John L Pierce Pty Ltd v Kennedy

Federal Court of Australia|2000-12-05|Before: Madgwick J, Madgwick JJ, O'Connor J, Whitlam J

O'CONNOR J 1 I have had the advantage of reading the reasons in draft of Whitlam and Madgwick JJ. 2 I agree with the orders proposed and the reasons given by each of their Honours. I also agree with Madgwick J's additional remarks. I certify that the preceding two (2) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Connor.

On appeal from the Chief Industrial Magistrate of New South Wales

(INSPECTOR UNDER SUBSECTION 84(2) OF THE WORKPLACE RELATIONS ACT 1996)

WHITLAM J 3 This is an appeal under s 422 of the Workplace Relations Act 1996 ("the Act") from orders made by the Chief Industrial Magistrate of New South Wales on 2 February and 2 March 2000. When the appeal was instituted, a date for a directions hearing was appointed in the Registry and the proceeding was allocated to a Judge's docket. However, upon the matter coming on for hearing before the Judge, counsel for the respondent submitted that the Court's jurisdiction in the appeal could only be exercised by a Full Court. The Judge accordingly referred that question of law for the opinion of a Full Court, and this Full Court has been constituted to determine that question. 4 The orders, which are the subject of the appeal, were made by the Chief Industrial Magistrate under s 178 of the Act. Such orders may be made by a "court of competent jurisdiction", which expression is defined in s 177A of the Act as meaning "(a) a District, County or Local Court; or (b) a magistrate's court." Section 4(1) of the Act also provides the following definition of "magistrate's court":

"(a) a court constituted by a police, stipendiary or special magistrate; or (b) a court constituted by an industrial magistrate who is also a police, stipendiary or special magistrate." Counsel for the respondent relies upon the decision in Metropolitan Health Services Board v Australian Nursing Federation (1999) 94 FCR 132, where Lee J held that an appeal from orders made by the Industrial Magistrate's Court of Western Australia under s 178 of the Act had to be heard by a Full Court. 5 It appears to have been assumed in the Registry that the instant appeal could be heard by one Judge sitting alone by virtue of s 25(5) of the Federal Court of Australia Act 1976 ("the Federal Court Act"), which provides: "Subject to any other Act, the jurisdiction of the Court in an appeal from a judgment of a Court of summary jurisdiction may be exercised by one Judge or by a Full Court." 6 In the Metropolitan Health Services Board case Lee J noted (at 133) that the expression "Court of summary jurisdiction" was not defined in the Federal Court Act, but that it was defined in s 26(d) of the Acts Interpretation Act 1901 ("the Acts Interpretation Act"). His Honour then examined (at 134-135) the provisions of the Industrial Relations Act 1979 (WA) ("the WA IR Act"), under which the Industrial Magistrate's Court of Western Australia was established. He concluded that that court heard proceedings under the WA IR Act which were similar to those under s 178 of the Act as part of its "general jurisdiction", as opposed to its "prosecution jurisdiction". Since the WA IR Act specifically provided that, when exercising "prosecution jurisdiction", that court constituted "a court of summary jurisdiction", Lee J held (at 134) that, when exercising "general jurisdiction", that court did not constitute a court of summary jurisdiction as that term was defined in the Interpretation Act 1984 (WA) which provided: "'court of summary jurisdiction' . . . means any justice or magistrate to whom jurisdiction is given by, or who is authorised to act under, the Justices Act 1902, and whether acting thereunder, or under any other Act, or by virtue of his commission, or under the common law;"

7 Counsel for the respondent rests his submission on a similar analysis of the provisions of the Industrial Relations Act 1996 (NSW) ("the NSW IR Act"). Counsel for the appellant supports this approach. However, I think that exercise may be deferred for the moment. In my opinion, the starting point in determining the meaning of "court of summary jurisdiction" in s 25(5) of the Federal Court Act is the law providing for the appeal. In the present case that is the Act. 8 Section 178 of the Act is not a new provision. The section is based on s 119 of the Conciliation and Arbitration Act 1904 ("the C&A Act"), which was authoritatively explained in Gapes v Commercial Bank of Australia Ltd (1979) 38 FLR 431. Basically it provides for the imposition of penalties for breach of awards and for the making of orders in relation to underpayments. Whilst it is true that proceedings under s 178 are civil in nature, J B Sweeney J noted in Gapes (at 457) that, in the form in which it was originally enacted in 1904, the section provided for proceedings in a court of summary jurisdiction. (The provision is set out at 441-442.) 9 When the Act commenced on 1 March 1989 (with the short title Industrial Relations Act 1988), the C&A Act was repealed. Prior to its repeal, section 119(1) of that Act provided for proceedings in courts specified as follows: ". . . any District, County or Local Court or Court of summary jurisdiction that is constituted by a Judge, by a Police, Stipendiary or Special Magistrate or by an Industrial Magistrate appointed under any State Act who is also a Police, Stipendiary or Special Magistrate." Section 178 of the Act now provides for proceedings in those same courts by the use of a different formula of words. 10 Under the C&A Act the fact that a court was constituted by an industrial magistrate had no effect upon the exercise of the Court's jurisdiction in respect of appeals from such a court, since s 119(4B) of that Act provided that the Court's appellate jurisdiction in respect of appeals from all State courts in matters arising under that Act was to be exercised by a Full Court. On the other hand, the Act, when originally enacted in 1988, expressly provided by s 53(1) that such appellate jurisdiction might be exercised by a single Judge.

11 When the Industrial Relations Court of Australia was established by the Industrial Relations Reform Act 1993, s 53(1) of the Act was repealed and the new court was given exclusive jurisdiction in respect of such appeals. Section 423(4) of the Act then provided: "Subject to this or another Act, the Court's jurisdiction in an appeal from a judgment of a court of summary jurisdiction may be exercised by a single Judge or by a Full Court." That provision was repealed, as Lee J noted (at 133) in the Metropolitan Health Services Board case, when the jurisdiction was returned to this Court by the Workplace Relations and Other Legislation Amendment Act 1996. 12 The Industrial Relations Court of Australia derived all its jurisdiction from the Act. However, on any view of the status of a "court of competent jurisdiction" under s 178 constituted by a magistrate, s 423(4) was not otiose. After all, jurisdiction is conferred on magistrates by s 68(2) of the Judiciary Act 1903 in relation to the summary conviction of persons charged with offences against Part XI of the Act. Section 423(4) of the Act used to apply to appeals from those decisions, just as s 25(5) of the Federal Court Act now does. 13 It is now convenient to consider the provisions of the NSW IR Act. Section 381 provides for the appointment of a Chief Industrial Magistrate and other Industrial Magistrates. Such a person must be a Magistrate appointed under the Local Courts Act 1982 (NSW). Section 357 confers on a Local Court constituted by an Industrial Magistrate sitting alone a jurisdiction in respect of breaches of State awards very like that with which it is invested by s 178 of the Act. Section 383 provides: "(1) The Justices Act 1902 and other Acts regulating the procedure before Local Courts constituted by a magistrate (but not the Local Courts (Civil Claims) Act 1970) apply to the exercise of any jurisdiction by the Chief Industrial Magistrate or other Industrial Magistrate, except as provided by the regulations under this section. (2) The regulations may make provision for or with respect to procedure and other matters relating to the exercise of any such jurisdiction of the Chief Industrial Magistrate or other Industrial Magistrate that does not concern proceedings for an offence." Section 397(1) of the NSW IR Act provides that proceedings for an offence against that Act are to be dealt with "summarily" (a) before a Local Court constituted by a Magistrate sitting alone, or (b) before the Industrial Relations Commission of New South Wales specially constituted. For the purposes of s 383, clause 36 of the Industrial Regulations (General) Regulation 1996 (NSW) makes provision as to practice and procedure in proceedings before Industrial Magistrates. However, subclause 36(3) expressly provides that the clause does not apply to proceedings for an offence or to proceedings under s 357. The consequence is that both those kinds of proceedings, when dealt with by an Industrial Magistrate, are governed by the Justices Act 1902 (NSW) ("the Justices Act"). 14 I turn now to the definition in s 26(d) of the Acts Interpretation Act, which is in the following terms: "'Court of summary jurisdiction' shall mean any justice or justices of the peace or other magistrate of the Commonwealth or part of the Commonwealth, or of a State or part of a State, or of an external Territory, sitting as a court (other than the Federal Magistrates Court) for the making of summary orders or the summary punishment of offences under the law of the Commonwealth or part of the Commonwealth or under the law of the State or external Territory or by virtue of his or their commission or commissions or any Imperial Act;" 15 In the Metropolitan Health Services Board case Lee J held (at 136) that when the Industrial Magistrate's Court of Western Australia exercised jurisdiction under s 178 of the Act it was not "sitting as a court for the making of summary orders or the summary punishment of offences" and, therefore, was not sitting as a court of summary jurisdiction within the meaning of that term as used in s 25(5) of the Federal Court Act. His Honour said (at 135-136): "The concept of a court of summary jurisdiction so defined [by the Interpretation Act 1984 (WA)] is consistent with the meaning applied to the term by s 26(d) of the Commonwealth Interpretation Act. 'What is meant by the summary jurisdiction of magistrates is, of course, perfectly well understood by every lawyer': Boulter v Justices of Kent [1897] AC 556 at 567 per Lord Herschell; see also at 563 per Lord Halsbury LC. Although in that case their Lordships were construing statutory provisions expressed in a different form of words from those used in s 26(d) of the Commonwealth Interpretation Act, the principle of construction applied by Lord Herschell in Boulter has equal force in respect of the construction of s 26(d): Hagmaier v Willesden Overseers [1904] 2KB 316; Huish v Justices of Liverpool [1914] 1 KB 109. Boulter was distinguished in R v East Riding of Yorkshire Quarter Sessions; Ex parte Newton [1968] 1 QB 32 but as Lord Denning pointed out in that case (at 53) it concerned a "radically modified" description of a court of summary jurisdiction. In the absence of any words to indicate that s 26(d) of the Commonwealth Interpretation Act, which has remained substantially in the form in which it was enacted in 1901, was intended to provide an expanded meaning for "court of summary jurisdiction" beyond the meaning well-understood by lawyers, there is no reason to read the words "any justice . . . magistrate . . . sitting as a court for the making of summary orders" as words not governed by the following words "or the summary punishment of offences". It is to be noted that the words are not isolated by use of any punctuation marks. From time to time a court exercising civil jurisdiction may make an order that may be described as a "summary order" but it could not be said that in so doing such a court is sitting as a court for the making of summary orders." 16 The authorities cited by Lee J require consideration. Boulter v Kent Justices [1897] AC 556 was concerned with the meaning of the expression "court of summary jurisdiction" in s 31 of the Summary Jurisdiction Act 1879 (UK), which provided for appeals to quarter sessions from "conviction or order". Lord Herschell said (at 567) in the passage from which Lee J quotes an excerpt: "Sec. 31 forms part of an Act to amend the law relating to the summary jurisdiction of magistrates. What is meant by the summary jurisdiction of magistrates is, of course, perfectly well understood by every lawyer, and in relation to that jurisdiction the words "conviction" and "order" have a well-defined meaning. The conviction follows on an information, the order on a complaint. When the licensing justices grant an application for a licence they sign a certificate by means of which the licence is obtained. But where they refuse the application they make no order at all. They simply do not grant the licence applied for. An order is never drawn up, and to speak of the act of the justices in not granting a licence as an order would be, I think, a misuse of the term." In reversing the decision below, his Lordship acknowledged (at 570) that the Court of Appeal had attributed to the words in the statutory definition of the expression in question their natural meaning, but said that the language of s 31 had been "somewhat lost sight of".

17 In Huish v Liverpool Justices [1914] 1 KB 109 a Divisional Court held that justices sitting in petty sessions to whom a county council's powers under a statute to grant cinema licences had been delegated do not, when exercising such powers, sit as a court of summary jurisdiction. That decision and the earlier decisions were explained by Scrutton J this way (at 116-117): ". . . It has been repeatedly held that licensing powers are administrative, as distinguished from judicial, functions, and we have the guidance of the House of Lords in Boulter v Kent Justices that licensing justices sitting in licensing sessions under the Licensing Acts are not a Court of summary jurisdiction within the Summary Jurisdiction Act, 1879, as governed by the Interpretation Act, 1889, and have no power to state a case. The particular point in Boulter v Kent Justices was whether justices had power to give costs against an objector who had appeared at the licensing meeting but did not appear at quarter sessions. The judgments of Lord Halsbury and Lord Herschell both point out that to decide that the justices had such a power would be to read the definition section in the Interpretation Act, 1889, in too wide a sense. The fact that at some time a body is a Court of summary jurisdiction does not make it always a Court of summary jurisdiction; it must be a body which is exercising a judicial, as distinguished from an administrative, function, and the House of Lords held that the licensing authority for public-houses exercises an administrative function and is not therefore a Court of summary jurisdiction. . . . The principle was again applied in . . . Hagmaier v Willesden Overseers. Justices have power under the Juries Act, 1825, to hold a special petty session within a particular period for the purpose of reviewing the jury lists, and the question in Hagmaier v. Willesden Overseers was whether, when so acting, the justices had power to state a special case. It was held that they had no power to do so, because, although sitting in special petty sessions - there is no magic in that expression - it depended upon what they were doing; if they were exercising judicial functions, they were a Court of summary jurisdiction; if they were exercising administrative functions they were not, and had no power to state a case. In that state of the authorities it seems to me that the argument of Mr. Humphrey Williams, that because we find the borough council of Liverpool delegating their powers under the Cinematograph Act, 1909, to justices "sitting in petty sessions" that makes them a Court of summary jurisdiction, must fail. The important matter to consider is what the justices, to whom, sitting in petty sessions, the particular power is delegated, are doing. For these reasons I think the authorities bind us to hold that in the case of this licensing authority, whose powers, when exercised by the borough council, would admittedly have been administrative, and in the case of any licensing authority while exercising administrative functions, there is no power to state a special case." 18 Each of the cases cited by Lee J involved justices who were held to be not sitting as a court of any type. They turn on specific provisions of licensing statutes. Furthermore, Lord Herschell expressly referred to the distinction between convictions and orders made by magistrates in the exercise of summary jurisdiction. If Lee J is to be understood as saying that "the meaning well-understood by lawyers" requires that both summary orders and summary punishment be available in every case before a magistrate in order to fall within the definition in s 26(d) of the Acts Interpretation Act, I am respectfully unable to agree. In particular, it would appear that his Honour may not have been referred to Ex parte Mathews (1918) 18 SR (NSW) 317. In that case the Full Court of the Supreme Court of New South Wales held that, where a provision of the C&A Act gave jurisdiction in regard to the recovery of dues payable to a union by a member to "any Court of summary jurisdiction constituted by a Police, Stipendiary or Special Magistrate", such a proceeding was properly taken before a police magistrate sitting under the Justices Act. Cullen CJ said that such a magistrate undoubtedly came within the words of the definition in s 26(d) of the Acts Interpretation Act. 19 The Summary Jurisdiction Act 1848 (UK), generally known as Jervis's Act, was a great reform measure, which consolidated and amended the law as to procedure before justices of the peace with respect to summary convictions and orders. It was supplemented by the Summary Jurisdiction Act 1857 (UK), which made provision for obtaining the opinion of a superior court on points of law arising in the exercise of the summary jurisdiction of justices by means of a case stated. That last-mentioned Act was invoked in an Irish case by the licensee of a public house at Donnybrook to whom the local justices had refused to grant a certificate under a licensing statute to the effect that the house had been properly conducted during the previous year. In a decision which anticipated that in the Liverpool Justices case by almost three-quarters of a century, a Divisional Court held in Re Dillon (1859) 11 ICLR 232 that such refusal was not a determination made by the justices in the exercise of summary jurisdiction upon an "information or complaint" as required by the 1857 Act. Hayes J said (at 238): "[The section] speaks of the determination of an "information or complaint" in a summary way. The term "information" is of well-defined meaning; and, whether it be in writing or ore tenus, is understood to be the initiatory step in proceedings of a criminal nature, which are to be disposed of summarily, while I apprehend the term "complaint" designates the initiatory step in summary proceedings of a civil nature; but equally in both cases there is contemplated the existence of a matter in controversy between two parties."

20 The 1848 Imperial Act was applied in New South Wales by the Justices Act 1850 (NSW) and continued to apply until it and the 1850 Act applying it were repealed in 1902 by the Justices Act, which consolidated the law relating to magistrates and justices. The procedure relating to summary offences and complaints was re-enacted in Division 2 of Part 4 of the Justices Act. (See generally Spautz v Dempsey, Butterworth and Williams [1984] 1 NSWLR 449 at 454-459.) 21 Summary proceedings are initiated under the Justices Act by either information or a complaint. Section 53 of that Act provides: "A complaint may be made to a Justice in any case where a Justice or Justices has or have authority by law to make an order for the payment of money, or otherwise." 22 In Chinchen v Weiss [1964] NSWR 357 McClemens J noted (at 358) the distinction between the two types of initiating process and referred with approval to the explanation for the difference given by Hayes J in Re Dillon. That case was argued on the assumption that, if the statutory provision under which money was being claimed did not create an offence, then the proper originating process was a complaint under s 53. His Honour held that the provision in question did not create an offence, but he declined to express an opinion on a matter that had not been argued before him, namely, whether the use of an inappropriate originating process would vitiate proceedings. 23 In the present case the Chief Industrial Magistrate must be taken to have heard the proceeding under s 178 of the Act in accordance with the procedure provided for in Pt 4, Div 2 of the Justices Act. Unsurprisingly there is no reference in his judgment to procedural considerations of this kind. The appeal papers show that the respondent initiated the proceeding by laying an information alleging breaches of three different award terms, that the appellant pleaded "guilty" to one alleged breach and "not guilty" to the other alleged breaches, and that the cases were heard together. The history of the Justices Act, to which I have referred above, does not admit of any doubt, in my opinion, that the Chief Industrial Magistrate was exercising what is described as summary jurisdiction. Perhaps the proceeding should have been initiated by a complaint, rather than an information, but that is beside the point. 24 Furthermore, so far as the definition in s 26(d) of the Acts Interpretation Act is concerned, I can see no reason why orders made at the conclusion of summary proceedings do not fit the description "summary orders". I quite agree that it is unlikely that the statutory definition was intended to provide an expanded meaning for the expression "court of summary jurisdiction". It may be that, as Lord Halsbury LC observed in Boulter v Kent Justices (at 563), the words "summary jurisdiction" refer to a procedure "primarily" criminal, but they are not so confined. As I have attempted to explain, they also extend to proceedings under statute for the payment of money. Parliament has frequently used the expression "court of summary jurisdiction" in a context involving the exercise of civil jurisdiction: see for example, Navigation Act 1912, ss 71(1), 101(1), 162(3) and 212(2). 25 It follows, in my opinion, that this is an appeal covered by s 25(5) of the Federal Court Act and that it does not have to be heard by a Full Court. I agree with the orders proposed by Madgwick J. I certify that the paragraphs numbered three (3) to twenty-five (25) are a true copy of the Reasons for Judgment herein of the Honourable Justice Whitlam.

On appeal from the Chief Industrial Magistrate of New South Wales

(INSPECTOR UNDER SUBSECTION 84(2) OF THE WORKPLACE RELATIONS ACT 1996)

REASONS FOR JUDGMENT MADGWICK J 26 I agree with the conclusions and reasons of Whitlam J. I add some additional comments. What is a court of summary jurisdiction for the purposes of s 25(5) of the Federal Court of Australia Act 1976? 27 The main task at hand is to determine the meaning of s 25(5) of the Federal Court of Australia Act 1976 (Cth) ("the FCA Act"). Section 25(5) (like s 423(4) of the Workplace Relations Act 1996 (Cth) ("the WR Act") until its repeal in 1996) is directed to enabling rational and appropriate use of the judicial resources of a superior court. 28 Parliament may be assumed to have had in mind the position, which has prevailed for many years in the States and Territories, that generally there are three "levels" of trial courts - Magistrates' courts, District or County Courts constituted by persons formally designated as judges and the Supreme Courts. In general, appeals from the lowest, or magistrate, level of courts are heard by a single judge of a higher court. However, these distinctions of nomenclature, indicia of relative judicial status, are not necessarily uniform. A State Parliament could require magistrates to be called what they are, namely judges. Proceedings before judicial officers called magistrates may be statutorily fitted out with the panoply of procedural steps and formalities (and usually attendant delays) that characterise the higher courts. (It would seem, from Lee J's judgment in Metropolitan Health Services Board v Australian Nursing Federation (1999) 94 FCR 132, that the Industrial Magistrate's Court of Western Australia may be such an example). It would be reasonable to impute to the authors of s 25(5) of the FCA Act the assumption that, in general, the degree of the formality of the procedures of a court would be a workable guide to its placement within the judicial hierarchy for the purposes of determining whether all appeals from that court, or only the most important, should require the attention of the Full Federal Court. 29 That is what the Commonwealth Parliament appears to have done by the reference in s 25(5) of the FCA Act to a "court of summary jurisdiction" and that is so, in my opinion, whether or not the presumptive meaning of that phrase in the Acts Interpretation Act 1901 (Cth) ("the AI Act") is applied. As Whitlam J demonstrates, the AI Act definition does not require that the court appealed from must have had summary jurisdiction in criminal cases only. 30 I see no reason not to apply the AI Act definition. If, however, it be put aside, one would presumably then look to the "ordinary meaning" of the phrase: although it refers to legal matters, the phrase is hardly so hallowed as to have become a legal term of art. As a matter of ordinary language, the description "court of summary jurisdiction" captures the foregoing notion of a relative lack of formality of the proceedings. The Shorter Oxford English Dictionary gives the following meaning to "summary" in the context of the law: "Applied to the proceedings in a court of law carried out rapidly by the omission of certain formalities required by the common law" The same dictionary gives as an example of this meaning the phrase "summary jurisdiction", which is explained as: "the determination of cases expeditiously without reference to the ordinary requirements of the common law" The Macquarie Dictionary gives the following definition of "summary" in the context of "legal proceedings, jurisdiction etc": "conducted without or exempt from the various steps and delays of full proceedings". Even the admittedly common use of the term to refer to criminal proceedings (recognised elsewhere in the Macquarie Dictionary) is founded on the idea of the trial of offences without the formality of a full jury trial. Thus, in my opinion, adoption of the ordinary meaning of the phrase in English, in its context, would lead to no different result from that if the AI Act meaning were applied. 31 The third possible meaning is to treat the phrase as a term of art, limited to courts exercising summary jurisdiction in criminal cases. But that would have the result that s 25(5) of the FCA Act would require that every civil case (including cases about WR Act penalties) should be treated as more worthy of hearing by a Full Court then some cases threatening the actual liberty of citizens. Such an intention ought only to be imputed to the Parliament if there is no other reasonable construction available, and I think that another such construction can reasonably be made. As Whitlam J demonstrates, on examination, there is neither binding nor persuasive authority to necessitate adoption of this inconvenient, third possible meaning. Is the Chief Industrial Magistrate's Court a court of summary jurisdiction? 32 The other question in the case is whether the NSW Chief Industrial Magistrate was, in fact sitting as a court of summary jurisdiction. Section 79 of the Judiciary Act 1903 (Cth) ("the Judiciary Act")provides: "The laws of each State or Territory, including the laws relating to procedure, evidence, and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State or Territory in all cases to which they are applicable." 33 Section 383 of the Industrial Relations Act 1996 (NSW) ("the IR Act") provides: "(1) The Justices Act 1902 and other Acts regulating the procedure before Local Courts constituted by a Magistrate (but not the Local Courts (Civil Claims) Act 1970) apply to the exercise of any jurisdiction by the Chief Industrial Magistrate or other Industrial Magistrate, except as provided by the regulations under this section. (2) The regulations may make provision for or with respect to procedure and other matters relating to the exercise of any such jurisdiction of the Chief Industrial Magistrate or other Industrial Magistrate that does not concern proceedings for an offence. Part 4 Inspectors and their powers." 34 Regulation 36 of the Industrial Relations (General) Regulation 1996 (NSW)provides: "(1) For the purposes of section 383 of the Act, the provisions of the Act, the regulations and rules of the Commission as to the practice and procedure of the Commission in Court Session (except in criminal proceedings) apply, with all necessary modifications, to proceedings before the Chief Industrial Magistrate or other Industrial Magistrate. (2) Without limiting subclause (1), the Chief Industrial Magistrate or other Industrial Magistrate may hear evidence orally or by affidavit and may hear evidence whether or not notice to call the evidence has been given. However, if the interests of justice so require, a witness is to be called to give oral evidence instead of evidence by affidavit. (3) This clause does not apply to proceedings for an offence or to proceedings under section 357 of the Act for a civil penalty for a contravention of an industrial instrument." 35 It may be acknowledged that s 79 of the Judiciary Actdoes not in terms purport to do more than to 'pick up state laws with their meaning unchanged': see Pedersen v Young (1964) 110 CLR 162 per Kitto J at 165. However both s 79 and those State laws, particularly as to procedure, are to be given a purposive and practical interpretation, rather than a narrow and literal one: s 15AA AI Act and s 33 Interpretation Act 1987 (NSW). Section 79, as French J has pointed out, has as its very rationale "to apply the rules of State law in cases to which they might otherwise be inapplicable" and some extension of those rules will be effected to the extent "necessary to enable those rules to so apply": Pavich v Bobra Nominees Pty Ltd (1988) 84 ALR 285 at 289-90. 36 Regulation 36 intends that there be three classes of proceedings before the NSW Industrial Magistrate: (1) proceedings for an offence (they are, of course, criminal proceedings); (2) proceedings for a civil penalty for contravention of an industrial instrument (s 357 of the IR Act is the State source of such proceedings); and (3) other proceedings. The instant proceedings, looking at the substance of the matters involved, fall within the second category. Hence, it is the Justices Act 1902 (NSW) ("the Justices Act") which principally governs the procedure in such a case. The procedure under that Act is of a summary kind. Hence, the Chief Industrial Magistrate was sitting as a court of summary jurisdiction and made summary orders in the disposition of the proceedings that are now before this Court Ex parte Mathews 37 In this case, reported at (1918) 18 SR (NSW) 316, a summons was issued, from the Central Police Court in Sydney, under the provisions of the Justices Act,by a federally registered organisation of employees against a member for non-payment of various union dues. Section 68 of the Conciliation and Arbitration Act 1904 provided that such dues could be "sued for and recovered" by such a union "in any Court of summary jurisdiction constituted by a police, stipendiary or special magistrate". The union member objected that the Police Court had no jurisdiction and that the union should have sued in the Small Debts Court. He argued (relevantly to present purposes) that the words "sued for and recovered" connoted a civil, not criminal jurisdiction, and the Small Debts Recovery Act 1912 (NSW) gave a Court of Petty Sessions jurisdiction to hear and determine matters in a summary way. 38 The Court unanimously dismissed the jurisdictional challenge. Cullen CJ, with Gordon J agreeing, said that the "magistrate in the proceeding undoubtedly came within [s 26 of the AI Act]", (which was then in the same form as now). On any basis, this supports Whitlam J's approach because, as he demonstrates (and, I hope, my earlier comments confirm), the Chief Industrial Magistrate was also operating under the (successor to the then) Justices Act. 39 It is strictly unnecessary to say more. However, in Ex parte Mathews Cullen CJ relied on Ex parte McShane (1878)1 SCR(NS)(NSW) 10 at 12, in which Martin CJ had said: "By the Small Debts Acta jurisdiction is given to Courts of Petty Sessions to be exercised in a summary way. But a section in that Act makes those Courts Courts of record, and another provides that their orders shall be final and conclusive to all intents and purposes. Now it seems to me that what is done by these Courts is different to what is done by Justices in Petty Sessions, within the meaning of the enactments which give the right to a prohibition. The judgments of a Small Debts Court are more in the nature of verdicts, and are not, I think, 'convictions or orders' within the meaning of the Justices Acts."

40 Further, Ferguson J came right to the point: "I am of the same opinion. The Conciliation and Arbitration Act provides that these moneys may be sued for and recovered in any Court of summary jurisdiction. The Acts Interpretation Act, s.26, defines a Court of summary jurisdiction to mean Justices sitting as a Court for the making of summary orders or the summary punishment of offences. Those words exactly describe Justices sitting under the provisions of the Justices Act, and they are not at all applicable to a Court of Petty Sessions established under the provisions of the Small Debts Recovery Act. That is not a Court sitting for the making of summary orders or for the summary punishment of offences; it is a Court of record sitting to hear and determine ordinary civil actions." 41 These views must be taken to express the contemporary Australian understanding of "summary orders", in line with English authority when the AI Act was passed in 1901. But, a hundred years later, they do not reflect what, in my opinion, Australian lawyers would generally understand by that phrase. Australian lawyers would now, in my view, understand the words in the same way as the authors of the dictionaries cited above. 42 The AI Act, like other statutes, should in general be regarded as "always speaking", that is, speaking for our own times as well as for 100 years ago. A contemporary understanding of terms used therein is to be preferred. The discussion of this matter by Professor Pearce ("Statutory Interpretation in Australia", 4th ed, Butterworths 1996) is illuminating. He concludes: "Ordinarily legal expressions will be treated like other expressions as being ambulatory. So what constitutes an 'error of law' is to be determined by having regard to those errors that are currently so categorised even though this might be a wider range of actions than were so regarded when the Act was passed: Szelagowicz v Stocker (1994) 35 ALD 16." 43 The established bases for preferring "contemporaneous expositions" of the meaning of an Act to current conceptions seem lacking here: it is unlikely that persons would have ordered their affairs in reliance on such an exposition; the old judicial exposition does not seem to have depended on a then judicial awareness of the reasons underlying the use of the particular legislative expression; and the AI Act was not a code intended to state all the law at the time of its making.

44 To the modern legal reader, fine distinctions between "verdicts", "judgments" and "orders" are, in the present context, unconvincing. The expansion in the last century of the variety of judicial remedies provided under both judge-made and statutory law has blurred the hard edges of former verities in this area. 45 Further, the only remaining significance of a civil court being a "court of record" seems to be that it can, itself, punish all contempts of it. This does not exalt them over modern, summary, criminal courts. As Brereton J said in Ex parte Power, Re Devereaux [1957] SR (NSW) 253at 260: "The term 'court of record' is one of well-accepted legal connotation, and any court which has power to fine or imprison for contempt or for any other offence is at common law a court of record." Again, for present purposes, whether a court is a court of record is of little account, as would be a State-based privative clause (which, of course, could not insulate a State court exercising federal jurisdiction from appeals made available by a Commonwealth law), which was a factor in the decision in Ex parte Mathews. 46 In my opinion, in s 26 of the AI Act, "a Court for the making of summary orders" should be now understood as including any court for the giving of civil relief which operates by way of summary, that is to say, relatively informal procedures. Disposition 47 It should be declared that, pursuant to s 25(5) of the FCA Act, this appeal may be heard by a single judge of this Court. The matter should be remitted to me, as docket judge, for further hearing of the appeal. I certify that the preceding paragraphs numbered twenty-six (26) to forty-seven (47) are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Solicitor for the Applicant: PricewaterhouseCoopers Legal

Solicitor for the Respondent: Australian Government Solicitor

Acts Interpretation Act 1901(Cth)ss 15AA, 26(d)

Judiciary Act 1903(Cth)ss 68(2), 79

Industrial Relations Act 1996(NSW)ss 357, 381, 383, 397(1)

Federal Court Act 1976(Cth)

Workplace Relations Act 1996(Cth)ss 4(1), 177A, 178

Industrial Regulations (General) Regulation 1996(NSW)reg 36

Justices Act 1902(NSW)s 53

Local Courts Act 1982(NSW)

Justices Act 1850(NSW)

Industrial Relations (General) Regulation 1996(NSW)

Small Debts Recovery Act 1912(NSW)

At a glance

Court

Decision date

Before

Source

Judgment (16 paragraphs)

Parties

Legislation Cited (15)

Cases Cited (4)

Cited By (3)