NSW Cancer Council v Sarfarty

(1978) 144 CLR 202 and Cullen v Trappell (1980) 146 CLR 1 and changes that have since been made to the Tax Act at 312: "The first question which arises is whether a calculation of the loss suffered by the applicant as a result of his dismissal should be based on gross earnings, or earnings after tax. In Atlas Tiles Ltd v Briers (1978) 144 CLR 202; 21 ALR 129, the High Court dealt with a case of damages for wrongful dismissal. The court took the view that those damages should be calculated by reference to likely gross earnings, and not likely earnings net of income tax. Subsequently, in Cullen v Trappell (1980) 146 CLR 1; 29 ALR 1, the High Court held that in assessing damages for personal injuries, a court should take into account the income tax which the plaintiff would have had to pay on the earnings of which his injuries had deprived him. This view, however, was based on the proposition that an award of damages was not itself taxable. At that time, s 26(d) of the Income Tax Assessment Act 1936 (Cth) provided that the assessable income of a taxpayer should include 'five per centum of the capital amount of any allowance, gratuity or compensation where that amount is paid in a lump sum in consequence of retirement from, or termination of, any office or employment, and whether so paid voluntarily, by agreement or by compulsion of law'. In his dissenting judgment in Atlas Tiles Pty Ltd v Briers (CLR at 227), Gibbs J (as he then was) expressed the view that where such a small portion of an award of damages was subject to tax, the award of damages should be treated as non-taxable for the purpose of determining whether it should be assessed according to gross or net earnings. The dissenting view of Gibbs J prevailed in Cullen v Trappell. Section 26(d) of the Income Tax Assessment Act has now been repealed. The provisions of Sub-div AA of Pt III of that Act now include in assessable income any 'eligible termination payment'. That phrase is defined in s 27A(1) as including 'any payment made in respect of the taxpayer in consequence of the termination of any employment of the taxpayer ...'. Under s 27A(3), a payment is an eligible termination payment whether it is made voluntarily, by agreement or by compulsion of law. So much of an eligible termination payment as is referrable to employment occurring after 30 June 1983 is now included in a taxpayer's assessable income: see s 27B(1). In my view, these provisions operate to make taxable an award of damages for dismissal in a case such as the present. They thereby undermine the reasoning in Cullen v Trappell, and dictate that the recipient of damages should receive them calculated according to rates of gross earnings." Hill J expressed agreement with this approach in Byrne, supra. Since Wheeler, supra, was decided, amendments have been made to SubdivAA of Div2 of PtIII of the Tax Act and related changes made by the enactment in 1989 of SubdivAAA of Div17 of PtIII. However those amendments were not relied upon by the respondent to demonstrate that the conclusion reached by Gray J was now not correct. Rather the respondent relied upon the joint judgment of Gleeson CJ and Handley J in Sarfarty, supra. The applicant submitted that judgment concerned not whether the approach in Cullen, supra, of calculating damages by reference to net income should continue to be applied notwithstanding the amendments to the Tax Act made since 1980, but rather whether damages calculated by reference to net income should then be increased to allow for tax payable on the damages. Their Honours decided they should. It is clear, in my opinion, that unlike in Wheeler and Byrne, supra, their Honours did not address the antecedent question of whether damages should be calculated by reference to gross or net income because the parties appeared to have assumed that the net income was the relevant amount. The trial and appeal were conducted on that basis. I should follow the decisions of Gray J and Hill J unless it has been demonstrated that they were wrongly decided or decided by reference to a legislative scheme that has altered materially. The respondent has demonstrated neither. Accordingly damages representing salary for the period of notice will be assessed by reference to the applicant's gross income. I see no basis for adjusting other amounts included in the damages to take into account fringe benefits tax payable by the employer. As to the tax that would have been paid on the superannuation contribution equivalent to 2.5% of the applicant's salary, namely 15%, I deal with that in this way. It appears to be common ground that this component of the damages will be taxable as an eligible termination payment. Broadly consistent with the approach in Wheeler, supra, that element of the damages is to be assessed by reference to the gross contribution and I proceed on that basis. I do not propose to "gross up" the amounts that will be awarded for the loss of the use of the car, the phone and the lost superannuation contributions as the applicant submitted I should. The Court could embark upon a detailed examination of the tax that would have been payable on all amounts the applicant would have been paid but for his unlawful dismissal. It could do so having regard to the entire financial circumstances of the applicant in the relevant period, about which the evidence is limited. It could also embark on a detailed examination of the tax that will be payable on those damages again having regard to the applicant's entire financial circumstances. Unless that examination is undertaken then it is likely there will be some anomalies that would not arise if the task of assessing damages is approached with the exactitude necessary in assessing actual liability for tax under the Tax Act. If the approach in Wheeler, supra, is the correct one, then some measure of approximation may be expected. As Barwick CJ said in Atlas, supra, at 212, though it is a view that has not since prevailed: "I cannot help thinking that in the choice between holding that liability to taxation on taxable income is an irrelevant and remote circumstance in the assessment of damages and imposing on judges at first instance and juries a task which neither is fitted to perform, it would have been so much better - legal principle apart for the moment - to have chosen the former, leaving it to the legislature to determine whether, and, if so, to what extent damages awarded for personal injuries should be included in assessable income .... Also, if tax is to be imposed the community and not defendants will get the benefit of it. If one had to consider the practical difficulties of a tribunal of fact, be it primary judge or jury, in attempting adequately to apply Gourley's Case, particularly in a case where the affairs of a party in relation to taxation are of a complicated nature, I would consider these difficulties to be quite overbearing." Accumulated sick leave In my judgment of 13 February 1995, I volunteered the following conclusion: "Some adjustment must be made, in my opinion, for the sick leave to which the applicant was entitled at the time of his wrongful dismissal. Had he been given reasonable notice he would have exhausted his sick leave during it. Accordingly the amount representing accumulated sick leave he was paid upon termination has to be set off against the damages that might otherwise be due." It was a matter not directly addressed by either party and my conclusion is now put in issue by the applicant. In those circumstances it is appropriate that I deal with the written submission made. It was not in issue that the applicant was, because of illness, unable to perform his duties from 23 May 1994. The case of the applicant on the medical evidence was that the applicant would have, at least by October 1994, been able to resume his duties though that was disputed by the respondent. However the sick leave entitlements that the applicant was paid out on termination would have entitled the applicant to sick leave until 11 August 1994. While I have accepted that the respondent's repudiation of the contract exacerbated and prolonged the applicant's illness, the evidence did not support a finding that, apart from the conduct of the respondent, the applicant would have been able to resume his duties before 11 August 1994. Thus, even on the applicants' case, it is likely he would have exhausted his sick leave before being able to resume duties had he not been unlawfully dismissed on 24 May 1994 and had he been given nine month's notice on that day. The applicant submits that had the respondent terminated the applicant's employment by payment in lieu of notice, the applicant would have received nine months salary and payment for untaken sick leave. However, in determining how damages should be assessed, I should proceed on the basis that the respondent would have discharged its contractual obligations in a way that would have been most beneficial to it: see The Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64 at 92 per Mason CJ and Dawson J. The entitlement of the applicant to payment for accumulated sick leave was said by Mr Dutton to have arisen under s99A of the Industrial Relations Act 1991 (NSW) which relevantly provides: "(1) An award must not allow or require an employee to cash-in the employee's accumulated sick leave. (2) .... (3) This section applies whenever the accumulated sick leave is to be cashed-in, including on termination of employment (whether by resignation, retirement, death or otherwise) or during the period of employment. (4) .... (5) However, this section does not affect the cashing-in of accumulated sick leave under an existing provision on termination of employment (whether by resignation, retirement, death or otherwise), but the maximum number of days (or other periods) of that leave that may be cashed-in is to be calculated as follows: Step 1: .... Step 2: .... (6) .... (7) .... (8) .... 'existing provision' means a provision of an award that allows or requires an employee to cash-in the employee's accumulated sick leave on termination of employment (whether by resignation, retirement, death or otherwise), being a provision that commenced before the commencement of this section." I infer from Mr Dutton's evidence and the terms of the section that the applicant's entitlement to payment, or cashing-in to use the language of the section, derived from an award: see s99A(5) and the definition of "existing provision" in s99A(8), though the applicable award in evidence contains no provision dealing with the cashing in of accumulated sick leave. Even if the payment had been under the contract, I do not see how my conclusion would alter. Had the respondent wished to lawfully terminate the applicant's employment on 24 May 1994, it could have given nine month's notice or, arguably, paid an amount in lieu. This latter course would have required the payment of salary for the period of notice and, at best for the applicant, an additional payment flowing from the combined operation of s99A and the relevant award provision or the operation of a contractual term. Had notice been given it was then likely that the sick leave would have been exhausted before the notice expired. The respondent would have thus paid the applicant's salary for part of the period of notice as paid sick leave. This would have resulted in the respondent not having to pay out any accumulated sick leave at the expiry of the period of notice. Accordingly, having regard to the principle discussed in The Commonwealth v Amann, supra, I should proceed on the basis that this course would have been followed by the respondent and thus the view I earlier expressed was correct. Petrol The applicant submits damages should be awarded to reflect petrol paid for by the respondent for private use of the car the respondent provided. In my earlier judgment I determined that the applicant should be awarded $5,197.50 which reflects the loss of the use of the motor vehicle to which he was entitled under his contract of employment. I understood the annual figure on which that was based which was advanced by the respondent included an amount for petrol. Mr Dutton's evidence in par3 of his affidavit of 7 March 1994 was to this effect which I accepted. The applicant's evidence to the contrary proceeds on the false assumption that it was not included in the figure identified by Mr Dutton. I do not propose to reconsider my earlier determination of damages on this issue. Long service leave, annual leave and wage increases The applicant submits the damages should include an amount reflecting additional benefits that would have accrued during the period of notice for long service leave and annual leave as well as wage increases that would have occurred in that period. In the schedule of damages prepared on the applicant's behalf, no mention is made of those matters nor is mention made of them in the affidavit of the applicant of 28 October 1994 particularising and quantifying some of the damages. It is not a matter that it is appropriate I now deal with. Damages It follows from the preceding discussion that the applicant is entitled to damages in the sum of $66,171.44 comprising: aggravation of psychiatric illness $15,000.00 salary for period of reasonable notice$57,947.75 foregone superannuation payments $ 1,448.70 loss of use of car $ 5,197.50 loss of use of phone $ 457.05 ---------- $80,051.00 ---------- less amount paid by respondent $13,879.56 as untaken sick leave ---------- $66,171.44 __________ Costs In its written submissions the applicant raised the question of costs in three contexts. The first concerned taxation and damages which I have already dealt with. The second was, in essence, as a head of damages. The applicant submitted that the costs of maintaining the application for reinstatement were costs incurred in mitigating damages and are recoverable. This was not a matter raised in the schedule of damages. Even assuming the claim has any legal foundation, it is a matter about which evidence might have been called by the respondent or on which the applicant might have been cross-examined. I do not propose to allow the applicant to raise this matter at this stage. The third was an application for costs which involves a consideration of s347. Section 347 provides: "(1) A party to a proceeding (including an appeal) in a matter arising under this Act shall not be ordered to pay costs incurred by any other party to the proceeding unless the first-mentioned party instituted the proceeding vexatiously or without reasonable cause. (2) In subsection (1): 'costs' includes all legal and professional costs and disbursements and expenses of witnesses." The applicant submits s347 does not preclude an order for costs in his favour as the claim for damages for wrongful dismissal pursued in the Court's associated jurisdiction is not or not part of a proceeding to which s347 relates. This is put in issue by the respondent. In Bostik (Australia) Pty Ltd v Gorgevski (No 2) (1992) 36 FCR 439 the Full Court of the Federal Court considered the scope of s347 in the context of an appeal from a judgment in which a penalty had been imposed under s178 and damages awarded for a breach of the contract of employment prosecuted in the Court's associated jurisdiction. Both Sheppard J (with whom Heerey J agreed) and Gray J decided s347 operated so as to limit the power to award costs both in relation to that part of the appeal concerning the imposition of the penalty under s178 and that part concerning the common law claim. Sheppard J based his conclusion on the nature of the common law claim. The term of the contract that had been breached was a term that had its genesis in an award provision applying to the employment of the respondent to the appeal. Accordingly the common law claim was, in substance, a proceeding in a matter arising under the Act. Gray J approached the matter, in part, on a slightly different basis. His Honour took the view that s347 requires consideration of whether there is before the Court, a proceeding in a matter arising under the Act. If "matter" in s347 is given the meaning it has in s76 of the Constitution it is to be taken to be a reference to the entire justiciable controversy between the parties. After referring to R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141 and Fencott v Muller (1983) 152 CLR 570, his Honour said: "Applying these principles, it is plain that the subject of the appeal was a single "matter", being a justiciable controversy between the parties over the dismissal of the respondent by the appellant and the legal consequences of that dismissal. The matter manifested itself in the claims for a penalty and for damages, both of which depended upon precisely the same facts. That matter arose under the Act, because it depended for its existence upon the making of a binding award by an arbitral tribunal, exercising power under the Act. The enforcement of that award depended upon s178 of the Act. Leaving aside any effect which legislation relating to cross-vesting of jurisdiction may have, the only way in which this Court derived its jurisdiction to deal with the matter was because the controversy depended upon the Act. It is clear that, in those circumstances, the proceeding was one in a matter arising under the Act." While it is not entirely clear to what extent his Honour saw the source of the relevant contractual terms, viz an award made under the Act, as of significance, the substance of his Honour's approach is that the action founded in contract was part of a single justiciable controversy which included the application for a penalty. That entire justiciable controversy was a "matter" and was a "matter arising under the Act" for the purposes of s347. The word "matter" in s347 had earlier been viewed as having that meaning by a Full Court in Thompson v Hodder (1989) 21 FCR 467 at 469. The same issue arose in an appeal decided by a Full Court of the Federal Court in Byrne v Australian Airlines Ltd (1994) 47 FCR 30. Again an application had been made under s178 for the imposition of a penalty and a claim made in the Court's associated jurisdiction for damages for breach of contract. The judge at first instance had refused to make an order as to costs because of the provisions of s347. A cross appeal was brought against that decision. The Full Court comprised Black CJ, Keely, Beaumont, Gray and Heerey JJ. On the question of costs, Keely J agreed with Beaumont and Heerey JJ who, in a joint judgment, dismissed the cross appeal on the basis that the reasoning of the Court in Bostik, supra, was correct. Gray J, with whose reasons on the question of costs Black CJ agreed, dealt with the question in the following way: "The respondent's cross-appeal on the question of costs must fail. The law on this issue has been laid down clearly by the Full Court in Poulos v Waltons Stores (Interstate) Ltd (1986) 68 ALR 537 and Thompson v Hodder (1989) 21 FCR 467, both of which were cited with apparent approval by the High Court of Australia in Re Polites; Ex parte Hoyts Corporation Pty Ltd (No 2) (1991) 173 CLR 78 at 93, and in my judgment in Bostik (Australia) Pty Ltd v Gorgevski (No 2) (1992) 36 FCR 439 at 445-446. The 'matter' in contention in the present case is the purported dismissals of the appellants and the legal consequences of those purported dismissals. That 'matter' arises under the Act by reason of the reliance of the appellants on cl11(a) of the award, which was made under the Act, and their invocation of the jurisdiction given by s178 of the Act. Each application dealt with by Hill J was therefore a proceeding 'in a matter' arising under the Act. Severance of different causes of action in the one proceeding is not possible for the purposes of s347 of the Act. Nor is it legitimate to attempt to characterise a proceeding by reference to its predominant element. If the Act is called in aid, the proceeding is one arising in a matter under the Act, and there exists no power to award costs. For similar reasons, these appeals are proceedings in matters arising under the Act. This Court has no power to award costs." However both Bostik and Byrne, supra, were decided by the Federal Court whose associated jurisdiction was conferred by s32 of the Federal Court of Australia Act 1976 ("Federal Court Act"). Section 347 was a provision in another Act limiting the exercise of the Federal Court's power under s43 of the Federal Court Act to award costs. Section s430 of the Act is the statutory source of this Court's jurisdiction in associated matters. It provides: "(1) So far as the Constitution permits, jurisdiction is conferred on the Court in respect of matters not otherwise within its jurisdiction that are associated with matters in which the jurisdiction of the Court is invoked. (2) The jurisdiction conferred by subsection (1) extends to jurisdiction to hear and determine an appeal from a judgment of a court so far as it relates to a matter that is associated with a matter in respect of which an appeal from that judgment, or another judgment of that court, is brought." The applicant submitted s430 draws a distinction between matters for which jurisdiction is conferred by that section and matters in which jurisdiction is otherwise conferred by the Act. Reference was also made to s418. Thus, it was submitted, s430 contemplates two classes of "matter" or "matters". Firstly matters arising under the Act (and were it relevant, other Commonwealth law) where the Act is the source of the jurisdiction to adjudicate and the right or duty which is the subject of the proceedings owes its existence to the Act. Secondly, matters in the associated jurisdiction concerning matters where the right or duty does not owe its existence to the Act. Thus, as a matter of construction, this distinction should be maintained in s347. The approach adopted in Bostik and Byrne, supra, was to focus on the meaning of the word "matter" in s347. At the time of the enactment of the Industrial Relations Reform Act 1993 ("the Reform Act") which introduced s430, s347 had been the subject of a number of decisions, and in particular Bostik, supra, and its meaning was, for present purposes, comparatively settled. Section 347 was not amended by the Reform Act and it might be thought that the enactment of s430 was not intended to alter the meaning of s347. However in view of the language of s430 it cannot simply be assumed that the meaning that has been attributed to the word "matter" in s347, in the context of a different legislative framework, was intended to continue to be its meaning. Section 430 is in language that is relevantly the same as s32 of the Federal Court Act. Section 32 also appears to draw a distinction between two classes of matters. However the terms in which it is drafted were discussed by Mason J in Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457 at 516: "Section 32 seems to proceed on the footing that a matter arising under non-federal law may be 'associated' with a matter arising under federal law for the purpose of its determination in the exercise of federal jurisdiction. The remarks of Latham CJ in Carter may have led to the use of the word 'associated' in s32. If so, his Honour's remarks have been misunderstood; he was speaking of an association between two claims which led to the existence of one 'matter' in federal jurisdiction. He did not say that two matters, one federal, the other non‑federal, might be associated so as to be both capable of determination in federal jurisdiction." The remarks of Latham CJ referred to in this passage are: "None of the cases mentioned presented the feature which is to be found in this case, namely, an entirely severable claim having no relation whatever to another claim or claims made in the same proceeding which other claim or claims alone involved the interpretation of the Constitution. For the reasons stated I am of opinion that the claim for an account, not being in itself a matter in which this Court has jurisdiction, does not become such a matter by being associated with other claims in relation to which the Court has jurisdiction." See Carter v The Egg and Egg Pulp Marketing Board for the State of Victoria (1942) 66 CLR 557 at 580. The reference to "matters" in both s32 of the Federal Court Act and s430 of the Act may be taken to be a reference to claims that are associated in such a way as to constitute, together, a "matter" for the purposes of s76 of the Constitution. Viewed this way, there is no warrant for treating the apparent distinction drawn in s430 between classes of matters as suggesting the word "matter" in s347 should now be given a limited meaning and not the meaning most recently determined in Bostik and Byrne. Indeed it is the very existence of the one "matter" that enables s430 to operate, consistent with chIII of the Constitution, so as to confer jurisdiction on the Court to hear the common law claim. That meaning of the word "matter" was adopted by Wilcox J in Gas Industry Salaried Officers' Federation v Municipal Officers' Association of Australia (1989) 29 IR 48 at 55 when construing the provisions of what was then s53(2) of the Act, now s415. Support for this construction of s347 is found elsewhere in the Act. The expression "party to a proceeding in a matter arising under the Act" also appears in s469. It deals with representation of a party and authorises representation in a number of ways. It is unlikely that Parliament intended that a mode of representation authorised by the section is not authorised for the purpose of prosecuting an associated claim in the Court's jurisdiction arising under s430. Were it otherwise a litigant who is a member of an organisation of employees could be represented by an officer of the organisation: see s469(7)(b), for the purposes of prosecuting a claim under s170EA alleging unlawful dismissal or under s179 for the recovery of wages but could not be represented, at least as authorised by s469, by that officer in prosecuting any related claim in the associated jurisdiction. Section 469 is the statutory source of the Court's general power to permit representation and conditions it: see Nicholson v Heaven and Earth Gallery Pty Ltd (1994) 126 ALR 233 at 235. The word "matter" in s469 comprehends both the statutory claim and any related claim in the associated jurisdiction and supports the meaning of s347 discussed by Gray J in Bostik and Byrne, supra. The applicant referred to a number of cases concerning proceedings alleging contempt of Court, the first of which was Viner v Australian Building Construction Employees and Builders' Labourers' Federation (1981) 38 ALR 550 at 553. Northrop J had to consider whether the legislative predecessor of s347, s197A of the Conciliation and Arbitration Act 1904 ("C & A Act"), limited the Federal Court's power to award costs. His Honour concluded that an application made by notice of motion alleging contempt of Court in relation to proceedings for the deregistration of an organisation brought under the C & A Act, was a separate proceeding taken under s31 of the Federal Court Act and thus s197A had no application. That conclusion has been affirmed by a Full Court in Cooke v Goodhew (1989) 91 ALR 447 at 458 per Sheppard J, 464 per Wilcox J and 474 per Gray J: see also Gregory v Phillip Morris Ltd (1987) 74 ALR 300. However Northrop J's conclusion in Viner, supra, turned on the special nature of contempt proceedings which are criminal in character and have historically been treated as proceedings separate from the proceedings which gave rise to the contempt. Viner, supra, and the cases that have applied it do not provide an answer to the more general question of what is the scope of s347. The applicant also referred to Standish v University of Tasmania (1989) 28 IR 129 at 138-139 where Lockhart J awarded costs, notwithstanding the provisions of s347, in an application purporting to be an application for an interpretation of an award under s51 of the Act. His Honour concluded that the statutory application was incompetent and though there was a proceeding before the court, it was not "a proceeding .... in a matter arising under this Act". However the circumstances of that case were unusual as his Honour plainly considered that the statutory application was entirely misconceived. Were such a case to arise in a proceeding where an associated claim was made in conjunction with a statutory claim that was entirely misconceived, then issues of substance might arise both about the Court's jurisdiction to deal with the associated claim: see Burgundy Royale Pty Ltd v Westpac Banking Corporation (1987) 18 FCR 212 at 219 and the applicability of s347. However these issues do not arise in these proceedings. Given the view I take about the meaning of the word "matter" in s347 it is not essential that I deal with a submission that the respondent appeared to make that a common law claim for damages made in the associated jurisdiction is itself, viewed in isolation, "a matter arising under the Act". However I should indicate that it is a submission that, in my opinion, should not be accepted. In Re Polites; Ex parte Hoyts Corporation (1991) 173 CLR 78 at 93, the High Court determined that a proceeding in the Court to enforce a statutory duty conferred on the Australian Industrial Relations Commission by the Act was a "proceeding in a matter arising under the Act" for the purposes of s347. It did so because the order sought from the Court was to enforce a duty which owes its existence to the Act notwithstanding that the source of the Court's jurisdiction to make the order was s75(v) of the Constitution and not the Act. However it is apparent from Re Polites, supra, that the central question in determining whether s347 applies is whether there exists a duty or right to which the proceedings relate which owes its existence to the Act. If there is it is a matter arising under the Act. A common law claim based on contract plainly does not involve the enforcement of a right that owes its existence to the Act. The decision in Re Polites, supra applied the approach the High Court has taken in construing the expression "Arising under any laws" in s76(ii) of the Constitution reflected in the following passage from the judgment of Latham CJ in R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141 at 154: "Thus one is compelled to the conclusion that a matter may properly be said to arise under a Federal law if the right or duty in question in the matter owes its existence to Federal law or depends upon Federal law for its enforcement, whether or not the determination of the controversy involves the interpretation (or validity) of the law. In either of these cases, the matter arises under the Federal law." This is not an apt description of a common law right, the vindication of which is pursued in the associated jurisdiction. Even though the right depends upon Federal law for its enforcement or vindication in this Court, its enforcement does not depend upon that law. It may be enforced by other means in other courts and it cannot be said that "it can only be enforced by virtue of (the Act)" (emphasis added): see Felton v Mulligan (1971) 124 CLR 367 at 416 per Gibbs J. Thus a claim brought in the associated jurisdiction is not, viewed in isolation, a matter arising under the Act simply because the source of the Court's jurisdiction to hear and determine the claim is a provision of the Act, namely s430. To this point I have been focussing on the meaning of the word "matter". However the ultimate question of construction is not what the word "matter" means but what is comprehended by the entire expression "proceeding ... in a matter arising under this Act". Its scope is wide if "matter" has the same meaning as in s76 of the Constitution. However its scope may still be wide if it does not. This depends on the meaning of the word "proceeding" in s347. Even if the matter to which the section refers is only a statutory claim, the "proceeding in" such a matter may be a reference to the trial of that claim (or other proceedings such as an appeal) or the trial of that claim and claims associated with it. The section identifies parties "to a proceeding" or "the proceeding" and it provides that one of the identified parties shall not be ordered to pay the costs of the other party. It thus indirectly limits the power of the Court to order the first party to pay costs. If the applicant in these proceedings is to obtain an order for costs other than in the special circumstances identified in the concluding words of s347(1), it is necessary he not be "a party to a proceeding ... in a matter arising under this Act" in so far as the claim for damages is concerned. The applicant plainly became a party to the proceeding resulting from the making of the statutory application as did the respondent. A question then arises, assuming the word "matter" has a meaning narrower than the meaning I consider it has, whether the proceeding in which the statutory application is determined is, for the purposes of s347, the same proceeding in which the common law claim is determined in the Court's associated jurisdiction. If it is, then the applicant was a party to it as was the respondent, and s347 would preclude an order being made requiring the respondent to pay the applicant's costs. The word "proceeding" is defined in s360 in the following way: "In this Part, unless the contrary intention appears: 'proceeding' means a proceeding in a court, whether or not between parties, and includes: (a) an incidental proceeding in the course of, or in connection with, a proceeding; and (b) an appeal; ...." While the Part to which this definition relates is PtXIV which does not contain s347, that Part constitutes the Court and invests it with many, though not all, its statutory powers. The definition is in substance, though not form, the definition appearing in s4 of the Federal Court of Australia Act 1976. In Re Adamson (1984) 57 ALR 280 at 293 Gray J adverted to the possibility that having regard to that definition, an application to set aside a subpoena was a separate proceeding to the proceeding for which the material under subpoena was sought. This definition may be taken to provide some indication of what "proceeding" might mean in s347. However the manner in which the definition is framed rather begs the question of what is a proceeding for present purposes. One meaning of the word "proceeding" which is suggested as its primary technical legal meaning is as the invocation of the jurisdiction of a court by a process other than a writ. If jurisdiction is invoked by writ it is described as an action: see Herbert Berry Associates Ltd v Inland Revenue Commissioners, (1977) 1 WLR 1437 at 1446 per Russell LJ, Forrest v Kelly (1991) 105 ALR 397 at 408 per O'Loughlin J and Re Healey: re inquiry into election in Australian Workers' Union (1992) 40 IR 110 at 118 per O'Loughlin J. However authorities such as Herbert Berry, supra are of limited assistance in construing s347. I would respectfully adopt the following remarks of Smart J in Blake v Norris (1990) 20 NSWLR 300 at 306 in relation to the meaning of "proceeding": "In Stroud's Judicial Dictionary, 5th ed, vol 4 at 2029-2035, some fifty-five instances are given of the use of the words 'proceeding' or 'proceedings' in legislation, rules of court or documents having legal significance. The meaning depends on the context in which the word is used. In some cases it is equivalent to 'an action' whereas in others it may mean a step in an action. Sometimes it may include a counter claim. The Oxford Companion To Law (1980) by Professor Walker states (at 1002-1003) that 'proceedings' is sometimes used as including, or meanings (sic), an action or prosecution, and sometimes as meaning a step in an action. The word 'proceeding' is capable of such a variety of meaning that dictionary definitions as to its ordinary or natural meaning are not of much use. They tend to highlight the number of meanings which the word can bear. Any assistance as to its meaning has to be derived from the statutory context and the objects of the legislation in question." As to the relationship between the words "matter" and "proceeding(s)" in the application of chIII of the Constitution: see Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd, supra, at 509 per Mason J and the cases referred to. Several points can be made about the use of the word "proceeding" in the Act that illustrate that it does not have a fixed meaning. The first is that there are instances where the words "proceeding" and "proceedings" are used interchangeably: see s208(4) and (9) and s220(2)(e) and (3)(a). Second, there are instances where "proceeding" is used to describe only the statutory application that might be made under the Act: see s178(6), (6A)(8), s185(2), s179A and s342(2)(b). Third, there are instances where "proceeding" describes an interlocutory application in proceedings: see s373(2)(a). Fourth, there are instances where "proceeding" may be a reference to all claims being heard at the one time: see s334(1(f), (3)(e) and (4)(c), s370 and s372. The expression "proceeding in a matter arising under the Act" or variations of it appear in not only s347 but also ss416, 432, 469, 470 and 471. These sections indicate the word "matter" has a wide meaning, "proceeding" has a wide meaning or both. For convenience I presently consider them in the context of the meaning of the word "proceeding" on the assumption that "matter" does not have as wide a meaning as "matter" in s76 of the Constitution. However as I have already said it is ultimately the meaning of the entire expression that is relevant though its width is determined, in large part, by the meaning of these two words. I have already discussed s469 in the context of considering the meaning of the word "matter". If I am wrong as to what "matter" means in s469, then for the reasons I earlier gave, the word "proceeding" in s469 refers to the entire proceedings involving the trial of the statutory claim and any associated common law claim. Section 470 deals with intervention and enables the Court to grant leave to intervene "in a proceeding .... in a matter arising under the Act". While it is not as clear as is the case with s469, it is nonetheless unlikely that Parliament intended to limit the intervention that might occur under s470 to only that part of a trial that concerned a statutory claim or application and not extend to any claim which was being dealt with concurrently by the Court in the associated jurisdiction. There is no apparent purpose served by treating the power to grant intervention as limited in this way and practical difficulties in the conduct of the litigation could arise if it was. A person has no general right to intervene in proceedings before a court: see Corporate Affairs Commission v Bradley (1974) 1 NSWLR 391 and see also Re Boulton; Ex parte State of Victoria (1994) 126 ALR 620. It is thus likely that intervention in the "proceeding" arising from the grant of leave under s470 is intervention in the entire proceedings including the trial of any claim in the associated jurisdiction. Section 471 deals with intervention by the Minister "in a proceeding before the Court in a matter arising under the Act". Some of the observations I made concerning s470 would be relevant in construing s471. However the Minister's interests that led Parliament to confer a right to intervene are likely to concern primarily the Act and its operation and not issues arising in, for example, common law claims in the associated jurisdiction. Accordingly it is less clear that intervention arising under s471 would be in the entire proceedings. Section 416 deals with references to a Full Court. A Judge may refer a question of law to a Full Court for its opinion at any stage of "a proceeding in a matter arising under the Act": see s416(1)(b). If "proceeding" did not comprehend the trial of a claim in the associated jurisdiction made in conjunction with a statutory claim then the power to refer a question of law would not extend to a question of law concerning the claim in the associated jurisdiction. There is no apparent reason why Parliament would have intended to limit a Judge's power in this way and obvious reasons why it would not. The purpose of the section is to enable complex legal questions or questions that answered either way by a trial judge are likely to provoke an appeal, to be answered by a Full Court. There is no basis for assuming that this purpose would have been viewed by Parliament as having no relevance to legal questions of that character arising in claims in the associated jurisdiction. Sections 469, 470 and 416 support the construction of the word "proceeding" in the expression "proceeding in a matter arising under the Act" as being a reference to the entire proceedings constituting the trial of a statutory claim or application and any related claim in the associated jurisdiction and thus support a similar construction of the expression in s347. This conclusion is consistent with the observations of Gray J in Byrne, supra, in the passage I earlier quoted that "severance of different causes of action in the one proceeding is not possible for the purpose of s347 of the Act" and observations his Honour earlier made in Geneff v Peterson and ors (1986) 19 IR 40 at 90: "Even if I were of the view that the fraudulent nature of the applicant's claim with respect to the major aspect of the case was such as to make that claim one which was instituted vexatiously or without reasonable cause, in my view I should still be debarred by s 197A from awarding costs in favour of the respondents. This is because the section operates in relation to a 'proceeding'. There is only one proceeding before the court, although that proceeding involves a number of separate claims, each of which might have been the subject of a separate proceeding. It is no doubt true, as Mr Kenzie pointed out, that there is gross unfairness involved in the applicant safeguarding herself against costs by choosing to append to a major claim a small number of minor claims which are undoubtedly arguable. Unfair or not, however, that is what s 197A requires. In my view, it is impossible to split the claims within a proceeding for the purpose of the application of s 197A." In my opinion the expression "proceeding in a matter arising under the Act" in s347 comprehends not only the trial of the statutory claim but also the trial of the common law claim brought in the associated jurisdiction. The respondent was a party to a proceeding in a matter that comprehended the statutory claim and the common law claim for damages. The immunity that the respondent has under s347 precludes any order for costs being made against it in that proceeding. No submission was made that the exception found in the concluding words of s347(1) has any operation. I make no order as to costs. Interest The applicant claims interest up to judgment under s482. The respondent submitted no interest at all should be awarded but if so, the submission then made is that it should be on the damages calculated on after tax income. Section 482 requires interest be included in the judgment sum unless good cause is shown to the contrary. None was advanced by the respondent and accordingly interest up to judgment will be included in the judgment sum. Section 482(1) enables the Court to determine interest in one of two ways. The first requires the Court to identify the date on which the cause of action arose, which would have been 24 May 1994 having regard to my application of Automatic Fire Sprinklers Pty Ltd v Watson (1946) 72 CLR 435, and then determine a rate of interest and order that it be applied to all or some of the money recovered, subject to the qualifications elsewhere in s482, for the whole or part of the period. The second allows the Court to determine a lump sum without undertaking that calculation. I propose to follow the latter course. The applicant is entitled to damages in the sum of $66,171.44 and I order that there be included in the sum for which judgment will be given a lump sum of $4,962.80. I give judgment for the applicant in the sum of $71,134.30.