Appeal against a decision of the Commission in Matter No. CR 2 of 2013 given on 21 August 2013

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

FULL BENCH

CITATION : 2014 WAIRC 00534

DELIVERED : FRIday, 20 June 2014

FILE NO. : FBA 12 OF 2013

Appellant

AND

Public Transport Authority of  Western Australia

Respondent

ON APPEAL FROM:

Jurisdiction : Western Australian Industrial Relations Commission

Coram : Commissioner S J Kenner

Citation : [2013] WAIRC 00752; (2013) 93 WAIG 1436

File No : CR 2 of 2013

CatchWords : Industrial Relations (WA) - Appeal against decision of the Commission - Speaking to the minutes - Whether to quash or suspend and remit the decision made at first instance considered - Implied power of the Full Bench to make a consequential order considered

Legislation : Industrial Relations Act 1979 (WA) s 12(1) s 27(1)(a), s 49(5), s 49(5)(b), s 49(5)(c),  s 49(6), s 49(6a)

Result : Order made

Representation:

Counsel:

Appellant : Mr P G Laskaris

Respondent : Mr D J Matthews

Solicitors:

Respondent : State Solicitor for Western Australia

Case(s) referred to in reasons:

Australian Glass Manufacturing Co Pty Ltd v Transport Workers' Union of Australia, Industrial Union of Workers, Western Australian Branch (1992) 72 WAIG 1499

Grassby v The Queen (1989) 168 CLR 1

Robe River Associates v The Amalgamated Metal Workers and Shipwrights Union of Western Australia (1990) 70 WAIG 2083

Robe River Iron Associates v Federated Engine Drivers and Firemens' Union of Workers' of Western Australia (1986) 67 WAIG 315

Supplementary Reasons for Decision

THE FULL BENCH:

Introduction

1          The Full Bench upheld grounds 2.1, 2.3 and 2.4 of the grounds of appeal in its reasons for decision delivered on 4 June 2014 and issued a minute of proposed order in the following terms:

1. The appeal be and is hereby upheld.

2. The decision made by the Commission in matter No CR 2 of 2013 given on 21 August 2013 be and is hereby suspended.

3. The matter be and is hereby remitted to the Commission at first instance for further hearing and determination.

2          The Union sought to speak to the minute of the proposed order and sought that an order be made in the following terms:

1. The appeal be and is hereby upheld.

2. The decision made by the Commission in matter No CR 2 of 2013 given on 21 August 2013 be and is hereby quashed.

3. The application made by the Respondent under sec. 27(1)(a) of the Industrial Relations Act 1979 in matter No CR 2 of 2013 be dismissed.

4. The matter be and is hereby remitted to the Commission at first instance for further hearing and determination.

3          The effect of the reasons for decision of the members of the Full Bench is that the Commission at first instance erred in finding that it was not in the public interest for the application referred in CR 2 of 2013 to be heard by the Commission and that the application made by the PTA under s 27(1)(a) of the Industrial Relations Act 1979 (WA) (the Act) to dismiss the application or refrain from hearing it should have been dismissed.  Consequently, the Union seeks an order which dismisses the PTA's application made under s 27(1)(a) of the Act.  It also seeks an order quashing, rather than suspending, the decision of the Commission.

Should an order issue to quash or suspend the decision at first instance?

4          The powers of the Full Bench to make orders on appeal are set out in s 49(5), s 49(6) and s 49(6a) of the Act.  These provisions state as follows:

(5) In the exercise of its jurisdiction under this section the Full Bench may, by order —

(a) dismiss the appeal; or

(b) uphold the appeal and quash the decision or, subject to subsection (6), vary it in such manner as the Full Bench considers appropriate; or

(c) suspend the operation of the decision and remit the case to the Commission for further hearing and determination.

(6) Where the Full Bench varies a decision under subsection (5)(b) the decision as so varied shall be in terms which could have been awarded by the Commission that gave the decision.

(6a) The Full Bench is not to remit a case to the Commission under subsection (5)(c) unless it considers that it is unable to make its own decision on the merits of the case because of lack of evidence or for other good reason.

5          Section 49(6) is immaterial in this appeal.  The Union seeks to rely upon part of s 49(5)(b) to quash, and part of s 49(5)(c) to remit.  However, the Full Bench is not empowered to both quash a decision and remit the case to the Commission for further hearing and determination.  The power to remit in s 49(5)(c) is only if the decision is suspended.  This is made clear in a decision of the Industrial Appeal Court in Robe River Associates v The Amalgamated Metal Workers and Shipwrights Union of Western Australia (1990) 70 WAIG 2083, 2085.  In that matter Justice Brinsden, with whom Rowland J and Nicholson J agreed, held that a decision to make an award contrary to natural justice was void and a nullity.  Therefore, the operation of the award could not be suspended because there was nothing to suspend (2085).  Consequently, his Honour found that the Full Bench should have upheld the appeal under s 49(5)(b) and quashed the decision of the Commissioner.  In that matter the parties wished to have the application for an award reconsidered by the Commission following the appeal being determined by the Industrial Appeal Court.  Justice Brinsden found that if an order was made to quash the decision the Full Bench had no power to remit the matter back to the Commission for further consideration, however, it could not be said that the Commission at first instance was functus officio, that is to say the Commissioner was not prohibited from further considering the matters concerned in the award.

6          In this appeal the decision made by the Commission to dismiss the application in CR 2 of 2013 cannot be said to be void or a nullity because a decision to dismiss is a decision that may be open to the Commission to make after hearing and determining the merits of the application. 

7          For these reasons we are of the opinion that an order should be made to suspend the operation of the decision and remit the case to the Commission for further hearing and determination.

8          Given the wording in s 49(5) it is inherent in what Brinsden J in Robe River that the Full Bench cannot make an order to uphold the appeal under s 49(5)(b) when it makes an order to suspend and remit a decision of the Commission under s 49(5)(c).

Is it open for the Full Bench to make an order to dismiss the PTA's application?

9          In relation to the order sought by the appellant to dismiss the PTA's application the Commission is not a superior court of record and it has no inherent jurisdiction.  Its jurisdiction is limited to that expressly provided by the Act:  Robe River Iron Associates v Federated Engine Drivers and Firemens' Union of Workers' of Western Australia (1986) 67 WAIG 315; Australian Glass Manufacturing Co Pty Ltd v Transport Workers' Union of Australia, Industrial Union of Workers, Western Australian Branch (1992) 72 WAIG 1499.  Pursuant to s 12(1) of the Act, the Commission is a court of record.  As its jurisdiction is limited, it is an inferior court of record.  Whilst the Commission's powers are circumscribed by statute, the Commission does have implied powers that arise by necessary implication out of the effect of the exercise of a jurisdiction which is expressly conferred.  In Grassby v The Queen (1989) 168 CLR 1, Dawson J delivered the leading judgment of the court in which he discussed the limits of the implied jurisdiction of an inferior court.  In that matter members of the High Court were called upon to consider the implied powers of a magistrate when sitting as a local court exercising administrative functions.  Justice Dawson explained that the fact that a magistrate sits as a court and is under a duty to act fairly does not carry with it any inherent power even when exercising judicial functions and that must be the case when its functions are of an administrative character:  (15-16).  His Honour then found (16 - 17):

[N]otwithstanding that its powers may be defined, every court undoubtedly possesses jurisdiction arising by implication upon the principle that a grant of power carries with it everything necessary for its exercise (ubi aliquid conceditur, conceditur et id sine quo res ipsa esse non potest).  Those implied powers may in many instances serve a function similar to that served by the inherent powers exercised by a superior court but they are derived from a different source and are limited in their extent.  The distinction between inherent jurisdiction and jurisdiction by implication is not always made explicit, but it is, as Menzies J. points out, fundamental.

The point may be illustrated by reference to the power to punish summarily for contempt not committed in the face of the court.  Such a power is inherent in a superior court but forms no part of the powers of an inferior court:  see Reg. v. Lefroy (1873) LR 8 QB 134.  A superior court, however, not only has power to punish contempt against itself committed out of court, but in the exercise of its inherent jurisdiction it may prevent and punish summarily as a contempt any interference with the due course of justice in an inferior court.  In John Fairfax & Sons Pty. Ltd. v. McRae (1955) 93 CLR 351, at p 365 this Court pointed out that the jurisdiction over contempts committed against inferior courts was inherited by the superior court as 'custos morum of all the subjects of the realm' and was but an aspect of 'the traditional general supervisory function of the King's Bench, the function of seeing that justice was administered and not impeded in lower tribunals' (1955) 93 CLR at p 363.  The immediate basis for the exercise of such a function is to be found in the absence of any inherent jurisdiction in inferior courts similarly to protect themselves:  see R. v. Davies [1906] 1 KB 32, at pp 47-48.  A magistrate's court in New South Wales now has, of course, a statutory power to punish for contempt:  Justices Act, s. 152.

It would be unprofitable to attempt to generalize in speaking of the powers which an inferior court must possess by way of necessary implication.  Recognition of the existence of such powers will be called for whenever they are required for the effective exercise of a jurisdiction which is expressly conferred but will be confined to so much as can be 'derived by implication from statutory provisions conferring particular jurisdiction'.  There is in my view no reason why, where appropriate, they may not extend to ordering a stay of proceedings:  cf. R. v. Hush; Ex parte Devanny (1932) 48 CLR 487, at p 515.

10      In this matter it is clear that in suspending the decision to dismiss the application and remit the matter for further hearing and determination it is also necessary to dismiss the application made by the PTA under s 27(1)(a) of the Act.  To make such an order arises by necessary implication out of the exercise of jurisdiction the Full Bench has to hear and determine an appeal.  This is because the application made under s 27(1)(a) should not remain on foot in light of the reasons of decision of the Full Bench.  Such an order in our opinion is in the circumstances of this matter necessary for the effective exercise of the Full Bench's jurisdiction to dispose of the matters raised in this appeal.