ee + re et ee ree A oO ~S & = v4 SO IN THE FEDERAL COURT OF AUSTRALIA ) ) VICTORIA DISTRICT REGISTRY ) V. No. 28 of 1983 ) INDUSTRIAL DIVISION ) BETWEEN: MICHAEL PATRICK BOURKE and ORS. Applicants and DAVID JOHN GARLAND MAPSTONE and ORS. Respondents CORAM: Northrop J. DATE: 10 April' 1984 PLACE: Brisbane EX TEMPORE JUDGMENT On 14 Octoher 1983 Michael Patrick Bourke obtained a rule nisi under s.141 Conciliation and Arbitration Act 1904 calling upon the respondents, other than the Federated Clerks' Union of Australia, to show cause why certain orders should not be made directing them to perform or observe the rules of the Clerks' Union. On 9 April 1984, the Court ordered that the rule nisi be discharged. Counsel for the respondents, other than the Clerks' Union, Barry Trevor Linsket and Brian Francis Tooley, thereupon moved the Court that Michael Patrick Bourke and the other persons added as applicants, pursuant to leave granted on 7 February 1984, be ordered to pay the costs of his clients (hereinafter called "the respondents"). The rule nisi 1s a proceeding before the Federal Court of Australia. Under s.43 Federal Court of Australia Act 1976, the Court has jurisdiction to award costs. That section is read in full: "4A3.(1) The Court or a Judge has jurisdiction to award costs in all proceedings before the Court (ancludang proceedings dismissed for want of jurisdiction) other than proceedings in respect of which any other Act provides that costs shall not be awarded. {2) Except as provided by any other Act, the award of costs 1s in the discretion of the Court or Judge." That section confers a power "to award costs in all proceedings before the Court". In that section the word "Court" ais defined to mean the Federal] Court cf Australia ee Act; s.4, and the word "Judge" means a Judge of the Court, and in the expression "the Caurt or a Cudge" means a Judge Sitting in Chambers. On ats face, sub-section 43(:) Federal Court of Australia Act empowers the Court to award costs against the applicants. There 15 an exception to that power, namely, in "proceedings in respect of which any other Act provides that costs shaJl not be awarded". It becomes 'necessary, therefore, to determine whether the proceedings before the Court, being the rule nisi, are proceedings in respect of which any other Act provides that costs shall not be awarded. In these circumstances it becomes necessary to consider s-197A Conciliation and Arbitration Act. It 1s necessary to read the whole of that section which was first enacted in 1973: "LOTTA. A party to —- (a) a proceeding before the Commission or the Registrar; (b) a proceeding, including an appeal, before the Court, or before a court of a State or Territory, 1n a matter arising under this Act; or (c) a proceeding before the High Court - (i) being an appeal from a judgment, decree, order or sentence of the Court or any other court under this Act; or . (ii) being a proceeding in respect of an award proposed to be made, made or purporting to have been made, a decision proposed to be given, given or purporting to have been given, or any other act proposed to be done, done or purporting to have been done, under this Act or in respect of a failure to make an award, give a decision or do any other act that 1s required or permitted by this Act to be made, given or done, shall not be ordered to pay any costs incurred by any other party to that proceeding except where the party against whom the order is made instituted the proceeding vexatiously or without reasonable cause." A number of observations must be made about that section: (2) The ctakbjyect matter of the section is a party to proceedings before specified tribunals and courts, beira those tribunals and courts referred to an paragraphs (a), (b) and (c) of s.197A. Paragraph (a) refers to the Commission, that 1s, the Conciliation and Arbitration Commission, and the Reaistrar, that is, the Industrial Registrar, tribunals created by the Conciliation and Arbitration Act. In paragraph (b) it 1s noted that the words "the Court" are defined to mean "the Australian Industrial Court", this not being a case where otherwise clearly intended; see s.4 Conciliation and Arbitration Act. Note further that the Federal Court of Australia 1S not a court specified in s.197A of the Conciliation and Arbitration Act. Of necessity the proceedings before any of the specified courts must be proceedings under the Conciliation and Arbitration Act. This as made clear by a reference to paragraphs (b) and (c), in each case the proceedings being limited to proceedings in a matter arising under the Conciliatior and Arbatration Act. Section 197A does not apply to proceedings before any of those courts under any other Act. It must be remembered also that the Australian Industrial Court had jurisdiction under other Acts such as the Trade Practices Act 1974, and s.197A Conciliation and Arbitration Act could have no application to proceedings in the Australian Industrial Court under Acts such as that. (3) The section imposes a limitation on the power of the specified courts to make orders as to costs against parties to proceedings under the Conciliation and Arbitration Act. The section does not confer power to make an order for costs. The section imposes a limitation on power. The power to make an order for costs normally must be found in other statutory provisions. (4) On its face, s.197A has no application to procecdings before the Federal Court of Australia in a matter arising under the Conciliation and Arbitration Act. In Viner v. Australian Building Construction Employees and Builders' Labourers' Federation (1981) 38 A.L.R. 550 the Federal Court, as presently constituted, drew attention to this question and suggested that the legislature should consider the matter. That was in an ex temporé judgment, but the following passage, pp.552-3, is relevant. After referring to the relevant parts of s.197A Conciliation and Arbitration Act, I said: . "It as noted that in that section, by definition, the words 'the court' mean the Australian Industrial Court created by the Act and not the Federal Court of Australia; s 4 of that Act. The guestion immediately arises whether that section has any application to a proceeding before the Federal] Court. It is recognized that traditionally the Federal Court has acted on the basis that s J]97A does so apply and accordingly has refused to make orders against a party to a proceeding before the Federal Court in a matter arising under' the Conciliatién and Arbitration Act. It was argued that the effect of s 118A of the Act is sufficient to ensvre that s 197A does so apply to proceedings before the Federal Court. That section provides in substance that the Jurisdiction and powers vested in or exercisakle hy the Australian Industrial Court or a judge of that court are, except in certain specified matters, vested in and exerciseble by the Federal Court of Australia or a judge of that court. By s 118A(1)(b), it provides that a reference in the Conciliation and Arbitration Act to 'the court' other than un enumerated sections including s 116 shall, un relation to, and to matters arising out of that jurisdiction or those powers as so vested or exercisable, be read as references to the Federal Court of Australia in its Industrial Division. Section 116 of the Conciliation and Arbitration Act 1s referred to specifically since that is the section which vests power in the Industrial Court to make such orders as it thinks just as to the costs and expenses of proceedings before that court. The powers conferred by that section do not apply to the Federal Court. Tne deregistration proceedings come to the Federal Court pursuant to s 143 of the Conciliation ani Frbitration Act, s 118A of that Act, and 3s 19 of the Federal Court of Australia Act 1576. That section provides that the court, in this case the Federal Court, has sucn original jurisdiction as is vested in it ty laws made by the Parliament, being jurisdiction in respect of matters arising under laws made by the Parliament. In that secticr, 'the word 'matters' is to he given its technical meaning of matters or things 1n controversy between parties the subject of legal proceedings. When one turns again to s 197A of the Conciliation and Arbitration Act, it is noted that ats application is limited to a party to a proceeding before the Australian Industrial Court. On its face, it 1s not to apply to a4 party to a proceeding before the Federal Court. I do not fand it necessary to resolve this question in these proceedings, but I draw attention to it since it might require consideration by the legislature in due course." As far as I know, the legislature has not seen fit to take any action pursuant to that suggestion. It would have been easy to do so by inserting the words 'or before the Federal Court of Australia' in the appropriate place in paragraph (b) of s.197A Conciliation and Arbitration Act. lt 1s necessary to emphasize that the power of the Federal Court to make orders for costs against a party to . " proceedings under the Conciliation and Arbitration Act is not a power vested in the Federal Court by reason of s.118A Conciliation and Arbitration Act. Sub-section (1) of that section is read in full: "118A.(1) On and after the date of commencement of this Part - (a) the jurisdiction and powers expressed by this Act to be vested in or exercisable by the Court or a Judge of the Court are, except in relation to matters in respect of which the hearing of proceedings in the Australian Industrial Court had commenced or been completed before that date, vested in and exercisable by the Federal Court of Australia or a Judge of that Court and, subject to this section, are exercisable in accordance with the Federal Court of Australia Act 1976; and (b) a reference in this Act to the Court (other than in sections 104, 105, sub-sections (1) and (2) of section 111 and sections 114, 115, 116, 117, 118 and 184) shajl, ain relation to, and to matters arzsing out of, that jurisdiction or those powers as so vested or exercisable, be read as references to the Federal Court of Australia in its Industrial Division." A number of observations must be made about that sub-section. (1) The sub-section, particularly paragraph (b}), is concerned with jurisdiction and powers. It does not say that references in the Conciliation and Arbitration Act AS to the Australia Industrial Court should be read as references to the Federal Court of Australia. For this reason it is not otherwise clearly intended, within the meaning of s.4 Conciliation and Arbitration Act, that the words "the Court", when used in s.197A, mean the Federal Court of Australia. (2) (3) Under paragraph (b), references in the Conciliation and Arbitration Act to the Australian Industrial Court, except in specified sections, shall - "in relation to and to matters arising out of" the jurisdiction or the powers referred to an paragraph (a) - be read as references to the Federal Court. One of the excepted sections is s.116 Conciliation and Arbitration Act. That section conferred a power or, the Australian Industrial Court to make orders for costs against a party to "proceedings before" the Australian Industrial Court. That section should be read: "116. Subject to section 197A and to the regulations, the Court may make such orders as at thinks just as to the costs and expenses (ancluding the expenses of witnesses) of proceedings before the Court, ancluding proceedings dismissed for want of jurisdiction." Note the words, "Subject to section 197A". Those words were first inserte? in 1973 by the same Act which inserted s.197A anto the Conciliation and Arbitration Act. Note also the power to award costs applied to ali proceedings kefore the Australian Industrial Court and was not limited to proceedings under the Conciliation and Arbitration Act. -10- (4) The power conferred upon the Australian Industrial Court to make orders for costs, no matter under what Act, is not a power which 18 vested in the Federal Court by s-118A Conciliation and Arbitration Act. In my opinion, on its proper construction s.197A Conciliation and Arbitration Act has no application to proceedings before the Federal Court brought under the Conciliation and Arbitration Act. On its face, s.197A Conciliation ana Arbitration Act 1s not an Act providing that costs in a proceeding before the Federal Court shall not be awarded except as therein specified. Accordingly, that section can have no application under s.43 Federal Court of Australia Act. . In Jones v. Thiess Bros. Pty. Ltd. (1977) 30 F.L.R.- 422, Keely Jd. held that he had no power to order costs against a party proceeding before the Federal Court under the Conciliation and Arbitration act. He did not give reasons for that opinion, and at p.443 he said: "Mr. Lawrence, on behalf of the informant, sought an order for costs against the defendant. He put an argument that, although no order for costs could be made under s.197A of the Conciliation and Arbitration Act if the matter had been before the Commonwealth Industrial Court, s.43 of the Federal Court of Australia Act 1976 allowed this Court to make an order as to costs. Mr. Brown, in contending that there was no power to grant the application for costs, relied upon s.118A(1){b) of the Act (anserted by s.3 of -- -ll- Act No. 160 of 1976) which provides that: 'a reference in this Act to the Court [other than aun certain sections not including s.197A] shall, ain relation to ... that jurisdiction «e+. be read as references to the Federal Court of Australia in 1r1ts Industrial Division'. In my opinion the court has no power to order the defendant to pay the costs incurred by the informant." The matter was discussed by Ellicott J. in Stapleton v. African Lion Safari Pty. Ltd. (1982) 43 A.L.R. 385. That judgment was given after Viner's case, but his Honour made no reference to the dicta contained in Viner's case. Further, his Honour made no reference to the basis upon which that dicta was made. The basis of the judgment in Stapleton's case appears to be that because the proceedings in the Federal Court were proceeding in a matter arising under the Conciliation and Arbitration Act, s.197A Conciliation and Arbitration Act applied to those proceedings and constituted an Act which provided that costs should not be awarded within the meaning of s.43 Federal Court of Australia Act. At pp-387-8 his Honour, after referring to s.1l18A(1) Conciliation and Arbitration Act, said: "Paragraph (b) requires the words 'the Court', in any provision other than those excepted, to be read as being a reference to the Federal Court but they are to be so read 'in relation to, and to matters arising out of that jurisdiction or those powers as so vested or exercisable'. Section 197A is not excepted and it does not refer specifically to s 116. It provides, inter alia, that a party to a proceeding before the court in a matter arising under the Act shall not be ordered to ~ 12 - pay any costs incurred by any other party to that proceeding except in certain events. Broadly speaking para (a) vests in and makes exercisable by the Federal Court the same jurisdiction and the same powers in relation to future metters as would have been vested in or exercisable by the Industrial Court. This 1s the jurisdiction and these are the powers referred to as 'so vested or exercisable' in para (b). It 2s 'in relation tot that jurisdiction and those powers or 'in relation to matters arising out of' that jurisdiction and those powers that references to the court in sections of the Act, other than those excepted, are to be read as referring to the Federal Court an its Industrial Division. Section 197A, if so read, would have the effect that a party to a proceeding before the Federal Court in a matter such as this, arising under the Act, could not, except as provided, be ordered to pay the costs of another party. This court clearly has jurisdiction, as a result of s 118A(1)(a), to deal with a proceeding such as this for an offence against s 5 allegedly committed after Pt VA commenced. Section 197A clearly makes provision in relation to, or to a matter arising out of, that jurisdiction when read as directed. It is 'in relation to' that jurisdiction or 'a matter arising out of' it because it relates to whether a party to the proceeding in which the jurisdiction is exercised, shall be ordered to pay costs. It was argued that para (b) only applied where the Federal Court was exercising jurisdiction or powers previously vested in or exercisable by the Australian Industrial Court. In the light of the exclusion of s 116 from s 118A(1)(b), so the argument went, it could not have been intended, by para (a), to vest in the Federal Court the jurisdiction or powers of the Industrial Court in relation to costs. Therefore, it was said, since s 197A was a provision which related to the Industrial 'Court's power to award costs, and since this power was not vested in the Federal Court, it could not be a provision which related to the jurisdiction vested in or exercisable by the Federal Court. -13- I think the fallacy in this argument is its attempt to treat s 197A as tied, in some way, to s 116. Before the Federal] Court was established it was for practical purposes so tied but, in its terms, 1t is not so dependent and can apply, without any difficulty of interpretation, to any proceeding before the Federal Court in a matter arising under the Act. The jurisdiction and powers vested in or exercisable by the Federal Court by virtue of s 118A(1){a) are, subject to s 118A, made exercisable by that paragraph in accordance with the Federal Court of Australia Act 1976. This would, in my view, apply s 43 of that Act which confers jurisdiction to award costs. But it excepts, as already noted, proceedings in respect of which any other Act provides that costs shal] not be awarded. By virtue of s 1188(1) (hb) of the Conciliation and Arbitration Act, s 197A of that Act is such a provision and therefore this court's power to award costs ais to that extent lamited."" With all respect, this does not follow. That reasoning ignores the fact that s.197A Conciliation and Arbitration Act is directed to a party to proceedings in specified courts, and that the Federa] Court is not one of those specified courts. In my opinion, the fact that proceedings in the Federal Court are proceedings in a matter arising under the Conciliation and Arbitration Act is not of itself sufficient to make s.197A Conciliation and Arbitration Act apply to these proceedings. Further, in making an order for costs, the Federal Court is not exercising a jurisdiction or power vested in it by s.118A(1) Conciliation and Arbitration Act. - 14 - Io am very conscious of the necessity to adhere strictly to the doctrine of precedent in the Federal Court. I have expressed views on that matter; see Wood v. The City of Melbourne (1979) 41 F.L.R. 22 at pp.24-6. In the present case an appeal lies to the Full Court from any order as to costs. Nevertheless, in all the Circumstances I decline to follow Jones's case and Stapleton's case. In Jones's case no reasons were given. In Stapleton's case no reference was made to Viner's case nor to the basis for the dacta contained therein. In my opinion there is a real possibility that Stapleton's case was given per aincuriam, and that it is demonstrably mistaken; see Pyneboard Pty. Limited v. Trade Practices Commission (1981) 57 F.L.R. 368, per Northrop, Deane and Fisher JJ. at p.371. The Court determines, therefore, that s.197A Conciliation and Arbitration Act does not apply to proceedings before the Federal Court of Australia, and that that Court has power to award costs against the applicant. It becomes necessary, therefore, to decide whether to make ,an order for costs. This 18 a matter in the discretion of the Court. Normally costs should follow the event. In the present case, however, special circumstances may be relevant. ' ~ 15 - Under the Federal Court Rules the general method of commencing proceedings in civil matters is by way of application. That appears from 0.4 r.1, Federal Court Rules. A special rule, however, applies where applications are made under sections 140 and 141 Conciliation and Arbitration Act (see 0.4 r.15), and I quote sub-rules (1) and (2) of that rule: "15.(1) This rule shall operate only for so long as sub-section 141A(2) of the Conciliation and Aribtration Act 1904 Specifies the making of a rule aS a condition Precedent to the grant of financial] assistance. (2) A proceeding under section 140 or section 141 of the Conciliation and Arbitration Act 1904 shall be by rule in accordance with Form 6 calling upon the person or organization concerned to show cause why the order should not be made." That form of procedure was adopted in the present case. The rule nisi procedure is an exception to the normal requirement provided for by the Federal Court Rules and that special procedure is obvious because of the provisions of s.141A Conciliation and Arbitration Act. That section and s.141B are lengthy and I do not need to read them in full. Under s.141A where a rule nisi has been granted in proceedings under s.140 or s.141 Conciliation and Arbitration Act, the Attorney~General is empowered to authorize payment by the Commonwealth of the costs of the applicant and any cost the applicant has become liable to pay or may become ey -~ 16 - liakle to pay, presumatly aneluding costs ordered to he paid to an opposing party. fection 141B confers a complementary power upor the Attorrey-General with respect to respondents, other than oraanizations, to proceedings under s.140 and s.141 Conciliation and Arbiiration Act. The policy behind sections 141A and 141B as clear. Any applicant must be a member of an organization. Fespondents to proceedings under s.141, other than organizations, must be nersons bound by the rules of an argenization, normally members. The legislature has decided that members of orcanizations should have a simplified method by which their richt» ard dvties may te decided and enforced and in appropriate cases, et the erpense of the Cor-aonwealth. The sections provice safeguards against ver 2tious proceedings by ensuring that b+*ore proceedings can be commenced a rele nist wist he obtaarred. In the present caon there is ro evidence mefore the Cor.rt as to whether the apelicants 91 tre resnondents have mate application under s.1J414 or s.141]% Ceneialisution and Arbitration Act respactively, or whether the Attorney-General has exercised his powers under those sections in favour of the applicants or the respondents. In all the circumstances, I shall adjourn the further hearing of the motion for costs to a date to be fixed. There will be liberty to apoly and the costs of the motion to date are reserved. AASSOCIANO Dated [Oh Apcu I9sY