Poletti, J.U. v Ecob, E
[1989] FCA 476
•08 JUNE 1989
Re: JOHN UBALDO POLETTI
And: ERNEST ECOB
No. NI 8 of 1989
FED No. 476
Appeal
30 IR 343
COURT
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
INDUSTRIAL DIVISION
Gray J.(1)
CATCHWORDS
Appeal - statute giving right of appeal repealed - transitional provisions not preserving right of appeal expressly - whether right of appeal acquired or accrued before giving of judgment appealed from - whether contrary intention to be found in piecemeal transitional provisions.
Conciliation and Arbitration Act 1904 s. 113, 118A, 119
Industrial Relations Act 1988 ss. 56 and 178
Industrial Relations (Consequential Provisions) Act 1988 ss.3, 9, 10, 21, 24, 28 and 67.
Acts Interpretation Act 1901 s.8
Federal Court of Australia Act 1976 s. 24
HEARING
SYDNEY
#DATE 8:6:1989
Counsel for the Appellant: Mr de Meyrick
Solicitor for the Appellant: Watkins, Tapsell & Nolan
Counsel for the Respondent: Mr Nolan
Solicitor for the Respondent: Carroll and O'Dea
JUDGE1
Four proceedings were commenced under s.119 of the Conciliation and Arbitration Act 1904. They were heard by the Chief Industrial Magistrate for New South Wales. On 1st March 1989, before the proceedings were completed, the Conciliation and Arbitration Act 1904 was repealed. The repeal provision is found in s.3 of the Industrial Relations (Consequential Provisions) Act 1988 ("the Consequential Provisions Act"). On the same day, the Industrial Relations Act 1988 came into operation.
Section 67, sub-s.(1) of the Consequential Provisions Act provides:
"A proceeding under section 119 of the previous Act that, before the commencement, had not been completed shall, after the commencement, be dealt with, in spite of Division 2 of this Part, as if the previous Act had not been repealed."
The previous Act referred to is of course the Conciliation and Arbitration Act 1904. It was by virtue of that provision that the proceedings were able to be continued before the Chief Industrial Magistrate. On 22nd March 1989, the Chief Industrial Magistrate made orders in the proceedings; he imposed a penalty in each of them and also ordered the payment of moneys pursuant to s.119(3) of the Conciliation and Arbitration Act 1904.
Notice of appeal from those orders was filed in the New South Wales District Registry of this Court on 7th April 1989. By notice of motion filed on 3rd May 1989, the party named as respondent to the appeal seeks orders that the appeal be struck out or, in the alternative, that it be heard and determined by a Full Court.
By s. 113(1) of the Conciliation and Arbitration Act 1904 the Court had jurisdiction to hear and determine an appeal from a judgment, decree, order or sentence of a State court, not being a Supreme Court, made given or pronounced in a matter arising under that Act. The phrase "the Court" was defined by s.4(1) of that Act as meaning the Australian Industrial Court. However, by s.118A of that Act, the jurisdiction and powers which were expressed by that Act to be vested in or exercisable by the Australian Industrial Court became vested in and exercisable by this Court in accordance with the Federal Court of Australia Act 1976. References in the Conciliation and Arbitration Act 1904 (other than in certain sections not material to this proceeding), in relation to, and to matters arising out of, that jurisdiction or those powers, were to be read as references to the Federal Court of Australia.
It is also necessary to add that by s.118A(4B) of the Conciliation and Arbitration Act 1904, the jurisdiction under s.113 was required to be exercised by a Full Court in the Industrial Division of this Court. Reference might also be made to s.24 of the Federal Court of Australia Act 1976 and particularly to paragraph (c) of sub-s. (1) of that section, under which this Court has jurisdiction to hear appeals from courts of the States other than Supreme Courts, but only where jurisdiction is given by any other Act.
The Industrial Relations Act 1988 contains a provision equivalent to the former s.119. That provision is found in s.178 of the Industrial Relations Act 1988. Section 56 of the Industrial Relations Act 1988 provides for appeals from, among other things, State courts other than Supreme Courts. It should be noted that the provision for such appeals found in s.56(1) of the Industrial Relations Act 1988 is restricted to an appeal in a matter "arising under this Act". There is no doubt that, in the present case, the matters that were heard by the Chief Industrial Magistrate could not be said to arise under the Industrial Relations Act 1988. They arose under the Conciliation and Arbitration Act 1904 and, as I have said, were preserved by the Consequential Provisions Act. It is also worth noting that an appeal under s.56 of the Industrial Relations Act 1988 is now to be heard by a single judge of this Court.
The Consequential Provisions Act contains specific provisions for several types of appeals in cases which were commenced under the former Act and continued under the Consequential Provisions Act. There is, for instance, in s.10 a specific provision for an appeal from a judgment of a single judge of this Court, given in a proceeding which is continued by virtue of s.9 of the Consequential Provisions Act. Section 24 of the Consequential Provisions Act makes specific provision for appeals to a Full Bench of the Industrial Relations Commission and s.28 makes specific provision for appeals from acts or decisions of the Industrial Registrar under the Conciliation and Arbitration Act 1904. Section 21 of the Consequential Provisions Act provides for the law to be applied in appeals, but only in appeals that are instituted or dealt with under the Consequential Provisions Act.
The Consequential Provisions Act does not contain a specific provision dealing with appeals from State courts. Some attempt was made in the present case to argue that s.67(1) contains such a provision, when it requires that a proceeding under s.119 of the Conciliation and Arbitration Act 1904 shall, after the commencement, be dealt with as if the previous Act had not been repealed. The difficulty about attempting to apply those words to an appeal is that an appeal is a new proceeding and not one which has been commenced under s.119 of the Conciliation and Arbitration Act 1904.
The absence of any specific provision in the Consequential Provisions Act to cover the situation of this appeal leads inevitably to a consideration of s.8 of the Acts Interpretation Act 1901. The relevant parts of that section are as follows:
"Where an Act repeals in the whole or in part a former Act, then unless the contrary intention appears the repeal shall not -
(a) revive anything not in force or existing at the time at which the repeal takes effect; or
(b) affect the previous operation of any Act so repealed, or anything duly done or suffered under any Act so repealed; or
(c) affect any right privilege obligation or liability acquired accrued or incurred under any Act so repealed; or
(d) affect any penalty forfeiture or punishment incurred in respect of any offence committed against any Act so repealed; or
(e) affect any investigation legal proceeding or remedy in respect of any such right privilege obligation liability penalty forfeiture or punishment as aforesaid, and any such investigation legal proceeding or remedy may be instituted continued or enforced, and any such penalty forfeiture or punishment may be imposed, as if the repealing Act had not been passed."
The first major question which arises under s.8 of the Acts Interpretation Act 1901 is whether a right to appeal is a right which is acquired or has accrued before the making of a decision from which an appeal might be brought.
In the Colonial Sugar Refining Co. Ltd. v. Irving (1905) AC 369, the Judicial Committee of the Privy Council dealt with a question of this very nature. In that case, whilst a proceeding was pending in the Supreme Court of Queensland from which an appeal to the Judicial Committee of the Privy Council then lay, an amending statute was passed, substituting for an appeal to the Privy Council an appeal to the High Court of Australia. The question which arose in the Privy Council was whether the pre-existing right to appeal continued to exist in respect of the pending case, notwithstanding that no decision had been reached in the pending case before the legislation came into operation and therefore no actual appeal had been lodged. At p 372 Lord McNaghten, delivering the opinion of the Judicial Committee, said:
"As regards the general principles applicable to the case there was no controversy. On the one hand, it was not disputed that if the matter in question be a matter of procedure only, the petition is well founded. On the other hand, if it be more than a matter of procedure, if it touches a right in existence at the passing of the Act, it was conceded that, in accordance with a long line of authorities extending from the time of Lord Coke to the present day, the appellants would be entitled to succeed. The Judiciary Act is not retrospective by express enactment or by necessary intendment. And therefore the only question is, Was the appeal to His Majesty in Council a right vested in the appellants at the date of the passing of the Act, or was it a mere matter of procedure? It seems to their Lordships that the question does not admit of doubt. To deprive a suitor in a pending action of an appeal to a superior tribunal which belonged to him as of right is a very different thing from regulating procedure. In principle, their Lordships see no difference between abolishing an appeal altogether and transferring the appeal to a new tribunal. In either case there is an interference with existing rights contrary to the well-known general principle that statutes are not to be held to act retrospectively unless a clear intention to that effect is manifested."
It follows from that authority, and no contrary authority was cited, that a right to appeal is acquired by or has accrued to a party to a pending proceeding from which an appeal may be brought once a decision is given.
The next major question is whether the Consequential Provisions Act discloses a contrary intention, so as to oust the effect of s.8 of the Acts Interpretation Act 1901. The Consequential Provisions Act does not contain an express intention to oust the effect of s.8 of the Acts Interpretation Act 1901. Appeals from State courts are simply not mentioned in it. But a contrary intention need not be express. It is necessary to construe repealing legislation to ascertain the intention which it discloses. This must be done by looking at the whole of the repealing Act and especially at any transitional provisions to be found in it. See Yule v. Junek (1978) 139 CLR p 1 especially at pp 5, 9-10, 18 and 26.
If transitional provisions are construed as exhaustive, they will disclose a contrary intention, even though the right which would otherwise be preserved by s. 8 of the Acts Interpretation Act 1901 is not mentioned specifically. See G F Heublein and Bro. Inc. v. Continental Liqueurs Pty. Ltd. (1962) 109 CLR 153 at pp 159-60 and 161-162. If the transitional provisions are not construed as exhaustive, an accrued right not mentioned will not be regarded as destroyed. See Donovan v. Repatriation Commission (1985) 58 ALR 634 at pp 639-640.
However the contrary intention is to be ascertained, it must be clear that there is a presumption that a statute is not intended to take away existing rights. See Maxwell v. Murphy (1957) 96 CLR 261.
The Consequential Provisions Act does not contain transitional provisions of a general or all-embracing nature; rather, it deals with the effects of repeal of the Conciliation and Arbitration Act 1904 in a piecemeal fashion. No doubt the Parliament hoped to cover all situations, but that is a different intention from an intention that any right not mentioned specifically is to be abolished, despite s. 8 of the Acts Interpretation Act 1901.
In my view, the Consequential Provisions Act provisions are not exhaustive. It follows that no contrary intention has been shown for the purposes of s.8 of the Acts Interpretation Act 1901. The right of appeal under s. 113 of the Conciliation and Arbitration Act 1904 is preserved in respect of the orders of the Chief Industrial Magistrate. The appeal is therefore competent. Because it is an appeal under s. 113 of the Conciliation and Arbitration Act 1904, it is an appeal to a Full Court. The nature of the tribunal is also preserved as part of the right, in line with what the Privy Council said in the Colonial Sugar Refining case. There is therefore no need for an order to the effect that the appeal be heard by a Full Court.
For those reasons, I order that the motions the subject of the notice of motion filed on 3rd May 1989 are dismissed.
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