FEDERAL COURT OF AUSTRALIA Construction, Forestry, Mining and Energy Union v Clarke [2005] FCA 986 PROCEDURE – appeal from Industrial Magistrate's Court – whether such an appeal may be heard by a single judge – whether subject court 'a court of summary jurisdiction' WORKPLACE RELATIONS – appeal from decision of Industrial Magistrate's Court of Western Australia – whether such court 'a court of summary jurisdiction' – effect of recent State statutory amendments Federal Court of Australia Act 1976 (Cth) s 25(1), 25(5) Acts Interpretation Act 1901 (Cth) s 26(d), 78 Workplace Relations Act 1996 (Cth) ss 4, 84, 170NE, 170NF, 177A, 177MN, 178, 178(1), 178(4), 422(1) Courts Legislation Amendment and Repeal Act 2004 (WA) ss 4, 7, 9, 10, 11, 24 Industrial Relations Act 1979 (WA) ss 81, 81B, 81B(2), 81B(6), 81(1), 81(2) Interpretation Act 1984 (WA) Justices Act 1902 (WA) s 4 Local Courts Act 1904 (WA) Magistrates Court Act 2004 (WA) ss 4, 10, 11 Magistrates Court (Civil Proceedings) Act 2004 (WA) s 6 Western Newspapers Pty Ltd; Daniel Brothers & Co Pty Ltd (In Liquidation) v Christopher Warren [1994] 56 IR 340 cited Metropolitan Health Services Board v Australian Nursing Federation (1999) 94 FCR 132 distinguished John L Pierce Pty Ltd v Kennedy (2000) 104 FCR 225 followed CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION, MICHAEL POWELL and WALTER VINICIO MOLINA v MARCUS THOMAS CLARKE WAD 112 of 2005 NICHOLSON J 20 JULY 2005 PERTH IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY WAD 112 OF 2005 ON APPEAL FROM THE WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATE'S COURT BETWEEN: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION FIRST APPELLANT MICHAEL POWELL SECOND APPELLANT WALTER VINICIO MOLINA THIRD APPELLANT AND: MARCUS THOMAS CLARKE RESPONDENT JUDGE: NICHOLSON J DATE OF ORDER: 20 JULY 2005 WHERE MADE: PERTH THE COURT ORDERS THAT: The appeal be referred to the Chief Justice for determination of whether it is to be listed before a single judge or a Full Court in accordance with s 25(5) of the Federal Court of Australia Act 1976 (Cth) 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 WAD 112 OF 2005 ON APPEAL FROM THE WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATE'S COURT BETWEEN: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION FIRST APPELLANT MICHAEL POWELL SECOND APPELLANT WALTER VINICIO MOLINA THIRD APPELLANT AND: MARCUS THOMAS CLARKE RESPONDENT JUDGE: NICHOLSON J DATE: 20 JULY 2005 PLACE: PERTH REASONS FOR JUDGMENT 1 The appellants bring an appeal under s 422(1) of the Workplace Relations Act 1996 (Cth) ('the WR Act') against the 'Reasons for Decision' of an Industrial Magistrate's Court and 'its Orders' delivered and given respectively on 28 April 2005. Section 422(1) provides a right of appeal 'from a judgment of a court of a State or Territory in a matter arising under' the WR Act. In its reasons the Industrial Magistrate's Court concluded that the appellants engaged in industrial action for the purpose of supporting and advancing claims against the employer in breach of s 170MN of the WR Act. In reliance on s 178 it ordered that the appellants be fined respectively $6000, $1500 and $1000. 2 The appeal has been listed in my docket for the purpose of making a recommendation to the Chief Justice on whether the appeal should be listed before a single judge or before a Full Court. Before doing so a preliminary question has arisen for decision, namely, is the Industrial Magistrate's Court from which the decision is sought to be brought 'a Court of summary jurisdiction' for the purposes of the application of s 25(5) of the Federal Court of Australia Act 1976 (Cth) ('the Federal Court Act'). The appellants contend it is not so that the appeal must be listed before a Full Court. The respondent opposes that view. nature of the proceeding 3 The application before the Industrial Magistrate's Court was brought by the respondent, an Inspector appointed pursuant to s 84 of the WR Act. It alleged that the first appellant and its officials the second and third appellants had (1) engaged in industrial action in breach of the dispute resolution procedures of a certified agreement contrary to s 170MN of the WR Act in respect of which an eligible court may order a monetary penalty and (2) breached a term of a certified agreement in respect of which a court of competent jurisdiction may make an order for a monetary penalty under s 178(1) and s 178(4) of that Act. 4 Section 170MN is a penalty provision for the purposes of Division 10-Enforcement and Remedies. Section 170NF(1) provides that a contravention of a penalty provision is not an offence. However, it provides further that 'an eligible court' may make an order imposing a penalty on a person who contravenes a penalty provision. By s 170NE 'an eligible court' includes 'a magistrate's court'. Section 4 of the WR Act defines this latter description to include 'a court constituted by an industrial magistrate who is also a police, stipendiary or special magistrate'. While there is no present evidence that the Industrial Magistrate who made the decision from which it is sought to appeal comes within the statutory description, there is no dispute that he so qualifies and there is general authority that such is the case: Western Newspapers Pty Ltd; Daniel Brothers & Co Pty Ltd (In Liquidation) v Christopher Warren [1994] 56 IR 340. 5 In the case of s 178(1) of the WR Act it is provided that: 'Where an organisation or person bound by…a certified agreement breaches a term of the …agreement, a penalty may be imposed by the Court or by a court of competent jurisdiction.' Section 177A of the same Act provides that a court of competent jurisdiction includes 'a magistrate's court'. 6 As pointed out by Lee J in Metropolitan Health Services Board v Australian Nursing Federation (1999) 94 FCR 132 at [13]: 'The jurisdiction exercised by the court under s 178 of the Act is federal jurisdiction. Pursuant to s 79 of the Judiciary Act 1903 (Cth) the laws and procedure applicable thereto are the laws of the State of Western Australia. The proceeding contemplated in s 178 of the Act is a civil proceeding. (See: Gapes v Commercial Bank of Australia Ltd (1979) 38 FLR 431; Transport Workers Union of Australia v Glynburn Contractors (Salisbury) Pty Ltd (1990) 34 IR 138.)' federal court appellate jurisdiction 7 As has been seen, the right of appeal to this Court arises under s 422 of the WR Act. That brings into play the provisions of the Federal Court Act. Section 25(1) provides that the Court's appellate jurisdiction, subject to that section and the provisions of any other Act, be exercised by a Full Court. Section 25(5) provides that subject to any other Act, the jurisdiction of the Court in an appeal from a judgment of 'a court of summary jurisdiction' may be exercised by one Judge or by a Full Court. As Madgwick J stated in John L Pierce Pty Ltd v Kennedy (2000) 104 FCR 225 at [28], it is reasonable to impute to the authors of the subsection the assumption that, in general, the degree of the formality of the procedures of a court would be a workable guide to its placement within the judicial hierarchy for the purposes of determining whether all appeals from that court, or only the most important, should require the attention of the Full Federal Court. 8 In Pierce the Full Court (O'Connor, Whitlam and Madgwick JJ) gave consideration to the relevant provisions of federal legislation and I consider I should follow those views of the Full Court. The propositions which I extract from the reasoning there and intend to follow are: 1. The expression 'court of summary jurisdiction' may refer to a procedure 'primarily' criminal but also extends to proceedings under statute for the payment of money and are used in the context of the exercise of civil jurisdiction: at [2] and [24]. 2. There is no reason why the definition in s 26(d) of the Acts Interpretation Act 1901 (Cth) of 'court of summary jurisdiction' should not be applied to s 25(5): at [2],[24] and [30]. The definition reads: 'Court of summary jurisdiction shall mean any justice or justices of the peace or other magistrate of the Commonwealth or part of the Commonwealth, or of a State or part of a State, or of an external Territory, sitting as a court (other than the Federal Magistrates Court) for the making of summary orders or the summary punishment of offences under the law of the Commonwealth or part of the Commonwealth or under the law of the State or external Territory or by virtue of his or their commission or commissions or any Imperial Act.' 3. Orders made at the end of summary proceedings will fit the description in the above definition of 'summary orders': at [2], [24] and [26]. 4. The reference to 'summary' should be understood as referrable to the notion of a relative lack of formality in proceedings: [2], [30] and [46]. characterisation of primary court 9 For the purpose of understanding the possible application of s 25(5) of the Federal Court Act to the instant appeal, it is necessary therefore to consider whether the Industrial Magistrate's Court of Western Australia can be characterised as 'a court of summary jurisdiction'. prior characterisation 10 In Metropolitan Health Services Lee J concluded that this Court when exercising federal jurisdiction was not sitting 'as a court for the making of summary orders or the summary punishment of offences' and therefore was not sitting as a court of summary jurisdiction within the meaning of that phrase in s 25(5) of the Federal Court Act. Accordingly he ordered that the appeal be set down before a Full Court. 11 Two matters make a reconsideration of that characterisation appropriate. First, the Full Court in Pierce disagreed with Lee J's conclusion that a court exercising civil jurisdiction and making summary orders could not be characterised as a court for the making of summary orders. Second, various amendments have occurred to the Western Australian statutes that affect the characterisation. 12 In his reasons at [8]-[9] in Metropolitan Health Services, Lee J said: 'As set out in [Construction, Forestry, Mining and Energy Union v Warren [1999] FCA 312] the court was established by s 81 of the Industrial Relations Act 1979 (WA) ("the State Act"). Section 81(2) of the State Act provides as follows: 81(2) An industrial magistrate's court is a court of record and shall have an official seal of which judicial notice shall be taken." Under s 81CA(1) of the State Act, the jurisdiction of the court is defined as being either "general jurisdiction" or "prosecution jurisdiction". Part of the "general jurisdiction" of the court is that conferred by s 83 of the State Act in respect of the enforcement of an award made under the State Act. For the purposes of the present analysis, the rights created and made enforceable under s 83 of the State Act, although distinguishable, are not far removed from the like provisions in s 178 of the Act.' 13 Lee J then turned to s 81CA(2) of the Industrial Relations Act 1979 (WA) ('the State Act') which describes the powers of the Industrial Magistrate's Court and its practice and procedure in the exercise of general jurisdiction. Those were drawn from the Local Courts Act 1904 (WA). In his reasoning at [13] in relation to the 'general jurisdiction' of the Industrial Magistrate's Court Lee J took into account that where the court conducts the proceeding as if it were sitting as a Local Court, it was relevant that Local Courts under the Local Courts Act did not sit as a court of summary jurisdiction. 14 Section 81CA(5) provides that when exercising 'prosecution jurisdiction' the Industrial Magistrate's Court constitutes 'a court of summary jurisdiction'. Lee J considered this would be otiose if the State Act contemplated that at all times it sat as a court of summary jurisdiction. He relied on the definition of that description in the Interpretation Act 1984 (WA). 15 Lee J's reasoning then continued by referring to a number of authorities all of which were considered to different effect by Whitlam J in Pierce at [16]-[23], with O'Connor and Madgwick JJ agreeing. He did not find them to support the conclusion that the definition in s 26(d) of the Acts Interpretation Act (Cth) could not apply to the Industrial Magistrate's Court there in issue. state Statutory amendments 16 On 12 November 2004, assent was given to the Magistrates Court Act 2004 (WA) and the Magistrates Court (Civil Proceedings) Act 2004 (WA). These were each subsequently proclaimed to come into effect from 1 May 2005. 17 Section 4 of the Magistrates Court Act established the Magistrates Court as a court of record. Section 11 of the Magistrates Court Act prescribes the criminal jurisdiction of the court. Section 10 provides that the civil jurisdiction is set out in the Magistrates Court (Civil Proceedings) Act. Section 6 of this latter Act prescribes the general civil jurisdiction of the Magistrates Court. 18 On 23 November 2004, assent was given to the Courts Legislation Amendment and Repeal Act 2004 (WA) ('Courts Legislation Act'). Relevantly, the Act had the following effects. 19 Section 4 repealed the Local Courts Act 1904 (WA). Section 7 provides that if immediately before commencement of the Courts Legislation Act an action or matter was pending before a Local Court, it was to be taken to be a case pending before the Magistrates Court and to be heard and determined under the Magistrates Court (Civil Proceedings) Act as if it was within the civil jurisdiction of that court. Section 9 provides that a reference in a written law or book, document or writing to the Local Courts Act is, unless the contrary intention appears, to be construed as if it had been amended to be a reference to the Magistrates Court (Civil Proceedings) Act. Likewise, s 10 provides that any reference to the Local Court is to be read as a reference to the Magistrates Court. Section 11 repealed the Local Court Rules 1961 (that coming into effect on 2 May 2005). 20 Amendments were also made to the Justices Act 1902 (WA). The long title was repealed and the following long title inserted: 'an Act relating to the functions of courts of summary jurisdiction and to the procedures to be followed in such courts.' Section 24 of the Courts Legislation Act amended s 4 of the Justices Act to provide that: '"court of summary jurisdiction" means- (a) the Childrens' Court; (b) the Magistrates Court; or (c) any other court to which this Act applies.' 21 This latter amendment must be read in conjunction with amendments to the Interpretation Act (WA) effected by the Courts Legislation Act. Section 78 of the latter Act amended s 5 of the Interpretation Act (WA) by deleting the definition of 'court of summary jurisdiction' and inserting instead: '"court of summary jurisdiction" means the Children's Court or the Magistrates Court'. 22 Further, the Courts Legislation Act also effected amendments to the State Act. Section 112 of the former Act amended s 81CA(2) of the State Act so as to delete the reference to the Local Courts Act and insert 'Magistrates Court (Civil Proceedings) Act 2004 (WA) as if the proceedings were a case'. Amendment to the same effect was made to s 81CA(3) with reference to Pt 4 of the Magistrates Court (Civil Proceedings) Act. 23 Although the decision and orders of the Industrial Magistrate were made on 28 April 2005, that is before the amending legislation took effect on 1 and 2 May 2005, the notice of appeal was filed on 18 May 2005. In my opinion this therefore attracts the application of the amended law. reasoning 24 As will be apparent from the summary of the effect of the comprehensive amendments in the relevant Act in the State of Western Australia, the matters considered by Lee J have now been very substantially changed. The Local Courts Act and its Rules no longer have any relevance. The definition in the Interpretation Act characterises the MagistratesCourt as a court of summary jurisdiction irrespective of which limb of its jurisdiction is being exercised. 25 It follows from these amendments that the distinctions in the legislation which enabled Lee J to find that the characterisation as a court of summary jurisdiction was confined to the then prosecution jurisdiction of the Industrial Magistrate's Court no longer exist. On the contrary, the Interpretation Act (WA) makes clear that the Magistrates Court is a court of summary jurisdiction without any distinction being drawn between the exercise of its criminal or civil jurisdiction. It follows that the foundations of Lee J's reasoning are no longer present and that I need to reach a fresh view on the law as it now applies. 26 Section 81(1) of the State Act continues to provide that the Governor may by proclamation establish an Industrial Magistrate's Court at any place within the State. Section 81(2) continues to provide that an Industrial Magistrate's Court is a court of record and shall have an official seal of which judicial notice shall be taken. Section 81B provides that an Industrial Magistrate's Court shall be constituted by an Industrial Magistrate. Section 81B(2) provides the Governor may, on the joint recommendation of the President and Chief Magistrate, appoint a person holding office as a Magistrate to be an Industrial Magistrate. By s 81B(6) 'Chief Magistrate' is now defined to mean the Chief Magistrate of the Magistrates Court. 27 Section 81CA of the State Act still provides that the Industrial Magistrate's Court jurisdiction is either 'general jurisdiction' or 'prosecution jurisdiction'. However, by reference to the amended s 81CA(2), it is now the case that the powers of the court, and the practice and procedure to be observed by the court when exercising 'general jurisdiction' are those provided by the Magistrates Court (Civil Proceedings) Act as if the proceedings were a case within the meaning of that Act. Section 81CA(3) now provides that regulations may extend the circumstances in which Industrial Magistrate's Court exercising general jurisdiction may hear and determine an action under Pt 4 of the Magistrates Court (Civil Proceedings) Act in respect of minor cases. 28 As has already been seen, as a consequence of the amendment to the Interpretation Act (WA), the Magistrates Court is a court of summary jurisdiction and is so, therefore, when exercising 'general jurisdiction'. 29 Consequently, although s 81CA(5) continues to provide that when exercising prosecution jurisdiction an Industrial Magistrate's Court constitutes a court of summary jurisdiction the same Interpretation Act (WA) definition of that description is invoked whether the jurisdiction being exercised is general or prosecutorial. It is, therefore, no longer the case that there are differences between s 81CA(2) and s 81CA(5) in relation to the application of the description 'a court of summary jurisdiction'. While s 81CA(5) is unnecessary - because the Interpretation Act (WA) now contains the relevant provision for all jurisdiction exercised by the Magistrates Court – it is no longer a distinguishing feature between the criminal and civil jurisdiction of that Court. 30 Lee J being of a different view on the provisions then before him considered that the concept of a court of summary jurisdiction as so understood was consistent with the meaning applied to the term by s 26(d) of the Acts Interpretation Act (Cth). In particular, he said that there was no reason to read the words 'any justice … magistrate … sitting as a court for the making of summary orders' as words not governed by the following words 'or the summary punishment of offences'. He said that from time to time a court exercising civil jurisdiction may make an order that may be described as a 'summary order' but it could not be said that in so doing such a court was sitting as a court for the making of summary orders. In my opinion the recent statutory amendments have made it apparent that for all purposes, including the exercise of civil jurisdiction, the Magistrates Court is a court of summary jurisdiction. It would, in that respect, come within the words 'sitting as a court … for the making of summary orders' considered without reference to the following words referable to exercise of criminal jurisdiction. This view is consistent with the reasoning of the Full Court in Pierce which took a different view on this issue to that of Lee J. 31 For these reasons, I consider that it is the case that the Industrial Magistrate's Court from which the appeal is brought is within the description 'a court of summary jurisdiction'. conclusion 32 For the above reasons, I consider s 25(5) of the Federal Court Act applies and it is open for this appeal to be heard either by a single judge or a Full Court. I will accordingly prepare a memorandum in accordance with normal practice for consideration by the Chief Justice to enable him in the exercise of his listing powers pursuant to the Federal Court Act to determine whether it should be listed before a single judge or a Full Court. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholson. Associate: Dated: 20 July 2005 Solicitor for the Appellants: TR Kucera Counsel for the Respondent: AD Lucev Solicitor for the Respondent: Freehills Date of Hearing: 1 June 2005 Date of Last Written Submissions: 17 June 2005 Date of Judgment: 20 July 2005