100316170

WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATE’S COURT

PARTIES JOSE ROGELIA R ACOSTA

CLAIMANT

 -v-

 GERRY BRODERICK   

    FIRST RESPONDENT

 AND

 BRYAN STOKES

SECOND RESPONDENT

CORAM MAGISTRATE G CALDER

DATE FRIDAY 28 MARCH 2003

CLAIM NO/S M 200 OF 2002

CITATION NO. 2003 WAIRC 07998

_______________________________________________________________________________

Representation

Claimants Mr B Stokes appeared on his own behalf and as agent for the First Respondent (the Applicants in the interlocutory application)

Respondent Mr S Kemp (of Counsel) appeared on behalf of the Claimant (the Respondent in the interlocutory application)

_______________________________________________________________________________

THE PROCEEDINGS

1         On 6 August 2002 Brian Francis Stokes (“Stokes”) filed an interlocutory application in the Industrial Magistrate’s Court.  The application, as lodged, sought that the following orders be made, namely:

“DISMISS/STRIKE OUT/SET ASIDE CLAIM OF RESPONDENT FILED 18 JUNE 2002 ON GROUNDS OF

(1) OUT OF TIME;

(2) FUNCTUS OFFICIO;

(3) AGAINST PUBLIC INTEREST;

(4) INSUFFICENT MERIT.”

2         On 27 September 2002 I added, as a joint Applicant, Gerry Broderick (“Broderick”).  Broderick had been named as a Respondent in a claim filed in the Court on 18 June 2002 by Jose Rogelio Aguilera Acosta (“Acosta”).  I will hereinafter refer to that claim as the “subsequent claim” in order to distinguish it from what I will also hereinafter refer to as the “original claim” that was lodged by Acosta during 2001 and which was the subject of a decision dated 3 September 2001, and published by the Registrar of the Western Australian Industrial Relations Commission (“the Registrar”) on 3 September 2001.

3         In referring to the matters, which have been lodged in the Court, I have used the term “claims”.  In so doing I have merely adopted the description used by the parties, which is the heading on the forms that are used, the forms used being those prescribed for the purposes of the Industrial Magistrates’ Courts (General Jurisdiction) Regulations 2000 (“the GJ Regs”).  In the GJ Regs “claim” is defined as meaning “an application made under regulation 19 …” of the GJ Regs (which is an entirely different regulation to regulation 19 of the Industrial Relations (Industrial Agents) Regulations 1997 (“the IA Regs”)).  Regulation 19 of the IA Regs was the subject of considerable argument before me in the present proceedings.  Regulation 19 of the GJ Regs is of no relevance.

4         At the commencement of the hearing before me on 6 November 2002 Mr Stokes (who was representing both himself and Broderick) agreed that the matter of whether or not there should be orders made that the subsequent claim be dismissed or stuck out or set aside because it was against the public interest or because it had insufficient merit were not issues which needed to be decided at that hearing (transcript page 157).  I therefore proceed in this decision upon the basis that I am only considering issues raised in respect of grounds 1 and 2 for which the orders were sought in the interlocutory application.

5         On 5 November 2002, Mr Kemp lodged an application on behalf of Acosta.  In that application Acosta seeks an order:

“That, to the extend (sic) necessary, the claimant be and is hereby given an extension of the applicable time period within which to bring these proceedings.”

6         That application was supported by an affidavit sworn by Acosta in which he sets out his recollection of things, which have occurred relating to his original claim and subsequent claim against Broderick and Stokes.  It was agreed at the commencement of the hearing before me on 6 November 2002 that, pending my decision in respect of the issues which I was being asked to decide in that hearing, I need not give a decision on Acosta’s application for an extension of time.

PROCEDURAL HISTORY

The Original claim

7         On about 30 May 2001 the Registrar received a letter dated 29 May 2001.  The letter begins with a heading, namely:

“Re: 1892/00. JOSE ROGELIO AGUILERA ACOSTA/ALLBEND ENGINEERING.”

8         The first paragraph of the letter begins:

“My name is Jose Aguilera…”

9         There is a signature at the foot of the letter underneath which signature appears the words “Jose Aguilera”.  I am satisfied that the letter was signed by Acosta and forwarded by or on behalf of Acosta to the Registrar.  In the letter there are seven separate complaints, all of which were accurately reproduced in the Registrar’s decision of 3 September 2001.  The first paragraph of the letter continues and says:

“… the reason to (sic) my letter is that on Tuesday 06 February I employed

Mr Gerry Broderick to acted (sic) for my case, and after, I was advice (sic) by him to employed (sic) Mr Bryan Stokes which I believed (sic) both failed to (sic) the Code of Practices.”

10     It was common ground between the parties before me that the Registrar made it known to Acosta that, if he wished the Registrar to deal with his complaints it was necessary to set out those complaints in the form of a statutory declaration. As a consequence, Acosta lodged a statutory declaration said therein to have been declared “at Bayswater this 17 day of July 19 …”.  No year was inserted at the time when the document was declared before a Mr TC Crossley, a Commissioner for Declarations.  Despite that omission, it would seem to me that, if the Registrar was empowered, in the circumstances, to deal with the original claim from Acosta based upon the material contained in the statutory declaration, and, if he intended to do so, that he would be entitled to proceed upon the basis that, for the purposes of regulation 12(4) of the IA Regs he could accept the document as constituting a complaint in the proper form.

11     Inferences that I draw from the facts which were placed before me at the hearing are that the document was created after and as a consequence of the Registrar communicating to Acosta that any complaint had to be in the form of a statutory declaration and that it was received prior to the publication of the Registrar’s decision on 3 September 2001, the Registrar having dealt with it for purposes of his decision as if it was a valid complaint made under the IA Regs which and as if he was lawfully authorised to deal with under the IA Regs.

12     In the statutory declaration of 17 July, Acosta said that his letter of 29 May 2001 to the Registrar, which was attached to the statutory declaration, formed part of his statutory declaration.  He also states his belief that:

“… the Industrial Agents … have breached clause 3(1)(4)(5)(6) “Business Integrity and Dilligence (sic)”.  Clause 4(1) Confidentiality.”

13     In the course of enquiring into the allegations made by Acosta, the Registrar sought from Broderick and Stokes written responses to the allegations.  Both agents responded.  Their responses were in the form of statutory declarations.  It is unnecessary for me to refer to the particulars of those responses.  It is sufficient for me to simply say that each agent denied all allegations made against that agent.

The Registrar’s Decision of 3 September 2001

14     The Registrar, Mr Spurling, gave consideration to the original claim of Acosta and to the responses to that claim which had been provided to him by Broderick and Stokes.  On 6 November 2002, at the hearing before me, the Registrar gave evidence about the manner in which he had dealt with Acosta’s original claim.  I will refer to that evidence in due course.  The decision of the Registrar following his consideration of the original claim of Acosta sets out in some detail the nature of the complaints made against Broderick and Stokes as registered industrial agents.  The Registrar’s decision notes that the complaint of Acosta was lodged in the form of a statutory declaration and that Acosta lodged it on the basis of his having been a client of Broderick and Stokes as industrial agents.  The Registrar noted that it was alleged that the agents:

“…have breached clause 3(1)(4)(5)(6) ‘Business integrity and diligence’.  Clause 4(1) Confidentiality”.

15     In his reasons for determination the Registrar has said that he set out each complaint made against Broderick and Stokes by Acosta in “the exact words used by the complainant”.  The following are the complaints as set out by the Registrar in his determination:

“1. I was not provided with a Schedule of Fees. I received the first invoice No: 232 $1496.25 and the second no: 238 $1545.20 I was told that my account will be a $95 ph; and that if we going to the Court, the end payment will be not more than $5000; we never discussed any regular payments; even though we were asked for some money in advanced; the rest was agree to be pay, when the case finished.

2. Mr G. Broderick advised me that if we were going to court we need to be representing well; therefore his Co-partner Mr B. Strokes was a criminal law lawyer and now was practising industrial Law.

3. I believed Mr Stoke was not looking after my interest when he fail to informed the Industrial Relations Commision (sic); Chief Commissioner Mr S W Coleman of the absentee witness; and fail to informed me of the importance of their presence;

4. Mr Stoke fails to inform me in open and frank manner about his concerns of the case.

5. I also believed he did breach my confidentiality; Mr Stoke make comments about me and my case with one of my witness Mr Mc. Mullen, on the day of the court hearing He also mentioned to him that the case was getting difficult and he will need to settle.

6. Mr Stoke caused significant harm to my case because he treated us to withdraw on the day of the court hearing, leaving us without any choice than accept an offer that I did not want it. I went to see Mr Terry Crossley and I found out that maybe I am legally bind by that offer; he is now act as our agent.

7. Mr Broderick and Mr Stoke are treated us to summons if we not settle their account of $3000; they decided at this total on the day of the court; so they pressure us to accepted the offer.”

16     In respect of the complaint concerning fees, the Registrar concluded that there had been no failure on the part of either agent to properly advise Acosta that fees would be charged and, further, that the rates at which fees would be charged was also provided to Acosta.

17     In respect of the second complaint, the Registrar concluded that he did not accept that there was any actual or intended dishonest representation concerning Stokes’ legal qualifications or experience, which caused Acosta to instruct Stokes to act on his behalf as an industrial agent.

18     Concerning the third complaint, Mr Spurling discussed the practices of the Commission in respect of remote witnesses, noted the difficulties which had occurred in respect of arranging for witnesses for Acosta to appear before the Commission and noted what had happened concerning the suggested use of a telephone link up to have such witnesses give evidence before the Commission.  He then concluded that the actions of the agents in that regard did not constitute a breach of the code of conduct which appears in Schedule 1 of the IA Regs.

19     In respect of the fourth complaint, the Registrar concluded that there was no basis for it.

20     With regard to the complaint that Stokes had breached his duty of confidentiality towards Acosta, the Registrar stated that he did not accept that the agent breached any confidentiality of the nature alleged by Acosta.

21     Concerning the sixth complaint, namely, the conduct of Stokes in respect of the ultimate settlement of the claim of Acosta before the Commission in which Broderick and Stokes had been instructed by Acosta to act on his behalf, the Registrar concluded that Stokes had not done anything “incorrect”.

22     Concerning the seventh and final complaint by Acosta, the Registrar said:

“I find this part of the complaint completely without foundation”.

23     At the end of his decision of 3 September 2001, under the heading “Summary”, the Registrar said:

“In conclusion I find there to be either no, or insufficient, substance in any of the complaints that would warrant me taking any further action.

In hindsight and with time to contemplate things without the pressures of preparing and presenting a case, language difficulties, finding and briefing remote witnesses and time pressures, I could conclude that the complaint raises issues of inadequate communication or perhaps inadequate understanding of what was being discussed.   However I don’t think that criticism amounts to a conclusion that the Code of Conduct has been breached by either Stokes or Broderick.

Therefore pursuant to regulation 14(4)(a) of the Industrial Relations (Industrial Agents) Regulations 1997 I make a determination and that determination is that there are not sufficient grounds to conclude there is a complaint that requires the action contemplated by regulation 15(3)(b).”

The “Further Decision” of the Registrar dated 16 May 2002

24     On 16 May 2002 Registrar Spurling published a further document.  That document bears the heading:

“INDUSTRIAL RELATIONS ACT 1979

Industrial Relations (Industrial Agents) Regulations 1997

COMPLAINT

by

Jose Rogelio Aguilera ACOSTA

Against registered industrial agents

Bryan STOKES and Gerry BRODERICK

FURTHER DECISION”

25     In that document, which I will refer to as “the Further Decision”, the Registrar begins by making reference to his determination of 3 September 2001.  He said (in the first paragraph) that he had concluded, on 3 September 2001:

“… that the complaints were not of sufficient substances (sic) to warrant further action from me.”

26     He had so concluded, in effect, in the first paragraph of his “Summary” in his decision of 3 September 2001.  The Registrar then noted that, by statutory declaration dated 8 October 2001, Acosta provided him with “more information”.  By “more information” I understand the Registrar to mean that Acosta provided him with material, which had not been given to him before he published his determination of 3 September 2001.  The Registrar has said that he advised Acosta by letter dated 1 February 2002 that:

“… even after examining the later material, I still concluded that there was not sufficient substance in the complaints made.”

27     The Registrar has then recorded in the Further Decision that on 26 February 2002 he met with Acosta and his wife.  It was then said:

“I certainly understood that they were unhappy with the services that had been provided by the 2 agents, but I could not see where either agent had transgressed the conditions under which they were registered.”

In my view, there was nothing in either the letter dated 4 October 2001, or the meeting of 26 February 2002, that caused me to reach any other conclusion.  However I invited the complainant to write to me, … setting out where he thought I had misunderstood or not given sufficient weight to what he had earlier told me, in person or by letter”.

28     The Registrar has then noted that he received a further letter from Acosta on 9 April 2002 which, he said:

“… seemed related to other matters and only indirectly related to his complaint to me.”

29     The Registrar said that he “analysed it in detail” (the letter of 9 April 2002).  He then went on to outline a number of allegations which he said were contained within the letter of 9 April 2002.  Those allegations included one of the forging of a signature by one of the industrial agents in connection with a superannuation matter; there is an allegation of there having been a “cover up” in connection with that same matter; the matter of witnesses who should have been called at a hearing set before a Commissioner was also raised.  The Registrar notes that there is an assertion in the letter concerning an alleged representation by one agent that a second agent (presumably Stokes) was an experienced lawyer but there was no mention that he was a disbarred lawyer.  The letter, it is said by the Registrar, also raises again the circumstances in which a settlement offer, connected with proceedings before a Commissioner, had been dealt with by the agents.

30     The Registrar concluded as follows:

“I reiterate that following a review of a complainant’s letter of 9 April 2002, I am still of the view that I do not see any of the complaints as being of sufficient substance to warrant further action by me under the Industrial Relations (Industrial Agents) Regulations 1997.

The applicant asks that “if the agents are not to be deregistered”, an authority I do not have, they want the opportunity to raise the matter before an Industrial Magistrate.”

31     The Registrar then quoted regulation 16(3) of the IA Regs and continued:

“I am uncertain whether or not my letter of 3 September 2001 would serve as a “certificate” as envisaged by that regulation but I did intend that my letter of 3 September 2001 be “a notice under regulation 14(4)”.  In any event the matter clearly has not been resolved to the satisfaction of the complainant.

If my letter of 3 September 2001 is not a “certificate” as envisaged by regulation 16, then I intend that this present determination be such a “certificate” as I accept that the subsequent letters of the complainant would clearly indicate that the matter has not been resolved to the satisfaction of the complainant.

I make no comment about the time frames mentioned in that regulation as that is a matter for others to decide.”

32     It is to be observed that the Registrar has made no comment in the Further Decision which indicates that either of Broderick or Stokes was notified of the letters of 1 February 2002 and 9 April 2002 or of the meeting of 26 February 2002.  He has made no comment, which in any way suggests that either of Broderick or Stokes were given any opportunity to participate in the course of action taken by the Registrar as set out in the Further Decision dated 16 May 2002.  In the circumstances I infer that they were not made aware of the letters and of the meeting and were not given an opportunity to make any submissions in respect of those matters.

The Subsequent claim

33     On 18 June 2002 Acosta lodged another “claim”.  In doing so he utilised Form 1, an “Approved Form” for the purposes of the GJ Regs (see Industrial Magistrates’ Courts Practice Direction No. 1 of 2001).  The Subsequent claim names Broderick and Stokes as Respondents.  In that part of the form where the Claimant’s grounds may be set out a cross has been placed in a box next to the words:

“Done or failed to do something else (specify)”

34     Those words being contained in the original form.  The Claimant has then, in hand writing, inserted the words:

“Clause 3(1)(4)(5) Business Integrity Clause (1)4 Confidentiality.”

35     In that part of the form where the legislation pursuant to which the claim is made is to be specified, Acosta has written:

“Industrial Relations (Industrial Agents) Regulations 1997.”

36     In that part of the form where the “Orders Sought” may be specified, he has written:

“Be deregistered.”

37     The box next to the words “Pay a penalty to be imposed by the court” also contains a cross.  Attached to the claim is a statutory declaration witnessed on 8 October 2001 and made by Acosta which says that:

“1   The attached letter to the Registrar of the Western Australian Industrial Relations Commission dated 04 October 2001 forms part of my statutory declaration.”

38     He also says that he believes that the industrial agents mentioned have breached clause 3(1)(4)(5)(6) “Business integrity and dilligence (sic) clause (1) 4 confidentiality”.  Also attached to the claim was a copy of a letter dated 16 May 2002 from Registrar Spurling to Acosta together with the Further Decision of 16 May 2002.  In the letter the Registrar said:

“I have enclosed a copy of my analysis of the matters you have raised with me at different times concerning your complaints against the two agents.

In general terms I have concluded there is nothing further that I can do in relation to the complaints as I have concluded that there is insufficient merit in the complaints to enable me to take any further action.

The full details are included in the enclosure.”

39     It is in respect of the subsequent claim made by Acosta that Stokes lodged the interlocutory application, the subject of these proceedings.

THE RELEVANT LEGISLATION

The Industrial Relations Act 1979 WA (“The Act”)

40     The Industrial Magistrate’s Court is established by section 81 of the Act.  The jurisdiction of the Court under the Act is set out in section 81A and, in section 81CA, that jurisdiction is divided into the “general jurisdiction” and the “prosecution jurisdiction”.  In section 81CA(2) it is provided that:

(2)  Except as otherwise prescribed by or under this Act or another law — 

 (a) the powers of an industrial magistrate’s court; and

 (b) the practice and procedure to be observed by an industrial magistrate’s court,

 when exercising general jurisdiction are those provided for by the Local Courts Act 1904 as if the proceedings were an action within the meaning of that Act.

41     Under section 113(3) of the Act the Governor may make regulations for the purpose of regulating the practice and procedure before an Industrial Magistrate’s Court for and incidental to the exercise by the Court of its powers and jurisdiction under the Act.  The GJ Regs have been made for purposes of the exercise by the Industrial Magistrate’s Court of its “general jurisdiction” as defined in section 81CA pursuant to the jurisdiction conferred on the Court by section 81A.  The Governor is also empowered, by section 112A(5), to make regulations in respect of the registration of industrial agents, the cancellation of such registration and the disqualification from obtaining registration.  The Governor may also prescribe under the same subsection a code of conduct for persons registered as industrial agents.

42     Section 6 of the Act sets out, in 15 paragraphs, the “principal objects” of the Act.  Included amongst those principal objects are provisions which, in broad terms, can be said to be intended to encourage and promote harmonious industrial relations between employers and employees and to achieve the avoidance of disputes by the creation and enforcement of negotiated agreements and the resolution of any disputes by agreement and conciliation.  In section 6, in object (c), the principal object therein set out is directed at preventing and settling disputes not resolved by agreement “with the maximum of expedition and the minimum of legal form and technicality”.

43     The Act provides for the constitution of the Western Australian Industrial Relations Commission (section 8).  In section 26 the Commission is directed as to the manner in which it is to act in the exercise of its jurisdiction under the Act.  It is required in section 26(1)(a) to “…act according to equity, good conscience, and the substantial merits of the case without regard to technicalities or legal forms”.  In section 27, the Commission is given wide powers, which are consistent with the directions contained in section 26, relating to the manner in which it is to act in the exercise of its jurisdiction.  It is also, however, a requirement (section 22B) that the Commission should “…act with as much speed as the requirements of this Act and a proper consideration of the matter before it permit”.

44     The conciliation and arbitration functions of the Commission are very important and are extensive and may be exercised by the Commission at any time.

45     The significance of the above provisions arises from a necessity for me, in endeavouring to interpret the meaning and effect and their application in the present case of the IA Regs and the GJ Regs, to give consideration to the legislative context in which those regulations were drafted and commenced to operate.

46     It is also important for me to bear in mind the legislative context in which the Industrial Magistrate's Court has been established and had given to it its jurisdiction and powers.  The same approach, in my opinion, is also appropriate in relation to the interpretation of the provisions of the Act and regulations in respect of the powers and duties of the Registrar.

The Industrial Relations (Industrial Agents) Regulations 1997 (“the IA Regs”)

47     The IA Regs provide for the procedure by which industrial agents may be registered, the obligations which are cast upon registered industrial agents, the making of complaints concerning the registration of and the conduct of industrial agents and the resolution of such complaints and for the bringing of proceedings or of appeals in respect of such matters before an Industrial Magistrate or the Full Bench.

48     Regulations 4 to 11 inclusive deal with the registration of industrial agents by the Registrar.  Regulation 8 imposes upon every agent, as a condition of registration, an obligation to comply with the code of conduct which is set out in Schedule 1 to the IA Regs.

49     I consider that, in order for me to endeavour to understand what it is that Acosta is seeking to achieve in his Subsequent claim lodged on 18 June 2002, it is necessary that I analyse carefully what had been done by the Registrar prior to that date and to then consider what has been done in the context of the Act, the IA Regs and the GJ Regs.  That, I believe, requires me to examine quite closely the provisions of the regulations, in particular regulations 12 to 19 inclusive of the IA Regs.

50     Regulation 12(1) empowers any person to lodge a complaint concerning the manner and circumstances in which an industrial agent has obtained registration.  No complaint of that nature was raised expressly or, in my opinion, impliedly, in any of the material placed before me.  I proceed upon the basis that regulation 12(1) is a regulation which has no application to Acosta’s subsequent claim, that it had no application to his original claim and that it was not raised directly or indirectly in his letters to the Registrar of 8 October 2001 and 9 April 2002 nor was it raised at the meeting held on 26 February 2002 to which I have previously made reference.  The reason for my making mention of it, however, is that regulation 12(1) is expressly referred to in regulation 14(4) and regulation 14(4) is expressly referred to in regulation 16(3).  Both regulation 14(4) and regulation 16(3) were the subject of evidence and argument before me at the hearing on 6 November 2002 and were referred to in the later written submissions of both parties.  The interpretation and application of the IA Regs in connection with those subregulations, in my opinion, create some difficulty.

51     Regulation 12(2) says that the client of an industrial agent may lodge a written complaint alleging failure on the part of the agent to comply with a condition to which the registration was subject.  That necessarily means that such a complaint may allege a breach of the code of conduct.  Such complaint should be in the form of a statutory declaration (regulation 12(4)); pursuant to regulation 12(3), the complaint:

“… is to be lodged within 28 days of the client becoming aware of the facts of the matter giving rise to the alleged failure to comply or, if the Registrar is satisfied that the circumstances of the complaint are exceptional, within such later time as the Registrar may allow.”

52     Regulation 14(1)(c) says that on receipt of a complaint under regulations 12(1) or (2) the Registrar is to:

“conduct an inquiry into the complaint.”

53     Regulation 14(4) says:

“(4) After holding an inquiry in relation to a complaint under regulation 12 (1), and having had due regard to any response to the notice under subregulation (1) (b), the Registrar is to — 

 (a)    make a determination as to the complaint; and

 (b)    notify the complainant and the industrial agent of the Registrar’s determination and the reasons for the determination.”

54     In my opinion regulation 14(4) does not have any application until the Registrar has received a complaint under regulation 12 and has, pursuant to regulation 14(1)(c), conducted an enquiry in relation to the complaint.  Regulation 14(4) specifically refers to regulation 12(1) and makes no express reference to regulation 12(2), although, upon receipt of a complaint under regulation 12(2), the Registrar must give the agent complained against notice of the time and manner in which the agent may respond to the complaint.  It is my view that that is the reason for the reference to subregulation (1)(b) in regulation 14.

55     Regulation 15 provides:

 “15. (1) The Registrar is to reject a complaint that the Registrar determines, whether before or after conducting an inquiry - 

(a) is vexatious, trivial or without substance;

(b) relates to conduct or events too remote in time to justify further action; or

(c) is a matter in which the complainant does not have a sufficient interest to justify the complaint.

(2) If the Registrar determines in relation to a complaint under regulation12(1) that-

 (a ) the registration of the industrial agent was improperly obtained; and

 (b) at the time when the application for registration of the industrial agent was granted, there were grounds for refusing the application,

 the Registrar is to cancel the registration of the industrial agent.

(3) If a complaint is made under regulation 12 (2) the Registrar - 

(a) is to make a determination as to whether or not there are reasonable grounds for the complaint; and

(b) if the determination is that there are reasonable grounds for the complaint, endeavour to resolve the complaint by conciliation under regulation 16.”

56     There appears to be, on a literal reading of regulations 14(1)(c) and 15(1), a contradiction or an inconsistency in the obligations placed upon the Registrar.  Regulation 14(1) appears to be expressed in mandatory terms.  It says that the Registrar “is” to conduct an inquiry into a complaint under regulation 12(1) or (2).  It is not expressly made “subject to” any other regulation.  Whether it, nevertheless, is to be interpreted and applied subject to any other regulation is a matter of construction of the regulation in its legislative context.  Regulation 15, however, empowers the Registrar to reject a complaint before conducting an inquiry in certain circumstances, which are set out in the regulation.  In the course of the hearing before me, it has been submitted on behalf of Broderick and Stokes that what the Registrar did in his decision of 3 September 2001 was to act pursuant to regulation 15(1)(a) and reject Acosta’s original claim.  In giving evidence, the Registrar did not agree that that is what he had done or intended to do.

57     It also appears that there is an inconsistency between the provisions of regulation 15(1) and regulation 15(3).  Regulation 15(1), on its face, empowers the Registrar to deal with the complaint without conducting an inquiry.  Regulation 15(3), however, appears to be expressed in mandatory terms in that it says that, if a complaint is made under regulation 12(2), the Registrar is to make a determination as to whether or not there are reasonable grounds for the complaint.  It would appear that, on its face, the subregulation requires that the Registrar must have first conducted an inquiry.  A determination by the Registrar that there are no reasonable grounds for the complaint is not a determination, which allows him to reject the complaint under regulation 15(1).

58     It may be, however, that the proper interpretation of regulation 15 is that subregulation (1) imposes a condition precedent in respect of the disposal by the Registrar by inquiry of a regulation 12(1) or a regulation 12(2) complaint, namely, that the Registrar must, before conducting an inquiry or before making a determination having conducted an inquiry, give consideration to the matters set out in paragraphs (a), (b) and (c) and determine whether or not he should reject the complaint for any of the reasons set out in paragraphs (a), (b) or (c) of regulation 15(1).

59     If the Registrar does not determine under regulation 15(1) that a complaint made under regulation 12(2) should be rejected and then determines, after conducting an inquiry under regulation 14(3), that there are reasonable grounds for that complaint, then he is directed by regulation 15(3)(b) to endeavour to resolve the complaint by conciliation under regulation 16.  Regulation 16(1) sets out how the Registrar may conduct conciliation proceedings.  Regulation 16(2) says that if the complaint is resolved to the satisfaction of the complainant and the agent then the agreement between the parties may be embodied in a memorandum.  That is a procedure which, it seems to me, would not be appropriate in respect of a complaint made pursuant to regulation 12(1) concerning the registration of an agent.  Whether or not the registration of an agent was improperly obtained or whether or not at the time of registration there were grounds for refusing the application do not seem to me to be matters which could properly be the subject of either conciliation proceedings or, arising out of such proceedings, resolution to the satisfaction of the complainant and the agent.  The matter of registration being achieved by due and proper process is a matter as between the State, represented by the Registrar, and the agent.  Additionally, the agent and an agent’s client would both have a private interest in such matters.  Any such interest, it seems to me, should not carry with it a right to resolve by agreement between the complainant and the agent the issue of the lawfulness or propriety of the registration of the agent, which agreement, it seems from the wording of regulation 16(2), would not require the agreement of the Registrar in respect of a matter which is a matter of broad public interest.  Public interest may include matters such as whether or not the agent was at the material time a fit and proper person to be registered, whether or not he held sufficient professional indemnity insurance or whether or not he had sufficient resources to provide professional indemnity.  Those are not matters, which should be resolved by agreement between only the agent and the client or former client.

60     Regulation 16(3) of the regulations provides that if, within 28 days of the Registrar giving notice under regulation 14(4) (i.e. of the determination of the Registrar in relation to a complaint under regulation 12(1) and of the reasons therefore), the complaint has not been resolved as contemplated in regulation 16(2), the Registrar is to issue a certificate authorising the complainant to initiate proceedings before an Industrial Magistrate.

61     I find it difficult to understand how, if it and regulation 14(4) are interpreted literally, regulation 16(3) can be given any practical meaning and effect.  Regulation 14(4), if read literally, can apply only to a complaint made under regulation 12(1) and not to a complaint made under regulation 12(2).  As I have said, I cannot see that it would be at all appropriate for an agent and a client to resolve by agreement between them the issue of the due and proper registration of an agent.  That cannot have been the intention of Parliament.  Once the State has been put on notice that an agent who ought not to have been registered was, in fact, registered, it is the State, through its duly appointed officers, administrative (i.e. the Registrar) or judicial (i.e. an Industrial Magistrate or the Full Bench), which must resolve the matter.  That is particularly so when one looks at the provisions of regulation 15(2) which says that if the Registrar determines in relation to a complaint under regulation 12(1) that registration was improperly obtained or at the time of registration there were grounds for refusing the application the Registrar is to cancel the registration of the industrial agent.  I am of the opinion that the intention of the legislation in regulation 15(2) is to impose upon the Registrar a mandatory duty to cancel the agent’s registration forthwith upon the Registrar determining that the criteria set out in paragraphs (a) and (b) of regulation 15(2) have been established.  I am of the view that, in such circumstances, the regulation gives to the Registrar no option at all as to whether or not registration of the agent will be cancelled.  That being the case it would be quite incongruous were the agent and the complainant client able, pursuant to regulation 16, empowered to “resolve” the client’s complaint in a manner which may be inconsistent with the Registrar’s mandatory obligation to cancel.  In any event they do not have the power to cancel an agent’s registration which would necessarily mean that there could never be a “resolution” by them, which would have the effect of cancellation of the agent’s registration.  Any such notion is a nonsense.

62     Regulation 16(5) directs that any conciliation process, which is in progress, is to cease if an appeal is lodged under regulation 19(1).

63     Regulation 17(1) enables a complainant to whom a certificate has been issued under regulation 16(3) to initiate proceedings before an Industrial Magistrate.  Regulation 17(4) requires the Industrial Magistrate to make a determination as to whether or not the agent has failed to comply with any condition subject to which the agent was registered.  That subregulation is directed only at proceedings, which have their genesis in a complaint, made pursuant to regulation 12(2) and not to proceedings arising from a complaint made pursuant to regulation 12(1).  That view is consistent with regulation 17(5), which empowers an Industrial Magistrate who finds that the agent has failed to comply with the relevant condition to either reprimand the agent or cancel the agent’s registration and, in addition, to disqualify the agent from being registered as an industrial agent.

64     Although it may appear to be arguable from regulation 17(1) that it is only when a certificate has been issued under regulation 16(3), following the Registrar giving a notice under regulation 14(4) concerning a complaint made pursuant to regulation 12(1), that a complainant may commence proceedings before an Industrial Magistrate, other than by way of appeal under regulation 19, it also appears, from regulations 17(4) and 17(5) that an Industrial Magistrate may be required to make a decision under regulation 17 in respect of a complaint made under regulation 12(2) in connection with an alleged failure by an industrial agent to comply with a condition subject to which the agent was registered.  As I have previously mentioned, regulation 16(3) only says that the Registrar can issue a certificate under that regulation where the Registrar has previously given a notice, under regulation 14(4), to the complainant and the agent concerning a determination made by the Registrar in respect of a complaint under regulation 12(1).  In the present case, the form lodged by Acosta from which the present interlocutory application arises contains no express indication of whether or not the proceedings have been sought to be initiated upon the basis of a certificate purportedly issued pursuant to regulation 16(3), therefore, bringing the proceedings within regulation 17 or, alternatively, by way of appeal under regulation 19.

65     Regulation 18(1) provides some direction to the Registrar when he is conducting an inquiry under regulation 14.  It says:

“(1) In any inquiry under regulation 14, the Registrar — 

 (a) is to proceed with as little formality and technicality and as speedily as the requirements of these regulations and a proper hearing of the matter permit;

 (b) is not bound by the rules of evidence but may inform himself or herself of any matter in such manner as the Registrar or industrial magistrate considers appropriate; and

 (c) may, subject to these regulations and the rules of natural justice, determine the procedures to be followed.”

66     Regulation 18(2) directs an Industrial Magistrate as to the hearing conducted by the Industrial Magistrate under either regulation 17 or regulation 19.  It says:

“(2) In any hearing under regulation 17 or 19 the industrial magistrate is to apply, so far as is practicable, the same principles of practice and procedure as would be applied in an application before an industrial magistrate’s court exercising its general jurisdiction.”

67     Regulation 18(3) directs both the Registrar and Industrial Magistrate in respect of the conduct of proceedings.  It says:

“(3) A party responding to a notice under regulation 14 (1) (b) or regulation 17 (2) or appearing at a hearing under regulation 19 is entitled to — 

  (a) be represented by a legal practitioner or by any other person;

  (b) be given a reasonable opportunity to call or give evidence and make submissions to the Registrar or the industrial magistrate; and

  (c) examine or cross‑examine witnesses.”

68     Regulation 14(1)(b) places an obligation on the Registrar, once having received the complaint under regulation 12(1) or 12(2), to notify the agent who is the subject of the complaint of the time and manner in which the agent may respond to the complaint.  Regulation 18(3) is particularly relevant to a consideration of the character of the Further Decision of Registrar Spurling dated 16 May 2002 and to a consideration of what he did leading up to his publishing the Further Decision.

69     Pursuant to regulation 19(1)(a), an appeal may be made to an Industrial Magistrate from a determination of the Registrar under regulation 15(3) as to whether or not there are reasonable grounds for a complaint under regulation 12(2).  Regulation 19(2) provides that any such appeal is to be commenced by notice in the approved form lodged within 21 days after receiving notice of the determination of the Registrar.

70     In regulation 3 (the Interpretation regulation), “approved” is defined to mean “approved by the Registrar”.  I have not been made aware of any form having been approved by the Registrar for the purposes of regulation 19(1) and I will proceed on the basis that there has been no such formal approval published by the Registrar.  I also, however, proceed on the basis that there was a tacit “approval” by the Registrar of the form lodged by Acosta on 18 June 2002, regardless of whether or not it is ultimately to be taken as having been lodged for purposes of regulation 17 or for purposes of regulation 19.

71     Regulation 19(4) says that, on an appeal, an Industrial Magistrate may confirm or reverse the determination of the Registrar.  The only determination that the Registrar can make in respect of a complaint made under regulation 12(2) is that there are or there are not reasonable grounds for the complaint (regulation 15(3)) or, where appropriate, that the complaint is of a type which falls within any of paragraphs (a) to (c) of regulation 15(1).  The Registrar cannot cancel the registration of the agent upon determining that there are reasonable grounds for a complaint made under regulation 12(2).

Industrial Magistrates’ Courts (General Jurisdiction) Regulations 2000 (“the GJ Regs”)

72     These regulations are made pursuant to the provisions of section 113(3) of the Act.  There is provision in regulation 5 for the Chief Stipendiary Magistrate to give directions as to the practice and procedure to be followed in proceedings generally before an Industrial Magistrate where the GJ Regs or the Local Courts Act 1994 do not provide for the practice and procedure in such proceedings or where there is inconsistency between the Local Courts Act 1994 and the GJ Regs.  I am not aware of the Chief Stipendiary Magistrate having given any directions in which it may be said that, for the purposes of regulation 18(2) of the IA Regs, any principles of practice and procedure are set out which must be applied in the conduct of any hearing under regulations 17 or 19 of the IA Regs.

73     Pursuant to regulation 7 of the GJ Regs, an Industrial Magistrate’s Court hearing an action may extend or abridge the time specified in those regulations for the conduct of the proceedings before the Court. “Proceeding” is defined in regulation 3 as meaning “a step taken in an action”.  By virtue of the provisions of regulation 8, a proceeding is not invalid by reason only of a failure to comply with the practice and procedure provided for by the regulations.  An Industrial Magistrate can remedy any defect by making appropriate orders.

74     Regulation 12(3) provides that where a document has been lodged with a clerk of the Industrial Magistrate’s Court and the document does not comply with any provision of the GJ Regs, the clerk “may refuse to accept” the document for filing.  I interpret the “may” in regulation 12(3) as giving the clerk discretion as to whether or not the document should be accepted for filing.

75     Part 4 of the GJ Regs, headed “Interlocutory applications”, empowers a party to make an interlocutory application.  The interlocutory application is to be supported by affidavit.  The application and affidavit are to be in an “approved form”.  In regulation 3, “interlocutory application” is defined to mean, inter alia, an application for an “order in relation to practice and procedure, default judgement or dismissal of a claim”.  Pursuant to regulation 28, an Industrial Magistrate, before whom an interlocutory application is brought, may, in addition to any power in the Act or the GJ Regs, make an order in relation to the primary proceedings or, inter alia, dismiss the interlocutory application or make an order that takes effect in circumstances specified in the order.

76     Part 5 of the GJ Regs is headed “Pre-trial conferences”.  It requires a pre-trial conference to be listed before the clerk of the court where a final order sought in a claim is not consented to in a response.  Regulation 35, in my opinion, makes it clear that at a pre-trial conference one of the duties of the clerk is to endeavour to assist in settlement of the action without the action having to proceed to hearing before the Industrial Magistrate.

77     Part 7 of the GJ Regs, headed “Trials”, deals with the conduct of a trial before the Industrial Magistrate and regulation 49(5) says:

“Except as provided in these regulations, a court hearing a trial is not bound by the rules of evidence and may inform itself on any matter and in any manner as it thinks fit.”

78     A similar provision appears in regulation 18(1)(b) of the IA Regs.

Interpretation Act 1984 (WA)

79     Section 18 of the Interpretation Act 1984 says that in the interpretation of an Act and regulations the construction that would promote the purpose or object of the legislation (whether the purpose or object is expressly stated) shall be preferred to a construction that would not promote that purpose or object.

80     Pursuant to section 43 of the Interpretation Act 1984, subsidiary legislation is not to be inconsistent with the provisions of the Act under which it is made and is void to the extent of any such inconsistency.  There is a congruency between the object and effect of the provisions of section 43(1) and those of section 47 of the Interpretation Act 1984.  The latter says that any act done under subsidiary legislation is deemed to be an act done under the written law pursuant to which the subsidiary legislation was made.

81     Under section 55, where a written law confers a power or a duty to do any act of an administrative or executive nature, that power or duty may be exercised as often as is necessary to correct any error or omission in any previous purported exercise of the power or duty.

82     Where no time is otherwise specified within which an act is to be or may be done, section 63 of the Interpretation Act 1984 says that the act “… shall be done with all convenient speed and as often as the occasion arises”.  What is “all convenient speed” will depend upon the circumstances of each case (Statutory Interpretation in Australia, Pearce & Geddes, 5th Edition, paragraph 6.50).

RULES OF STATUTORY INTERPRETATION

Application of Section 18 of Interpretation Act 1984

83     The equivalent in Federal legislation of section 18 of the Interpretation Act 1984 is section 15AA of the Acts Interpretation Act 1901 (Cth).  The effect of section 15AA and of equivalent State legislative provisions, including section 18 of the Interpretation Act 1984 is discussed in Statutory Interpretation In Australia (supra) at paragraphs 2.7 to 2.15 inclusive.  At paragraph 2.8 it is said that:

“… Section 15AA, however, requires the purpose or object to be taken into account even if the meaning of the words, interpreted in the context of the rest of the Act, is clear.  When the purpose or object is brought into account, an alternative interpretation of the words may become apparent.  And if one interpretation does not promote the purpose or object of an Act and another interpretation does so, the latter interpretation must be adopted.”

84     The authors then quote from the decision of Dawson J in Mills v Meeking (1990) 91 ALR 16 at 30-1 where His Honour was speaking of the effect of the provisions of section 35(a) of the Interpretation of Legislation Act 1984 (Vic), which is the equivalent of section 15AA.  His Honour said:

“[T]he literal rule of construction, whatever the qualifications with which it is expressed, must give way to a statutory injunction to prefer a construction which would promote the purpose of an Act to one which would not, especially where that purpose is set out in the Act. …

The approach required by s 35 needs no ambiguity or inconsistency; it allows a court to consider the purposes of an Act in determining whether there is more than one possible construction.  Reference to the purposes may reveal that the draftsman has inadvertently overlooked something which he would have dealt with had his attention been drawn to it and if it is possible as a matter of construction to repair the defect, then this must be done.  However, if the literal meaning of a provision is to be modified by reference to the purposes of the Act, the modification must be precisely identifiable as that which is necessary to effectuate those purposes and it must be consistent with the wording otherwise adopted by the draftsman.  Section 35 requires a court to construe an Act, not to re-write it, in the light of its purposes.”

85     The authors then comment that the effect of what Dawson J said in Mills is that the consequence of a provision such as section 18 of the Interpretation Act 1984 is that the common law approaches to the interpretation of statutes usually described as the “literal” and “purposive” have thereby been displaced.  The authors go on (page 27) to emphasise, however, that section 18 does not permit a Court to ignore the actual words of a statute.

86     At paragraph 2.10 (page 28), Pearce and Geddes then comment about potential difficulties in endeavouring to comply with provisions such as appear in section 18 of the Interpretation Act 1984 in the light of the particular language used by the legislative provision under consideration.  Reference is made, in that context, to commentary by McHugh JA who, in Macalister v R (1990) 92 ALR 39, quoted MacKinnon LJ in Sutherland Publishing Co Ltd v Caxton Publishing Co Ltd [1938] 1 CH 174 at 201, namely:

“When the purpose of an enactment is clear, it is often legitimate, because it is necessary, to put a strained interpretation upon some words which have been inadvertently used, and of which the plain meaning would defeat the obvious intention of the Legislature.”

87     At paragraph 2.11, reference is made to the judgment of Dawson, Toohey and Gaudron JJ in Chugg v Pacific Dunlop Ltd (1990) 95 ALR 481 where their Honours said:

“ The choice directed by s35 (a) of the Interpretation of Legislation Act is not as to the construction which ‘will best achieve’ the object of the Act.  Rather, it a limited choice between a ‘construction that would promote the purpose or object [of the Act]’ and one ‘that would not promote that purpose or object’.”

88     Pearce and Geddes state (paragraph 2.32) that:

“There are numerous cases that show the courts approach the interpretation of legislation by taking into account the consequences of giving a particular meaning to an Act.”

89     The authors go on to cite a passage from the decision of Mason and Wilson JJ in Cooper Brookes (Wollongong) Pty Ltd v FCT (1981) 35 ALR 151 at 169-170, namely:

“The fundamental object of statutory construction in every case is to ascertain the legislative intention by reference to the language of the instrument viewed as a whole.  But in performing that task the courts look to the operation of the statute according to its terms and to legitimate aids to construction.

… If the judge applies the literal rule it is because it gives emphasis to the factor which in the particular case he thinks is decisive.  When he considers that the statute admits of no reasonable alternative construction it is because (a) the language is intractable or (b) although the language is not intractable, the operation of the statute, read literally, is not such as to indicate that it could not have been intended by Legislature.

On the other hand, when the judge labels the operation of the statute ‘as absurd’, ‘extraordinary’, ‘capricious’, ‘irrational’ or ‘obscure’ he assigns a ground for concluding that the Legislature could not have intended such an operation and that an alternative interpretation must be preferred.  But the propriety of departing from the literal interpretation is not confined to situations described by these labels.  It extends to any situation in which for good reason the operation of the statute on a literal reading does not conform to the legislative intent as ascertained from the provisions of the statute, including the policy which may be discerned from those provisions.

Quite obviously questions of degree arise.  If the choice is between two strongly competing interpretations, as we have said, the advantage may lie with that which produces the fairer and more convenient operation so long as it conforms to the legislative intention.  If, however, one interpretation has a powerful advantage in ordinary meaning and grammatical sense, it will only be displaced if its operation is perceived to be unintended.”

90     The authors then go on to comment that the decision in the Cooper Brookes case was delivered shortly before section 15AA of the Acts Interpretation Act 1901 came into operation.  They say, however, that, since then, the quoted passage has been frequently cited and relied on and they give examples of a number of cases where that has been done which cases include decisions of the High Court.  It is later said by Pearce and Geddes (paragraph 2.33) that interpretation by reference to consequences is essentially a shorthand version of the purposive approach to interpretation and that it is, in effect, an approach which says that whatever the purpose of the statute it cannot have been intended to carry the particular meaning which is avoided by the adoption of the approach.  It is further said that the approach of taking into account the consequences of giving a particular interpretation is applied most obviously where one interpretation would render a section ineffectual while another would give it a field of operation and that the requirement that a Court endeavour to give some effect to all provisions of an Act demands that the latter alternative be adopted.  At paragraph 2.34 the authors caution against use of the unsatisfactory consequences approach unless “a more attractive alternative interpretation of the words used in the legislation is available”.  It is also noted that another difficulty, which may be encountered, is that there may be potential for opinions to differ as to whether or not the consequences of a literal interpretation are unsatisfactory.

Cases Relied Upon By The Parties

91     In written submissions made to me both parties made reference to two cases which I had drawn to their attention, namely, the decision of the High Court in Project Blue Sky Inc v Australian Broadcasting Authority (1998) HCA 28, and Re Monger; Ex Parte United Construction Pty Ltd [2002] WASCA 253.

Project Blue Sky

92     In broad terms, this case required the High Court to give consideration to the consequences of the Australian Broadcasting Authority having purported to act in a manner that was inconsistent with expressed legislative directions contained in the Broadcasting Services Act 1992 (Cth).  The Court directed its attention to the law concerning construction of statutes; in particular, issues arising out of non-compliance with statutory requirements in the doing of acts otherwise authorised by statute and approaches to the interpretation of provisions contained within legislation.

93     In his reasons for decision (paragraph 34) Brennan CJ said:

“When the Parliament confers a power and statutorily directs the manner of its exercise, ‘[t]he ambit of the power must be ascertained by the character of the statute and the nature of the provisions it contains”: Morton v Union Steamship Co of New Zealand Ltd (1951) 83 CLR 402 at 410.  Therefore a provision conferring the power must be so construed as to conform with a provision governing the manner of its exercise.  The authority conferred on the repository of a general power cannot be exercised in conflict with a provision which governs the manner of its exercise; the constraint on the exercise of a power defines the ambit of the power granted.  A purported exercise of a power in breach of the provision which governs the manner of its exercise is invalid, since there is no power to support it.

(paragraph 35): … A statutory direction as to the manner in which a power may be exercised is not a condition upon the existence of the power or a mere direction as to the doing of some preliminary or collateral act.  It is a delimitation of the power itself.

(paragraph 36): If the power exercised by a repository is within the ambit of the power reposed, there can be no unlawfulness on the part of the repository in exercising it.  Either there is power available for exercise in the manner in which the repository has exercised it and the exercise is lawful or there is no power available for exercise in the manner in which the repository has purported to exercise it and the purported exercise is invalid.

(paragraph 37): A provision which directs the manner of the exercise of a power is quite different from a provision which prescribes an act or the occurrence of an event as a condition on the power -  that is, a provision which denies the availability of the power unless the prescribed act is done or the prescribed event occurs.  In one case, power is available for exercise by the repository but the power available is no wider than the direction as to the manner of its exercise permits; in the other case, no power is available for exercise by the repository unless the condition is satisfied.  A provision which prescribes such a condition has traditionally been described as mandatory because non-compliance is attended with invalidity.  A purported exercise of a power when a condition has not been satisfied is not a valid exercise of the power.

(paragraph 38): A third kind of provision must be distinguished from provisions which restrict the ambit of the power and provisions which prescribe conditions on its availability for exercise.  A provision may require the repository or some other person to do or to refrain from doing something (sometimes within a period prescribed by the statute) before the power is exercised but non-compliance with the provision does not invalidate a purported exercise of the power: the provision does not condition the existence of the power.  Such a provision has often been called directory, in contradistinction to mandatory, because it simply directs the doing of a particular act (sometimes within a prescribed period) without invalidating an exercise of power when the act is not done or not done within the prescribed period.  The description of provisions as either mandatory or directory provides no test by which the consequences of non-compliance can be determined; rather, the consequences must be determined before a provision can be described as either mandatory or directory.

(paragraph 39): The terms of the statute show whether a provision governs the manner of exercise of a general power, or is a condition on a power, or merely directs the doing or refraining from doing an act before a power is exercised.  The distinction between conditions on a power and provisions which are not conditions on a power is sometimes difficult to draw, especially if the provision makes substantial compliance with its terms a condition.  Then an insubstantial non-compliance with the same provision seems to give the provision a directory quality, although in truth such a provision would have a dual application: substantial non-compliance is a condition; insubstantial non-compliance is not.”

94     Brennan CJ then went on to consider the means by which the intention of Parliament can be ascertained.  He said (paragraph 41):

“The purpose of construing the text of a statute is to ascertain therefrom the intention of the enacting Parliament.  When the validity of a purported exercise of a statutory power is in question, the intention of the Parliament determines the scope of the power as well as the consequences of non-compliance with a provision prescribing what must be done or what must occur before a power may be exercised.  If the purported exercise of the power is outside the ambit of the power or if the power has been purportedly exercised without compliance with a condition on which the power depends, the purported exercise is invalid.  If there has been non-compliance with a provision which does not affect the ambit or existence of the power, the purported exercise of the power is valid.  To say that a purported exercise of a power is valid is to say that it has the legal effect which the Parliament intended an exercise of the power to have.”

95     In their joint decision, the remaining members of the Court, McHugh, Gummow, Kirby and Hayne JJ made reference to the provisions of section 3 of the Broadcasting Services Act 1992 (Cth) in which the objects of the Act were set out and (paragraph 60) identified from those objects a primary purpose of the Act.  They later said:

“(paragraph 69): The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute.  The meaning of the provision must be determined ‘by reference to the language of the instrument viewed as a whole’.  In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that ‘the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed’.  Thus, the process of construction must always begin by examining the context of the provision that is being construed.”

(paragraph 70): A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals.  Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the  competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions.  Reconciling conflicting provisions will often require the court ‘to determine which is the leading provision and which the subordinate provision, and which must give way to the other’.  Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.

(paragraph 71): Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision.  In The Commonwealth v Baume, Griffiths CJ cited R v Berchet to support the proposition that it was ‘a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may be made useful and pertinent’.”

96     Their Honours later said:

“(paragraph 78): However, the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have.  Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision.  But not always.  The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.”

97     Their Honours went on to conclude that the Australian Broadcasting Authority had acted in breach of the Broadcasting Services Act 1992 (Cth) but stated that it did not follow that such an act was of no force or effect (paragraph 86).  They later said:

“(paragraph 91): An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect.  Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition.  The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition.  Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment.  The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances.  There is no decisive rule that can be applied; there is not even a ranking of relevant factors or categories to give guidance on the issue.

(paragraph 92): Traditionally, the courts have distinguished between acts done in breach of an essential preliminary to the exercise of a statutory power or authority and acts done in breach of a procedural condition for the exercise of a statutory power or authority.  Cases falling within the first category are regarded as going to the jurisdiction of the person or body exercising the power or authority.  Compliance with the condition is regarded as mandatory, and failure to comply with the condition will result in the invalidity of an act done in breach of the condition.  Cases falling within the second category are traditionally classified as directory rather than mandatory.  In Pearse v Morrice, Taunton J said ‘a clause is directory where the provisions contain mere matter of direction and nothing more’.  In R v Loxdale, Lord Mansfield CJ said ‘[t]here is a known distinction between circumstances which are of the essence of a thing required to be done by an Act of Parliament, and clauses merely directory’.  As a result, if the statutory condition is regarded as directory, an act done in breach of it does not result in invalidity. …

(paragraph 93): In our opinion, the Court of Appeal of New South Wales was correct in Tasker v Fullwood in criticising the continued use of the ‘elusive distinction between directory and mandatory requirements’ and the division of directory acts into those which have substantially complied with a statutory command and those which have not.  They are classifications that have outlived their usefulness because they deflect attention from the real issue which is whether an act done in breach of the legislative provision is invalid.  The classification of a statutory provision as mandatory or directory records a result which has been reached on other grounds.  The classification is the end of the inquiry, not the beginning.  That being so, a court, determining the validity of an act done in breach of a statutory provision, may easily focus on the wrong factors if it asks itself whether compliance with the provision is mandatory or directory and, if directory, whether there has been substantial compliance with the provision.  A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. … In determining the question of purpose, regard must be had to ‘the language of the relevant provision and the scope and object of the whole statute’.”

98     After concluding that the act of the Australian Broadcasting Authority which had been done in breach of the provisions of the Act, Their Honours said that the section which had been breached by the act of the Authority:

“(paragraph 94): … proceeds on the hypothesis that the ABA has power to perform certain functions and directs that it ‘is to perform’ those functions ‘in a manner consistent with’ the four matters set out in the section.  In the present case, for example, s 158(j) as well as s 122 authorised the making of a standard relating to the Australian content of television programs.  Thus, the making of an Australian content standard was not outside the powers granted to the ABA even though, as we have concluded, cl 9 of the Standard was made in breach of the Act.  The fact that s 160 regulates the exercise of functions already conferred on the ABA rather than imposes essential preliminaries to the exercise of its functions strongly indicates that it was not a purpose of the Act that a breach of s 160 was intended to invalidate any act done in breach of that section.

(paragraph 95): That indication is reinforced by the nature of the obligations imposed by s 160.  Not every obligation imposed by the section has a rule-like quality which can be easily identified and applied. …”

99     Their Honours went on to say (paragraph 99) that while section 160 of the Broadcasting Services Act 1992 (Cth) imposed “a legal duty on the ABA, an act done in breach of its provisions is not invalid”.  They went on to say (paragraph 100) that though the act in question was not invalid it was nevertheless a breach of the Broadcasting Services Act 1992 (Cth) and therefore unlawful.

Re Monger

100  Monger’s case concerned applications for relief by way of prerogative writ made before a Full Court consisting of five Judges in the Supreme Court of Western Australia.  The proceedings arose out of certain decisions made by a Director of Conciliation & Review and a Review Officer in the course of the exercise of their functions pursuant to the Workers Compensation and Rehabilitation Act 1971 (WA) and regulations made thereunder.  Both parties before me made reference to that decision in their submissions to me.  In his reasons for decision Anderson J (with whom Malcolm CJ and Wallwork and Templeman JJ expressly agreed), said that the Court was bound to proceed on the basis that the Director had no jurisdiction to accept a referral of a matter to him from a worker which was accompanied by non-compliant medical evidence which did not confer any jurisdiction upon the Director to accept and act upon the worker’s referral.  His Honour said that from that it must follow that the Director’s subsequent decisions were liable to be quashed.  He said that the question as to whether or not such decisions were an absolute nullity or were decisions which were only voidable in the sense that they were effective for their intended purpose until quashed is a question which the Court had no need to decide. (paragraph 30)

101  His Honour then went on to find that, as the Director had no jurisdiction in respect of the worker’s referral, the decision of the Director to refer the dispute to the Review Officer was consequently beyond any jurisdiction which the legislation conferred upon the Director and conferred no jurisdiction upon the Review Officer to deal with the matter the Director had referred to the Review Officer. (paragraph 44)

102  Fitzgerald AJ, in the course of considering the effect of the decisions of the Director and of the Review Officer, said:

“Neither party seriously challenged the “orthodox judicial position” (Aronson & Dyer, Judicial Review of Administrative Action, 2nd Ed., (500) that neither the Director’s referral of the degree of Mr Santos’ disability to the Review Officer nor the Review Officer’s decision on that referral was automatically a nullity because of Mr Santo’s non-compliance with section 93D(6).  While an administrative decision that is beyond power is correctly described as void and not merely voidable, invalidity is not an automatic consequence of the decision-makers lack of power but results from and is dependent on a Court’s determination of invalidity, even if the impugned decision is then invalid from the time when it was made.” (paragraph 66)

“The Orthodox Judicial Position”

103  The reference by Fitzgerald AJ in Monger’s case to the “orthodox judicial position” and to the text “Judicial Review of Administrative Action” by Aronson & Dyer relates to commentary in that text by the authors in the course of their discussion in Chapter 11 of administrative conduct on the part of the bureaucracy.  The authors had stated that the view of Professor Wade, namely, that “nothing is void from the outset until a Court says so” was radical in its time but has now become the orthodox judicial position.

104  The Authors had earlier commented (paragraph 494 to 495) that:

“Bureaucrats need public power to authorise them to make official decisions affecting others”.  The decision does not count as an official decision if it exceeds power, but the law recognises the affected person’s need for a judicial remedy, just as it recognises the right to damages.  The likelihood is that the decision will be treated as effective until the Court pronounces that it was unauthorised.  Once the Court makes its pronouncement, the bureaucracy will defer to the Court’s word, and cease treating its decision as having legal force.  Theoretically, an unauthorised decision is a nullity.  It has happened, however, and the affected person needs judicial authority to treat it as invalid, because only the Court’s word trumps the bureaucrat’s.  The authority of public power and public officials is dependent on their legality.  Our law copes with the decision-maker who has exceeded their authority by denying their public status.  Its medium of expression in that denial is the concept of ‘nullity’.”

105  Aronson & Dyer go on to say (paragraph 499):

“The truth is that there is no such thing as a complete nullity; it always takes a Court decision to say so. … Further, the Court will uphold a challenge to the validity of an imputative decision only if it is made by a person with standing, who applies by the right procedure to the right Court within the time limited to making the challenge, and against whose application there is no discretionary reason for refusing a judicial remedy.”

106  Reference is then made to a comment of Lord Hailsham in London & Clydeside Estates Limited v Aberdeen District Council (1980) 1 WLR 182 at 189 to 190 where it was said that in “ … every case … the Court’s real problem, where the ground of challenge has been made out, is to determine the legal consequence of the illegality”.  The authors later refer to the decision of the High Court in Project Blue Sky (supra) and comment that:

“Blue Sky’s moulded remedy shows that the usually harsh “all or nothing” choice offered by the distinction between nullity and valid illegality is not always necessary.  In showing this Blue Sky also points the way to a diminution in the importance of the nullity concept …”

Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11

107  The High Court in this case discussed the failure of an administrative authority to comply with the express requirements of the legislative provisions which empowered the authority to act.  In their joint judgment, Gaudron and Gummow JJ (paragraphs 45 to 53) discussed the nature of administrative decisions and, in particular, discussed decisions involving jurisdictional error.  They said (paragraph 51) that:

“There is, in our view, no reason in principle why the general law should treat administrative decisions involving jurisdictional error as binding or having legal effect unless and until set aside.  A decision that involves jurisdictional error is a decision that lacks legal foundation and is properly regarded, in law, as no decision at all.”

THE HEARING ON THE PRELIMINARY ISSUES

108  The hearing before me concerning the preliminary issues raised by the application of the Respondents in respect of Acosta’s subsequent claim took place before me on 6 November 2002.  One witness was called, namely, the Registrar, Mr Spurling.  He was called by Mr Stokes.  There was no other evidence given.  I then began to hear submissions from Mr Stokes.  It was then agreed that further submissions would be received from Mr Stokes in writing and that responsive written submissions would be received from Counsel for Acosta, Mr Kemp, on dates that were later set by me, the last of those dates being in mid-December.

The Evidence of the Registrar

109  The Registrar gave evidence to the effect that he had received from Acosta, on 18 July 2001, what he accepted as a complaint for the purposes of regulation 12 of the IR Regs concerning alleged conduct on the part of Broderick and Stokes while acting in their respective capacities as industrial agents.  He said that he had never turned his mind to the question of whether or not Acosta had complied with the provisions of regulation 12(3) of the IA Regs, namely, whether or not the complaint had been lodged within 28 days of Acosta “… becoming aware of the facts of the matter giving rise to …” the allegations.  He said that he had never been asked to extend the period within which the complaint could be lodged and that he had never purported to exercise the power given to him by regulation 12(2) to extend the period within which it may be lodged.  He said, in effect, that he had never given consideration to whether or not exceptional circumstances existed which could have satisfied him that the prescribed period for lodgement should be extended.

110  The Registrar gave evidence that he had determined that the complaint was “without substance”.  He said that prior to publishing his determination he had undertaken an inquiry which had been conducted by his reading the complaint and the responses that had been received from Broderick and Stokes and giving consideration to that material.  He said that he had determined that conciliation was not necessary because the complaint was not sustained.  He said that he had not issued any certificate of the type referred to in regulation 16(3) at or about the time when he published his determination on 3 September 2001.  No conciliation, he said, had taken place for the purposes of the IA Regs.  By inference, he said, in effect, that he had not, for purposes of regulation 15(3)(b) endeavoured resolution by conciliation.

111  During cross-examination, the Registrar said that he had accepted the statutory declaration which he had received from Acosta as constituting a complaint for the purposes of regulation 12 and that, apart from obtaining responses from Broderick and Stokes and giving consideration to all of that written material, he had not conducted any other form of investigation or inquiry.

112  It was the evidence of the Registrar that he subsequently received from Acosta, on 4 October 2001 and 9 April 2002, further written communications.  The Registrar also said that, as a consequence of having received the communication from Acosta on 4 October 2001, he met with Acosta on 26 February 2002.  He said that he had not notified Broderick and Stokes of his receipt of or of the content of those communications nor of his intention to meet with or of his having met with Acosta.  Broderick and Stokes had not, therefore, any awareness of those matters and had, accordingly, not been afforded any opportunity to respond to the written material or to attend at the meeting held on 26 February 2002 or to furnish any comment to the Registrar in respect of any matters which had been mentioned or discussed at the meeting.  During cross-examination, the Registrar said that he had considered the initial communication dated 4 October 2001 in the context of it being the expression of a view by Acosta to the effect that in arriving at the conclusions which he had set out in his determination dated 3 September 2001 the Registrar had been in error.  The Registrar said that by letter dated 1 February 2002 he had informed Acosta to the effect that at that time he saw no reason to change anything which he had said in that determination.  In respect of the letter dated 9 April 2002, the Registrar said that Acosta had raised further issues.  He said that it appeared to him, from the two written communications and from discussions that he had had with Acosta at the meeting on 26 February 2002, that Acosta had interpreted his determination of 3 September 2001 as containing an indication by the Registrar that it was the opinion of the Registrar that Acosta had failed to provide him with sufficient information.  He said that he wanted to give to Acosta an opportunity to understand that the Registrar had, in the making of his determination of 3 September 2001, given consideration to all of the material that had been placed before the Registrar at that time.  He said that he therefore offered to meet with Acosta in order to give Acosta the chance to tell the Registrar “where I had missed something”.

113  The Registrar never said that it was ever his intention, in receiving and giving consideration to the written communications from Acosta dated 4 October 2001 and 9 April 2002 nor in meeting with him on 26 February 2002, to either re-open the inquiry that he had previously conducted pursuant to regulation 12 and for purposes of which he had made a determination and published it on 3 September 2001, nor that it was his intention to conduct a fresh inquiry pursuant to regulation 12(2).  He did not say that he did intend to or did undertake any form of “conciliation” for the purposes of the IA Regs by his actions in respect of the subsequent communications and the subsequent meeting.

114  The Registrar, on 16 May 2002 issued a document which he entitled “Further Decision” (exhibit B).  In that document he made a comment concerning the issuing of a certificate under regulation 16(3).  I have previously set out what he said (paragraph 31).

115  The Registrar’s explanation for making reference in the Further Decision to a “certificate” was that, as the regulations did not describe what a “certificate” was and as there was no prescribed or other form of “certificate”, he felt that he should make the appropriate effort to endeavour to constitute the Further Decision as such a certificate because “I didn’t want to impede the Acostas from taking the matter to any subsequent place if they were able to do so by there being no such thing as a ‘certificate’.  I didn’t think it was for me to interpret whether or not it was a certificate, but I wanted to make it beyond doubt, certainly by May 2002, that I had done my best to issue whatever was called a ‘certificate’.” (transcript page 165).

116  It was the evidence of the Registrar that in the Further Decision he had intended to act under regulation 15(3) and not regulation 15(1) when he made his determination in September 2001.  In re-examination he said that he did not “reject”, pursuant to regulation 15(1), Acosta’s complaint.  He also, however, said in evidence “…I certainly rejected the complaint as being of no substance that I could entertain conciliation and do the subsequent things required under the regulations.  It was not a complaint I rejected it.”(transcript page 167).

Submissions Of The Parties

117  My understanding of the thrust of the oral and written submissions made on behalf of Broderick and Stokes is as follows.

118  It is submitted in respect of the complaint of Acosta constituted by the statutory declaration received by the Registrar on 18 July 2001, that the only inference capable of being drawn in the light of the circumstance that on 29 May 2001, more than 28 days prior to 18 July 2001, Acosta must, for the purposes of regulation 12(3) of the IA Regs, be taken to have been “aware of the facts of the matter giving rise to” the alleged failures on the part of the two agents which form the basis of the complaint.  It is said that the Registrar’s powers to deal with a complaint made under regulation 12 arise only from the regulations and that he has no inherent jurisdiction to deal with such a matter.  It is said that the decision of the Registrar to deal with the complaint in those circumstances is void.  In that regard reference is made by Mr Stokes to the case of Project Blue Sky and the case of Re: Monger.  It is argued that the time limitation imposed by regulation 12(3) is a condition precedent to the proper commencement of a competent complaint pursuant to regulation 12.  It is submitted that without compliance with the time limitation and the statutory declaration requirement a grievance does not become a complaint under regulation 12.  It is further submitted that, as discussed in Project Blue Sky, compliance with the provisions of regulation 12 concerning the period within which a complaint may be lodged is an “essential preliminary to the exercise of the administrative function by the Registrar”.  Mr Stokes also submits that, in respect of regulations 12(3) and 12(4), there was no substantial compliance with the requirements of regulation 12.  It follows, he says, that the inquiry and determination of the Registrar were not valid, that therefore, “... the purported exercise of the Registrar’s statutory discretion is a nullity up to and including the determination on 3 September 2001”.  It is argued that regulation 7 of the GJ Regs is not available to remedy any non-compliance by the Registrar.

119  It is argued, concerning what is described as the “conduct of the Registrar following the publication of his determination of 3 September 2001”, that such conduct occurred at a time when he was functus officio in respect of the initial complaint made by Acosta.  It is said that, having published his determination on 3 September 2001, there was no further function or act, which the Registrar was permitted by the regulations to perform.  It is said that he could not re-open his inquiry or amend his determination or in some other way re-visit it.

120  It is submitted that if there is a need for an extension of the period of time within which Acosta may bring his application dated 18 June 2002 before an Industrial Magistrate that the extension which would be required would be one to a period in excess of nine months after the date of the determination of 3 September 2001 which is the only determination that was made and which could be the subject of proceedings before an Industrial Magistrate.  It is also submitted that, in any event, in considering whether or not the period should be extended it is necessary to give consideration to the chances of success by Acosta in any proceedings before the Industrial Magistrate.  In that regard, the only material that I have before me which may enable me to undertake such a consideration is the evidence of the Registrar given before me together with the contents of his initial and further decisions and the statutory declarations and documents exhibited thereto from which the decisions arose.

121  Broderick and Stokes also argue that the Registrar made a determination on 3 September 2001 under regulation 15(1) and not regulation 15(3).  It is said that the statement by the Registrar in the final paragraph of his determination that there were not “sufficient grounds” is, in effect, a finding by him that the complaints were “without substance”, the effect of which finding, it is said, is that the Registrar was obliged, by regulation 15(1), to “reject” the complaint pursuant to that regulation.  It is argued that “not sufficient” does not mean the same as “not reasonable” the latter term being used in regulation 15(3)(a).  It is noted in the submissions that the Registrar did not undertake conciliation pursuant to regulation 15(3) and regulation 16 and that he did not issue any “certificate” pursuant to regulation 16(3).  Broderick and Stokes also assert that regulation 14(4)(a), to which reference was made by the Registrar in the determination of 3 September 2001 appears to be inappropriate as regulation 14(4) expressly refers to regulation 12(1) whereas the complaint which the Registrar then had before him was clearly a complaint under regulation 12(2).

122  It is then submitted that the determination of 3 September 2001, having been made pursuant to the provisions of regulation 15(1)(a), cannot be the subject of an appeal to an Industrial Magistrate under regulation 19(1).

123  Mr Kemp filed written submissions on behalf of Acosta.  He submitted that the important issues which needed to be determined were, firstly, whether or not the Registrar had accepted a subsequent “complaint” and then issued a certificate pursuant to regulation 16(3) of the IA Regs, secondly, whether, if he had done so, he was authorised by the legislation to do that and, thirdly, if he was not so authorised, is there any jurisdiction or power in an Industrial Magistrate to conduct any proceedings arising from what the Registrar had done.  He also raised the issue of whether or not, if a complaint has otherwise been properly dealt with by the Registrar but no certificate has been issued pursuant to regulation 16(3) an Industrial Magistrate has any power to deal with the matter pursuant to the IA Regs.

124  Counsel submitted that the evidence of the Registrar, together with the relevant exhibits demonstrated that the Registrar had made a determination, which he published on 3 September 2001, pursuant to the provisions of regulation 15(3)(a).  The consequence of that, he said, was that the documents lodged by Acosta in order to have the issues therein raised before and dealt with by an Industrial Magistrate constituted an appeal pursuant to regulation 19(1)(a) of the IA Regs.  He noted that there was no “approved form” for purposes of appeals under regulation 19.  He argued that the provisions of regulation 8 of the GJ Regs provided the legislative means whereby the lodgement of Acosta’s documents could be accepted as the lodgement of an appeal to an Industrial Magistrate for purposes of regulation 19.

125  In connection with the issue of the period of time specified in regulation 12(3) within which a complaint under regulation 12(2) is to be lodged, Mr Kemp conceded that the lodgement of the complaint which was the subject of the Registrar’s determination of 3 September 2001 occurred beyond a period of 28 days fixed by the subregulation.  He submitted that the Registrar must be taken to have decided that the complaint had been properly made and lodged and that the Registrar had concluded that he had power to conduct the enquiry.  He made reference to the judgment of Anderson J in Re: Monger (supra) at paragraph 43.  He suggested that what needed to be determined was, firstly, whether the Registrar had acted beyond power and, secondly, if he had not, whether an Industrial Magistrate could set aside any determination which fell from the Registrar as a consequence of him having acted upon the out of time complaint or whether or not it was the case that the determination was valid unless and until it was set aside by a competent Court.  The question to be answered, he said, was whether or not the Registrar’s determination was a nullity as a result of there having been a non-compliance with the provisions of regulation 12(3).  He said that the approach to be taken in deciding that issue is that which is set out in the joint judgment in Project Blue Sky (supra) at paragraph 93.  Counsel also drew my attention to the comments of Fitzgerald AJ in Re: Monger (supra) at paragraph 66 concerning the “orthodox judicial position”.  Mr Kemp’s further submission was that because the Registrar has the power to extend the period of time for lodgement of complaints, which power is expressly set out in regulation 12(3), it could be taken that the proper interpretation of the regulations is that they do not indicate that an out of time complaint will always and necessarily be an invalid complaint.  In other words, he said, it is not an “essential preliminary” to the making of a complaint and to the lawful disposition of it by the Registrar that the complaint must have been lodged within the time required by the subregulation.  He again referred me to commentary from the joint judgment in Project Blue Sky (supra), namely, at paragraphs 94 and 97.

126  In response to the submissions of Mr Stokes in respect of his arguments which raised the application of principles of functus officio, Mr Kemp said that, pursuant to regulation 18 of the IA Regs, the Registrar has very wide powers in the course of conducting an inquiry under regulation 14 and that such powers include a power to determine the procedures to be followed.  He said that it followed that by accepting and dealing with the information given to him by Acosta after the date of the determination of 3 September 2001, the Registrar had, in effect, continued to investigate up until the time of the Further Decision and that he was therefore not functus officio at the time when he accepted and acted upon that subsequent material and made his Further Decision.  It was submitted that even if the conduct of the Registrar in continuing to act as he did after making his determination of 3 September 2001 was not something which he was empowered to do, that there was no power vested in an Industrial Magistrate to set aside the Further Decision and that that decision was not automatically invalid.  In any event, it was submitted, the Industrial Magistrate’s Court has power to extend the time.

127  The findings sought on behalf of Acosta were as follows:

“1   That Acosta had properly initiated an appeal pursuant to the provisions of regulation 19 to an Industrial Magistrate.

2        That the Registrar’s determination of 3 September 2001 was a determination made pursuant to the provisions of regulation 15(3)(a) of the IA Regs.

3        That the conduct of the Registrar in accepting Acosta’s complaint at a time which was beyond the time specified in regulation 12(3) for the lodgement of complaints did not make any subsequent determination made by the Registrar invalid.

4        That the Registrar’s decision to conduct further investigations after having published his determination of 3 September 2001 was not an invalid decision.

5        That the decision of the Registrar made on 16 May 2002 – the “Final Decision” – was, in effect, a determination made for the purposes of regulation 15(3)(a) that there were no “reasonable grounds for the complaint”.

CONCLUSIONS

The Interpretation Of Regulation 14(4)

128  Regulation 12(1) is directed at the making of complaints concerning the registration of agents.  Regulation 12(2) is aimed at the making of complaints alleging non-compliance by industrial agents with conditions to which registration was subject.  Pursuant to regulation 8, every registered agent, as a condition of registration, is required to comply with the code of conduct set out in Schedule 1 to the IA Regs.  Subregulations (1), (2), (3) and (5) of regulation 14, as expressed therein, apply to complaints made under both regulation 12(1) and regulation 12(2).  Regulations 14, 15 and 16 direct the Registrar through a series of steps and procedures which the Registrar must undertake in order to discharge his duties in respect of complaints made under regulation 12.  Some of the steps and procedures set out in regulation 14 to 16 inclusive apply to both categories of complaint which may be made under regulation 12.  Some of the steps and procedures, however, apply to one category of complaint but not to the other.  That, in my opinion, necessarily arises from the difference in the nature of the two categories of complaint.  In respect of a complaint made pursuant to regulation 12(2) there is express provision in regulation 15(3)(b) and in regulation 16 for a process of conciliation to be embarked upon in prescribed circumstances.  There is no such express provision which enables conciliation to take place in respect of a complaint made under regulation 12(1) concerning the improper obtaining of registration of an agent or concerning an allegation that at the time of registration there may have been grounds for refusing the application to register.  That is logical and is consistent with a view that, while a complaint concerning an agent, in terms of an alleged failure to comply with a condition of registration, may be something that, in the context of the whole of the Act and the IA Regs, may properly be a matter which could appropriately be resolved by agreement between the parties, on the other hand, a complaint concerning the proper registration of an agent is not a matter which should be disposed of by agreement between the parties but, rather, is a matter which must be dealt with as a matter which concerns the Registrar, the general public interest and the State in respect of its resolution.  It appears to me that the agreement, which the complainant and the agent may reach under regulation 16(2), is an agreement to which the Registrar need not be a party.  I do not interpret the word “may” in that subregulation, where it appears in relation to the power given to the Registrar to embody the terms of any agreement in a memorandum, as conferring upon the Registrar either a right to be a party to the agreement or to direct what the terms of it may be or to confer a discretionary power to refuse to draw up a memorandum reflecting the agreement.  One indicator of that is that the regulations do not say that the memorandum need be signed by the Registrar.  A further indicator is that the subregulation is not expressed in terms which suggest that the Registrar need be satisfied as to or agree with or to the nature or outcome of the resolution reached by the parties.  It is of significance that regulation 15(2) imposes what is, in my opinion, a mandatory obligation upon the Registrar to cancel the registration of an agent in respect of whom the Registrar determines in relation to a complaint under regulation 12(1) that there was an improperly obtained registration or that at the time of the registration there were grounds for refusing it.  In my opinion, no private agreement reached between the parties to a complaint under regulation 12(1) should be able to circumvent or override either the Registrar’s statutory duty to act in accordance with regulation 15(2) or be able to affect either the making of a determination by the Registrar thereunder or the consequences of his determination or of his cancelling the registration of the agent.  In my view, it can only have been the intention of Parliament in respect of such an important matter as the due and proper registration of an agent, which is a matter related to the proper administration of the Act and regulations, that only the Registrar may register an agent and that only the Registrar or an Industrial Magistrate or the Full Bench or an appellate Court can make a determination or a decision as to whether or not the registration of an agent is to be cancelled.

129  Regulation 14(4) directs the Registrar as to what the Registrar must do after holding an inquiry in relation to a regulation 12(1) complaint.  It says that he must make a determination as to the complaint and that he must notify the parties of the determination and the reasons therefor.  Those requirements reflect what would otherwise be a common law right in both parties to a complaint made under either regulation 12(1) or 12(2).  Regulation 15 makes provision for, and requires, the Registrar to make one of three general categories of determination.  Pursuant to subregulation (1) he may make a determination, which would require him to reject the complaint.  Regulation 15(1) applies to complaints made pursuant to regulations 12(1) and (2).  Under regulation 15(2), in respect of a complaint made under 12(1), the Registrar must determine whether or not registration was improperly obtained or whether or not at the time of registration there were grounds for refusal.  Regulation 15(2) only applies to a complaint concerning registration of the agent.  Under regulation 15(3), in respect of a complaint made under regulation 12(2), the Registrar must determine whether or not there are reasonable grounds for the complaint.  In all cases, following the making of a determination by the Registrar, the Registrar is directed to take certain action.  If, under regulation 15(1) he determines that the criteria set out in paragraphs (a) to (c) inclusive have been established he must reject the complaint.  He may do that before or after conducting an inquiry under regulation 14(1)(c).  To that extent, it is clear that it is the intention of the legislation that regulation 14(1)(c) must be read as being subject to regulation 15(1).

130  On its face, regulation 14(4) only applies after the Registrar has held an inquiry in respect of a regulation 12(1) complaint and has made a determination under either regulation 15(1) or (2) and it does not apply where the Registrar has made a determination in respect of a regulation 12(2) complaint.  There is no express provision anywhere in the regulations which directs the Registrar, after making a determination pursuant to regulation 15(3), to notify the parties.  In my opinion, that is an anomaly.  The parties must have a legal entitlement to notification of the fact of the making of the determination by the Registrar and of what the Registrar determined and his reasons.  Natural justice requires it.  In view of the Registrar’s obligation created by regulation 15(3)(a) and regulations 16(1) to (3), together with the right given to the complainant to initiate proceedings before an Industrial Magistrate in regulation 17, who “…is to make a determination as to whether or not … the agent has failed to comply with a condition subject to which the agent was registered …” (regulation 17(4)) and the rights of both parties given by regulation 19 to appeal a determination made under regulation 15(3) to the Industrial Magistrate, it would be procedurally unfair were the parties not to be notified within a reasonable time of the determination having been made by the Registrar.  If the parties were not notified and there were no legally enforceable right to be notified of the determination, the whole exercise of lodgement of the complaint and responses and the conducting of an inquiry could, potentially, be meaningless for both parties.  Clearly, that is not what Parliament intended.  It is difficult to comprehend why the regulations expressly provide a requirement of notification in respect of a regulation 12(1) complaint having been determined yet fail to do the same in respect of a complaint made under regulation 12(2).

131  In my opinion, regulation 14(4) should be interpreted and applied on the basis that it was intended by Parliament that it should not be limited to complaints made under regulation 12(1) and that it should also be applied in respect of complaints made under regulation 12(2).  That is to say, it should have, for example, referred to “complaints under regulation 12” or to “complaints under regulations 12(1) and (2)”.  It seems to me that it is in accordance with the provisions of section 18 of the Interpretation Act 1984 (WA) to interpret regulation 15(4) in that way.  I proceed on the basis that the failure to include within the operation of regulation 14(4) a complaint made under regulation 12(2) has been a simple error made by the draftsman.

132  If the approach which I have suggested to the interpretation of regulation 14(4) is not adopted then significant consequences follow.  Regulation 16(3)(a) begins to operate, in terms of the Registrar being required to take another step in respect of a complaint made under regulation 12(2), if 28 days have passed since the Registrar gave “notice under regulation 14(4)”.  What regulation 16(3) says is that after the period of 28 days has passed and where the complaint has not been resolved to the satisfaction of the complainant and the agent under regulation 16(3), then the Registrar is to issue a certificate which will authorise the complainant to initiate proceedings before an Industrial Magistrate.  If such proceedings are initiated then the Industrial Magistrate is required to give consideration to the complaint, he is directed to then make a determination in respect of it, and, depending upon the determination made by the Industrial Magistrate, the Industrial Magistrate may be authorised to take further steps.  If regulation 14(4) is to be interpreted and applied as if it only concerned complaints made under regulation 12(1), and if the giving of the notice pursuant to regulation 14(4) is to be taken as an essential preliminary requirement to be fulfilled before the Registrar can issue a certificate under regulation 16(3), then, if it is the case that the Registrar could never issue a valid certificate, a complainant whom the legislation intended would have had access to proceedings before an Industrial Magistrate pursuant to regulation 17 would have no such access.  Further, it is clear, in the context of the provisions of regulation 15(3)(b) and the whole of regulation 16, that it is the intention of the legislation that conciliation should have been attempted by the Registrar, but not succeeded (in terms of resolution to the satisfaction of the parties), before resort may be had to the provisions of regulation 17 in order to have an Industrial Magistrate consider and determine the complaint.  Only a complaint made under regulation 12(2) may be the subject of an endeavour by the Registrar to achieve resolution by conciliation.

133  Regulation 14, as I have mentioned previously, is a regulation which, apart from the way in which subregulation (4) is expressed in respect of regulation 12(1) complaints, is clearly a general regulation that deals with complaints made under regulations 12(1) or (2).  There is nothing about the duties given to the Registrar by regulation 14(4) which could not have application to a complaint made under regulation 12(2).  There is no apparent reason for the subregulation referring only to regulation 12(1) complaints.

134  In Statutory Interpretation In Australia, Pearce and Geddes (2.24) say:

“If it is obvious that a simple mistake in the form of a printing or a drafting error has been made in the text of legislation, the courts will read the legislation in its correct form.”

135  In my opinion, that is what I should do in respect of regulation 14(4).  To do otherwise would lead to illogical and absurd consequences.  The illogicality and the absurdity being that for the type of complaint which may appropriately be conciliated and agreement reached, that is a complaint under regulation 12(2), as distinguished from a complaint under regulation 12(1), which, by its nature, is of a type which is inappropriate for settlement by conciliation and agreement between the parties, there can be no certificate issued by the Registrar under regulation 16(3) which entitles a complainant to proceed before an Industrial Magistrate under regulation 17.  There appears to be no other means whereby a complainant to whose complaint regulation 15(3) applies can have an Industrial Magistrate deal with the complaint under regulation 17.  It is important to bear in mind that the Registrar is not empowered to determine whether or not the industrial agent has failed to comply with the conditions subject to which the agent is registered.  The Registrar can only determine in respect of such complaint whether or not there are reasonable grounds for the complaint.  It would seem that the intention of the regulations is that the Registrar is to have a filtering role in respect of complaints made pursuant to regulation 12(2).  He has no power to determine, once he has determined that there are reasonable grounds, the issue of whether or not there has been a failure on the part of an agent to comply.  That is a different function to that of determining that there are or are not reasonable grounds for the complaint.  He can determine, before or after or during an inquiry, that the complaint is one which is vexatious, trivial, without substance or that it concerns matters too remote in time to justify further action being taken or that it concerns matters in respect of which the complainant does not have a sufficient interest.  That is also a function which, in the legislative context, is not the same as that of determining that there are or are not reasonable grounds.  In those circumstances he can reject the complaint and that is the end of the matter.  It appears that, subject to any power the Supreme Court may have concerning the issuing of prerogative writs, it is the intention of the legislation that where the Registrar rejects a complaint pursuant to regulation 15(1) the complainant has no other avenue open to have his complaint dealt with.  Proceedings before an Industrial Magistrate may only be undertaken pursuant to regulation 17 in respect of a regulation 12(2) complaint.  An appeal to an Industrial Magistrate under regulation 19 may only occur in respect of a determination made by the Registrar under regulation 15(2) upon a regulation 12(1) complaint or in respect of a determination of the Registrar made under regulation 15(3) as to whether or not there are reasonable grounds for the complaint.  The provisions of regulation 20, concerning appeals to the Full Bench arising from a decision of an Industrial Magistrate, are limited to decisions made by the Industrial Magistrate under regulations 17 or 19.

136  If the Registrar is, because of the way in which regulation 14(4) expressly limits the giving of notices to a complaint made under regulation 12(1), unable to provide, by giving to the complainant a certificate issued under regulation 16(3), the only means whereby a complainant under regulation 12(2) may initiate proceedings before an Industrial Magistrate under regulation 17, then the filtering role of the Registrar cannot be fulfilled where he has determined that there are reasonable grounds for the complaint; it cannot be fulfilled because the proceedings will effectively come to an end without final determination because no such certificate can be issued.  The effect of that would be that (subject to appeal) there would never have been a final determination of the real issues raised by the complaint, namely, whether or not there had been a failure to comply on the part of the agent.  Access by the complainant to the only person who can determine that, namely, an Industrial Magistrate, under regulation 17 would have been closed off.  Although, on an appeal brought under regulation 19, an Industrial Magistrate is empowered to decide such issues, that empowerment is subject to both parties agreeing that that happen which is not the same as the complainant having a right, not qualified or limited by consensus (which is what he has he has under regulation 17), to have an Industrial Magistrate determine the issue of compliance or non-compliance by the agent.  The alternative is that the Industrial Magistrate, pursuant to regulation 19(5)(a), may remit the matter to the Registrar and, if the Registrar’s subsequent endeavours do not lead to resolution by agreement, the Registrar may issue a certificate under regulation 16(3) which would then enable the complainant to proceed under regulation 17. It could never have been intended that the legislation would force a complainant through such a circuitous procedural path in order to proceed under regulation 17.

137  Regulation 18 says that, in any enquiry under regulation 14, the Registrar may determine the procedures to be followed.  Any such determination on the part of the Registrar is, however, expressly made subject to the IA Regs and the rules of natural justice (paragraph (1)(c)).  In my opinion, that power on the part of the Registrar cannot be availed of to cure the problem created by reference in regulation 16(3) to a notice issued under regulation 14(4) and by the reference in regulation 14(4) to only regulation 12(1).  My reason for so concluding is that the Registrar is bound to follow the regulations.  It is not his role to interpret the regulations and apply them in a manner, which is not consistent with their clear wording.  The giving of notices of the type dealt with by regulation 14(4) is of such significance that it should not be left to the discretion of the Registrar or to his ability to interpret the intended but contrarily expressed meaning of regulation 14(4).  Nor should the Registrar or the parties be required to enquire what the principles of natural justice call for in order to ascertain what the Registrar must do.  His obligations should be clearly set out.  Further, the giving of notices of the type contemplated by regulation 14(4) is arguably not a matter of procedure “in any inquiry” for purposes of regulation18 (1).  The giving of notices under regulation 14(4) is a step to be taken after the inquiry is completed.  The opening words of the subregulation are:

“After holding an inquiry …”.

138  Of significance in the interpretation of regulation 14(4), regulation 16(3) and regulation 17 are the provisions of regulation 19. Under regulation 19(2) an appeal is to be commenced “… within 21 days after receiving notice of the determination”.  An appeal may be brought in respect of a determination of the Registrar made under regulation 15(3) in relation to a regulation 12(2) complaint (regulation 19(1)).  Regulation 15 does not provide for the giving of a notice by the Registrar of the making by the Registrar of a determination arising from a complaint made under regulation 12(2).  Regulation 14(4), on its face, does not do so either. There is no express requirement in the IA Regs that such a notice be given.  It is, however, the sole criterion specified in regulation 19(2) by which may be ascertained the commencement of the period within which an appeal may be brought under regulation 19(1).  That is of such significance in the legislative scheme revealed by the IA Regs that it could not have been the intention of Parliament that the duty of the giving of notice by the Registrar and the timing of the giving of such notice by the Registrar should be left to be implied from the legislation or simply left to the application of s 63 of the Interpretation Act 1984 or to be ascertained by reference to common law rights of the parties or by resort to the principles of natural justice.

139  I also observe that, in regulation 19(6), there is reference to “… the period of 28 days referred to in regulation 16(3) …”.  Given that regulation 19 is concerned with appeals arising out of determinations made by the Registrar under regulation 15(3) in respect of complaints made under regulation 12(2), the provisions of regulation 19(6) can be said to contemplate that a notice of the Registrar’s determination under regulation 15(3) is normally to be given pursuant to regulation 14(4) and that, of itself, is inconsistent with the provisions of regulation 14(4) being limited only to complaints made under regulation 12(1).

140  In the context of the whole of the IA Regs and, in particular, in the context of regulations 16, 17 and 19, the giving of a notice by the Registrar of a determination made in respect of a complaint under regulation 12(2) is of equal importance and necessity as is the giving of a notice by the Registrar of a determination made by him concerning a complaint under regulation 12(1).

141  For all of the above reasons, I find that regulation 14(4) should be read and applied as requiring the Registrar, after having conducted an inquiry under either regulation 12(1) or (2), to make a determination of the type which he is required to make in respect of the particular complaint and to notify the parties of the making of the determination and of his reasons.  The consequence of such an interpretation is to give meaning to and enable sense to be made of and proper effect to be given to regulations 16(3), 17(1), (4) and (5) and 19(1) and (2) in particular.  It means that the proper interpretation of regulation 16(3) is that within 28 days of the Registrar notifying the parties to a regulation 12(2) complaint of the Registrar’s determination and reasons, and where conciliation has not taken place or, if it has, it has not resolved the complaint, the Registrar is to issue a certificate which would authorise the complainant to initiate proceedings before an Industrial Magistrate under regulation 17.  I note that no time for the initiation of such proceedings is specified in the IA Regs.  It must, however, be done “… with all convenient speed …” (section 63 of the Interpretation Act 1984.

Non-compliance With Regulation 12(3)

142  Regulation 12(3) fixes a period within which complaints made under regulation 12(2) may be lodged.  The period so prescribed is not expressed in terms which are absolute in the sense that the Registrar may “… if… satisfied that the circumstances of the complaint are exceptional…” extend that period for lodgement.  In my opinion, the subregulation not only places a condition to be complied with by a complainant in respect of the lodgement of a complaint, it also imposes upon the Registrar a duty to not accept for lodgement a complaint made pursuant to regulation 12(2) where lodgement is sought after the expiry of the 28 day period unless and until the Registrar has given due consideration to the question of whether or not there are exceptional circumstances and has satisfied himself that the circumstances of the complaint are exceptional.  In the present case the Registrar did not comply with that duty.  He simply did not turn his mind to the issue.

143  In my opinion, Acosta’s letter to the Registrar of 29 May 2002 did not constitute a complaint made under regulation 12(2) which empowered or required the Registrar to proceed to deal with it in accordance with regulations 14 and 15.  I consider that it is the intention of the requirement in regulation 12(4) that a complaint be in the form of a statutory declaration that a complaint cannot be issued by means of a document, which does not have the legal consequences, which flow from the making of a statutory declaration.  It is intended, I believe, that the requirement that a statutory declaration be used will have the potential to make anyone who is minded to make a complaint more likely to focus on the seriousness of the step they are taking and to reflect upon the possible consequences of making false allegations than would be the case if a complaint merely in the form of a letter, for example, were able to be used.  Further, a statutory declaration requires the complainant to take the step of involving a third party, namely, the witness to the declaration; that may potentially cause them more reflection upon the step being taken and reduce the potential for unjustifiable or rash, heat of the moment type complaints being lodged.  I am of the opinion that because of the failure of Acosta to initially lodge his complaint in the form of a statutory declaration the provisions of regulations 12 to 15 inclusive had no application and the Registrar, upon and by receipt of the letter of 29 May, had no power to deal with any complaint under those or any other provisions of the legislation.  In my opinion the Registrar was correct to require that if Acosta wished to pursue his complaint he had to lodge a statutory declaration.  Having said that, I do not wish to be seen as purporting to review that decision of the Registrar in any way; that is not my function nor my purpose in making the comment.  The statutory declaration, which Acosta subsequently lodged, repeated, by adoption, the allegations, which had been previously set out in the letter of 29 May 2001.  It is obvious, because of that, for purposes of regulation 12(3), that Acosta was “…aware of the facts of the matter giving rise to the alleged failure to comply …” by, at least, 29 May 2001.  The statutory declaration was lodged more than 28 days after the date of the letter and, therefore, more than 28 days after Acosta became aware of the pertinent facts.  It necessarily follows that the complaints were not lodged within the specified 28-day period.

144  In my opinion, it is not open to me to in any way review the decision of the Registrar to act upon the complaint.  I am satisfied that the “complaint” made by Acosta was constituted by the statutory declaration which was lodged in July 2001.  As I have found, it is self evident, when one looks at the letter dated 29 May 2001, which was adopted by the statutory declaration, that the complaint was lodged more than 28 days after Acosta became aware of the facts of the matter giving rise to the alleged failures on the part of the agents.  Before acting upon the complaint the Registrar did not satisfy himself that the circumstances of the complaint were exceptional.  He did not, either expressly or impliedly, extend the period for lodgement.  He completely overlooked his obligations in that regard.  The decision of the Registrar to proceed to deal with the complaint in those circumstances is not a decision in respect of which I have any powers of review.  It seems to me that it is a decision to what Aronson & Dyer refer as the “orthodox judicial position” must apply.  It is arguable that the error made by the Registrar was a jurisdictional error of the type discussed by Gaudron and Gummow JJ in Bhardwaj’s case (supra).  It is also arguable that it cannot be said that Parliament intended that, in the circumstances which surrounded the dealing by the Registrar with Acosta’s out of time complaint, all of his conduct was unauthorised and, therefore, his determination had no lawful foundation and, therefore, no effect.  The timing element of the lawful lodgement of a regulation 12(2) complaint does not arise from a single, absolute and unqualified requirement because the Registrar is given a power, which is limited by the criteria set out in regulation 12(3), to extend the period within which the lodgement of a complaint may occur.  There is no formal procedure set out in the IA Regs which the Registrar must follow when giving consideration to acceptance or lodgement of an out of time complaint.  Regulation 18(1) can be taken, in my opinion, as reflecting a legislative policy objective of reasonable flexibility and discretion being exercised on the part of the Registrar “in any inquiry under regulation 14”.  Even if it is the case that the words “in any inquiry” in regulation 18(1) mean that the provisions of the subregulation are limited to the manner in which the Registrar conducts the inquiry once the inquiry has been properly commenced and, therefore, do not apply to matters, such as lodgement of the complaint, which in a strict sense are arguably not part of the inquiry, nevertheless, it may be appropriate to invoke in the application of the provisions of regulation 12(3) the principles which can be discerned in relation to procedures in so far as those principles emerge from the provisions of regulation 18(1) and from some of the provisions of the Act to which I have previously made reference and which indicate that strict adherence to form and procedure is not necessarily required. The absence of specified procedural formality or technicality in regulation 12(2) in respect of the lodgement of complaints and the manner in which out of time complaints are to be dealt with by the Registrar in deciding whether or not to extend the lodgement period could be said to be consistent with the view that strict compliance is not an essential preliminary requirement to the empowerment of the Registrar to deal with such complaints under regulation 14.  On the basis of the information before me I am unable to say whether or not, had the Registrar turned his mind to the question of exceptional circumstances and the purposes of regulation 12(3), he would have extended the period for lodgement.  It is not self evident from such material that, had an application been made, he should not have extended the time.  The circumstances surrounding the dealing by the Registrar with the out of time complaint included the circumstances that the Respondents, at all material times had sufficient material before them to enable them to realise that the complaint had been lodged out of time and to have objected to the Registrar dealing with it either at all, or alternatively, before satisfying himself that the circumstances were exceptional.  So far as I am aware, the first time the issue was raised has been in the course of the interlocutory application of Broderick and Stokes.  It is not apparent that either of the Respondents to Acosta’s original claim has been prejudiced in any particular way as a consequence of the Registrar failing to turn his mind to the issue of the late lodgement of the complaint.  In all other respects the Registrar appears to have acted in accordance with the legislative requirements in conducting the inquiry and making the determination of 3 September 2001.

145  I believe, however, that I have no power to rule or otherwise take the view that the conduct of the Registrar in dealing with the complaint in the circumstances was an unauthorised act or a series of unauthorised acts on his part.  Nor do I have the power to rule or otherwise treat his determination published on 3 September 2001 as being a determination which was unauthorised or of no effect or that it was, at law, not a determination for the purposes of the regulations.

146  The question of whether or not the Registrar’s conduct was unauthorised and what, if any, effect the determination had and, in particular, what impact his conduct may have on the manner in which I deal with Acosta’s subsequent claim are all matters which are collateral to the matter now before me.  Any challenge to any aspect of the conduct of the Registrar would, in the context of the proceedings now before me, constitute a collateral challenge in respect of which it would be inappropriate for me to conduct any inquiry or to make any judgment.  There is no mechanism provided in the Act or the regulations which is designed to enable or facilitate an Industrial Magistrate to conduct a review of and to make rulings concerning the legality and the effect of the Registrar’s conduct and to then, potentially, make binding consequential orders.

147  For the above reasons, I am of the opinion that the failure of the Registrar to comply with the provisions of regulation 12(3) is not a matter which I should take into account and is not a matter which has any impact upon my powers and obligations in the proceedings now before me. It is not a matter, which could authorise me to strike out or dismiss or set aside Acosta’s subsequent claim.

The Further Decision

148  It is my opinion, based upon the material before me, including the evidence of the Registrar, that, by accepting from Acosta the letters of 4 October 2001 and 9 April 2002 and by meeting with Acosta and his wife on 26 February 2002 and by subsequently publishing his “Further Decision” of 16 May 2002, the Registrar did not and did not intend or purport to receive a fresh complaint or to conduct an inquiry in respect of a fresh complaint made under regulation 12(2) or to re-open the original complaint of Acosta constituted by the lodgement of the statutory declaration dated 17 July.  I accept the evidence of the Registrar which was to the effect that he had not intended to conduct such an inquiry or to conciliate.  I am satisfied that he was, at all material times, aware that in order to either conduct an inquiry pursuant to regulation 12 or to endeavour to resolve any complaint by conciliation he was obliged to comply with the procedures set out in the IA Regs and that those procedures included (perhaps subject to the power to make a determination under regulation 15(1) without an inquiry) notifying any party the subject of the complaint of the fact of the complaint, inviting responses from those complained against and making a determination only after having done so and having complied with regulation 18(3).  The Registrar’s conduct, as outlined in his evidence, which I find to be a true explanation, is consistent with his not having regarded the course of action that he took as being one constituting either an inquiry or an endeavour at resolution of a complaint by conciliation.  He did not, in publishing his Further Decision, and nor did he intend or purport to, thereby make a “determination” pursuant to any of the provisions of regulation 15.  In my opinion he did nothing more than to respond in a reasonable and proper manner to an indication by Acosta, as a complainant whose complaint has already been the subject of a determination by the Registrar, that Acosta was not satisfied with the outcome as expressed by the Registrar in his determination of 3 September 2001.  Where a party to proceedings conducted by the Registrar has expressed doubts as to the correctness of the Registrar’s decision, which was what Acosta was conveying, the Registrar would be remiss if he were not to, at least, receive and give consideration to the matters raised by the party and, if he thought it necessary, to at least give consideration to whether or not there may be a need to reconsider what he had done and how he had done it and to also consider what, if any, action he could or should take.  The Registrar following such a course could not, per se, be characterised as either commencing a new enquiry or re-opening a previously concluded enquiry.

149  The Registrar’s conduct in dealing with Acosta’s letters and in meeting with him and the publication of his Further Decision were quite unlike the procedures required to be followed by the Registrar in dealing with a complaint pursuant to the provisions of regulations 12 to 15 inclusive.  The Registrar made no attempt to do so and, in my opinion, he was not required to follow such procedures.  He did not, for example, notify the Respondents of his actions.  He did not invite responses from the Respondents.  He did not, in my opinion, purport to make a “determination” for any purpose contemplated by the IA Regs when he published his Further Decision on 16 May 2002.  He did not give it the title or heading “determination”.  He did, however, refer to “this present determination” in the second last paragraph of his Further Decision.  I am satisfied that he said that, however, in the context of then reflecting upon the provisions of regulation 16(3) and upon the possibility that by not having formally issued a “certificate” pursuant to that subregulation he may have adversely affected any rights which Acosta may have to bring his complaint before an Industrial Magistrate.  The use of the word “determination” by the Registrar in that context is of no significance and, in particular, is not sufficient to characterise the Further Decision as a “determination” under the IA Regs.

150  The Registrar made no attempt, and I am satisfied that it was because he did not consider that he was conducting an inquiry under regulation 14, to comply with the requirements of regulation 18(3) in dealing with the two letters of Acosta and in meeting with Acosta on 26 February 2002.  Regulation 18(3) had no application

151  In my opinion, it cannot be said that the Registrar was “functus officio” the powers bestowed upon him by the provisions of regulations 12 to 15 when he was dealing in the manner, which he did with Acosta between 3 September 2001 and 16 May 2002.  He was not purporting to act pursuant to those provisions and I find that he did not act pursuant to them.  All he did in his Further Decision, setting aside for the moment the purported issue of a certificate pursuant to regulation 16(3), was to simply recite some of the history of the matter as it was known to him and record that he was still of the same view as that which he had expressed on 3 September 2001.

152  In my opinion, the only determination out of which any obligations on the part of the Registrar or any rights on the part of the parties could arise for purposes of the provisions of regulations 16 to 19 inclusive was the determination of the Registrar published on 3 September 2001.

The Nature of the Determination of 3 September 2001

153  In his determination of 3 September 2001 the Registrar, under the heading “Summary” said:

“In conclusion I find there to be either no, or insufficient, substance in any of the complaints that would warrant me taking any further action.”

154  In the final paragraph, under the same heading, he said:

“Therefore pursuant to regulation 14(4)(a) of the Industrial Relations (Industrial Agents) Regulations 1997 I make a determination and that determination is that there are not sufficient grounds to conclude that there is a complaint that requires the action contemplated by regulation 15(3)(b).”

155  I am satisfied that the Registrar made a determination under regulation 15(3)(a) that there were no reasonable grounds for the complaint.

156  It is apparent from the conclusions that I have just expressed that I do not accept the argument put on behalf of Broderick and Stokes which was to the effect that the use by the Registrar in the “Summary” which he included in his determination of 3 September 2001 of the words “no or insufficient substance” and “not sufficient grounds” showed that the Registrar had acted pursuant to the provisions of regulation 15(1)(a) and had rejected the complaint after determining that it was “without substance” as contemplated in paragraph (a) of that subregulation.  I have taken the view that the express reference by the Registrar in his determination to “regulation 15(3)(b)”, when viewed in the context of the whole of the determination, demonstrates that his intention was to make a determination pursuant to regulation 15(3).  It should be noted that regulation 15(1)(a) does not use the word “grounds” at all, whereas subregulation (3)(a) does.  The word “reject”, which is descriptive of the action, which the Registrar must take if he makes a determination pursuant to regulation 15(1), was not used by the Registrar.  It cannot be said that it is self evident or that it is to be otherwise implied from what he said in his determination that he intended or purported to “reject” the complaint in the sense contemplated by regulation 15(1)(a).  His use of the word “rejected” in his evidence (transcript page 167), taken in its proper context, was, in my opinion not intended by him to contradict his other evidence which was to the effect that he did not act pursuant to regulation 15(1).  While it could be said that the words “no…substance”, which the Registrar used in his determination, mean precisely the same as the words “without substance”, which words appear in regulation (15)(1)(a), that is not enough to indicate that the Registrar was purporting to act pursuant to that subregulation.

The “Certificate” of the Registrar

157  I have previously set out my views as to the proper meaning to be given to regulation 14(4), namely, that it is to be read as if it expressly referred to regulation 12(2).  The consequence of such an interpretation is that regulation 16(3) may apply to a determination made under regulation 15(3) in respect of a complaint made under regulation 12(2).

158  Regulation 15 postulates that the Registrar may either reject a complaint under subregulation (1), with or without an inquiry having been conducted by the Registrar, if any of the specified criteria are met or, if subregulation (1) does not apply, that the Registrar will, after conducting an inquiry, make a determination pursuant to regulation 15(3) as to whether there are or are not reasonable grounds for the complaint made under regulation 12(2).  It is necessarily implied, in my opinion, that a determination can only be made pursuant to regulation 15(3) after the Registrar has conducted an inquiry in accordance with regulation 14.  There is a difference between making a determination, under regulation 15(1)(a), that a complaint is “without substance” and making a determination under regulation 15(3)(a) that there are or are not reasonable grounds for the complaint.  That is so even though a determination may also be made under regulation 15(1)(a) after an inquiry has been conducted.

159  If, under regulation 15(3)(a), the Registrar determines that there are not reasonable grounds for the complaint, then the Registrar must notify the parties and it appears that his duties are then wholly discharged in relation to the complaint (subject to it later being remitted to him by an Industrial Magistrate pursuant to regulation 19(5)(a)).  It is only if the Registrar determines that there are reasonable grounds for the complaint that he must endeavour to resolve the complaint by conciliation.  If, within 28 days after notifying the parties, pursuant to regulation 14(4) that there are reasonable grounds, the matter has not been resolved to their satisfaction, the Registrar must issue a certificate pursuant to regulation 16(3).  There is no time period specified in the regulations within which the Registrar must issue such a certificate.  It would seem the provisions of section 63 of the Interpretation Act 1984 would apply.  In the present case the Registrar purported, by the publication of his Further Decision on 16 May 2002, to issue a certificate pursuant to regulation 16(3).  I am satisfied that he did that because of a need perceived by him for caution in order to ensure that, if Acosta needed it in order to take his complaint any further, the absence of any such certificate would not preclude Acosta from doing so.  Because of the conclusion at which I have arrived concerning the purported issue of the certificate by the Registrar, it is unnecessary for me to now consider whether or not, in all of the circumstances, the Registrar could be said to have complied with his obligation pursuant to section 63 of the Interpretation Act 1984 and to have issued the certificate “with all convenient speed”.

160  I am satisfied, upon the basis of the contents of the determination of 3 September 2001, together with all of the other material which is before me, that the Registrar made a determination pursuant to the provisions of regulation 15(3)(a) that there were no reasonable grounds for the complaint and that, as a consequence of the nature of that determination, he had no obligation or power to endeavour to resolve the complaint by conciliation under regulation 16 and, therefore, had no obligation or power to issue a certificate pursuant to the provisions of regulation 16(3).  Putting it another way, the effect of the determination having being made by the Registrar pursuant to regulation 15(3)(a), namely, that there were no reasonable grounds for the complaint, was that there was no ability for Acosta to institute proceedings pursuant to regulation 17 before an Industrial Magistrate in respect of his complaint.

161  In my opinion, the manner and the circumstances in which the Registrar purported to issue a certificate clearly demonstrate that he was not acting in accordance with any power given to him by the legislation either expressly or impliedly. What he did was not consistent with the statutory scheme. It was done without any lawful foundation. It had no jurisdictional basis. It certainly could not have the affect of giving to Acosta a legal right to do something which the regulations impliedly, if not expressly, prevented him from doing, namely, to institute proceedings before an Industrial Magistrate under regulation 17 where the Registrar had concluded that there were no reasonable grounds for the complaint and where there had been no endeavour by the Registrar to resolve the complaint by conciliation as a necessary preliminary step to the institution of proceedings before an Industrial Magistrate under regulation 17.  It could not be the case that it was the intention of Parliament that the Registrar, by an unauthorised act not contemplated expressly or impliedly by the legislation, could give to the complainant rights which the express provisions of the legislation did not give him and about which legislation it could be said there was an apparent intention that a complainant in respect of whose complaint a determination had been made that there were no reasonable grounds should not have such rights.

162  For those reasons, it is my opinion that no valid certificate was issued by the Registrar by means of his Further Decision of 16 May 2002 or at any time which enabled or entitled Acosta to initiate proceedings pursuant to regulation 17. The circumstances in which he purported to issue it, the uncertain terms that he used when he raised it in his Further Decision, his evidence which demonstrated that he had doubts about whether he had previously or whether he could then issue a certificate under s16 (3) lead me to the conclusion that he did not in fact issue any certificate at all. What he did was not something to which the “orthodox judicial position” could have any application.

The “Subsequent Claim” of 18 June 2002

163  The claim of Acosta dated 18 June 2002 does not indicate expressly whether it was the intention of Acosta to initiate proceedings under regulation 17 or to appeal under regulation 19.  That is not surprising given that Acosta has adopted a form used for claims made pursuant to the GJ Regs. On the claim form, where there is provision to specify “orders sought”, there has simply been inserted the words “be deregistered”.  I take that to mean that the object of the proceedings which are sought to be initiated is to obtain from an Industrial Magistrate a decision, which will have the effect that Broderick and Stokes would cease to be registered as industrial agents.  Regulation 11(4)(d) says that an industrial agent ceases to be registered if the registration is cancelled under the IA Regs.  Only regulations 15 and 17 make provision for cancellation.  Under regulation 15(2) the Registrar is empowered to cancel registration following an inquiry arising out of a complaint lodged under regulation 12(1).  Under regulation 17(5), an Industrial Magistrate may cancel an agent’s registration but only after the matter has come before the Industrial Magistrate following a determination by the Registrar under regulation 15(3)(b) and the Registrar has subsequently issued a certificate under regulation 16(3) and where a complaint has been made pursuant to regulation 17(1) and the Industrial Magistrate has found that there has been a non-compliance by the agent with a condition subject to which the agent was registered.

164  Under regulation 19, an Industrial Magistrate has power to cancel registration only if the Industrial Magistrate has previously found that there are reasonable grounds for a complaint under regulation 12(2) and the parties have agreed that the Industrial Magistrate may deal with the matter as if it were a proceeding instituted pursuant to regulation 17.

165  To seek “deregistration” of an agent is not a valid ground of appeal under the provisions of regulation 19. An aggrieved person may appeal from a determination made by a Registrar under regulation 15(3) that there are or there are not reasonable grounds for a complaint under regulation 12(2) or from a determination of the Registrar made pursuant to regulation 12(1) which has resulted in the cancellation of registration.  In the present case there could be no doubt in the minds of Broderick and Stokes that the “claim” of Acosta dated 18 June 2002 was intended to relate to the determination of the Registrar concerning Acosta’s complaint which had been made against them pursuant to regulation 12(2).  There had never been a complaint made under regulation 12(1).  A reasonably careful reading of the Act would have indicated that, the Registrar having determined, pursuant to regulation 15(3)(a), that there were no reasonable grounds for the complaint, the provisions of regulation 17 could not be availed of by Acosta. Even if they believed that the complaint had been “rejected” by the Registrar under regulation 15(1), that could not have created a basis upon which resort could be had to regulation17. Further, the “grounds” set out in Acosta’s claim of 18 June 2002 alleged conduct on the part of the agents in respect of matters that were almost identical to the matters which were the subject of the complaint under regulation 12(2) which had been the subject of the Registrar’s determination that was published on 3 September 2001.

166  Despite the lack of clarity in the document filed by Acosta on 18 June 2002, Broderick and Stokes have undeniably proceeded on the basis that it was their understanding that it was the intention of Acosta to commence proceedings before an Industrial Magistrate seeking to have the Industrial Magistrate consider his allegations of their having breached the code of conduct subject to which they were registered.  In that light, and taking into account the history of the whole matter, I propose to proceed upon the basis that Acosta’s claim of 18 June 2002 is intended to invoke the provisions of regulation 19.  I will proceed upon the basis that Acosta presents as a person aggrieved by the determination of the Registrar published on 3 September 2001 which was to the effect that there are no reasonable grounds for his complaint.

Time For Lodgement of Appeal – Regulation 19

167  In regulation 19(1) an appeal from a determination of the Registrar under regulation 15(3) must be lodged within 21 days of receipt of notice by the appellant of the determination of the Registrar.  In the present case Acosta wishes to commence his appeal by lodgement of the claim of 18 June 2002, many months beyond the 21-day period.  It is not clear to me precisely when Acosta received a copy of the determination of 3 September 2001; the inference that can be drawn that he was aware of it before he wrote to the Registrar in October 2001.  Acosta has now lodged an application for extension of the time within which he may commence an appeal.  The late lodgement of the document said to constitute the commencement of the appeal is one of the grounds upon which Broderick and Stokes now seek to defeat any attempt by Acosta to appeal against the determination of the Registrar.  I have not yet heard submissions as to whether or not I have the power to extend the period within which an appeal may be commenced nor as to whether I should extend that period if I have the power to do so. It was decided that a consideration of that matter should await the outcome of my consideration of the issues which I have previously herein dealt with. Mr Kemp sought, in his written submissions, that the application for extension of the period be listed for hearing before me after publication of these reasons.  Given the length of time which this matter has now been before me and given the difficulties which the Chief Magistrate is now experiencing in arranging rosters and listing matters before Magistrates, and the likelihood that it would be several months time before I could be made available to sit in the Industrial Magistrate’s Court again, I consider that the application for extension should be dealt with by me upon written submissions from the parties.  Such a course was not previously canvassed with the parties but, in my opinion,s it is the most expeditious way to proceed.  Accordingly, I direct that Acosta’s submissions in respect of the extension of the period within which any appeal may be commenced are to be filed and served within 14 days of the publication of these reasons.  The submissions of Broderick and Stokes are to be filed and served within 14 days of service upon them of Acosta’s submissions.  Acosta may, within 7 days of service upon him of the submissions of Broderick and Stokes, file and serve any submissions in reply.  There is liberty to all parties to apply in respect of the direction I have just given.

G Calder

Industrial Magistrate