Pangallo v Actew Corporation Limited (Acn 069 381 960) [2002] ACTSC 15 (21 March 2002)

Last Updated: 12 April 2002

John Pangallo v ACTEW Corporation Limited (ACN 069 381 960)

[2002] ACTSC 15 (21 March 2002)

CATCHWORDS

ADMINISTRATIVE LAW - Workplace Relations Act 1996 (Cth) - disciplinary proceedings - appeal committee - application to Supreme Court to declare findings null and void.

COURTS - interpretation of industrial agreement - whether Workplace Relations Act excludes jurisdiction of Supreme Court.

Supreme Court Rules, O 2 r 28, O 29 r 2 and r 5, O 57 r 2

Workplace Relations Act 1996 (Cth), ss 4, 177A, 178, 412, 413, 413A, 414, 415, 416

Supreme Court Act 1933, s 20

Judiciary Act 1903 (Cth), s 39

Federal Court of Australia Act 1976, s 21

Seat of Government Supreme Court Act 1933

Conciliation and Arbitration Act 1904-1934, s 38

Constitution, ch III

Spratt v Hermes [1965] HCA 66; (1965) 114 CLR 226

Eastman v The Queen (2000) 203 CLR 1, [2000] HCA 29

In Re The Judiciary Act 1903-1920; In Re The Navigation Act [1921] HCA 20; (1912-1920) 29 CLR 257

Egan v Willis (1998) 195 CLR 424, [1998] HCA 71, 158 ALR 527

Josephson v Walker [1914] HCA 68; (1914) 18 CLR 691

Byrne v Australian Airlines Limited [1995] HCA 24; (1995) 185 CLR 410

Wattyl Ltd v Australian Liquor, Hospitality and Miscellaneous Workers Union (1995) 134 ALR 203

Australasian Meat Industry Employees' Union v Frugalis Pty Ltd 14 FCR 535

Construction, Forestry, Mining and Energy Union v Gordonstone Coal Management Pty Ltd (1997) 149 ALR 296

Gregory v Phillip Morris Ltd (1988) 80 ALR 455

R v Donyadideh [1993] ACTSC 56; (1993) 115 ACTR 1, (1993) 114 FLR 43

Felton v Mulligan [1971] HCA 39; (1971) 124 CLR 367, 411-412

Williams v Hursey [1959] HCA 51; (1959) 103 CLR 30

No SC 634 of 2000

Judge: Miles CJ

Supreme Court of the ACT

Date: 21 March 2002

IN THE SUPREME COURT OF THE )

) No SC 634 of 2000

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: JOHN PANGALLO

Plaintiff

AND: ACTEW CORPORATION LIMITED (ACN 069 381 960)

Defendant

ORDER

Judge: Miles CJ

Date: 21 March 2002

Place: Canberra

THE COURT ORDERS THAT:

1. The questions posed for the determination of the Court be answered as follows:

(a) Yes.

(b) Not answered.

1. This is an application, presumably under O 29 of the Supreme Court Rules, for a decision to be made on a preliminary point of law. Order 29 makes provision for proceedings in lieu of demurrer. Order 29 r 2 provides as follows:

"Any party may raise by his or her pleading any point of law, and any point so raised shall be disposed of by the Judge at or after the trial, but by consent of the parties, or by order of the Court, on the application of either party, the same may be set down for hearing and disposed of at any time before the trial."

2. Order 29 r 5 is also relevant. It provides:

"No action or proceeding shall be open to objection on the ground that a merely declaratory judgment or order is sought thereby, and the Court may make binding declarations of right, whether any consequential relief is, or could be, claimed, or not.

3. Also relevant is O 57, r 2 of which provides:

"Where any person claims any legal or equitable right, and the determination of the question whether he is entitled to that right depends upon a question of construction of any Act, Ordinance or regulation in force in the Territory, that person may apply by originating application for the determination of that question and for a declaration as to the right claimed."

4. The present application is brought by consent of the parties, apparently relying on a question or questions of law that have been raised by the statement of claim accompanying the originating application filed on 3 October 2000, to which I will later refer.

5. The applicant/plaintiff is an employee of the respondent/defendant. There is and was at all material times an agreement called the "ACTEW Corporation Limited Enterprise Agreement 1999" (the Enterprise Agreement), certified under the provisions of the Workplace Relations Act 1996 (Cth), (the Workplace Relations Act) relating to the terms and conditions of the employees of the respondent, including the applicant. After preliminary procedural steps were taken, the respondent, on 23 March 2000, conducted or purported to conduct a disciplinary hearing within the terms of the Enterprise Agreement into alleged misconduct on the part of the applicant.

6. On the following day, 24 March 2000, the respondent determined that the applicant was guilty of misconduct and demoted him with immediate effect from one job classification to another. On 4 April 2000, the applicant lodged an appeal against the findings in the disciplinary hearing.

7. On 26 June 2000, an Appeal Committee constituted under cl 11.5.3 of the Enterprise Agreement heard the appeal, recommended to the respondent that the appeal be dismissed and confirmed the findings of the respondent in the disciplinary hearing.

8. The applicant claimed in the statement accompanying his originating application of 3 October 2000 that the findings in the disciplinary hearing were and the confirmation of that finding in the appeal was unlawful because they were not made in accordance with the Enterprise Agreement or in accordance with the rules of natural justice. Accordingly, the applicant sought declarations that the findings are null and void and ineffective.

9. No defence has been filed.

10. By notice of motion dated 23 October 2000, the respondent's solicitors sought a variety of orders, some of which, if made, would have brought the proceedings to a halt one way or another. On 27 October 2000, the Master made consent orders relating to particulars of the applicant's claim and stood over generally the applications for other orders.

11. In response to a notice under O 2 r 28 given on 17 April 2001 that the action would be placed in the list of inactive cases unless the requirements of that rule were met, the respondent on 10 May 2001 filed the notice of motion (curiously dated 30 May 2001) posing the two questions now before the Court. Directions for the hearing were given and written submissions lodged accordingly. The questions posed are as follows:

"(a) Does the Court have jurisdiction to make declarations of right in relation to the Enterprise Agreement as defined in paragraph 3 of the Statement of Claim, that Enterprise Agreement being a certified agreement within the meaning of the Workplace Relations Act 1996?

(b) Do the rules of natural justice apply to the demotion of the plaintiff as alleged in paragraph 14 of the Statement of Claim and/or the confirmation of that demotion as alleged in paragraph 21 of the Statement of Claim?"

12. It was agreed that the respondent has carriage of the application now before the Court.

13. The following propositions appear to be common ground between the parties. The "unlimited" jurisdiction of the Supreme Court of the Australian Capital Territory (see s 20 of the Supreme Court Act 1933), like that of any court in Australia, is subject to the nature of the federal constitutional structure created by the Australian Constitution. The Workplace Relations Act of the Commonwealth Parliament establishes a system of certified agreements and awards. Part VIII of the Workplace Relations Act expressly confers jurisdiction to determine whether there has been a breach of an award or certified agreement upon certain courts, namely the Federal Court of Australia (ss 4 and 178) and, in certain instances, a District, County, Local Court or Magistrates' court (s 177A). The conferral on a District, County, Local Court or Magistrates' court of a State is the conferral of federal jurisdiction under ch III of the Constitution and s 39(2) of the Judiciary Act 1903 (Cth). If Commonwealth legislation gives like jurisdiction to the ACT Magistrates Court, it would appear to do so under s 122 of the Constitution and the jurisdiction is not to be regarded as "federal": see Spratt v Hermes [1965] HCA 66; (1965) 114 CLR 226, Eastman v The Queen (2000) 203 CLR 1, [2000] HCA 29. The Workplace Relations Act does not expressly confer jurisdiction to determine such questions upon State or Territory Supreme Courts.

14. Among the relevant provisions of the Workplace Relations Act are s 412 to s 416 which are contained within Pt XIV Div 1. Those sections are concerned with the original jurisdiction of the Federal Court as that jurisdiction relates to the Workplace Relations Act.

15. Section 412(1) provides as follows:

"(1) The Court has jurisdiction with respect to matters arising under this Act in relation to which:

(a) applications may be made to it under this Act; or

(b) actions may be brought in it under this Act; or

(c) questions may be referred to it under this Act; or

(d) appeals lie to it under section 422; or

(e) penalties may be sued for and recovered under this Act; or

(f) prosecutions may be instituted for offences against this Act."

16. Section 413 provides:

"Interpretation of awards

(1) The Court may give an interpretation of an award on application by:

(a) the Minister; or

(b) an organisation or person bound by the award.

(2) The decision of the Court is final and conclusive and is binding on the organisations and persons bound by the award who have been given an opportunity of being heard by the Court.

17. Section 413A provides as follows:

"(1) The Court may give an interpretation of a certified agreement on application by:

(a) the Minister; or

(b) an organisation or person bound by the certified agreement; or

(c) an employee whose employment is subject to the agreement.

(2) The decision of the Court is final and conclusive and is binding on:

(a) the organisations and persons bound by the agreement; and

(b) the employees whose employment is subject to the agreement;

who have been given an opportunity of being heard by the Court."

18. Section 414 provides for the exclusive jurisdiction of the Federal Court in the following terms:

"(1) Subject to this Act, the jurisdiction of the Court in relation to an act or omission for which an organisation or member of an organisation is liable to be sued, or to be proceeded against for a pecuniary penalty, is exclusive of the jurisdiction of any other court created by the Parliament or any other court of a State or Territory.

(2) The jurisdiction of the Court in relation to matters arising under section 208, 209 or 261 or Division 5 of Part IX is exclusive of the jurisdiction, or any similar jurisdiction, of a State industrial authority.

(3) The jurisdiction of the Court under section 422 is exclusive of the jurisdiction of any court of a State or Territory to hear and determine an appeal from a judgment from which an appeal may be brought to the Court under that section."

19. Section 415 provides for the jurisdiction of the Federal Court to be exercised by a Full Court in relation to certain "matters".

20. Section 416 provides that a single Judge exercising the jurisdiction of the Court may refer a question of law for the opinion of the Full Court and may refer the matter to a Full Court to be heard and determined.

21. Whether s 413A confers a power independently of the jurisdiction conferred by s 412 is not clear. To put it in another way, it is not clear whether s 413 enables the Federal Court to "give an interpretation of a certified agreement" unless there is before the Court one of the six types of "matters" within the meaning of s 412, and presumably within the meaning of the term "matter" as it has been used and developed in Australian constitutional law: see In Re The Judiciary Act 1903-1920; In Re The Navigation Act (1912-1920) [1921] HCA 20; 29 CLR 257. The latter appears to me to be an important threshold question. As Hayne J put it during argument in a recent application for special leave to appeal to the High Court, "First catch your matter and then decide whether you have jurisdiction to decide your matter".

22. In contrast to s 413 of the Workplace Relations Act, s 21 of the Federal Court of Australia Act 1976 empowers the Federal Court to make "binding declarations of right". It does not purport to confer jurisdiction. Its effect on the parties to the litigation may be similar to that of s 413A, except that s 413A makes the decision final and binding on a wider range of persons than the parties.

23. It may be accepted readily enough that the power or jurisdiction, whichever it be, which the Federal Court may exercise pursuant to s 413A of the Workplace Relations Act is not a power or jurisdiction conferred on the Supreme Court of the ACT by virtue of anything contained in that section or elsewhere in Part XIV. It may also be accepted that the jurisdiction of the Supreme Court of the ACT is not confined to the determination of "matters" in the same way as the jurisdiction of federal courts exercising judicial power under the constraints of ch  III of the Constitution. Nevertheless, the Supreme Court was not established in order to and does not give legal advice or express opinions on the state of the law. The greatly expanded circumstances in which judicature system courts have granted declaratory relief in recent years does not alter the fundamental nature of the judicial power or function. Order 29 r 5 of the Supreme Court Rules should not be allowed to obscure that fundamental proposition.

24. In Egan v Willis (1998) 195 CLR 424, [1998] HCA 71, 158 ALR 527 at 529-530, Gaudron, Gummow and Hayne JJ in a joint judgment said:

"We emphasize that, even if an application [to the Supreme Court of New South Wales] ... would have been justiciable (as to which we express no concluded opinion) at least as a matter of discretion, a suit constituted solely to obtain such relief ordinarily ought not be entertained ...Declaratory relief should be directed to the determination of legal controversies concerning rights liabilities and interests of a kind which are protected or enforced in the courts."

25. Thus it was submitted on behalf of the respondent that s 413A was intended to give to the Federal Court exclusive power or jurisdiction in the interpretation of certified agreements, or at least in "matters" in relation to which an interpretation of a certified agreement was relevant and the subject of an application under the section. Alternatively, it was submitted on behalf of the respondent, that the declarations sought by the applicant raise nothing more than academic questions of law without the need for and outside the context of any determination of a controversy concerning rights, liabilities and interests of a kind that are protected and enforced in the courts.

26. The further submission was put for the respondent that the Workplace Relations Act codifies the means by which an award or certified agreement may be enforced. Reliance was placed on two decisions of the High Court. The first, Josephson v Walker [1914] HCA 68; (1914) 18 CLR 691 contains the judgment of Isaacs J and the following passages at 700-702:

"...The right claimed is a new right. It is a right which was unknown before to the law: a right to receive from an employer more than was bargained for. ...If the right had been simply created and no specific method of enforcement had been pointed out, the existing law itself would have provided a method through any Court already invested with jurisdiction to determine a claim of that nature.... But a specific method having been created, it becomes a question whether that method is exclusive or not. That depends, not upon any rigid rule, but upon the intention of Parliament appearing from the Act.

Primâ facie, where the same Statute creates a new right and specifies the remedy, that remedy is exclusive. ...

... If the fair reading of the Statute leads to the view that Parliament intended to create the right absolutely and independently of any specific form of remedy, the respondent's action is well brought. If on the other hand the proper construction is that the right and the remedy are inseparable, that they are combined and essential parts of a new scheme of public policy, then the action is wrongly conceived and the demurrer is right.

...Parliament was proceeding to deal in Part VII in the fashion of a code with breaches of awards, and in sec. 49 with the subject of payment of wages awarded including the provisions for an ultimate appellate tribunal specially fitted to work out the provisions of the Act, and the awards made under it."

27. Josephson v Walker was concerned with the provisions of a New South Wales statute concerning enforcement of wages rates fixed by award under the same legislation. It was followed in Byrne v Australian Airlines Limited [1995] HCA 24; (1995) 185 CLR 410. From that decision and a number of decisions in the Federal Court including Wattyl Ltd v Australian Liquor, Hospitality and Miscellaneous Workers Union (1995) 134 ALR 203, (Madgwick J); Australasian Meat Industry Employees' Union v Frugalis Pty Ltd 14 FCR 535 (Pincus J); Construction, Forestry, Mining and Energy Union v Gordonstone Coal Management Pty Ltd (1997) 149 ALR 296 (Burchett J) and Gregory v Phillip Morris Ltd (1988) 80 ALR 455, the general proposition has been derived, accepted and repeated that the Federal Court will not use its general power to circumvent the code prescribed by the Workplace Relations Act (or its predecessors) as the means of enforcement of the provisions of the code. Hence, according to the submission, the intent is to be read from the provisions of the Workplace Relations Act that only the Federal Court is authorised to "give an interpretation" of a certified agreement.

28. The case for the applicant as argued by Mr Erskine of counsel of his behalf, is that the jurisdiction of this Court, which is not federal jurisdiction under the Judiciary Act 1903 (the Judiciary Act), is nevertheless sufficient to entertain the claim for declaratory relief by the applicant as part of the jurisdiction of a court of "unlimited" jurisdiction as that term was understood prior to the creation of this Court by Commonwealth Parliament by the Seat of Government Supreme Court Act 1933, as the Supreme Court Act was originally entitled. The jurisdiction was described in Spratt v Hermes at 259-260 by Kitto J with whom Barwick CJ at 248 agreed, as falling:

"within that judicial power which is a function of government in respect of the Territory and not within federal judicial power. ...that judicial power which appertains to the government of the Territory and not, unless there be some federal factor in the case, to the judicial power which appertains to the government of the federation of States."

29. In R v Donyadideh [1993] ACTSC 56; (1993) 115 ACTR 1, (1993) 114 FLR 43 the jurisdiction of this Court was characterised as similar to the jurisdiction in relation to claims made in respect of rights under Commonwealth laws that the Supreme Courts of the States had prior to the express conferral of federal jurisdiction pursuant to ch III of the Constitution by s 39 of the Judiciary Act: see also Felton v Mulligan [1971] HCA 39; (1971) 124 CLR 367 at 411-412.

30. It was submitted on behalf of the applicant that s 413 is the linear descendent of s 38(o) of the Conciliation and Arbitration Act 1904-1934 and that its provisions in one form or another have stood for nearly a century. Section 38(o) provided that the former Conciliation and Arbitration Commission:

"...shall, as regards every industrial dispute of which it has cognizance, have power ... to give an interpretation of any term of an existing award."

31. Mr Erskine relied upon the absence of any express denial of jurisdiction to the Supreme Court to be found in s 413A and s 413. In contrast, he referred to s 414 which provides for the jurisdiction of the Federal Court in proceedings for a pecuniary penalty against an organisation or member of an organisation to be exclusive of any court of a State or Territory. It was submitted that there has been legislation similar to s 413A and s 413 for nearly a century and that from time to time it had been judicially recognised that the general jurisdiction of State courts had not been excluded by such legislation, eg Williams v Hursey [1959] HCA 51; (1959) 103 CLR 30.

32. In summary the two opposing submissions are, for the appellant, that where the only issue raised between the parties to the litigation is the interpretation of a certified agreement, exclusive jurisdiction lies in the Federal Court, and, for the respondent, that no such limit on the jurisdiction of this Court is to be found in the relevant legislation or in the contract of employment between the applicant and the respondent.

33. It is trite to say that not all questions relating to the nature of the jurisdiction of a Supreme Court of an Australian Territory are easy to decide. Nevertheless, such decisions have to be made with supporting reasons. The reasons will not always add to the stockpile of jurisprudence on the subject