Re Building Workers' Industrial Union of Australia; Ex parte Gallagher [1988] HCA 4; (1988) 76 ALR 353; (1988) 62 ALJR 81 (11 February 1988)

HIGH COURT OF AUSTRALIA

RE BUILDING WORKERS' INDUSTRIAL UNION OF AUSTRALIA Ex parte NORMAN LESLIE GALLAGHER
F.C. 88/002

High Court of Australia
Mason C.J.(1), Wilson(1), Deane(1), Toohey(2) and Gaudron(1) JJ.

CATCHWORDS

HEARING

Canberra
11:2:1988

DECISION

MASON C.J., WILSON, DEANE, AND GAUDRON JJ. This application by Norman Leslie Gallagher ("the prosecutor") for writs of mandamus and certiorari arises out of applications made by the Building Workers' Industrial Union of Australia ("the B.W.I.U.") to the Industrial Registrar for consent to alterations of its rules. One application related to the rule prescribing conditions of eligibility for membership; the other related to the description of the industry in respect of which the B.W.I.U. was registered. The proposed alterations were designed to extend the eligible membership of the union to include persons who were members of the Australian Building Construction Employees' and Builders Labourers' Federation ("the B.L.F.") which had been deregistered pursuant to the Builders Labourers' Federation (Cancellation of Registration) Act 1986 (Cth).

2. The application to this Court relates to four notices of objection, lodged by the prosecutor, to the proposed alterations of the B.W.I.U. rules. The prosecutor lodged two notices of objection to each B.W.I.U. application. In one of the two notices he described himself as "General Secretary" of the B.L.F.; in the other he described himself as "State Secretary" of the Victorian Branch of the B.L.F. In each notice he was named as the objector and he signed each notice above the description "SECRETARY". The seal of the B.L.F. was affixed to each notice and the statutory declaration which accompanied each notice. In the statutory declarations the prosecutor declared that he was authorized to make the declaration by the B.L.F. or the Victorian Branch as the case may be. The B.L.F. is now an unincorporated association. The prosecutor has applied for its registration as a trade union under the Trade Unions Act 1958 (Vict.).

3. The Industrial Registrar, after hearing argument, held that the notices of objection were filed by the prosecutor on behalf of the B.L.F. and that as such they fell foul of the prohibition contained in s.4(6) of the Builders Labourers' Federation (Cancellation of Registration - Consequential Provisions) Act 1986 (Cth) ("the Consequential Provisions Act"). Section 4(6) provides:

"A person or an organization or association of
employees is not entitled to be represented by an
officer, employee, agent or member of a
non-registered association in any proceedings
before the Commission or the Registrar other than
an application by the non-registered association
under paragraph 5(1)(b) or an application by the
non-registered association for registration under
section 132 of the Conciliation and Arbitration
Act."

4. The prosecutor applied for leave to appeal under s.88F(1) of the Conciliation and Arbitration Act 1904 (Cth) "the Act"). On 11 February 1987 Munro J. granted leave to appeal, but dismissed the appeal. His Honour based his decision, not on s.4(6) of the Consequential Provisions Act, but on reg.127(5) made under the Act, holding that the notices of objection were made by the prosecutor personally, not on behalf of the B.L.F., and that he was not a "person interested" within the meaning of the sub-regulation.

5. On 26 February 1987, without notification to the prosecutor, Deputy Registrar McPherson gave his consent to the B.W.I.U.'s applications to alter its rules. The Deputy Registrar consented to the rule changes in so far as they applied to New South Wales, Victoria and the Australian Capital Territory. Moreover, he did so before the statutory time for appeal from the decision of Munro J. had expired.

6. On 4 March 1987 the prosecutor filed a notice of appeal under s.35 of the Act to the Full Bench of the Commission. When the appeal came on for hearing on 27 April 1987 counsel for the prosecutor conceded that an appeal from Munro J.'s decision to the Full Bench did not lie. The Full Bench then directed that no order be made in relation to the appeal. Subsequently on 21 May 1987 when the prosecutor belatedly sought from this Court an order nisi for mandamus and certiorari directed to Munro J., the Chief Justice ordered the prosecutor to apply to a Full Court by notice of motion for the relief sought.

7. The principal ground argued by the prosecutor in support of the relief claimed is that the decision of Munro J. dismissing the appeal from the decision of the Industrial Registrar was void for denial of natural justice in that the prosecutor was given no opportunity to present an argument to the effect that he was a "person interested" within the meaning of reg.127(5). According to the prosecutor, both at first instance before the Industrial Registrar and on appeal before Munro J., the prosecutor's status as a person having an interest in the subject-matter of the B.W.I.U.'s applications for the purposes of the sub-regulation was not in contest, with the result that his Honour's decision was based on a point which stood outside the issues argued on the appeal.

8. Central to this submission was a concession made by Mr Rothman, counsel for the B.W.I.U., in the course of proceedings before the Industrial Registrar. Counsel for the prosecutor asked whether the issue was confined to the effect of the Consequential Provisions Act or whether it extended to the question whether the prosecutor was a "person interested" within the meaning of reg.127(5). Counsel for the B.W.I.U. responded in these terms:

"I do not know if you can draw the distinction
between the two arguments ... but suffice to say we
would otherwise, but for sub-section (6) of section
4 of the ... Consequential Provisions Act and the
other provisions of that Act, concede for the
purposes of a point of law, leaving aside questions
of fact, that a union secretary is a person
interested in terms of" reg.127(5).

9. Regulation 127 prescribes the procedure to be followed in applications for the consent of the Industrial Registrar. The provisions of the regulation, so far as they relate to objections, are as follows:

"...

(5) Any organization or person interested may,
within thirty-five days after the advertisement of
the notice of the receipt of the application, lodge
with the Registrar a notice of objection in
accordance with Form 37, 38 or 39 as the case
requires, to the application.

(6) Without limiting the grounds upon which an
objection may be made, the grounds of objection may
include one or more of the following grounds,
namely, the grounds specified in regulation 119 of
these Regulations or the ground that the alteration
has not been made in accordance with the rules of
the organization.

(7) The notice of objection shall set out
particulars of the grounds of objection, and the
objector shall be restricted to the grounds
specified in the notice of objection unless the
Registrar, on application in that behalf and for
reasons shown by the objector, otherwise permits.

(8) If the objector is an organization, the
notice of objection shall be under the seal of the
organization or under the hands of two officers
authorized to sign the notice of objection.

(9) The objector shall lodge with the notice of
objection a statutory declaration or declarations
in support thereof, and, within seven days after
the notice of objection is lodged with the
Registrar, shall serve a copy of the notice of
objection and of the statutory declaration or
declarations on the applicant.

(10) The Registrar by whom the matter is to be
heard shall fix a day for the hearing of the
application and shall give notice thereof to the
applicant and the objector.

(11) The Industrial Registrar or, in such cases
as he directs, a Deputy Industrial Registrar, shall
hear the parties and, subject to the Act and these
Regulations, shall decide the matter."

10. Although the reference to "matter" in reg.127(11) is a reference to the application for consent, the sub-regulation contemplates that the decision will take account of any objection lodged pursuant to reg.127(5).

11. The prosecutor submits that a concession similar to that made at first instance was made by counsel for the B.W.I.U. before Munro J. In fact on that occasion counsel for the B.W.I.U. drew attention to the concession made at first instance and went on to say that he did not think that the question of interest under reg.127(5) "arises on the appeal since it was not a matter that was ever put to the registrar". The fact that such a concession had been made was expressly recognized by Munro J. in his reasons for decision. His Honour said:

"In this case Mr. Haylen argued Mr. Gallagher's
claim to be a 'person interested' on the basis that
Mr. Gallagher made the Objection in a personal
capacity and that the document lodged made clear
that his interest was as Secretary of the
respective bodies of the BLF. Mr. Rothman made the
concession on transcript before the Industrial
Registrar that were it not for the Consequential
Provisions Act, a Union Secretary, as a point of
law, is a 'person interested' in terms of
regulation 127(5). Mr. Rothman's qualification of
the concession was of sufficient amplitude to
effectively negate it. Even so, whatever weight
might be attached to a concession by an applicant
under regulation 127, it is a matter for the
tribunal in each case to decide whether an Objector
has standing."

12. The comment made by counsel for the B.W.I.U. before the Industrial Registrar to the effect that there was a difficulty in drawing a distinction between an argument based on the Consequential Provisions Act and one based on reg.127(5) was well founded, as subsequent events before Munro J. demonstrated. Thus, his Honour asked counsel for the prosecutor during the course of his address:

"Mr. Haylen, taking it that Mr. Gallagher is a
person interested under regulation 127(5), does it
have any bearing that the interest that he is
asserting is as secretary of the non-registered
associations, can his interest be greater or
different, I suppose, from the interests of those
bodies?"

13. Later, after Mr Rothman had drawn attention to the concession made at first instance, his Honour asked him: "Do you dispute that a person interested, even Mr. Gallagher for these purposes, would have standing?"

After some discussion Mr Rothman submitted:

"Now, we say effectively, although - and it is in
fact an issue which, as I said, did not
particularly arise before the registrar, because it
did not arise in that way, but effectively, we say
if Mr Gallagher is not representing the interests
of the Builders Labourers' Federation, then he has
no interest. He is not employed - he does not say
he is employed as a builders labourer. He does not
say - his only interest which he purports to
represent in his objection is the interest read by
my learned friend and enunciated further in
paragraph (b) of ground 3, that is, that he is the
secretary of the Builders Labourers' Federation."

14. Mr Rothman there was making the secondary point, which he conceded did not arise at first instance, that if the prosecutor did not represent the B.L.F., he had no personal interest at all, that is, for the purposes of reg.127(5). The two aspects of the prosecutor's case were then expressed in this way:

"Firstly, can I - obviously, we (say) as a matter
of fact that on the reading of it the - it is an
objection on behalf of builders labourers, but
secondly, we say it is clearly an objection in the
interests of the Builders Labourers' Federation
which the Act, read as a whole, clearly seeks to
deny to the BLF and/or its officers."

15. Mr Rothman went on to draw attention to the decision of the Full Court of the Federal Court in Australian Building Construction Employees' and Builders Labourers' Federation v. Master Builders' Association of New South Wales (1986) 69 ALR 515, that a person who was an officer of the State Branch of the B.L.F. was not a "person interested" within the meaning of s.143 of the Act.

16. True it is that the primary thrust of the B.W.I.U.'s case was that the prosecutor had no personal interest apart from, or greater than, the interest of the B.L.F. and that, this being so, his notices of objection fell within the destructive operation of the Consequential Provisions Act. Mr Rothman's submission was that the object of that Act was to deny to the B.L.F. or its officers any capacity to give effect to the interests of the B.L.F. in proceedings in the Commission. But the inevitable corollary of the B.W.I.U.'s case was that, having no personal interest apart from, and greater than, the B.L.F.'s interest, the prosecutor lacked any personal interest. The significance, indeed the only significance, of that submission was that there was an absence of the interest required by reg.127 to sustain an objection by the prosecutor in his personal capacity as distinct from a capacity in which he represented the B.L.F.

17. In the light of the foregoing account of the argument before Munro J. it is reasonably clear that, whatever the effect of the concession made at first instance, counsel for the B.W.I.U. was asserting as a secondary aspect of the B.W.I.U. case that the prosecutor had no personal interest. He was careful to avoid making any concession on the appeal similar to that made at first instance, whilst fairly drawing attention to the concession made below, thereby exposing the point on appeal, though making it clear that it was a subsidiary element in the B.W.I.U. case.

18. In the circumstances as we have outlined them the prosecutor should reasonably have apprehended that the point had been opened up. In this Court Mr Kenzie Q.C. submits that Munro J. was in error in deciding the point adversely to the prosecutor because he should have been given the opportunity of establishing such facts as might be relevant to the existence of a personal interest in the outcome of the B.W.I.U.'s applications. The answer to this submission is that no such submission was made to Munro J. The only material before his Honour consisted of the objections and the supporting declarations by the prosecutor which asserted that his interest was that of secretary of the B.L.F. or the Victorian Branch and that he was authorized by the B.L.F. to make the declarations. In the absence of any claim that the resolution of the reg.127(5) question depended on facts to be proved, determination of the question involved no denial of natural justice.

19. The prosecutor also submits that Munro J. exceeded his jurisdiction in determining that question. This submission is based on s.88F(1) which is in these terms:

"The Commission may grant leave to appeal to the
Commission from an act or decision of the Registrar
in relation to a matter and may hear and determine
an appeal in respect of which leave is so granted."

20. The prosecutor argues that the words "act or decision" confine the appeal to the precise question actually determined by the Industrial Registrar, thereby excluding in the present case the question decided by Munro J. The argument takes an unduly restrictive approach to the sub-section. It looks to the right or entitlement in controversy between the parties which was resolved by the decision of the Industrial Registrar rather than the particular ground assigned by him for his decision. What was in contest was the validity of the prosecutor's notices of objection. The Industrial Registrar resolved that contest by deciding that they were invalid and of no effect. The appeal was against that finding. So understood, the application of reg.127(5) fell within the ambit of the appeal.

21. The application should be refused.

TOOHEY J. In this application for writs of mandamus and certiorari, the prosecutor claims that he was denied natural justice in the disposition of his appeal from a decision of the Industrial Registrar to a member of the Australian Conciliation and Arbitration Commission pursuant to the pro# visions of the Conciliation and Arbitration Act 1904 (Cth) ("the Act").

2. Justice was denied, the prosecutor says, because Munro J. dismissed the appeal on a ground that was not argued before him. Indeed, the prosecutor goes further and says that the ground involved a point which had been conceded in his favour. In an affidavit filed in support of his application, the prosecutor is described as general secretary of the Australian Building Construction Employees' and Builders Labourers' Federation ("the B.L.F.") which was formerly an organization registered under the provisions of the Act. The B.L.F. ceased to be a registered organization by reason of the Builders Labourers' Federation (Cancellation of Registration) Act 1986 (Cth) ("the Cancellation of Registration Act"). Its precise status does not matter for the purpose of determining this application though the prosecutor refers to it as "an unincorporated Association". Following on the deregistration of the B.L.F., the Building Workers' Industrial Union of Australia ("the B.W.I.U.") sought from the Industrial Registrar consent to amend its rules. In part the proposed amendments related to conditions of eligibility for membership of the B.W.I.U.; in part they concerned the description of the industry in respect of which the B.W.I.U. was registered. There is no doubt that the object of the B.W.I.U., in seeking thus to amend its rules, was to take in persons who had been members of the B.L.F. as a registered organization.

3. The prosecutor lodged two notices of objection to each of two applications made by the B.W.I.U. In one of each set of notices he described himself as "General Secretary" of the B.L.F.; in the other he described himself as "State Secretary" of the Victorian branch of the B.L.F.

4. The Cancellation of Registration Act was followed immediately by the Builders Labourers' Federation (Cancellation of Registration - Consequential Provisions) Act 1986 (Cth) ("the Consequential Provisions Act"). On 1 September 1986 the Industrial Registrar struck out the objections lodged by the prosecutor. He did so because the notices of objection offended s.4(6) of the Consequential Provisions Act. That sub-section reads:

" (6) A person or an organization or
association of employees is not entitled to be
represented by an officer, employee, agent or
member of a non-registered association in any
proceedings before the Commission or the
Registrar other than an application by the
non-registered association under paragraph
5(1)(b) or an application by the non-registered
association for registration under section 132 of
the Conciliation and Arbitration Act."

5. It is of some importance to refer to one sentence in the reasons expressed ex tempore by the Registrar when striking out the objections. He said:

" I think it is clear that Mr Gallagher is
objecting on behalf of the federation, and that
in my view, in terms of subsection 4(6) means
that he is representing an association of
employees in proceedings before the Registrar,
and that is prescribed (sic) by that
subsection."

6. Section 88F(1) of the Act provides that the Commission "may grant leave to appeal to the Commission from an act or decision of the Registrar in relation to a matter and may hear and determine an appeal in respect of which leave is so granted". The prosecutor sought leave to appeal from the decision of the Registrar. Munro J. granted leave to appeal but dismissed the appeal. It is necessary to look with some care at the way in which the appeal was argued and at the way in which it was decided. Nevertheless, it may be said immediately that Munro J. refused the appeal, not by reason of s.4(6) of the Consequential Provisions Act but because of reg.127(5) of the Conciliation and Arbitration Regulations (Cth). Regulation 127 deals with applications by organizations for the consent of the Registrar under s.139 of the Act to an alteration of rules relating to conditions of eligibility for membership or the description of the industry in connection with which the organization is registered. Regulation 127(5) reads:

" Any organization or person interested may ...
lodge with the Registrar a notice of objection
... to the application."

7. The prosecutor's complaint is that although the appeal was conducted by reference only to the question whether the Industrial Registrar had been correct in concluding that s.4(6) of the Consequential Provisions Act was fatal to the objections, Munro J. determined the appeal, not by reference to that point but by concluding that the prosecutor was not a "person interested" within reg.127(5). It is not in issue that the Commission is bound to accord natural justice to those appearing before it: The Queen v. Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group [1969] HCA 10; (1969) 122 CLR 546, at pp 552-553; The Queen v. Marks; Ex parte Australian Building Construction Employees and Builders Labourers' Federation [1981] HCA 33; (1981) 147 CLR 471, at pp 484-485; The Queen v. Ludeke; Ex parte Customs Officers' Association of Australia [1985] HCA 31; (1985) 155 CLR 513, at pp 518-519, 530. To determine whether justice was denied, it is inevitable that there be some examination of the manner in which the appeal was conducted. However, the appeal cannot be divorced entirely from the hearing before the Industrial Registrar for, in a very real sense, that hearing set the scene for what followed.

8. It is as well to set out verbatim one exchange between counsel before the Registrar. Mr. Haylen, counsel for the prosecutor, asked:

" Perhaps if I could just qualify that with my
friend whether we are having the argument about
the effect of the Consequential Provisions Act of
1986 or whether we are having a wider argument
than that, because if it is limited to the
Consequential Provisions Act it is a very short
argument. It is a little longer if it is wider
than that, but it is still a fairly short
argument."

9. Mr. Rothman, counsel for the B.W.I.U., replied:

" I do not know if you can draw the distinction
between the two arguments as my friend suggests,
but suffice to say we would otherwise, but for
subsection 6 of section 4 of the Cancellation of
Registration Consequential Provisions Act and the
other provisions of that act (sic), concede for
the purposes of a point of law, leaving aside
questions of fact, that a union secretary is a
person interested in terms of 127
subregulation 5."

10. This passage followed:

"THE REGISTRAR: You are saying you concede that in
the absence of this act (sic)
Mr Gallagher and Mr O'Dea would be
persons interested?

MR. ROTHMAN: Yes, but for the act (sic)."

11. There can be no doubt then that before the Registrar a clear concession was made by the B.W.I.U. that the prosecutor came within the language of reg.127(5).

12. The application for leave to appeal was formulated in some detail. It is unnecessary to repeat the detail; it is enough to say that it was the Registrar's decision as to the impact of the Consequential Provisions Act that was challenged. And that was the substantial matter argued before Munro J. However, during the course of his address to Munro J., Mr. Rothman referred to the passage from the transcript of the hearing before the Registrar which has already been quoted in these reasons. He continued:

" Now, I say as a matter of fairness, I do not
think it is a matter with the greatest respect
that arises on the appeal since it was not a
matter that was ever put to the registrar, and I
say that in all fairness to my friend. If your
Honour pleases, as to the point of merits,
stripped to its bare essentials, my friend's
argument is that counsel instructed by solicitor
appearing before the commission has a greater
right of appearance than the person who he
represents or she represents, and in my
submission, that as a matter of fact and law is -
just cannot be right."

13. Taken on its own, what Mr. Rothman said to Munro J. was a concession at least as to the ambit of the appeal. However, that is not the end of the matter for a further discussion took place. There is perhaps some danger in paraphrasing what was said but, as the discussion occupies several pages of the transcript, I shall do so. There was an exchange between Munro J. and Mr. Rothman which focused on the distinction between the standing of the prosecutor before the Commission and his right to represent the deregistered organization. I extract one portion from this debate which does not distort the context.

14. " HIS HONOUR: Yes, but subsection (6) does not

say that an interested person may
not be represented by counsel.
What it says is that an interested
person, reading in the context of
regulation 127 an interested
person, what it says is an
interested person may not be
represented by officers of the
prohibited linkage with the BLF.
It seems to me to draw a
distinction between standing and
who may represent.

MR. ROTHMAN: It depends on what your Honour
defines the term 'represented' to
mean. Effectively, Mr Gallagher's
objection, whether or not it is
made on his own behalf, represents
- is an objection on behalf of
Builders Labourers Federation
interests. So, we say no matter
whether it is on his own behalf or
not, he is representing the
interests of builders labourers,
and taken in the broad sense of
representation, we say clearly he
would be denied appearance under
subsection (6).

Now, we say effectively,
although - and it is in fact an
issue which, as I said, did not
particularly arise before the
registrar, because it did not
arise in that way, but
effectively, we say if
Mr Gallagher is not representing
the interests of the Builders
Labourers Federation, then he has
no interest. He is not employed -
he does not say he is employed as
a builders labourer. He does not
say - his only interest which he
purports to represent in his
objection is the interest read by
my learned friend and enunciated
further in paragraph (b) of
ground 3, that is, that he is the
secretary of the Builders
Labourers Federation.

He does not name it in those
words, but he is a secretary of an
association of employees, which is
in fact the Builders Labourers
Federation, and he has represented
the interests of persons employed
in the industry. So that is the
only interest he purports to have,
and in those terms, he clearly
represents the Builders Labourers
Federation, and in my submission,
the act (sic) read as a whole
would deny him that access."

15. Before us it was argued by counsel for the B.W.I.U. that in this exchange his client was challenging the prosecutor's right to be heard as representative of a deregistered organization and as a corollary his right to be heard at all. But that, I think, is to read too much into what was said, having regard to the context in which it was said and the issues being canvassed at the time. The whole point of the appeal was to challenge a decision that s.4(6) of the Consequential Provisions Act was fatal to the notices of objection. Counsel for the prosecutor addressed Munro J. with reference to that matter. Counsel for the B.W.I.U. followed suit. Reference to reg.127(5) was only incidental to his argument that s.4(6) was fatal to the notices and was made to reinforce the argument. And there is no doubt that this is how the matter was understood by counsel for the prosecutor, for his reply dealt only with arguments touching on the operation of s.4(6). Yet the whole thrust of the decision of Munro J. was that the prosecutor was not a person interested within reg.127(5) and that therefore he had no standing to object to the amendments sought by the B.W.I.U. References made by Munro J. to s.4(6) of the Consequential Provisions Act were in no way central to his decision to refuse the appeal; they may be truly described as peripheral.

16. To reject an appeal in this way, without giving counsel an opportunity to make submissions directed expressly to the concept of "person interested" within reg.127(5), was a denial of natural justice to the prosecutor. On my reading of the transcript, the concession made before the Registrar by counsel for the B.W.I.U. was not withdrawn before Munro J., certainly not withdrawn with the clarity which counsel for the prosecutor (and the Court) were entitled to expect. But even had the concession been withdrawn in sufficiently clear language, the point still remains that the appeal was not argued by reference to reg.127(5). It was argued by reference to s.4(6) of the Consequential Provisions Act. These are not merely two sides of the one coin; they are discrete arguments and submissions going to one cannot simply be transposed into submissions going to the other.

17. It may be that in the end the prosecutor would not have been able to show that he was a "person interested" within reg.127(5). It may well appear that the notices of objection were lodged by the prosecutor in a representative capacity only and that, given the destructive operation of the Consequential Provisions Act, there was no other interest the prosecutor could advance. But these were not matters canvassed before the Commission and this Court is not in a position to say what would have been the outcome had they been canvassed. Questions of fact are involved: see Australian Building Construction Employees' and Builders Labourers' Federation v. Master Builders' Association of New South Wales (1986) 69 ALR 515, at pp 517-518, 525 and the cases there cited. In my view, there was a denial of natural justice to the prosecutor.

18. There was a further challenge to the decision of Munro J., added by leave. It was expressed in terms that s.88F of the Act did not permit the Commission "to decide the appeal on the ground of the Prosecutor's failure or inability to comply with the provisions of Regulation 127(5)". The challenge involved the contention that Munro J. exceeded his jurisdiction in rejecting the appeal for the reason he did. I do not accept that there was an excess of jurisdiction. The "decision of the Registrar" from which leave to appeal was sought was a decision that the notices of objection could not stand and must be struck out. It was open to Munro J., as a matter of exercise of jurisdiction, to dispose of the appeal by reference to any Act or Regulation that bore on the correctness of the Registrar's decision. But the point remains that it was a denial of natural justice, in the circumstances of the case, to reject the appeal by reference to reg. 127(5).

19. The B.W.I.U. raised several other grounds in answer to the prosecutor's application for mandamus and certiorari. Broadly speaking, they went to the discretion of the Court to grant relief. As the other members of the Court are of the opinion that the application should fail in any event, there is little to be gained by a consideration of these grounds. Nevertheless, it is necessary to say something about them to reach a conclusion as to whether the prosecutor made out a case for relief.

20. Munro J. dismissed the appeal on 11 February 1987. On 4 March the prosecutor lodged notice of appeal to the Full Bench of the Commission pursuant to s.35 of the Act. Meanwhile, without notifying the prosecutor, the Deputy Industrial Registrar had, on 26 February, consented to the B.W.I.U.'s applications for amendment of its rules. When the appeal to the Full Bench came on for hearing on 27 April, counsel for the prosecutor conceded that no appeal lay from the decision of Munro J. This was on the basis that Munro J.'s finding that the prosecutor was not a person interested within reg.127(5) did not constitute an order and therefore was not appealable within s.35(2) of the Act. It is unnecessary to consider the correctness of that concession. What followed was that in May (the precise date does not appear) the prosecutor lodged a notice of motion in this Court and on 21 May Mason C.J. directed that the application be argued before a Full Court. To the extent that the discretion of the Court to grant relief is involved, the circumstances do not point to an undue delay on the part of the prosecutor. This is so, notwithstanding that it should have been possible for the prosecutor to obtain from Munro J. an order in terms that would have made his decision appealable beyond doubt.

21. Counsel for the B.W.I.U. relied also upon O.55 r.30 of the High Court Rules which requires an application for mandamus to a "judicial tribunal" to be made within two months of the date of the refusal to hear or within such further time as is, "under special circumstances", allowed. Whether the Commission is a judicial tribunal is a matter which it is inappropriate to canvass, given that the application must fail in any event because of the view taken by the other members of the Court. If the Commission is not a judicial tribunal, no specific time limit stands in the way of the application. If the Commission is a judicial tribunal, the circumstances are, I think, sufficiently "special" to justify an extension of time.

22. There are obvious problems if the matter were to go back to Munro J. since the Deputy Industrial Registrar has consented to the amendments of rules to which objection has been taken. Whether and in what manner this step can be undone is not a matter before this Court. More particularly, it is not a matter that should stand in the way of relief being granted in this Court if otherwise the prosecutor is entitled to relief. Certiorari is unnecessary and probably inappropriate. It is enough that the application for a writ of mandamus be granted and that Munro J. be directed to determine the appeal according to law.

ORDER

Application for writs of mandamus and certiorari refused.