C2004/6727, Transcript of Proceedings [2005] AIRCTrans 459 (23 February 2005)

1800 534 258

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 10475

VICE PRESIDENT ROSS

C2004/6727

s.81 appeal from registrar to commission

APPEAL BY WYER, MARTIN AND ANOTHER
(C2004/6727)

SYDNEY

10.17AM, WEDNESDAY, 11 FEBRUARY 2004

PN1

MR J PEARCE: I seek leave to appear on behalf of the appellants.

PN2

MR P COLEMAN: I seek leave to appear on behalf of the respondents, together with MR S SIVA of counsel.

PN3

THE VICE PRESIDENT: Thank you. Leave is granted in both cases. I have had the opportunity to read the submissions filed. I have prepared a background document, which my associate will now give you, which sets out my understanding of how the proceedings came to this point, and a summary of the arguments you have advanced under each of the grounds of appeal. Can you read that? It might expedite the proceedings this morning. I have got some questions for you in relation to a number of the grounds, but it might be helpful if you just take a minute to read through it, and you can correct any misapprehension I might have.

PN4

MR PEARCE: Your Honour, perhaps just while we are still absorbing that, I have some submissions in reply.

PN5

THE VICE PRESIDENT: No that's fine. I thought I would deal with them separately. I would be grateful if I could read those now to save some time.

PN6

MR PEARCE: Yes, that's right, yes. They're only very short. I should perhaps provide to your Honour, a copy of that decision ..... as well.

PN7

THE VICE PRESIDENT: Yes, thank you. I was going to ask you about - it's not referred in your submission, but it's advanced in your no case argument, or a copy of Kempe's case, the 1942 -. If you don't have it, it's not - - -

PN8

MR PEARCE: I can make it available to you, your Honour.

PN9

THE VICE PRESIDENT: Yes, thank you.

PN10

MR PEARCE: I will just have a look to see if I have got it. I think it was provided in the form an extract from Words and Phrases Legally Defined, so I could hand you that.

PN11

THE VICE PRESIDENT: What's the report?

PN12

MR PEARCE: Probate Reports or something. I can arrange to get a fully copy of these.

PN13

THE VICE PRESIDENT: Yes, I think I would probably prefer the full copy.

PN14

MR COLEMAN: Your Honour at the time that that case was referred to, I did take steps through my chambers' library to obtain a copy. I don't have it with me, but I do have it back in chambers.

PN15

THE VICE PRESIDENT: That would be great, thanks. As I say, I don't really need to look at it now Mr Coleman, but I am interested to read it. Have you each had a chance to read through it?

PN16

MR PEARCE: Yes.

PN17

MR COLEMAN: Yes.

PN18

THE VICE PRESIDENT: Is there are any corrections or anything you wish to - I realise it might not set it out too much as fully as - - -

PN19

MR PEARCE: No. Can I say that paragraph 2, I don't know - I wouldn't want it to be - Mr Wyer is an officer of the federal union, there is no doubt about that, but I wouldn't want it to be said that Mr Glass is an employee of the federal union. We haven't called any evidence on that yet.

PN20

THE VICE PRESIDENT: No. It's just that it appeared in, I think DR Jenkins's, one of the earlier decisions. They were described in that way.

PN21

MR PEARCE: Yes.

PN22

THE VICE PRESIDENT: So that's an issue of some contention?

PN23

MR PEARCE: Yes, I think so, yes. Because we haven't gone into any evidence.

PN24

THE VICE PRESIDENT: No. So Mr Glass is alleged to be an employee of the union?

PN25

MR PEARCE: I think that's probably right.

PN26

MR COLEMAN: He is certainly alleged to be a permit holder, and I don't think that's in issue.

PN27

MR PEARCE: No.

PN28

MR COLEMAN: His status with the union is not something that we would see as anything relevant to the proceedings.

PN29

THE VICE PRESIDENT: Well that's true, yes. It's whether he is a permit holder or not, presuming that it is important.

PN30

MR PEARCE: Yes, I think that is right.

PN31

THE VICE PRESIDENT: Yes, all right.

PN32

MR PEARCE: It may be relevant to the proceedings, but anyway.

PN33

THE VICE PRESIDENT: Yes.

PN34

MR PEARCE: Now, the other thing was paragraph 15, and this is an error that's probably a mistake of mine.

PN35

THE VICE PRESIDENT: I suppose, I mean, it's not of a lot or relevance to these proceedings.

PN36

MR PEARCE: No. Paragraph 15, and this I think is a mistake of my outline. In paragraph 12 of my outline I refer to Coal and Allied Operations, and then I say, re Colvan. I really should have said, but see F re Colvan, because in paragraph 15 of Coal and Allied - - -

PN37

THE VICE PRESIDENT: Well, it will be better as section 45, Coal..

PN38

MR PEARCE: That's right. Coal was distinguished.

PN39

THE VICE PRESIDENT: Yes.

PN40

MR PEARCE: And I think on a reading of section 81, where in fact I submit we are in the Coal and Allied territory rather than in the Coal and Brideson territory, so it should have really been, but see F. It's paragraph 15, I think where - - -

PN41

THE VICE PRESIDENT: Is there any issue about the test, that to succeed error has to be established? It wasn't taken in the, or I didn't pick it up in the submissions filed by the respondent, but is there an issue about the nature of the appeal?

PN42

MR COLEMAN: No, your Honour, not from our point of view. If error is found then it may be corrected on appeal as we see it.

THE PEARCE: And that is the submission.

PN43

THE VICE PRESIDENT: Yes, all right. Anything further in relation to the document?

PN44

MR COLEMAN: From my point of view, your Honour, a quick reading of it, with respect, it's a fair summary of the case we would put, but I will just note though that the matters raised in our written submission under G, the heading G Other Matters.

PN45

THE VICE PRESIDENT: Just bear with me for a moment. Which?

PN46

MR COLEMAN: My written - - -

PN47

THE VICE PRESIDENT: Yes, I am sorry.

PN48

MR COLEMAN: Yes. There it's put that the earlier submission put to the DIR, Deputy Industrial Registrar, that amendment wasn't necessary, that would be a finding open to your Honour in these proceedings, and the alternative application under the regulations in addition to dealing with the appeal or instead of, if the matter could be dealt with through that route, we would ask the Commission to do that.

PN49

THE VICE PRESIDENT: Yes, I see. I suppose in some ways it goes to the heart of the issue between you, and that is whether the word application in the context of section 205(3) refers to the proceedings and not just to the initiating document. If it's just to the initiating document, which is what you contended at first instance, then there would be no need for an amendment and the proceeding could have continued.

PN50

MR COLEMAN: Indeed.

PN51

THE VICE PRESIDENT: On that basis though you would ask me to uphold the appeal and quash?

PN52

MR COLEMAN: We would ask your Honour just simply not to give leave to appeal.

PN53

THE VICE PRESIDENT: Yes, I see.

PN54

MR COLEMAN: On the basis that the matter that is appealed simply wasn't necessary.

PN55

THE VICE PRESIDENT: Yes, I see. So it wasn't necessary for him for the reasons he gave, he had power to amend in any event.

PN56

MR COLEMAN: Yes.

PN57

THE VICE PRESIDENT: And hence there is no error that would warrant correction on appeal.

PN58

MR COLEMAN: Indeed.

PN59

THE VICE PRESIDENT: Yes, I see. Okay.

PN60

MR COLEMAN: And then further, your Honour, the second proposition put under Other Matters is that the Commission has power to dispense with the procedural requirements of the regulations, and the Registrar doesn't expressly have that power, but the Commission does. In my submission the Commission - - -

PN61

THE VICE PRESIDENT: I think the Registrar has that power.

PN62

MR COLEMAN: Under a previous version of the regulations - - -

PN63

THE VICE PRESIDENT: Under regulation 129.

PN64

MR COLEMAN: Your Honour is correct.

PN65

THE VICE PRESIDENT: I suppose your argument may be, is it a procedural requirement?

PN66

MR PEARCE: Yes. Just approaching the same argument from a different angle, yes.

PN67

MR COLEMAN: In our submission it is clearly, because the Act sets out the power to evoke and refers to the regulations for how you go about initiating and activating that power. In that sense it is procedurally - - -

PN68

THE VICE PRESIDENT: Well, doesn't it deal with who has standing to initiate the proceedings? Isn't that the instance of the regulation 109 proceeding?

PN69

MR COLEMAN: It certainly sets out who may make application, but that's procedural, and the Commission's power to revoke a permit is insubstantial, I would think.

PN70

THE VICE PRESIDENT: That's right. As to who may make the application, isn't that really - well couldn't be argued it's more a substantive position? What about, take unfair dismissal areas as an example, an employee may make an application. You can't waive the procedural requirement and let an independent contractor, for example, make the application.

PN71

MR COLEMAN: On that example an independent contractor wouldn't have a case within jurisdiction.

PN72

THE VICE PRESIDENT: Yes, I see.

PN73

MR COLEMAN: But the regulations could provide, for example, for the Commission to exercise its jurisdiction on its own motion, but it hasn't done that, but it's procedural. It's just how the Commission gets a matter before it, that's procedural in nature rather than substantive. And the fact that it's left to the regulations to deal with it is another indicator, in my submission, that it's procedural and not substantial or substantive in nature.

PN74

THE VICE PRESIDENT: Well, I am not sure that is a strong point. The Registrar's powers are dealt with in the regulations.

PN75

MR COLEMAN: Some of them.

PN76

THE VICE PRESIDENT: Yes. No, I see what you say about the powers as are necessary.

PN77

MR COLEMAN: The Registrar's substantial powers or revocation are dealt with in the Act itself.

PN78

THE VICE PRESIDENT: I know, yes.

PN79

MR COLEMAN: And I am probably repeating myself, but as I submitted before, the reference to the regulations is purely as to how and by whom that can be dealt with, and the Commission, in my submission, has power to, ie. strict compliance with those procedural matters.

PN80

THE VICE PRESIDENT: Yes. Well, it might be convenient to mark the submissions that have been filed.

EXHIBIT #A1 APPELLANT SUBMISSIONS
EXHIBIT #A2 APPELLANT SUBMISSIONS
EXHIBIT #R1 RESPONDENT SUBMISSIONS

PN81

THE VICE PRESIDENT: Mr Pearce, how I intended to proceed was to - I have got a number of questions to ask you in relation to your submission and some of those touch on being the submissions raised by the respondent in reply, and perhaps you can deal with them that way, and I have read your reply submission, and I think I have only got one or two questions in respect of that. Did you want to make a short oral argument, or perhaps you might - or would you prefer to do that after the questions, or how would you like to?

PN82

MR PEARCE: No. I had one point I wanted to make in oral argument, and apart from that I am, especially having seen that you have obviously read all the material, and I don't intend to actually go into anything in my written submissions unless you want to ask me any questions. But I wanted to make an observation in opening on the appeal that a permit holder under the Act holds a public office, and that's reinforced by your own decision which my learned friend has relied on in, I think it's called re CFMEU, which is print PR935310, paragraphs 18 and 19, where you quote from the decision of - -

PN83

THE VICE PRESIDENT: Munro J.

PN84

MR PEARCE: - - - Munro J, that:

PN85

Permit holders exercise a power that causes them to be exercising a public right and duty.

PN86

So a permit holder is a public office. The second point, observation I wanted to make is, that in the light of the High Court's reasons in Rich v ADSIC, I don't think it can be doubted that an action under section 285A(3) to revoke a permit, is an action for exposure to a penalty.

PN87

THE VICE PRESIDENT: What flows from that?

PN88

MR PEARCE: Can I say that derives from paragraph 26 to paragraph 30 of the decision where it talks about exposure, particularly paragraph 28, where it talks about exposure to loss of office is exposure to a penalty or forfeiture. Now what flows from that is this. The High Court's observations in Rich about privilege against exposure to penalties or exposure to forfeitures, are equally apposite to these proceedings, and those observations are at paragraph 24 where this is said. They're discussing the actual privilege, and they say, about halfway through that paragraph:

PN89

As was further pointed out in the joint reasons in Daniel Corporation the privilege against exposure to penalty now serves the purpose of ensuring that those who allege criminality or other illegal conduct should prove it.

PN90

And that's the point I wanted to make. But undoubtedly in these proceedings section 285A(3) requires satisfaction by the Commission of criminality or other illegal conduct, and the High Court took great pain to emphasise, albeit in relation to the discussion of the privilege against exposure to penalty, that it's fundamental in proceedings of this nature that those who make those allegations should prove it. And I think that that's a very important part of the background of these proceedings.

PN91

THE VICE PRESIDENT: On what standard of proof?

PN92

MR PEARCE: In these proceedings the standard is obviously a civil standard, but it would be Briginshaw standard.

PN93

THE VICE PRESIDENT: Yes.

PN94

MR PEARCE: We won't go there.

PN95

THE VICE PRESIDENT: It's already complicated enough, let's not go into that.

PN96

MR PEARCE: Yes. But for those it's not a - these are - I have called them quasi criminal proceedings, and I don't, you know, a lot of people would cavil with that description, but they are quasi criminal proceedings and they should be approached in that way, and it is for the applicant in the proceedings to prove the criminality or other illegal conduct. That was the only other observation I wanted to make. And in my view what is said in Rich, albeit in the context of privilege against exposure to penalty, reinforces again that fundamental view of the common law.

PN97

THE VICE PRESIDENT: I understand your argument. I am not sure how it bears on the appeal.

PN98

MR PEARCE: Well, I think what I am saying is, that in questions, albeit this may be considered to be a technical objection or a type of technical argument, it nevertheless, in proceedings of this nature, the Commission should be strict.

PN99

THE VICE PRESIDENT: Yes, I see.
.
MR PEARCE: Now, that's all I wanted to say ,

PN100

THE VICE PRESIDENT: All right, thank you.

PN101

MR PEARCE: Apart from what's in the written application and in the reply.

PN102

THE VICE PRESIDENT: Can I take you to, really in relation to ground three, this is the no power to amend point. I have taken as part of that argument to be that really the argument you advance before the Deputy Industrial Registrar in respect to your no case submission, that is, that - and the point that I touched on with Mr Coleman, that you are saying that the word application in section 285(3) means that a proceedings is not just the initiating a piece of paper, and as a consequence of that, there is no power to amend because the application is a nullity. Once Mr Lutz, once his status changed and he wasn't an inspector, the application became a nullity at that point because the application refers to, not just the initiating process, but the fact that you are pressing the application in proceedings. Is that - - - ?

PN103

MR PEARCE: That is right, and there was no applicant.

PN104

THE VICE PRESIDENT: I am sorry?

PN105

MR PEARCE: There is no applicant.

PN106

THE VICE PRESIDENT: Yes.

PN107

MR PEARCE: Notwithstanding before - under the regulations to agitate for
the - - -

PN108

THE VICE PRESIDENT: Yes. Another point was in relation to intervention. What do you say about the respondent's alternative submission, that it's relying on the general power in section 75(2)(b) of the Act? If opposition advanced there is that, well, the respondent's case is really that this was a procedural amendment, there was no need to grant leave to intervene, there wasn't an application for intervention. In the alternative, if there was, well he dealt with it, he granted leave to intervene and he had power to do so, and the power to do so derives from section 75.

PN109

MR PEARCE: And the response that we made, apart from saying that - - -

PN110

THE VICE PRESIDENT: Where did you - you've made it, but I must have missed it.

PN111

MR PEARCE: Sorry in relation to - it's that if there is power - it's in paragraph 14 to 16.- - -

PN112

THE VICE PRESIDENT: Yes, I see that. I see, that is your response to - - -

PN113

MR PEARCE: Yes.

PN114

THE VICE PRESIDENT: Do I take it you are not - well, you probably are - - -

PN115

MR PEARCE: I am, yes.

PN116

THE VICE PRESIDENT: - - - cavilling with the point. But if the point is right, you say in any event it's read down?

PN117

MR PEARCE: It must be read down by, in circumstances where the regulations make specific provision for who can appear and agitate, and in what circumstances they can appear and agitate for the removal of a permit. And the decision - - -

PN118

THE VICE PRESIDENT: But even though the regulations define that, the requirements of procedural fairness would require you to grant leave, hence you must have the power to do so, to a person whose rights and interests were affected.

PN119

MR PEARCE: Well, I suppose we are jumping around. The fundamental answer that I - if my learned friend be right and there is power to grant leave by the Registrar, then the answer is that it's a power that is constrained in accordance with the sort of normal principles of statutory construction to grant leave to those who are - in this case because we are talking about someone actually agitating the action, it's limited to those who meet the statutory test in the regulation. And in that FIME case, that was a case about the amalgamation provisions and your Honour would probably recall that over a period of time, who may appear and what may be said in opposition to amalgamation has got smaller and smaller in the Act, and the discussion in that decision is quite apposite to also construing this particular provision as well. And it turns on that High Court decision in Downey and earlier decisions in relation to statutory constructions. Now, sorry, then you were asking me - - -

PN120

THE VICE PRESIDENT: I am just wondering if the cases you have referred to, or the FIME one is, on your list as well? I suppose the answer will be in there.

PN121

MR PEARCE: It is. It's a decision of Deputy President Moore, Harrison and Commission Simmons, and it was in one of the skirmishes around, I think the amalgamation of FIME, the formation with the carpenters and joiners, and the party that was skirmishing with them, it was not surprisingly the forerunner of the CFMEU I think.

PN122

THE VICE PRESIDENT: Yes. The more things change.

PN123

MR PEARCE: Yes. And there was a limitation on who could appear, which was in the old section 251 of the Act, that's at page five in the print, and what submissions could be made by those who could appear, and the general power. And here we were in the Commission, not with the Registrar. The general power to grant leave which the Commission has was written down and construed in the circumstances of this case in the light of the specific provisions of the Act. As we would say, if there is a power, it should be written down and construed in the light of the provisions of the regulation.

PN124

But we say it's significant that the general line of authority about the grant of leave to non-parties to appear, is that it's in courts. And this is picked up in the authorities I have given you, such as Ludeke. It's not generally available, it's an exceptional power that has been granted to the Commission for reasons that are set out in those judgments and are otherwise obvious, and it's significant that the same exceptional power wasn't granted to the Registrar, but maybe. And can I say my learned friend relies on your decision in re CFMEU on granting leave to intervene, but one has to remember that those proceedings were in the Commission where the power - these proceedings were before the Deputy Industrial Registrar.

PN125

THE VICE PRESIDENT: Just in relation to ground five, you do deal with this in your reply, but I had read ground five as going to having, if you like, three elements to it. You were denied procedural fairness on, well, the first two elements on two bases, the right to be heard and the right to have the case put considered. As I understand, and the third point goes to reasons - - -

PN126

MR PEARCE: That's right, yes.

PN127

THE VICE PRESIDENT: As I understand your reply, ground five is not directed to the right to be heard.

PN128

MR PEARCE: No.

PN129

THE VICE PRESIDENT: I don't think you are advancing the proposition that you were denied a right to be heard. What your submission is, that the case put wasn't considered and that the reasons are inadequate in that they don't address the argument that was advanced. Is that it?

PN130

MR PEARCE: Yes, that's right, it's put on that basis, and at the end of the day presumably it will be cured on appeal.

PN131

THE VICE PRESIDENT: Yes. Well that was all I had for you for the moment Mr Pearce. Mr Coleman, can I just raise two matters with you, and obviously give you an opportunity to say whether you wish, in relation to the points on which you want to reply, in respect of ground three at paragraph 21 you advance the, what I will refer to it as the absurdity argument, if you like, but it would run this way. That there has been six days of hearing, all the evidence is in from your perspective, and as a matter of practicality a conclusion that the Deputy Industrial Registrar did not have power to make the amendment would result in the need to file a fresh application. Why is that a particular problem for you?

PN132

MR COLEMAN: Depending on what happened after that application was filed, I mean, it could raise - there could be all sorts of arguments raised by the respondents as to whether that should be heard.

PN133

THE VICE PRESIDENT: Whether what should be heard?

PN134

MR COLEMAN: A fresh application should be heard.

PN135

THE VICE PRESIDENT: Why wouldn't it be heard?

PN136

MR COLEMAN: Well, prima facie it would be, but the Act does give the Commission a power to - a discretion not to hear matters.

PN137

THE VICE PRESIDENT: Gives the Commission a discretion, but this would be a matter heard by the Registrar.

PN138

MR COLEMAN: Secondly, there's a great deal of time being spent by the parties, time and resources by the parties in putting evidence forward.

PN139

THE VICE PRESIDENT: But why can't that evidence be relied on in the subsequent application?

PN140

MR COLEMAN: Well, if we were forced to bring a new application, then certainly we would be making that application, but it would be, I assume, resisted by the respondents to those new proceedings.

PN141

THE VICE PRESIDENT: In relation to ground four at paragraph 22, this is the issue about the amendment being procedural in nature, you will recall, and I think you relied on Rowe's case in the no case to answer proceedings, and my recollection was the Deputy Industrial Registrar distinguished Rowe's case on the basis of either dealing with a persona designata, whereas here we are dealing with a personal office if you like.

PN142

MR COLEMAN: Yes.

PN143

THE VICE PRESIDENT: The holder of a permit as opposed to the employment advocate, which has some statutory status. Are you suggesting that the inspector is a persona designata for this purpose?

PN144

MR COLEMAN: Certainly before the Deputy Industrial Registrar that was the suggestion, that it is just an office holder.

PN145

THE VICE PRESIDENT: I am sorry to interrupt, but the transcript reporter is having some trouble picking you up, as I think the microphone is in front of the lectern, so if you wouldn't mind either speaking up or leaning forward or contorting yourself in some way to get closer to the microphone.

PN146

MR COLEMAN: The purpose of referring to Rowe's case was to make that suggestion to the Deputy Industrial Registrar, that it is essentially a nominal position.

PN147

THE VICE PRESIDENT: Yes. No, the reason I ask whether you are pressing it here is, as you would have seen from the appellant's argument as to power, their argument essentially is still the argument advanced at first instance, and that is the application became a nullity once the applicant ceased to be an inspector. And if that's right, if that's the correct legal analysis, then the consequence, it would seem, to flow from that was there's no power to amend because there's no application. So do I take it that you resist that construction here, or do you say that it's not right that there is no application even if the appellant is right about the proposition that the application couldn't be pressed once the applicant wasn't an inspector?

PN148

MR COLEMAN: The second proposition your Honour, because it is always a valid application to - - -

PN149

THE VICE PRESIDENT: Yes.

PN150

MR COLEMAN: Second to that - - -

PN151

THE VICE PRESIDENT: Is there any authority on - that's the issue that I am finding some difficulty with - is there any authority that deals with this point? I understand Kempe's case, I am not concerned about that.

PN152

MR COLEMAN: A fair bit of research has gone into trying to find support, and the conclusion we have come to is this point taken by Mr Pearce is ..... and hasn't been dealt with, on our research. We couldn't find anything that supported it.

PN153

MR PEARCE: Well it's taken in Rowe.

PN154

THE VICE PRESIDENT: Well, yes.

PN155

MR PEARCE: But not on the same legislative basis.

PN156

THE VICE PRESIDENT: No.

PN157

MR COLEMAN: I mean, the contention we put to the Registrar and on appeal is that there was always a valid application and still is.

PN158

THE VICE PRESIDENT: Was there anything further you wished to put Mr Coleman?

PN159

MR COLEMAN: Just in relation to the case Mr Pearce handed up in rich, the High Court decision in Rich. It just needs to be noted that that case concerned whether a person was required to give discovery in those proceedings, in proceedings under the Corporations Act, and that seemed to turn on whether the nature of the proceedings were an appeal or protective, completely different to the situation here. I think the proper view of the jurisdiction of the Registrar in these proceedings is that a person is given a privilege by the issue of a permit, and the issue for the Registrar is whether that privilege should be removed. It's not being protective in nature, it's administrative, in our submission, and really the Rich case has nothing to do with this case, and anything said by the High Court as to the nature of the proceeding is really irrelevant, in our submission.

PN160

THE VICE PRESIDENT: Right, thank you Mr Coleman.

PN161

MR COLEMAN: Sorry your Honour, just the other side of that is that my friend again referred to these proceedings as being quasi criminal in nature. They are not, they are nothing of the kind. They are administrative in nature, as is made clear by the fact that this isn't a court, this is a Commission and jurisdiction is with a Registrar of the Commission. It makes it absolutely clear that this case is administrative in nature, not criminal, not partly criminal. Certainly the applicant has to make out a case, but it's not a criminal case and nothing like it.

PN162

THE VICE PRESIDENT: Mr Pearce can I just ask you in relation to the absurdity argument, what do you say to the proposition that the fresh application - is the answer to that, well, no because the practical problems alluded to by the respondent don't arise, there is a power in regulation 130 to use evidence in previous proceedings, there is a limited basis of objection to that evidence, essentially that the objector wasn't present or party to the earlier proceedings. Why couldn't a fresh application be lodged and the evidence that's been given in these proceedings relied on?

PN163

MR PEARCE: I would like to keep my powder dry on that, if I may, because it's not in these proceedings. I mean, plainly a new application can be made, assuming that the inspector has the requisite state of mind.

PN164

THE VICE PRESIDENT: Yes.

PN165

MR PEARCE: Or somebody else, an employer could make the - - -

PN166

THE VICE PRESIDENT: Yes.

PN167

MR PEARCE: There was a couple of things I wanted to say in reply. In the reference in paragraph 1 of the reply to what was said by Ms Siciliano, is really - the submission that's being made there again is that the Commission should be strict in these proceedings. I remember 30 years ago when I first came here, I was sent up to do something in the Commission and I said , well, what about the power and what about that? And I was told, don't worry about that, you just tell them the story and the Commissioner will sort it out.

PN168

THE VICE PRESIDENT: What a refreshing attitude.

PN169

MR PEARCE: But there may be still an element of truth in that, but not in these sort of proceedings. I think the submission is that we have to be strict. The only other observation I was going to make is that the point was taken in Rowe, and it's exactly - the distinction between Rowe and these proceedings is quite apposite because there you had a sort of a corporate body with a continuing existence regardless of who was in it. Here, they are inspectors, but they are personal appointments.

PN170

THE VICE PRESIDENT: Yes. But does it follow from that, that the Court was saying it was only where there is a corporate body with a continuing existence that you could substitute the name of the party?

PN171

MR PEARCE: The Court said it's a matter to construe the statute, but I think it does follow from Rowe that you have to have some sort of - either that or you have to have an intention in the statute that someone can be substituted, which would usually be an explicit provision. I mean, I can't give you examples, but there are provisions in various criminal legislation as I understand it, you know, to substitute one prosecutor for another, but they are specific provisions and they are applicable in certain circumstances.

PN172

THE VICE PRESIDENT: Where a police officer is the informant.

PN173

MR PEARCE: If he dies or something like that, yes.

PN174

THE VICE PRESIDENT: Yes.

PN175

MR PEARCE: There are, but they are all specific statutory provisions which we don't have here.

PN176

THE VICE PRESIDENT: Well, should you come across those in the next short time and a copy of Kempe's case I would be assisted by those. If you do refer to the criminal statutory provisions you have mentioned, then if you could provide a copy to Mr Coleman and leave will be given to make whatever comment either of you wishes to make. Just while you are there, Mr Pearce, paragraph 3 of your reply, you say:

PN177

It's significant no such amelioratory rules have ever been adopted in relation to proceedings in the Commission.

PN178

MR PEARCE: Yes.

PN179

THE VICE PRESIDENT: Do you mean - I am not sure. Well, there is a general power to amend or rectify in section 111.

PN180

MR PEARCE: As do all courts have.

PN181

THE VICE PRESIDENT: Yes.

PN182

MR PEARCE: And it's always been construed there's not been a power to change the nature of the applicant and substitute a new party.

PN183

THE VICE PRESIDENT: Are you saying section 111 has been construed that way?

PN184

MR PEARCE: I am saying that generally that power is in relation to courts and tribunals has been construed that way, yes.

PN185

THE VICE PRESIDENT: And the three cases you cite are examples of that, is that the proposition?

PN186

MR PEARCE: Well, the three cases that I cite, and then a trend developed in the law that there may be a need to be able to amend the names of the parties in certain circumstances, so they brought in amelioratory rules in the court, but even those have been construed so as only to enable that to occur in certain circumstances, and this is not such a circumstance and I don't understand why my learned friend has submitted that way. But that's never happened to the Commission rules.

PN187

THE VICE PRESIDENT: Well, Mr Coleman submits that there is no general principle.

PN188

MR PEARCE: Well, I think the High Court makes it clear that there is.

PN189

THE VICE PRESIDENT: In which authority?

PN190

MR PEARCE: Bridges. And then they discuss how the exception can be made to it and - yes, it's an interesting historical discussion of how they changed the rules here and then they changed them in the Federal Court in Australia - I think it's a Victorian court actually.

PN191

THE VICE PRESIDENT: I think in the Commission context the only example I am aware of is where those, it was a seaman's case, or merchant service guild case around the `40s where it was dealing with parties' misdescriptions et cetera.

PN192

MR PEARCE: Yes, misdescription in an award. And it was held that you could - this was in that MEU case that I have given you - the applicant was the state branch of the federally registered union, but they said, well, you could see clearly enough the applicant was a federally registered union. But this is not such a case like that. Yes, I think it's a decision in the `20s actually.

PN193

THE VICE PRESIDENT: Yes, it could well be, it's certainly some time ago. I know it was in the maritime area, but that's about the extent of my recollection.

PN194

MR PEARCE: And there is a sort of contrary, or a slightly contrary authority in relation to the commonwealth public sector. The name escapes me, a High Court decision that - anyway, I don't think too much turns on this.

PN195

THE VICE PRESIDENT: Okay, thank you. Is there anything further? Thank you for your written submissions and the assistance you have given this morning. I will adjourn and reserve my decision, and I will have regard to whatever additional - or at least in relation to that narrow point, that is, the criminal proceedings, the express power to substitute a prosecutor. And I would be assisted if either one of you could provide a copy of Kempe's case. Thank you, I will adjourn.

<ADJOURNED INDEFINITELY [11:06AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A1 APPELLANT SUBMISSIONS PN80
EXHIBIT #A2 APPELLANT SUBMISSIONS PN80
EXHIBIT #R1 RESPONDENT SUBMISSIONS PN80