Transport Workers' Union of Australia & Ors v Lee, Graham Meyrick [1998] FCA 756

The issues of jurisdiction, whether a threat can amount to "industrial action" which can be protected action and whether the conduct of the Union was protected action if taken in concert with the Queensland Union were not raised before North J. Jurisdiction No encouragement should be given to parties to raise new points in applications for leave to appeal against interlocutory orders. To do so would be contrary to the policy underlying the requirement to obtain leave to appeal against such orders and thereby to restrict such appeals. Questions of jurisdiction, however, go to the foundation of proceedings and the Court needs to be satisfied that it does have jurisdiction. We therefore heard full argument on that question. The applicants relied primarily upon s 39B(1A)(c) of the Judiciary Act, which provides: (1A) The original jurisdiction of the Federal Court of Australia also includes jurisdiction in any matter: (a) ... (b) ... (c) arising under any laws made by the Parliament. They also relied upon s 412(1) of the Workplace Relations Act which provides: "The Court has jurisdiction with respect to matters arising under this Act in relation to which: (a) applications may be made to it under this Act; or (b) actions may be brought in it under this Act; or (c) questions may be referred to it under this Act; or (d) appeals lie to it under s 422; or (e) penalties may be sued for and recovered under this Act; or (f) prosecutions may be instituted for offences against this Act."

Section 39B(1A)(c) is relevantly identical to s 76(ii) of the Constitution and the identity of language suggests that the Parliament intended to exercise its power under s 77(i) of the Constitution to confer upon the Federal Court the same potential original jurisdiction as might be conferred upon the High Court of Australia under s 76(ii): see Deputy Commissioner of Taxation v Richard Walter (1995) 183 CLR 168, per Mason CJ at 181, per Brennan J at 192 ‑ 193 and per Deane and Gaudron JJ at 212 ‑ 213. Section 39B(1A) was introduced by the Law and Justice Legislation Amendment Act 1997 (Cth), the Explanatory Memorandum for which confirms that an ample grant of jurisdiction was intended. In relation to s 39B(1A) the memorandum states: "The additional jurisdiction of the Federal Court is concurrent with the federal jurisdiction of State and Territory courts in civil matters. The jurisdiction gives the Federal Court a greater role in administration of federal laws, by ensuring that the Court is able to deal with all matters that are of an essentially federal nature."

Mr Bromberg, who appeared with Ms Doyle for the applicants, contended that a "matter arises" under a law made by the Parliament "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". In support of that contention they made particular reference to Felton v Mulligan (1971) 124 CLR 367, where Menzies J said at 382: "It is to be observed from s 76(i) and (ii) of the Constitution that there is a difference between a matter arising under a law and a matter involving the interpretation of a law. A matter may involve the interpretation of a law without arising under that law. Thus, for instance, if, upon a claim for damages for negligence at common law, it became necessary to interpret some statutory provision imposing some duty upon the defendant, the litigation would involve the interpretation of the statutory provision but would not arise under it. 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. A matter arises under a law of the Parliament when in a proceeding it is necessary that there should be a decision upon a claim made by one of the parties to the litigation which is based upon that law. It is to be observed that there is a difference between a 'proceeding' arising under a law and a 'matter' arising under a law. A 'proceeding' arises under a law only when it is authorized by that law; see Collins v Charles Marshall Pty Ltd (1955) 92 CLR 529 at p 537. A 'matter' need not be a 'proceeding'; it may be part of a proceeding, e.g. a defence that the law authorizing the proceeding is unconstitutional. So it is that a matter may arise under a law made by the Parliament in a proceeding which does not arise under that law." In the same case, Gibbs J said, at 416: "... a 'matter' rises under law made by the Parliament when a right, title, privilege or immunity is claimed under that law. A right, title, privilege or immunity may be claimed under a law, either because the law is the source of he right, title, privilege or immunity or because the right, title, privilege or immunity can only be enforced by virtue of the law." See also per Barwick CJ at 373 and per Walsh J at 403. Similarly in R v Commonwealth Court of Conciliation and Arbitration: Ex parte Barrett (1945) 70 CLR 141, Latham CJ, in a passage that has been frequently cited, said (at 154): "A matter may properly be said to arise under a Federal law if the right or duty in question 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. If a right claimed is conferred by or under a Federal statute, the claim arises under the statute". (See also Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 at 95 per Toohey J and at 136 per Gummow J). We accept that "matter" in s 39B(1A) of the Judiciary Act has, as Mr Bromberg submitted, the same meaning as it possesses in s 76 of the Constitution. This was recognised in In Re Judiciary and Navigation Acts (1921) 29 CLR 257 where the High Court observed in a joint judgment (at 265): "We do not think that the word 'matter' in sec 76 means a legal proceeding, but rather the subject matter for determination in a legal proceeding. In our opinion, there can be no matter within the meaning of the section unless there is some immediate right, duty or liability to be established by the determination of the Court. If the matter exists, the Legislature may no doubt prescribe the means by which the determination of the Court is to be obtained, and for that purpose may, we think, adopt any existing method of legal procedure or invent a new one. But it cannot authorise this Court to make a declaration of the law divorced from any attempt to administer that law." (See also Fencott v Muller (1983) 152 CLR 570 at 608 and Croome v State of Tasmania (1997) 142 ALR 397 at 400.) The claim made by the applicants in the proceeding in this Court is that by reason of the provisions of a law made by the Parliament, namely s 170MT(2) of the Workplace Relations Act, they are immune from the proceedings brought against them under the law of Queensland in the Industrial Magistrates' Court at Kingaroy. They also claim that the same provision gives them a right to make application to the Federal Court not to be subjected to an action which, by reason of federal law, does not lie. They claim that on its true construction s 170MT(2) operates as an immunity, or a bar to proceedings, rather than as a mere defence. The right for which they primarily contend is a right not to be subjected to a prosecution in respect of protected action but they say, in the alternative, that s 170MT(2) is available by way of defence. In our view the applicants are correct in their submission that the Court does have jurisdiction to hear and determine their claim. That claim is a matter arising under a law made by the Parliament, in this case the Workplace Relations Act, because it is necessary for the Court to determine whether that law confers the rights which the applicants claim in this proceeding. There being a matter before the Court arising under a law made by the Parliament, the Court has jurisdiction derived from s 39B(1A)(c) to determine the controversy between the parties. The respondent submitted that s 39B(1A) of the Judiciary Act does not itself provide for the substantive content of the Court's jurisdiction but depends upon other laws made by the Parliament to specify the matters which arise under the particular statute. Thus, it was submitted, jurisdiction in a matter arises under a law made by the Parliament only when that law grants or confers or creates the jurisdiction. But this submission fails to give full recognition to the express language of s 39B(1A) and the content of a "matter" which is, as we have earlier observed, the subject‑matter for determination in a legal proceeding. 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 s 412 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, s 170MT is not such a proceeding. The point about s 39B(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 s 39B(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, a history which had produced consequences such as those identified by Lockhart J in Kodak (Aust) Pty Ltd v The Commonwealth (1988) 22 FCR 197. The challenge to the interlocutory injunction The principles which are to be applied by an appellate court in considering whether to interfere with the exercise of a judicial discretion are well settled: House v The King (1936) 55 CLR 499 at 504 ‑ 505; Australian Securities Commission v Somerville (1994) 51 FCR 38, 44 ‑ 45. Clearly, if there is a material error of law an appellate court can intervene. The primary judge did not have the advantage that we have had of a close examination of the question of jurisdiction. He was therefore deprived of the benefit of any substantial argument on the meaning of the expression "in a matter arising under this Act" in s 422(1) of the Workplace Relations Act. That section provides: "An appeal lies to the Court from a judgment of a court of a State or Territory in a matter arising under this Act."

As Dixon CJ said in R v Spicer; Ex parte Truth and Sportsman Ltd (1957) 98 CLR 48 at 53 about the corresponding provision of s 113(1) of the Conciliation and Arbitration Act 1904, the words "matter arising under" are an echo of s 76(ii) of the Constitution. In the context of s 76(ii) the words have, as we have seen, not been given a narrow meaning and in the present context we see no reason to give them a narrow meaning such as would exclude an appeal to the Federal Court from a judgment of a court of a State or Territory which rejected a claim made in reliance upon the immunity provisions of s 170MT, whether asserted by way of a right of immunity from suit or by way of defence. The words "matter arising under" are of course also found in s 39B(1A)(c) of the Judiciary Act. We conclude that an appeal would lie to this Court from the Industrial Magistrates' Court at Kingaroy in such circumstances. Indeed, the matter having been specifically raised with the parties to the application before us, they do not contend otherwise. The primary judge, having carefully considered the various arguments advanced by the parties, said that there were two factors that persuaded him that it was appropriate that the injunction should be granted. The first of these was a doubt about the rights of appeal available under State law and in that connection his Honour said that he had not been persuaded that there was a right of appeal conferred by s 422 of the Workplace Relations Act against a decision of the magistrate in the present circumstances. This was an important part of his Honour's reasoning and we have concluded that it was based upon an erroneous view of the scope of s 422. His Honour then referred to a second factor which, as he correctly pointed out, was allied to the first. That second factor was that, in his Honour's view, it was in the interests of justice that the Federal Court resolve a matter dealing with rights under Federal law, it being a superior court of record with a primary and specialist function of determining controversies under the Workplace Relations Act. If, however, there is a right of appeal to the Federal Court under s 422 of the Workplace Relations Act this second factor, upon which his Honour placed considerable weight in determining to grant an injunction, loses much of its force. In these circumstances we must conclude that because of an erroneous view about the scope of s 422 the two factors that persuaded the primary judge to grant an interlocutory injunction did not support that outcome and that the exercise of his Honour's discretion to grant the injunction miscarried. Leave to appeal As we have found that the exercise of his Honour's discretion miscarried and as we are satisfied that the respondent would suffer serious detriment by reason of the restraint imposed upon him if the order against which he seeks leave to appeal were allowed to stand, leave to appeal should be granted. The appeal The hearing before us proceeded upon the basis that the parties would advance their arguments on the issue of whether or not leave to appeal should be granted and on the merits of the points sought to be argued on the appeal. This was the convenient course in the present case. We now turn to consider the orders that should be made on the appeal. Counsel for the applicants submitted that if the Court was to come to the view that the judgment appealed from should be set aside, we should remit the proceeding to the primary judge for further hearing and determination, with orders that maintained the restraint imposed upon the respondent until the further hearing and determination of the proceeding or further order. We are not persuaded that we should take that course. 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 s 170MT 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. It should also be borne in mind that this is not a case in which the applicants are, in circumstances beyond their control, being vexed by two sets of proceedings; to the contrary, it was the applicants themselves who commenced the proceeding in this Court when proceedings had already been brought against them in the Industrial Magistrates' Court at Kingaroy. In these circumstances we are of the view that, on the material before the primary judge, the application for an injunction should have been dismissed. The orders made by North J on 11 February 1998 should be set aside and instead there should be an order that the applicants' motion be dismissed with costs. The applicants should pay the respondent's costs of the application for leave to appeal and the costs of the appeal. I certify that this and the preceding eleven (11) pages are a true copy of the Reasons for Judgment herein of their Honours

Counsel for the Applicants: Mr M Bromberg and Ms R Doyle

Solicitor for the Applicants: Richard Donald Marles Solicitor for the Transport Workers Union of Australia

Counsel for the Respondent: Mr P A Keane QC S-G, Mr J S Douglas QC and Mr G C Martin

Solicitor for the Respondent: B T Dunphy Crown Solicitor for the State of Queensland

Date of Hearing: 27 March 1998 27 May 1998