National Union of Workers v Davids Distribution Pty Ltd

"Only the matters embraced within s 50(1) are committed to the jurisdiction of the Court, and, therefore, its exclusive jurisdiction under s52. The matters listed in s 50(1) are all matters 'arising under this Act'. A breach of contract claim arises at common law, not under the Industrial Relations Act. In any event, as Mr Van Aalst concedes, the present claim does not fall within any of pars (a) to (e) of s 50(1). Only those particular types of matter are covered by ss 50 and 52." 9 Smart J held the contempt proceeding was not a matter arising under the Workplace Relations Act, within the meaning of s412(1). After setting out s412(1), he said: "Section 412(1) thus confers jurisdiction with respect to 'matters arising under this Act' in relation to which the specified applications may be made, actions brought, penalties sued for and recovered under the Act and prosecutions instituted for offences against the Act.

In my opinion s 412 does not apply to the proceedings currently before this Court. This Court's jurisdiction to deal with contempt arises out of the orders which it made and its injunctive power is that of a superior court of unlimited and general jurisdiction to restrain the commission of unlawful acts."

10 Smart J considered whether the activity, the subject of Davids' complaint, was "protected action" within the meaning of s170ML of the Workplace Relations Act. He held it was not, because of the risk of personal injury: see s170ML(2)(a). After dealing with other matters, Smart J held the Supreme Court had jurisdiction and it was not appropriate, "at this late stage", to consider transferring the proceeding to the Federal Court. Smart J did not separately address the jurisdiction of the Supreme Court to make the orders of 13 and 17 July, as distinct from its jurisdiction to hear and determine charges of contempt of those orders. 11 Following this decision, evidence was adduced by NUW and Mr Belan. Smart J heard submissions and, on 20 August, reserved judgment. On 13 November 1998, his Honour delivered a judgment in which he held NUW and Mr Belan to be guilty of contempt of court and ordered them to pay Davids' costs of the proceeding to date. His Honour stood over the matter "for submissions on penalty to a date to be fixed by the list judge or such other judge as may be assigned". Smart J apparently did not regard himself as being part heard in relation to the contempt proceeding.

The Federal Court appeal 12 In advance of any submissions on penalty, on 2 December 1998 NUW and Mr Belan filed a Notice of Appeal in this Court. Numerous grounds of appeal were listed, including many grounds canvassing Smart J's factual conclusions. A direction was made that the appeal be listed for hearing before the same Bench as was constituted to hear Davids' appeal in proceeding NG900 of 1998. Davids filed a Notice of Motion, returnable on the appointed appeal hearing date, seeking an order that the appeal be dismissed as incompetent. 13 The Court decided to defer consideration of the grounds of appeal concerning factual issues until after determination of jurisdictional issues. In the event five issues were argued: (a) whether the Supreme Court had jurisdiction to hear and determine the proceeding instituted on 13 July 1998 and the application for interlocutory injunctions; (b) whether any appeal against an order of the Supreme Court in that proceeding would lie to the New South Wales Court of Appeal or to a Full Court of this Court; (c) whether the Supreme Court had jurisdiction to hear and determine Davids' application for punishment for contempt of court in respect of orders made by the Supreme Court in that proceeding; (d) whether any appeal against a determination in respect of the contempt application lies to the New South Wales Court of Appeal or to a Full Court of this Court; and (e) whether or not this appeal is competent. Jurisdiction in relation to the principal Supreme Court proceeding 14 Counsel for NUW and Mr Belan argue that the principal Supreme Court proceeding came within the jurisdiction of this Court by virtue of s412(1)(a) of the Workplace Relations Act or, alternatively, s39B(1A)(c) of the Judiciary Act. Section 412(1) of the Workplace Relations Act has already been set out. It will be recalled para (a) confers jurisdiction on the Court "with respect to matters arising under (the Workplace Relations Act) in relation to which … applications may be made to it under (that) Act". Section 39B(1A)(c) of the Judiciary Act confers jurisdiction on the Court "in any matter … arising under any laws made by Parliament". Section 422 of the Workplace Relations Act provides that an appeal lies to this Court from a judgment of a court of a State or Territory "in a matter arising under this Act". All three provisions invoke the concept of a "matter arising" under a statute. What does this mean? 15 On its face the proceeding instituted by Davids on 13 July 1998 had nothing to do with the Workplace Relations Act. It was a proceeding, instituted by Summons, in which Davids sought orders restraining NUW and three named persons from doing any act that physically impeded, or had the effect of physically impeding, access to or egress from their Blacktown or Silverwater premises, or threatened physically to harm, or physically harmed, any person or vehicle entering or leaving either premises. The application sought to restrain trespass, obstruction, assault and wilful infliction of damage. Davids' causes of action arose at common law. None of them depended on anything contained in the Workplace Relations Act. 16 However, it is well settled that the term "a matter arising under" an Act is not confined to a case in which a cause of action depends on a right conferred by the relevant Act. The word "matter" has been described as referring to a "justiciable controversy" between parties: see per Gummow and Hayne JJ in Abebe v Commonwealth of Australia (1999) 162 ALR 1 at para [140]. As Callinan J said in the same case at [276], the word "means the subject matter for determination in a legal proceeding, and not necessarily the legal proceeding itself in exactly the form in which it was first presented". A matter arises under an Act if it turns on the construction and operation of that Act: see per Windeyer J in Felton v Mulligan (1971) 124 CLR 367 at 391. A justiciable controversy that involves a defence based on an Act is a "matter arising under" the Act: see per Menzies J at 382. 17 Counsel for NUW and Mr Belan contend the principal proceeding in the Supreme Court was a "matter arising under" the Workplace Relations Act because their clients raised a defence based on s170MT(2) of that Act. The argument is that the activities which Davids sought to restrain constituted "protected action" within the meaning of s170ML of the Act; accordingly those activities were immunised from action under State law by s170MT(2). Counsel argue it follows that the principal proceeding fell within s412(1)(a) of the Workplace Relations Act or s39B(1A)(c) of the Judiciary Act. 18 Counsel for Davids draw a distinction between the principal proceeding, that instituted by Summons and Notice of Motion on 13 July 1998 (which counsel call "the Orders Proceedings"), and the proceeding for contempt of court initiated on 17 July ("the Contempt Proceedings"). Counsel point out the principal proceeding is not the subject of this appeal. They say the appellants have never challenged the orders made by Levine J, as varied by Sperling J; indeed, on 17 July they agreed to their continuation in operation. Counsel for Davids say no s170MT defence was ever raised in the principal proceeding; hence there is no basis for saying that proceeding was a "matter arising under" the Workplace Relations Act. In their written submissions counsel say: "The Orders Proceedings were the appropriate proceedings in which the Appellants should have addressed the alleged immunity attaching to the action taking place and sought to activate that immunity in seeking to have the Orders removed. … In any such application to remove the Orders, the Appellants, in pressing the alleged immunity attaching to the action, would have had to prove that the action; (i) had never involved; or (ii) was never likely to involve personal injury; or wilful or reckless destruction of, or damage to, property, or the unlawful taking, keeping or use of property. It would not have been possible for the Appellants (to) maintain such a claim in the face of the evidence." The contempt proceedings, say counsel: "involved the prosecution of the Appellants for breach of the Orders, and did not constitute, in the terms of Section 170MT, an action under a law in force in a State in respect of any industrial action. The immunity provided by Section 170MT did not apply to the Contempt Proceedings. Those proceedings were quite distinct from the Orders proceedings …. Orders, whether considered to be valid or not, must be complied with unless and until they are set aside, particularly by parties to the Orders. 19 It appears incorrect to say that NUW and Mr Belan have never challenged the orders made by Levine J, as varied by Sperling J on 17 July. They applied on 17 August for these orders to be dissolved, apparently on the basis that the Supreme Court had no jurisdiction to make them. However, in the circumstances of this case, that is a mere quibble; the whole of the activity in relation to which contempt is claimed occurred before 17 August. Moreover, it is correct to say the orders made in the principal proceeding have never been challenged on appeal. Even though the Notice of Appeal that initiated the present appeal contains 25 grounds of appeal against the judgments of Smart J of 14 August and 13 November 1998, they do not include any attack on his Honour's failure to dissolve the orders made by Levine J, as varied by Sperling J. 20 A matter does not arise under an Act simply because a defence is available under that Act. Unless and until the defence is raised by a defendant, the defence is not an issue in the case; it is not part of "the subject matter for determination". As Menzies J said in Felton v Mulligan at 382: "A matter arises under a law when it is necessary in litigation to determine whether that law confers a right or affords a defence which is an issue in the litigation." (Emphasis added) 21 However, once a defence based on a provision of a Commonwealth statute is raised by a defendant, the relevant proceeding becomes a "matter … arising under any laws made by the Parliament". Section 39B(1A)(c) then confers non-exclusive jurisdiction on this Court. In Transport Workers Union of Australia v Lee (1998) 84 FCR 60, a case that also involved an alleged defence under s170MT of the Workplace Relations Act, a Full Court of this Court (Black CJ, Ryan and Goldberg JJ) rejected a contention that s39B(1A)(c) applies only in a case where jurisdiction is conferred elsewhere. The Court said at 67: "The respondent also submitted that s 39B(1A)(c) assumes that under the relevant law made by the Parliament there is a matter that is justiciable under that law. Section 170MT identifies such a matter but the respondent contends that such a matter only 'arises under' that provision if there is no impediment in the statute to pursuing that matter in the Federal Court. It is then submitted that there is such an impediment because s412 provides, exhaustively, for the types of proceedings that may be brought before the Federal Court and a proceeding in relation to, or arising out of, s170MT is not such a proceeding. The point about s39B(1A) is, however, that it operates according to its terms as a general conferral of jurisdiction. The respondent's argument cannot be sustained having regard to the later enactment of s39B(1A) as a general conferral of jurisdiction in respect of matters arising under any laws made by the Parliament. Section 39B(1A) stands in contrast to the prior history of limited Act by Act conferral of jurisdiction upon the Federal Court, … " 22 Contrary to the submissions of counsel for Davids, if NUW or Mr Belan, at an appropriate time, had raised s170MT as a defence to the principal Supreme Court proceeding, or as a basis for an application to set aside the interlocutory orders, this Court would immediately have had jurisdiction to deal with the matter. It would not have been necessary for anyone to have negated the likelihood of personal injury, wilful or reckless destruction of, or damage to, property or the unlawful taking, keeping or use of property. As soon as the defence was raised, the application of s170MT would have become an issue in the litigation. As the issue would have concerned an immunity alleged to be provided by the Workplace Relations Act, the proceeding would have become a "matter arising under" that Act. Section 39B(1A(c) of the Judiciary Act would have conferred on this Court jurisdiction to determine that matter. No doubt it would have been necessary for the invocation of the defence to be genuine, and not a mere subterfuge to fabricate jurisdiction; compare Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation (1987) 18 FCR 212 at 219. However, subject only to that qualification, the strength of the defence would have been immaterial. In particular, it is erroneous to think a matter becomes a "matter arising under" an Act only when a relevant defence is proved; it is enough that it is bona fide presented as an issue in the case. 23 In the present case, none of the defendants in the Supreme Court principal proceeding raised s170MT of the Workplace Relations Act as a defence to that proceeding, at least not at any relevant time. When the defendants appeared in answer to the Summons and Notice of Motion, they agreed to a continuation of the orders made by Levine J, with a minor variation. Although their counsel apparently made a statement suggesting the orders would not preclude them undertaking "protected action", counsel did not raise this as a defence to the principal proceeding for permanent relief or as a basis for contending the Supreme Court should set aside the interlocutory orders it had already made. In fact the statement made by counsel was misconceived. If it was applicable, the section afforded a basis for an application to set aside the orders and for a defence to the claim for permanent relief; unless and until it was used in that way, the section had no relevance. It did not override the orders that had already been made or, until properly invoked, turn the proceeding into a "matter arising under" the Workplace Relations Act. 24 If one of the defendants had raised s170MT at an appropriate time, this might have caused the Supreme Court to transfer the proceeding to this Court. But it seems to us it would not have deprived the Supreme Court of jurisdiction to determine the principal proceeding, if it chose to take that course. 25 Notwithstanding a contrary submission put to us by counsel for NUW and Mr Belan, we think s414(1) of the Workplace Relations Act does not itself confer any jurisdiction on the Court. The reasoning in Kanan applies, with the substitution of references to s412 and 414 of the Workplace Relations Act for ss50 and 52 of the Industrial Relations Act and the qualification that there is now a source of the Court's jurisdiction outside the Workplace Relations Act. We refer to s39B(1A)(c) of the Judiciary Act. 26 The Supreme Court principal proceeding plainly did not fall within either subs (2) or (3) of s414, at least at trial stage. Counsel for NUW and Mr Belan argue it fell within subs (1), but we do not think this is so. This subsection is obviously directed to s412(1), which does not cover the Supreme Court proceeding. Section 414(1) makes exclusive to this Court its jurisdiction "in relation to an act or omission for which an organisation or member of an organisation is liable to be sued, or to be proceeded against for a pecuniary penalty". These words describe the jurisdiction in terms of the act or omission that exposes the organisation or member to liability. It must be an act or omission in respect of which an application or action may be brought under the Workplace Relations Act or a penalty recovered under that Act. The words are not apt to describe jurisdiction to restrain conduct that is unlawful at common law, in relation to which no application or action may be brought, or penalty recovered, under the Workplace Relations Act. This is so, even if this Court obtains jurisdiction in the matter because a Commonwealth statutory provision is raised as a defence to the claim. 27 This analysis of the situation coincides with the result in Lee. The respondent in that case laid complaints against the appellant union, alleging contraventions of Queensland industrial legislation. When the complaints came before a magistrate, the appellant indicated it relied on s170MT of the Workplace Relations Act as conferring an immunity against the operation of the Queensland Act. Before that issue could be resolved by the magistrate, the appellant sought a declaration in this Court that its relevant activities were protected action and injunctions restraining the prosecution of the complaints. The appellant contended the Court had jurisdiction under s39B(1A)(c) of the Judiciary Act. That contention was accepted, both at first instance and on appeal, but the Full Court set aside interlocutory orders made by the primary judge that had the effect of restraining further proceedings in the magistrate's court pending determination of the claim for declaratory relief. A major reason for the primary judge deciding that the issue of protected action should be determined in the Federal Court was his doubt whether there would be a right of appeal to this Court from the magistrate's decision on that matter. The Full Court held this doubt was unfounded, s422 would apply. As the primary judge's misapprehension about that matter had caused his discretion to miscarry, the Full Court had to decide for itself what was the appropriate course to take. The Full Court decided to allow the issue of protected action to be determined by the magistrate. The Court said at 68-69: "The Workplace Relations Act assumes that there will be matters arising under the Act that can properly be determined by a court of a State or Territory. In the present case the respondent seeks to enforce a State law in a State court. A matter arises in those proceedings under federal law but the State court is empowered to determine that matter in the exercise of federal jurisdiction. It is true that a matter arising under s170MT of the Workplace Relations Act may potentially raise important questions of federal law but that in itself is not a reason why proceedings already commenced in a State court should be restrained, and particularly is this so when it is seen that the Workplace Relations Act provides for a right of appeal to this Court." The approach of the Full Court was, of course, inconsistent with the notion that the existence of jurisdiction under s39B(1A)(c) of the Judiciary Act was enough to exclude the jurisdiction of State courts. 28 Neither NUW nor Mr Belan took steps, at an appropriate time, to raise an issue regarding the application to the principal proceeding of s170MT of the Workplace Relations Act. They did not invoke the jurisdiction of this Court prior to the activities that were the subject of complaint in the contempt proceeding. Even if they had done so, this would not have ousted the jurisdiction of the Supreme Court to continue with the hearing and determination of the principal proceeding. However, in that event, s422(1) of the Workplace Relations Act would have applied. As the judgment of the Supreme Court would have been in a matter arising under the Workplace Relations Act, this Court would have had jurisdiction to determine any appeal. Section 414(3) would have made that jurisdiction exclusive of the jurisdiction of any New South Wales court. It follows that, if s170MT had been raised as a defence in the principal proceeding, there could have been no appeal to the New South Wales Court of Appeal; any appeal must have been to the Full Court of this Court. Jurisdiction in relation to the contempt proceeding 29 If the Supreme Court retained jurisdiction to determine the principal proceeding, then a fortiori it retained jurisdiction to determine the issue of contempt. In Real Tech Systems Integration Pty Ltd v Meuross (1998) 82 FCR 150 at 151, Lehane J pointed out that "a proceeding in which contempt is charged, though commenced by motion in an existing proceeding, is nevertheless dealt with in a proceeding which is to be regarded as separate and distinct from the existing proceeding". The liability issues that legitimately arose in the contempt proceeding heard by Smart J were whether or not there had been proper service of the orders made by Levine J, as varied by Sperling J, and whether or not NUW and/or Mr Belan had failed to comply with their terms. Although the power of the Supreme Court to make the orders was canvassed, it ought not to have been. An order of a superior court is binding on those to whom it is addressed unless and until it is set aside. Irregularity is no defence to contempt proceedings, although it is a matter which goes to the discretion as to penalty: see Rubie v Rubie (1911) 13 CLR 350, Jackson v Sterling Industries Ltd (1987) 162 CLR 612 at 619-620 and 627. Section 170MT(2) of the Workplace Relations Act could not afford a defence to a proceeding for contempt of court. Smart J clearly had jurisdiction to hear and determine the contempt proceeding.

Disposition 30 It follows from the above observations that the appeal to this Court is incompetent. The appeal challenges the finding of Smart J in the contempt proceeding. But his Honour's judgment in that proceeding was not a judgment in a matter arising under the Workplace Relations Act. Consequently, s422 of that Act had no application. The appeal must be dismissed. 31 Counsel for Davids seek an order for the costs of the appeal. Section 347 of the Workplace Relations Act does not stand in the way of such an order; the appeal is not in a matter arising under the Workplace Relations Act. That being so, it is appropriate for the costs to follow the event. 32 The appeal will be dismissed as incompetent and the appellants ordered to pay the respondent's costs. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Wilcox, Burchett and Cooper JJ.

Associate: Dated: 13 August 1999 Counsel for the Appellants: S Rothman SC and J Pearce

Solicitor for the Appellants: Ryan Carlisle Thomas

Counsel for the Respondent: G Hatcher and B Cross

Solicitor for the Respondent: Middletons Moore & Bevins

Date of Hearing: 8, 9 and 10 March 1999