the organisation, whether the resources or personnel of the respondent were being improperly utilised for the advancement of the campaign and associated doubts about the propriety of these actions. As a result, the appellant, acting as president of the CSA, called for a report about the apparent activities to be provided to her by the staff of the organisation. She also sought and obtained legal advice, including an opinion from independent counsel, upon the lawfulness of the apparent conduct of the persons initiating this early campaign. Acting on her sole initiative and without conferring with other members of the Council of the CSA, she also convened a special meeting of its Council to discuss these concerns as matters of urgency.
At all times during the hearing of this application in the Commission the parties have treated the actions of the appellant, and the meetings of the organisation which were convened in response, as the activities of the respondent organisation, that is the CSA, and not as activities of the CPSU. Neither of the parties to this appeal questioned, or in any way challenged, that characterisation of the events. Indeed, if the contrary had been the case and these were activities or disputes concerning the rules or operation of the federal registered organisation, neither the Commission nor this Court would have jurisdiction to deal with the initial application as that would be within the exclusive jurisdiction of the Federal Court – see s 412 and s 414, Workplace Relations Act (Clth) 1996. See now Pt 3 of Sch 1B of the Workplace Relations Act.
Nevertheless, the concerns entertained by the appellant, and the factors which prompted her to investigate the distribution of "flyers" and the activities of the group making early election manoeuvres undoubtedly related to conduct taken in anticipation of an election for office bearers of the federal organisation, namely the CPSU. Given the misunderstanding which I have described, it is not at all surprising or incongruous that office bearers of the State organisation, the CSA, should have concerns about the conduct of members in the face of an impending election for the federal organisation which, as things then stood, was believed would result in appointment to the various offices within the State organisation. Although this is an issue to which I will need to return, this focus by the State organisation and its officers upon conduct of members which had potential significance for an election of the federal organisation does not to me take the matters under consideration outside the scope of issues material for due consideration by the State organisation or its office bearers. If not already apparent from what I have said, this is because of the then current (but wrongful) anticipation that the election of office‑bearers for the federal organisation would have automatic application for the control and management of the State organisation. In other words, the conduct which was causing concern was believed to be likely to have a direct and immediate effect on the State organisation.
What happened next was that the Council of the CSA passed the resolution SCM 06/02 on 22 November 2002 critical of the appellant which, by her application to the Commission, she challenged. The terms of that resolution are:
"Council receives the report submitted by the President and expresses great concern with the President's failure to:
(1)act in consultation with the principal officers;
(2)comply with the Rules of the Union;
(3)afford procedural fairness;
(4)convene Council meetings appropriately and comply with Standing Orders;
And directs that the President desists from further action on this matter."
By its terms, therefore, the resolution amounted to a declaration by the Council that the president had failed to comply with the rules of the union when calling for a report from staff about the circumstances under which the "flyer" was released; in seeking and obtaining independent counsel's advice upon the steps taken by those who had initiated the early election campaign; in unilaterally convening a meeting of the Council of the organisation; and in failing to "afford procedural fairness" which, presumably, meant failing to discuss her concerns with those individuals involved in the early election campaign. Furthermore, the resolution of Council purported to direct, and therefore bind, the appellant as president to cease any further investigation, evaluation or discussion on those issues. The force of these implicit, but obvious, conclusions in the resolution, and the direction to the appellant, as president, to cease further action, depended on whether or not they correctly reflected the rules of the organisation as those rules applied to the circumstances which had arisen. If they did then, perhaps, the appellant was justly censured and the resolution should stand as a record of the limitations or restrictions applying to any president, including the appellant, under the rules of the organisation. On the other hand, if the resolution constituted a mistaken interpretation of the effect and application of the rules of the organisation and purported to compel the appellant to cease acting, when she was entitled to pursue the course which she had embarked upon, then that could produce an unjustified restriction upon the function of the president. It would constitute, and perhaps entrench, the non‑observance or a mistaken manner of the observance of the rules of the organisation.
Consequently, the appellant, as president of the CSA, made an application to his Honour the President of the Commission, under s 66 of the Act, seeking orders or directions relating to the rules of the organisation, their observance or non‑observance or the manner of their observance. There was no dispute, either at the hearing of the application before his Honour the President, sitting as the Commission, nor in this Court, about the power of the President, acting under s 66, to make orders or declarations generally of the nature sought. Indeed, the power to declare the true interpretation of any rule is expressly conferred under subs 66(2)(d). But the power of the President on such an application is more extensive than any of the enumerated instances under subs 66(2) as it is expressly provided that "the President may make such order or give such directions ... as he considers to be appropriate", and the various enumerated instances in s 66(2) are without limitation to the generality of that power. Nor was there ever any issue about the precise form of orders or relief sought by the appellant in her application. No doubt this was because the Commission, when granting relief or redress under the Act, is not restricted to the specific claim made – s 26(2) – but must act according to the substantial merits and without regard to legal forms – s 26(1)(a). Rather, as shall emerge, the issue which eventually became significant was whether or not, if a case had been made out showing a non‑observance or erroneous observance of the rules of a registered organisation, the provisions of subs 66(2) which provided that "the President may make such order or give such directions ... as he considers to be appropriate ... " meant that there was a discretion to decline to make any order, to give any direction or to grant any relief.
Of the issues about which the appellant complained and sought relief under s 66, the learned President, in his reasons for decision, said:
"[65]This was not a meeting of the CPSU, a Federal organisation. The CSA rules applied. Further, the president is expressly and clearly empowered to call a meeting of the Council at any time (see r 14(7)(c)).
...
[76]In my opinion, that power is not conditioned by, qualified by or affected by r 14(3) which expresses a requirement that the president act in conjunction with a number of listed principal officers in any urgent matter.
[77]There is expressly and separately conferred on the president the power to call a Council meeting at any time. As a result, the president, given the nature of her office, and of the power to preside over meetings, was not required to act in conjunction with the principal officers in calling the special Council meeting.
[78]The president did not, in that respect, act in breach of the rules and the Council erred in so resolving in breach of the rules ... The president clearly complied with the rules of the CSA and the Council was entirely in error in resolving otherwise."
And, with regard to the criticism of the appellant for investigating the concerns voiced about the early election campaign, his Honour said:
"[81]I now turn to the question of the president's power to seek the reports and information which she sought on 8 November 2002. The president has the power to do so by r 14(b)(5). ... She also reported to the Council, which is what occurred at the meeting of 20 November 2002. It was wrong of the Council to resolve otherwise. However, that matter has now been resolved and should not be the subject of any order, direction or declaration."
And, with regard to the resolution which recorded that the appellant had failed to afford procedural fairness, his Honour said:
"[83]There is no evidence of unfairness and I do not understand the allegation. In any event, this was not a proceeding to which I am persuaded the notion of procedural fairness applies. Accordingly, the resolution was itself passed in breach of the rules and was null and void. However, I have no power to strike it out from the minutes."
And with regard to the appellant's action, as president, in seeking and obtaining legal advice and, incidentally, incurring expense by doing so, his Honour said:
"[89]In my opinion, the president is empowered to enforce the rules, association policies and standing rules and have control of meetings at which he or she [presides] and shall use all necessary power to secure and enforce order and expedition in the conduct of the business and good order of the members thereat.
[90]It is implicit in that power that the president in carrying out those duties is an agent of the CSA and entitled to incur expenditure in obtaining legal opinions and a fortiori to obtain such an opinion."
These findings, made by the learned President, were not challenged at the hearing of this appeal. They appear to constitute a complete acceptance of the contentions of the appellant advanced on the application under s 66 that the terms of the resolution of the Council of 20 November 2002 (resolution SCM 06/02) involved, or reflected, an erroneous view of the rules of the organisation, resulting in action by the Council which constituted a non‑observance or erroneous observance of those rules.
While it may not have been possible for the learned President to make any order directing that the resolution should be struck out of the minutes of the respondent, it was, nevertheless, within his Honour's power to make a declaration or declarations to the effect that the appellant, as president, was entitled under the rules of the respondent organisation to act as she did, and that the resolution of the Council constituted an erroneous application of those rules and an attempt to curtail the exercise of functions entrusted by the rules to the president, which she was empowered to exercise. As the conclusions of the learned President largely vindicated the actions of the appellant, the critical issue which then arose was whether or not there was any power, or indeed reason, for the President to decline to grant relief which recognised the propriety of the appellant's conduct and that all the members of the respondent organisation "shall be bound by the rules of the organisation during the continuance of their membership" – s 61.
Reasons given to decline relief
By the time that the learned President gave his decision on the appellant's application under s 66, his Honour had delivered his decision in the case of Jones v CSA (Application No PRES 3 of 2002) which, as previously observed, held that there was no s 71 certificate then in force applying the rules of the CPSU to the CSA. That decision, therefore, cast a shadow over the appointments of the various office bearers of the CSA and the tenure of those officers. The learned President made it clear that the mistaken assumption by Council members of the CSA, that the rules of the CPSU applied to the powers of the President in the conduct of meetings of the State organisation when conducting its affairs, contributed, to a significant degree, to the erroneous view, reflected in Resolution SCM 06/02, and to the erroneous view about limitations on the appellant's powers, when acting as President of the CSA in the events which happened. However, his Honour pointed out that no issue about the existence or the effect of a s 71 certificate, had been raised by the parties before him on the application by the appellant under s 66 and, for that reason, it was inappropriate to grant any relief which depended upon an application of that conclusion. This emerges from the following passages in the learned President's reasons for decision:
"[80]I would, however, add this. I do not understand how a matter involving candidacy for election in the CPSU could be said to be a business, legitimately, of a meeting of the CSA. I would require to be persuaded, therefore, that the matter was one in my jurisdiction, and I was not. I say that although the role of both unions in the matter was plainly put in issue with particular regard to the calling of the special council meeting of 20 November 2002. I would therefore, whilst that point remains uncertain, not propose to make any order in the matter."
And, again:
"[91]Whether meetings of the CSA held under CPSU rules are invalid or whether the CPSU rules have been adopted or can validly serve as the rules of the CSA was not argued before me (see Jones v CSA [supra]). All of the meetings may, of course, have been invalidly held, therefore, insofar as they were held as CSA meetings (see s 71(1) and (2) of the Act). On the face of it, they seem to relate, at least insofar as the resolutions questioned in this matter were concerned, to the rules of the CPSU and matters conducted by and elections to be held under the CPSU rules. If, of course, the meetings were invalidly convened, then all of the resolutions challenged are invalid as purporting to be CSA resolutions when they were matters relating to a CPSU election. However, I make no final judgment on that point at this time, in the absence of substantial argument about it."
And:
"[92]... If the reasons for decision in that matter [Jones v CSA] were applied to these proceedings, they would also render the resolutions entirely void, and, in particular, resolution SCM 06/02."
The fact that there may have been additional reasons to declare the resolution SCM 06/02 to be void, either absolutely because it did not relate to the business of the CSA, or because it erroneously applied and purported to state the effect of the rules of the CPSU, does not, with respect, appear to me to be a reason to decline to make declarations of the kind which I outlined in par 27 and par 36 above or for withholding relief generally.
The basis upon which the contending parties presented before the learned President on the s 66 application was that resolution SCM 06/02 purported to be a resolution of the State organisation and, as such, reflected the view which a majority of the State council took of the powers of the president when exercising her role as the principal office‑bearer of the State organisation. There was no suggestion to the contrary and, while the views and conclusions of the majority of the council may have been distorted by the belief that they could apply the rules of the federal organisation to the events which had happened, their conduct, the conduct of the appellant which had been condemned by the resolution, and the constraints upon the appellant's conduct as president of the State union which the resolution recorded, were all governed by the powers or functions of the appellant as president of the State organisation. Accordingly, while the actions of the majority of the council were influenced by the mistaken belief that the rules of the CPSU applied to the conduct of the appellant as president of the State organisation, and also because they mistakenly believed that the results of an election for office bearers of the CPSU would automatically flow on to the appointment of office bearers of the CSA, this did not mean that there was no justiciable issue properly before the Commission about the powers of the State president and the true interpretation of the rules of the CSA. In other words, the appellant's application raised for determination questions about the rules of the State organisation as they had been applied by a majority of the council of the CSA. Therefore, despite the mistaken significance given by that group to the rules of the CPSU and an impending CPSU election, the challenged resolution remained a resolution of the CSA and a reflection of a decision of the majority of its council about the powers of the president of the State organisation. It was, therefore, a fit controversy for adjudication by the Commission under s 66.
When it came to considering the relief which should be granted to the appellant on her s 66 application, the learned President concluded as follows:
"[95]Since in the end a report was obtained and information given to the president in response to her request for that information in relation to the incident of the flyers, it is unnecessary to make the declaration sought.
[96]I would, too, declare that the CSA was in breach of its rules in that the council passed resolution SCM 06/02, in particular because it was not a matter which the CSA should consider, being a CPSU matter. However, that was not the basis on which the application was made and therefore I decline in the absence of further argument on that point to make the declaration.
[97]I would also declare that the president acted within the rules in obtaining the legal advice necessary to enable her to carry out her duties and that such expense was properly incurred but for the fact that the advice given by Dr Hockley related to a resolution concerning an election in the CPSU and not the CSA.
[98]Cogently, given that this matter was entirely in relation to an election in the CPSU, which was then dealt with by a meeting of the CSA, and given that I have doubts that the matter was at all a matter relating to the rules of an 'organisation' as defined in s 7 of the Act, and therefore may not be within jurisdiction under s 66, and for all of the above reasons, I propose to make no orders.
[99]The interests of the CSA and its members are not at all served for the reason which I have expressed above, even if I were to act within jurisdiction and power by making the orders sought. The equity, good conscience and substantial merits of the matter too, for those reasons do not constrain me to make the orders sought.
[100]I will therefore dismiss the application."
This line of reasoning followed by the learned President contains at least two strains of thought leading to his Honour's conclusion to decline relief. The first is that, as the focus of the contentious conduct was an anticipated election of the CPSU, it was not a subject which was properly the business of the CSA. On that approach the contentious issue was either an internal matter of the State branch of the CPSU, and thus beyond the jurisdiction of the Commission, or the occasion was an instance of the CSA concerning itself with matters outside its proper role and beyond the ambit of the powers of the council conferred by the rules of the State organisation. I have already indicated, with respect, why I consider that, despite the mistaken views which were prevalent within the CSA at the time, the members of the council of the State organisation were nevertheless addressing what they considered to be the powers and duties of the president of the State organisation. Consequently, this does not constitute a reason to decline relief. This conclusion is reinforced by the fact that, on either approach, the resolution of the council of the CPSU was invalid in the sense that it wrongfully reflected the meaning and application of the rules of the CSA to the situation which had arisen, so that, as long as that resolution stood uncorrected by a declaration or declarations stating the proper meaning and application of the rules of the CSA, it was a decision of the State organisation which did not observe, or did not properly observe, the rules of the respondent.
The second strain in the reasoning followed by the learned President was that factors existed which made it unnecessary or undesirable for relief of the nature sought by the appellant to be granted. This approach is obvious from his Honour's conclusions in [95], cited above, to the effect that as the appellant had successfully obtained the report and information which she sought from the staff of the respondent it was unnecessary to make a declaration that she was empowered to seek and demand such information and report. This might well justify a discretionary refusal to make a particular declaration precisely addressing the power of the president to seek information or a report from staff because, in the events which had happened, this may not have been regarded as being controversial any longer or of any utility. It may be doubted whether, in the face of the terms of resolution SCM 06/02 this assessment was then beyond contention, but that is largely a matter for discretionary evaluation by the President and does not, in my view, constitute any error of law in the construction or interpretation of the Act, or of any regulation, award or industrial agreement or order which would justify intervention by this Court under s 90 of the Act.
Next, there is the conclusion of the learned President, contained in [99] cited above, that the interests of the CSA and its members are not served by the grant of any remedy under s 66 and that equity, good conscience and the substantial merits of the matter do not constrain the grant of any relief – a reference to subs 26(1)(a) and (c) of the Act. I find it difficult to accept that it is not in the interests of the parties, or the members of the CSA, to have an erroneous interpretation of that organisation's rules corrected, the more so, when that erroneous interpretation has been relied upon by a majority of the council in an attempt to place unjustified restrictions upon the functions of its president. The Act, particularly subs 66(2) and s 61, is founded upon the premise that an organisation and its members shall be bound by the rules of the organisation and that there is scope for an aggrieved party to obtain a binding declaration as to the true interpretation of the rules in any case of controversy. This proposition can also be expressed in a negative form, namely, that the Commission or this Court should not accept that it is in the interests of a registered organisation or its members for erroneous applications of the rules of that organisation to remain uncorrected if properly brought to the attention of the Commission on an application under s 66.
Underlying the decision by the learned President to decline relief can be identified as a view that the Act did not require the President to grant relief on a s 66 application, even where an applicant had made out a case of non‑observance or erroneous observance of the rules of the organisation because of the broad discretion which the section conferred. This proposition was expressly taken up by counsel for the respondent on this appeal who submitted that the presence of the clause "the President may make such order ... " in s 66(2), alone, but certainly in conjunction with the President's power to make such order or direction "as he considers to be appropriate", meant that the entitlement to relief generally, or to particular relief in an individual case, was entirely discretionary. This undoubtedly involves a decision about the proper interpretation of s 66(2) of the Act in such circumstances.
The power of a court or tribunal to withhold relief
There are many instances where the power or jurisdiction of a court or tribunal to entertain a cause and grant relief is expressed in terms that the court or tribunal "may" hear, or may order, or may determine, the matter or issues entrusted to its jurisdiction. These provisions have usually been treated as establishing an obligation on the court or tribunal to entertain its jurisdiction to hear and determine the matter entrusted to it and, if a case to do so is made out, to grant the relief appropriate. Counsel for the respondent relied on s 56 of the Interpretation Act 1984 for the submission that where the word "may" is used in subs 66(2) in conferring the powers there granted on the Commission exercisable by the President, it should be interpreted to imply that the power so conferred may be exercised or not at discretion. However, that provision needs to be read in conjunction with subs 3(1)(b) of the Interpretation Act which declares that the provisions of that Act apply to every written law unless in relation to a particular law express provision is made to the contrary or, in the case of an Act, the intent and object of the Act or something in the subject or context of the Act is inconsistent with such application. It is necessary to examine the authorities to consider whether any such inconsistency is evident from the subject or context of s 66 of the Industrial Relations Act.
It seems that the most recent authoritative pronouncement about the obligation of an office holder to exercise the power which has been conferred in terms in which the office‑bearer "may" exercise the powers granted is the decision of the High Court in Commissioner of State Revenue (Victoria) v Royal Insurance Australia Ltd (1994) 182 CLR 51, a case dealing with the power of the Commissioner of State Revenue to refund an overpayment of stamp duty in any case where duty has been overpaid. The question in that case was whether mandamus would issue to compel the Commissioner of State Revenue to repay a proven overpayment of stamp duty. The court held that the provisions of the legislation conferred a discretionary power on the Commissioner to refund money overpaid, without creating a duty to make a refund, but once it had been established that an overpayment had been made the Commissioner had no residual discretion to refrain from making the refund and he was under a legal liability to make the refund. Mason CJ (at 81) explained the position as follows:
"But that principle means no more than that the administrator to whom mandamus is directed will be required to perform the legal duty to the public which is imposed by the statute and ordinarily that duty is limited to exercising the statutory discretion according to law, there being no obligation to exercise the discretion in a particular way. However, if the administrator is required by the statute to act in a particular way and in certain circumstances, or if the exercise of a statutory discretion according to law in fact requires the administrator to decide in a particular way, so that in neither case does the administrator in fact have any discretion to exercise, then mandamus will also issue to command the administrator to act accordingly."
Brennan J reached the same conclusion at 84 – 85, where his Honour said:
"The question whether the repository of a discretionary power is under a duty to exercise the power depends upon the intention of the legislature as revealed in the language of the statute and, in ascertaining that intention, there is a prima facie presumption 'that permissive or facultative expressions operate according to their natural meaning' – Ward v Williams (1955) 92 CLR 496 at 505. Therefore, if the facultative term 'may' is used in the creation of a power, it does not in itself impose a duty to exercise the power but such a duty may be found in the statutory context in which the power is created. Thus, where a power is conditioned upon the exercise of an event or upon the formation of a particular opinion by the repository of the power, the condition may sometimes be taken to specify the circumstances in which the power must be exercised – Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1971) 127 CLR 106 at 134–5."
Similarly, Dawson J wrote, at 97:
"The word 'may' is frequently merely facultative, leaving open the question whether the faculty bestowed must be exercised when the occasion prescribed for its exercise has occurred or whether its exercise is discretionary. The answer to that question is to be determined by a reference to the nature of the provision and its context in the relevant legislation – Ward v Williams (1955) 92 CLR 496 at 505‑6. As Lord Selborne said in Julius v Lord Bishop of Oxford (1880) 5 App Cas 214 at 235:
'The question whether a judge, or a public officer, to whom a power is given by such words, is bound to use it upon any particular occasion, or in any particular manner, must be solved aliunde, and, in general, it is to be solved from the context, from the particular provisions, or from the general scope and objects, of the enactment conferring the power.' "
In going to the judgment of Windeyer J in Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1971) 127 CLR 106 at 134 – 135, his Honour cited the line of authority for the foregoing propositions and then went on:
"But I select one other reference out of the multitude, MacDougall v Paterson (1851) 11 CB 755; 138 ER 672. There Jervis CJ said in the course of the argument 'the word "may" is merely used to confer the authority: and the authority must be exercised, if the circumstances are such as to call for its exercise'. And giving judgment, he said:
'We are of the opinion that the word 'may' is not used to give a discretion, but to confer a power upon the court and judges; and that the exercise of such power depends, not upon the discretion of the court or judge, but upon the proof of the particular case out of which such power arises.'
I consider that to be directly applicable to the present case."
In Ward v Williams (supra) at 506, Dixon CJ, Webb, Fullagar, Kitto and Taylor JJ, when referring to the New South Wales' Interpretation Act which provided that the word "may" should usually connote a discretion, a situation analogous to the provisions of s 56 of the Interpretation Act 1984 (WA), went on to say:
"The words 'at discretion' are strong and, though it may readily be conceded that the section lays down a rule of construction which like other rules of construction will give way to clear indications of a contrary intention, there must be reasons which satisfy the mind that a statute to be construed does not intend that the power it confers should be exercised or not at discretion before it can be held that the power must be exercised on demand, assuming of course the fulfilment of any conditions precedent the statute may lay down. A distinction obviously exists between the possession by a person interested, on the one hand, of a right to call upon the officer upon whom a power is conferred to exercise his discretion and, on the other hand, of a right to call upon him to exercise the power. The former means no more than that, when called upon, the officer is under a duty to exercise his discretion according to law, the latter that he is under a duty to take whatever active measures may be authorised by the power. In construing a statute conferring a power by permissive or facultative expressions, it is important not to mistake indications or evidences, found in the context or subject matter, of an intention that a right to call for the exercise of the discretion should exist, for indications or evidences of an intention that the officer in whom the power is reposed should be under a duty, upon request and upon fulfilment of the necessary conditions, to do the thing authorised."
However, their Honours went on to say at 507:
"But there is one consideration which is usually accounted very strong. It is that the power is conferred upon a judicial tribunal and to be invoked by a judicial proceeding. Jurisdiction and powers conferred on judicial bodies, usually for the enforcement of rights and the protection of interests, and permissive language will often in such a case be used not because it is intended to give the tribunal a discretion to grant or refuse the remedy, but because, although it is intended or contemplated that persons interested will be entitled to the remedy the tribunal is empowered to give, it is also intended, or at all events taken for granted, that the existence of the interest and the validity of the claim to the remedy of a person seeking it will be for the tribunal to determine."
Again, in a context not far distant from the subject matter of the present appeal, a question arose over whether or not the then Commonwealth Court of Conciliation and Arbitration was under an obligation to exercise its powers to hear and determine a dispute concerning an entitlement to a basic wage allowance under a federal award – R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389. At 398 of that report, the court, consisting of Latham CJ, Rich, Dixon, McTiernan and Webb JJ, said:
"Section 25 gives jurisdiction to the Arbitration Court to make an order or award altering the basic wage or the principles upon which it is computed. The word which is used in s 25 is 'may', but s 38 provides that, in the absence of agreement, the court or conciliation commissioner shall determine a dispute. Therefore, insofar as an alteration of the basic wage is involved in the determination of the dispute, it is expressly provided that the court shall exercise the jurisdiction which that section vests in it. Apart however from this imperative requirement, what s 25 does is to create a jurisdiction in the court, and where such a jurisdiction is created for the public benefit or for the purpose of conferring rights or benefits upon persons the court upon an application properly made is under a duty to exercise its jurisdiction and is not at liberty to refuse to deal with the matter: ... Where a court or a public officer wrongly refuses jurisdiction the exercise of the jurisdiction can be commanded by a writ of mandamus."
Accordingly, there may be found in the leading texts many observations along the lines contained in "Judicial Review of Administrative Action" by Professor M Aronson and Mr B Dyer (1996) LBC Information Services at 781 – 782:
"Whilst 'may' indicates a discretion, the repository of that discretionary power is usually under a duty to consider its exercise, when an appropriate request is made, and is sometimes under a duty to exercise it in a particular way if there is no permissible reason indicating why it should not. In the latter situation, the discretion has effectively run out. That is not to convert a 'may' into a 'must' (see Re Baker; Nichols v Baker (1890) 44 Ch D 262 at 270). It is simply to recognise that in public law, no repository of a discretionary power can exercise or decline to exercise it on arbitrary or otherwise impermissible grounds. Therefore, where the only grounds for refusing to exercise a discretion in a certain way are legally impermissible, a mandamus will lie to compel its exercise in the correct manner."
There can be no doubt that the application of these principles means that, in the present case, the learned President was under a legal duty to exercise the jurisdiction of the Commission and to hear the appellant's application made under s 66 of the Act. In my view this obligation requires the President to hear the appellant's application and to determine it in accordance with law. In turn, this requires the learned President to consider what, if any, of the discretionary powers of relief which are available to him in the exercise of the jurisdiction so conferred, should be granted and to exercise that discretion with regard to factors material to the grant or withholding of the relief on established legal principles and in accordance with the statutory provisions directly applicable.
There are some indications in the Industrial Relations Act that the jurisdiction conferred upon the Commission or the President shall be exercised, although discretionary, by reference to objective criteria. For example, subs 14(1) confirms the jurisdiction expressly conferred on the President by the Act and states that the President "may exercise such powers of the Commission as may be necessary or appropriate thereto", thus conditioning the exercise of the power upon the objective necessity or appropriateness of the remedy in the particular case. The existence of facts or circumstances which may lead the Commission to dismiss a matter or refrain from hearing it are expressly identified in subs 27(1)(a), so the Commission may dismiss a matter or decline to hear it further if satisfied: that it is trivial; that further proceedings are not necessary or desirable in the public interest; that the person who referred the matter to the Commission does not have a sufficient interest in the matter; or that for any other reason the matter or part of the matter should be dismissed or the hearing discontinued. This provision appears to provide some scope for a contention that it is only in those nominated circumstances that the Commission may decline to hear a matter or may dismiss it but, in view of the breadth of power which subs 27(1)(a)(iv) confers on the Commission there can be no benefit derived from pursuing an examination of that possibility, as it is clear that the statute gives a broad power for the Commission to decide "for any other reason, that a matter should be dismissed or the hearing discontinued". Nevertheless, the position remains that a refusal to exercise any of the discretionary powers conferred, and to refuse relief to an applicant who has established grounds which would allow a remedy to be granted under s 66, will require the existence or establishment of some relevant consideration or criterion in order to support the exercise of the discretion to decline a remedy.
In the present case it was not submitted to the Commission, nor on this appeal, that the appellant's application was trivial, nor that she had conducted herself in any way which should lead to the refusal of a remedy which, on the facts established, was available. I have previously addressed the conclusion of the learned President that the interests of the respondent and its members would not be served if the Commission were to act within jurisdiction and make orders sought. With respect, I cannot accept that view in this case for, as I have explained, the Industrial Relations Act, in particular s 61 and s 66, proceeds on the foundation that it is in the interests of a registered organisation and its members that the rules of the organisation are always binding and that, in case of controversy, an interested person may seek an order or declaration as to the true interpretation of any particular rule whose application is then in controversy.
That only leaves the conclusion of the learned President that, because the question of the jurisdiction of the Commission was not directly addressed in a case where there was no valid s 71 Certificate in force at the material time to apply the rules of the CPSU to the CSA, there was a doubt over whether a meeting of the Council of the CSA which addressed issues affecting its members arising from an impending CPSU election could give rise to a matter within the jurisdiction of the State Commission. His Honour took the view that, even if it did, this might create an independent reason to declare the disputed resolution to be invalid. However, for reasons which I have already set out I consider that there was a justiciable issue before the Commission about the true interpretation of the rules of the CSA as a registered organisation under the Industrial Relations Act, and as to their observance or non‑observance, or the manner of their observance so generating a matter for determination by the Commission on the application brought under s 66.
This necessarily leads to the conclusion that the reasons advanced by the learned President for declining to give any relief in this case were not reasons which could support in law a refusal to exercise the discretion resting upon the Commission to grant relief in a case where, otherwise, facts had been proved which would allow the Commission to grant any appropriate remedy necessary on this occasion. It follows from this that, both in construing the nature of the discretion which existed for the Commission to exercise power or to grant or to refuse a remedy on an application under s 66 of the Act and in purporting to exercise that statutory discretion, the Commission has erroneously interpreted its powers under the Act. Insofar as the Commission has declined to exercise a discretion to grant relief it has done so with reference to factors which are outside the scope of a proper exercise of the discretion which the section confers. This conclusion brings this appeal within the jurisdiction of this Court under s 90(1)(b) of the Act.
This Court is required by s 90(3)(a) to confirm the decision which is the subject of the appeal unless it considers that there is good reason not to do so, if this Court is satisfied that no injustice has been suffered. However, as the learned President in the Commission concluded that the resolution SCM 06/02 was in its terms condemnatory of the appellant's actions as President, and as she, along with all other members of the respondent, is entitled to insist that all members of the respondent shall be bound by its rules, there does not appear to me to be any reason to conclude that no injustice has been suffered by the appellant by leaving the erroneous interpretation of the Rules and the attempted curtailment of the powers of the President set out in that resolution, uncorrected. Accordingly, in these circumstances I consider that this appeal should be allowed, and that this Court should set aside the order of the Commission of 17 April 2003 dismissing the appellant's application and instead declare that:
(a)The appellant, when President of the respondent, acted within the Rules of the CSA in obtaining the legal advice necessary to enable her to carry out her duties and that such expense was properly incurred.
(b)The appellant had the power, within the Rules of the CSA, to call the Council meeting of 20 November 2002 and was not required to act in conjunction with the principal officers in calling that special Council meeting.
(c)In calling for a report on the matters of concern arising from an impending election campaign by certain members, seeking legal advice and convening a special Council meeting the appellant exercised powers conferred on her under the Rules of the CSA and did not act in breach of any of the requirements of procedural fairness.
(d)The resolution of the Council of the respondent dated 20 November 2002 (SCM 06/02) reflects, to the extent indicated by the previous declarations, an erroneous interpretation of the Rules of the respondent organisation and a non‑observance or erroneous observance of those Rules in their application to the issues which had arisen for consideration at the meeting of the Council of the respondent on 20 November 2002.
2
6
2