Katherine Jackson v Peter James Mylan

FACTUAL BACKGROUND 6I think it fairly may be said that the factual background to these proceedings, and the proceedings in the Industrial and Federal Courts, have gained some notoriety and were not disputed by any of the active parties before me. They are summarised in the longer affidavit of the plaintiff, Katherine Jackson, sworn on 17th May 2012, which together with the documents forming Exhibit "KJ-1 CV" were read before me, with some exceptions which were not pressed in the face of Mr. Crawshaw's objections. 7Even with the omissions, the substantial common ground remained and it became apparent to me during the course of the hearing that what separated the parties were legal differences. 8Controversy amongst the parties concerns the affairs of the various manifestations of the Health Services Union. For present purposes, I will refer to the Health Services Union as, the Federal Union, HSUEast as the Federal branch, and HSUeast as the State Union. The Federal Union is registered under the Fair Work (Registered Organisations) Act 2009 (Cth) ("the Federal Act"), and the State Union under the Industrial Relations Act 1996 (NSW) ("the State Act"). 9The plaintiff is a member and National Secretary of the Federal Union; a member and Executive President of the Federal Branch, and in circumstances which I will explain by reference to her evidence in a moment, also Executive President and a member of the State Union. The following evidence appears in her affidavit: 5. The rules of the [Federal Union] provide for a number of autonomous branches. Those branches exist under the Federal Rules, and operate in practice as though they are separate entities, but do not have a separate legal personality. 10The Federal branch was formed by an amalgamation of three branches of the Federal Union which took legal effect on 24th May 2010 (affidavit [7]). After contested litigation, including an appeal, which incidentally was heard and determined by Boland P, certain rule changes were given legal effect which led to the following practical result: 10. The State Union and the Federal Branch have identical officials holding identical offices and identical memberships. A member of one is automatically a member of the other. ... 12. In a day-to-day practical sense, the State Union and the Federal Branch operate as a single entity .... Members working in the federal industrial relations system (mostly members in the private sector) are represented through [the Federal Branch] and members working in the NSW state industrial relations system (mostly members in the NSW Public Sector) are represented through [the State Union], albeit through the same staff and officials. 13. In reality, [the State Union] holds effectively all the assets and receives all the membership fees paid by members in respect of their membership of both the [Federal Branch] and the [State Union], and employs all organisers and other staff (albeit that I contend that, at law, there is a joint employment at law of all organisers and staff by both [the State Union and the Federal Branch]). 11There was no dispute, despite this interweaving of office holders, membership, funds and property, that the State Union and the Federal Branch (as a manifestation of the Federal Union) were separate legal entities, with a legal personality each of its own, distinct from its members: Moore v. Doyle (1969) 15 FLR 59. 12It was also common ground that the affairs of the Federal Branch and the State Union were in disarray and in need of legal intervention. Indeed, by reference to the position taken by Mr. Mylan and the State Union, the State Minister and the Federal Minister - as documented in the transcript of proceedings before Boland P on Wednesday 16th May 2012 (Exhibit 1 before me) - the State Union is dysfunctional and requires, inter alia, the appointment of an administrator. The plaintiff does not agree with the aptness of this remedy, but as I will demonstrate below, agrees that legal intervention is required.

THE VARIOUS LEGAL PROCEEDINGS 13There are three proceedings in the Federal Court of Australia, and one in the Industrial Court of New South Wales. In chronological order they are: (a)NSD 579/2012 (the Jackson proceedings) brought by the plaintiff (Ex KJ-1CV page 1 - 9). It seeks remedies in what it refers to as both the "original jurisdiction" of the Federal Court, by reference to the Federal Act, and the "accrued jurisdiction" of the Federal Court in respect of the State Union by reference to the State Act. Mr Mylan is the first respondent and the Federal Union and the State Union are the 75th and 76th respondents respectively; (b)NSD 6132/2012 brought by the Federal Minister seeking a declaration, under s.323(1) of the Federal Act, that the Federal Branch has ceased to function effectively, and proposing a scheme which includes the appointment of an administrator to both the Federal Branch and the State Union (Ex. KJ-1CV 39-42); (c)NSD 621/2012 brought by Christopher Paul Brown and five others (the Brown proceedings). I am informed from the Bar Table without objection that Mr Brown is the Secretary of the Tasmanian Branch of the Federal Union. There are 76 respondents including the plaintiff in this Court and the Federal Union. The orders sought are similar to those sought by the Federal Minister and include the appointment of an administrator to the Federal Branch and the State Union; (d)The proceedings before the Industrial Court of New South Wales, No. IRC 580 of 2012, seeking relief which mirrors the relief sought in the Federal Minister's Federal Court proceedings including the appointment of an Administrator under s.290B of the State Act in respect of the State Union. The applicants are the State Union itself and Mr. Mylan, an officer of the State Union. Listed as persons who are interested in or may be affected by the application are the State Minister, the Federal Minister, the Federal Union and the present plaintiff, inter alia. (Ex. KJ-1CF-83-89).

THE CROSS VESTING LEGISLATION 14So far as is relevant to the present application, s.8 of the Jurisdiction of Courts (Cross Vesting) Act 1987 ("the cross vesting legislation") provides: 8. Orders by Supreme Court (1) Where: (a) a proceeding (in this subsection referred to as the relevant proceeding) is pending in: (i) a court, other than the Supreme Court, of the State, or (ii) a tribunal established by or under an Act, and (b) it appears to the Supreme Court that: (i) the relevant proceeding arises out of, or is related to, another proceeding pending in the Federal Court, the Family Court or the Supreme Court of another State or of a Territory and, if an order is made under this subsection in relation to the relevant proceeding, there would be grounds on which that other proceeding could be transferred to the Supreme Court, or (ii) an order should be made under this subsection in relation to the relevant proceeding so that consideration can be given to whether the relevant proceeding should be transferred to another court, the Supreme Court may, on the application of a party to the relevant proceeding or of its own motion, make an order removing the relevant proceeding to the Supreme Court. (2) Where an order is made under subsection (1) in relation to a proceeding, this Act applies in relation to the proceeding as if it were a proceeding pending in the Supreme Court. (3) Where a proceeding is removed to the Supreme Court in accordance with an order made under subsection (1), the Supreme Court may, if the Supreme Court considers it appropriate to do so, remit the proceeding to the court or tribunal from which the proceeding was removed. 15S.5 of the cross-vesting legislation provides: 5. Transfer of proceedings (1) Where: (a) a proceeding (in this subsection referred to as the relevant proceeding) is pending in the Supreme Court, and (b) it appears to the Supreme Court that: (i) (Repealed) (ii) having regard to: (A) whether, in the opinion of the Supreme Court, apart from any law of the Commonwealth or another State relating to cross-vesting of jurisdiction and apart from any accrued jurisdiction of the Federal Court or the Family Court, the relevant proceeding or a substantial part of the relevant proceeding would have been incapable of being instituted in the Supreme Court and capable of being instituted in the Federal Court or the Family Court, (B) the extent to which, in the opinion of the Supreme Court, the matters for determination in the relevant proceeding are matters arising under or involving questions as to the application, interpretation or validity of a law of the Commonwealth and not within the jurisdiction of the Supreme Court apart from this Act and any law of the Commonwealth or another State relating to cross-vesting of jurisdiction, and (C) the interests of justice, it is more appropriate that the relevant proceeding be determined by the Federal Court or the Family Court, as the case may be, (iii) (Repealed) the Supreme Court shall transfer the relevant proceeding to the Federal Court or the Family Court, as the case may be. .................... (9) Nothing in this section confers on a court jurisdiction that the court would not otherwise have. 16For the purpose of ss.8 and 5 of the cross vesting legislation, the relevant proceeding is the application pending in the Industrial Court of New South Wales. 17For the plaintiff to secure an order transferring the State proceeding to the Federal Court, s.8 must first be satisfied, then s.5(1).

THE ISSUES FOR DETERMINATION 18The active parties divided effectively into two camps. The plaintiff appeared to enjoy the support of the Federal Minister, for although Mr Price did not introduce any evidence or make any oral submissions, he adopted the submissions of Mr. Assaf who, amongst other matters, tendered Exhibit B - the outline of submissions and statement of contentions lodged on behalf of the Federal Minister in the Federal Court proceedings. These submissions (page 5 [24] - page 7[34]) strongly advanced the argument that the Federal Court has accrued jurisdiction to deal with the matters in controversy in the State proceedings. Mr Mylan and the State Union made common cause with the State Minister in opposing an order, substantially, but certainly not solely, on the ground that it was seriously arguable that the Federal Court does not have jurisdiction, accrued or otherwise, to determine the State proceedings, and the Industrial Court undoubtedly has: Valceski v. Valceski (2007) 70 NSWLR 36 at 43[21] per Brereton J. Mr. Crawshaw and Mr. Lancaster also argued that the plaintiff failed at the outset because a s.8 Order removing the proceedings from the Industrial Court to this Court could only be made on the application of a party to the relevant proceeding, or of its own motion. It was argued that the plaintiff was not a party to the Industrial Court proceedings and the Court, in the circumstances, would be slow to act on its own motion. 19Mr Assaf for the plaintiff made detailed oral submissions, and Mr Crawshaw and Mr Lancaster supplemented their respective, careful, written argument orally. The constraints of time operate against setting out the arguments in detail.

PRELIMINARY MATTER - IS MS JACKSON A PARTY TO THE RELEVANT PROCEEDINGS? 20The plaintiff is a member and Executive President of the State Union. Moreover, she is named in the application in the State proceedings as a person who is interested in,or may be affected by the application. At page 7 [31] of her affidavit, the plaintiff gives evidence that her office as Executive President of the State Union is a full time paid position. She states she will lose her livelihood if she is removed from office as a result of the relief sought in the State proceedings being granted. She calls in aid s.290B(11) of the State Act which provides that the Industrial Court must not make an order, inter alia, appointing an administrator unless the [Industrial Court] is satisfied that the order would not do substantial injustice to .... any member of [the State Union]. By reference to s.290B(13) I infer that she is a person to whom the Industrial Court has determined that notice must be given. Exhibit 1 establishes that when the State proceedings were before Boland P. on 16th May 2011, the plaintiff was represented by Senior Counsel who appeared as of right. And he exercised his right of audience: Exhibit 1 page 7.40 - 8.25. From this evidence I infer that the plaintiff is a party to the State proceedings: see Woollahra Municipal Council v. Jeffries [1981] 1 NSW LR 377 at 383 D - F per Huntley JA and at 388 C - F per Mahoney JA; Deputy Commissioner Taxation v Westpac (1987) 72 ALR 634 at 635.10. 21Moreover, if I am otherwise satisfied in terms of s.5(1) of the cross-vesting legislation that it is more appropriate that the [State proceeding] be determined by the Federal Court I will not shrink from making the necessary order of my own motion. In saying so, I am mindful that in BHP Billiton Ltd v. Schultz (2004) 221 CLR 400 at 437 [71], by reference to s.5(7),and, by implication, the concluding words of s.5(1), Gummow J said: ...it is inapt to speak of the applicant for an order for transfer as bearing a burden of persuasion analogous to an onus of proof. (His Honour implied approval of the dictum of Rogers A-JA in Bankinvest AG v. Seabrook (1988) 14 NSWLR 711 at 727 B.) 22At page 435 [63] Gummow J said: If it "appears" to the Supreme Court to be "otherwise in the interests of justice" that there be a transfer, then the Supreme Court "shall transfer the relevant proceeding". Again, no question of discretion arises. The word "shall" imposes a duty which must be performed.

THE SUBSTANTIVE ISSUE 23Is it more appropriate that the State proceeding be determined by the Federal Court? The plurality in BHP Billiton at page 421 [14] said: If it appears to [the Supreme Court] that it is in the interests of justice that the proceedings be determined by another designated Court, then the first Court "shall transfer" the proceedings to that other Court. There is a statutory requirement to exercise the power of transfer whenever it appears that it is in the interests of justice that it should be exercised. It is not necessary that it should appear that the first Court is a "clearly inappropriate" forum. It is both necessary and sufficient that, in the interests of justice, the second Court is more appropriate. 24Mr. Assaf put his case for removal of the State proceedings to this Court alternatively on two bases. First, he invoked s.8(1)(b)(i) and argued that the State proceeding arises out of, or is related to, the proceeding pending in the Federal Court. When one has regard to, and compares, the pleadings in the Federal Court, certainly in the Federal Minister's and the Brown proceedings, including the relief sought, the parties and like issues, there can be no doubt that the proceedings are related. Indeed, having regard to the evidence as to how the State proceeding arose, it might fairly be said that the State proceeding arises out of the Federal proceeding. 25However, I am not satisfied that if an order is made under s.8(1) there would be grounds on which [the State proceeding] could be transferred to this Court, other than for the purpose of giving consideration to whether that proceeding should be transferred to the Federal Court. This then leads into Mr. Assaf's second argument that sub par. (ii) of subsection (1) is engaged and that an order for removal should be made for the purpose of that consideration. Although this seems a clumsy approach linguistically, the section contemplates that proceedings having been removed for such consideration may, if appropriate, be remitted to the original Court or Tribunal: s.8(3). I therefore am persuaded on the plaintiff's application, or if I am wrong about her status as a party, on my motion, that an order removing the State proceeding to this Court should be made. However, I will not make that order now, but will give consideration to whether the proceedings should be transferred to the Federal Court, which requires me to engage with the provisions of s.5(1). 26S.5(9) should be emphasised: Nothing in this Section confers on a Court jurisdiction that the Court would not otherwise have. 27The debate before me focused upon whether the Federal Court had accrued jurisdiction to determine the proceeding in the exercise of Federal jurisdiction. If it had not, I could not be satisfied that having regard to, inter alia, the interests of justice, it is more appropriate that the [State proceeding] be determined by the Federal Court. 28Although the arguments of Mr. Crawshaw and Mr. Lancaster advanced on a wider front, the argument that the Federal Court had no jurisdiction to determine the State proceedings was in the vanguard. Each relied upon the analysis of Brereton J in Valceski and in particular, at [20] - [24]. At [24] his Honour refined the question as follows: Is it seriously arguable that the [Federal Court] does not have jurisdiction to entertain the [State proceeding] in the circumstances of this case? If so, it will not be a more appropriate Court to hear the [State proceeding] than this Court, which indisputably has jurisdiction. In formulating the question in that way, his Honour had regard to the provisions of s.5(9), enacted by Federal Courts (Consequential Provisions) Act 2000 (NSW) following Re Wakim; ex parte McNally (1999) 198 CLR 511, which held invalid State legislation purporting to confer State jurisdiction on Federal Courts. 29The State court is named the Industrial Court of New South Wales (Exhibit KJ - 1CV - page 83). Under the State Act, s.149, the Governor is empowered to appoint a legally qualified Presidential Member of the Industrial Commission as a Member of the Commission in Court session. These Members are referred to as judicial members of the Commission. The Commission in Court Session must exercise some functions of the Commission (s.150). Section 151A provides that the name of the Commission in Court Session is to be the Industrial Court of New South Wales. That Court is established as a superior court of record, equivalent, for some purposes, in status to this Court (s.152). 30Section 290B of the State Act appears in Division 11 of Part 4 of Chapter 5, and by dint of s.153(1)(e) the functions of the Commission invoked by the First and Second Defendants may only be exercised by the Commission in Court Session, the Industrial Court of New South Wales. 31The remedies sought in the Industrial Court, include a declaration, the appointment of an administrator, and the approval of a Scheme under Court supervision. These are all historical manifestations of the exercise of judicial, rather than arbitral,power and, in any event, mirror the relief sought in the Federal Minister's proceedings and the Brown proceedings in the Federal Court: Exhibit KJ - 1 CV page 39 and Exhibit KJ - 1 CV page 58. No question of the type identified by the plurality in Mellifont v. Attorney General (Qld) (1991) 173 CLR 289 at 300 arises as a potential bar to the idea that the Federal Court may have accrued jurisdiction in this matter. 32In determining the question of whether the Federal Court does have accrued jurisdiction, I have gratefully drawn upon the analysis and review of the relevant authorities carried out by Brereton J in Valceski and, in particular, at page 48 [38] to page 50 [40]. I will not repeat his Honour's learned and insightful work. 33The Federal Minister and Brown proceedings are brought under s.323 of the Federal legislation which has a similar content and scope to s.290B of the State legislation. This Federal law confers jurisdiction on the Federal Court. The plaintiff's proceeding in the Federal Court invokes, inter alia, ss.206 and 338 of the Federal legislation. The latter section is in the following terms: Jurisdiction is conferred on the Federal Court in relation to any matter (whether civil or criminal) arising under this Act. In some respects the jurisdiction of the Federal Court is said to be exclusive: s.339 (see generally Part 5 of the Federal Act). 34I draw the following considerations from Brereton J's analysis. I have omitted his Honour's citations: (a)When a Federal law confers jurisdiction on a Court in respect of a matter, the jurisdiction extends to authorise the determination of the whole matter; (b)A matter is a "justiciable controversy" which may involve the determination of both Federal and State law, once federal jurisdiction is attracted, a federal court is armed with full authority essential for the complete adjudication of the "matter" and not merely the federal aspect of it. This is the origin of "accrued jurisdiction"; (c)The authority to determine non-federal aspects of a justiciable controversy requires that "non-federal aspects" of the controversy form an integral part of it; the last requirement will be satisfied where the different claims, federal and non-federal arise out of "common transactions and facts" or a "common substratum of facts" notwithstanding that the facts upon which the claims depend "do not wholly coincide"; (d)An important consideration is whether different claims are so related that the determination of one is essential to the determination of the other; (e)Likewise where if the proceedings were tried in different Courts there could be conflicting findings made on one or more issues common to the two proceedings; (f)The jurisdiction of the Federal Court extends beyond the determination of the federal claim to the litigious or justiciable controversy between the parties, of which the federal claim or cause action forms a part. 35By reference to Wakim Brereton J said at p. 49[40]: The identification of the justiciable controversy was not to be determined only by the consideration of there being separate proceedings and different parties in one Court. The central task was to identify the justiciable controversy, which would ordinarily require close attention to the pleadings and the factual basis of each claim. 36In Wakim at page 587 [145] Gummow and Hayne JJ said: If the "matter" is to be identified from what the parties allege and how they conduct the proceeding ... and if the "justiciable controversy" refers (in part, at least) to the factual dispute between them, there is no warrant for holding that federal jurisdiction ends as soon as a new party (against whom no federal claim is made) is added. 37Moreover, as Gleeson CJ, and Gaudron and Gummow JJ observed in ASIC v. Edensor Nominees Pty Ltd (2001) 204 CLR 559 at [68]: It is well established from the decisions under s.79 of the Judiciary Act [1903] ... that a State statute may be applicable as a source of rights and remedies in federal jurisdiction even though, on its own terms, that law identifies only the courts of the enacting State as the courts to provide those remedies. 38In my judgment, this consideration distinguishes the present case from that considered by Fowler J in East v Coulson (2010) 244 FLR 1, relied upon by the first and second defendants. His Honour's central conclusion at [85] was that the Family Court of Australia had no accrued jurisdiction to determine a question arising under s.106 of the State Act because that power was arbitral in nature and would not be an exercise of Federal Judicial power. That, with respect, is an important point of distinction from the present case. 39Moreover, the third defendant's point that the Federal Minister (Exhibit 1 page 6.25) appeared to acquiesce in the exercise of jurisdiction by the Industrial Court of New South Wales (as did all parties there other than the present plaintiff) may be highly relevant if the power I am called upon to exercise was truly discretionary. But for the reasons I have rehearsed, if I am satisfied that the Federal Court has jurisdiction and it is more appropriate that the State proceedings determined by that Court, I have a duty to transfer it. 40I have already decided that the State proceedings should be removed to this Court pursuant to s.8 1(b)(ii). I have also concluded that it is more appropriate that the State proceeding be determined by the Federal Court. 41In my judgment, the Federal Court has accrued jurisdiction to determine the State proceeding. It follows from what I have said, about the closely interwoven matrix of fact from which the proceedings arise that there is but a single "justiciable controversy". Although the claims are different because they are sourced from State and Federal law respectively, they arise out of "common transactions and facts" or a common "substratum of facts". The determination of the facts essential to decide one claim necessarily decides the other. And as there is an identity, at the factual level, of office holders, membership, funding and assets of the State Union and the Federal Branch the risk of conflicting findings, and accordingly inconsistent judgements, if the State and Federal claims are determined separately, is real. 42For the reasons I have expressed, it matters not that the State proceeding involves the State Union as a party bringing a claim based wholly on a State Act. A consideration of the pleadings, so far as the State proceedings, the Federal Minister's proceedings and the Brown proceedings are concerned demonstrates an almost complete identity of issues and relief sought. Indeed, the Federal Minister's proceedings and the Brown proceedings seek orders which directly affect the State Union. The present plaintiff's proceedings seek different relief, but the issues raised and the facts necessary to be established will overlap, in my judgment, to a high degree with those to be established in the other proceedings. 43Turning to the criteria set out in s.5(1)(b)(ii) of the cross-vesting legislation, it is common ground that neither (A) nor (B) are, or can be, satisfied in this case. This leaves (C). 44By reference to the plurality judgment in BHP Billiton from page 421 [14] to 423 [20], Mr. Assaf laid proper emphasis upon the chapeau to the preamble in the cross-vesting legislation. He emphasised that the legislation confers powers and duties not discretions. I accept this submission. As the plurality said at [14]: It is both necessary and sufficient that, in the interests of justice, the second Court is more appropriate. 45In my view, there is no "natural forum" here when one views the different proceedings as but manifestations of a single controversy calling to be quelled. In light of that, the considerations of cost, expense, and convenience (BHP Billiton at p. 529 [19]) are significant, especially bearing in mind that the legislation involves a kind of case management. 46It is true that some of the extra cost and expense of different proceedings have already been incurred. Likewise a degree of inconvenience in the maintenance of proceedings in different courts has passed. However there will be yet further aspects of cost, expense and inconvenience that can be avoided if the State proceeding is transferred to the Federal Court. When one adds to these factors the great desirability of achieving finality, avoiding the multiplicity of proceedings, and obviating the risk of conflicting outcomes, I am persuaded that it is more appropriate that the State proceeding be determined by the Federal Court of Australia, especially given its exclusive jurisdiction in relation to the Federal proceeding. 47I am very conscious that the Federal Court has made no decision about whether the State proceeding would be attracted by its accrued jurisdiction and that that Court is not bound by my decision in this regard. I acknowledge that, to say the very least that can be said, it would be most unfortunate for the parties, and the interests of the administration of justice if the Federal Court formed a view of its jurisdiction different from mine. But given that, in my judgment, it is not seriously arguable that the Federal Court does not have jurisdiction, I am bound to grant the relief sought in the plaintiff's summons for the reasons expressed. 48My orders are: 1.Pursuant to the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW), s.8(1) (b), order that proceedings No. IRC 580 of 2012 before the Industrial Court of New South Wales be removed to this Court. 2.Pursuant to s.5 (1) (b) of the said Act, order that the proceedings be transferred to the Federal Court of Australia in its Fair Work Division, New South Wales District Registry. 3.Order the First to Third Defendants to pay the plaintiff's costs of the proceedings in this Court and otherwise that each party bear his, her or its own costs.

Amendments 23 May 2012 - Representation - Counsel, delete Robert, substitute Richard. Amended paragraphs: Front cover 23 May 2012 - Delete 'Robert', substitute 'Richard'; delete 'Mr. D.J', substitute 'Mr. D.C'. Amended paragraphs: 5 23 May 2012 - Delete 'partes', substitute 'parties'. Amended paragraphs: 34(f) 23 May 2012 - Delete 's.8 1 (b)', substitute 's. 8(1)(b)'. Amended paragraphs: 48 31 May 2012 - For "Counsel" Robert Deleted, substituted with Richard; For "Counsel" Delete Mr. D. Price and substitute Mr. S. Price Amended paragraphs: Cover Sheet 31 May 2012 - Delete "partes" and substitute "parties" Amended paragraphs: Paragraph 34(f) 31 May 2012 - Delete s.8 1 (b) and substitute s.8(1)(b) Amended paragraphs: Orders 1 31 May 2012 - Delete Robert and substitute Richard; Delete Mr. D.J. Price and substitute Mr. S. Price Amended paragraphs: Paragraph 5 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 31 May 2012