Burgess v John Connell-Mott Hay and Anderson Pty Ltd [1979] FCA 39; (1979) 39 FLR 444 (24 July 1979)

FEDERAL COURT OF AUSTRALIA

BURGESS v. JOHN CONNELL-MOTT HAY AND ANDERSON PTY. LTD. [1979] FCA 39; (1979) 39 FLR 444
Conciliation and Arbitration - Appeal

COURT

FEDERAL COURT OF AUSTRALIA
INDUSTRIAL DIVISION
Smithers(1), Evatt(2) and Keely(3) JJ.

CATCHWORDS

Conciliation and Arbitration - Criminal proceedings - Order dismissing information after hearing on merits - Jurisdiction of Full Court to hear appeal - Conciliation and Arbitration Act 1904 (Cth.), ss. 5, 104, 113, 114, 115, 118B, 118C - Federal Court of Australia Act 1976 (Cth.), ss. 4, 20(1), 24(1), 28(1).

Appeal - Dismissal of information alleging criminal offence under Conciliation and Arbitration Act - No appeal - Federal Court of Australia Act 1976 (Cth.), s. 24 - Conciliation and Arbitration Act 1904 (Cth.), s. 113. The informant appellant summonsed the defendant respondent pursuant to s. 5(1) of the Conciliation and Arbitration Act 1904 (Cth.) to answer charges that the defendant had dismissed the informant from his employment because he was a member of the Australian Workers' Union. The trial judge dismissed the information at the conclusion of the informant's case on the grounds that there was no case to answer as the informant had failed to establish his membership of the said union which was an essential element of the alleged offences, hence s. 5(4) of the Act did not arise. The informant appealed under s. 24(1)(a) of the Federal LCourt of Australia Act 1976 (Cth.) from such judgment.

Held: (1) An appeal does not lie pursuant to s. 24 of the Federal Court of Australia Act 1976 from a judgment of acquittal of a judge of the court in criminal proceedings after a hearing on the merits.

(2) Section 113 of the Conciliation and Arbitration Act does not confer a right of appeal against a judgment of a single judge of the Federal Court of Australia.

HEARING

Melbourne, 1979, June 7-8; July 24. 24:7:1979
APPEAL.

Appeal from a decision of Northrop J. The facts appear from the judgment of Smithers J.

W.E. Paterson Q.C. and R. Miller, for the appellant.

H. Nathan, for the respondent.
Cur. adv. vult.

Solicitors for the appellant: M.J. Arnold & Co.

Solicitors for the respondent: Phillips, Fox & Masel.
S.G. COLLINS

DECISION

JULY 24.

The following judgments were delivered.
SMITHERS J. In this matter an appeal has been instituted under s. 24 (1)(a)

of the Federal Court of Australia Act 1976 wherein the appellant purports to appeal from a judgment of a single judge of this Court sitting in the Industrial Division. By that judgment an information laid by the appellant against the respondent for alleged breaches of s. 5(1) of the Conciliation and Arbitration Act 1904 was dismissed. (at p445)

2. The information alleged that the respondent had dismissed the appellant from his employment by reason of the circumstance that the appellant was a member of the Australian Workers' Union and of other circumstances specified in s. 5(1)(a), (b), (d) and (f) of the Conciliation and Arbitration Act. In the course of the conduct of the prosecution the appellant called evidence of facts and circumstances alleged by him to constitute the elements of the alleged offence. Thereafter counsel for the appellant announced: "I have not intended to call any further witnesses. That is our case." Counsel for the respondent thereupon submitted that on the evidence called by the appellant the elements of the offence had not been proved and that the information should be dismissed on the ground that there was no case to answer. No point was made that the evidence was or might be insufficient to prove that the reason for the respondent's action in dismissing the appellant was the circumstance that the appellant was a member of the Australian Workers' Union or one of the other circumstances specified in s. 5(1)(a), (b), (d) or (f). No doubt this was because, if all other facts and circumstances constituting the alleged offence were proved, then by virtue of s. 5 (4) of the Conciliation and Arbitration Act it lay upon the respondent to prove that it was not actuated by any of the reasons alleged in the information. (at p445)

3. The respondent submitted that one of the essential elements of the alleged offences was that the appellant was a member of the Australian Workers' Union, that on the evidence called by the appellant it appeared that the appellant was not eligible to be a member of the Australian Workers' Union and accordingly was not a member thereof. This submission was accepted by the learned trial judge and he dismissed the information. (at p445)

4. On the appeal coming on for hearing the immediate question was whether, having regard to the terms of s. 24(1)(a) of the Federal Court of Australia Act as expounded by the Full Court of this Court in Thompson v. Mastertouch T.V. Service Pty. Ltd. (No.3)(1), the appeal was competent. Section 24(1)(a) provides that: (at p445)

5. "24(1) Subject to this section and to any other Act . . . the Court has jurisdiction to hear and determine -
(a) appeals from judgments of the Court constituted by a single Judge." (at p445)

6. Section 4 provides that unless the contrary intention appears the word judgment means "a judgment, decree or order, whether final or interlocutory, or a sentence". It was decided in Thompson v. Mastertouch T.V. Service Pty. Ltd. (No.3) [1978] FCA 24; (1978) 38 FLR 397 that upon the proper construction of s. 24(1)(a) the appellate jurisdiction of the Full Court of this Court does not extend to appeals from judgments of acquittal in criminal matters by a court of competent jurisdiction after a hearing on the merits. (at p446)

7. It was not contended before the court, nor could it successfully have been, that proceedings under s. 5 of the Conciliation and Arbitration Act 1904 are otherwise than criminal in nature, see e.g. Grayndler v. Cunich [1939] HCA 32; (1939) 62 CLR 573 . However, counsel for the appellant did contend that as the information had been dismissed upon a plea of no case to answer, the judgment of the court could not be described as one of acquittal after a hearing on the merits. An accused person is acquitted other than on the merits when the proceedings against him are dismissed on some point which involves no adjudication on the facts or on the application of the law to the facts to determine his guilt or innocence. The typical case is one where the relevant tribunal refrains from investigating the merits on the ground that it considers it lacks jurisdiction: see Wrote v. Wigges [1598] EngR 53; (1591) 4 Co Rep 45; 76 ER 9994 . There is an apparent qualitative difference between such a case and that where according to the appropriate trial procedures the facts have been examined and a judgment of guilt or innocence given according to the court's determination of the facts and the relevant law. (at p446)

8. In a criminal trial it is open to the accused to seek a judgment in his favour at the end of the case for the prosecution and without electing to call any evidence. That is what occurred in this case and the respondent obtained such a judgment. It was a judgment on the merits because it was obtained after consideration of all the evidence put against the respondent and the relevant law. (at p446)

9. Reference may be made to authorities supporting this view, in particular R. v. Sheen (1827) 2 C & P 634, at pp 639-640; 172 ER 287, at p 290 ; R. v. Austin (1846) 7 LTOS 432 and Mitchell v. Berry (1922) 22 SR (NSW) 363, at p 366 . These cases deal with the elements of the plea of autrefois acquit but the principles explained are applicable to the issue presently before the court. On the basis of those authorities Professor Sawer has written: "It has to be noted, however, that in our law 'acquittal on the merits' does not require, as common sense might suggest, a positive verdict that the jury or bench is satisfied affirmatively of the defendant's innocence. There is equally an acquittal on the merits if the evidence for the prosecution is not believed, or is legally insufficient (as where corroboration is required), or does not establish the elements of the offence in question, or even if the prosecution does not establish any evidence at all" (see "Autrefois Acquit and Decision Not 'On the Merits'" (1941), 2 Res Judicatae 203, at p. 208. (at p447)

10. The concept of an "acquittal on the merits" was also examined in Ward v. Hodgkins (1957) VR 715 where Herring C.J. said: ". . . in order to determine whether the dismissal of an information can be relied upon as the basis for a plea of autrefois acquit, it is necessary to go beyond the dismissal and see how far the proceedings have gone. A dismissal in other words per se may not be sufficient. It may take place before issue joined or before there is any question of an adjudication being embarked upon with regard to the guilt or innocence of the defendant and if it does, it will not in my opinion afford a basis for the plea" (1957) VR, at p 718 , and again: "The question of course is what is meant by a dismissal 'on the merits'. I can understand it being said that there is no dismissal 'on the merits', when a case is dismissed for non-appearance of the informant. But can this be said of a case, where before dismissal issue has been joined and the adjudication entered upon? Clearly it will be a dismissal 'on the merits' in such a case, if the informant calls evidence which proves insufficient to establish his case; I should have thought the position would be the same if the dismissal resulted from his failure to call any evidence at all" (1957) VR, at p 719 . See also Barnes v. Gougousis (1969) VR 1019 and Howard v. Pacholli (1973) VR 833, at p 839 . (at p447)

11. It was then put by senior counsel for the appellant that it did not follow from the decision in Thompson v. Mastertouch T.V. Service Pty. Ltd. (No.3) [1978] FCA 24; (1978) 38 FLR 397 that this appeal was incompetent. It was his contention that, although the application of the principle, which may be called the rule against appeals from acquittals, may well qualify the literal meaning of the words in s. 24(1) and s. 4 of the Federal Court of Australia Act in relation to acquittals in proceedings under Pt V of the Trade Practices Act 1974, it did not qualify those words in relation to criminal proceedings under s. 5 of the Conciliation and Arbitration Act. In this connexion he relied on the High Court decision in Cockle v. Isaksen [1957] HCA 85; (1957) 99 CLR 155 as establishing that the principle did not apply in relation to appeals from a magistrate sitting as a Court of Petty Sessions in New South Wales to the Commonwealth Industrial Court pursuant to s. 113 of the Conciliation and Arbitration Act and by implication to this appeal. Section 113 at that time provided for an appeal to the Commonwealth Industrial Court from a judgment, decree, order or sentence of a State court (not being a Supreme Court) or of a court of a Territory made, given or pronounced in a matter arising under the Act and that there should not be any appeal to the High Court from a judgment, decree, order or sentence from which an appeal might be brought to the Commonwealth Industrial Court under that section. It was argued by the informant before the High Court that that part of the section which purported to limit the right of appeal to the High Court could not be justified by s. 73 of the Constitution and was therefore invalid. It was held by the High Court that the challenged provision of s. 113 was valid and that there was therefore no jurisdiction in the High Court to grant special leave to appeal. The informant subsequently took the appeal to the Commonwealth Industrial Court where it was heard and allowed and the defendant was convicted (1958) 1 FLR 139 . (at p448)

12. In Cockle v. Isaksen the rule against appeals from acquittals appears not to have been mentioned at any stage. Nevertheless it may be established by that case that the provisions of s. 113 of the Conciliation and Arbitration Act took effect according to their literal meaning unqualified by that rule. That would not be because the principle has no application in Australia but because of the application to the words of s. 113 of the view that according to their proper interpretation in the context of the Conciliation and Arbitration Act they are to have their literal meaning unqualified by that rule. Wherever such words appear in a statute the question must arise whether, in the context in which they appear, they are to be interpreted literally or subject to the rule against appeals from acquittals. (at p448)

13. Sections 113 and 115 were introduced in 1956 by the Conciliation and Arbitration Act (No. 44 of 1956). Section 113 was enacted in place of s. 31 which had been inserted by s. 8 of Act No. 10 of 1947, in which the intention of Parliament to confer on the Conciliation and Arbitration Court complete and final jurisdiction over all judgments or orders of all courts in original proceedings under the Act or under awards was manifest. In such a situation and according to the context, the intention that s. 113 should be interpreted literally might have been discerned. The effect of s. 113 was that when proceedings were commenced in a State court (not being a Supreme Court) or in a court of a Territory there was an appeal from a judgment thereof to the Commonwealth or Australian Industrial Courts. But there was no appeal from similar proceedings commenced in the Commonwealth Industrial Court or the Australian Industrial Court unless leave were granted by the High Court. The clear intention of Parliament apparent in the earlier provision, namely s. 31 of the Conciliation and Arbitration Act, was reflected in the situation obtaining by virtue of s. 113; the new Commonwealth Industrial Court taking the place of the Arbitration Court for that purpose. Section 113 is still in force and by reason of s. 118A (4B) of the Conciliation and Arbitration Act, as inserted by Act No. 53 of 1978, appeals thereunder may be brought to a Full Court of the Federal Court. On this basis the Federal Court, in respect of matters arising under s. 113 would be the successor of the Australian Industrial Court. (at p449)

14. When Cockle v. Isaksen [1957] HCA 85; (1957) 99 CLR 155 was decided the context of s. 113 included s. 115. That section, which would seem to have a sequential connexion with s. 31A which was inserted by s. 25 of Act No. 43 of 1930, and applied to the Court of Conciliation and Arbitration, defined the powers of the Commonwealth or Australian Industrial Courts on an appeal under s. 113. According thereto the appellate court might: (a) affirm, reverse or modify the judgment, decree, order or sentence appealed from; (b) give such judgment or make such order as in all the circumstances it thinks fit or refuse to make an order; and (c) grant a new trial. (at p449)

15. These powers correspond with those specified in s. 28 (1)(a), (b) and (f) of the Federal Court of Australia Act but of course in s. 115 of the Conciliation and Arbitration Act they are not used in association with powers such as specified in s. 28(1)(c) and (e). (at p449)

16. Section 113 of the Conciliation and Arbitration Act when applied in the course of the exercise of the jurisdiction of the Federal Court is applied in the absence of its earlier accompanying section, namely s. 115. This appears from s. 118A (1)(b) of the Conciliation and Arbitration Act. As a result of that provision the powers of the court on appeal pursuant to s. 113 are now to be found not in s. 115 but in s. 28 (1) of the Federal Court of Australia Act. The non-applicability of s. 115 was effectuated at the time of the creation of the Federal Court of Australia by amendment of the Conciliation and Arbitration Act by the insertion of s. 118A (1)(b) by Act No. 160 of 1976 which excluded from applicability in the Federal Court a number of provisions in the Conciliation and Arbitration Act which had governed particular matters relating to proceedings in the Australian Industrial Court and its predecessor. Those sections are s. 114 (appeals to the High Court), s. 115 (powers of court of appeal pursuant to s. 113), s. 116 (costs generally), s. 117 (enforcement of judgments and orders), s. 118 (practice and procedure), and s. 184 (contempt by witness). The rationale appears to have been that where special provision peculiar to the jurisdiction conferred by the Conciliation and Arbitration Act was required in particular respects, for example with respect to costs in particular cases (see s. 197A), specific provisions in that Act were transferred and made applicable in the Federal Court of Australia; but where it was the intention that the powers and procedures provided for, generally, in the Federal Court of Australia Act which were capable of application to each of the diverse jurisdictions of the Federal Court should apply where that court was acting under the Conciliation and Arbitration Act, no such transfer was made. (at p450)

17. If Cockle v. Isaksen [1957] HCA 85; (1957) 99 CLR 155 is to be regarded as an authority that s. 113 was to be interpreted literally, and thus unqualified by the rule against appeals from an acquittal, it would be unlikely that by reason of what may be called the machinery changes, instituted by Pt VA of the Conciliation and Arbitration Act introduced by Act No. 160 of 1976, a change from the substantive law enacted by s. 113 as theretofore in force was intended. (at p450)

18. It is the effect of s. 118B of the Conciliation and Arbitration Act as enacted by the Conciliation and Arbitration Amendment (Federal Court of Australia) Act 1978 (No. 53 of 1978) that a right of appeal as of right has been created in relation to a class of proceeding in which prior thereto there never was an appeal as of right, namely, proceedings decided in the original jurisdiction of the court to which in its appellate jurisdiction appeals might be brought under s. 113. That court since 1st February, 1977, has been the Federal Court of Australia sitting in its Industrial Division. Previously that court was the Australian Industrial Court. It is to be noted that by virtue of s. 104 (2) of the Conciliation and Arbitration Act proceedings in respect of contraventions of s. 5 of that Act might be heard by a court constituted by a single judge. The notion apparently was that in matters under the Conciliation and Arbitration Act the final word was with the Australian Industrial Court whether it spoke by one judge or three judges subject to an appeal by leave to the High Court under s. 114 (2) of that Act. (at p450)

19. The appeal under s. 113 with which Cockle v. Isaksen was concerned was an appeal from the court at first instance to a superior court at the level of the Court of Conciliation and Arbitration, the Commonwealth or Australian Industrial Courts and now the Federal Court. The legislative intention to provide for such an appeal has existed since 1947, when s. 31 the forerunner to s. 113 was inserted by s. 8 of Act No. 10 of 1947. It was the legislative intention as expressed in s. 31 and later by s. 113 that, save for an appeal to the High Court by leave, proceedings in such a case should cease at the Court of Conciliation and Arbitration and its successors and that is still the position. The present appeal is from a judgment in the original jurisdiction of the court which for this purpose is such a successor and it stands or falls by reference to considerations basically different from those relevant to appeals brought under s. 113 of the Conciliation and Arbitration Act. (at p450)

20. The present appeal comes to this Court pursuant to s. 24(1)(a) of the Federal Court of Australia Act. It is an appeal from a judgment of the Federal Court itself. It is an appeal from a judgment of acquittal of a superior court of record after a hearing on the merits. It is of course true that it is an appeal in a matter arising under the Conciliation and Arbitration Act. If it is competent it is because it is authorized by the general provisions of s. 24(1)(a) of the Federal Court of Australia Act, the terms of which apply according to their proper interpretation to all appeals so authorized. However, as appeals authorized by s. 24(1) (a) do not include appeals against judgments of acquittal in criminal cases after a hearing on the merits, the appeal in this case is not authorized and there is no other provision for such an appeal. (at p451)

21. Although on the proper interpretation of s. 24(1)(a) of the Federal Court of Australia Act it does not avail a disappointed informant, such a party has by the changes in the law not been deprived of any right or privilege that he ever had. So far as he is concerned the law pursuant to the Federal Court of Australia Act and the Conciliation and Arbitration Act preserves to him the appeal by leave to the High Court which has always been the only appeal open to him against the dismissal of an information under s. 5 of the latter Act. (at p451)

22. The court reserved its judgment on the preliminary question of jurisdiction on 8th June. On 26th June the appellant forwarded to the court and the respondent further written submissions. These submissions were of two categories. The first related to whether the acquittal appealed from was an acquittal on the merits. This matter is dealt with above. The second related to the effect of the amendments to the Conciliation and Arbitration Act which created a system of internal appeals with respect to matters dealt with in the Industrial Division of the Federal Court of Australia to which brief reference has been made earlier. On and after 1st February, 1977, by reason of s. 24 (1)(a) of the Federal Court of Australia Act, a Full Court of this Court, was, subject to any other Act, empowered to hear appeals from judgments of a single judge of the court. By s. 118B of the Conciliation and Arbitration Act which came into force on the same day, being introduced by Act No. 160 of 1976, it was provided that:
"(1) Notwithstanding anything contained in the Federal Court of Australia Act 1976 -
(a) an appeal does not lie to a Full Court of the Federal Court of Australia from a judgment, decree, order or sentence under this Act of that Court constituted by a single Judge; and
(b) except as provided by sub-section (2), an appeal does not lie to the High Court from a judgment, decree, order or sentence under this Act of the Federal Court of Australia however constituted.
(2) An appeal lies to the High Court from a judgment, decree, order or sentence of the Federal Court of Australia under this Act (other than a judgment, decree, order or sentence under section 107, 109, 110, 111 or 112 or under Part VIII or IX) if the High Court grants leave to appeal." (at p452)

23. Except pursuant to the last mentioned subsection the position was that from 1st February, 1977, to 18th June, 1978, it was not possible to appeal against a judgment of a single judge of the Federal Court given under the Conciliation and Arbitration Act. However, it must be remembered that at the time a substantial number of matters were required to be heard by a court consisting of three judges. Section 20 (1)(a) of the Federal Court of Australia Act 1976 provided that "the original jurisdiction of the Court in the Industrial Division shall be exercised by a Full Court", except as otherwise provided by this Act or any other Act. Section 104 (2) of the Conciliation and Arbitration Act made such a provision in relation to a number of matters, most materially, for present purposes, s. 5 proceedings. (at p452)

24. The Conciliation and Arbitration Amendment (Federal Court of Australia) Act 1978 (No. 53 of 1978) which commenced on 19th June, 1978, changed this situation considerably. By s. 4 (1) thereof s. 118B of the principal Act was repealed and a new section with that number was inserted. The effect of this new section was to make the right of appeal from a single judge to the Full Court applicable to Industrial Division matters except in proceedings under s. 158P or under Pt IX (election inquiries). It reads:
"118B (1)(a) an appeal does not lie to a Full Court of the Federal Court of Australia from a judgment or order of that Court, constituted by a single Judge, in proceedings under s. 158P or under Part IX; and
(b) subject to sub-section (2), an appeal lies to the High Court from a judgment, decree, 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.
(2) No appeal lies to the High Court from a judgment, order or sentence of a Full Court of the Federal Court of Australia - (a) in a matter arising under section 107, 109, 110, 112 or 158P or under Part VIII or IX (including a prosecution for an offence against regulations made for the purposes of s. 158P or against Part VIII or Part IX) or
(b) in respect of contempt of that Court in relation to proceedings under this Act." (at p452)

25. Act No. 53 of 1978 also provided that jurisdiction in the Industrial Division should be exercised by a single judge except in certain specified circumstances (s. 118A (4A) and (4B)), and that a single judge may refer proceedings to the Full Court, (s. 118C) it was upon enactment of s. 118A (4A) that an appeal pursuant to s. 24 (1)(a) of the Federal Court of Australia Act became available in respect of judgments of single judges of the court sitting in the Industrial Division. (at p452)

26. The appellant bases his initial contention in the wording of s. 118B (1) as amended by Act No. 53 of 1978, arguing that the exclusion of appeals in the matters specified in that subsection i.e. under s. 158P or Pt IX indicates an intention to confer a right of appeal in all other areas. But the jurisdiction to hear the appeals must be found in s. 24 (1)(a) of the Federal Court of Australia Act. Section 118B of the Conciliation and Arbitration Act merely indicates in what matters appeals are not permitted. It is not a provision conferring jurisdiction to hear appeals. Section 24 (1)(a) does not confer a right of appeal against a judgment of acquittal after a hearing on the merits by a court of competent jurisdiction: see Thompson v. Mastertouch T.V. Service Pty Ltd. (No.3) [1978] FCA 24; (1978) 38 FLR 397 . That decision is applicable to all appeals that are brought under s. 24 (1)(a). (at p453)

27. It should be noted that the wording of s. 118B (1) on which the appellant relies is not without purpose. It is designed to complement other parts of Act No. 53 of 1978. The legislature had always provided that in certain proceedings under the Conciliation and Arbitration Act judgments of the Commonwealth Industrial Court and the Australian Industrial Court should be final and not subject to any appeal. (at p453)

28. It is of assistance to examine the Conciliation and Arbitration Act as it stood prior to amendment by Act No. 53 of 1978. From the time of the creation of the Commonwealth Industrial Court in 1956, s. 114 contained a prohibition of appeals to the High Court from a judgment, decree, order or sentence of that court and later the Australian Industrial Court (usually courts of three judges) under ss. 107, 109, 110, 111, 112 or under Pt VIII or IX. With the advent of the Federal Court of Australia a new section, s. 118B, imposed a similar prohibition on appeals to the High Court from similar proceeding in the Federal Court and an absolute ban on appeals to a Full Federal Court from a judgment of a single judge of that court sitting in the Industrial Division. (at p453)

29. When by Act No. 53 of 1978 the legislature, for the first time, permitted appeals to the Full Court of the Federal Court from matters in the Industrial Division a new legislative policy approach is apparent in the matter of the availability of an appeal to that court in matters arising under the Conciliation and Arbitration Act differing from that reflected in relation to appeals to the High Court in s. 114 and later in s. 118B as first enacted. The appellant, relying on the wording of the new s. 118B (1), which as noted, only prohibits an appeal from a judgment of a single judge in proceedings under s. 158P or Pt IX, suggests that the legislature is to be seen as intending to allow appeals to the Full Court in all other matters. But examination of the legislation reveals that the legislature has dealt with the matters in which according to s. 114 and s. 118B (1) there was to be no appeal to the High Court, in three ways and not only in two ways as the appellant suggests. (at p454)

30. These three legislative devices may be seen most clearly in relation to the classes of proceedings which, until 19th June, 1978, were excluded from the only appeal then available from the Australian Industrial Court or the Federal Court of Australia, namely an appeal to the High Court by leave. Those matters are listed in s. 118B (2). This subsection is presently relevant although it is concerned with appeals to the High Court. The matters dealt with in that provision are the matters which consistently since 1956 have not been appealable to the High Court, the only available appellate court, and which the legislature with the advent of a new appellate court has now decided shall be dealt with in different ways. By reference to the manner in which those matters have been dealt with by Act No. 53 of 1978 it can be seen that the appellant's proposition, that s. 118B (1)(a) demonstrates that apart from matters under s. 158P and Pt IX referred to therein there is an appeal as of right in all other matters, cannot be sustained. If the appellant's view of the changes that occurred in 1978 were correct then it is in relation to these traditionally "non-appealable" matters that it would be most marked. Changes to the law where there always has been a right of appeal with leave to the High Court would be one thing. But for the appellant to succeed he must go beyond this. He must demonstrate that all those proceedings referred to in s. 118B of the Conciliation and Arbitration Act, which when heard by the Australian Industrial Court were never appealable, have now been made subject to a right of appeal to this Full Court. But this he cannot do, because Parliament did not so intend. That much is clear from its differing treatment of the various proceedings referred to in s. 118B. (at p454)

31. The differing provisions made by the legislature in relation to the matters listed in s. 118B (2) which are matters in which no appeal has been available to the High Court, namely matters arising under ss. 107, 109, 110, 112 or 158P or under Pt VIII or IX are as follows:
(a) Total prohibition on appeals from judgments of single judges. Inquiries either under s. 158P or Pt IX (s. 118B (1)(a)).
(b) Matters in the original jurisdiction of the Federal Court which are required to be heard at first instance by a Full Court pursuant to s. 118A (4B) with no appeal to the High Court, by reason of s. 118B (2)(a), or to any other court. Section 107: Reference by Conciliation and Arbitration Commission of question of law to the Federal Court. Section 112: Reference by Registrar of question of law to the Federal Court.
(c) Matters in which by virtue of s. 24 (1)(a) of the Federal Court of Australia Act, as liberated by Act No. 53 of 1978 from the previously existing restrictions in s. 118B as first enacted by Act No. 160 of 1976, the legislature has decided to permit an appeal to the Full Court. These are matters arising under ss. 109, 110, 111 and under Pt VIII. (at p455)

32. Accordingly it cannot be said as the appellant would have it, that the only matters under the Conciliation and Arbitration Act in which an appeal is prohibitied are those under s. 118B (1) and that the legislature intended an appeal to lie in all other matters. The wording of s. 118B (1) on which the appellant relies is thus shown not to bear the meaning that the appellant would give it. If the words do not indicate the general appellate right suggested they cannot assist the appellant in any other way. (at p455)

33. It is to be noted that the most recent legislative action in relation to the jurisdiction of the Federal Court is comprised in the Jurisdiction of Courts (Miscellaneous) Amendments Act (No. 19 of 1979) which was assented to on 28th March, 1979, and commenced on 15th May, 1979. Section 123 of that Act when read with the schedule thereto delected s. 20 (1) of the Federal Court of Australia Act 1976 and substituted the following subsection: "(1) Except as otherwise provided by this Act or any other Act, the original jurisdiction of the Court in either Division shall be exercised by a single Judge." (at p455)

34. This provision was purely machinery but it did restate in the Federal Court of Australia Act in a more convenient form the effect of s. 118A (4A) of the Conciliation and Arbitration Act introduced by Act No. 53 of 1978 whereby it was provided that except under four specified sections proceedings in the Industrial Division of the Federal Court in its original jurisdiction should be heard by a single judge. It was this latter legislation which made possible for the first time an appeal as of right from a judgment in a matter which before the transition of jurisdiction from the Australian Industrial Court to the Federal Court of Australia would have been heard in the Australian Industrial Court and thereafter in the Industrial Division of the Federal Court. (at p455)

35. For those reasons this appeal is incompetent and must be dismissed. (at p455)

EVATT J. By summons upon information dated 23rd November, 1978, laid by Paul John Burgess (the informant-appellant), John Connell-Mott, Hay and Anderson Pty. Ltd. (the defendant-respondent) was summoned pursuant to s. 5 (1) of the Conciliation and Arbitration Act 1904 (the Act) to answer charges that the defendant had dismissed the informant from his employment by reason of the circumstance that he was a member of the Australian Workers' Union, an organization registered under the Act (the organization) and of other circumstances referred to in s. 5(1). (at p455)

2. The summons was returnable before a judge of the court on 5th February, 1979, when both parties were represented by counsel. After affidavit and oral evidence was tendered on behalf of the informant, counsel for the informant closed his case. Thereupon counsel for the defendant submitted that there was no case to answer as the evidence showed that the informant at the time when he purported to joint the organization and indeed at any time thereafter was not entitled as a matter of law to become a member of such organization. Membership of the particular organization, it was submitted, was an essential element of the alleged offences and such membership had to be valid membership. In the circumstances the provisions of s. 5(4) of the Act did not arise. (at p456)

3. The trial judge accepted the defendant's submissions and accordingly dismissed the information. (at p456)

4. The informant has appealed under s. 24 (1)(a) of the Federal Court of Australia Act 1976 from such judgment. (at p456)

5. In Thompson v. Mastertouch T.V. Service Pty. Ltd. (No. 3) [1978] FCA 24; (1978) 38 FLR 397 (Thompson's case), a Full Court of this Court determined that an appeal does not lie pursuant to s. 24 of the Federal Court of Australia Act 1976 from a judgment of acquittal of a judge of the court in criminal proceedings after a hearing on the merits. Clearly the proceedings herein are criminal; there has been a hearing on the merits, and the dismissal of the information (whether right or wrong) and the consequential judgment is a judgment of acquittal within the meaning of that term as used in Thompson's case. (at p456)

6. The submissions of the appellant concerning the reasons for judgment of the justices of the High Court in Cockle v. Isaksen [1957] HCA 85; (1957) 99 CLR 155 and the subsequent decision of the Commonwealth Industrial Court in that case (1958) 1 FLR 139 do not assist. In that case, the appeal was from an acquittal of an alleged offence under s. 138 of the Conciliation and Arbitration Act 1904 and was brought under s. 113 of that Act. It would appear that the decision of the High Court in Cockle's case and the reasons for judgment of the Commonwealth Industrial Court which subsequently upheld the appeal and entered a conviction against the respondent-defendant were not referred to in Thompson's case. But it is of interest to note that the words "appeal from a judgment, decree, order or sentence" in sub-ss. (1) and (3) of s. 113 of the Act would seem to have the same meaning as those words in s. 4 of the Federal Court of Australia Act 1976 as to the interpretation to be given, unless the contrary intention appears, to the word "judgments" in s. 24 (1)(a) of that Act. (at p456)

7. I am of the opinion that the court should apply the decision in Thompson's case and accordingly the appeal must be dismissed as being incompetent. (at p456)

KEELY J. The appellant laid an information against the respondent for an alleged offence against s. 5 of the Conciliation and Arbitration Act 1904. The information was heard in the Industrial Division of this Court by a single judge who upheld a submission by counsel for the respondent that, on the evidence called by the informant, there was no case to answer. (at p457)

2. The Full High Court in Cockle v. Isaksen [1957] HCA 85; (1957) 99 CLR 155 decided that an appeal lay to the Commonwealth Industrial Court from an order of a Court of Petty Sessions dismissing informations for alleged offences under the Conciliation and Arbitration Act. The High Court's judgment was based upon s. 113 of the Conciliation and Arbitration Act. That section did not confer a right of appeal against a judgment of a single judge of the Commonwealth Industrial Court and does not confer a right of appeal against a judgment of a single judge of this Court. (at p457)

3. The present appellant seeks to appeal under s. 24 (1)(a) of the Federal Court of Australia Act 1976 from the judgment ordering the dismissal of the information. In Thompson v. Mastertouch T.V. Service Pty. Ltd. (No. 3) [1978] FCA 24; (1978) 38 FLR 397 a Full Court of this Court held that an appeal does not lie, pursuant to s. 24 (1)(a), from a judgment of acquittal pronounced by a single judge in criminal proceedings after a hearing on the merits - as has occurred in this case. It is plainly undesirable that there should be conflicting decisions of this Court on such a jurisdictional question. In these circumstances in my view the proper course for this Court is to apply the decision in Thompson v. Mastertouch T.V. Service Pty. Ltd. (No. 3) and the appeal should be struck out as incompetent. (at p457)

ORDER

Appeal dismissed.