"™ CATCH WORDS {nudustrial law - criminal proceedings - order dismissing anformation after hearing on the merits - jurisdiction of Full Court to hear anpeal. Conciliation and Arbitration Act 1904 ss.5,104,113,114,115,118B,119C. Federal Caurt of Anstvelza Act 1976 ss.4, 20(1), 24(1), 28(1). . Paul John Burgess v. John Connell—Mott, Hay and Anderson Pty. Ltd. V No. 15 of 1979 Coram: Smithers, Evatt and Keely Jd. Melbourne 24 July 1979. TNDUS REAL ni VISION VICTO YT Oy as IRIn DICTH we ew=a Q . o I i) In my vay ~] 0) REGISTRY BET YW = ER: PAUL JOUN BURGESS 'Appellant A Bb: JOAN CONNELL-NMOTT HAY and AIM!RSoy Pry. iD) Respondent ORDLR JUDGES MAKSIC ORDER: Smithers, Evatt und Keely JJ. OF ORDER: WRERE MAN. : The Court ord 1. The apncal Melbourne be dismissed. IN THE FeDERAT, COURT OF AUSTHALTA ) ) INDUSTRIAL DIVISION ) V No. 15 of 1979 ) } PETREEN: PAUL JOHN BURGESS Appellant AND: JOHN CONNELI-NOTT HAY and ANDERSON Pry. ITD, . Respondent Smithers, Evatt and Keely a), 24 July 1979 REASONS FAR TUDGFOUT Smivhers J: Im this matler an appesl has been inslituted under s.2h (1)(a) of the Fecersl Court of Austrelia Act 1976 wherein: the appellany purports to appeal from ea judzment of c single gudge of this Court sitting in the Ircustrial Division. By that tre appellant égsrinst t = 1€ ¥ judgement an irtormation laid by respondent for alleged breaches of s.5(1) of tu2 Concilzaticon and Arvitretion Act 1°04 was dismissed. The information alleged thet tre respondent had dismiss2a tne eppellant from nis enployment ty reason of the circurstance hat the appellant was é member of the Australien Workers! Union end of other circumetances specified in s.5(1)(2) (b), Cd) and (£) of Lhe Conerlie tion ard Arbitration Act In the course of the cenduct of tbe prosecution the appellant called ¢ evidence of facts and circumstances alleged by him to constitute the elements of the ullesed offencc. nereayster counsel for the appellant armoujced "I heave not i:ntenced to call any further witnesses. That 1s our case", Counsel for the respondent thereupon submitted that on the evidence called by the appellant the elements of the offence had not been proved and that the tunfor- mation sheuld be disizssed on tre rround that there was no case to answer. Mo point was made tnat the evidence was or might be insuf- ficient to prove that the reason for the rceepondent's action in dismissing the appellant was the circumstance that the appellant was a& nember of the A.W.U. or one of the other circunstances specified in $.5(.3)€e),(P)(a) of (7). No doubt this was beceuse af all other facts and circumstances consts'uting the alleged NO offense were proved, tuen by virtue of ¢.5(4) of the Conciliation ard Arbitretion Act it lay upon tre respondent to prove that it was not actuated by sry of the reasons allegfec in the intormation. The respondent submitted that one of the essential elements of the alleged offenceswas that the appellant was a rember of the A.W.U.,that on tne evidence called by the appellant ut appearcd that the appellant was not eligible to be 2 merber of the A.W.U., and accordingly was not a member thereof. This sub 1Lssion was accepted by the learned trial judge and he dismissed the inforretion. Cn che appeal coming on Ser hearans the o armediate auestion 'as ynether having regard to the terms of s.24(1)(a) of the Feaercl Courc of Australic ct as crypoundec by the Full Court of taas Cuurt in Thompson v. Nastertouch 1.V. Service Fty. Litatea (1978) 19 A.L.R. 547 the eppeal was competent. Section 24(1)(a) provides thev:- "eh, (1) Subgject to this seccion ana to any other Act ... tre "ourt nas furisciction to hear end aeternine - (a) appeals from aucgments of the Court corstituted by a single Judge." Section " provides that unless the contrary intention appears the word gudgment moare "a judgment, decree or erdcr, whether final or interlocucory, or a sentence.". Iv was decided in Thompson v. Mastervouch (sapr-) tnaat upon the proper constiuction of s.24(1)(a) the appellate gurisdietion of the Full Court of this Court does tates eons wat not extend tu anpesls from judimenvs of ac.ultltal in criminal malters by a court of competent gurisdicticr etter m1 nearing on the merits. at - os) * 2 c WES No fe 3 fora e é art I 1 ft wes not contended before the Court, nor could it successfully have cveen, that procecdings under s.5 of the Conerliation and Arbitration Act 1904 are olhcrvise lhen riminil ian nature, see e.g, Grayndler v. Cunich (1959) 62 C.L.R. 573. However, counsel ior the apycellant did contend that es the information had been dismissed upon a plea of no case .O answer, the gudgment of the Court ceuld uot be described as one of ecaurltal efler a hearing on the merits, An accused persen is acourtled other than on the merits salen the proceedings against him are dismissed on some point wnarch "d agnvolves no adjudication on Lhe facts or on the epplication of the law to the facts to determine his guilt or innocence. The typical case 1s one where the relevei.. tribunal refrains from anvestigating the rerits on the ground that it considers 2% lacks jur'sdiction see Wrete v. wisces (1591) 4 Co. 45D, There is an apnerent suslitative difference between sucn € case anc tnav where accorcing Co a he appropriate trial procedures the facts have becn ememanec aud 2# gudament of guLrlt cr innecer wu given according to the Court's determination of the facts and the relevant lav. In a criminal trial 1t 2s open to tne accused to seck at ean beeen Bee ew ne a judgment in has faveur at the end of the c-se for tne prosecution ana without clecting to coll no evidence, Tnat is what occurred im [nis case ang the respondent ob-vained such a judgment, Iv .as a gudgyw.i1.~v on the merits tecause it was obtaincd efter consideration of all tnuc evidence put against the respondent end the relevant law. Reference may be made to authorities supporting this view SW y aun parziiculer R. v. Sheer (1827) 2 C. & P.634 at pos.6 9-646; Yl an Ne No Q Oo R. v. Austin (184 x 52 and Matcheli v. Rerry (1922) 22 S.R. (N.S.W.) 363 at p.3€6. Thess cases deal wrth the elerents of the plea of autrefois accuzt but the principles explained are spplicable tec the issuc »xresently before the Court. On the basis of those authoritres krofessor Sawer rary has wratten:- "It has to te noted, hovever, tnat in our law 'taequittel on the inerits' does not require, as ccmeon sense might suggest, a vositive verdict that the gury or bench irs satisfied affirnmaitavely of the defendant's innocence, 'There is ecually an accuitcal on the morits if tne evidence for the prosecution is not oelieved, or igs lerally in- sufficrent (as where corraboralion 1s recurred), or does not establish ine elements of tne offence in euestion, or even 1f the prosecution dots not eslablisn any evidence at all." See Autrefois Accurt and Decision Not "On the "Yerits" (19/74) 2 Res Jdudicatae 204 at p.2Zos. The concept of an"zcquittal on Lt merits" was also examined in ward v. Hodexine (19577 VR. 715 where Herring C.d. said at p.7i8:- wet S Vv. ir "lo. an orde: to dovermine waethor The diasmasséal of an untormalion can be relien upon as the basis for a vleea of autrefois cccuit, at is necessary lo go berond ilssal and sez hov tar the procecaints nave .one. A dismiss2. in other words wer se may not be sufficient, It mey take place before issue joined or before there 1s any susstion of an edyudication being embarxed upon with rcgerd to che guilt or 2nnocence of the defendant end it at does, at will not 17 my epinion afford a besis for the vlea." and again st p. 719:- "The question of course 1s whet 1s meant by a disrissal 'on the merits'. I can undcrstend 1t being saic ihet Lnere is no distissa? 'on the merats', when a case 15 dismissed For Lne non-appearance of the inforrant, But can ti1s be said of a case, whei+ before dismissal is-ue has Decn goined and the acjudicetion entered upon? Clearly it will be 4 u1srissal ton the merits' un such - case, if the w.nfornant calls evidence whicn proves insufficient to establish has case; shoula have thought the positaon would be the sam2 if the dismissal resulted irom nis fail- ure to call any evidence at all." " ee also Bernes v, Gourcusis /19690/ V.R. 1019 at p.1022 and Foward Pacholli /1973/¥.2k. S33 ab 9.339 It as then put by Senior counsel for the appellant, that 1t did not foliow from the decision in Thompson v. Mastertouch (supre) that this appeal was incompetent. PAIS LEP Ouch Pp PP i It was his contention, thal althougn ibe explicat_on of the , & Ps principle, which may be called the rule egrianst appeals frem accuittals, may .ell cualify the lileral meaning of the ¢ 7 words in s.24(1) end s.4 of ta he PeGeral Court of Austr3tza t. Act in relation to aceuittals an prececeirngs uniter Part ¥ of the rad. Preetices Act 1974, at cit not qualify those words we ew et Be o-ie an relation to criminal procevdites under s.b or the Conesliaticn and Arbitration Act. In this conmmection he rejiea on the vuecieio.. an Coc'zle v. Taaksen (1957)99 CLLR. 155 a5 establishing that Lhe principe did noc epply an relaticn to arpecis trov a magistrate sitting es a Ccure of Potty Sessions. in New South Wrles to the do Commenwealtin Inéustrial Court pursuant ta 3.11% of che Coneiltic: zon and Arbatraticn #et ond by smplication toa thas appeal. Srctrou 112 it] t that time provided for an eppeal to the Coimon.ealth Industrial Court from a gudrment, decree, order o: sentence of a Slate Court (not being a Susrem> Court) or ef a court of a Verruitery made, given or pronouucsd in 4@ cnatter arising under the Act and that there should not be any appeal to the Hign Court from a yucgnent, c decree, order or sentence from which en appeal mighty be vrsupht to the Cemnonveelth Industrial Court under thet section. It was ergued by the 1ilformant before iigh Courl that that part of tho section which purported to limit the rignt of appeal to : the High Court caule not be yustificd by 8.75 cf the Conslitution * anc wes therefore nvalza, Tél ves neld by tne High Court that the challenged provision of s.iizZ was valid ana that there was therefore a no jurisdzcriion in the Haeh Court to grant srecial leave to appeal. The anformant subsequently took the appce] to the Commoiscel th Industrial Court where it was heard aud alin.ed and ine derendank nm = p oO c is) pan . o~ ta &= ae) a) se) Nw Was cor P.LeR, 15%), f Tn Cochise ve. Isakeen (supra) the rule dprains? appeals fror aAcouLttals e>sears not to have bein montionec et cny-stage. Nevertheless it "ey be establisued by that cace thal the provisions of s.113 or the Conc1listion and Arbitration Act took effect according to their lrtervel meaning uncuslified by that rule. Thet woula mel be because Lic ynrancinle nas no application 21 Australie but because of the application to the words of $.1127 of the view teat eccording to Lh ir proper interpretation in the concert of the "one: littioen aye wate dee we esi Arbitralnon Act they are to Lave weir iiecral weaning o unqualified by tnat rule. Wherever sucn vordés appear in a staltutc the question must erise wniether, an the convtrt cn which they ompear, they are te be anterpreted lilerelly or subject co the rule against upreals fror ecquittals, Sections 113 and 115 were antroduced in 1956 by the Concilietion snd Arbitvation Ack (Ilo, 4/ of 1956). Section 113 was enacted an place of 5.37 'waiech had heen ansertrd by s.83 of act No. 19 of 1947, in vhickh Lhe antention of Perlisment to confer on tue Conciliation ara Arbitration Court complete and fina. aurisdicticn over ali judgments ororders of all Courts in original proceedings under the + Act or unde1 awards ves vanitest, In sucn a situation and according » to the context, the antention that 9.11% should be interpreted lit- erally might have been dascerned, The efrect ot 8.773 was that when proceedings were commenced in a State court (not being 2 Supreme Court) or in a court of a Territory there was an appeal from a gudg- ment thereof to the Comvonwealtn or Australian Industrial Courts, But there vas no appeal from similey prucecdings é commenced un the Commonwealth Tndustriai Court or the Australien Inéeustrial Court unless leave was granted by the Haigh Court. The clear intention of Parliarent spparent in the carlicr provision naneiy 6.51 Of the Concijza™ion end Arbitration Acl was reflected in the situation obtaining by virtue of 3.113,the ney Commonveaith Industriel Court tuking the place of the Arbitration Court for thal nurpese, Section 113 18 still an force and by reason of 5,7164(4B) of the Concilie*ion énd Arbiiration Act, as insecrled 3 of 1978, appeiis by thereunder may be brought to a Pull Court cr the Federal Ccurt. On this basis the Federal Court, in respect of metters arising under Industr261 io fe) ct Hq $0 jHio) is n 5.115 would be tne successor of tne AL Court. When Cochle v. Was decided tne context of s.113 iuncluced 8.715, That section,which would seem to have a sequential connection with s.71A which was inserted by 8.25 oF Act No. 43 of 1930, and applied to the Court of Conciliation and Arbitretion, defined the powers of tne Commonwealth or Australian Induztrial Courts on ém appeal under 5.113. According thereto the anpellate Court might:- (a) aifirm, reverse or modify the jucament, : decree, ordor or sentencz épycealed Lror; (b) give sach gudgyent or mele such order © &s in 611 the circumstances 1t thinks fit or refuse to make cn order; and (c) grant a new trial. These powers correspond with those specified in s.2e (1)(a), (b) and (f) of the Federal Court of Australia Ac but of course 1n s.175 of the Corcilietion and frbitreation Act they are nol used in associstion with pawers such «s specified in s.28(1)(c) and (e). Seclion 115 of the Conciliation ard Arbitiazion Act viien enplied an the course of the evo reise of the jurisdiction a2 the Fe Cour er 1s cpolied in the ~dsencc of ats eurlier fu i je accormmanying section, mancly s.775, 'has agen: from 5.1184 oe #8 & resull (!)(o) ot the Coacitiation of that provision the powers of the Cuuri on appeal pursuant to $.173 are now to be found not in 5.115 tut in s.28(1) of the Federal Court of Australia Act. The non-anplicability of s.175 was effectuated lL the time of the crealion of the Federal Court of Australia by amendmont of the Concrirestion and Arbitretion Act by 76 wnich excluded , r the insertion of s.77*@A(1)(b) by Act No. 160 of % \ from applicability an the Federal Ccurt 7+ nunber of provisions an the Conc2liaticn and Arbitretion Act which had govezned perticular procezvdinss in tbe ASustral.rn Industrial Court aud cee sections are s.'14 (appeals to the High s of Court of enpeal pursuant to s.113), ly), s.117 (enforcement of judgments and orders), 8.118 (practice ard procedure), ard 5.184 (contempt by witness). 'he retionale appears co nave been that where epecial provision peculiar to the jurisdiction conferred by the Cencilialion aud Arbitration Act was rcuuired in particular respects, for exavtple with respect © casts in particular cascs were transferred BR Gov te ro ck ae 1D Ly a id rm > cr (see 5. °97A) specific provis and made appliceble in the Federal Courl of sustralza but where it was tne intention that the powers anc procedures provided for, generally, in the Federal Court -f Australia 4ct whacn were capable of application to each of the diverse gurisdictiors oS of the Federal Court should evpiy where tnat Court vas actin; "wD under the Conciliavion ard Artitratior 4ct,no such transfer was mado, If Cockle v. ZIsaksen (supra) 1s to be regarded as an authority that s.°74 .as t6 be anteroretec Jiverally and thus unqualified by che rul= against eppeals from an acquiltal iat woul' be unlikely thal by reason of whas may be called th wachinery clanges, anstituted by Part Va of the Conciliation area ny Arbitration 4ct zneroduced by Act No. 760 of 1976, a change from the substentive law enacted by 8.115 as theretofore in force wes intended It 14 the effect of s.118B of the Conciliation and Arbitration Act as enacted by tue Conciliation snd Arbitration Court of tustrrl2a) fet 1973 (No Amendment (Fea 5% of 19/8) that « right of avpeal as of right nas been created in relation to a cléess of proceeding in which prior thereto there never was an appeal as of right, namely, proceeaings decided in tne origineld gurisdicticn of tu2 Court to which 1n 1%8s éprellave jurisdiction appeals masht be brought under s..7143. That Court sinc? 71 February 4977 has been lhe Federal Court of sustralla ¢c1vtin= an ts Industrial Divisio. Previcusly tnet Ceartv was the Australian Inéustriil Court. It is to be notcu thet by virtue of s.104(2) of the Concaliavion and Arbicralion féct proceedings in respece ai contraventions of 5.5 of that Act mignt be heard by a Court constituted by e@ sinzie gudge. The notion apparently was that In metters under tne Concaliclicn and Arbitration Act the finel word was with the Australian Industrial Court whether st spoke by one gudgo or Uhree gudves subaccet 10 en appeal by leave to che Haigh Court under 9.17114(2?) of thet 4et, The appeal under 2.113 weth wich Coc+le v. Paehsen (suzra) was concerned was an appzal Tien the court at first 1 5 to € sunerior Court at the icvel of Ene Court of instence Concjyliaticon and Arbitration, the Conmorwvcalth or Australian Industriel Courts and no. the Fecaerel Court. The learstative antention to provide for such an eppeel hes existed since 1947, when s.3i the forerunner to $.112 wes inserted ty s.8 of Act No. 1% ot 1947. Iv was the legislative intention as m pau] ce expressed in 5,31 and laler by s.112 treat, seve for an appeal to the High Court by leave, proceedings 3 such a case should crase at the Court of Concaliavion and Arbitration and ats successors r end that 18 still the position. 'ihe present eppeal is frou a judgment in lhe original jurisdicticn of the Court which for this purpose 1£ such € successor and it stands or falls by 2:eference ta . considerations besically difierent frou those relevant to anpeals brought under 8.1135 of the Conerli.tiusu and Arbitretion Act. + The present apnea] cames to tnis Court pursusnt to 5.24(1)(a) ot tne Federal Court of fustrelia Act. It 15 an appeal from a Juasuent of we Feaeral Court ateclf., It 1s én appeal from 2 gudrment of acquittal of a superior court of record after a hearing on the merits, It 1s of course true that it 1s an appeal an a matter arising under the Concalistron ane@ arbitration As". Ti 2t 18 competent 1% 18 because 1% 15 autnorised by the general provisions of s.724(41)(a) of the Federal Court of Austislia Act, the terms of wnich apvly according to their prover interpretacicn to all appeals so authorised. However «s appeals autaorisen by s.24(1)(a) do not include appeals pgainst judgments of acquittal in cririnel cases efter ou hearing on the meriis, the appeal in this case is nov authorised and tacre is no otnér provision for suc en anpeal. Although on the proper interprevation o° s.24(1)(a) of the Feceral Court af fustrali2a act it does not avail a disappointed anforvent, such a party kes by ime changes in 2ne L law not been deprived of any right or privilege that he ever had. So f2r as ne 1s concerazd the la. pursucnt to the P-arral A Court of Austvrelia Act end Lhe Concilzs-10n and Arbitration Act preserves 10 bin the appeal by leave to the Wish Court which n Lhe only appo.l open to ham against the Cisnissal oa i) has clways of an anformation under 8.5 of the lettor Act. The Courl reservec its jacemer.c on the preliminary question of jurisdiction on @ June. On 26 Jane the eppellant forwarced to the Court and the respondent further written ) submissions. nese gutmissiors were of two categories. The first related to whetner the aceuittal enpeaied fror was an acquittal on the merits, This ratter +s Jealt with above, The second 1relatcd to the 2ffecl of the sumendments to the Conciliation end Arbitration Act which created a system or amiernal epreals with respect to matrers dealt with in the Industrial Division of tne Federal Court o* 4ustralia to Court of this Court, was, subgect to us ty tw) any other Act, erneo.ered Lo hear eppeais from judements of singic Judge of che Court. By s.7"1&5 of tr: Concrlietion and Arbitration "sv waich care anto forec on the same day, beong introduced by Act No. *50 oF 1975, LE "5 provided thev:- "(1) Notwathsleniing anytains concaiuned in the Peaersad Court om Austreiasa 407 1276 - (a) An eupear does not 11¢ tr a Full Court of the Fedcral Ceurt 91 sustralia fron a jJadgmerat, decree, c7a21 or sentence urea: thes act af that Court constivuied = uM by a single Judge; aac (b) except as provided by sub-section (2), an appeal does not liv to lic Hage Court fron @ gudgment, decrez, order or sencence unacr tars ACt wl the Federal Court oF australia Lowever constituted, (2) Ar appeal lies to the High Court from a judsirent, decree, order or sentence of the Federal Court of 4uctral2za under this Act (otner than a judgment, decree, order or sentence under sccction 707, 200, 470, 471 or 112 or under Part VITIor IX) 1f the sich Court grants leave to a: peal." Rxcept pursuant to the last menlzoncda sub-section the position ves thet fron 1 Fenruearyv 1977 to 13 June 19738 16 wes not possible to appeal against & jgudgment of a single Jucge of the Federal Court given under the Conciliation and Arbitration /ot. a However, 16 must bt romembercd that et tne tare «a substanti number of matters were recurred to be heard by a Court consisting of three Judges, Section 20(1)@)of tae Federal Court o7 susiralie Act 1976 provided that "the origanéel gurzsdaiction of the Court aun the Industrial Division snall be exercised by a Full Courc", except as otherwice provided by this 4£ct ur any other Act. Section 10/ (2) af the Coneitiatizn and ArbLilrstiun Act made such a provision in relation to a number of metters, most materially, far prescnt purpes:s, s.5 proceedin Tne Conciliation and arbitration Amendeecnt (Federel Court of Austrelia) Act 1978 (No. -3 of 1976) vhach comiweneed on 79 June 1978 changed this situation considcimbly. By s.4(° ®.1716B of Lhe pruicipal Act ws repealed end a new section wita thet nuincr was inserted. 'Whe effect of this new scetior was to meke the right of eppeal from 4 single Cudge to the Full Courl appliceble to Industrial Davicion ateers excepe an proceedings uncer :.158P or under Parc 1X (election ansuiries), Ik reads:- "118E (1) (@) An appeal docs tor lie ts Pull Court of the Pederal Court of Aitrelia Crom a gudpigenes or order of tnat Court conetitumd py a sangle Cudse, in procesdings wider $.133P or un Part IX: Ga (b) subject to sub-section (2), an appeal lies to the Eashn Ceurt from a judgemenc, decree, order or ventence under this set of a Pall Court of the Federal Court of Australia af tae Righ Court grants leave ba appeal, Eut uct otherwise. gi lies to tne Eigh Court from a judgirent, fAavcCenste oF a Tull Ceure of the Federal Llral a) ama ~atter arising umaer ze O3, 149, 7112 or 15@P or uncer Pa v % (including e prosecution Zar an offence against f 4H Hi3 regulations made for th: purposes o against Part ViIlor Pury IX) or (b) ain respecl oF contempt of thac Court in relation to nrocecdings under this Act." N Act No, 523 of 19'78also proviced that gurisdiction in - the Industrial Divicion should be exercitec by a single Judge except in certeian tpecified circunstances (8.11S5A(4A) end (4B)), and that a single judge ney refer proccedings to Lne Full Court, (z. 113C). It wes upon cnactment of s.71G4 (44) that an epoval pursuant to s.24(1){-) of tne Peséeral Court of australia Act became svailable in resvect of gudemcnes of single Judges of tre Court siltang in che Industrial Devasicn. The appellant bases his intie] contention on the wording cf wo. 55 of 1973, arguing Ihat tre exclusion of appeals 1n the matiers speetfied am thet sub-section 1.°, under "a a .M 'U oO rs tr oO te ct H t ', K unaicales an intention to confer = -2zgit o appeal in all other ereas, Bur lane gurisearetion to hear th. eppeels must de found an s.24(1)(a) cl the Feder.) Court of "ustral.o fet Section 716B(1) ef the Conciliation ord svbiivation fot merely indz- cal2>s in what matters appeals sre net prormitted., It is nol 4 provision orriug jariedictlom to near agpeeals. Seetioan e4(')(a) o GSed does not confer a right of appeal against a judgment of acquittal after a hearing sn wne verits by e@ coure of competent yuris-— diction. ee Thompson v. dase rtouch (surra)., That decision 1 cals that are brought under s,24(1)(a). na » 'd ' I~ tH oO m Pal ae + fe) p }-4wv it shonlé be noted that the wording of 2.11SB(1) on which the appcil-nt relies 1s not without purpose. It ais Gesigned to complement other pai.s of Act No. 57 of 1978. The lezgislalure hed ali.tys under the Corcijiatien end provided that in certein proeccedings G ho rkrtratzor Act audjments of the Commonmycalth Irdustri2i Court end the Austrelien Industrial Court should be final and not subject to eny epneel. ance to examine the Conciliation and wu ct we o °O Ry bay] ct SS18 ArlLitralaon /ct ag 1t stood prior to amendrent by act No, 53 of 1978. Frem the Lime of tae creation of the Common.ealth TIndustri12i Court an 1950, £.11-4 contained a oiohibiliom of appeals lo tie High Court from a quegment, decree, order or sentence of that Court ond later the Austretian Irdustraal Court (usually Courts of tree Judges) under ss, 107, 109, 470, 111, 112 or under Pait VIIT or Ix. With the advent of the Federal Court of Australia a new section, s.118L2, ampescd a sic1ilear »orohibation on eppeals to tne Iheh Cource Prom sivilar proceedinrs i2n tie Federal Court and an absolute ban on appe>is co a Full Federsi Court from a gudgecut of a siuncle gudge cf that Court sitting in t ye Inedusti ial When by fee No. 53 of 1973 the legislature, for the farst time, permitted apvealis to the Full Court o7 the Feartral Cour' from matters in the Inecustrial Division 4a nev lesiasiutive volicy amproach if epparent an tar mctuer of the aveiledility of sn epneal to thet Court un matters ctrisings under tie Cererliation and Arbitration fet differing frem that reflected in it-Lation to appsals to the High Court in s.i14 and later in 1.71@5 6s zarst +o enected, The appellant, relying on thc wording of the now &.11SB(1), which as noted, only prohibaisan appeal from a gudgment of a single gudge 2n proceedings under s.156P 01 Part IX, suggests th:t tne legislature 15 to be seen 3s inteneing lo alley eppeals to tne Full Court in all other ravters. But cxemination of the legislation reveals that the legislature nas dealt with the mactterg an yhich eccording to s.11/ ane s.110B(1) thors was to be no appear to the High Court, ir three «wave and not only in ty.o voys as the appellant suggests. These three legislative devices may be seen most clearly in relation to the clasces of proceedings woich, until 79 cune 1978 were excluded from tne only appcel then aveilable from the Australian Inaus, trial Court or the Foderal Court of Austrealic, namely an eppes1 to tne Hiei. Court by le-ve. Those matters are lastcd im %.11@8B(*),. Ghas sub-section is presently relevent al conecrned with appeals te the ilzgh Court, The matlers dealt with an Uniat proviston erc the matters stich concistencly since 1955 have not been appealable to the High Court, the only 2vailsebie anrellate Court, ind .hich the lepislatur: with the advent of ¢ new @ppgilete Crurt nas nov deciced shill be dealt with in different ways. Ey pifepence ta tho marmer an wie. tans. mattris acve been ecalt with by Act Wo, 57 of 1975 1: can be seorn that the appeller tc yroposition, that s.118B(1)(a) demonstrates thal apart from matters under s.156P and Port IX weferirzd to Sherein there 1s an apves? as of right in @i1 other matters, caunol be sustained, sf the appeilent's view of the cnenpes thal occurred 2n 1978 were courreey Lhen it 1s an relataen to these tracritiaonally Mon-appealable" inacters tnat 10 woule be wost murked, Changes to the lew wheres there always hes been a raght of appeal with leave to "he Hign Court .oulc be one toning. But for the nH appellenk ta succecd he must po beyond this. He must demonstralo chat all those procced_.ngs referred to in s.113B of the Corcilistion ang Arbitration sct, which when heard by the Australian Jiudustrial Court were never apnealable, nave now becr mide subyoct to a right of appeal to this Full Court. Put this he cannot do, because Parliament G2d not so antend. That much 1s clear fro ats differing treatreut of the various proceedings referred to in s.11&B, The daffering provisions made by the legislature in relation to the matters liztea in s.1165(2} which are matters in whach no appfteal has becn availabie Lo the a.gh Court, namely matters arising under 5s. 107, 709, 110, 112 or '58P or unuer Part VII{ or 1X are as follows: (a) Tolel proursaition on sppesisa frou jucoments os SiNele Juazes, IneuLries either under 2.103P or Part ZX (¢.1133(1)(a)). lig dae iv tion of che Which are recurred to pe heard Court ~ursuant to F_,h Court, of & any othrr Courlk. neferon on 7. © cl or Arbitration Comnissicn Court Section 112 Refer wD nee by keyrstra to the Federal Court. Matters wnich by virtue of = cucelion cf lav to the Ped vation and ere). ar oF auestion of lew. 24(1) ( ran) ) of the Federal' Court of Sustraii ainacet 8 * B) liberal = Vy ¥ 52 by Act No, 5% of 197& Srom the previously existing restrictions in 5.118% £ t &S arst -7 34. the Jor-3lLature er anpeal Thes® erc ratters arising urder 111 ane under Fert VIT. A fh in Lt OQ a GO have it, thac the only matters under the Core Arbitration Act in which en o i under s.11éb(1) and tnac th to the Full Court. 65.109, "410, the appellent would riiation and apperl 13 prchibited are those uitended cS to lie in all other mazters. Tac wording of s.715B(1) on whack the appoll relies 12s thus shown net to beer the meaning that the appellant .culd give it. If lhe words ao not andicute the reneral apovellate ra.ht succested thev carrot assist the - sO appellant in any otner way. It 1s to be noted tnav Lne most recence legislative action in relation te the jurisdiction or th. Feaeral Court is comprised in the Jurisd:cticn of Ceurts (ilaseci lane ons) émencants ct (io. 719 of 1979) vhach was assented vo on 2P lierch 71973 end cammenced on 15 fluy 1979. section 12% of that act when read with the schedule thereto d2lzted 5.29(1) of tne Federcl] Court of Australia © Act 1976 and subctituted the following sub-.. ction: "(4) Exeept as othervice srovided by this Act or any other Act, the original Jurisdiction cf the Cour 4 Navision shall bo erere: ' Judge." This provision was purely nechinery but 1t did restate in Lhe rel Cover of 'uslrelia Act in a more vcouvenzent form the effect Peder of s.WEA(4A) of che Cyncilraticn and arbitration Ack antroduced by Act Ilo, 53 of 1978 whereby 1% was provided that except under four svecificd sections proceédingss in the Industrial Divisicn of the Federal Court un its original jurisdiction should te heard by @ single Judge. It was this laltcr legiatation which made pessibie for the firct Time an eppeai as of right from a gudgmnt in « m:tter which berore bealian industrial trem the Aus Fe ¥ the trensiticn of gjurisd.icric Court to the Fedsial Court of Australia sould kave been neard an the Australien Industrial Court and thereafter in the Industrial Division of the Federal Court. ncoompetens << x3 2) R a Ine re"xX Om is wa fal hey a) tr a a4) ue) a ww % n J Lu aN a , ana mist be disnicscd, eee. —rinetioen Sih Tomah Annan Bb TG, IN THE FEDERAL COURT OF AUSTRALIA ) ) INDUSTRIA4L DIVISION ) Vv. No. 15 of 1979 ) ) VICTORIA DISTRICT REGISTRY BETWEEN: PAUL JOHN BURGESS Appellant - and - JOHN CONNELL-MOTT, BAY AND ANDERSON PTY LTD ' Respondent REASONS FOR JUDGMENT 24 July 1979 KEELY J. The appellant laid an information against Lhe respondent for an alleged offence against s.5 of the Conciliation and Arbitration Act 1904. The information was heard in the Industrial Division of this Court by a single judge who upheld a submission by counsel for the respondent thal, on the evidence called by the informant, there was no case to answer. The Ful] High Ccurt in Cockle v, Isaksen (1957) 99 C.L.R. 155 decided that an appeal lay to the Gommonwcalth Industrial Court From an order of a Court of Petty Sessions dismissing informations for alleged offences under the Conciliation and Arbitration Act. The High Court's judgment was based upon s.113 of the Conciliation and Arbitration Act. That section did not confer a right of appeal against a judgment of a single judge of the Commonwealth Industrial Court and does not confer a rer a ee right of appeal against a judgment of a single judge of this Court. The present appellant sceks to appeal under s.24(1])(a) of the Federal Court of Australia Act 1976 from the judgment ordering the dismissal of the informatiou. In Thompson v. Mastertouch TV Service Pty Ltd (1978) 19 A.L.R. 547 a Full Court of this Court held that an appeal does not lie, pursuant to s-24(1)(a), from a judgment of acquittal pronounced by a single judge in criminal proceedings after a hearing on the merits - as has occurred in this case. It is plainly undesirable that therc should be conflicting decisions of this Court on such a jurisdictional question. In these circumstances in my view the proper course for this Court is to apply the dccision in Thompson v. Mastertouch TV Service Pty Ltd (supra) and the appeal should be struck out as incompetent. amet rere ttina ater one that this and the -a*— -g puro MPs a tiue vary af the tet < T ceriilt + a . ¢ J ve oT? a yte "a st ' - - JWagu enb zacvelu oe em ek tee Me da an Keal. IN THE FRDEPRAL COURT OF AUSTRALTA ) ) INDUSTRIAL DIVISTON ) Vv. No.J5 of 1979 ) ) VICTORIA DISTRICT ROIGISTUPY BETWREN: PAUL JOH BURGESS Appellant AND: JOHN COMMNELL-MOTT, TIAY Ai/D ANDEREOIH PVY. Lib. Respondent 24 Tuly 1979 EVATT J. REASONS FOP JCDOMENT By summons upon inrormation dated 23 Novembor 1978 laid by Paul vohn Burgess (the infornant-appellant), John Connell-Mott, Hay and Anderson Pty. Limited (the @efendant— respondent) was summoned pursuant to s.5(1) of the Conciliation and Arbitration Act 1°04 (the Act) to answer chargcs that the defendant had dismissed the anfurmant from his employment by reason of the cireurslance that he was a member cf the Australian workers! Ulaioen, an organization registered under the Act (the ol ganizacton) and of other caxcumstances referred to ain s.5(1). The suinmons was returnable before a Judge cf the Court on 5 February 1979 when both parties were hepresented by Counsel. After affidavit and oral cvidence was tendered on behal? of the informant, Counsol for the anfoimant closed his case. Theieupon Counsel for the defendant submitted thet there wes no case to answer as the evidence showed that che anformant at the -ime when he purported toa join the organization and andeed at any time thereafter was not cntitled as a mactcr of law to become a manber of such organization. Moemborship of the parvticuiar organization, it was subnaitted, was an essential clement of the alleged offences and such menbership had to be valid membership. In the circumstances th provistons of s.5(2) of the Act did not arise. The trial judge accepted the defendant's submissions and accordingly dismissed tho information. The 1nformant-appellant has appealed under s.24(1){(a) of the Federal Court of Australia Act 1976 from such judgment. In Thompson -7- Mastertouch T.V. Se:vices Pty. (1978) 19 A.L.R. 547 (Thompson's Case), a Pull Court of this Court determined that an eppeal docs not 11@ pursuant to s.24 of the Federal Court of Australia Act 1976 from a judgment of acquittal of a judge of the Court in criminal proceedings afktor a hearing on the merits. Clearly the proccedings lierein are criminal; theirc has becn a hearing on the merits, and the dismissal of the information (whether raght or wrong) and the consequential yudgment is a judgment of acquittal wrthin the meaning of that keri as used in Thorpson's Case (supra). The submissions of the appellant concerning the seasons for judgment of the Justices of the Tigh Court in kle -v~- isaksen (1957) 99 C.L.R. 155 and the subsequent a ec decision of the Commonwealth Industrial Court in that case ((1957) 1 T.L.R. 139) do not assist. In that case, the appeal was from an acquittal of an aliegqed offcnee under 6.134 of the Conciliation and Arbitration Act 1904 and was brcoudght under s.113 of that Act. It would appear that the decision of the High Court in Geclle's Case and the reasons for jJudgm mt of che Commonwealth sJudustrial Court Which subsequently upheld th? appeal and entered a conviction againsk the respondent-dofendane were not vofexred to in Thompson's Case. But it is of tintere th to note that the words "appcal fren a judquent, decrec, orasr or sentence" in sub-ss.(1) ard (3) of 5.113 of the Act would seam to have the samo meansny as those words in s.4 of the Federal Court of Australia Act 1976 as to the interpretation to be given, unless the contrary untention appears, to the word "Judements" in s.24(1) (a) of that Act. I am of the opanien that the Court should apply the decision in Thompson's Case (supra) ana accordingly the appeal must be dismissed as being incompetent. : q & X& - ~ Bey ~ ~S