Wood, Colin Keith (on behalf of the Industrial Relations Bureau) v Lord Mayor, Councillors and Citizens of the City of Melbourne

[1979] FCA 81

WOOD (ON BEHALF OF THE INDUSTRIAL RELATIONS BUREAU) v. LORD MAYOR, COUNCILLORS
AND CITIZENS OF THE CITY OF MELBOURNE (1979) 41 FLR 22
Practice - Criminal Law - Conciliation and Arbitration

COURT

FEDERAL COURT OF AUSTRALIA

INDUSTRIAL DIVISION
J.B. Sweeney(1), Evatt(2) and Northrop(3) JJ.

CATCHWORDS

Practice - Procedure - Appeal - Purported appeal from dismissal of information alleging criminal offence - Federal Court of Australia - Appeal incompetent - Federal Court of Australia Act 1976 (Cth.), ss. 24 (1) (a), 33.

Criminal Law - Purported appeal from dismissal of information alleging criminal offence - Appeal incompetent - Federal Court of Australia Act 1976 (Cth.), ss. 24 (1) (a), 33.

Conciliation and Arbitration - Information alleging criminal offence - Dismissal - Purported appeal - Federal Court of Australia - Appeal incompetent - Conciliation and Arbitration Act 1904 (Cth.), ss. 5, 118B - Federal Court of Australia Act 1974 (Cth.), ss. 24 (1) (a), 33.

HEADNOTE

The Federal Court of Australia Act 1976 provides by s. 24 (1):

"Subject to this section and to any other Act, whether passed before or after

the commencement of this Act (including an Act by virtue of which any

judgments referred to in this section are made final and conclusive or not subject to appeal), the Court has jurisdiction to hear and determine -

(a) appeals from judgments of the Court constituted by a single Judge." Section 33 provides by sub-s. (3): "Except as provided by the succeeding provisions of this section, an appeal shall not be brought from a judgment of a

Full Court of the Court unless the High Court gives special leave to

appeal."

The Conciliation and Arbitration Act 1904 provides by s. 118B (1):

"Notwithstanding anything contained in the Federal Court of Australia Act 1976 -

(b) Subject to sub-section (2), an appeal lies to the High Court from a judgment, order or sentence under this Act of a Full Court of the Federal Court

of Australia if the High Court grants leave to appeal, but not otherwise."

An informant in criminal proceedings under s. 5 of the Conciliation and Arbitration Act 1904 sought to appeal to a Full Court of the Federal Court of Australia from an order of a single judge of the court dismissing the information after a hearing of the summons on the merits.

Held, per curiam, (following previous decisions of the Full Court of the Federal Court of Australia deciding that an appeal against a dismissal of a summons alleging a criminal offence where there had been a hearing on the merits was incompetent), the appeal should be struck out as incompetent.

Thompson v. Mastertouch T.V. Service Pty. Ltd. (No. 3) (1978), 38 FLR 397, followed.

Quaere whether the Federal Court would refuse to consider whether a previous decision was wrongly decided in cases where no appeal lay to the High Court from an order of the Full Court of the Federal Court of Australia.

HEARING

Melbourne, 1979, August 6. #DATE 6:8:1979

APPEAL.

W.F. Ormiston Q.C. and A.R. Castan, for the appellant.

K.D. Marks Q.C. and C.N. Jessup, for the respondent.

Solicitor for the appellant: A. C. C. Menzies (Acting Commonwealth Crown Solicitor).

Solicitors for the respondent: Mallesons.

MAUREEN HICKEY

JUDGE1

August 6.

The following judgments were read.

J.B. SWEENEY J. The court notes that these matters are appeals against orders by his Honour Smithers J. in which he dismissed after a hearing on the merits summonses issued by the present appellant against the respondent. The matters were clearly in our view criminal matters. Objection is now taken to the competency of the appeal. As has been said there have been recent decisions of this Court on that question of law. The court has held in Thompson v. Mastertouch T.V. Service Pty. Ltd. (No. 3) (1978) 38 FLR 397 and again in Burgess v. John Connell-Mott, Hay and Anderson Pty. Ltd. (1979) 39 FLR 444 , that an appeal against dismissal of a summons alleging a criminal offence where there has been a hearing on the merits is incompetent. (at p23)

1. We feel as a court that we should follow those previous decisions. A further objection was taken as to the time of service of the appeal documents but we note that counsel for the respondent has made plain that that point is not now pressed. In the circumstances, Mr. Ormiston for the appellant has taken in our view a proper course of agreeing that it would be the appropriate course for this Court to follow the previous decisions. His client's attitude is that the appeal is competent and we are informed that further proceedings are contemplated. In the circumstances the only order we propose to make is that the appeals be struck out as incompetent. (at p23)

JUDGE2

EVATT J. I concur that the appeals should be struck out and have nothing further to add. (at p23)

JUDGE3

NORTHROP J. I likewise concur that the appeals should be struck out for want of competency and concur in the remarks made by the presiding judge, but there are some comments of a general nature that I desire to add to what has already been said. (at p23)

1. On 9th July, 1979, the Federal Court of Australia constituted by a single judge, in the exercise of jurisdiction conferred by s. 19 of the Federal Court of Australia Act 1976, as amended, and by s. 118A of the Conciliation and Arbitration Act 1904, as amended, made orders dismissing three informations brought by the appellant against the respondent alleging breaches of s. 5 of the Conciliation and Arbitration Act (see s. 118D and s. 191 of the Conciliation and Arbitration Act). The appellant, relying upon s. 24 (1) (a) of the Federal Court of Australia Act, seeks to appeal from the orders so made. The respondent has given notice of objection to competency of the appeals and relies upon Thompson v. Mastertouch T.V. Service Pty. Ltd. (No. 3) (1978) 38 FLR 397 a decision of a Full Court of the Federal Court of Australia. The substance of that decision was that s. 24 (1) (a) of the Federal Court of Australia Act does not confer jurisdiction upon the Federal Court to hear and determine an appeal from a judgment, order or decree which constituted an acquittal on a criminal charge after a hearing on the merits. In the present case the orders made constitute acquittals on criminal charges after a hearing on the merits. (at p24)

2. The doctrine of precedent which has application to the Federal Court of Australia is stated in Viro v. The Queen (1978) 52 ALJR 418 and I quote the following passage from the judgment of Stephen J.: "The first duty of a court is to administer justice according to law. However in the case of an inferior court operating within a system where the doctrine of precedent applies, the existence of authority binding upon it determines for it what it must understand to be the law. It must accept the law to be as that precedent authority has declared it to be, whatever may be its own inclinations in the matter. The sanction implicit in the doctrine of precedent is simple and effective; if an inferior court fails to observe the doctrine the superior court will correct its decision on appeal. Thus the existence of an appeal is inherent in and essential to the doctrine.
   
   

"The position of a final court of appeal, its decisions subject to

no appeal to a court superior to it, is otherwise. It too must

administer justice according to law; as Isaacs J. said in

Australian Agricultural Co. v. Federated Engine-Drivers' and

Firemen's Association of Australasia

(1913) 17 CLR 261, at p 278

, 'our sworn loyalty is to

the law itself. But it may neither surrender, nor be relieved of, its

responsibility to find what is the law by an involuntary adoption

of the decisions of any other court. It may impose upon itself a

rule that it will accept as absolute the binding force of its own

past decisions, a course which, for the several reasons referred to

by Dixon J. in Attorney-General (N.S.W.) v. Perpetual Trustee Co.

(Ltd.)

(1952) 85 CLR 237, at p 244

, the High Court has not done. Subject only to that

possibility, it must otherwise wholly accept the responsibility of

itself declaring what it regards to be the law, even if the views of

other tribunals, however respected, are to a contrary effect. Their

views will, of course, be of great force in the formation of its own

conclusion but at the end of the day what must prevail must be

its own conclusion

(1978) 52 ALJR, at p 4339

". (at p24)

1. The application of the doctrine of precedent in its application between decisions of different Full Courts of the Federal Court of Australia has yet to be authoritatively stated, but in this regard very helpful opinions have been expressed by the English Court of Appeal in Young v. Bristol Aeroplane Company Ltd. (1944) KB 718 . (at p25)

2. In the present case counsel for the appellant has stated that this would be an appropriate case to question the decision in Mastertouch's case (1978) 38 FLR 397 , but that it would not be appropriate to make more submissions to this Court. Where, as in this case, an appeal lies to the High Court from a judgment or order made under the Conciliation and Arbitration Act by a Full Court of the Federal Court of Australia, either if the High Court grants leave to appeal under s. 118B of that Act, or if the High Court gives special leave to appeal under s. 33 of the Federal Court of Australia Act, I am not prepared to consider whether Master touch's case was wrongly decided. This approach is similar to that adopted by me in Henderson v. Pioneer Homes Pty. Ltd. (1979) 38 FLR 460 , a decision of a Full Court of the Federal Court of Australia where, as a member of a Full Court, I applied Mastertouch's case (1978) 38 FLR 397 although pointing out that it was unfortunate that Cockle v. Isaksen (1957) 99 CLR 155 , was not mentioned in the reasons for judgment in Mastertouch's case and made a reference to English legislation in a materially different form to s. 24 of the Federal Court of Australia Act and with respect to which the stated principle of common law was applied, see Benson v. Northern Ireland Road Transport Board (1942) AC 520 . This approach is similar to that adopted by a Full Court of the Federal Court of Australia in Thompson v. Riley McKay Pty. Ltd. (1979) 40 FLR 70 and by a Full Court of the Federal Court of Australia in Burgess v. John Connell-Mott, Hay and Anderson Pty. Ltd. (1979) 39 FLR 444 . In each of those three cases an appeal lay to the High Court. (at p25)

3. In the absence of any authoritative decision given by the High Court on this matter, it is my opinion that in cases where an appeal can be taken to the High Court, a Full Court of the Federal Court of Australia should apply the decision in Mastertouch's case (1978) 38 FLR 397 . This does not mean that in other cases where no appeal can be taken to the High Court from a judgment or order of a Full Court of the Federal Court of Australia that Full Court will, of necessity, refuse to consider whether Mastertouch's case was wrongly decided. Both the High Court of Australia and the House of Lords in England, being final courts of appeal, will, in appropriate cases consider whether an earlier decision has been wrongly decided. (at p25)

4. An analogous type of problem was referred to over 100 years ago by Pollock C.B. in Taylor v. Burgess: "When a case can be taken to a Court of error, the decision of one Court of co-ordinate jurisdiction ought to be binding on the others. When, however, there is no means of appealing to a Court of error, there is not the same obligation to follow the decision of another Court; and accordingly we sometimes find Courts of co-ordinate jurisdiction differing from each other" (1859) 5 H & N 1, at p 5; 157 ER 1076, at p 1078 . (at p26)

5. I refer also to what was said by Stephen J. in Viro's case (1978) 52 ALJR, at p 433 . (at p26)

6. Since in this case the appellant, if so advised, may appeal to the High Court from the order this Court proposes to make I agree in the order being made. (at p26)

7. Finally, I would note that the respondent does not propose to proceed with the grounds of objection to competency in so far as they relate to the failure to serve the notice of appeal within time. (at p26)

8. I concur in the order suggested by the presiding judge. (at p26)

ORDER

Order accordingly.