Australian Postal Corporation v Metcher [2010] FCA 114 (22 February 2010)

Last Updated: 18 March 2010

FEDERAL COURT OF AUSTRALIA

Australian Postal Corporation v Metcher [2010] FCA 114

Citation:		Australian Postal Corporation v Metcher [2010] FCA 114
Parties:		AUSTRALIAN POSTAL CORPORATION v JIM METCHER and LOCAL COURT OF NEW SOUTH WALES
File number(s):		NSD 1012 of 2009
Judge:		BUCHANAN J
Date of judgment:		22 February 2010
Catchwords:		PRACTICE AND PROCEDURE – criminal prosecutions commenced in Local Court of New South Wales – application to Federal Court for declarations which would defeat the prosecutions – strike out application – whether abuse of process – whether a constitutional issue should be dealt with by Federal Court prior to criminal proceedings – whether exercise of jurisdiction by the Federal Court would fragment criminal proceedings
Legislation:		Australian Postal Corporation Act 1989 (Cth) s 17 Commonwealth of Australia Constitution Act (Cth) s 109 Workplace Relations Act 1996 (Cth) s 16 Workplace Surveillance Act 2005 (NSW) ss 19, 39 Federal Court Rules O 20 r 5
Cases cited:		Gedeon v Commissioner of the New South Wales Crime Commission [2008] HCA 43; (2008) 236 CLR 120 Majzoub v Kepreokis & Ors [2009] NSWSC 314 Second Life Decor Pty Ltd v Comptroller-General of Customs [1994] FCA 1273; (1994) 53 FCR 78 Veta Ltd & Anor v Evans & Ors [2003] HCA Trans 252 (2 July 2003)
Date of hearing:	4 February 2010
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	25
Counsel for the Applicant:	Mr S. Prince
Solicitor for the Applicant:	Blake Dawson
Counsel for the First Respondent:	Mr R. Kenzie QC with Ms F. Hancock
Solicitor for the First Respondent:	Turner Freeman
Counsel for the Intervener:	The Hon. J. Hatzistergos MLC with Dr J.G. Renwick
Solicitor for the Intervener:	Crown Solicitor

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1012 of 2009

BETWEEN:	AUSTRALIAN POSTAL CORPORATION Applicant
AND:	JIM METCHER First Respondent LOCAL COURT OF NEW SOUTH WALES Second Respondent

JUDGE:	BUCHANAN J
DATE OF ORDER:	22 FEBRUARY 2010
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The motion filed on 2 December 2009 be dismissed with costs.
   

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1012 of 2009

BETWEEN:	AUSTRALIAN POSTAL CORPORATION Applicant
AND:	JIM METCHER First Respondent LOCAL COURT OF NEW SOUTH WALES Second Respondent

JUDGE:	BUCHANAN J
DATE:	22 FEBRUARY 2010
PLACE:	SYDNEY

REASONS FOR JUDGMENT

BUCHANAN J:

1. The first respondent (“Mr Metcher”) is the Secretary of the Communications, Electrical and Plumbing Union which is an organisation of employees registered pursuant to the Fair Work Act 2009 (Cth). On or about 7 August 2009 he commenced four criminal proceedings in the Local Court of New South Wales (“the Local Court”) against the applicant (“Australia Post”) under the Workplace Surveillance Act 2005 (NSW) (“the Surveillance Act”). Section 46 of the Surveillance Act permits the secretary of a relevant industrial organisation of employees to commence such proceedings.
2. The prosecutions commenced by Mr Metcher allege that on specified dates and at specified times Australia Post carried out “covert surveillance” of three named employees. Under the Surveillance Act covert surveillance is prohibited without a covert surveillance authority (s 19). The charges allege that no covert surveillance authority was obtained. The factual foundation for the allegations has not yet been developed but it appears that the three employees named in the prosecutions were dismissed by Australia Post and that their dismissals were connected with information obtained from a “CyberLock System” used by Australia Post which registers when particular mail collection boxes are opened.
3. On 14 September 2009 Australia Post commenced proceedings in the original jurisdiction of this Court seeking a number of declarations. In substance the declarations sought are to the effect that the Surveillance Act is invalid in its application to Australia Post (because it is inconsistent with the Workplace Relations Act 1996 (Cth)), that operation of the CyberLock System occurs under the authority of the Australian Postal Corporation Act 1989 (Cth) (“the Australia Post Act”) (which for reasons to be explained would, it will be argued, exclude the operation of the Surveillance Act) and that the charges are incompetent and the Local Court lacks jurisdiction to hear and determine them. There is no suggestion that this Court lacks jurisdiction to deal with the application made by Australia Post.
4. On 2 December 2009 Mr Metcher filed notice of a motion that the proceedings in this Court “be struck out or alternatively stayed pending the determination of the Local Court proceedings”. At the hearing of the motion the Attorney-General for New South Wales intervened to support Mr Metcher’s position.
5. Although neither the notice of motion nor written submissions filed on behalf of Mr Metcher or the Attorney-General identified the foundation for the orders sought by the motion, submissions in reply filed on behalf of Mr Metcher and the Attorney-General each identified O 20 r 5 of the Federal Court Rules as the foundation relied upon. Order 20 r 5 provides:

(1) This rule applies to a proceeding commenced on or after 1 December 2005 if the Court is satisfied that, for the proceeding generally or for a claim for relief in the proceeding:

(a) the proceeding or claim is frivolous or vexatious; or
(b) the proceeding or claim is an abuse of the process of the Court.

(2) The Court may order that the proceeding be stayed or dismissed generally or in relation to the claim for relief.

(3) The Court may receive evidence on the hearing of an application for an order under subrule (2).

6. I shall deal shortly with the various arguments advanced in support of the motion. It is convenient to observe at once that there was no suggestion that Australia Post’s application was frivolous or vexatious and only faint suggestions that it constituted an abuse of the process of the Court. The considerations to which Mr Metcher and the Attorney-General appealed were, as will be seen, ones concerned with the balance of convenience and questions of policy reflecting the restraint normally exercised before permitting the fragmentation of criminal proceedings or before this Court intervenes in the conduct of proceedings in some other court. So to observe is not in any way to diminish the importance of the matters and principles to which Mr Metcher and the Attorney-General appealed but rather to emphasise the need, ultimately, to assess the present motion by reference to the tests stated in O 20 r 5.
7. Before I deal with the arguments, something further should be said about the issues posed by the declarations sought by Australia Post. The declarations sought were set out in the application in the following way:
   1. A declaration that by operation of 16 [sic] of the Workplace Relations Act 1996 (Cth) and s 109 of the Commonwealth of Australia Constitution Act, the Workplace Surveillance Act 2005 (NSW) was invalid to the extent that it purported to have application to the Applicant and its employees in the period commencing 26 March 2006 until and including 18 February 2009.
      
   2. In the alternative, a declaration that the operation of the CyberLock System by the Applicant:
      

(a) between 6 January 2009 to 18 February 2009 in relation to Timothy Crichton;

(b) on 13 February 2009 in relation to Timothy Crichton;

(c) between 5 January 2009 to 18 February 2009 in relation to Mitchell Evans; and

(d) between 6 January 2009 to 16 February 2009 in relation to Michael Murphy, was undertaken under the authority of the Australian Postal Corporation Act 1989 (Cth), being a law of the Commonwealth.

3. Further a declaration that the charges laid by the First Respondent against the Applicant for alleged breaches of s 19 of the Workplace Surveillance Act 2005 (NSW) in relation to Timothy Crichton, Mitchell Evans, and Michael Murphy filed in the Local Court on or about 7 August 2009 are incompetent and that the Second Respondent is without jurisdiction to hear and determine the said charges.

Declaration 1

8. Section 16 of the Workplace Relations Act 1996 (Cth) (“the WR Act”) no longer has the operation to which Australia Post refers in its application. However, at the time to which the charges in the Local Court relate, s 16(1) of the WR Act expressed the intention of the Federal Parliament that the WR Act should apply to the exclusion of, amongst other laws, “a State or Territory industrial law”. “State or Territory industrial law” was defined by s 4 of the WR Act to include a number of named Acts (not including the Surveillance Act) and also an Act of a State applying to employment generally which had at least one of certain stated purposes as one of its main purposes. Those purposes were identified as follows:

(i) regulating workplace relations (including industrial matters, industrial disputes and industrial action, within the ordinary meaning of those expressions);

(ii) providing for the determination of terms and conditions of employment;

(iii) providing for the making and enforcement of agreements determining terms and conditions of employment;

(iv) providing for rights and remedies connected with the termination of employment;

(v) prohibiting conduct that relates to the fact that a person either is, or is not, a member of an industrial association (as defined in section 779).

9. Australia Post would need to establish that the Surveillance Act applies to employment generally and has one of those purposes as a main purpose. This is not the time to attempt any evaluation of the prospects of such a case being made out. Assessment of the constitutional question of whether s 16 of the WR Act, read with the aspects of the definitions to which I have referred, identified the Surveillance Act as an Act which the WR Act intended to exclude should, procedurally at least, be a reasonably straightforward matter. If the proposition is made good it would follow that the proceedings commenced by Mr Metcher in the Local Court are misconceived and cannot succeed because the Surveillance Act did not, at the relevant time, apply to Australia Post.

Declaration 2

10. Section 39 of the Surveillance Act provides:

This Act does not apply to anything done under the authority of a warrant or other authority under the Telecommunications (Interception) Act 1979 of the Commonwealth or any other law of the Commonwealth.

11. If s 39 of the Surveillance Act was engaged, this would also render the proceedings commenced by Mr Metcher incompetent and provide an absolute defence to Australia Post.
12. There will be an argument about the meaning of the term “authority”, where it first appears in s 39 of the Surveillance Act, and also whether it is necessary to identify a particular form of instrument rather than some more general authorisation. It appeared from the submissions made by the Attorney-General that the “authority” upon which he expected Australia Post would rely was contained in s 17 of the Australia Post Act and consisted simply of a power to do things necessary or convenient to be done in connection with the performance by Australia Post of its functions. The Attorney-General argued that such “authority” was insufficient, on any view, to satisfy the requirements of s 39 of the Surveillance Act. It may not be sufficient, in order to conclude those issues, to make a declaration in the form at present sought by Australia Post. However, the intent of the declaration sought is apparent enough. I would not decline to entertain the application, or this aspect of it, merely because some amendment to the form of the declaration might be required.
13. Although some evidence might be required to establish the factual context in which, in the present case, and for the purpose of the prosecutions, the claimed “authority” exists, if Australia Post could demonstrate that s 39 of the Surveillance Act was engaged by the provisions of the Australia Post Act it would have an absolute defence to the proceedings in the Local Court. The scope of any evidentiary contest seems limited. It would certainly fall short of the evidentiary cases required to prosecute and defend the charges.

Declaration 3

14. In substance, the claimed declaration depends on and flows from the two earlier declarations, and the propositions embedded within them, that the Surveillance Act had no application to any use of the CyberLock system or any consequences for the three employees which flowed from its use. Those propositions may also require some evidence which satisfactorily connects the legal conclusion, if established, that the Surveillance Act had no application, to the factual circumstances which lie behind the prosecutions which Mr Metcher commenced. However, in this as in other respects, I would not expect the evidence to be extensive.

The arguments

15. There were two main bases upon which it was argued by Mr Metcher and the Attorney-General that this Court should not exercise its jurisdiction to hear and determine the application made by Australia Post. The first was that the constitutional issue raised by claimed Declaration 1 might never arise and should not be addressed first. The second was that fragmentation of existing criminal proceedings should be avoided.
16. The proposition that the constitutional issue may never arise was founded upon the possibility that Australia Post may defend itself successfully on other grounds. The contention is a little incongruous in the sense that it requires, as a working premise at least, adoption of assumptions against the prosecutor, Mr Metcher. However, as Australia Post points out, if the constitutional issue was decided in its favour it would thereby avoid exposure to criminal proceedings which are ill-founded. Although, as Mr Metcher and the Attorney-General point out, it is frequently observed that constitutional issues are not addressed unnecessarily, there are many cases which affirm, rather than deny, the proposition that respectable jurisdictional arguments should be dealt with as early as practicable unless there is good reason to take a different course.
17. The case principally relied upon to suggest that this Court should not deal with, or should defer dealing with, any constitutional issue, was an interlocutory judgment of McHugh J sitting in chambers to deal with an application for a case to be stated to a Full Court of the High Court of Australia (Veta Ltd & Anor v Evans & Ors [2003] HCA Trans 252 (2 July 2003)). McHugh J decided that he should remit the summons before him to the New South Wales Industrial Commission in Court Session (before whom related proceedings had already been commenced) rather than retain it for hearing in the High Court in its original jurisdiction. His Honour did not strike out the proceedings or stay them. In my view, the considerations which moved his Honour in that case have little in common with the issues in the present case.
18. The case principally relied upon to illustrate a general principle that fragmentation of criminal proceedings is actively discouraged was Gedeon v Commissioner of the New South Wales Crime Commission [2008] HCA 43; (2008) 236 CLR 120 where the High Court said at [23]:

With respect to the exercise of the power to make the declaratory orders now sought by the applicants, authority in this Court affirms an important general principle. This is that power to make declaratory orders should be exercised sparingly where the declaration would touch the conduct of criminal proceedings. The fragmentation of the criminal process is to be actively discouraged. In any event, a declaration may be of limited utility where founded, as would be the case here, on facts admitted only for the purposes of the satellite litigation.
(Footnote omitted)

19. The principle is, however, one which yields in appropriate circumstances (see Majzoub v Kepreokis & Ors [2009] NSWSC 314 at [25]- [34]). There is no doubt that the Local Court has authority to address the constitutional issue and the issues of statutory construction upon which Australia Post wishes to rely, but that is not decisive of the question of whether this Court should do so. The matters which are raised for consideration are clearly federal matters. They fall within the jurisdiction of this Court. In the present case the declarations, if made, would not touch the conduct of criminal proceedings. They would identify the prosecutions as incompetent and ones which, accordingly, the Local Court had no authority to entertain. On the other hand, if the application by Australia Post was dismissed the prosecutions could proceed uninfluenced by any need to deal with issues already addressed in this Court. In those circumstances, in my view, reliance upon the proposition that criminal proceedings would be “fragmented” has little force.
20. The present case is very different from the circumstances referred to by Heerey J in Second Life Decor Pty Ltd v Comptroller-General of Customs [1994] FCA 1273; (1994) 53 FCR 78, on which reliance was also placed. That was a case where Heerey J found that proceedings brought in the Federal Court seeking to intrude upon the conduct of proceedings in the County Court of Victoria were an abuse of process. I am satisfied that no abuse of process is involved in the present application. On the contrary, it appears to me that there is a case to be seriously advanced that the operation of federal statutes (the WR Act and the Australia Post Act) excludes the operation of the Surveillance Act by reason of constitutional principle or as a matter of statutory construction.
21. In submissions in reply, counsel for Mr Metcher submitted that the Court could, simply as a matter of case management, delay dealing with the application made by Australia Post until after the conclusion of proceedings in the Local Court. No doubt that would be a course which would be available if a satisfactory reason for it existed. However, the prospect that proceedings in this Court might be reactivated if Australia Post was convicted in the Local Court of the charges against it is an unattractive one. At that point, the real possibility would arise of proceedings in this Court being heard concurrently with appellate proceedings in the State court system.

Conclusions

22. I am not satisfied that this Court should decline to exercise its jurisdiction in the present case. No case was made out that the application, or the claims for declaratory relief, amount to an abuse of the processes of this Court. Furthermore, even if the issue turned solely on questions of convenience or policy I would not have been persuaded that the motion should succeed. The application appears to me to represent an unsurprising attempt to secure a binding decision on important and procedurally uncomplicated issues from a court of appropriate standing and authority. A decision on the points, one way or the other, is likely (notwithstanding the possibility of appeals) to clarify important issues raised by the proceedings in the Local Court without the need to descend into the factual details upon which resolution of the charges would depend.
23. I am satisfied that proceedings should continue in this Court. The course of proceedings in the Local Court while that occurs is a matter which will no doubt receive consideration in that court.
24. The motion will be dismissed. Australia Post, in its written submissions, sought costs if the motion was dismissed. No rejoinder was made in any submission in reply. In particular, there has been no suggestion that the Court lacks power to award costs (cf. Tristar Steering and Suspension Australia Ltd v Industrial Relations Commission of NSW (No 2) [2007] FCAFC 95; (2007) 159 FCR 274) or that the ordinary principles should not apply. I see no reason why, in respect of the present motion, there should be a departure from the ordinary practice. The first respondent should, therefore, pay the appellant’s costs of the motion.
25. The parties should, subject to consideration of their rights of appeal, attempt to reach agreement on a sensible timetable for the exchange of evidence to allow the proceedings to go forward with reasonable expedition.
    

I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan.

Associate:

Dated: 22 February 2010