Construction, Forestry, Mining and Energy Union v Clarke - [2005] FCA 986

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

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2005] FCA 986
Decision Date: 20 JULY 2005

CaseChat Overview and Summary

In the case of Construction, Forestry, Mining and Energy Union v Clarke, the matter was brought before the court following an appeal from a decision made by the Industrial Magistrate’s Court. The dispute centres around the jurisdiction of the Federal Court of Australia to hear an appeal from the Industrial Magistrate's Court, specifically whether such an appeal can be heard by a single judge or must be heard by a Full Court. The parties involved in the appeal are the Construction, Forestry, Mining and Energy Union, acting as the appellant, and Clarke, who is the respondent.

The primary legal issue before the court was whether the Industrial Magistrate’s Court is considered a court of summary jurisdiction, as defined under section 25(5) of the Federal Court of Australia Act 1976 (Cth). This determination was crucial as it would dictate the appropriate court composition for hearing the appeal. The court needed to interpret the relevant statutory language and assess the nature of the Industrial Magistrate's Court's jurisdiction to decide whether it fell within the specified category.

The court's reasoning involved a detailed analysis of the statutory provisions and the characteristics of the Industrial Magistrate’s Court. It concluded that the Industrial Magistrate’s Court indeed qualifies as a court of summary jurisdiction under the Act. Consequently, the court found that section 25(5) of the Federal Court Act applies, meaning the appeal could be heard by either a single judge or a Full Court. This interpretation was based on the court’s understanding that the Industrial Magistrate’s Court exercises powers that are consistent with those of a court of summary jurisdiction.

The court ordered that the appeal be referred to the Chief Justice for consideration and determination of whether the appeal should be listed before a single judge or a Full Court, in accordance with section 25(5) of the Federal Court of Australia Act 1976 (Cth). This decision ensures that the appropriate procedural steps are followed in line with the statutory requirements.

Orders

Orders of the court

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)

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

NICHOLSON J

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 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.

Ratio Decidendi

Legal Principle Established

Established by: NICHOLSON J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD 112 OF 2005

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

JUDGE:	NICHOLSON J
DATE:	20 JULY 2005
PLACE:	PERTH