C2397/400, Transcript of Proceedings [2001] AIRCTrans 244 (15 March 2001)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

VICE PRESIDENT McINTYRE

C NO 23974 OF 2000

A. FERGUSON, M. FRENCH AND P. DAVEY

AND

CSR LIMITED TRADING AS CSR HUMES

SECTION 81 APPEAL AGAINST THE DECISION
OF DEPUTY INDUSTRIAL REGISTRAR ELLIS
ON 17 NOVEMBER 2000 IN R NO 20826 OF 2000
RE RIGHT OF ENTRY

SYDNEY

10.13 AM, THURSDAY, 22 FEBRUARY 2001

DECISION RESERVED

PN1

THE VICE PRESIDENT: Could I have appearances please?

PN2

MR R. PEARCE: If it please the Commission, I seek leave to appear for the three respondents below, the appellants above.

PN3

THE VICE PRESIDENT: Thanks, Mr Pearce.

PN4

MR R.S. WARREN: If the Commission pleases, I seek leave to appear for the respondents in this matter.

PN5

MR PEARCE: Thanks, Mr Warren. Just before we start, I will need to adjourn if we are still going at about 10 to 12 for about 10 minutes as I have something I have to attend to. Mr Pearce?

PN6

MR PEARCE: Your Honour, can I apologise for being late. I feel like Stephen Rothman. Unfortunately last night I decided to reduce the submissions to writing and that went all very well except that there was a problem with the printer. In any event, if I can hand - I am sure it will make me shorter with the existence of the written of submissions. If I can hand them to your Honour.

PN7

THE VICE PRESIDENT: Thanks.

PN8

MR WARREN: Your Honour, if I just might interpose. I note here on my friend's written outline of submissions that he has annexed thereto submissions below that were the subject of the decision. He hasn't unfortunately annexed the applicant below, respondent's here submissions on that point. Could I hand those to the Commission.

PN9

THE VICE PRESIDENT: Right. I think I have extricated them from the file anyhow, Mr Warren. But it will be convenient to have another copy.

PN10

MR WARREN: Thank you, your Honour.

PN11

MR PEARCE: Your Honour, I assumed my learned friend would make copies of his submissions below available. Your Honour, this is an appeal pursuant to - from the decision of the Deputy Industrial Registrar. It's an appeal pursuant to Section 81 of the Act and as far as I perceive the issues I don't think particularly turns on the provisions of Section 81 for the purposes of determining this appeal, save of course if we need leave as is the situation also when an appeal is done to the Commission from a member of the Commission. The submissions that we put and have handed to you are both submissions on the appeal and on leave to appeal.

PN12

As your Honour has I believe read the submissions below and read the decision, your Honour will appreciate that this is an appeal concerning a matter of jurisdiction. In those circumstances an appeal which we would submit would generally be one where leave would be granted if the submission itself had sufficient merit to be successful. The proceedings below were - I am now turning to the written submissions - a purported application pursuant to Section 285A3 of the Workplace Relations Act and regulation 109C of the Workplace Relations Regulations to revoke any permit issued under the Act to Mr Ferguson, Mr French and Mr Davey of the CFMEU.

PN13

I am going to shortly go to the statutory provisions, so I won't go to them at the moment but I will take your Honour to the application itself which is found at page 239 of the appeal book. In my copy it is behind tab 7.

PN14

THE VICE PRESIDENT: I have got it, thanks.

PN15

MR PEARCE: If your Honour will go to page 241 your Honour will see that - perhaps starting at 239 your Honour will see that it is an application, purports to be an application to revoke permits to enter and inspect premises and at page 241 it is signed by a Mr Campbell Fisher, described as solicitor in the employment of Fisher, Cartwright, Berriman. The application itself on page 239 is said in the body of it, at about point 5 on the first page of the application, to be on behalf of CSR Humes, although the application on one view of it seems to have be being made by Fisher, Cartwright, Berriman. Your Honour will see it says on behalf of CSR Humes, we here by make an application.

PN16

While your Honour has the application can I direct your Honour's attention to the grounds which begin at about point 7 on page 239. This will be going to a submission that I will be making shortly in due course as to how regulation 109C should be construed. Regulation 109C requires that there be grounds in the application but your Honour will see that the grounds, and in particular at paragraphs 1, 2 and 5, make serious allegations in relation to the conduct of Mr Ferguson and Mr French. For instance, at ground 1 it is alleged that they acted in an improper manner. At ground 2 it is alleged that they hindered or obstructed both CSR Humes and it employees. I might say that the allegation as made would constitute a breach of Section 285E of the Act.

PN17

So it is an allegation of criminal, unlawful conduct I think is a better word to use to describe offences under the Act which are civil in nature. There is an allegation of trespass on several occasions at paragraph 2 and again at paragraph 6. There is an allegation at paragraph 5 of a breach of Section 285D .2 of the Act being the requirement to give 24 hours notice. So what is alleged in the application are serious allegations, allegations of a criminal or quasi-criminal nature in some respects. The application came on for hearing on 4, 8 and 11 September 2000. On 11 September 2000 the applicant closed their case. That occurs at appeal book page 212, which I don't take your Honour to.

PN18

At this point the respondents indicated they wished to make a no case to answer submission which had been reduced to writing. I think the transcript has a description of what we were doing somewhat wrong. I forget the precise words it uses but in any event I don't think there was any doubt on that question. The balance of the hearing that morning was then taken with the respondent advancing their no case to answer. Thereafter the matter proceeded by written submissions with the applicant filing written submissions on the no case to answer on 27 October 2000 and the respondent filing submissions in reply on or about 10 November 2000.

PN19

Then I say a copy of the respondent's outline of submissions and the submission in response are attached to the submissions that I have handed to you, and also now you have the applicant's submissions in relation to the no case to answer. Can I say that in accordance with what we would say is the established law where a no case to answer is made on a jurisdictional basis. The Deputy Registrar did not require the respondents to elect as to whether to go into evidence or not and that was not an issue in the proceedings below and I presume it is not an issue in the appeal here. The decision of the Registrar was handed down on 17 November. That is print T3507 and that is found in the appeal book at page 3.

PN20

If I could take your Honour to that decision. At paragraphs 1 to 6 the Deputy Registrar sets out the submissions of the respondent and the applicant and the relevant legislative provisions. At paragraph 7 the Registrar considers Section 285A(3) and regulation 109C and states that the issue is whether a firm of solicitors representing a client company can sign on behalf of the company in making an application under Section 285A(3). At paragraph 8 the Deputy Registrar observes, in effect, that in the case of a company an application cannot strictly be signed by the applicant but must be signed by some person on behalf of the applicant.

PN21

That of course is a trite observation, your Honour, and the Deputy Registrar sets out the provision of regulation 136. In paragraphs 9 to 19 the Deputy Registrar sets out his reasoning in concluding that the purported application is a proper application lodged by the employer and not a nullity. In my respectful submission, the reasoning is as follows: at paragraph 9 in the first sentence - well, the reasoning follows on this basis, that the Deputy Registrar addresses his mind to whether the provisions of Regulation 136(c) are mandatory as to the way in which an application may be made in the circumstances an application under Section 285A and he says in paragraph 9 in the first sentence, he says he thinks it important that compliance with Regulation 138C is not mandatory because the word "may" is used in the regulation.

PN22

Then he says that support for the proposition that compliance with Regulation 136C is not mandatory is found in the decision of the Clerks (Brewery Consolidated) Award and the reference I have for that, your Honour, is 20 Industrial Reports 310. He then says that:

PN23

That although the firm of solicitors were not an officer or person duly authorised under the seal of the company, . . .

PN24

that is at paragraph 10 and I don't think there is any issue about that. We certainly don't disagree with that finding:

PN25

. . . presumably they were agents of the company representing people who were authorised under the company's seal.

PN26

He then says that there is no persuasive reason why in the context of an application under Section 285A(3) that Regulation 136C precludes the signing of an application by a method other than that described in Regulation 136. That is found at paragraph 11. That is a conclusion with which we disagree and I will come to those submissions in due course. He then distinguishes various decisions relied on by the respondent on the no case to answer because the generally cover the internal regulation of registered organisations. That goes through paragraph 11 to paragraph 16. He says finally that Section 285A and Regulation 109C were not of a similar nature to the cases relied on by the respondents as to necessitate a strict mandatory interpretation of Regulation 136 as to who may sign a regulation on behalf of an applicant's company.

PN27

In short canvas, your Honour, we say that the Registrar really asked himself the wrong question and answered the wrong question. He asked himself the question as to whether Regulation 136(c) was mandatory and that was not the real issue in the proceedings. The issue in the proceedings, your Honour, was whether the provisions of Section 285A and Regulation 109C were mandatory. The Registrar failed to appreciate - and I will come to this in a little bit more detail in a moment - the Registrar failed to appreciate that Regulation 136C is merely a facultative provision, hence the use of the word "may" because as the Registrar did appreciate an applicant who is a corporation may not sign an application.

PN28

It is an impossibility and in that context regulation 136C is merely a facultative provision which provides a means whereby where the Act requires an application to be signed by a company, a means whereby it may be signed. In other words, he failed to appreciate that Regulation 136C was a facultative provision and instead approached it in terms as to whether it was a mandatory provision or a matter of procedure. Can I now turn to the submissions below and to the relevant legislation and for this purpose, your Honour, I am proposing to refer to the outline of submissions below which is annexed to the outline that I have given to you.

PN29

Below it was said in paragraph 1 that a no case to answer submission is available on a matter of jurisdiction and I won't take your Honour to that because I don't think that is an issue on the appeal. It was then submitted that an application, that the application in the matter did not comply with Section 285A(3) of the Act in that it was not made in accordance with the regulations. If I can take your Honour to 285A(3) of the Act. Does your Honour have that?

PN30

THE VICE PRESIDENT: Yes.

PN31

MR PEARCE: Your Honour will see that - I notice there is a new CCH.

PN32

THE VICE PRESIDENT: Very dangerous to use the old one, Mr Pearce.

PN33

MR PEARCE: I don't think - I am using the - - -

PN34

THE VICE PRESIDENT: I don't think this one has been changed.

PN35

MR PEARCE: I don't think it has been changed, no. The Registrar may on application, in accordance with the regulations, revoke the permit if he or she is satisfied that a person to whom it was issued has an exercising power under division intentionally hindered or obstructed any employer or employee or otherwise acted in an improper manner. But it is a precondition to the exercise of the power that there is an application in accordance with the regulations. The words "in accordance with" we submit means in conformity with, in complete agreement with. The words "in accordance with" is of course used in various legislation but where it has been used in relation to this very Act it has been so construed by a decision of Gray J in La v Federated Trades Society of Australia.

PN36

That is a decision of the Federal Court and if I can take your Honour to that. That is found at 46 Industrial Reports 164. Your Honour, this was an application by Mr La for an inquiry in relation to an amalgamation ballot in the Federated Furnishing Trades Society. The manner in which an application was made for an inquiry is not surprisingly of course prescribed by the regulations and the Act. The regulation is question is set out at page 165 of the report, at about point 2 on the page. His Honour sets out regulation 98, subsection 1:

PN37

An application to the court under Section 253M(1) of the Act for an inquiry must be a) in accordance with form 11 . . .

PN38

and various other matters that it must comply with. When the application came on, the application itself - sorry, the form of form 11 is then set out in the judgment and if your Honour goes over to page 166 your Honour will see that at the bottom of form 11, at about point 3 on the page, there was a dotted line and below that a reference to signature of the applicant. The actual form, the application as filed, is then set out by his Honour and at page 167 at about point 4 on the page your Honour will see that the actual application was signed by Rennick Gaynor Kiddell Briggs as solicitor for the applicant. I might stop there and say that a distinguishing feature which really brought this application in some ways much closer to what was required by the Act was that at least in relation to the application in La it was signed by a solicitor purporting to be a solicitor for the applicant, which is not a feature I might say of this application that you have before you.

PN39

It is signed by Campbell Fisher on behalf of the firm and in that sense the application that is before you is probably even more removed from the application that was found not to comply with the legislation in La's case.

PN40

THE VICE PRESIDENT: The firm name is typed above Mr Fisher's signature though?

PN41

MR PEARCE: That's right, yes. He signs on behalf of the firm.

PN42

THE VICE PRESIDENT: Well, he signs.

PN43

MR PEARCE: It is a distinction between this and that form where the solicitor signed as a solicitor for the applicant.

PN44

THE VICE PRESIDENT: Does that mean that Rennick Gaynor Kiddell and Briggs was written in handwriting on the form in La's case?

PN45

MR PEARCE: I think it was - his Honour goes on to say that a particular - no, there was a signature there as well of a solicitor. It is in the body of the judgment.

PN46

THE VICE PRESIDENT: So Rennick Gaynor etcetera was typed?

PN47

MR PEARCE: Yes.

PN48

THE VICE PRESIDENT: That is the same, isn't it?

PN49

MR PEARCE: No. It is the absence of the words "solicitor for the applicant".

PN50

THE VICE PRESIDENT: All right.

PN51

MR PEARCE: All I say about that, your Honour, is in some ways it makes this application even more remote, if I can use that term in the application that was found to be wanting in La's case. We firstly refer to La's case, your Honour, returning to the written submissions, because as I have said it construed the term in accordance with in the context of the legislation that we are dealing with and that appears at - there was another objection that Mr La wasn't a member of the organisation. His Honour dealt with that and then at page 170 his Honour dealt with the construction of the words "in accordance with form 11". That begins at about point 7 on page 170 when he says this:

PN52

Attention was then directed to the requirement that an application must be in accordance with form 11. ...(reads)... means in complete agreement with.

PN53

We also say, your Honour, that in accordance with the regulations where it appears again in the Act in Section 285A(3) it also means that the application must be in conformity with or in complete agreement with the provisions of the regulation. Your Honour, in the written outline below that I am now dealing with, there were two other cases referred to - - -

PN54

THE VICE PRESIDENT: Mr Pearce, just before you leave La's case, that was an application that could only be made by a natural person, wasn't it? The applicant had to be a member of the organisation?

PN55

MR PEARCE: I think that is right, yes.

PN56

THE VICE PRESIDENT: So the applicant was a person or someone who could sign as an individual?

PN57

MR PEARCE: Yes.

PN58

THE VICE PRESIDENT: Whereas in this case the applicant - or in any application under 285C the applicant could possibly be an individual or a corporation?

PN59

MR PEARCE: That's right.

PN60

THE VICE PRESIDENT: Yes.

PN61

MR PEARCE: And nevertheless the regulation of course required it to be signed by the applicant, an impossibility in respect of a corporation as the Deputy Register rightly observed. He didn't quite use those words. It had t be signed by someone on behalf of a corporation. Hence the role of regulation 136C as a facultative provision to provide a means whereby such an application could be signed by a corporation and I will come to that in a moment. Can I say I am going to come back to La's case, your Honour. In the next paragraph there is a discussion of Section 25C of the Acts Interpretation Act, which is about a - perhaps I should read it:

PN62

Reference was made to Section 25C of the Acts Interpretation Act 1901 under which unless a contrary ...(reads)... and substantial compliance is sufficient.

PN63

That is not relevant to these proceedings because we are not dealing here with strict compliance with a form but his Honour said:

PN64

Council for the society pointed to a number of aspects of the regulations which lead ...(reads)... is clearly intended to carry a mandatory requirement.

PN65

The word "must" of course appears in Regulation 109C which I will shortly take your Honour to. Can I then - in the written outline I refer to a case of Walker v Wilson. That is a High Court decision in relation to the Workers Compensation legislation. But again the word "in accordance with" was construed as meaning in conformity with and the other decision that I have referred you to is Waycott v Koffler, which is found at 25 NTR at 1. Again the word "in accordance with" - again I think that was a Workers Compensation legislation - was construed as meaning in conformity with. To the extent that cases construing words in other legislation can be of assistance, we rely on those cases as supporting the construction of the words "in accordance with" that were determined by his Honour, Gray J, in La's case.

PN66

We say, your Honour, and we said below, that the application is not in accordance with Regulation 109C 2B and Regulation 136C of the Workplace Relations Regulations in that it is not signed by the applicant, CSR Limited. If I can take your Honour now to Regulation 109C - - -

PN67

THE VICE PRESIDENT: You earlier though I think accepted that CSR Limited could not sign?

PN68

MR PEARCE: That is right.

PN69

THE VICE PRESIDENT: Yes. Sorry, 289C?

PN70

MR PEARCE: Sorry, 109C?

PN71

THE VICE PRESIDENT: Yes, 109C, yes.

PN72

MR PEARCE: It is provided for the purposes of Subsection 285A(3) of the Act an application for revocation of a permit may be made by an employer and an employer organisation, an inspector. The interesting thing about that of course, your Honour, your Honour observed that in La's case the application was of a kind that could only be made by a person. In this provision the application is of a kind that can be made by a person or by a corporation or by what I would call a statutory corporation, being an employer organisation. They are all statutory corporations, I suppose. But by a corporation incorporated under this Act.

PN73

Then in Section 109C(2) it is provided the application must - again that is the mandatory word that I have referred to:

PN74

be in writing and be signed by the applicant and state the grounds on which the application is made.

PN75

Your Honour, without the provisions of Regulation 136 a corporation would not be ever able to make an application in the sense that it couldn't be signed by the applicant and it is in that respect that I put the submission that Regulation 136 is a facultative provision. Now if I can skip ahead, although I will come to it again. Your Honour would be well aware, and indeed it is in this very Act, that rules of courts and indeed rules of the State Industrial Relations Commission provide normally that a person may appear by a solicitor. That is not the situation of course in relation to appearances in this Commission.

PN76

THE VICE PRESIDENT: I don't know if it is the position in the New South Wales Commission either, is it?

PN77

MR PEARCE: It is. It is under - I will come to the rule.

PN78

THE VICE PRESIDENT: I thought the Act had some limits on legal representation just as our Act here does.

PN79

MR PEARCE: It does. I will come to the rule. But in this Act the right of appearance in the Federal Court in relation to matters under this Act is governed by Section 469 and at Section 469 there are various arrangements made, special arrangements made whereby public sector employers can appear but at Section 469(3) in relation to the Federal Court it is provided that a party including an employing authority may be represented by council or solicitor. So special - that is an example in the Federal Court. Other examples are found in the rules and orders of the Federal Court as to corporations appearing by solicitor.

PN80

But in this Commission there is no such rule or no such statutory provision permitting parties to be represented by council or solicitor. The reason is obvious.

PN81

THE VICE PRESIDENT: The proceedings were not before the Commission, were they, at first instance?

PN82

MR PEARCE: No. The reason is obvious because of the provisions of Section 42 of the Act.

PN83

THE VICE PRESIDENT: Does that have any application to the proceedings before the Registrar, in your submission?

PN84

MR PEARCE: On the face of it, it would appear not to. But that is, in my respectful submission, the reason why there is no provision made in the rules as one finds in various other rules of courts and indeed of the New South Wales Industrial Relations Commission, which I will come to in a moment, for appearance by a solicitor. Because of the unique statutory regime under this Act, what has occurred is the provision of Regulation 136. Regulation 136 being a facultative regulation which provides a means whereby various bodies can appear where there is a requirement in the Act. If I could take your Honour to Regulation 136 now.

PN85

It says:

PN86

Subject to the Act if a document is required by the Act . . .

PN87

and I will skip along, to be signed, and I am paraphrasing it, in relation to an application or proceeding of which the Registrar is authorised to deal, that document - I am paraphrasing along - may be signed and in (c), in the case of a company not being an organisation, by an officer or a person duly authorised under the seal of the company, to represent it under the Act or in the proceedings. So the role that Regulation 136 plays is where there is a - subject to the Act and there is no - nothing has been raised in relation to that proviso in these proceedings that I am aware of. But what this regulation provides is that it only applies where in the various circumstances but relevantly where a document is required by the Act or regulations to be signed.

PN88

Then it provides a means whereby a non natural person can comply with the Act and regulations. That is why we say and the only means in the rules, the regulations and the Act, whereby those provisions may be complied with in contrast to the rules in the Federal Court, or as I was going to say, take you to the New South Wales Industrial Relations Commission where rules are made as to other means whereby those requirements might be complied with. That is the only regulation or rule that provides a means whereby when the Act requires something to be signed by an applicant or by a party it can be signed by a non natural person.

PN89

THE VICE PRESIDENT: Mr Pearce, the CFMEU is an organisation and a body corporate and paragraph B of Regulation 136 deals with organisations. C deals with companies not being organisations, as you pointed out. Does what you have submitted mean that no application may be made by the CFMEU unless it is signed by a person authorised by or in accordance with the rules of the organisation?

PN90

MR PEARCE: Yes. Your Honuor, there is High Court authority for that. It is Dean's case. But that is where the document is required to be signed by the applicant.

PN91

THE VICE PRESIDENT: Yes. It couldn't be signed by a solicitor on behalf of the CFMEU unless that solicitor that was authorised, etcetera?

PN92

MR PEARCE: That's right, yes. And as I have said, it is where the Act requires the document to be signed by the applicant, and many times it doesn't. The Clerks case is a good example of where it doesn't. How the debate in the Clerks case, which I am going to come to in a moment, got on to the forerunner of Regulation 136 one can't imagine because as their Honours observed, there was no requirement for the applicant to sign the application in the regulation that they were considering. So really regulation 136 had no role to play. In La's case, his Honour, Gray J, points out other provisions in the Act where different arrangements are made in relation to amalgamation matters.

PN93

Your Honour, in relation to - if one looks at the rules, one will find that different arrangements are made in relation to applications to vary awards. It is not every application that is made under this Act or the regulations that is required to be signed by the applicant. In some cases the legislature has taken the view that such an application should be signed by the applicant. In other cases it has taken a more relaxed view and the Brewery case is an example of that, where it was said in the judgment that the regulation in question, which I think has now become a rule, didn't require the applicant as such to sign the application.

PN94

Now, your Honour, we say in those circumstances - I am now returning again to the written submissions at paragraph 3 - that the signature of an employed solicitor of a firm of solicitors is insufficient to satisfy the requirements of Regulation 109C(2)(b) and Regulation 136(c). For that we again rely on what was said in La because what occurred in La, of course, was that the application wasn't signed by the applicant and at 46 IR at 171 his Honour, Grey J, said this at about point 7 on the page dealing with that aspect of it - I might say the respect of non compliance was it was held not to have set out the reasons for the application, that is in the preceding paragraph. Then he says:

PN95

The second respect in which non-compliance with the form is alleged is that the document does not bear the signature of the applicant. ...(reads)... in taking that step.

PN96

Your Honour, that is why I referred you to the seriousness of the allegations that are set out in this application. It is in many respects, somebody has to take responsibility for making allegations of criminal and unlawful conduct. That is why - that is a powerful reason why one would construe regulation - another powerful reason why one would construe Regulation 109C (2)(b) as mandatory. That was a consideration that weighed with Grey J in his construction of the meaning of the words "in accordance with form 11". I continue reading:

PN97

The document lodged on 20 January bears a signature which does not purport to be that of the applicant ...(reads)... Briggs.

PN98

Somebody signed the name of the firm.

PN99

Less there be any doubt, that firm's name appears immediately under the signature followed the ...(reads)... There are specific provisions in . . .

PN100

This is where he refers to provisions where you don't have to sign as the applicant:

PN101

There are specific provisions in Regulations 63(3), 65, 66, 67 and 68 of the Industrial Relations Regulations ...(reads)... to discuss cases of the applicant physically unable to sign or a signature by pr......

PN102

And I won't go beyond that. But they were the considerations that led his Honour in La's case to conclude that where the legislation said the application had to be in accordance with form 11, and form 11 had a dotted line signature of the applicant, that that was a mandatory requirement. I know we shouldn't be using this language, the High Court has told us we shouldn't. Although, your Honour, I might say I think I have counted it used in about six High Court decisions since. But where the signature of the applicant was mandatory for the purposes of the initiation of an inquiry in relation to an amalgamation ballot.

PN103

Your Honour, a similar approach has been taken in relation to another provision under the Act and that is in Arnott's case and that is in relation to the deamalgamation provisions. It is an unreported case and I have put it on my list of authorities. I see it there.

PN104

THE VICE PRESIDENT: Yes.

PN105

MR PEARCE: This was a decision of North J and he was dealing with an application for deamalgamation by I think the Victorian section of the former Professional Officers Association who were seeking to deamalgamate from the Community and Public Sector Union. I have the Austlii print and at the bottom of page 2 of the Austlii print - the top of page 2 sets out the reasons for judgment. At the bottom of page 2 the provisions of Section 253ZJ - - -

PN106

THE VICE PRESIDENT: Does your print have paragraph numbering?

PN107

MR PEARCE: It does, yes, 6. Paragraph 6, thank you, your Honour. Much more efficient.

PN108

THE VICE PRESIDENT: Yes, much easier.

PN109

MR PEARCE: In paragraph 6 the provisions of Section 253ZJ are set out and then on the fifth line it said:

PN110

They are Section 253ZJ(4) which provides the application must be in the prescribed form and must contain such information as is prescribed.

PN111

In paragraph 7 the prescribed form is set out and your Honour will note at the end of that paragraph that it has the dotted line, signature of applicants, similar to La's case. In paragraph 9 the application is set out. At the end of the application, which goes over some pages, your Honour will see that it is signed by a firm of solicitors as solicitors for the applicant. When the application came on the point that had been taken in La's case was taken again and the discussion of that begins at paragraph 12 and said this:

PN112

Mr White, who appeared as counsel for the respondent, contended the court could not be ...(reads)... had not signed the application.

PN113

His Honour then said, I have read that already. Then over the page at paragraph 13, Mr Borenstein, who appeared for the breakaway group:

PN114

Mr Borenstein, who appeared as counsel for the applicants, raised two arguments which were not considered in La to support ...(reads)... where that was appropriate.

PN115

Then in re Prince it was held that the words signed by him in a statute dealing with bankruptcy required the personal signature of the debtor. At 18 his Honour said:

PN116

Unfortunately the question of whether a particular form of signature is sufficient to satisfy a statutory requirement is one of construction of a particular statute.

PN117

Then he goes on to say:

PN118

The short answer to the first argument is that form 11A is obviously meant to be signed ...(reads)... made with the meaning given to them by the judicial decision.

PN119

And he refers to a decision of the High Court in re Alcan, which is on our list of authorities. I don't think I will take your Honour to it.

PN120

Mr Borenstein drew attention to the fact the number of applicants bringing the application ...(reads)... of the personal signature is avoided.

PN121

Can I say from that, your Honour, and over the page at paragraph 21 his Honour, North J, deals with another matter that was in La which was - although he is dealing with it in the context of an application under - sorry. If I continue on. In paragraph 15, the second argument of Borenstein is set out which is this provision the orders provide for matters to be done by a solicitor. Your Honour, sees that?

PN122

THE VICE PRESIDENT: Yes.

PN123

MR PEARCE: That is of course the very provision that doesn't exist in the regulations or the rules of the Act insofar as the apply to proceedings of this Commission, although it specifically does exist in relation to proceedings under this Act that occur in the Federal Court, as I pointed out to your Honour. His Honour goes to indicate that notwithstanding those provisions nevertheless personal signature was required. Then at paragraph 21 his Honour deals with one other matter which is in La his Honour, Grey J, said that one of the reasons why the provision would be construed in a mandatory manner was because it had the effect of once the inquiry had been made, it stopped the amalgamation going ahead in the short term and therefore, you know, it had consequences.

PN124

His Honour, North J, in paragraph 21 said that notwithstanding that really this application had no consequences in that sense - I think he used the words "had a more limited effect", nevertheless he still construed the requirement for a personal signature as mandatory. I might say, your Honour, that is a decision where complying, if individuals wish to comply with the legislation, notwithstanding what may have fallen from his Honour, would probably be quite personally inconvenient, requiring all applicants to sign such an application. But nevertheless even in the light of that, his Honour construed the words "in accordance with" - - -

PN125

THE VICE PRESIDENT: Again it was a case where the applicants had to be natural persons, as in La?

PN126

MR PEARCE: Yes.

PN127

THE VICE PRESIDENT: The members of a committee of management or whatever?

PN128

MR PEARCE: The applicants could be members of a committee of management and provisions were made for an application to be made by someone on behalf of a committee of management.

PN129

THE VICE PRESIDENT: But a committee of management is not a body corporate, is it?

PN130

MR PEARCE: That's right. Yes. So there were two ways of doing it. There was in the legislation an alternative provision if one can command the numbers on a committee of management to - and then the application was made on behalf of that committee of management. But that was not the actual provision that was being considered in that case.

PN131

THE VICE PRESIDENT: No.

PN132

MR PEARCE: Now, your Honour, we say if there is non-compliance with Regulation 109C - before I leave those lines of authority can I say that what is said in Arnott's case and what is said in La is, in my respectful submission, consistent with the approach as explained by the High Court in that Project Blue Sky decision. That is found at [1998] HCA 28; 194 CLR 355. Your Honour will recall this is the decision where the High Court banished terms such as mandatory and directory. The majority decision is that of McHugh, Gummow, Kirby and Haines JJ. The relevant discussion occurs beginning on page 388, at the very bottom of the page at paragraph 91.

PN133

It says:

PN134

An Act done in breach of a condition regulating the exercise of statutory power is ...(reads)... to give guidance on the issue.

PN135

Nevertheless the High Court then says this:

PN136

Traditionally courts have distinguished between acts done in breach of an essential preliminary to the exercise of ...(reads)... done in breach of the condition.

PN137

Now, many other things are said in the judgment but there is nothing in the judgment that moves away from that traditional view of circumstances in which requirements will be construed as mandatory. Can I say, your Honour, that what the provisions of Regulation 109C are - and if it is not complied with - is an act done in breach of an essential preliminary to the exercise of statutory power or authority. You see, because Section 285A(3) provides the Registrar may on application in accordance with the regulations revoke the permit, an application in accordance with the regulations is an essential preliminary to the exercise of statutory power by the Registrar.

PN138

So what is said as to the traditional approach in Project Blue Sky strongly supports the view here - sorry, where such requirements are a precondition to the exercise of power that they should be construed as mandatory, strongly supports the approach contended for here that Section 285A(3) and Regulation 109C should be construed as being mandatory. They, because the Act as it stands, requires that it is an essential precondition to the exercise by the Registrar of statutory power that there be an application in accordance with the regulations. Your Honour, continuing with the written outline below, it is then said that the consequences of non-compliance with Regulation 102C(2)(b) and Regulation 136C is that the attempted application is a nullity.

PN139

That is clear, in my respectful submission, from the decision of the High Court in R. v Court of Conciliation and Arbitration ex parte Federated Clerks Union, from the discussion in La, the discussion in Re ACOA, re O'Dowd and in Naqvi. Those cases of course are all about provisions in relation to inquiries into union elections but nevertheless they set out the principles that apply where there has been non-compliance with a mandatory regulation in relation to an attempted application. Perhaps the only one I need take your Honour to is O'Dowd's case. That is found at 1984 3 FCR 150. This was an application for an election inquiry in the Commonwealth Bank Officers Association.

PN140

If I can refer your Honour to the held, one would say that this is an extremely narrow technical decision in many ways. What happened was that the Act requires that there be a statutory declaration with the application doing certain things and the form of the statutory declaration in this case was in a form approved by the Queensland Oaths Act rather than in the form of the requirements of the Conciliation and Arbitration Act as to how a statutory declaration should be sworn. It is no more nor less than that and that is clear from the held.

PN141

The reference in the Acts Interpretation Section 27 to the statutory declarations ...(reads)... in respect of which the court had no jurisdiction.

PN142

In the body of the decision at page 155 at about point 4 on the page his Honour says:

PN143

For this reason I am satisfied that neither of the declarations which accompanied the application in the present case was a statutory declaration within the meaning of words of Section 159(2)(d) of the Conciliation and Arbitration Act.

PN144

Then he goes on to say at point 6 of the page:

PN145

Having reached this conclusion I must consider the effect of a failure to comply with ...(reads)... substantially avoids the application.

PN146

We rely on that line of authority for the proposition that we put that the consequences of non-compliance with the Regulation 109C(2)(b) and Regulation 136(c) is that the attempted application is a nullity. I don't need - - -

PN147

THE VICE PRESIDENT: Mr Pearce, aren't the regulations possibly in a different situation from the Act, bearing in mind the power in the Commission to waive compliance with them?

PN148

MR PEARCE: Yes, but there is no power in the Registrar.

PN149

THE VICE PRESIDENT: No, that may be so but maybe an application could be made to the Commission to waive compliance?

PN150

MR PEARCE: Well, under what Section?

PN151

THE VICE PRESIDENT: Under Regulation 133. That is the power to waive compliance regulation.

PN152

MR PEARCE: Regulation 133 only applies to proceedings before the Commission. This is not a proceeding before the Commission.

PN153

THE VICE PRESIDENT: But isn't there something just in the concept of 133 that there is a power to waive compliance, accepting that it is not available in this particular case, that might suggest that the word "must" has less of a force in the regulations than in the Act?

PN154

MR PEARCE: No. We rely on the fact that the power is not available to the Registrar and this application is to be made to the Registrar. At paragraph 6 of that written outline I actually before the Registrar relied on that, that the power in Regulation 133 is not available as it only applies to the Commission. In my respectful submission, that is a further feature that tends to a construction of these particular provisions as being mandatory provisions. There is no power in the Registrar. I might say, your Honour, I gave you a reference to the old Conciliation and Arbitration Act and the old Conciliation and Arbitration Regulation equivalent of 155 - I thought I had the last reprint - - -

PN155

THE VICE PRESIDENT: Are you taking me to the Act or the regulations?

PN156

MR PEARCE: To the regulations.

PN157

THE VICE PRESIDENT: Under the C&A Act?

PN158

MR PEARCE: Yes. I thought I had the last reprint of the Act and regulations but when I looked at it this morning I realised that they hadn't set out all the regulations in this but I don't believe it has changed. 155 - - -

PN159

THE VICE PRESIDENT: This is Regulation 155?

PN160

MR PEARCE: Of the Conciliation and Arbitration Act, regulation, yes.

PN161

THE VICE PRESIDENT: The power to waive procedural requirements. Yes?

PN162

MR PEARCE: Yes, this is Regulation 133 in its former life. Your Honour will see that in 155 the Registrar did have that power and when the regulations were made under the 1988 Act that power was withdrawn.

PN163

THE VICE PRESIDENT: That is when it changed, did it, in 1988?

PN164

MR PEARCE: Yes. That power was withdrawn to waive compliance. I mean I submit that is another compelling argument really in favour of construing these provisions as mandatory. Now if I can return to the outline of submissions, the grounds on appeal. I am at paragraph 11 of those submissions that I handed up this morning. It is further submitted that in compliance with Section 285A(3) and Regulation 109C(2)(b) is mandatory to the extent to which that term may be used. The purported application is not signed by the applicant and as such is a nullity. The language of the Section, its subject matter and the consequences of any competing interpretations support that view.

PN165

That comes from Project Blue Sky and I have given you the reference. At the end of the day the High Court says that is how you should approach the construction of these matters. The language of 285A(3) and Regulation 109(C)(2) clearly support the interpretation that the compliance with these provisions is mandatory. Your Honour, on any view of it there is no moving away from that proposition because the regulation in particular uses the words "the application must be signed by the applicant". That is a wording that is used and generally intended to convey a mandatory requirement. So the wording is very strongly in favour of the regulation being construed as being mandatory.

PN166

A consideration of the legislative purposes and objects of those provisions, which we say are found in 187A and Section 3, supports a view that compliance with a Section 285A(3) and Regulation 109C is mandatory. If your Honour goes to Section 187A, one of the problems with this Act at the moment is that there are all sorts of different objects all over the Act.

PN167

THE VICE PRESIDENT: One of the problems, as you said, Mr Pearce.

PN168

MR PEARCE: I take for completeness - that says this objects of this part and the provisions of 285A are found in this part although they are a long way into it. Nothing in those objects throws any light on the statutory purpose of this particular Section we are dealing with but it does say as well as the objects set out in Section 3 and it is in Section 3 that one finds the object to which this particular part of the statute is directed, in my submission, and that is in Section 3e which reads:

PN169

Providing a framework of rights and responsibilities for employers and employees and their organisations which supports fair and effective agreement making and ensures that they abide by awards and agreements applying to them.

PN170

Now that is plainly the object of the Act to which Part 10 division 11A which deals with entry and inspection of premises is to give effect to, to give effect to ensuring that employers and employees abide by awards and agreements applying to them. The other part of the Act, and I think I noted over the page in the written submission, the other part of the Act that gives effect to that I think is Section 134 which provides for what used to be called the arbitration inspectorate to also perform the same function. So this - having regard to the objects of the Act which provide through the legislative scheme for a scheme of enforcement in which the registered organisations play if not a central role, a very important role, it is appropriate that a provision which provides for the diminution of that role by enabling in certain circumstances a withdrawal of permits from individuals of - or employees or officers of the union ought to be construed in a mandatory way having regard to the objects.

PN171

It is an important feature. This part of the Act is an important feature, one of only two features, in the Act of giving effect to that object in Section 3e of ensuring that employers and employees abide by awards and agreements. So we say having regard to the objects that is also a consideration that would tend to lend towards construing the provisions of Section 185A(3) and Regulation 109C(2) as mandatory. Can I also say - and as a consequence that such an application to revoke the permit of an officer or an employee of an organisation should only be made strictly in accordance with the Act. Can I also say that - it is not dealt with in the written outline - but there is another reason why the Act and the requirement that the application be signed should be treated as mandatory is because it is inevitable in the nature of these sorts of applications that serious allegations will be made against the individuals in respect of whom it is sought to have the permits withdrawn.

PN172

In those circumstances where serious allegations are made and serious consequences flow, it is desirable that there be persons that the person who is actually making the application should sign the application. It is the same approach that his Honour, Grey J, took in La's case where he said there are serious consequences flowing from these applications in relation to holding up amalgamations and it is desirable in those circumstances that they should be signed by the applicant in person.

PN173

THE VICE PRESIDENT: But bearing in mind it is a corporation, how can that be done? I mean CSR 100 year ago might have under its seal authorised its Secretary to represent it under the Act and then wouldn't the Secretary in 2000 have been entitled to sign the application?

PN174

MR PEARCE: Would it? It didn't.

PN175

THE VICE PRESIDENT: But the corporation acting as a body corporate in affixing its seal to that authority 100 years ago would have had of course no conception of what the situation was last year.

PN176

MR PEARCE: That may be so but it is a matter the corporation can revisit.

PN177

THE VICE PRESIDENT: Yes.

PN178

MR PEARCE: And it was alive to what it had done. But there is no evidence that that has occurred.

PN179

THE VICE PRESIDENT: No, no. I am not suggesting it has.

PN180

MR PEARCE: No person - - -

PN181

THE VICE PRESIDENT: But your submission is, isn't it, because of the seriousness of the allegations that necessarily flowed from a 285A application, the application needs to be made by someone who is aware of the seriousness of it?

PN182

MR PEARCE: That's right. That tends to be a consideration in favour of construing the provisions in a mandatory way. That is undoubtedly, in my respectful submission, why the regulations used that term "must be signed".

PN183

THE VICE PRESIDENT: I accept it says must be signed. But when you get to the situation that a corporation can't, that seems to be more of a problem then?

PN184

MR PEARCE: A corporation can't except as the regulations allow it to do it and that is where Regulation 136 comes into play.

PN185

THE VICE PRESIDENT: You submit that is mandatory too, don't you?

PN186

MR PEARCE: No. We would say that that is a facultative provision. There is no other provision.

PN187

THE VICE PRESIDENT: What does facultative mean, in your submission?

PN188

MR PEARCE: It assists, it assists the company to comply with the Act. There is no other way a corporation can sign an application.

PN189

THE VICE PRESIDENT: Than that?

PN190

MR PEARCE: Than that.

PN191

THE VICE PRESIDENT: It is compulsory in that sense?

PN192

MR PEARCE: It's compulsory but it's facultative in the sense that the word may is used, it's used in a facultative sense. Nothing turns on the use of the word "may" in the regulation which unfortunately the Deputy Registrar relied on for the purposes of construction. I might say, your Honour, it is not really a very big burden, where the regulations make specific provision, for the company to comply with Regulation 136C in the way they make their application. That is the final submission. There is no - - -

PN193

THE VICE PRESIDENT: If CSR were a member of an organisation, the organisation would have made the application on its behalf, couldn't it?

PN194

MR PEARCE: Yes.

PN195

THE VICE PRESIDENT: You pointed that out earlier, I think?

PN196

MR PEARCE: Yes.

PN197

THE VICE PRESIDENT: Yes. Then it would have had to be made by a person authorised by or in accordance with the rules of the organisation or branch?

PN198

MR PEARCE: Yes, and that person would take the consequences, as it were, of making the allegations.

PN199

THE VICE PRESIDENT: Yes.

PN200

MR PEARCE: Those allegations would be allegations made on behalf of the organisation. I think that would be so, your Honour. They wouldn't be made - they would be made on behalf of the organisation in relation to some events that occurred at CSR. They wouldn't be made on behalf of CSR.

PN201

THE VICE PRESIDENT: I follow what you say, yes.

PN202

MR PEARCE: In paragraph 12 we say that as a consequence of paragraph 11 it would follow that an applicant who was a corporation could not make an application under Section 285A(2) because as the Deputy Registrar correctly stated, an application made on behalf of the corporation must always be signed on behalf of the corporation. I am really now setting out what I have already said to you, your Honour. It is for this reason the courts provide rules whereby corporations may appear. See for example the Federal Court rules order 9 rule 1 and 2 and the Industrial Relations Commission rules 1, 2, 3. If I can refer your Honour to that rule, and I am now talking about the Industrial Relations Commission rules.

PN203

THE VICE PRESIDENT: New South Wales Commission rules?

PN204

MR PEARCE: Yes.

PN205

THE VICE PRESIDENT: Yes, I have got those, thanks. Which rule?

PN206

MR PEARCE: Rule 123.

PN207

THE VICE PRESIDENT: 123.

PN208

MR PEARCE: And of course Section 166 is the provision that your Honour was referring to about in what circumstances legal representation, legal representatives may appear.

PN209

THE VICE PRESIDENT: Yes. That is the one I was thinking of. Yes, that is right, yes.

PN210

MR PEARCE: So the rule is subject to 166 but nevertheless it is for that reason we would submit that such rules are made and that no rule or no regulation has been made here to enable corporations to appear except Regulation 136C. Then we say it follows that - can I also say that in that area I have also drawn your attention - your Honour, it is not in the written outline - to the provisions of the Act, this Act, as to how counsel and solicitors can appear in the Federal Court where again a specific provision is made so that they may appear. We say the Act, regulations and rules do not provide similar provisions in relation to the Commission undoubtedly because of Section 42 of the Act.

PN211

Maybe not, but anyway they don't provide the provision.

PN212

THE VICE PRESIDENT: That's why you were so punctilious in seeking leave to appear this morning?

PN213

MR PEARCE: I was.

PN214

THE VICE PRESIDENT: Both sides are legally represented?

PN215

MR PEARCE: Yes. It follows that Regulation 136 is a facultative provision providing the means whereby applicants who are corporations may comply with the Act and regulations because that is what it is directed to, your Honour. Complying with the Act and regulations. It comes into play where it says - to paraphrase it - a document is required by the Act to be signed. We say that if a corporation doesn't use the facultative provisions of Regulation 136 then by operation of the mandatory provisions of 285A(3) and Regulation 109(2)(b) the corporation is not otherwise able to make an application to revoke the permit of an officer or employee of an organisation.

PN216

The reliance by the Deputy Registrar on the Clerks Brewing Consolidated Award is misplaced. Perhaps if I take your Honour to that. The reference I have is 20 IR. In the decision there is a print reference I noted. Deputy President Keogh made stand-down orders and there was an appeal and one of the grounds of the appeal was that - it's about point 5 on page 311. It begins: "On the second issue".

PN217

On the second issue the FCU argued that there was no evidence before the ...(reads)... was not that of Mr Kemp.

PN218

Now I might stop there. Your Honour, in this case there was a person purporting to be on the record a - to use the words - an officer or a person duly authorised under the seal of the company to represent it under the Act and had signed it. Unlike in the circumstances of this case. Then they deal with - sorry, read on:

PN219

It was contended that the absence of evidence of authorisation was contrary to the requirement ...(reads)... if any document is required.

PN220

Your Honour will immediately observe that the old Regulation 156 is in a completely different form in the preamble to the current Regulation 136. The old Regulation 156 actually made provision for a direction by a Judge, a member of the Commission or the Registrar, as it were, to enable the requirements of signature to be done in a different, if I can paraphrase it that way. Those very words have been deleted from the current Regulation 136C. A strong pointer, in my respectful submission, to distinguish this case from the case that we have here but also a strong pointer, your Honour, to the contention that we put that in the new regulations the intention was to make compliance with 136C mandatory in the sense that I have used that word in describing it, albeit that it is a facultative provision.

PN221

THE VICE PRESIDENT: Were those words dropped at the same time as what is now 133 was inserted?

PN222

MR PEARCE: I think they were, your Honour. I didn't make that inquiry. I should have gone back to the 1998 Act. And interestingly, that power was withdrawn from the Registrar.

PN223

THE VICE PRESIDENT: As you pointed out earlier?

PN224

MR PEARCE: Yes.

PN225

THE VICE PRESIDENT: Yes.

PN226

MR PEARCE: Well, a second example of a power being withdrawn from the Registrar, the earlier one was where the power to deal with non-compliance that your Honour referred to, I think ..... 133.

PN227

THE VICE PRESIDENT: Yes, I follow.

PN228

MR PEARCE: Now continuing on with the Brewery case. The decision then sets out the then form of Regulation 156C and then it says:

PN229

We consider that Deputy President Keogh was entitled to treat Regulation 156C as a procedural rule of a director, not of mandatory character.

PN230

Now can I say about that, in the context of this case it is obiter. It has got to be obiter, But in any event it is a different provision and when your Honour sees all the reasons that they relied on, none of them continued to exist, all the reasons they rely on for construing it as directory not mandatory.

PN231

With the result that non observance of it, if established, would not vitiate the application. We are ...(reads)... to waive procedural requirements . . .

PN232

That is the current Regulation 133, a power that is also not available to the Registrar.

PN233

In any case the regulations directly relevant to the matter before Deputy President Keogh was Regulation 31 which relates to an application to vary an award pursuant to Section 59. Regulation 31 does not call for any attestation of the kind submitted by the FCU to be necessary.

PN234

Then it says this is contrast to a number of other regulations which do require that attested documents be filed. So, we would say that the reliance on the Clerks Brewery Consolidated Award is misplaced. Primarily in that case Regulation 156, as it then was, and is now Regulation 136, had no work to do. There was no requirement in the primary regulation for the application to be signed. How it got into the proceedings one can only imagine. Sometimes all sorts of arguments got into proceedings in relation to stand-down orders. So it really had - furthermore all the matters that are relied on by the Full Bench in construing Regulation 156(c) are now irrelevant.

PN235

There is no discretion now in 136(c) as there was in 156 which they relied on. There is no power in the Registrar under 133 as there was in the previous provisions to waive compliance and as I have said, in the circumstances of this case, are clearly distinguishable because the regulation that they were dealing with, the primary regulation for making an application didn't even require that the application be signed. Those arguments are set out in paragraph 13 of the submissions I have handed to you. Then finally at the end of paragraph 13 it is said that another distinction in that case was that there was an assertion by the gentleman involved that he was a person who met the requirements of Regulation 136(c).

PN236

The argument was that there was no evidence that he met them. Altogether one would have thought a hopeless argument in the context where it hadn't been raised below but unlike in this case where there is no assertion that the firm of solicitors are officers or persons duly authorised under the seal of the corporation to sign the application. In fact the Deputy Registrar found they were not and that is in paragraph 10 of the decision.

PN237

THE VICE PRESIDENT: They didn't claim to be, did they?

PN238

MR PEARCE: No, they didn't claim to be, no. We then say the finding of the Deputy Registrar that the firm of solicitors were agents of the company representing the people who are authorised under the company seal is not available on the evidence. If I can take your Honour to the decision of the Deputy Registrar. It is well illustrated in paragraph 10 by what he says. He says:

PN239

The firm of solicitors were not officers or persons duly authorised under the seal of the company but were agents of the company representing the people who are authorised under the company seal, whoever they area.

PN240

That illustrates - your Honour there was no evidence before the Commission that there were such people. Indeed, no one was identified as being the person. The very finding in my respectful view illustrates that the Deputy Registrar himself was unable to identify who they were. That in itself is quite a distinguishing feature from the Clerks case where there was a person who said it is me, had signs saying it is me, and that assertion hadn't even been contested below. Finally, we say on one view of it the Deputy Industrial Registrar asked himself the wrong question, ie whether Regulation 136C was mandatory in the sense that he has relied on this reference in the decision of the word "may".

PN241

He has failed to appreciate that it is a facultative provision but where the Act provides - and I am sure your Honour is well aware of this authority in relation to this Act but where the Act provides that something may be done by one means, I think it is Wallis's case, this Act is generally construed as meaning that it may not be done by other means where a particular procedure is set down. That is a construction that has generally been applied to this Act over many years. I think I can refer your Honour to the discussion in Pearce on that matter. I notice the time. I could refer your Honour to the discussion in Pearce after 12 o'clock. It's the last thing I wanted to do.

PN242

THE VICE PRESIDENT: No, that's all right. Go ahead, Mr Pearce?

PN243

MR PEARCE: Your Honour didn't take my hint. I was having trouble finding it. It's the last thing I wish to say.

PN244

THE VICE PRESIDENT: All right. I will adjourn for 10 minutes.

SHORT ADJOURNMENT [11.51am]

RESUMES [11.59am]

PN245

MR PEARCE: Your Honour, the reference I was looking for is found at paragraph 4.23 of Pearce, statutory interpretation. It is the phrase, ...... tacitum, which I notice Professor Pearce had difficulty giving a translation of. If can read from page - - -

PN246

THE VICE PRESIDENT: This Act and our Act requires us to use plain English.

PN247

MR PEARCE: In most circumstances it is difficult to translate - - -

PN248

THE VICE PRESIDENT: Sorry, which page is it?

PN249

MR PEARCE: 108.

PN250

THE VICE PRESIDENT: Yes, thank you.

PN251

MR PEARCE:

PN252

In most circumstances it is difficult to translate maxim as a restatement ...(reads)... to which attention should be paid.

PN253

These are both cases concerning this - or the Conciliation and Arbitration Act:

PN254

First, where a particular procedure is designated to achieve something, other procedures are thereby excluded. ...(reads)... namely that the same matter is not to be according to some other course.

PN255

In that case the Section that indicated the manner in which an arbitrator was to deal with a particular precluded the arbitrator dealing with the matter in accordance with more general procedures provided for in the Act. I think that was the case about the preference to unionist power, from memory, your Honour. But that is right on point here in relation to Regulation 136(c), that the regulation in affirmative words appoints a course to be followed and we would say that it imports a negative, namely that the same matter is not to be done according to some other course, ie by applying some law or principle of agency and having their solicitor sign the application. We rely on that, thank you, your Honour. I am sorry I have gone a bit longer than I intended.

PN256

THE VICE PRESIDENT: Thanks, Mr Pearce. Mr Warren?

PN257

MR WARREN: Yes, thank you, your Honour. Your Honour, can we say from the outset that Deputy Industrial Registrar Ellis clearly formed the view that Fisher Cartwright was acting as the agent for the applicant, CSR trading as CSR Humes, and as such the application was properly commenced. The Deputy Registrar further considered the Full Bench in the Clerks Brewery case and I will come to a consideration of that, a brief consideration of that shortly. But principally the Deputy Industrial Registrar considered that Fisher Cartwright was acting the agent of the applicant, was properly acting as an agent, had properly commenced the cause of action and therefore it wasn't necessary to consider whether there needed to be any amendment, variation or allow any change to that application in accordance with whether he could or couldn't under Regulation 135 as it has been separated from 133 etcetera, from the old 156 and 155.

PN258

So it is important for the Commission here to consider whether the Registrar formed that view of agency properly. We say clearly he did. If I could take the Commission to the appeal books. My friend has already taken the Commission briefly to this. The application to revoke, at page 239 of the appeal book, and clearly it is stated by Fisher Cartwright Berriman in a letter addressed to the Australian Industrial Registry, and it is important to note it is in letter form. An important point in this application and appeal is that there is no form in the regulation or rules to say that you must this follow this form to proceed. There isn't a form that says it is a form 11 or a form 12 and down the bottom the signature of.

PN259

That doesn't occur and we say that is quite a significant difference and indeed that is one of the fundamental difference that the Deputy Industrial Registrar drew in his decision from paragraph 12 onwards in considering the various cases that my friend has again today brought the Commission to, but in saying that he did not consider himself bound by those cases and we say quite properly because there is a significant difference. The letter commences at page 239, it is dated 21 July. The opening paragraph:

PN260

We write on behalf of our client, CSR Limited trading as CSR Humes in this matter.

PN261

Three more paragraphs down:

PN262

On behalf of CSR Humes were hereby make an application.

PN263

And it sets out the grounds as is required in the Act for the application. That application is then signed. It is then signed. It is purporting to act on behalf of CSR Humes and it is signed. One even notes at page 235 once again in compliance with a service of this document solicitors Fisher Cartwright Berriman write to Construction, Forestry, Mining, Engineering Union and to the individuals the subject of the application. In each case it says "we have been instructed to act for our clients, CSR Limited trading as CSR Humes in this matter". Nothing could be clearer than here it is, Fisher Cartwright purporting to act on behalf the applicant in the proceedings.

PN264

It could not be clearer. Indeed when the matter came on for directions before the Industrial Registrar, and this is found at pages 9 and following, the transcript of the proceedings, Mr Stevens, my instructing solicitor in this matter, from Fisher Cartwright, at the top of page 9:

PN265

I seek leave to appear on behalf of CSR Limited trading as CSR Humes, the applicant in these proceedings.

PN266

A little further over and I will show the relevance of it but once again the Registrar there gives directions at page 10 saying:

PN267

I was going to direct that the applicant file . . .

PN268

and so on and so forth. Outline of submissions, witness statements they wish to prepare, documentary material. At the end of the proceedings on that day on page 13 of the appeal book those directions are given, both directed to the applicant and the respondents to the applicant, to make certain submissions, copies of witness statements and any other documentary evidence. That will become relevant later on. But clearly at that stage the respondents considered - didn't raise the issue, say hang on what are you doing here, this application isn't properly brought. That is relevant for later on, on about the third day of the hearing. My learned friend, Mr Pearce, in response to a question from a Registrar, and I will take you there in a moment, when the Registrar said why didn't you raise this earlier.

PN269

Mr Pearce said well, we wanted to see what evidence came out, but that's entirely wrong. If his point is good, the application was wrong right from the start.

PN270

THE VICE PRESIDENT: I was wondering why it was characterised a no case to answer application, which I would have thought would be based on lack of evidence. I actually raised it with Mr Pearce and haven't had a reply. But as I understand it, it is a jurisdictional argument?

PN271

MR WARREN: It's a jurisdictional argument and if my learned friend, Mr Pearce, is right in that the application was a nullity, then no amount of evidence could have corrected it. The application if he is right is a nullity, it's a nullity. To suggest after three days of hearing, after exhaustive evidence has been put on, cross-examination by Mr Pearce, to say oh well, we just wanted to see what evidence came out. Well, I'll come to that. At page 242 in compliance with those directions, in the appeal book behind tab 8, applicant's outline of submissions in accordance with the directions and it is interesting to note that there once again it is signed, indeed on that occasion, solicitor for applicant, on page 245.

PN272

At 246 an affidavit of Ms Toni Barker is found. That was filed in those proceedings and tendered in the proceedings. At 279 - - -

PN273

THE VICE PRESIDENT: Who is the signatory on 245?

PN274

MR WARREN: 245 is Mr Stevens, I am instructed, per Fisher Cartwright.

PN275

THE VICE PRESIDENT: I see. The handwritten writing is per Fisher Cartwright?

PN276

MR WARREN: Yes, by solicitor of the applicant.

PN277

THE VICE PRESIDENT: Yes.

PN278

MR WARREN: Once again you have got a signature. But we then go through at the various stages of the appeal book is found the exhaustive evidence in affidavit form that was filed and it is to be noted, although it is not contained within the appeal book, evidence was also - affidavits were also filed on behalf of the respondents to the application.

PN279

MR PEARCE: It is not contained in the appeal book because they weren't tendered. They are not in evidence.

PN280

MR WARREN: I am not taking issue that it is not in the appeal book. I am not that it is not in the appeal book but I am noting that - and - - -

PN281

MR PEARCE: They are not in evidence and there is no reason to be referring to them in these proceedings until they go into evidence.

PN282

MR WARREN: Is my friend making an objection to the submission?

PN283

MR PEARCE: Yes.

PN284

THE VICE PRESIDENT: You have said that they were filed?

PN285

MR WARREN: They were filed.

PN286

THE VICE PRESIDENT: Is there any issue about that, Mr Pearce?

PN287

MR WARREN: In compliance with the directions.

PN288

MR PEARCE: Your Honour, they are not in evidence.

PN289

THE VICE PRESIDENT: No. I don't think Mr Warren - - -

PN290

MR PEARCE: There is no evidence that they were filed.

PN291

MR WARREN: If the Commission will excuse me for a moment.

PN292

THE VICE PRESIDENT: The Commission's file will show that.

PN293

MR PEARCE: What I am saying, your Honour, is there is no evidence before the Commission in these proceedings that they were filed and that is how the record stands. That is all I am saying.

PN294

MR WARREN: Contained within the submissions of the applicant, the respondent to these proceedings, that my friend didn't put in his outline of submissions here, it is noted that the respondent filed their submissions - - -

PN295

MR PEARCE: Yes, and your Honour, it drew the same response in my reply as I just made then.

PN296

THE VICE PRESIDENT: What is going to turn on this anyhow, Mr Warren? Is it worth having an argument about? I just don't quite know?

PN297

MR WARREN: Your Honour, I wasn't having the argument, with respect to my friend. What I was saying was that right up until the third day of hearing the appellants, the respondent's below, were proceeding normally in accordance with the directions given by the Registrar, had not taken any objection to the application that was made in accordance with 285C, had not taken any objection to any of the evidence that was tendered. Indeed it allowed two affidavits through without cross-examination, it had cross-examined extensively the applicant's witnesses, Ms Barker, Industrial Relations Manager; Mr Minton, General Manager; Mr Knight, etcetera, and at no stage - cross-examined at length.

PN298

At no stage did they say to them you didn't give your authority to Fisher Cartwright to act here, did you? Indeed, they took the - I take you to page 23 of the appeal book, your Honour, the cross-examination by Mr Pearce of Ms Barker at about line 19.

PN299

Now in your capacity, are you the person that deals with Messrs Fisher, Cartwright and Berriman in relation to the CFMEU right of entry?

PN300

This application was about right of entry.

PN301

A: Yes, I have liaised with them.

PN302

Q: Are you the person who gives them instructions in relation to matters that are said and written in letters?---Myself and Greg Minton would probably do that.

PN303

Having got that admission from Ms Barker, he didn't then go on to say well, you didn't give instructions to Fisher, Cartwright, Berriman according to this matter, did you. That question wasn't asked. Quite clearly, here is evidence that Ms Barker instruct Fisher Cartwright, had instructed them in relation to the CFMEU right of entry matter.

PN304

THE VICE PRESIDENT: What page were reading from?

PN305

MR WARREN: Page 23 of the appeal book. Page 16 of the transcript.

PN306

THE VICE PRESIDENT: What is your point? That it was too late to raise the point?

PN307

MR WARREN: No, I am saying here they are, indeed questioning Ms Barker that she authorises Fisher Cartwright, solicitors, in connection with the right of entry matter.

PN308

THE VICE PRESIDENT: What flows from that?

PN309

MR WARREN: With respect, your Honour, my initial submission was quite clearly that the Deputy Industrial Registrar formed the view that the solicitors Fisher Cartwright were agents for CSR Limited trading as CSR Humes.

PN310

MR PEARCE: Your Honour, I don't deny that.

PN311

THE VICE PRESIDENT: I didn't think it was denied.

PN312

MR PEARCE: I don't deny my friend is properly instructed or any of that and that is not the way that the case is put at all.

PN313

THE VICE PRESIDENT: The point is, as I understand it, that CSR was not entitled to be represented by an agent?

PN314

MR WARREN: I didn't take that to be the case at all, that they weren't entitled to be represented by an agent.

PN315

THE VICE PRESIDENT: I thought Mr Pearce's point, they were only entitled to be represented by someone within Regulation 136.

PN316

MR PEARCE: For the signing of the application.

PN317

MR WARREN: Well, if we want to go to 136 I can go there now and show how it clearly is very similar to the old 156 and that the Full Bench of this Commission has said it is directory only. Even though my friend says it has changed in its format at the beginning, quite clearly the Full Bench in the Clerks Breweries case came to the view that - and I will go there now - - -

PN318

THE VICE PRESIDENT: Just on this point, in the decision of North J that is referred to, that is Arnott, one of the submissions there was that whatever the applicants could do themselves they could do by an agent, that is paragraph 13, and his Honour held that - as I read it - that having regard to the provisions he was dealing with, they were not entitled to be represented or for the agent to sign the documents.

PN319

MR WARREN: The telling point there was, as was pointed out by the Deputy Industrial Registrar, his Honour found that at the end of the form, there was a form, indicates that the personal signature was intended and that the name ..... be in the form of the statement of the first person. It had to be in the first person.

PN320

THE VICE PRESIDENT: Yes. So you would say that was, as I imagine, that is distinguishable?

PN321

MR WARREN: Clearly distinguishable.

PN322

THE VICE PRESIDENT: Yes. I can understand that submission.

PN323

MR WARREN: And that is what we say there. So far as Arnott's case is concerned. It was properly distinguished by the Deputy Industrial Registrar. But if one looks at the matter of the Clerks Breweries case and the Full Bench there, to the extent that it is relevant to these proceedings, it is of no significant difference - I understand my friend takes issue with that of course, and I understand why he would take issue with that. But if one looks at Regulation 136 and compares it to Regulation 156, Regulation 136 commences "subject to the Act". Understand that "subject to the Act" is a far more - it is a term far more shorthand than that which is contained in 156, except where otherwise provided by these regulations or directed by a Judge or member of the Commission or the Registrar.

PN324

That is fine. We don't need to have the Registrar changing anything or purporting to change anything from 136 to accept that the case of the Clerks Breweries is still valid today because in 156 and the Full Bench in 156 notably says, and one notes that the wording towards the end of the first paragraph in 156 is remarkably similar to 136, taken out, made or signed or may be taken out, made or signed, or any step required may be taken or signed, etcetera. It then goes down to sub (c), in the case of a ..... organisation by an officer or person duly authorised under the seal of the company represented under the Act. That's the exact wording in 136C and the Full Bench found that that wording itself was not mandatory, not mandatory to be followed.

PN325

It's still good law today, as it was then, for it found that it was not mandatory to be followed and that wording remains. It is interesting to note that the Full Bench continued - - -

PN326

THE VICE PRESIDENT: Sorry, you are reading from Clerks Breweries?

PN327

MR WARREN: I am reading from the print, your Honour. I can hand you a copy of the print if that would be of assistance.

PN328

THE VICE PRESIDENT: All right. If it is the same one you are reading from, it would.

PN329

MR WARREN: I am reading from the print on page 2 of the print and my friend read at approximately point 5 between lines D and E: "on the second issue the ....." etcetera. It then sets out 156C:

PN330

As it is relevant for those considerations, we consider that Deputy President Keogh was entitled to treat Regulation 156C as a procedural rule of a directory, not a mandatory, character.

PN331

Nothing has changed, with respect to my friend's submission, that would change that situation. The relevant words there relied upon by the Full Bench are still there today, are still there today. So it was directory, not mandatory. With the result that non-observance of it, if established, would not vitiate the application. They then go on, the Full Bench then proceeds in the next paragraph:

PN332

In any case, the regulations ...(reads)... submitted by the FCU to be necessary.

PN333

Same thing in Section 285C, Regulation 109.3 does not call for an attestation. There is no form, there is not a requirement to have a supporting affidavit and to that extent it is relevant.

PN334

This is in contrast with a number of other regulations which do require that attested documents be filed.

PN335

That is not the case.

PN336

Further, Mr Kemp was in court during the proceedings instructing counsel.

PN337

I draw the line there, General Manager gives evidence, is cross-examined. The Industrial Relations Manager gives evidence and is cross-examined.

PN338

Indeed in the proceedings ...(reads)... should have pressed him to establish his credentials.

PN339

We say that is very relevant, your Honour. The reasoning of the Full Bench in that matter is very relevant to today. It is not just a matter of brushing it aside as with respect my friend has attempted to do by saying well, the regulations so far as what the Registrar can do may have changed. Those provisions haven't changed. Clearly it is directory not mandatory. As your Honour has pointed out and I was to take the Commission to had your Honour not pointed it out. There is a significant difference between a provision which requires a personal signature on a form that says signed by the applicant, in a circumstance where it of necessity and by its very nature a personal application; whereas here we have a corporate application and as the Industrial Registrar pointed out, there are ways that the corporation may make the application.

PN340

But that doesn't exclude, with respect, a solicitor properly standing as agent doing exactly the same thing. There is nothing to say that a solicitor cannot, if my friend had challenged the retainer of the solicitor, he should have done so. He didn't, he accepted it and he accepted it and he continues to accept him.

PN341

THE VICE PRESIDENT: It is my understanding that in courts of law that a challenge to a retainer requires a separate application. It can't be raised in a - that could wrong or out of date?

PN342

MR WARREN: Well, we haven't got a separate application, your Honour.

PN343

THE VICE PRESIDENT: No, there isn't one.

PN344

MR WARREN: But there was ample opportunity throughout the cross-examination of Ms Barker and the cross-examination of Mr Minton, which commences at page 126 of the appeal book, the examination and cross-examination was soon thereafter. Such things as at page 127, early in the cross-examination of Mr Minton, the General Manager, Mr Minton [sic] says you are the general manager and he says, - towards the bottom of page 127, when talking about his responsibilities:

PN345

Does that include responsibility for mundane matters such as the conduct of industrial relations?---If it affects the business, yes.

PN346

There is no doubt that they involved their solicitors heavily in all these proceedings. Page 130, at the middle of the page, he speaks of giving his solicitors -

PN347

Giving to my solicitors and asked what I should do next as far as the proceedings on 7 July is concerned.

PN348

Towards the bottom of page 130:

PN349

Basically we took legal advice on what I should do next which were responded to.

PN350

And so on, your Honour. There is numerous parts of the transcript in the cross-examination. I mean at 168 towards the bottom of the page, Mr Minton speaks of the professional way of conducting activities and at the bottom of the page he speaks of seeking legal advice and he did it the first time. Your Honour, it is clear, it cannot be clearer, in my respectful submission, that Fisher Cartwright Berriman were acting for CSR Humes, CSR Humes were involved in these proceedings with their full authority being given to Fisher Cartwright Berriman. Their General Manager attended and gave evidence and there was no challenge on that issue.

PN351

Yet, as I said earlier, if my friend was waiting for some pearl of evidence to be dropped before he raised his issue, if there is any meat in his argument he could have raised it on the first day and that would have been the end of it. Here we have got proceedings right down the track. End of the applicant's case. They say, hang on, this application has been brought improperly. It was brought, it was signed, it was signed by the applicant through the person of their solicitor. The regulation that my friend relies so heavily on in Regulation 136 is it is simply directory. It is not mandatory. It is an entirely different situation when you have the circumstances of a corporation coming before this Commission than the circumstances where you have an individual applicant and those are all the cases that my friend relies upon.

PN352

THE VICE PRESIDENT: You say that Regulation 109C was strictly complied with?

PN353

MR WARREN: Yes.

PN354

THE VICE PRESIDENT: That follows?

PN355

MR WARREN: Yes, indeed. And the Industrial Registrar found that. That is why he said there is no need for me to go to the second leg of the applicant' argument that you will find within the submissions. As far as the Deputy Industrial Registrar was concerned and as far as our submission today is concerned, 109C was complied with. It was signed by the applicant, as properly found by the Deputy Industrial Registrar. Now, your Honour, we can go - take the Commission through the various cases but we say those cases are irrelevant to these proceedings and we say they are irrelevant because they deal with not a similar situation to this.

PN356

They don't go to the situation where you have got a corporation. They go to the situation quite clearly where there were the need for individuals to sign, individuals to bring proceedings. The courts in those various cases that have been referred to at length by my friend consistently said where there is a need for an individual to sign, there is a need for the individual to sign. If the form says individual to sign, the individual has got to sign.

PN357

THE VICE PRESIDENT: If CSR was a natural person or if a natural person was making an application to cancel a right of entry, would a signature of that person's solicitor comply? You probably don't have to go that far anyhow because it is only a hypothetical?

PN358

MR WARREN: I would suggest probably no unless that individual could show that that solicitor had the authority, the right of authority to sign it.

PN359

THE VICE PRESIDENT: So something turns on the fact that CSR is a corporation?

PN360

MR WARREN: And you must read, with respect, the Commission must read the regulations and the Act in a practical sense. The Commission is well aware that appearing before this Commission are individuals, organisations and corporations. The meaning of Section 109C and Regulation 136 must be read in conjunction, saying yes, but we have got a corporation here. We have got a corporation here, how on earth can a corporation sign something. Here was have a solicitor, properly acting as agent and signing on the corporation's behalf. We add to that that 136, contrary to what my friend says, is not mandatory. The Full Bench of this Commission says it is not mandatory, it is directory.

PN361

The relevant and operative words that my friend relies on to say the application fails are the very words that the Full Bench relied on to say no, it doesn't. No, that 136c is directory, not mandatory. Those very words. Now they are the very words my friend has relied on. We say that is where the point sits. Your Honour, I can take you to many other parts of the transcript to support that view but I think your Honour has got the general thrust of what we are saying. There clearly is, and it is unchallenged, that evidence that CSR Humes had given Fisher Cartwright their authority to do this and they actively participated in the proceedings. At no stage was that authority challenged.

PN362

Your Honour will see in my submissions below there is an estoppel argument raised there and we press that. It is relevant.

PN363

THE VICE PRESIDENT: It is relevant to the timing of the application?

PN364

MR WARREN: Absolutely. They allow the proceedings to proceed to the death of the applicant's - the finish of the applicant's case and then jumped up and said oh, we have got no case to answer. Quite clearly they had acted and the applicant had continued to act firm in the knowledge that there was not an issue at all about that. We say that is not final but it certainly is persuasive as to which side of the fence this matter should come down on. Your Honour, we say the appropriate orders that this Commission should do is just to dismiss the appeal and the matter should now proceed and continue before the Deputy Industrial Registrar in accordance with his directions given at the end of his decision.

PN365

If the Commission is against us on that and finds for some reason that there is some need to make some additional orders then the Commission should do so. If indeed the Commission notes that the Deputy Industrial Registrar did not consider, did not consider the interaction of Regulation 135, if the Commission considers there is some benefit in the Deputy Industrial Registrar considering that, then so be it. But we would submit that it would be appropriate in the first instance for the appeal to be dismissed and if that not be so, then clearly this Commission, as is currently constituted, under Section 81 can make such orders as it sees fit. This Commission could indeed, if it saw the need to correct, could correct. If the Commission pleases.

PN366

THE VICE PRESIDENT: Thanks, Mr Warren. Mr Pearce?

PN367

MR PEARCE: Your Honour, can I deal firstly with the question of the no case to answer submission.

PN368

THE VICE PRESIDENT: Yes.

PN369

MR PEARCE: There is now - there is a decision - incidentally the response to that is dealt with can I just note in paragraph 4 of my submissions in reply.

PN370

THE VICE PRESIDENT: Below?

PN371

MR PEARCE: Below. But it is found in Davis' case and that is at 81 IR 364. I was recently before his Honour, Peterson J, who for some years was a Judge of this Commission and I think we all agree that Davis' case is the last word on no case to answers. It is a decision of the New South Wales Industrial Relations Commission and it begins at page 396 and if I can - we say that the no case to answer was raised at the appropriate time. At 396 at about point 6 on the page, this had been a strike-out motion below and finished up before a Full Commission composed of the Vice President Carl, Hill, Maidment JJ and Commissioner Redmond. On 396 it says this:

PN372

In our opinion the principles governing the making of an application by a respondent ...(reads)... on that application was unsuccessful.

PN373

Then:

PN374

The first principle is and on all of the authorities it is well settled and a general rule ...(reads)... involving objections based on jurisdictional or legal grounds.

PN375

Which is the type of case we raised here, but they then go on to say:

PN376

Or cases falling within the limited class illustrated by General Steel Industrial v Commissioner for Railways ...(reads)... no cause of action.

PN377

We rely on this, your Honour:

PN378

Even in jurisdictional or legal objection cases the application should not be permitted unless the Tribunal has all the relevant facts before it, see Nagle v Tilburg.

PN379

THE VICE PRESIDENT: Are there any relevant facts?

PN380

MR PEARCE: Yes, your Honour. There may have been, there may have been. Evidence may have been adduced that could have been relevant.

PN381

THE VICE PRESIDENT: The High Court has said though that statutory tribunals should not proceed if there is an issue of jurisdiction, which I understand this really to be, because you say the thing wasn't signed properly and therefore there was nothing before the Commission, or before the Registrar.

PN382

MR PEARCE: There may have been relevant evidentiary matters that may have affected the ability to make that submission. That is exactly what was said in Nagle v Tilburg. I rely on that.

PN383

Even in jurisdiction or legal objection cases the application should not permitted unless the Tribunal has all relevant facts before it.

PN384

Nagle v Tilburg was a case, and it is referred to there - - -

PN385

THE VICE PRESIDENT: Weren't all the relevant facts before the Registrar when you first listed the matter, the application was there?

PN386

MR PEARCE: Your Honour, we were unaware as to what other evidence may be adduced.

PN387

THE VICE PRESIDENT: But your submissions had nothing - on appeal today were - I don't think referred to the evidence at all?

PN388

MR PEARCE: No, there was no evidence adduced by the applicants that turned on the matter. There could have been though.

PN389

THE VICE PRESIDENT: What, you mean there could have been evidence for instance that CSR under seal had authorised Campbell Fisher?

PN390

MR PEARCE: Yes.

PN391

THE VICE PRESIDENT: Yes, I follow.

PN392

MR PEARCE: Yes, your Honour I have been reluctant to - but there could have been.

PN393

THE VICE PRESIDENT: Yes, I follow the point, okay.

PN394

MR PEARCE: So it was a matter of waiting until the case closed and on what is said in Davis' case, which as I said is generally regarded as the last word on no case to answer, the application was raised at the appropriate time. The second thing, can I say also that it is not unusual that these things happen. In O'Dowd, the case I referred you to, the very same thing I believe happened. I won't take you to it but at page 157 after his Honour concluded that there was no jurisdictional basis he said:

PN395

I should say that I have not found it easy to reach this conclusion. I am disturbed by the thought of making any decision which renders it more difficult and more technical to bring before this court an application for an inquiry concerning an election. ...(reads)... before the point was discovered.

PN396

Your Honour, in O'Dowd's case the issue - all the evidence apparently had closed before the submission was made. These things happen. Can I then say in relation to the estoppel question that no question of estoppel arises. This is dealt with in paragraph 3 of our submissions in reply. Your Honour, can I ask your Honour to read but not now the two cases cited there, Waltons Store Interstate Limited v Maher.

PN397

THE VICE PRESIDENT: You are reading from paragraph?

PN398

MR PEARCE: 3 of the submissions in reply. It starts on page 1.

PN399

THE VICE PRESIDENT: Yes.

PN400

MR PEARCE: It sets out there was no estoppel by conduct because, and then it sets out over the page the reasons. Generally in relation to estoppel by conduct the Waltons Store case is the leading case in the High Court and the extract there at 428, 429 is from the decision of Brennan J and is generally, I think, regarded as setting out the circumstances in which an estoppel of this kind, estoppel by conduct may be raised. I ask your Honour to - the paragraph begins at about point 8 on the page, "In my opinion". It lists six matters that have to be established if one is to raise an estoppel argument. Perhaps I should read it to your Honour. It is at 428:

PN401

In my opinion, to establish an equitable estoppel it is necessary for the plaintiff ...(reads)... expectation or otherwise.

PN402

It is probably quoted so often because it so simply sets out what are the six elements that need to be established if you wish to raise an equitable estoppel. It then goes on to say:

PN403

For the purposes of the second element, a defendant who has not actively induced ...(reads)... plaintiff was conducting his affairs.

PN404

Now the other case is Horsman's case which is referred to there. It is at 89 IR. What happens in Horsman's case, and I won't take your Honour to it, his Honour there applies the six points of Brennan J's decision to an industrial circumstance. We say we similarly apply and I ask your Honour to read Horseman's case. We simply apply the same propositions to the circumstances of this case at A, B, C and D and, you Honour, it is plain that there - when one examines what is required to raise an equitable estoppel, it is not within a cooee of being any sort of an equitable estoppel. I might say that the submissions that I made to you and the submissions that were made below didn't rely on any authority whatsoever in relation to what constitutes an estoppel.

PN405

I think the only other thing I want to say, your Honour, it is true that there is something that turns, in this case, on the fact that the applicant was a corporation. What turns on it is that the applicant, having made an application or purported to make an application under the regulations, - sorry, the purported application under the regulations, had to be signed by the applicant and the means by which the regulations provided for the applicant, the corporation to sign it, are those set out in 136C and only those means.

PN406

THE VICE PRESIDENT: That's the issue. That is the nub of the whole case, isn't it, leaving aside the estoppel and related matters?

PN407

MR PEARCE: I hope it is. It may well - your Honour might reach the view that the provisions of Regulation 109C are not mandatory. You have got to get to that conclusion before you then would move on.

PN408

THE VICE PRESIDENT: Accepting that the application has to be signed by the applicant, must be signed by the applicant, the question is was it or was it not?

PN409

MR PEARCE: Yes. That is right. In my respectful submission it wasn't.

PN410

THE VICE PRESIDENT: No. I follow that.

PN411

MR PEARCE: Thank you.

PN412

THE VICE PRESIDENT: All right. Thank you both for your submissions . I will reserve my decision on this.

ADJOURNED INDEFINITELY [12.46pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs