Metropolitan Health Services Board v Australian Nursing Federation

REASONS FOR JUDGMENT 1 This is an appeal under s 422(1) of the Workplace Relations Act 1996 (Cth) ("the Act") against a judgment of an Industrial Magistrate sitting in the Industrial Magistrate's Court of Western Australia ("the court"). 2 The proceeding in the court was brought by the respondent ("the Federation") under s 178 of the Act. The Federation is an "organisation" registered under the Act. By a "complaint" issued out of the court, the Federation alleged that the appellant ("the Health Services Board") had breached the terms of the Dental Nurses (ANF - WA Public Sector) Award 1994 ("the Award") by failing to pay several members of the Federation payments of salary to which each was entitled under the Award. Pursuant to s 178(5)(d) of the Act the Federation had standing to sue for and recover any penalty imposed on the Health Services Board by the court under s 178(1) of the Act. The court is a "court of competent jurisdiction" for the purposes of s 178(1) of the Act. (See: Construction Forestry Mining & Energy Union v Warren [1999] FCA 312.) 3 The breaches of the Award alleged against the Health Services Board by the Federation were not denied by the Health Services Board when the matter came on for hearing in the court. The breaches occurred between May 1993 and June 1995. 4 The Award was made on 4 November 1994 by the Australian Industrial Relations Commission pursuant to s 113 of the Industrial Relations Act 1988 (Cth). The Industrial Relations Act 1988 was amended by the Workplace Relations and Other Legislation Amendment Act 1996 (Cth) ("the Amending Act"). The Amending Act amended the short title Industrial Relations Act 1988 to Workplace Relations Act 1996 from 25 November 1996 and, with effect from 26 May 1997, conferred appellate jurisdiction on this Court under s 422 of the Act in an appeal from a judgment of a court of a State. The Amending Act repealed s 423 of the Act which had provided, inter alia, that an appeal from a judgment of a court of summary jurisdiction could be exercised by a single judge, or a Full Court, of the Industrial Relations Court of Australia. 5 The proceedings in the court commenced on 14 November 1997 and, therefore, the appeal to this Court is not a matter to which the transitional provisions of Schedule 16 of the Amending Act apply. (cf: Autistic Association of New South Wales v Dodson [1999] FCA 439.) The papers filed in support of the appeal do not include the judgment made by the court appealed from. The notice of appeal states that the appeal is from a 'decision…given 27 January 1999', but neither the date of judgment, nor detail of whether the court made orders under ss 178(1) and (5) and/or under s 178(6) of the Act, is disclosed in the appeal papers. 6 The appeal was set down for hearing before a single Judge. It appears to have been assumed by the parties that s 25(5)of the Federal Court of Australia Act 1976 (Cth) ("Federal Court Act") applied to the appeal. Section 25(5) of the Federal Court Act reads as follows: "25(5) 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." No direction was made by the Chief Justice under ss 14 and 15 of the Federal Court Act that for the hearing of the appeal the Court be constituted by one Judge. As noted above s 422 of the Act does no more than confer appellate jurisdiction on the Court. The manner of exercise of that jurisdiction is as set out in the Federal Court Act. 7 A "court of summary jurisdiction" is not defined in the Federal Court Act. Section 26(d) of the Acts Interpretation Act 1901 (Cth) ("Commonwealth Interpretation Act") provides as follows: "26(d) 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 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;" 8 As set out in CFMEU v Warren the court was established by s 81 of the Industrial Relations Act 1979 (WA) ("the State Act"). Section 81(2) of the State Actprovides as follows: "81(2) An industrial magistrate's court is a court of record and shall have an official seal of which judicial notice shall be taken." 9 Under s 81CA(1) of the State Act, the jurisdiction of the court is defined as being either "general jurisdiction" or "prosecution jurisdiction". Part of the "general jurisdiction" of the court is that conferred by s 83 of the State Act in respect of the enforcement of an award made under the State Act. For the purposes of the present analysis, the rights created and made enforceable under s 83 of the State Act, although distinguishable, are not far removed from like provisions in s 178 of the Act. 10 Under s 81CA(2) of the State Act, the powers of the court, and the practice and procedure to be observed by the court when exercising "general jurisdiction", are those provided for by the Local Courts Act 1904 (WA) ("Local Courts Act") as if the proceedings were an "action" within the meaning of that Act. The appropriate initiating process in respect of the enforcement of an award under s 83 of the State Act may be, therefore, a "plaint" rather than a "complaint". Section 81CA(3) further provides that regulations may extend the circumstances in which the court exercising general jurisdiction may hear and determine an action under the Local Courts Act for "small debts". 11 Section 81CA(5) provides that when exercising "prosecution jurisdiction", the court constitutes "a court of summary jurisdiction". That term is defined in s 5 of the Interpretation Act 1984 (WA) ("State Interpretation Act"), which reads as follows: "'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;" Part of the "prosecution jurisdiction" includes jurisdiction under s 83A of the State Act to hear and determine complaints for any contravention or failure to comply with the State Act that constitutes an offence. Section 83A(1) of the State Act provides that the Court has 'jurisdiction under the Justices Act 1902' to hear and determine such complaints. Sections 81CA and 83A were inserted in the State Act by amendments which took effect on 16 January 1996. 12 The respondent submitted that regulations made under the State Act show that the Industrial Magistrate's Court sits as a court of summary jurisdiction. In particular the respondent relies on reg 3(1) of the Industrial Relations (Industrial Magistrates' Courts) Regulations 1980 which reads as follows: 3(1) [Justices Act, 1902 - 1979] "Subject to the Act and to these regulations, proceedings before an industrial magistrate's court and in particular the making of a complaint, the issue of a summons, the summoning of witnesses, the fees to be paid relating to any matter, the taking of evidence, the hearing and determination of a complaint and the costs and allowances to parties and witnesses shall be, with such modifications as circumstances require, those prescribed by the Justices Act, 1902-1979, in respect of proceedings before justices for a simple offence." The Regulation goes on to provide that proceedings are to be commenced by complaint and a summons directed to a defendant requiring that party to appear before the Court. The Regulation came into force in 1980 and was last amended in 1992. Plainly, the Regulation has been overtaken by the amendments to the State Act which inserted, inter alia, s 81CA. In any event in its terms the Regulation is subject to the State Act and gives way to the provisions of s 81CA where there is inconsistency. Obviously the practice and procedure to be observed by the court in the exercise of 'general jurisdiction' is governed by s 81CA and not reg 3. 13 The jurisdiction exercised by the court under s 178 of the Act is federal jurisdiction. Pursuant to s 79 of the Judiciary Act 1903 (Cth) the laws and procedure applicable thereto are the laws of the State of Western Australia. The proceeding contemplated in s 178 of the Act is a civil proceeding. (See: Gapes v Commercial Bank of Australia Ltd (1979) 38 FLR 431; Transport Workers Union of Australia v Glynburn Contractors (Salisbury) Pty Ltd (1990) 34 IR 138.) As indicated above, such a proceeding is similar to a proceeding under s 83 of the State Act heard in the "general jurisdiction" of the court where the court conducts the proceeding as if it were sitting as a Local Court. A Local Court established under the Local Courts Act, albeit a court of limited jurisdiction, does not sit as a court of summary jurisdiction. Under s 33 of the Local Courts Act a Local Court has power to grant, in any proceeding before it, such relief, redress, or remedy, and give effect to every ground of defence or counterclaim, equitable or legal, in as full and ample manner as the Supreme Court in a like case. Section 35 of the Local Courts Act provides that the rules of law made under the Supreme Court Act 1935 (WA) are to be applied in a Local Court. A proceeding under s 178 of the Act would be dealt with accordingly. 14 Sections 81CA(2) and 81CA(5) make it apparent that when exercising "general jurisdiction" the court does not constitute a court of summary jurisdiction as that term is defined in the State Interpretation Act. Section 81CA(5) would be otiose if the State Act contemplated that at all times the court sat as a court of summary jurisdiction. 15 The concept of a court of summary jurisdiction so defined is consistent with the meaning applied to the term by s 26(d) of the Commonwealth Interpretation Act. 16 "What is meant by the summary jurisdiction of magistrates is, of course, perfectly well understood by every lawyer …" (See: Boulter v The Justices of Kent [1897] AC 556 per Lord Herschell at 567; see also Lord Halsbury LC at 563.) 17 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). (See also: Hagmaier v Willesdon Overseers [1904] 2 KB 316; Huish v Justices of Liverpool [1914] 1 KB 109.) 18 Boulter was distinguished in Regina v East Riding of Yorkshire Quarter Sessions, Ex parte Newton [1968] 1 QB 32 but as per Lord Denning pointed out in that case [at 53] it concerned a "radically modified" description of a court of summary jurisdiction. 19 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. 20 It should be concluded that when the court exercised federal jurisdiction in this matter 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. 21 It follows that the appeal must be heard by this Court constituted as a Full Court. Further hearing of the appeal must proceed before a court so constituted.