FEDERAL COURT OF AUSTRALIA Construction, Forestry, Mining and Energy Union v CSR Limited t/as CSR Humes (ACN 000 001 276) [2001] FCA 655 CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION -v- CSR LIMITED trading as CSR HUMES (ACN 000 001 276) N848 of 2000 RYAN, MADGWICK and FINKELSTEIN JJ SYDNEY 31 MAY 2001 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N848 of 2000 ON APPLICATION FOR LEAVE TO APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION Applicant AND: CSR LIMITED trading as CSR HUMES (ACN 000 001 276) Respondent JUDGES: RYAN, MADGWICK and FINKELSTEIN JJ DATE OF ORDER: 31 MAY 2001 WHERE MADE: SYDNEY THE COURT ORDERS: 1. THAT the application for leave to appeal be refused. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N848 of 2000 ON APPLICATION FOR LEAVE TO APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION Applicant AND: CSR LIMITED trading as CSR HUMES (ACN 000 001 276) Respondent JUDGES: RYAN, MADGWICK and FINKELSTEIN JJ DATE: 31 MAY 2001 PLACE: SYDNEY REASONS FOR JUDGMENT THE COURT: 1 There is before this Full Court a motion by the respondent to the substantive proceedings, CSR Limited, ("CSR"), seeking leave to appeal from an interlocutory order of Branson J of 14 December 2000 dismissing a motion by CSR for the whole of the proceedings to be stayed or dismissed pursuant to O 20, r 2(1)(a) or r 2(1)(c) of the Rules of this Court. 2 By its further amended statement of claim the applicant in the substantive proceedings, ("the CFMEU"), alleged first that CSR had at all material times employed at its premises at 1 Woodstock Road, Rooty Hill in New South Wales, ("the Premises"), members or persons eligible for membership of the CFMEU who have derived their eligibility from various provisions of rule 2A of the registered rules of the CFMEU. It is further alleged that at all material times work has been carried out at the Premises in respect of which CSR is bound by the CSR Ltd (Superannuation) Award 1998 and the Metal Engineering and Associated Industries Award 1998 ("the Awards"). It is next alleged that Malcolm French, ("French"), an officer or employee of the CFMEU has since 25 February 2000 been the holder of a permit ("the Permit'), issued by the Australian Industrial Relations Commission pursuant to s 285A of the Workplace Relations Act 1996 ("the Act"). 3 The further amended statement of claim proceeds to allege that on 7 July 2000 French notified CSR of his intention to enter the Premises on 10 July to exercise his powers under Ss 285B, 285C and 285D(2) of the Act but on 10 July was refused entry of the Premises. A similar notification is alleged to have occurred on 2 August which was met by a refusal of entry on 3 August 2000. The CFMEU then pleads that a further similar notification on 4 August was met by a corresponding refusal of entry on 7 August. 4 It is then alleged that by reason of the several notifications and refusals of entry CSR has contravened s 285E(2) of the Act. Paragraph 5 of the further amended statement of claim alleges: "The Respondent will not allow any entry to the Premises pursuant to Division 11A of Part IX of the Act by officers or employees of the Applicant because the Respondent contends that employees of the Respondent at the Premises are not eligible to be members of the Applicant." 5 The prayer for relief in the further amended statement of claim is in these terms; "AND the Applicant claims:- b) A declaration that the Applicant's Registered Rules entitle it to enrol and represent the industrial interests of employees of the Respondent at the Premises. c) A declaration that the Respondent has contravened section 285E(2) of the Act in that the Respondent by itself, its servants or agents has on 10 July 2000, 3 August 2000 and 7 August 2000 refused entry to the Premises of Malcolm French, being an officer or employee of the Applicant and a person entitled to enter the Premises pursuant to sections 285B and 285C of the Act. d) An order for the imposition of a penalty on the Respondent pursuant to section 285F(2) of the Act for contravention(s) of section 285E(2) of the Act in that the Respondent by itself, its servants or agents has on 10 July 2000, 3 August 2000 and 7 August 2000 refused entry to the Premises of Malcolm French, being an officer or employee of the Applicant and a person entitled to enter the Premises pursuant to sections 285B and 285C of the Act. e) An injunction pursuant to section 285F(5) of the Act requiring that the Respondent by itself, its servants or agents not contravene, or cease contravening section 285E(2) of the Act by refusing entry to the Premises by officers or employees of the Applicant who are entitled to enter the Premises pursuant to sections 285B and 285C of the Act. f) An order pursuant to section 356(b) of the Act that where an order for a monetary penalty is imposed on the Respondent for contravention(s) of section 285E(2) of the Act that such penalty be paid to the Applicant as an organisation of employees registered pursuant to the Act. g) Such further or other orders as this Honourable Court deems fit." 6 It was contended on behalf of CSR both at first instance and on the application for leave to appeal that the "matter" raised by the application was the entitlement of French as the holder of a permit under s 285A(1) of the Act to enter the Premises. That entitlement, so it was said, was dependent on the giving of a notice under S 285D(2) and, in the absence of such a notice referable to any of 10 July, 3 August or 7 August 2000, the CFMEU's further amended statement of claim did not disclose a cause of action. Sub-section 285D(2) provides: "A person is only entitled to enter premises, and exercise powers, under section 285B or 285C if the person has given the occupier of the premises at least 24 hours' notice of the person's intention to do so." 7 The basis of CSR's complaint at first instance was set out in these paragraphs from a letter dated 16 November 2000 from its solicitors to the solicitor for the CFMEU; "(b) in the meantime, it is our opinion that there is no sufficient evidence contained in those affidavits sufficient to support the prayer for relief in statement of claim #3; (c) as concerns the alleged wrongful refusal of entry on 10 July 2000, paragraphs 23 and 24 of statement of claim #3 alleging that notice was given pursuant to s285D(2) of the Act are not supported by any of your client's evidence. In our view, paragraph 14 of the affidavit of French sworn on 7 August 2000 is insufficient evidence of this. It is only an expression of a desire on the part of French to meet with workers. It does not constitute a notice of an intention on his part to enter premises to exercise powers under ss285B or 285C of the Act; (d) as concerns the alleged wrongful refusal of entry on 3 and 7 August 2000, paragraphs 26 - 27 and 30 - 31 respectively of statement of claim #3 are also unsupported by any sufficient evidence. In our view, paragraphs 36 and 40 of the affidavit of French sworn on 7 August 2000, and Annexures Q and S referred to therein are clearly not evidence of an intention on the part of French to enter the premises to exercise powers under ss285B or 285C of the Act. At the best, the Annexures in question are only evidence of a suspicion held by a different person (namely, the CFMEU), and of its intention to enter premises through the agency of another person (mainly French)." 8 We entertain considerable doubt whether the notice contemplated by s 285D(2) is required to recite expressly that the person giving the notice intends to enter the premises and exercise powers under s 285B or s 285C. It may be sufficient if the notice, which may be oral or in writing, indicates by necessary implication that the person named in it has the requisite intention. However, for reasons which will appear, it is unnecessary for present purposes to resolve this question. 9 The primary contention of CSR on the application for leave to appeal was that the alleged right of entry on 10 July and 3 and 7 August was the only "matter" that invoked the jurisdiction of the Court under s 412 of the Act. That submission misunderstands the concept of "matter" in this context. The "matter" is the subject matter which arises for determination in a legal proceeding; see Re Judiciary and Navigation Act (1921) 29 CLR 257 at 265. It is the proceeding which invokes the jurisdiction of the Court and it may be necessary on occasions to examine the proceeding to see whether each matter raised by it is within jurisdiction. A matter can be a controversy about a right, title, privilege or immunity which may be claimed as effectively in a defence as in the pleading which initiates the proceeding; Felton v Mulligan (1971) 124 CLR 367. No defence has yet been filed in the instant proceeding so it is not presently possible to define exhaustively the "matter" of the proceeding. It is clear from the discussion which members of the Court have had today with Counsel for CSR that one controversy which will clearly arise in the course of the proceeding is the application of the eligibility rule of the CFMEU on its proper construction to employees working at the Premises. A controversy of that kind is pre-eminently justiciable under the Act as is recognised by s 261(7). Moreover, s 412 of the Act does not purport to define the matters which may arise under the Act. It lists the types of proceedings which may be brought in relation to matters so arising but that drafting technique does not narrow the jurisdiction of the Court in respect of such matters. 10 Even though the pleadings have not yet closed it seems that the right asserted by the CFMEU for French to give a notice under s 285D and thereby become entitled to enter the Premises will be in controversy and so be part of the matter raised by the proceeding. The matter so constituted clearly arises under the Act and is within the jurisdiction of this Court by force of s 39B(1A) of the Judiciary Act 1903. As another Full Court of this Court (Black CJ, Ryan and Goldberg JJ) said in Transport Workers Union v Lee (1998) 84 FCR 60 at 67; "The respondent also submitted that section 39B(1)A)(c) assumes that under the relevant law made by the Parliament there is a matter that is justiciable under that law. Section 170NT 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 170NT 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. The history which had produced consequences such as those identified by Lockhart J in Kodak (Aust) Pty Ltd v Commonwealth (1988) 22 FCR 197." 11 It will be seen that our view of the matter which has been or may be raised by these proceedings coincides with that of Branson J at first instance where, after referring to Transport Workers Union v Lee and Coffee v The Secretary, Department of Social Security [1999] FCA 375, her Honour observed at [8] to [10]; "In this case the applicant claims an injunction restraining the respondent from acting in contravention of s 285E(2) of the Act by refusing entry to the Premises by officers or employees of the applicant who are entitled under the Act to enter the Premises. This claim is a separate claim for relief from the applicant's claim for an order for the imposition of a penalty on the respondent for past alleged contraventions of s 285E(2) of the Act. It is a claim based on the statutory entitlements to entry contained in ss 285B(2) and 285C(1) of the Act." The Statement of Claim pleads and the respondent which has not yet filed a defence has not contended to the contrary that there is a controversy between the parties as to whether an officer or employee of the applicant could ever be entitled to enter the Premises. The fact that in order to vindicate its assertion that certain of its officers and employees are entitled on appropriate notice to enter the Premises the application must establish that some or all employees of the respondent at the Premises are eligible to be members of the applicant does not alter the fact that the claim for an injunction is one which arises under ss 285B(2) and 285C(1) of the Act. The applicant places reliance on s 412(1) of the Act which gives the Court jurisdiction with respect to enumerated categories of matters arising under the Act. Subsection 412(1) was enacted before s 39B(1A)(c) of the Judiciary Act. The jurisdiction of the court in respect of matters arising under the Act is now limited only by the terms of s 39B(1A)(c) of the Judiciary Act. Subsection 412(1) of the Act is for present purposes without significance. It follows that her Honour's interlocutory decision is not attended with sufficient doubt so as to satisfy the first part of the test for leave to appeal indicated in, for example, Federal Commissioner of Taxation v Hydrocarbon Products Pty Ltd (1987) 72 ALR 391 at 407. As will be apparent from discussion between members of the Court and Counsel for CSR in the course of the application, we consider that the interlocutory application at first instance was misconceived. It should not have been brought under O 20 r 2, sub-rule (1)(a) on the basis that no reasonable cause of action was disclosed. Despite the fact that pleadings have not closed, if it were agreed that all evidence relevant to the validity of any notice under s 285D(2) of the Act was in and common ground, the validity of that notice could have been determined as a separate question framed pursuant to O 29 r 2. However, no application was made under that rule and her Honour, understandably, regarded the question before her as confined to whether the Court had jurisdiction in respect of any matter which might be identified on the face of the pleadings in the incomplete state in which they then were. 12 As already indicated, we consider that her Honour was correct in her resolution of that question. Moreover, if the point which CSR wishes to agitate on appeal now is a good one, it will prevail at trial with little or no expenditure of additional time and, if it is mistakenly rejected then, CSR's full rights of appeal will be preserved to it. For all of these reasons we refuse leave to appeal. The order of the Court is leave to appeal be refused. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Court. Associate: Dated: 31 May 2001 Counsel for the Applicant: Mr S Crawshaw SC with Mr P Ginters Solicitor for the Applicant: Rita Mallia, Solicitor for the CFMEU Counsel for the Respondent: Mr T Caspersz Solicitor for the Respondent: Blake Dawson Waldron Date of Hearing: 31 May 2001 Date of Judgment: 31 May 2001