Australian Workers' Union of Employees, Queensland v Etheridge Shire Council

[2009] FCAFC 95

FEDERAL COURT OF AUSTRALIA

Australian Workers’ Union of Employees, Queensland v Etheridge Shire Council [2009] FCAFC 95

COSTS – proceedings in which it was held that respondent was not an employer within the meaning of the Workplace Relations Act 1996 (Cth) – whether proceedings in which appellants had sought declarations to that effect were “in a matter arising under this Act” for the purposes of s 824(1) of the Workplace Relations Act.

Constitution, ss 75(v), 76 (i), 76(ii), 77(i), 109

Conciliation and Arbitration Act 1904 (Cth), s 31
Fair Work Act 2009 (Cth), s 570
Federal Court of Australia Act 1976 (Cth), ss 21, 43
Industrial Relations Act 1988 (Cth), ss, 253X, 253ZC, 347, 853X, 853ZC
Judiciary Act 1903 (Cth), ss 26, 39, 39B
Workplace Relations Act 1996 (Cth), ss 170MN, 178, 824

Industrial Relations Act 1999 (Qld)

Abebe v Commonwealth (1999) 197 CLR 510 followed
Attorney-General (NSW) v Commonwealth Savings Bank (1986) 160 CLR 315 cited
Australian Solar Mesh v Anderson (2000) 101 FCR 1 referred to
Australian Workers’ Union of Queensland v Etheridge Shire Council (2008) 171 FCR 102 considered
Bank of New South Wales v Commonwealth (1948) 76 CLR 1 referred to
BGC Contracting Pty Ltd v Construction, Forestry, Mining and Energy Union of Workers (No 2) (2005) 143 FCR 409 followed
Burgundy Royale v Westpac (1987) 18 FCR 212 referred to
Charles Marshall Pty Ltd v Collins [1957] AC 274 cited
Collins v Charles Marshall Pty Ltd (1955) 92 CLR 529 considered
Combet v The Commonwealth (2005) 224 CLR 494 cited
Construction, Forestry, Mining and Energy Union v Clarke (2008) 170 FCR 574 followed
Dhillon v Minister for Immigration, Local Government & Ethnic Affairs (1994) 48 FCR 107
Felton v Mulligan (1971) 124 CLR 367 considered
Fencott v Muller (1983) 152 CLR 570 referred to
LNC Industries Ltd v BMW (Australia) Ltd (1983) 151 CLR 575 considered
McJannet v White (1992) 39 FCR 1 cited
McJannet v White (1994) 48 FCR 453 cited
New South Wales v Commonwealth (The Work Choices Case) (2006) 229 CLR 1 referred to
Phillip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457 cited
R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141 considered
R v Judges of the Federal Court of Australia; Ex parte Western Australian National Football League (Incorporated) (Adamson’s Case) (1979) 143 CLR 190 referred to
R v Trade Practices Tribunal; Ex parte St George County Council (1974) 130 CLR 533 referred to
Re McJannett; Ex parte Australian Workers’ Union of Queensland (No 2) (1997) 189 CLR 654 explained
Re McJannett; Ex parte Minister for Employment, Training and Industrial Relations (Qld) (1995) 184 CLR 620 cited
Re Polites; Ex parte Hoyts Corporation Pty Ltd (1991) 173 CLR 78 considered
Smith Kline & French Laboratories (Aust) Ltd v Commonwealth of Australia (1991) 173 CLR 194 cited
Tristar Steering and Suspension Australia Ltd v Industrial Relations Commission of New South Wales (No 2) (2007) 159 FCR 274 distinguished

THE AUSTRALIAN WORKERS' UNION OF EMPLOYEES, QUEENSLAND & QUEENSLAND SERVICES, INDUSTRIAL UNION OF EMPLOYEES v ETHERIDGE SHIRE COUNCIL & WORKPLACE AUTHORITY DIRECTOR

QUD 60 of 2009

RYAN, MARSHALL and LOGAN JJ
28 AUGUST 2009
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

FAIR WORK DIVISION

QUD 60 of 2009

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	THE AUSTRALIAN WORKERS' UNION OF EMPLOYEES, QUEENSLAND First Appellant
QUEENSLAND SERVICES, INDUSTRIAL UNION OF EMPLOYEES Second Appellant
AND:	ETHERIDGE SHIRE COUNCIL & ANOR First Respondent
WORKPLACE AUTHORITY Second Respondent

JUDGES:	RYAN, MARSHALL and LOGAN JJ
DATE OF ORDER:	28 AUGUST 2009
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.The appeal be dismissed.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

FAIR WORK DIVISION

QUD 60 of 2009

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	THE AUSTRALIAN WORKERS' UNION OF EMPLOYEES, QUEENSLAND First Appellant
QUEENSLAND SERVICES, INDUSTRIAL UNION OF EMPLOYEES Second Appellant
AND:	ETHERIDGE SHIRE COUNCIL & ANOR First Respondent
WORKPLACE AUTHORITY Second Respondent
JUDGES:	RYAN, MARSHALL and LOGAN JJ
DATE:	28 AUGUST 2009
PLACE:	BRISBANE

REASONS FOR JUDGMENT

RYAN and MARSHALL JJ:

1. Before the Court is an appeal from orders of a single Judge, Australian Workers’ Union of Queensland v Etheridge Shire Council [2009] FCA 58 (“the Costs Judgment”), rendered in consequence of a ruling on an application for the costs of the primary proceeding in which his Honour’s reasons are to be found in Australian Workers’ Union of Queensland v Etheridge Shire Council (2008) 171 FCR 102 (“the Primary Judgment”). The question upon which this appeal turns is whether, upon the proper construction of s 824 of the Workplace Relations Act 1996 (Cth) (“the WR Act”), the primary proceeding involved a matter “arising under” the WR Act, so that prima facie each party should have borne its own costs of the primary proceeding. Otherwise, the Court should have exercised the discretion conferred by s 43 of the Federal Court of Australia Act 1976 (Cth) (“the Federal Court Act”) which requires consideration of whether to apply the “normal rule” that costs follow the event.

2. The appeal therefore raises a narrow issue but it is still necessary to set out a little of the background to the Primary Judgment and the Costs Judgment.

   The Proceedings Below

3. On 21 October 2006, the first respondent (“the Council”) (which was also the first respondent below) lodged with the Employment Advocate the Etheridge Shire Council Australian (Employee Collective) Agreement (“the Agreement”), having complied with the procedures which the WR Act prescribes to be followed in lodging such an agreement. However, the Council was only entitled to lodge the Agreement if it was an “employer” which is relevantly defined in s 6(1)(a) of the WR Act as:

   ‘a constitutional corporation, so far as it employs, or usually employs, an individual.’

4. A “constitutional corporation” is defined in s 4 of the WR Act to mean “a corporation to which paragraph 51(xx) of the Constitution applies”. Section 51(xx) of the Constitution, in turn, provides;

   ‘51 Legislative powers of the Parliament

   The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:

   …

   (xx)foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth.’

5. In the primary proceedings, then, the question for the trial Judge was whether the Council was a trading or financial corporation so as to qualify as an employer within the meaning of the WR Act.

6. That question, his Honour correctly perceived, was to be answered by reference to the “activities test” erected by the authorities, principally including R v Judges of the Federal Court of Australia; Ex parte Western Australian National Football League (Incorporated) (Adamson’s Case) (1979) 143 CLR 190 and its predecessor, R v Trade Practices Tribunal; Ex parte St George County Council (1974) 130 CLR 533 and, as well, the more recent pronouncement by the High Court in NSW v Commonwealth (The Work Choices Case) (2006) 229 CLR 1. At [85], then, his Honour said;

   ‘I therefore proceed to enquire whether the Etheridge Shire Council is a trading corporation or a financial corporation, by considering whether, on the evidence, “the predominant and characteristic activity of the Etheridge Shire Council is in trading, whether in goods or services”, or whether “the predominant and characteristic activity of the Etheridge Shire Council is in finance”.’

7. His Honour’s analysis of the evidence before him showed that those questions, however formulated, could only be answered in the negative. First, by ss 24 and 25 of the Local Government Act 1993 (Qld), the Council was empowered to make local laws which then, by force of s 896 of that Act, had the force of state laws upon commencement. The Council therefore “has extensive legislative and executive functions of a governmental kind in relation to the relevant local government area”, which itself was a contra-indication that trade or commerce was the predominant or characteristic activity of the Council. Secondly, although accepting, in reliance on Bank of New South Wales v Commonwealth (1948) 76 CLR 1 per Dixon J, at 381, that “trade” was a term to be broadly defined, his Honour held that the trading activities of the Council – like the provision of hostel accommodation, office space rental, and the sale of halls and of water – were not truly directed to profit-making, as the activities of trading or financial corporations invariably are: see Adamson’s Case, supra, per Mason J, at 235.  Those activities, his Honour considered, were more properly to be seen as extensions of the governmental powers or functions of the Council; it was no coincidence that almost all of those activities were conducted at a loss.

8. Having reached those conclusions, his Honour made the following declarations sought by the applicants;

   ‘1.The Etheridge Shire Council is not an “employer” within the meaning of section 6 of the Workplace Relations Act 1996 (Cth).

   2.The Etheridge Shire Council was not lawfully entitled to lodge the Etheridge Shire Council Australia (Employee Collective) Workplace Agreement 2006 with the second respondent on 21 October 2006, or at any time thereafter, under Part 8 of the Workplace Relations Act 1996 (Cth).

   3. The Etheridge Shire Council Australia (Employee Collective) Workplace Agreement 2006 did not come into operation as a workplace agreement in accordance with section 347(1) of the Workplace Relations Act 1996 (Cth) on 21 October 2006, or any time thereafter.

   4. The Etheridge Shire Council Australia (Employee Collective) Workplace Agreement 2006 has no force and effect as a workplace agreement under the Workplace Relations Act 1996 (Cth).’

   The applicants, thus, wholly succeeded at first instance in that they obtained each of the declarations which they had sought.

9. Having reserved the question of costs, his Honour saw himself as confronted, when that question came to be argued, with “a significant question of statutory interpretation as to what is a ‘matter arising under the Workplace Relations Act 1996 (Cth)’… that is central to any award of costs in each of the proceedings”. The statutory provision to which submissions were directed was s 824 of the WR Act, which provided;

   ‘824     Costs only where proceeding instituted vexatiously etc.

   (1)A party to a proceeding (including an appeal) in a matter arising under this Act (other than an application under section 663) must 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.

   (2)Despite subsection (1), if a court hearing a proceeding (including an appeal) in a matter arising under this Act (other than an application under section 663) is satisfied that a party to the proceeding has, by an unreasonable act or omission, caused another party to the proceeding to incur costs in connection with the proceeding, the court may order the first‑mentioned party to pay some or all of those costs.

   (3)      In subsections (1) and (2):

   costs includes all legal and professional costs and disbursements and expenses of witnesses.’

10. The question which his Honour had to resolve is the same as that raised by the present appeal; namely were the primary proceedings, as described at [3]-[7] above “in a matter arising under” the WR Act?

11. The Costs Judgment discloses that the appellants opposed the outcome as to costs which would have followed from the application of s 824(1) of the WR Act, i.e., that each party bear its own costs. In support of that opposition, the appellants contended, as the Costs Judgment reveals at [16], that “as they sought declarations to the effect that the first respondent had no right under the Workplace Relations Act, to act as it did, s 824 has no application”.

12. His Honour’s answer to that question was founded on the proposition that, where the resolution of a matter depends upon an assessment of the limits or scope of a statute or a statutory provision, the proceedings will necessarily “arise under” that statute. In support of that proposition, his Honour referred to BGC Contracting Pty Ltd v Construction, Forestry, Mining and Energy Union of Workers (No 2) (2005) 143 FCR 409, a case in which costs under s 347 of the WR Act, the predecessor of s 824, were sought following the issue of a declaration to the effect that the operation of a provision of the Industrial Relations Act 1979 (WA) was excluded by force of a provision of the WR Act, read with s 109 of the Commonwealth Constitution. There, French J said, at 418;

    ‘[31]    In my opinion the declaration sought necessarily involved a determination about the scope and operation of the right of entry under the WRA.

    [32]     It is well settled that a matter arises under a law of the Commonwealth if a right or duty or a power or immunity 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" -- R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141at 154. See also Felton v Mulligan [(1971) 124 CLR 367]; Moorgate Tobacco Co Ltd v Philip Morris Ltd (1980) 145 CLR 457 at 476; LNC Industries Ltd v BMW (Australia) Ltd [(1983) 151 CLR 575]. That principle was applied in a context relevant to the present case, by the High Court in Re Polites; Ex parte Hoyts Corporation Pty Ltd (1991) 173 CLR 78.’

13. Spender J’s analysis therefore led him to conclude that, as the matter involved in the primary proceedings necessarily required an analysis of the provisions of the WR Act identified at [3]-[7] above, the proceedings were in a matter arising under the WR Act, s 824 applied and no order as to costs in favour of the applicant could therefore be made.

    The case on appeal

14. The submissions of the appellants rest upon what they characterise as Spender J’s “fundamental error of characterisation of the proceedings”. They contend that, correctly analysed, the power exercised by the Court in making the declarations which it did is referable to either or both of s 21 of the Federal Court Act and s 39B(1A)(c) of the Judiciary Act 1903 (Cth) (“the Judiciary Act”).

15. That argument, in turn, is based upon a contention that the applicants;

    ‘… did not seek to invoke any right, entitlement, benefit, remedy or privilege under the [WR Act] … rather, [they] sought to invoke the original jurisdiction of the Federal Court to declare that the [WR Act] had no relevant application to any of the parties to the proceedings.’

16. In support of that contention, the appellants referred to Tristar Steering and Suspension Australia Ltd v Industrial Relations Commission of New South Wales (No 2) (2007) 159 FCR 274 as a case in which s 824 was held not to apply. In Tristar, however, the dispute was as to the jurisdiction of the New South Wales Industrial Relations Commission, a body constituted by the Industrial Relations Act 1996 (NSW). In our view, the Court’s ruling that s 824 did not apply to the question of costs in that case turned on the fact that the controversy before the Court had been one about whether the New South Wales Act intruded on to the field covered by the WR Act so as to create an inconsistency within s 109 of the Commonwealth Constitution. As Kiefel J observed, at 275;

    “The matter has a connexion with the WRA but does not involve a right arising under it and the duty of the [New South Wales Commission] not to proceed which was enforced, arose because of the operation of s 109 of the Constitution of the Commonwealth and the resultant effect upon the State Act.’

17. Finally, the appellants argue that the proper approach to determine whether or not a matter “arises under” a statutory provision is to analyse the applicant’s claim – not to analyse the respondent’s response – or, in the terms of the appellant’s written outline, any statutory defence or immunity under which the respondent “seeks shelter”.

18. The Council’s primary contention on the appeal is that what is determinative of whether a matter “arises under” a particular statutory scheme or provision is the invocation, rather than the success, of the statutory claim. The Council submits that its case before the trial judge was always that it could enter into the impugned workplace agreement; as his Honour’s conclusion that it did not have that facility depended upon a construction of the relevant provisions of the WR Act, the proceeding was in a matter necessarily “arising under” that Act.

    Consideration

19. The competing contentions as they have been refined on the hearing of this appeal can shortly be stated as follows:  the appellants submit that they should have had an order for payment of their costs because their claim, upheld by the Primary Judgement, was that the Council was not an “employer” and so could not avail itself of a facility afforded by the WR Act. According to the Council, the Primary Judgment necessarily involved an analysis of the relevant provisions of the WR Act so that the proceeding was in a matter “arising under” it thereby enlivening the provisions of s 824 as to costs.

20. We have concluded that the Council’s contention must be upheld.  The matter in controversy in the primary proceedings, however it might be formulated, concerned the width, meaning, or content of a definition in the WR Act.  The resolution of that matter required the primary Judge to construe the statutory definition.  In our view, that requirement entailed that the matter was one “arising under” the WR Act.  This view, as the primary Judge pointed out, is supported by the observations in BGC Contracting (see above at [12]) which are but one illustration of a well-understood and frequently applied doctrine.

21. Much of what has been said about matters “arising under” certain provisions has centred on s 76(ii) of the Commonwealth Constitution, which provides:

    ‘76.The Parliament may make laws conferring original jurisdiction on the High Court in any matter--

    …

    (ii.)      Arising under any laws made by the Parliament …’

22. Whether the jurisdiction has been conferred by s 76(ii), thus, necessarily raises the question of when a matter is one “arising under” a law made by the Commonwealth Parliament. The answer which we have gleaned from the authorities is that a matter is one “arising under” a law of the Parliament when a claim under such a law has been made in a pleading or, in other words, when a party has invoked a law of the Parliament to support or refute a claim made by or against that party. That said, of course, the invocation in the pleading of a law of the Parliament must not be merely colourable; see Burgundy Royale v Westpac (1987) 18 FCR 212, at 219. As well as from the authorities cited by French J in the passage from BGC Contracting set out at [12] above, we have derived assistance especially from Felton v Mulligan (1971) 124 CLR 367 per Barwick CJ, at 374, Fencott v Muller (1983) 152 CLR 570, at 603 and Australian Solar Mesh v Anderson (2000) 101 FCR 1 per Burchett J, at 9 and the authorities there collected. Also to the point is Abebe v Commonwealth (1999) 197 CLR 510 where Gummow and Hayne JJ observed, at 561, that the matter then before the High Court;

    ‘… answers the description of a matter arising under a law made by the Parliament within the meaning of s 76(ii) of the Constitution. This is because the determination of the controversy involves the interpretation of the [Migration] Act and the rights or duties in question in the matter owe their existence to that statute.’

1. In our view, the principles set out by their Honours in relation to s 76(ii) of the Commonwealth Constitution apply with equal force where the controversy is as to the application of a Commonwealth statutory regime so that the matter can be said to be one “arising under” a law of the Parliament. This analysis accords with our understanding of what French J in BGC Contracting (supra) regarded as well-settled which is, relevantly, that if an immunity which is claimed by a party depends for its enforcement on the interpretation of the WR Act then the proceeding in which that claim is made is in a matter arising under that Act.

2. Attention is therefore to be directed, first, to whether the “matter” involves the interpretation of a Commonwealth Act.  In this case an interpretation of the WR Act was plainly central to the trial Judge’s resolution of the primary proceedings. Secondly, consideration must be given to what may be said to have brought the rights or duties in question into existence (see Re McJannet; Ex parte Australian Workers’ Union of Queensland [No 2] (1997) 189 CLR 654, at 656).

3. In McJannet, a proceeding had been instituted in the Federal Court and expressed as made pursuant to s 253X and s 253ZC of the Industrial Relations Act 1988 (Cth) (“the 1988 Federal Act”). Those sections provided as follows in relation to amalgamations of federally-registered industrial organisations;

   [Section 253X]

   ‘(1)The amalgamated organisation must take such steps as are necessary to ensure that the amalgamation, and the operation of this Subdivision in relation to the amalgamation, are fully effective.

   (2)The Court may, on the application of an interested person, make such orders as it considers appropriate to ensure that subsection (1) is given effect to.’

   [Section  253ZC]

   ‘(1)Where any difficulty arises in relation to the application of this Subdivision to a particular matter, the Court may, on the application of an interested person, make such order as it considers proper to resolve the difficulty.

   (2)An order made under subsection (1) has effect despite anything contained in this Act or in any other Commonwealth law or any State or Territory law.’

4. A Full Court of this Court upheld an appeal from an order at first instance that this Court had no jurisdiction under those sections to make orders in respect of assets of a Queensland State-registered Union, the members of which were also members of the Queensland branch of a federally-registered organisation which was one of the parties to the amalgamation to which ss 253X and 253ZC of the 1988 Federal Act applied. On appeal, the Full Court made, amongst other orders, the following declarations;

   ‘(3)     It be declared that:

   (a)the industrial association the subject of a purported registration pursuant to the Industrial Arbitration Act 1916 (Qld) on 18th March 1917, under the name `Queensland Branch of the Australian Theatrical and Amusement Union of Employees', was then, and thereafter remained, the Queensland Branch of the Australian Theatrical and Amusement Employees Association;

   (b)all assets and interests in property held by, or on behalf of, the entity called Queensland Branch of the Australian Theatrical and Amusement Union of Employees immediately prior to its purported amalgamation with the [AWUEQ] were assets and interests belonging to [the Alliance]; and

   (c)the purported amalgamation between the Queensland Branch of the Australian Theatrical and Amusement Union of Employees and the [AWUEQ] pursuant to the Industrial Relations Act 1990 (Qld) is void and of no effect.’

5. The prosecutors then sought in the High Court prohibition and certiorari directed to the orders and declarations which had been made by the Full Federal Court. The High Court held that the Federal Court lacked jurisdiction to make the orders and declarations which the Full Court of this Court had purported to make. The question was then agitated of whether s 347(1) of the 1988 Federal Act (the counterpart of s 824(1)) operated to preclude the High Court from making an order for costs in favour of the successful prosecutors. It was against that background that the High Court in a joint judgment held in McJannet [No 2] at 657 that;

   ‘In the present case, the proceeding before the Federal Court was in a matter arising under the Act because the respondents were claiming a right under the Act against the prosecutors. No order for costs could be made in respect of the proceeding in the Federal Court.

   The proceeding in this Court, however, is of a different nature and the controversy between the parties is a different matter. In this Court, the prosecutors asserted the absence of a jurisdiction in the Federal Court to proceed further in the proceeding pending there. The jurisdiction of this Court which the prosecutors invoked is conferred by s 75(v) of the Constitution. The duty which was sought to be enforced was the duty not to assume a jurisdiction which the Federal Court did not have. Although the jurisdiction of this Court to issue mandamus in Re Polites [(1991) 173 CLR 78], like the jurisdiction to issue prohibition in the present case, was conferred by s 75(v) of the Constitution, the proceeding in Re Polites answered the description of a matter arising under the Act within the meaning of s 347(1). But the proceeding in the present case does not. The relief which was sought by way of mandamus owed its form and content to the provisions of the Act which imposed the duty that the respondent was commanded to perform. The relief which is sought in an application for prohibition is not for the enforcement of any right or duty created or conferred by the Act. Accordingly, s 347(1) has no application to a proceeding for the issue by this Court of prohibition under s 75(v) of the Constitution.

6. In our view, the relief which was here sought by the appellants in the primary proceedings was for enforcement of a right or duty (being an immunity from the application of the WR Act and a corresponding duty imposed on the Council) created or conferred by the WR Act.  The relief sought by the appellants did not owe its form or content to any provisions other than those of the WR Act which had been invoked by the appellants in their amended application seeking declaratory orders in the primary proceeding.

7. Here again, in our view, the rights and duties at issue owed their existence to the regime of negotiation and registration of workplace agreements erected by the WR Act. The threshold issue to be determined was the definitional question with which the trial Judge was concerned as identified at [3]-[8] above. For these reasons, the matter resolved by the Primary Judgment can truly be said to have arisen under the WR Act. The fact that the Court’s power to make declarations or grant other relief in aid of the resolution of that matter has been conferred by s 21 of the Federal Court Act or, in a more general sense, s 39B(1A) of the Judiciary Act, says nothing about how the matter has “arisen”. We consider that the observations of another Full Court of this Court in Construction, Forestry, Mining and Energy Union v Clarke (2008) 170 FCR 574, can be paraphrased to apply with equal force to the present case. In that case, their Honours said, at [26];

   ‘We reject the submission of the appellants that the right or duty put in issue by the Notice of Objection to Competency related solely to the right of appeal under s 24(1)(a) of the FCA Act. This submission is not supported by the text of s 824(1) of the WR Act. The text of the provision requires that one must look to the enactment from which the matter before the Court arises, not merely the proceeding. If the enactment thus identified as the source of the matter is the WR Act, then no costs order can be made. In this case, the justiciable controversy is whether the appellants engaged in industrial action before the nominal expiry date of a certified agreement contrary to s 170MN(1) of the WR Act, and whether they breached a term of a certified agreement contrary to s 178(1). Although in the course of litigating this controversy particular proceedings were instituted pursuant to provisions in the FCA Act (s 24(1)(a) for the Notice of Appeal) and the Federal Court Rules (O 52 r 18(1) for the Notice of Objection to Competency and O 52 r 22(3) for the Notice of Contention), that is not to the point. The matter arises out of the WR Act, and consequently the usual prohibition in s 824(1) on the making of costs orders applies. (original emphasis)’

8. It follows that the learned primary Judge’s application of s 824 of the WR Act was unexceptionable and the appeal from the Costs Judgment must be dismissed.

I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Ryan and Marshall.

Associate:

Dated:        28 August 2009

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	QUD60 of 2009

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

THE AUSTRALIAN WORKERS' UNION OF EMPLOYEES, QUEENSLAND
First Appellant

QUEENSLAND SERVICES' INDUSTRIAL UNION OF EMPLOYEES
Second Appellant

AND:

ETHERIDGE SHIRE COUNCIL & ANOR
First Respondent

WORKPLACE AUTHORITY DIRECTOR
Second Respondent

JUDGES:	RYAN, MARSHALL AND LOGAN JJ
DATE:	28 AUGUST 2009
PLACE:	BRISBANE

REASONS FOR JUDGMENT

LOGAN J

1. I have had the considerable advantage of reading (in draft) the joint reasons of Ryan and Marshall JJ.

2. I regret that I differ from them as to the disposition of the appeal.

3. The point at issue on the appeal is a narrow one but, as the learned primary judge observed, a significant question of statutory construction in relation to s 824 of the then Workplace Relations Act 1996 (Cth) (the WR Act) is raised. It is also one of enduring practical importance in relation to litigation touching on the Federal industrial relations system. An analogue of s 824 of the WR Act is found in s 570 of the Fair Work Act 2009 (Cth).

4. How the question for determination arises is detailed by Ryan and Marshall JJ in their joint reasons. There, too, are summarised the reasons of the learned primary judge and the submissions respectively well advanced by counsel for the parties to the appeal. I gratefully adopt these parts of the joint reasons.

5. At the time when the question of costs fell for determination s 43 of the Federal Court of Australia Act 1976 (Cth) (the Federal Court of Australia Act) materially provided:

   ‘43 Costs

   (1)…, the Court or a Judge has jurisdiction to award costs in all proceedings before the Court (including 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 is in the discretion of the Court or Judge.’

6. The Respondent Shire Council’s position was that, in terms of s 43(1) of the Federal Court of Australia Act, s 824 of the WR Act was an “other Act” which provided that costs should not be awarded. For that to be so, the Shire Council had to be, and it submitted that it was, materially, a “party to a proceeding … in a matter arising under the [WR Act]”. Absent the application of s 824 of the WR Act, it was accepted on the appeal by the Shire Council that the discretion as to costs would fall for exercise in the usual way, i.e. that costs should follow the event.

7. The test which we are bound to apply in answering the question which arises for determination is that stated by the High Court with respect to the materially analogous predecessor of s 824(1) of the WR Act, s 347(1) of the Industrial Relations Act 1988 (Cth) (Industrial Relations Act). In Re McJannet; Ex parte Australian Workers’ Union of Queensland (No 2) (1997) 189 CLR 654 (McJannet No 2) at 656, “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”. As the High Court notes in McJannet No 2 at 656-657, that test has its origin in what was said of s 76(ii) of the Constitution by Latham CJ in R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141:

   ‘"[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." (at 154)’

8. The application of this test requires precise characterisation of the “matter” before the Court. That can be attended with subtle but telling distinctions. The background to the High Court’s costs judgement in McJannet No 2 nicely illustrates this.

9. In this Court, the Media Entertainment and Arts Alliance (MEAA) and others had sought to invoke the jurisdiction conferred at the time on the Court by s 253X or by s 253ZC of the Industrial Relations Act. The learned Trial Judge, Ryan J, concluded that the Court did not have jurisdiction because the body said to have been amalgamated into the MEAA was in law a separate legal entity, namely, a State union registered and incorporated under State law: McJannet v White (1992) 39 FCR 1. An appeal from that decision was heard by a specially constituted Full Court of 5 judges. The appeal was allowed (Northrop J dissenting): McJannet v White (1994) 48 FCR 453. No legislative provision was made for an appeal to the High Court from that decision. However, the Australian Workers’ Union of Employees Queensland (AWUEQ), coincidentally one of the present Appellants, successfully obtained from the High Court under s 75(v) of the Constitution a constitutional writ of prohibition directed to the judges of this Court prohibiting their taking any steps to enforce the judgement of the Full Court: Re McJannett; Ex parte Minister for Employment, Training and Industrial Relations (Qld) (1995) 184 CLR 620 (McJannet No 1). 

10. The other Appellant is another State registered union, the Queensland Services Industrial Union of Employees (QSU). As its case was identical to that of the AWUEQ, it is convenient to consider in detail the position of the AWUEQ alone.

11. Though the judgement of the High Court on the constitutional writ application effectively vindicated the decision of Ryan J with respect to jurisdiction, it did not follow from this that the AWUEQ was unable to secure from the High Court an order for the payment of its costs in that Court pursuant to that Court’s general power to award costs conferred by s 26 of the Judiciary Act 1903 (Cth) (the Judiciary Act) (of which s 43 of the Federal Court of Australia Act is an analogue). That was so even though it was contended before the High Court by the MEAA and other respondents that this Court possessed jurisdiction under the Industrial Relations Act 1988.

12. As the High Court explained in McJannet No 2 (1997) 189 CLR 654 at 657, the proceeding before this Court was in a matter arising under the Industrial Relations Act because the right claimed by the MEAA and others against the AWUEQ and others was a right conferred by that Act, a right to relief under s 253X or s 253ZC of that Act. Thus, the proceedings in this Court, both in the original jurisdiction before Ryan J and in the Full Court, were “proceedings in a matter arising under this Act” for the purposes of s 347 of the Industrial Relations Act. Those proceedings not having been instituted vexatiously or without reasonable cause, the effect of s 347 of that Act was that there was no power to award costs in the proceedings in this Court. In contrast, the proceedings before the High Court were of a different nature and the controversy between the parties was characterised by that Court as a different matter – “The jurisdiction of this Court which the prosecutors invoked is conferred by s 75(v) of the Constitution. The duty which was sought to be enforced was the duty not to assume a jurisdiction which the Federal Court did not have.” (at 657 - Emphasis added)

13. A question as to whether an award of costs was possible having regard to s 347 of the Industrial Relations Act had then recently earlier arisen in another constitutional writ proceeding in the High Court, Re Polites; Ex parte Hoyts Corporation Pty Ltd (1991) 173 CLR 78 (Polites).  In the circumstances of Polites it was held that there was no power to award costs in favour of the successful prosecutor. In McJannet No 2 at 657, the High Court explained how it was that, though the source of the power to grant the constitutional writ (mandamus in Polites) was the same, the circumstances of Polites were such that it did not follow that the ability to award costs, given s 347 of the Industrial Relations Act, was the same:

    ‘Although the jurisdiction of this Court to issue mandamus in Re Polites, like the jurisdiction to issue prohibition in the present case, was conferred by s 75(v) of the Constitution, the proceeding in Re Polites answered the description of a matter arising under the Act within the meaning of s 347(1). But the proceeding in the present case does not. The relief which was sought by way of mandamus owed its form and content to the provisions of the Act which imposed the duty that the respondent was commanded to perform. The relief which is sought in an application for prohibition is not for the enforcement of any right or duty created or conferred by the Act. Accordingly, s 347(1) has no application to a proceeding for the issue by this Court of prohibition under s 75(v) of the Constitution. (Emphasis added)’

14. The AWUEQ did not seek relief by way of prohibition or even an injunction in the proceedings in this Court in the present case. That does not, in my respectful opinion, mean that no assistance is to be gained by analogy from the explanations given by the High Court in McJannet No 2 with respect to the application of the test formulated in that case.

15. Section 824 draws a distinction between “proceedings” and “matter”. In so doing, it replicates a distinction recognised with respect to s 76(ii) of the Constitution, q.v. as to the latter Phillip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457 at 507-509. It is the existence of a “matter” arising under the WR Act which engages the costs exemption for which s 824 of that Act provides.

16. In the litigation in this Court which preceded McJannet No 1, the MEAA did seek to enforce rights under the Industrial Relations Act. The rights which the AWUEQ sought to vindicate in the present case arose under State law. They were rights with respect to the regulation of conditions of employment and rates of pay of employees of the Shire Council under the Industrial Relations Act 1999 (Qld) and its right as a union registered under that Act to continue to represent the industrial interests of those employees, including in proceedings in the Queensland Industrial Relations Commission constituted under that Act. The right under Federal law which it sought to invoke was a right to a declaration in respect of a matter involving the interpretation of the Constitution.

17. Those State rights would have been relevantly extinguished in the event that the Etheridge Shire Council Australia (Employee Collective) Workplace Agreement 2006 (Collective Agreement) had force and effect as a workplace agreement under the WR Act. Materially, for the Collective Agreement to have that force and effect it was necessary that the Shire Council to be an “employer” in terms of s 6 of that Act. That, in turn, directed attention to whether it was a “constitutional corporation” in terms of the definition of that term in s 4 of the WR Act. That definition defined the term to mean “a corporation to which para 51(xx) of the Constitution applies”.

1. If the Shire Council were an “employer” as so defined, the Collective Agreement would have come into force pursuant to s 347 of the WR Act upon its lodgement with the official whose office became known as the “Workplace Authority Director”. That official was the Second Respondent in the proceedings below.

2. This analysis discloses that the end to which the proceedings in the present case was directed was the vindication of various rights of industrial regulation and representation under Queensland’s State industrial relations system in respect of the Shire Council’s employees. Those rights would be vindicated if it were declared that the Shire Council had no lawful entitlement to lodge the Collective Agreement with the Workplace Authority Director and that, accordingly, the WR Act gave that agreement no lawful force and effect.

3. No question arose before the learned primary judge as to the Court’s jurisdiction to entertain the proceedings. The Court’s power to grant declaratory relief is to be found in s 21 of the Federal Court of Australia Act but that section is not a source of jurisdiction. No constitutional writ or injunctive relief having been sought and there being no criminal matter, only in either or each of ss 39B(1A)(b) and (c) of the Judiciary Act could there be a source or sources of jurisdiction for this Court to entertain the AWUEQ’s application..

4. Given the way in which the definition of “constitutional corporation” was constructed, the Court, on any view, was seized with a “matter” “involving the interpretation of the Constitution” in terms of s 39B(1A)(b) of the Judiciary Act: Attorney-General (NSW) v Commonwealth Savings Bank (1986) 160 CLR 315 at 327. Axiomatically, the proceeding also involved the interpretation of the WR Act. That, in itself, did not make the proceeding one in respect of a matter “arising under a law made by the Parliament” so as to engage s 39B(1A)(c) of the Judiciary Act as an additional source of jurisdiction.

5. Subject to a presently immaterial exception in respect of criminal matters, ss 39B(1A)(b) and (c) of the Judiciary Act evidence a defining by the Parliament, pursuant to s 77(i) of the Constitution, of jurisdiction in a way which implements in respect of this Court, ss 76(i) and (ii) of the Constitution. As with the latter constitutional provisions, the language of s 39B(1A)(b) of the Judiciary Act is broader than that of s 39B(1A)(c). A “matter” may involve the interpretation of the Constitution even though it does not arise under the Constitution. On any view therefore, a, and perhaps the only, right under federal law which the AWUEQ sought to invoke was a right to a declaration in respect of a matter involving the interpretation of the Constitution under s 39B(1A)(b) of the Judiciary Act.

6. By the same token, a matter may involve the interpretation of an Act, even though it does not arise under that Act. There is a passage in Collins v Charles Marshall Pty Ltd (1955) 92 CLR 529 which supports this proposition in a way which, in my opinion, is instructive for present purposes. That case arose out of a prosecution in a State court under State industrial relations legislation. Before the State court the defendant successfully raised in defence that the State legislation was inconsistent with Federal legislation which gave force and effect to an award made by the then Commonwealth Court of Conciliation and Arbitration. An appeal was then brought in the High Court pursuant to special leave granted under s 39(2)(c) of the Judiciary Act. In the course of that appeal a question arose as to the validity of s 31 of the Conciliation and Arbitration Act 1904 (Cth) which purported to confer on the Commonwealth Court of Conciliation and Arbitration an appellate jurisdiction in respect of, materially, matters arising under that Act. That purported conferral of jurisdiction was held not to be authorised by s 77(i) of the Constitution. The following passage appears in the joint judgement of Dixon CJ, McTiernan, Williams, Webb, Fullagar and Kitto JJ:

   ‘There is in fact nothing in ss. 75 and 76 of the Constitution other than s. 76 (ii). that lends any support to s. 31 of the Act. But the support it lends could not on any footing go far enough. It is limited to matters arising under any laws made by the Parliament. Now sub-s. (1) of s. 31 describes proceedings in terms which must bring into contrast "proceedings arising under the Act" not only with "proceedings involving the interpretation of the Act" but with "proceedings arising under an order or award" and finally with "proceedings involving an interpretation of an order or award". "Proceedings" are not necessarily co-extensive with "matters": see Re Judiciary and Navigation Act (1921) 29 CLR 257, at p 265 , but the distinction can for the moment be put aside.

   Clearly enough a matter or a proceeding may involve the interpretation of the Act or of an order or of an award, although the proceeding does not arise under the Act. This very case is an example and it may be said that almost always it will be so where the Act order or award is relevant only to some matter of defence to a proceeding based on some cause of action or ground which is prima facie independent of the Act order or award. Further, there is a difference between a proceeding arising under the Act and a proceeding arising under an order or award and this difference the language of s. 31 (1) marks. It may be supposed that if a proceeding can properly be said to arise under an award or order, it will usually be true that it can also be said that it arises under the Act. But there is not necessarily an invariable identity and an order or award of a conciliation commissioner or of the Court of Conciliation and Arbitration is not a law of the Commonwealth: Ex parte McLean (1930) 43 CLR 472, at pp 479, 484. Where is to be found the legislative authority for conferring jurisdiction in matters arising under an order or award, as distinguished from under the Act? Where is the legislative authority for conferring jurisdiction in matters which do not arise under the Act but which do involve the interpretation of the Act or of an order or of an award? It cannot be found in the operation of s. 76 (ii.) - matters arising under any laws made by the Parliament - upon s. 77 (i.) - defining the jurisdiction of any federal court with respect (inter alia) to such matters. And it cannot be found elsewhere. It follows that independently of any other ground of invalidity so much of s. 31 (1) must be void as attempts to give an appellate jurisdiction to the Court of Conciliation and Arbitration in proceedings that do not arise under the Conciliation and Arbitration Act but do involve the interpretation of the Act or of an order or of an award or do arise under an order or an award. (at 539-540) (Emphasis added)’

   There was a subsequent, unsuccessful appeal to the Judicial Committee of the Privy Council, Charles Marshall Pty Ltd v Collins [1957] AC 274, but that related to an other issue in the case which was as to whether the Federal award had “covered the field” so as to give rise to a s 109 constitutional inconsistency. Further, other observations, unrelated to those in the passage quoted from this joint judgement, were later disapproved in Smith Kline & French Laboratories (Aust) Ltd v Commonwealth of Australia (1991) 173 CLR 194. The observations made in the passage quoted remain good law.

7. Further guidance as to when a matter can be said to arise under a Federal law was offered by Gibbs CJ, Mason, Brennan, Deane and Dawson JJ, Murphy J agreeing, in their joint judgement in LNC Industries Ltd v BMW (Australia) Ltd (1983) 151 CLR 575 at 581- 582:

   ‘It is true to say that a matter does not arise under a law made by the Parliament merely because the interpretation of the law is involved: Felton v. Mulligan (1971) 124 CLR 367, at pp 374, 382, 396, 408, 416. On the other hand, a matter may arise under a law of the Parliament although the interpretation or validity of the law is not involved: R. v. Commonwealth Court of Conciliation and Arbitration: Ex parte Barrett (1945) 70 CLR 141, at p 154. The conclusion reached by Latham C.J. in that case (1945) 70 CLR 141, at p 154, and stated in a passage that has often been cited with approval, is "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". Equally, there is a matter arising under a federal law if the source of a defence which asserts that the defendant is immune from the liability or obligation alleged against him is a law of the Commonwealth: Felton v. Mulligan (1971) 124 CLR, at p 408 .

   When it is said that a matter will arise under a law of the Parliament only if the right or duty in question in the matter owes its existence to a law of the Parliament that does not mean that the question depends on the form of the relief sought and on whether that relief depends on federal law. A claim for damages for breach or for specific performance of a contract, or a claim for relief for breach of trust, is a claim for relief of a kind which is available under State law, but if the contract or trust is in respect of a right or property which is the creation of federal law, the claim arises under federal law. The subject matter of the contract or trust in such a case exists as a result of the federal law. In R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett  (1945) 70 CLR 141, at p 154 , Latham C.J. said that the view which he expressed was in accordance with Federal Capital Commission v. Laristan Building and Investment Co. Pty. Ltd; (1929) 42 CLR 582, at pp 585-586 where Dixon J. said:

   "The Seat of Government is an integral part of the Federal System, and I see no reason for denying the application of sec. 76 to laws made pursuant to sec. 52(1). It would follow that a law of the Parliament conferring jurisdiction on the High Court is warranted by sec. 76(ii), at least in relation to matters which arise as the result of enactments of the Parliament. It may well be that all claims of right arising under the law in force in the Territory come within this description, because they arise indirectly as the result of the Seat of Government Acceptance Act 1909 (see sec. 6), and the Seat of Government (Administration) Act 1910 (see secs. 4 to 7 and 12). But it is at least clear that a claim to a right conferred by or under ordinances made by the Governor-General in Council under sec. 12 of the Seat of Government (Administration) Act is a matter arising under an enactment of the Parliament."

   This view conforms with what was said by Walsh J. in Felton v. Mulligan (1971) 124 CLR, at pp 402-403 and with the judgments of members of this Court in Moorgate Tobacco Co. Ltd. v. Philip Morris Ltd. (1980) 145 CLR 457, at pp 468-469, 480.

   The contracts in the present matter were concerned solely with entitlements under the Regulations. The object of the plaintiff's claim was identified in the statement of claim as "any benefit accruing" after a certain time as a result of the utilization of a quota under the Regulations. It is common ground that the "benefit" mentioned is any "benefit" which might accrue under the Regulations. The subject matter of the contracts and of the action arose under and existed only by reason of the provisions of the Regulations and the Act in pursuance of which the Regulations were made. The Act was of course a law of the Parliament and the Regulations were made under it.

   The present case is not, to use the words of Windeyer J. in Felton v. Mulligan (1971) 124 CLR, at p 391, one in which the Regulations are merely "lurking in the background". The very subject of the issue between the parties is an entitlement under the Regulations. In substance the plaintiff's primary claim is to the benefit of rights and privileges under the Regulations. In these circumstances the matter involved in the action arose under laws made by the Parliament.’

8. Assuming it was aware in advance of the proposed lodgement of the Collective Agreement with the Workplace Authority Director by the Shire Council, the AWUEQ might have sought in the original jurisdiction, either of this Court under s 39B(1) of the Judiciary Act or of the High Court under s 75(v) of the Constitution, a writ of prohibition against that official, who was an “officer of the Commonwealth”, prohibiting the acceptance of that agreement for lodgement. The Shire Council could have been joined as an additional and perhaps the only contradictor Respondent. Having regard to the passages cited from McJannet No 2 and Collins v Charles Marshall, especially the parts emphasised, that the Shire Council’s riposte to such an application must necessarily have been that the Workplace Authority Director had jurisdiction to accept the Collective Agreement because, materially, it was an “employer” as defined by the WR Act, would not have rendered the proceeding one in respect of a matter “arising under the WR Act”. If it were otherwise, the assertion by the MEAA in McJannet No 1 that this Court had not wrongfully assumed jurisdiction under the Industrial Relations Act must, when costs were later sought against it by the AWUEQ, necessarily have given the proceeding the quality of one in respect of a matter arising under that Act such that the costs immunity in s 347 of that Act was attracted. Yet the outcome of that costs application in McJannet No 2 tells against that assertion having that effect.

9. Is the position any different when, as here, it is declaratory relief, not prohibition or an injunction, which is sought?

10. Answering that question is not rendered easier when it is recalled that, in a matter in which prohibition or injunctive relief is sought under s 39B of the Judiciary Act, this Court may award declaratory relief under s 21 of the Federal Court of Australia Act: Dhillon v Minister for Immigration Local Government & Ethnic Affairs (1994) 48 FCR 107 at 127 per French J (as the Chief Justice then was). Having regard to what was later said in Combet v The Commonwealth (2005) 224 CLR 494 at [165] as to the evident difficulties in making a declaration in a proceeding brought under s 75(v) (relevantly indistinguishable from s 39B(1) of the Judiciary Act), one might expect that, where the prospect existed of prohibition being refused because, for example, there remained no further conduct of a respondent officer of the Commonwealth to prohibit, declaratory relief under s 21 of the Federal Court of Australia Act would be sought further or in the alternative. The point of adverting to this is that, whether or not a declaration is sought as separate relief and whether or not it is so granted, though a writ of prohibition in form prohibits the assumption of a jurisdiction that an officer of the Commonwealth does not have, in substance by so doing it also declares that the particular Commonwealth officer does not possess the jurisdiction in question. That the AWUEQ did not and, given the passage of events, could not, seek a writ of prohibition, as opposed solely to seeking declaratory relief, is a distinction without a difference so far as the question of whether or not the proceedings should be characterised as having arisen “under the WR Act” is concerned.

11. I can see the force of an argument grounded in the proposition that the Shire Council was asserting that it had a right under the WR Act to lodge the Collective Agreement with the Workplace Authority Director and that this was enough additionally to make the proceeding one “arising under the WR Act”, quite apart from it being one involving the interpretation of the Constitution. There are passages in Felton v Mulligan, referred to in the passage which I have quoted from LNC Industries Ltd v B M W (Australia) Ltd, which might be thought to support that argument if one regards the way in which the Shire Council sought to answer the claim made by the AWUEQ for declaratory relief as being in substance the assertion of a right arising under the WR Act by it, i.e. a right to lodge the Collective Agreement with the Workplace Authority Director. For all that, the Shire Council’s position was not, as in Felton v Mulligan, in the nature of a defence based on a right conferred by the WR Act. Rather, it was a contention based on a particular interpretation of that Act and of the Constitution.

12. More fundamentally, the difficulty which I have with the Shire Council’s argument is that its assertion as to the jurisdiction of the Workplace Authority Director’s jurisdiction to accept the Collective Agreement for lodgement with the consequences then attendant per force of the WR Act does not seem to me to be relevantly distinguishable from the assertion by the MEAA in McJannet No 1, in resisting the application by the AWUEQ for prohibition in the High Court’s original jurisdiction, that this Court did indeed have jurisdiction under the Industrial Relations Act. Neither does it seem to me to be relevantly distinguishable from the reliance by the defendant in Collins v Charles Marshall on the Federal award and the effect given to such an award by the Conciliation and Arbitration Act. If the matter were to be decided by reference to authorities at ultimate appellate level alone, these cases, in my respectful opinion, dictate that the appeal be allowed.

13. Before settling on such a disposition of the appeal, reference needs to be made to a series of decisions of the Full Court of this Court decided after McJannet No 2.

14. The earlier cases in this series are analysed by Buchanan J, with whom Kiefel and Gyles JJ agreed in this regard, in Tristar Steering and Suspension Australia Ltd v Industrial Relations Commission of NSW (No 2) (2007) 159 FCR 274 (Tristar No 2). Tristar No 2 was a costs sequel to substantive proceedings in this Court for prohibition and injunctive relief grounded upon the claim, successfully raised, that a reference by a New South Wales Minister to that State’s Industrial Relations Commission for inquiry under State legislation was unlawful because, insofar as it purported to authorise such an inquiry, the State legislation was inconsistent with the WR Act and, per force of s 109 of the Constitution, invalid to the extent of that inconsistency. In the course of concluding that this Court was not prevented from awarding costs by s 824 of the WR Act, Buchanan J stated in Tristar No 2 at [15] that, “The Court’s power to order costs does not depend on the contentions advanced by the parties but on the correct characterisation of the nature of the proceedings.” I respectfully agree with that statement and with his Honour’s analysis of the earlier Full Court decisions.

15. In substance, the proceedings in Tristar No 2 were brought to enforce a duty on the part of the State Industrial Relations Commission not to assume jurisdiction. The AWUEQ brought its application in the present case to vindicate various rights under Queensland legislation and to highlight that the Workplace Authority Director had wrongly assumed a jurisdiction under the WR Act to accept the Collective Agreement for lodgement. That to me requires that the present proceeding be characterised as the antithesis of a proceeding in respect of a matter arising under the WR Act, even though it necessarily involves the interpretation of that Act. I regard Tristar No 2 as a case supporting the allowing of the appeal.

16. In Construction, Forestry, Mining and Energy Union v Clarke (2008) 170 FCR 574 (CFMEU v Clarke), a costs controversy arose against the background of a successful allegation before the Industrial Magistrate’s Court of Western Australia that the union had engaged in industrial action before the nominal expiry of a certified agreement contrary to s 170MN of the WR Act and had also contravened s 178(1) of that Act in relation to dispute resolution procedures. Against that background, the Full Court was able readily to conclude (at [27]) that the case was closer in character to Polites than to McJannet No 2 such that the prohibition in s 824 of the WR Act in respect of a proceeding in a matter arising under that Act against the awarding of costs was prima facie engaged. In other words, the matter was to be characterised as one arising under that Act because it was that Act which created the right or duty which was sought to be enforced. Hence, the proceedings, including those at appellate level, were in respect of a matter arising under the WR Act. In the circumstances, that, with respect, was an unremarkable conclusion. In contrast, the AWUEQ did not in the present proceeding seek declaratory relief so as to vindicate the existence of a right or duty having its source in the WR Act. CFMEU v Clarke  is not, in my opinion, a case which requires that this appeal should be dismissed but instead its contrast with the present case is eloquent as to why the appeal ought to be allowed.

1. For completeness, especially having regard to the reliance upon it by the learned trial judge, reference also needs to be made to a judgement given in the original jurisdiction after McJannet No 2, BGC Contracting v Construction, Forestry, Mining and Energy Union of Workers (No 2) (2005) 143 FCR 409 (BGC Contracting v CFMEU No 2). In that case the applicant sought declaratory relief in this Court against the respondent, State registered, union to the effect that its representatives had no right under West Australian industrial relations legislation to enter a particular construction site in that State. The case promoted by the applicant was that the right of entry conferred by the State legislation was inconsistent with a right of entry given by the WR Act in respect of those employed under Australian Workplace Agreements (AWA) made under that Act. Hence, the applicant submitted that the right of entry conferred under the State legislation was, per force of s 109 of the Constitution, invalid to the extent of the inconsistency. The learned trial judge in that case, French J, at [34], conceived the case to be one in which “the application for the determination here sought depended for its success upon the existence of rights of entry under the [WR Act] which were inconsistent with those conferred by the [State legislation]” and concluded that it was thus one arising under the WR Act. There being no suggestion that the proceedings were instituted vexatiously or without reasonable cause, it followed from this conclusion that no order for costs could be made.

2. The conclusion reached by French J in BGC Contracting v CFMEU No 2 was the culmination of a wide ranging survey of authority touching on the question of what constitutes a “matter arising under an Act”. It is evident from that survey that his Honour regarded the case as akin in substance to Polites in terms of cases of industrial relations origin on that subject. In the course of conducting that survey his Honour observed, at [29], “There is difficulty in distinguishing between a matter involving the interpretation of an Act and a matter arising under an Act”. I respectfully agree with that observation; indeed, it may be something of an understatement.

3. I do not suggest that BGC Contracting v CFMEU No 2 was wrongly decided. The circumstances of this case though, as those of McJannet No 2 were in comparison with Polites, are the converse of BGC Contracting v CFMEU No 2. The application brought by the AWUEQ did not depend for its success on the existence of a right arising under the WR Act. It depended for its success on the absence of any such right. The underlying premise of this case was akin to that which underpins prohibition, not mandamus. It would be consistent with BGC Contracting v CFMEU No 2 to allow this appeal.

4. For these reasons, and to paraphrase a passage which I have quoted above from McJannet No 2 (at 657), I conclude that the jurisdiction of this Court which the AWUEQ invoked is conferred by s 39(1A)(b) of the Judiciary Act. The duty which was sought to be enforced was the duty not to assume a jurisdiction which the Workplace Authority Director did not have. The proceeding certainly involved the interpretation of the WR Act, but it was not one in respect of a matter arising under that Act.

5. I note in passing that a corollary of this conclusion is that the appeal should be regarded as one heard in the General rather than the “Fair Work” Division of the Court as it does not involve a matter arising under the WR Act as continued for the purposes of the Fair Work Act. That conclusion is of no moment as each of the Judges constituting the Full Court for the purposes of the appeal is entitled to exercise jurisdiction in either Division of this Court.

6. I would allow the appeal and order the Shire Council to pay the taxed costs of the AWUEQ and those of the QSU in respect of the appeal and in the original jurisdiction.

I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.

Associate:

Dated:        28 August 2009

Counsel for the Appellants:	Mr A Herbert
Solicitor for the Appellants:	Hall Payne Lawyers
Counsel for the First Respondent:	Mr K Watson
Solicitor for the First Respondent:	King & Company, Solicitors

Date of Hearing:	14 August 2009
Date of Judgment:	28 August 2009