FEDERAL COURT OF AUSTRALIA Quickenden v O'Connor [1999] FCA 1423 WORKPLACE RELATIONS – COSTS - application for prerogative relief under the Constitution s 75(v) – statutory disentitlement to costs of proceeding in a matter arising under the Workplace Relations Act 1996 (Cth) – whether proceeding in a matter arising under that Act – s 347 Workplace Relations Act. Judiciary Act 1903 (Cth) s 44 Workplace Relations Act 1996 (Cth) ss 170LT, 347, 412(2), 412(3) The Constitution s 75(v) Re McJannet; Ex parte The Australian Workers' Union of Employees, Queensland (No 2) (1997) 189 CLR 654 cited Re Polites; Ex parte The Hoyts Corporation Pty Limited (1991) 173 CLR 78 cited Autistic Association of New South Wales v Dodson [1999] FCA 852 cited TERENCE IVAN QUICKENDEN v COMMISSIONER O'CONNOR OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION and THE NATIONAL TERTIARY EDUCATION INDUSTRY UNION and THE UNIVERSITY OF WESTERN AUSTRALIA WAG 106 OF 1998 LEE J 19 OCTOBER 1999 PERTH IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY WAG 106 OF 1998 BETWEEN: TERENCE IVAN QUICKENDEN Applicant AND: COMMISSIONER O'CONNOR OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION First Respondent THE NATIONAL TERTIARY EDUCATION INDUSTRY UNION Second Respondent THE UNIVERSITY OF WESTERN AUSTRALIA Third Respondent JUDGE: LEE J DATE OF ORDER: 19 OCTOBER 1999 WHERE MADE: PERTH THE COURT ORDERS THAT: The applicant pay the costs of the second and third respondents. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY WAG 106 OF 1998 BETWEEN: TERENCE IVAN QUICKENDEN Applicant AND: COMMISSIONER O'CONNOR OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION First Respondent THE NATIONAL TERTIARY EDUCATION INDUSTRY UNION Second Respondent THE UNIVERSITY OF WESTERN AUSTRALIA Third Respondent JUDGE: LEE J DATE: 19 OCTOBER 1999 PLACE: PERTH REASONS FOR JUDGMENT 1 Pursuant to the reasons delivered in this matter on 10 September 1999, an order was made that the applicant's motion be dismissed and a direction made that the parties file submissions on costs. 2 The second respondent ("the Union"), and the third respondent ("the University"), seek an order that the applicant pays the costs of the proceeding. The applicant submits that under s 347 of the Workplace Relations Act 1996 (Cth) ("the Act") no order may be made that the applicant pay the costs of any other party to the proceeding. 3 The matter in respect of which this Court exercised jurisdiction was an application for prerogative relief in the form of firstly, an order for the issue of a Writ of Certiorarito quash a decision of the first respondent ("the Commission") as a decision made in the absence of authority provided to the Commission by the Act and secondly, an order for the issue of a Writ of Prohibition directing the Union and the University not to act on the decision of the Commission. 4 The decision of the Commission the applicant sought to have quashed by an order of this Court was a decision made pursuant to s 170LT of the Act certifying an agreement made between the University and the Union. The applicant contended that the duty or function purportedly performed by the Commission in so certifying the agreement under s 170LT was not a duty or function the Commonwealth was able to confer on the Commission under a legislative power the Commonwealth was able to exercise under the Constitution. 5 The applicant commenced the proceeding by an application to the High Court pursuant to the jurisdiction vested in the High Court by s 75(v) of the Constitution. Pursuant to s 44 of the Judiciary Act 1903 (Cth) and s 412(2) of the Act, the matter was remitted to this Court by order of the High Court and under s 412(3) of the Act this Court obtained jurisdiction in respect of that matter. 6 Section 347 of the Act reads as follows: "347(1) A party to a proceeding (including an appeal) in a matter arising under this Act (other than an application under section 170CP) shall not be ordered to pay costs incurred by any other party to the proceeding unless the first-mentioned party instituted the proceeding vexatiously or without reasonable cause. 347(2) In subsection (1): 'costs' includes all legal and professional costs and disbursements and expenses of witnesses." 7 It was not submitted that the proceeding in this Court had been instituted vexatiously or without reasonable cause and the sole issue now to be determined is whether the proceeding is in a matter "arising under [the] Act". 8 In respect of that issue, the High Court in Re McJannet; Ex parte The Australian Workers' Union of Employees, Queensland (No 2) (1997) 189 CLR 654 at 656 – 657 said as follows: "The test for determining whether a proceeding is in a matter arising under the Act for the purposes of s 347(1) is whether the right or the duty that is sought to be enforced owes its existence to a provision of the Act. That test follows from what was said with respect to s 76(ii) of the Constitution in R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141 at 154, where Latham CJ said: '[O]ne is compelled to the conclusion that a matter may properly be said to arise under a Federal law if the right or duty in question in the matter owes its existence to Federal law or depends upon Federal law for its enforcement, whether or not the determination of the controversy involves the interpretation (or validity) of the law. In either of these cases, the matter arises under the Federal law. If a right claimed is conferred by or under a Federal statute, the claim arises under the statute.'" 9 In Re Polites; Ex parte The Hoyts Corporation Pty Limited (1991) 173 CLR 78, the High Court had held that an application to that Court for a Writ of Mandamusunder s 75(v) of the Constitution directing an officer of the Commission to perform a duty imposed by the Act was a proceeding in a matter arising under the Act. That is, the justiciable controversy that constituted the matter was whether the duty created by the Act was to be enforced. 10 In Re McJannet it was held that a proceeding in which it was asserted that the Federal Court had wrongly assumed jurisdiction and in which the applicant sought an order that a Writ of Prohibition issue directing judges of this Court not to proceed further in the matter in the absence of such jurisdiction, involved a proceeding in a matter of a different nature. 11 The justiciable controversy in Re McJannet related to the enforcement of a duty not to assume a jurisdiction not conferred on the Court by the Act, and not to the enforcement of a duty created or conferred by the Act. (See: Autistic Association of New South Wales v Dodson [1999] FCA 852.) 12 In the instant case, the proceeding was in a matter in which the controversy to be resolved was whether the decision made by the Commission exceeded the authority able to be conferred on the Commission by the Parliament and whether the Union and the University should be directed not to act on that decision. No part of the applicant's case involved application for the enforcement of a right or duty brought into existence by the Act. To the contrary, the applicant sought to enforce another duty imposed on the Commission by law not to act in the absence of an authority lawfully conferred on it pursuant to a legislative power of the Parliament provided by the Constitution, and to enforce a derivative duty to like effect, imposed on the Union and the University. 13 The order sought for the issue of Writs of Certiorari and Prohibition did not, in form or content, relate to the enforcement or any right or duty conferred or created by the Act and, therefore, s 347 of the Act has no application to the proceeding. 14 The ordinary rule that costs follow the event should apply with the result that the applicant will be ordered to pay the costs of the Union and the University. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lee. Associate: Dated: 19 October 1999 Counsel for the Applicant: E M Heenan QC P J Gethin Solicitors for the Applicant: Patrick Gethin & Co Counsel for the Second Respondent: P W Johnston W J Ford Solicitors for the Second Respondent: Dwyer Durack Counsel for the Third Respondent: R L Le Miere QC D F Parker Solicitors for the Third Respondent: Blake Dawson Waldron Counsel for the Commonwealth Attorney-General intervening H C Burmester QC R D Farrell Solicitor for the Commonwealth Attorney-General intervening Australian Government Solicitor Date Submissions Filed: 17 September 1999 Date of Judgment: 19 October 1999