WESTERN AUSTRALIAN INDUSTRIAL APPEAL COURT. CORAM: ROWLAND J (Acting Presiding Judge) FRANKLYN J. ANDERSON J. DELIVERED: 25 SEPTEMBER 1996. FILE NO/S: APPEAL IAC 4 of 1996 BETWEEN: BURSWOOD RESORT (MANAGEMENT) LTD Appellant AND THE AUSTRALIAN LIQUOR, HOSPITALITY & MISCELLANEOUS WORKERS UNION, MISCELLANEOUS WORKERS DIVISION, WESTERN AUSTRALIAN BRANCH First Respondent THE FEDERATED LIQUOR & ALLIED INDUSTRIES EMPLOYEES UNION OF AUSTRALIA, WESTERN AUSTRALIAN BRANCH, UNION OF WORKERS Second Respondent JUDGMENT— ROWLAND J (Acting Presiding Judge): For the reasons to be published by Anderson J, I would dismiss this appeal and I publish a note to that effect. Franklyn J has authorised me to say that he is of precisely the same view and I publish a note to that effect. ANDERSON J: I would dismiss the appeal for the reasons which I now publish. Catchwords: Industrial relations—Industrial agreement—Registration— Nature of obligation to register—Industrial Relations Act 1979, ss41(1) and (2), s41A. Industrial relations—Full Bench—Jurisdiction—Officials of appellant union not properly elected—Jurisdiction to hear appeal. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 76 W.A.I.G. 4418 The history of the proceedings is that in August 1995 the appellant applied to register an agreement which had the ef- fect of varying and renewing the Burswood Resort Casino Employees Industrial Agreement 1993. The subject agreement was styled Burswood Resort Casino Employees Industrial Agreement 1993 Amendment Agreement 1995. The parties to the 1993 Agreement had been the appellant and the second respondent, and the second respondent was respondent to the appellant’s application to register the new agreement. The application came on for hearing on 22 August 1995 and the first respondent sought leave to intervene. The notice of intervention contained grounds which may be summarised as being that the first respondent had constitutional coverage of the relevant employees and its rights to represent and pro- tect the interests of its members and potential members cov- ered by the proposed agreement would be adversely affected by the agreement. On the hearing of the application for leave to intervene, Mr Dixon, counsel for the present appellant, submitted in effect that leave to intervene should not be granted unless the pro- posed intervenor stipulated what purpose was sought to be achieved by the intervention—and if the purpose was to op- pose the registration of the agreement, leave to intervene should not be granted unless the intervenor was prepared to state and fully particularise the grounds of its opposition. That is not exactly how it was put to Gifford C but that is the essence of it, I think. After hearing submissions Gifford C granted unconditional leave to intervene, without requiring the first respondent to state in advance why it wished to intervene. The Commis- sioner held that it was a sufficient reason to grant uncondi- tional leave to intervene, that the intervenor had a sufficient interest in the subject matter of the proceeding ie the registra- tion of the industrial agreement. An issue which had to be resolved was whether the Com- missioner had a discretion to refuse to register the agreement and if so what was the nature and extent of that discretion. Submissions were made on that issue by all parties. The rel- evant provisions of The Industrial Relations Act are as fol- lows: “41(1) An agreement with respect to any industrial matter or for the prevention or resolution under this Act of disputes, disagreements, or questions relation thereto may be made between an organisation or associa- tion of employees and any employer or organisation or association of employers. (2) Subject to subs(3) and s41A, where the parties to an agreement referred to in subs(1) apply to the Com- mission for registration of the agreement as an in- dustrial agreement the Commission shall register the agreement as an industrial agreement. (3) Before registering an industrial agreement the Com- mission may require the parties thereto to effect such variation as the Commission considers necessary or desirable for the purpose of giving clear expression to the true intention of the parties. 41A(1) the Commission shall not under s41 register an agree- ment as an industrial agreement if— (a) the agreement applies to more than a single enterprise; and (b) any term of the agreement is contrary to this Act or any General Order made under s51, or any principles formulated in the course of pro- ceedings in which a General Order is made under s51.” The advocate for the first respondent, Ms Jackson, accepted that s41(2) imposed a mandatory obligation upon the Com- missioner to register a s41(1) agreement, but submitted the obligation did not arise [to use her words] “...until the Com- mission has a bona fide agreement which is not contrary to the Act which the parties seek to register as an industrial agree- ment... If it is not a valid agreement then s41(2) does not re- quire you to register it. Equally if the agreement or purported agreement is contrary to the terms of the Industrial Relations Act itself you do not have an obligation...to register the agree- ment”. Mr Dixon objected to the development of these submissions, contending that the right of intervention did not carry with it the right to argue the issues sought to be raised by Ms Jackson. In effect this contention was upheld. Gifford C ruled that as s41(2) did impose a mandatory obligation there was for Ms Jackson “...no further scope...to put any submission in this matter”. He held that the matters sought to be presented by Ms Jackson did not “modify” the mandatory obligation. He put it thus: “...the issues that have been raised by Ms Jackson...are not matters that should cause me to put to one side, to hold back or to in any other respect modify this manda- tory obligation that exists upon me in the first place”. He then declined to hear further submissions from Ms Jackson and the matter proceeded to the making of an order that the agreement be registered. The first respondent then appealed to the Full Bench against the decision to register the agreement. Various grounds of appeal were stipulated in the notice of appeal. In particular it was contended that the Commissioner had denied natural jus- tice to the first respondent in that, having granted the first respondent unconditional leave to intervene, the Commission- er’s subsequent conduct of the hearing amounted to a refusal to hear from the first respondent on important matters includ- ing whether the agreement was in truth a bona fide industrial agreement. The grounds of appeal also included complaints that the Commissioner erred in law in failing to rule that there was in fact no proper agreement and if there was, the agree- ment was in truth, in certain respects, contrary to the Act. On the hearing of the appeal to the Full Bench the present appellant sought to be heard on an issue which was said to be jurisdictional. The argument Mr Dixon sought to advance was that the Full Bench had no jurisdiction to hear the appeal be- cause the first respondent’s officers had not been duly elected and were not authorised to bring the appeal on behalf of the Union. The Full Bench determined not to entertain this sub- mission. The present appellant then applied for an adjourn- ment of the appeal to enable it to bring an appeal to this Court against the refusal of the Full Bench to entertain argument on the preliminary issue. That application for adjournment was refused. The Full Bench then proceeded to hear, and to up- hold, the appeal. In upholding the appeal the Full Bench decided that the Commissioner had erred in his approach to s41 and s41A in that he had failed to appreciate that the mandatory require- ment in s41(2) ie the requirement to register, was qualified by the threshold requirements that the agreement be an agree- ment as to an industrial matter, that it be an agreement made between an organisation or association of employees and an employer or organisation or association of employers and that it be made for the purposes of s41 and not for some extrane- ous or unlawful purpose. This conclusion was, with respect, plainly correct. In decid- ing that he had to register the agreement, regardless of such matters, the Commissioner misdirected himself in point of law. Plainly he could not register an agreement that did not meet the threshold requirements of s41. That would however still leave the question whether his decision to register the agreement ought to be quashed. The Full Bench has a discretion as to the remedy where the Com- mission at first instance has erred in law in its disposition of the matter. Industrial Relations Act s49(5) In this case the appellant contends that the Full Bench ought not to have quashed the decision below and ought not to have made orders requiring the application for registration to be heard afresh because no useful purpose will be served by so doing. Mr Dixon tried to persuade us that the Full Bench pro- ceeded to order a re-hearing of the registration application without turning its mind to the question whether to do so would be futile. As “futility” is a relevant consideration in consider- ing whether to grant a discretionary remedy, he submitted that the failure to consider the issue of futility vitiated the deci- sion. I do not think it is at all obvious that the Full Bench did not consider whether any useful purpose would be served by or- dering a re-hearing of the registration application. Anyway, the submission involves the proposition that even if the Com- WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 4419 76 W.A.I.G. missioner had approached the exercise of his powers properly it is inevitable that registration of the agreement would have been ordered. I do not think that is so self evident and so unarguable that this Court can say no purpose was to be served by the Full Bench sending the matter back to the Commission at first instance for proper consideration. I am not persuaded that the decision by the Full Bench to send it back was wrong. Even if the Full Bench did not turn its mind to the question of futility I would not be prepared to allow the appeal on that ground. The appellant contended that the Full Bench should not have exercised its discretion to grant the first respondent, as intervenor, leave to appeal, because the first respondent de- clined to fully particularise—to lay out before the Full Bench— the basis on which it contended the agreement ought not to have been registered. I do not think the Full Bench was re- quired to go into that matter. As long as it appeared that the first respondent was bone fide in its wish to present arguments below that the agreement ought not to be registered and had been wrongly denied the right to do so, I do not think it was obligatory on the Full Bench to hear the arguments itself for the purpose of being satisfied they had some prospects of suc- cess before sending the matter back to be properly dealt with. Once it was decided that the Commissioner had wrongly acted on the basis that he did not have to consider matters which it was plainly necessary for him to consider before ordering reg- istration of the agreement the Full Bench was perfectly enti- tled to require that the proceedings be re-heard according to law without itself entering upon an evaluation of the argu- ments and the materials which the opponents of registration wished to bring forward. Whilst no doubt in the exercise of its own discretion the Full Bench had the power to embark on a determination of the strength of the case in opposition to reg- istration I cannot see how the failure to exercise the power vitiates its decision to order a re-hearing. There is another matter upon which the appellant relies. This arises out of the refusal by the Full Bench to hear Mr Dixon’s submission that the appeal was incompetent because the first respondent’s officers had not been properly elected. The ap- pellant’s argument was that there was no validly authorised appeal before the Full Bench because the officers of the first respondent who were promoting and conducting the appeal in the name of the first respondent were not validly authorised to do so. The Full Bench took the view that this question of au- thorisation should have been argued below and that all the relevant evidence should have been canvassed below. I am not persuaded this was wrong. An appeal tribunal is entitled to refuse to allow matters which ought to have been agitated below to be raised for the first time before it at least where the matters involve disputed factual issues. This is a rule of broad application, applied in the interests of expedition and the fi- nality of legal proceedings. Coulton v Holcombe (1986) 162 CLR 1 at 7; University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481 at 483; The Water Board v Mustakis (1988) 68 ALJR 209; Paltara Pty Ltd v Dempster (1991) 6 WAR 85 at 99. Although in one sense the issue of authority to bring the appeal did not arise until the appeal stage, that would be tak- ing too technical a view of the principle. The appeal proceed- ing was part of the intervenor proceedings and the issue whether the intervenor proceedings generally were properly authorised and whether the people purporting to file appro- priate documents were authorised to do so raised substantial factual issues which could have been settled at first instance. I am not persuaded the Full Bench was wrong to decide the present appellant should be held to the conduct of its case below. There was plainly an opportunity before the Commis- sioner to challenge the authority of those purporting to repre- sent the first respondent in the intervenor proceedings and the failure to take advantage of that opportunity, whether it was deliberate or inadvertent, entitled the Full Bench to say that should be the end of the matter. As the appellant’s argument was developed before us it seemed to me to be firmly based on the proposition that be- cause this issue of due authorisation went to the jurisdiction of the Full Bench to hear the appeal the Full Bench had no discretion to decline to entertain argument on the point and its refusal to do so therefore constituted fatal error. I am unable to accept this proposition. In the first place I am not sure the rule that an appeal tribunal may refuse to allow a point to be raised for the first time in the appeal where contested issues of fact are involved does not apply even where questions of ju- risdiction arise. See the comments of Deane J in Squire v Rogers (1979) 27 ALR 330 at 337. But anyway the appel- lant’s case on this issue seems to take as its starting point the proposition that there was no proper party before the Full Bench as appellant. This I think overlooks the distinction be- tween the existence of an industrial union as an entity sui juris and the existence of authority in certain persons to act on be- half of that union in prosecuting proceedings before the Com- mission. Whether an individual has the authority to place the seal of the union on procedural documents and to bring those documents to the Commission for filing and to address the Commission on behalf of the union does not seem to me to be a jurisdictional question once a matter is before the Commis- sion. The problem has arisen quite often in courts of law, where a solicitor has commenced proceedings without authority of the plaintiff. Far from it being the case that the court was de- prived of jurisdiction, the old rule used to be that the plaintiff was fully bound by the orders made in the proceedings com- menced without his authority and insofar as these placed any liability on him he had to discharge that liability in obedience to the orders of the Court and seek relief over against the so- licitor. Bligh v Tredgett 5 De G & Sm 74. This practice changed and now the practice is to allow the defendant to apply for the action to be dismissed as having been instituted without au- thority, and for the costs of the action to be paid by the solici- tors who commenced it. Cape Breton v Fenn 17 [1881] Ch D 198 at 210. Where the plaintiff who had not given authority is only one of several plaintiffs the action is not dismissed but appropriate stay orders are made insofar as the action involves the subject plaintiff, and if costs orders have been made against that plaintiff, the solicitor is substituted as the party liable to pay those costs. Fricker v Van Grutten [1896] 2 Ch 649; Geilinger v Gibbs [1897] 1 Ch 479. I am not aware of any case on this subject in which it has been suggested that the absence of authority in the persons who bring the action in the name of the plaintiff deprives the Court of jurisdiction in the sense that the proceedings are void for want of jurisdiction. As to the position in the Industrial Relations Commission I see no reason in principle why it should be any different. Mr Dixon on behalf of the appellant relied heavily on three deci- sions of the High Court: Re Tramways case (No 2 ) (1914) 19 CLR 43; United Grocers Tea & Dairy Produce Employees Union of Victoria v Linaker (1916) 22 CLR 176 and Re Con- struction Forestry Mining Energy Union; ex parte W J Deane & Sons Pty Ltd (1994) 181 CLR 539 However I think these cases can be distinguished. In the Tramways case and the Construction Forestry Mining Energy Union case the ques- tion was whether a log of claims served by persons purporting to have the authority of unions to serve the log, but who did not have any authority to do so, could give rise to an “indus- trial dispute” for the purposes of the Commonwealth Act. In each of these two cases it was held that it could not because in order to create an industrial dispute by means of non-accept- ance of a log of claims put forward by a union it is necessary that the demand for compliance with the log of claims should be made with the authority of the union. Unless the demand was authorised by the union the industrial dispute was not of the requisite kind ie a real and genuine dispute extending be- yond the limits of one state, created by means of non-accept- ance of a log of claims by a union. As the demand was not (for want of authority) a valid demand, effective at the time when it was made, it did not give rise to a dispute or a dispute ex- tending beyond the limits of more than one State and hence the Commission did not acquire jurisdiction. In the United Grocers case the question was whether a person had become a member of the union. The union was seeking to recover dues from him. Although he had acted as if he was a member for a number of years he was able to show that the rules of the union had not been complied with as regards his entry into membership. He had not paid the entrance fee of one shil- ling. The Court concluded that on a proper construction of the rules of the union, payment of the entrance was a condition prec- edent to membership. As he had never paid the entrance fee he had not become a member “in contemplation of the rules” (per Barton J at 180). There was therefore no basis upon which the dues could be recovered from him. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 76 W.A.I.G. 4420 Those cases are very different from this case. This is not a case where it can be said that a fundamental jurisdictional fact, such as the existence of an industrial dispute, is absent; or a case in which it can be said that the very basis of the claim does not exist. Here there is no doubt about the first respond- ent’s existence as a union and there is no question that the first respondent has standing to be an intervening party. In my opinion the Full Bench was perfectly entitled to take the view that as it did not affect its jurisdiction and could have been raised below, it was too late to raise an issue about the authority of the officers of the Union to bring the proceed- ings. This is not to say that, should the application for regis- tration be re-heard, and should the first respondent again seek to intervene, the appellant may not take the point in those fresh proceedings. I would dismiss the appeal.