Australian Steel Company Limted v Communications Electrical, Electronics, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2004] VSC 61

8. The plaintiff claims that the defendant union has procured unlawful industrial action and has the purpose and effect of interfering with or inducing breaches of contracts of the plaintiff and, also, damaging the business of the plaintiff. It is also claimed by the plaintiff that the defendant and others have conspired to injure and have injured the plaintiff by unlawful means.

11. The defendant relies on the provisions of the Workplace Relations Act, in particular, ss.170ML, 170MM, 170MN, 170MO, 170MP, 170MR and 170MT in support of the assertion that the subject industrial action is lawful. There are the provisions of the Workplace Relations Act concerned with the negotiation of certified agreements for the purpose of the industrial scheme under that Act. The plaintiff alleges that the industrial action of the defendant is not protected under these provisions of the statute. The plaintiff relies upon the absence of protection under the Workplace Relations Act to support its claim that the industrial action was unlawful.

14. In its defence, the defendant denies the claims of the plaintiff and alleges, among other matters, that the industrial action is protected industrial action pursuant to the provisions and within the meaning of the Workplace Relations Act. It is further alleged by the defendant that the plaintiff has contravened s.170MC of the statute and, further, s.51AC of the Trade Practices Act 1974. The defendant alleges that the loss and damage, if any, suffered by the plaintiff is attributable to the conduct of the plaintiff, that is, in contravention of s.170MC of the Workplace Relations Act and s.51AC of the Trade Practices Act. Finally, the defendant alleges that the action is barred by virtue of s.166A of the Workplace Relations Act in that there has been non-compliance with the section by the plaintiff.

17. The defendant by summons seeks orders under s.6 of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Vic) ("the Victorian Act") that the proceeding be transferred to the Federal Court of Australia or, an order under s.5(1) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) ("the Commonwealth Act") that the proceeding be transferred to the Federal Court of Australia.

20. On 15 April 2003 the defendant issued separate proceedings in the Federal Court in action No. V246/2003 with respect to alleged breaches by the plaintiff of s.170MC of the Workplace Relations Act and s.51AC of the Trade Practices Act. The defendant alleges in the Federal Court proceedings that the alleged breaches arose from the interference by the plaintiff in the negotiations between the defendant and contractors under the Workplace Relations Act.

23. The defendant issued proceedings in the Federal Court of Australia on 14 November 2003 seeking relief under ss.170MF and 170MG of the Workplace Relations Act, s.80 of the Trade Practices Act, s.39(1A)(c) of the Judiciary Act 1903 (Cth) and ss.21, 22 and 23 of the Federal Court of Australia Act 1976 (Cth).

26. The proceeding in this Court was commenced by the plaintiff on 9 May 2003. In the endorsed statement of claim the plaintiff alleged the salient facts already adverted to and confined its claim against the defendant to one based on tortious conspiracy and related claims. The plaintiff alleged the suffering of loss and damage but no particulars were provided.

29. By a further amended statement of claim filed on 24 November 2003, that is, after the commencement of the proceedings by the defendant in the Federal Court the plaintiff alleged the various breaches by the defendant under the Workplace Relations Act previously described. The plaintiff maintained its claim based on tortious conspiracy and did not seek relief under the Workplace Relations Act or commensurate declaratory relief. The reason for not doing so is clear in that this Court would not have jurisdiction to deal with such matters, that jurisdiction lying exclusively with the Federal Court of Australia.

32. Essentially, the defendant, the present applicant, seeks to have the Supreme Court proceeding transferred under the cross-vesting provisions to the Federal Court. It is alleged that the matters referred to in the pleadings in this Court are, or arise out of, the same matters as those raised in the Federal Court proceedings. There are additional related Federal Court proceedings issued separately by one of the contractors, IES Australia Pty Ltd, against the defendant in proceeding No. V247/2003. In that proceeding, IES Australia Pty Ltd alleges that the industrial action taken by the defendant is unlawful and, as a consequence, loss and damage is claimed.

35. Hence, at the time the Victorian proceedings were commenced there was already a Federal Court proceeding on foot. Subsequently, the plaintiff issued the Supreme Court proceedings based at common law in tortious conspiracy. Next, the defendant instituted its proceeding in the Federal Court alleging breaches under the Workplace Relations Act. After that occurred, the plaintiff amended its statement of claim and relied upon provisions of the Workplace Relations Act for the purposes of making out its claim of tortious conspiracy.

38. The defendant argued in support of its application first by relying upon s.6 of the Victorian Act, namely, that the proceeding constituted a "special federal matter".

41. The matter came before this Court on 27 November and 3 December 2003. On 3 December 2003 the defendant was ordered to serve a written notice on the Attorney-General of the Commonwealth and the Attorney-General of the State of Victoria under s.6(4)(a) of the Jurisdiction of Courts (Cross-Vesting) Act specifying the nature of the special federal matter relied upon. Notices were duly served. On 17 December 2003 the solicitors for the defendant were informed that the Attorney-General of the State of Victoria did not intend to make submissions. On 19 January 2004 the solicitors for the defendant were informed that the Attorney-General of the Commonwealth of Australia did not intend to make submissions also. Subsequently, the parties informed the Court that they did not wish to be heard further on the matter and that they relied upon submissions made previously on 27 November 2003.

44. Subsequently the solicitors for the defendant informed the Court by letter dated 9 December 2003 that the earlier proceeding in the Federal Court between IES Australia Pty Ltd and the defendant, being proceeding No. V247/2003, was to be discontinued on or before 10 December 2003 and that the defendant no longer relied upon the fact of that proceeding in support of its submissions for the transfer of this proceeding to the Federal Court.

47. In some respects the matter of "special federal matters" was considered in Telstra Corporation Limited v CXA Communications Limited[1] and in Computershare Limited v Perpetual Registrars Limited (No. 3).[2]

50. Section 3(1) of the cross-vesting legislation defines a "special federal matter" in part:

"(e) A matter that is within the original jurisdiction of the Federal Court by virtue of s.39B of the Judiciary Act 1903;

being a matter in respect of which the Supreme Court of a State or Territory would not, apart from this Act, have jurisdiction."

55. The defendant submitted that the special federal matter that arose in this proceeding is the reliance by it on the contravention of the plaintiff of s.170MC of the Workplace Relations Act. It was argued that s.39B(1A)(c) of the Judiciary Act applies to bring it within the jurisdiction of the Federal Court and that the Supreme Court has no jurisdiction because it is not an eligible court as defined by s.170ME of the Workplace Relations Act. On that basis, therefore, the defendant submitted that the requirements of s.6(1)(a) of the cross-vesting legislation had been met.

58. The important qualification for the present proceeding is the requirement for a "special federal matter" to be a matter of which the Supreme Court could not otherwise exercise jurisdiction, that is, a matter within the exclusive jurisdiction of the Federal Court. The statutory framework of the cross-vesting scheme makes it clear that there is no legislative warrant to remove jurisdiction from a competent court. The plaintiff alleges in the Supreme Court proceeding various tortious conduct based on picketing and withdrawal of labour and that the torts are clearly within the jurisdiction of the Supreme Court: see Dollar Sweets v FCA[3]; Patrick Stevedores v MUA[4]; Ansett v AFAP[5]; also, National Workforce v AMWU[6].

61. Relevantly, in National Union of Workers v Davids Distribution Pty Ltd[7], the Full Court of the Federal Court considered the question of whether the Supreme Court of New South Wales was deprived of jurisdiction where a federal defence was raised in a State proceeding. The Full Court held, among other matters, that a defence under s.170MT would not deprive the Supreme Court of jurisdiction to determine the principal proceeding if that court chose to do so[8]. Thus, it seems that the jurisdiction of this Court is not ousted by the pleading in the present proceeding of a protected action defence and that the raising of such defence did not create a special federal matter for the purposes of the relevant statute.

64. Importantly, the provisions under the Workplace Relations Act and the Trade Practices Act as pleaded were not raised by way of a defence to the substantive cause of action brought by the plaintiff but as matters that may mitigate against an award of damages against the defendant if the plaintiff succeeds. The manner in which the provisions are pleaded will be relevant to assessment of damages rather than an answer to the allegation of tortious and wrongful conduct as alleged by the plaintiff.

67. There is an additional factor to be taken into consideration. It was argued by the defendant that the inclusion in the defence of reliance on s.51AC of the Trade Practices Act justified bringing the matter within the province of the Federal Court. However, the reference to s.51AC of the Trade Practices Act does not of itself constitute a matter arising under Part IVA of that Act in respect of which the Supreme Court cannot exercise jurisdiction. Similarly, the reference to s.170MC of the Workplace Relations Act does not constitute a matter arising under law made by the Parliament of the Commonwealth in respect of which the Supreme Court cannot exercise jurisdiction: see Felton v Mulligan[9].

70. In addition, the claim by the plaintiff is to sue at common law in respect of alleged tortious acts by the defendant. Such right can be exercised only when a certificate under s.166A of the Workplace Relations Act has been granted and I was informed that is the case here. In those circumstances, the plaintiff is not fettered from bringing the proceeding. Section 166A does not authorise action but merely removes, when a certificate is granted, the prima face prohibition upon such action: see CFMEU v Mirvac[10].

73. For the purposes of the submission by the defendant with respect to s.6 of the Victorian Act, I conclude that there are no matters arising in this proceeding that constitute a "special federal matter" for the purposes of the cross-vesting legislation. However, that is not the end of the matter. The defendant also relied upon s.5(1)(b) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth). Essentially, the argument in this respect on behalf of the defendant was fourfold: first, the Supreme Court proceeding arises out of or is related to the Federal Court proceeding because they both relate to the same matter; secondly, it is more appropriate that the present proceeding be determined by the Federal Court because both proceedings can be determined by one court and all of the issues raised in that proceeding can be determined by the Federal Court but the issues raised in the Federal Court proceeding cannot be determined by the Supreme Court; thirdly, if both proceedings are heard by the same court the risk of conflicting or inconsistent findings between two courts is obviated, but, at the same time, all of the issues raised in the Supreme Court can be ventilated and heard together with the Federal Court proceeding in that jurisdiction; fourthly, it was argued that the Supreme Court and Federal Court proceedings are essentially concerned with issues arising under Federal Law, namely, the meaning, operation and application of various sections of the Workplace Relations Act. On that basis, therefore, it was submitted that the Federal Court is a more appropriate forum for the determination. This position seems to be supported by ss.414(3) and 422(1) of the Workplace Relations Act which gives the Federal Court exclusive appellate jurisdiction in relation to matters arising under that Act.

76. Ultimately it was submitted on behalf of the plaintiff that the proceeding in the Supreme Court is one requiring the application and interpretation of provisions of the Workplace Relations Act, namely s.170MC of that Act and, furthermore, that the Supreme Court does not have jurisdiction in relation to that Act. It was argued that this fact is one of considerable significance in the proceeding. It was also argued on behalf of the defendant that it is in the interests of justice that the Supreme Court proceeding be determined by the Federal Court it being the more appropriate forum: see s.5(1)(b)(i) of the Act and, also, Bankinvest AG v Seabrook[11]. Essentially the plaintiff said little to contest these matters relied upon by the defendant.

79. When account is taken that the Supreme Court is related and reasonably if not strongly, connected to the Federal Court proceeding, both proceedings relating to the same subject matter largely and, further, when consideration is allowed for the fact that there are aspects of the Federal Court proceeding that lie within the exclusive jurisdiction of the Federal Court and which cannot be determined by this Court, those factors operate strongly in favour of this proceeding being heard in the Federal Court. The strength of the position is increased when allowance is made for the desirability of avoiding conflicting or inconsistent findings between two courts considering similar or related issues of fact. When these matters are considered together it seems to me that it is in the interest of justice that the Supreme Court proceeding be determined by the Federal Court, presumably, at the same time that the existing Federal Court proceeding is heard. Having reached this position it is not necessary, therefore, for me to express a view upon the other submissions raised by the defendant in relation to the exercise of the discretion.

82. In the circumstances, therefore, orders should be made under the general cross-vesting provision and I will order accordingly that the proceeding be transferred to the Federal Court of Australia.

[1] [1998] VSC 72; (1998) 146 FLR 481.

[2] [2000] VSC 286; (2000) 2 VR 666.

[3] [1986] VicRp 38; [1986] VR 383.

[4] (1998) 279 IR 286.

[5] [1991] VicRp 36; [1991] 1 VR 637, 2 VR 636.

[6] [1998] 3 VR 265.

[7] [1999] FCA 1109; [1999] 91 FCR 513.

[9] [1971] HCA 39; (1971) 124 CLR 367, 388.

[10] [2000] FCA 341; 171 ALR 279, 286.

[11] (1988) 14 NSWLR 711, 724D and 725G.