Rowell, Anthony Roland v Child, Douglas Braddon - [1983] FCA 129

Re: ANTHONY RONALD ROWELL
And: DOUGLAS BRADDON CHILD (1983) 77 FLR 87
No. V18 and 19 of 1983
Industrial Law
4 IR 315

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
INDUSTRIAL DIVISION
Northrop(1), Keely(2) and Fitzgerald(2) JJ.

CATCHWORDS

Industrial law - conciliation and arbitration - prosecution for an offence under Conciliation and Arbitration Act - whether jurisdiction of Federal Court exclusive of that of State courts - appeal from State courts to Federal Court - costs.

Conciliation and Arbitration Act 1904 ss.5, 113, 118A, 122, 138, 147, 171, 191, 197A.

Judiciary Act 1903 ss.39, 68.

Acts Interpretation Act 1901 ss.26, 41, 42, 43, 44.

Industrial Law - Conciliation and arbitration - Prosecution for an offence under Conciliation and Arbitration Act - Conviction by Magistrates' Court - Whether jurisdiction of Federal Court exclusive - Whether proceeding for a penalty - Invalid order as to costs - Acts Interpretation Act 1901 (Cth), ss 26, 41, 42, 43, 44 - Judiciary Act 1903 (Cth), ss 39, 68 - Conciliation and Arbitration Act 1904 (Cth), ss 5, 113, 118A, 127, 138, 147, 171, 191, 197A.

HEADNOTE

The appellant had been charged by information in the Magistrates' Court with a number of contraventions of s 171of the Conciliation and Arbitration Act 1904 which prohibits certain conduct in connection with an election for an office in an organisation. At the foot of s 171 the words appear "Penalty: Five hundred dollars or imprisonment for six months, or both". The respondent was convicted by the Magistrates' Court, fined and ordered to pay costs. On appeal the appellant submitted that the Magistrates' Court had lacked jurisdiction to hear the charges and that the same were within the exclusive jurisdiction of the Federal Court.

Held: (1) The Magistrates' Court had possessed jurisdiction to hear the charges as:

(a) Section 191 of the Conciliation and Arbitration Act 1904 did not displace the jurisdiction given to the Magistrates' Court by s 39(2) of the Judiciary Act 1903.

Cockle v Isaksen (1957) 99 CLR 155; Adams v Cleeve (1935) 53 CLR 185; R v Ward (1978) 140 CLR 584, 588-589, applied.

(b) Section 147 of the Conciliation and Arbitration Act 1904 had no application because the appellant had not been proceeded against in the Magistrates' Court for a pecuniary penalty.

Per Northrop J - The court should not depart from the long-established practice that prosecutions for criminal offences under the Conciliation and Arbitration Act 1904 whether a pecuniary penalty only or a pecuniary penalty or imprisonment or both are set out at the foot of the section, and irrespective of whether the offences required the accused to be an organisation or a member thereof may be brought in courts of summary jurisdiction although in an appropriate case that practice might be reconsidered.

(2) The order of the Magistrates' Court should be varied by deleting the order for costs as s 197A of the Conciliation and Arbitration Act 1904 prevented such an order.

HEARING

Melbourne, 1983, July…

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: [1983] FCA 129
Decision Date: 05 JULY 1983

CaseChat Overview and Summary

The case of Rowell, Anthony Roland v Child, Douglas Braddon involved an appeal against convictions for breaches of s 171 of the Conciliation and Arbitration Act 1904 (Cth). The appellant, Anthony Ronald Rowell, was convicted by the Magistrates' Court at Melbourne of two offences against sub-section 171(1)(b) of the Act and fined $125, with $70 costs in default six days. The appeal was dismissed by the County Court at Melbourne which confirmed the convictions and sentences. The appeal was then brought to the Federal Court. The sole issue raised by these appeals was whether the Magistrates' Court had jurisdiction to convict and fine the appellant. The appellant argued that the Magistrates' Court lacked jurisdiction and that the same were within the exclusive jurisdiction of the Federal Court. The Court held that the Magistrates' Court had possessed jurisdiction to hear the charges as Section 191 of the Conciliation and Arbitration Act 1904 did not displace the jurisdiction given to the Magistrates' Court by s 39(2) of the Judiciary Act 1903. The Court also held that Section 147 of the Conciliation and Arbitration Act 1904 had no application because the appellant had not been proceeded against in the Magistrates' Court for a pecuniary penalty. However, the order of the Magistrates' Court should be varied by deleting the order for costs as s 197A of the Conciliation and Arbitration Act 1904 prevented such an order. The appeal from the judgment of the County Court was allowed and the order made therein was set aside. The appeal from the order of the Magistrates' Court was dismissed but varied by setting aside that part of the order which required the appellant to pay $70 costs.

Orders