Rowell, Anthony Roland v Child, Douglas Braddon [1983] FCA 129

The appeal from the judgment of the County Court given on 2 June 1983 be allowed and the order made therein be set

The appeal from the order of the Magistrates' Court given on 10 February 1983 be dismissed, but the order appealed from be varied by setting aside that part of the order

BETWEEN: ANTHONY RONALD ROWELL Appellant (Accused) . and DOUGLAS BRANDON CHILD Respondent (Informant) CORAM: Northrop, Keely and Fitzgerald JJ. DATE: 5 July 1983 WHERE MADE: Melbourne ORDER

THE COURT ORDERS THAT:

1. The appeal from the judgment of the County Court given on 2 June 1983 be allowed and the order made therein be set

2. The appeal from the order of the Magistrates' Court given

VICTORIA DISTRICT REGISTRY ) Vv. No. 18 of 1983 ) Vv. No. 19 of 1983 )

BETWEEN: ANTHONY RONALD ROWELL Appellant (Accused) and DOUGLAS BRADDON CHILD Respondent (Informant) CORAM: Northrop, Keely and Fitzgerald JJ. DATE: 5 July 1983 | PLACE: Melbourne NORTHROP J. REASONS FOR JUDGMENT . As appears from the judgment of Keely and

Fitzgerald JJ. the sole issue raised by these appeals is whether the Magistrates' Court at Melbourne had jurisdiction to convict and fine the appellant on the information of the

"JUDICIARY ACT 1903 OF THE COMMONWEALTH OF AUSTRALIA MAGISTRATES' (SUMMARY PROCEEDINGS) ACT 1975

INFORMATION FOR INDICTABLE OFFENCES/OFFENCES PUNISHABLE SUMMARILY AND SUMMONS THEREON"

The summons, which was set out "at the foot of the information, required the appellant "to appear on the 2nd day of December 1982 at 10 a.m. at the Melbourne Magistrates' Court to answer to the information and to be further dealt with according to law". The information charged the respondent with a number of contraventions of s.171 of the

Sub-section (1) of that section specifies conduct in or in connection with an election for an office in relation to an

organization which is prohibited. At the foot of the section

there appears the words "Penalty: Five hundred dollars or imprisonment for six months, or both". Section 41(a) of the

shall indicate that any contravention of the section ... whether by act or omission, shall be an offence against the Act, punishable upon conviction by a penalty not exceeding the penalty mentioned: ..."

Sections 42, 43 and 44 of the Acts Interpretation Act are set

"42. Offences against any Act which are punishable by imprisonment for a period exceeding 6 months shall, unless the contrary intention appears, be indictable offences.

(a) are punishable by imprisonment, but not for a period exceeding 6 months; or

(bd) not being punishable by imprisonment, are not declared to be indictable offences,

shall, unless the contrary intention appears, be punishable on summary conviction.

44, All pecuniary penaities for any offence against any Act may, unless the contrary

intention appears, be recovered in any court of summary jurisdiction."

The Magistrates' Court at Melbourne is constituted by "... [a] magistrate ... of a State ... sitting as a court for the making of summary orders or the summary punishment of offences ... under the law of a State ...", namely Victoria,

and thus is a "Court of summary jurisdiction"; s.26 Acts

Interpretation Act. By the application of these sections, it

follows that the appellant was charged with criminal offences

On 10 February 1983 the appellant was convicted by the Magistrates' Court of two offences under sub-section 171(1) of the Act. On one conviction he was fined $125 with $70 costs in default six days, and on the second conviction

There is no doubt that the law enacted in s.171(1) of the Act is binding on the Magistrates' Court; see s.5

Commonwealth of Australia Constitution Act. It is important

to remember, as Windeyer J. reminds us, that the existence of federal jurisdiction depends upon the grant of an authority to adjudicate rather than upon the law to be applied or the

subject of the adjudication; Felton v. Mulligan (1971) 124

c.L.R. 367 at p.393. In convicting and fining the appellant, the Magistrate was exercising federal jurisdiction, see s.39 Judiciary Act 1903. The effect of s.39, Judiciary Act, 1s

explained by Windeyer J. in Felton v. Mulligan. After

referring to the nature of the federal jurisdiction exercised within the United States of America, his Honour said at

"The American concept of federal law as a separate system and of federal jurisdiction was really alien to our conditions. Courts in the Australian colonies were before federation linked by the authority of the Privy Council. Subject to the Colonial Laws Validity Act, they administered, as the law of the land in each colony, statute law of the Imperial Parliament along with the inherited law and the statutes of their own Parliaments. Upon federation s.5 of the Constitution Act made all valid laws made by the Commonwealth

Parliament 'binding on the courts, judges and people of every State and of every part of the Commonwealth'. This and s-109 of the Constitution assured the paramountcy of federal law. As Higgins J. noticed in Lorenzo v. Carey ((1921) 29 C.L.R., at p.255), the effect of s.39 of the Judiciary Act was really to withdraw from State courts a jurisdiction to apply federal laws which they would have had by s.5 of the Constitution Act, and then to restore it sub modo as an invested federal jurisdiction. This arrangement was autochthonous. It derives its efficacy from s.77{iii.) of the Constitution and involves the importation into the judicial system of Australia of the words 'federal jurisdiction'

and the concept they embody. Although I think that that has led to needlessly complex and

abstruse legalism, I realize that the weight of authority and the words of the Constitution prevent us discarding it. TI am not free to

Sub-section 39(1) Judiciary Act withdraws from State Courts a jurisdiction to apply Federal laws. Sub-section 39(2) then provides that the several courts of the States shall, within the limits of their several jurisdictions, whether such limits are as to locality, subject matter or otherwise, be invested with federal jurisdiction in all matters in which the High Court has original jurisdiction or in which criginal jurisdiction can be conferred upon it, subject to certain exceptions, conditions and restrictions which are not

presently material; see the Constitution, s.77(iii).

In the present case, s-171 of the Act is a law made

by the Commonwealth Parliament and thus under the Constitution, s.76(1i1), the Commonwealth Parliament has

power to confer original jurisdiction on the High Court in

any matter arising under that 'law. Thus, under sub-section 39(2) Judiciary Act, the Magistrates' Court had jurisdiction to convict and fine the appellant. The nature of that jurisdiction is illustrated by s.68 Judiciary Act and particularly by sub-section (2) thereof. By that sub-section, the Magistrates' Court, in exercising its jurisdiction with respect to the summary conviction of the appellant, had the like jurisdiction as it had with respect to the summary conviction of persons charged with offences against the law of the State of Victoria. The Magistrates'

Magistrates' Court did not have jurisdiction to convict and

fine the appellant since sections 147 and 191 of the Act, or either of them, made the jurisdiction of the Federal Court to

hear proceedings under the Act exclusive of that which was

invested in the Courts of the State; the Constitution

"191.(1) A person who has committed an offence against this Act or the regulations may be charged accordingly before the Court and the Court may impose the penalty provided

• by this Act or the regulations in respect of that offence.

this section may be instituted by summons issued upon information, without indictment."

The forerunner of s.191 was first introduced into the Act in 1947 by s.21 of Act No. 10 of 1947 in place of the then existing s.89B of the Act. Section 89B had been inserted into the Act by s.57 of Act No. 18 of 1928 and provided that any person who had committed an offence against the sections of the Act specified therein "may be charged accordingly before the Court and the Court may impose the

penalty provided by this Act in respect of that offence".

In the Act, "the Court" is defined to mean the Australian Industrial Court, but by reason of s.118A of the Act, the Federal Court has jurisdiction to exercise the

of jurisdiction on a federal court, by itself, has heen exclusive of that which is invested in the courts of a State. Thus, in Cockle v. Isaksen (1957) 99 C.L.R. 155, the High Court held that by reason of s.113(3) of the Act, the High Court had no jurisdiction to entertain appeals from orders made by a State court of summary jurisdiction dismissing informations charging offences under s.138 of the Act. That Section specifies conduct by a member of an organization which was prohibited and provides for a penalty of one hundred pounds. In referring to the informations before the court of summary jurisdiction, Dixon C.J., McTiernan and

The informations were doubtless brought before the Court of Petty Sessions on the footing that s.138 imposes pecuniary penalties which, by reason of s.44 of the Acts Interpretation Act 1901-1950 may, unless a contrary intention appears, be recovered in a court of summary jurisdiction as defined by s.26(d) of that Act and that no contrary intention appears in the Conciliation and Arbitration Act 1904-1956, s.191 of the latter Act being construed not as appointing the method of enforcing penal sanctions but as providing an alternative proceeding before the Commonwealth Industrial Court. On this footing s.39 of the Judiciary Act 1903-1955 was treated as applying and, by par. (b) of sub-s. (2), as operating to give the informant an appeal as of right to this Court."

See also Adams v. Cleeve (1935) 53 C.L.R. 185 per Rich,

"Among the purposes of sec.39 are the exclusion of State jurisdiction and the substitution of Federal jurisdiction, subject to provisions relating to appeals from the Courts of the States to the Pravy Council and to this Court and in the case of summary jurisdiction relating to the constitution of the Court. Sec. 39 is expressed in terms of perfectly general application, and such an application accords with the principles upon which the enactment proceeds. To exclude its operation upon any part of Federal jurisdiction, more 1s required than a special provision conferring part of the jurisdiction, elther original or appellate, which sec.39 also confers. If the special provision conferred a different authority, or imposed conditions or restrictions or otherwise disclosed an intention at variance with the full operation of sec.39, an intention to

(Gibbs A.C.J., Stephen, Mason, Jacobs and Aickin JJ.), after referring to that extract from the judgment in Adams v.

"We do not think that by the last sentence their Honours were saying that wherever the 'special provision' confers a jurisdiction

• different from that conferred by s.39 of the Judiciary Act s.39 1s thereby totally excluded. No doubt their Honours had in contemplation a contradictory or inconsistent authority from which it might be deduced that the Parliament was displacing pro tanto the grant of jurisdiction contained in s.39. As Gibbs J. said in Req. v- Bull ((1974) i131

C.L.R. 203, at p.257), '''s.39{2) invests the several courts of the States with federal jurisdiction in any matter arising under any Commonweaith law'. In our opinion, this grant of jurisdiction will only be displaced in whole or in part by another statute when that statute evinces an intention to exclude or otherwise limit the jurisdiction conferred by 5.39."

Section 191 of the Act does not evince an intention to exclude or otherwise limit the jurisdiction conferred upon the Magistrates' Court by s.39 Judiciary Act. By parity of

reasoning, sections 43 and 44 Acts Interpretation Act, if

they confer a separate federal jurisdiction, apart from acknowledging the existence of federal jurisdiction conferred by s.39 Judiciary Act, do not evince an intention to exclude

or otherwise limit the jurisdiction conferred upon the

Section 147 of the Conciliation and Arbitration Act

appears in this Act, no organization or member of an organization shall be liable to be sued,

omission in respect of which the Court has jurisdiction.

Sub-section (1) appeared in the Act when it was first enacted in 1904, but at that time was numbered s.67. In the 1904 Act "the Court" meant the Commonwealth Court of Conciliation and Arbitration". The sub-section has remained in the same form

since 1904, but in 1956 the Commonwealth Industrial Court became the court referred to therein. In 1974 sub-section (2) was inserted by s.14 of Act No. 89 of 1974. The same Act

by s.7 inserted s.136A into the Act and by s.13 amended s.146

• Counsel for the appellant contended that sub-section 147(1) of the Act made the jurisdiction of the

Federal Court under s.191 of the Act exclusive of the

jurisdiction invested 1n the courts of the States, and in the present case, exclusive of that which 1s invested in the

' Even though 5 .147(1) of the Act has been in its present form since the Act was first enacted in 1904, there are many instances of State courts exercising federal jurisdiction in hearing and determining charges alleging eriminal offences under the Act. No case has been referred to where a court has held that s-147(1) has made the

jurisdiction of a federal court exclusive of that which is

invested in the courts of the States in relation to a criminal offence. Reference is made to a few of the cases which, on appeal, were considered by the High Court where it might have been expected to see a reference to s.147 of the Act if that section applied 1n relation to criminal offences. Pearce v. W. D. Peacock & Co. Ltd. (1917) 23 C.L.R. 199 involved a criminal offence against what is now s.5 of the Act where a pecuniary penalty only was set out at the foot of the section. In passing, 1t is interesting to note that in

the Australian Boot Trade Employees' Federation v. Enoch

Taylor and Co. Ltd. (1937) 38 C.A.R. 269 the Commonwealth Court of Conciliation and Arbitration constituted by Dethridge C.J. held that that court had no jurisdiction to hear a charge for a criminal offence against what is now s.5

of the Act because that section was not one of the sections

specified in the then s.89B. He came to this conclusion

notwithstanding the existence of s.147 of the Act. Grayndier v. Cunich (1939) 62 C.L.R. 573 involved a criminal offence against what is now s.5 of the Act where a pecuniary penalty

only was set out at the foot of the section. De Vos v. Daly

(1947) 73 C.L.R. 509 involved a criminal offence against what is now s.122 of the Act but then was numbered s.49, where a

pecuniary penalty only was set out at the foot of the

"Section 49 of the Commonwealth Conciliation and Arbitration Act creates the offence. Section 44 of the Acts Interpretation Act 1901-1941 provides that all pecuniary penalties for any offence against any Act may, unless the contrary intention appears, be recovered in any court of summary jurisdiction. This section therefore authorized proceedings against the respondent for the offence in a court of summary jurisdiction. When the court of summary jurisdiction deait with the matter it was controlled by the Judiciary Act 1903-1946, s.68(2), which provides, inter alia, that the several courts of a State exercising jurisdiction with respect to the summary conviction 'of offenders or persons charged with offences against the laws of the State ++. Shall have the like jurisdiction with respect to persons who are charged with offences against the laws of the Commonwealth committed within the State.' Under this provision the court of summary jurisdiction had the same jurisdiction with respect to the respondent, who was charged with an offence against a Commonwealth law, as it would have had against a person who was charged with an offence against the laws of the State. In the case of an offender charged with an offence against the laws of the State, the court had jurisdiction not only to fine but also to order imprisonment. Therefore, under this provision there is, it was contended, no doubt

as to the jurisdiction of the court to order imprisonment by virtue of s.82 of the Justices Act, and s.82 not only gives that Jurisdiction, but requires the court to exercise that jurisdiction."

His Honour at p.516 held that the contention of the appellant

was correct. In the same case Williams J. said at p.522:

"The magistrate convicted the respondent for an offence under s.49 of the Commonwealth Conciliation and Arbitration Act 1904-1946. This section contains in a footnote the words: 'Penalty: Twenty pounds.' Section 41 of the Acts Interpretation Act 1901-1941 provides that these words 'shall indicate that any

contravention of the section ... shall be an offence ... punishable upon conviction by a penalty not exceeding' twenty pounds. The

words 'punishable upon conviction' make it clear that the penalty cannot be recovered in a civil court, but must be enforced in criminal proceedings. The present proceedings were brought in a Court of Petty Sessions holden at Sydney. This Court had jurisdiction to try the respondent summarily by virtue of s.-44 of the Acts Interpretation Act and s.68(2) of the Judiciary Act 1903-1946. Section 68(2) of the Judiciary Act gave the stipendiary magistrate the lake jurisdiction over the respondent as he would have had if

the respondent had been charged with an offence against the laws of the State.

State in all cases to which they are

• applicable."

Cockle v. Isaksen, supra, involved a criminal offence against

what is now s.138 of the Act where a pecuniary penalty only

was set out at the foot of the relevant sub-section and of

necessity the criminal offence had to be committed by a member of an organization. See also Bowling v- General Motors - Holden's Pty. Ltd. (1980) 50 F.L.R. 79 per J. B.

It is true that none of these cases makes express reference to s.147 of the Act. All of the cases can be explained on the basis that s.147 has no application to

In the present case, counsel for the respondent contended that s.147 operated only where the offence was alleged against an organization or a member of an organization. In other words, he contended, that before s.147 had any operation, a necessary element in the offence was the requirement that the accused was an organization or a member of the organization; cf. s-138 of the Act. That contention may well be correct and on that basis the contention -of counsel for the appellant must fail. Nevertheless, on the submissions put by counsel for the appellant in the present case, I am not prepared to depart from the long-established practice that prosecutions for Griminal offences under the Act, whether a pecuniary penalty only or a pecuniary penalty or imprisonment or both are set out at the foot of the section, and irrespective of whether the offences required the accused to be an organization or a

member of an organization may be brought in courts of summary

jurisdiction, a practice which has not been questioned by the High Court, the Australian Industrial Court or the Federal Court. That practice is consistent with the view that s.147 is limited to civil proceedings including civil proceedings for the recovery of a pecuniary penalty. At the same time, I am not prepared to say that in an appropriate case, that practice should not be reconsidered. Reference may be made

to Williams v. Hursey (1959) 103 C.L.R. 30 per Menzies J. at

Tasmania: At the hearing of the actions in the Court below, no objection to jurisdiction was taken but, upon this appeal, Mr. Eggleston argued for the appellants that s.147 of the Conciliation and Arbitration Act 1904-1956 deprived the Supreme Court of Tasmania of jurisdiction to hear and determine the first and second actions. Section 147 is as follows: 'Uniess the contrary intention appears in this Act, no organization or member of an organization shall be liable to be sued, or to be proceeded against for a pecuniary penalty, except in the Court, for any act or omission in respect of which the Court has

jurisdiction'. It is not necessary to state exhaustively what is the jurisdiction of 'the Court', i-e., the Commonwealth Industrial

Court, because it does not extend to the hearing of actions such as were instituted in the Supreme Court of Tasmania. It is sufficient to say that I consider that the section, so far as is material, deprives any other court of jurisdiction to hear a suit

• against an organization or a member of an organization if that suit is within the yurisdiction of the Industrial Court, but does not attempt to deny to another court jurisdiction to hear a suit - which the court could not itself try - on the ground that it concerned an act or omission about which the Court could decide in a suit which it could hear and determine. If an organization were to be sued for libel, the argument I reject

would deny to a State court jurisdiction to hear the action, not because a federal court had exclusive or, indeed, any jurisdiction to do so, but because, for example, in the action it fell to be determined whether the plaintiff had acted in disregard of the rules of that organization (which is a question within the jurisdiction of the court in properly

' constituted proceedings). As I construe the section, I think it is within constitutional power (ss.51 (xxxv), (xxx1x) and 77(1i)). I£, however, it had to be construed in the way I reject, I would regard it as outside power because it would seek to deprive State courts of their jurisdiction otherwise than by defining the extent to which the jurisdiction of a federal court is exclusive of that of a State court (s.77(i21))."

See also Federated Clerks' Union of Australia v.- Hillis (1981)

35 A.L.R. 615 and Gapes v. Commercial Bank of Australia Ltd.

In the result, the appeals must fail on the issue of jurisdiction. However, in matter No. 18 of 1983 the Magistrates' Court ordered that the appellant pay $70 costs. Apparently the attention of the Court was not drawn to s.197A of the Act. Under that section, and upon a conviction being recorded, the Magistrates' Court had no power to make an order for costs. Accordingly, in matter V. No. 18 of 1983 the order of the Magistrates' Court should be varied by deleting that part of the order which directed the appellant to pay $70 costs. The appeals from the orders of the County Court should be allowed and those orders set aside. Under s.113 of the Act, the County Court had no jurisdiction to

I certify that this and the suckee i, preceding pages are a iruo copy of the Reasons for Judgment herein of the Honourable Mr. Justice R M Novthvop

eth ate Sate atte alee 8 Bee ee tte meee tng Lt te i ne Se ae Ente ene a ee

) ) VICTORIA DISTRICT REGISTRY ) No. V 18 of 1983 ) No. V.19 of 1983 )

On JO February, 1983, the appellant, Anthony Ronald Rowell, was convicted in the Magistrates' Court at Melbourne of two offences against sub~-s. 171(1)(b) of the Conciliation and

Arbitration Act 1904 (the Act). On one charge he was fined

$225-00 and ordered to pay $70-00 costs, in default imprisonment for 6 days. On the other charge he was fined $125-00, in default imprisonment for 3 days. He appealed to the County

Court at Melbourne which dismissed the appeals and confirmed the

convictions and sentences. Appeals were brought to this Court

under s. 113 of the Act from the decisions of the County Court.

It emerged in the course of argument that the County Court had had no jurisdiction. The Court allowed an extension of time to

ithe appellant to appeal against the decisions of the

ANTE RIND CRY cpearrnereT ape mere reper er Aye SE NR eR een me ree See me em ie

te sat PMO rae Oba Reed kee CN oe ete? Sea ile ote ie A oh

ee MiraT) hu tate aE oe bene Es ne OTIS GPS cree OPA Te et we ST

nf Caannertinn bal bate Net at Lee ate cet ba ee et

Court and it is with these appeals that these are now concerned. It is common ground that the

"Section 171 proscribes certain conduct in connection with

elections for offices in organizations registered under the Act

"Penalty: Five hundred dollars or imprisonment for six months, or both."

Acts Interpretation Act 1901. Sections 41, 43 and 44 of that

shall indicate that any contravention of the section ..., whether by act or omission, shall be an offence against the Act, punishable upon conviction by a penalty not exceeding the penalty mentioned: .......

(a) are punishable by imprisonment, but not for a period exceeding 6 months;

shall, unless the contrary intention appears, be punishable on summary conviction.

Dn tg en nnn eee ee. ree rn ere ee ee ee en ee ee te Se

44. All pecuniary penalties for any offence against any Act may, unless the contrary intention appears, be recovered in any court of summary jurisdiction."

The only point in issue is whether the Magistrates! Court had jurisdiction. The appellant claims that it did not because of ss. 147 and 191 of the Act. It was not in dispute that, but for one or other of those provisions, the Magistrates' Court

would have had jurisdiction: see Judiciary Act, 1903, sub-s.

39(2) and sub-s. 68(2); Acts Interpretation Act, 1901, Part X.

"191(1) A person who has committed an offence against this Act or the regulations may be charged accordingly before the Court and the Court may impose the penalty provided by this Act or the regulations in respect of that offence.

section may be instituted by summons issued upon anformation, without indictment."

In substance, the submission for the appellant was that sub-s. 191{1) should be construed as permissive insofar as it provides for a charge against a person who has committed an offence against the Act but mandatory in requiring that any such charge

In our opinion, that construction of s. 191 of the Act cannot be sustained. A contrary view was implicitly accepted in

Cockle v Isaksen (1957) 99 C.L.R. 155. Section 191 of the Act

does not, in our view, disclose an intention to displace the

jurisdiction granted to a Magistrates' Court by the Judiciary

"147.(1} Uniess the contrary intention appears in this Act, no organization or member of an organization shall be liable to be sued, or to be proceeded against for a pecuniary penalty, except in the Court, for any act or omission in respect of which the Court has jurisdiction.

(2) The jurisdiction of the Court under sections 140, 141 and 144 and Part IX is exclusive of the jurisdiction, or any similar jurisdiction, of a State industrial authority."

It was not in contest that the acts alleged to have been

done by the appellant were alleged to have been done by him in

connection with an election in the Union of which he as a

member. The appellant's submission-was that the charges against

him were proceedings against a member of an organization "for a

The only penalty for contravention of some sections of the Act 1s a pecuniary penalty: see for example, ss. 5 and 122.

We do not have to consider in these proceedings whether the

appellant's argument would have validity in respect of a charge that such an offence had been committed. However, we note in

passing that the contrary view 1s frequently acted upon and has

been assumed to be correct by the High Court e.g. De Vos v Daly

FE Oe RGR Sr ene Romeo em pe a eee seme seer eRe cee eee

(1946) 73° #C.L.R. 509 and by a Full Court of this Court in Bowling v General Motors Holdens Ltd. (1980) 33 A.L.R. 297, 300. Section 147 only operates where an organization or a member of an organization 1s sued or proceeded against for a pecuniary penalty. In most cases membership of an organization will not be a necessary element in establishing the guilt of a person

charged with an offence. At least in such cases s. 147({1) will

not exclude the jurisdiction of other courts even if it is

capable of some operation in respect of proceedings for an

appellant's contention in the present cases. Although pecuniary penalties were in fact imposed by the Magistrate, imprisonment might have been imposed. On no possible view, in our opinion, can it be said that the appellant was proceeded against in the

In our opinion, the appeals from the Magistrate should be dismissed save that, as acknowledged by Counsel for the respondent, the Magistrate's order as to costs should be set aside: see s. 197A of the Act. It was not in dispute that the

orders of the County Court should be set aside with no order as

WS RIN Tes steam ARE Leh idee ae Me FL eta eel eee et be Owe

to costs. The result is that the convictions and penalties imposed by the Magistrate stand. - run

: KEY and he foneumbie aw, Toshee! Fite evald. rag aay we, y-" ne Gr

TT nme regan ree ener Qo cae Fe eR Re we ne ee wane meee wenn ee - ra