Mutual Life & Citizens' Assurance Co Ltd v Attorney-General (Qld) [1961] HCA 51; (1961) 106 CLR 48 (17 August 1961)

HIGH COURT OF AUSTRALIA

MUTUAL LIFE & CITIZENS' ASSURANCE CO. LTD. v. ATTORNEY-GENERAL (Q.) [1961] HCA 51; (1961) 106 CLR 48

Industrial Law (Q.)

High Court of Australia
Dixon C.J.(1), Fullagar, Kitto(2), Taylor(3) and Windeyer(4) JJ.
(THE HONOURABLE MR. JUSTICE FULLAGAR died at Melbourne before judgement in this appeal was delivered.)

CATCHWORDS

Industrial Law (Q.) - Industrial Court - Exclusive jurisdiction in all industrial causes - Industrial cause dependent upon existence of relationship of employer and employee - Determination of existence of relationship not committed exclusively to Industrial Court or industrial magistrate - Action in Supreme Court for declaration of non-existence of relationship and that plaintiff not liable to make long service leave payments - Jurisdiction of Supreme Court to entertain action - "Industrial cause" - "Industrial matter" - The Industrial Conciliation and Arbitration Acts 1932 to 1955 (Q.), ss. 4, 10 C. 17, 21.

HEARING

Sydney, 1961, March 27; August 17. 17:8:1961
APPEAL from the Supreme Court of Queensland.

DECISION

August 17.
The following written judgments were delivered:-
DIXON C.J. This appeal is by special leave from a judgment or order of the case was stated in pursuance of a judge's order in an action brought by the plaintiff company against the Attorney-General, described as the Minister of Justice, and one Neil, a former employee of the plaintiff. According to the statement of claim Neil had been employed by the company as an insurance agent but on or about 26th February 1955 he entered into an agreement in writing with the plaintiff to become an insurance agent carrying on business on his own account and paid by commission on business submitted to the plaintiff company in accordance with the terms of the agreement. The allegation was that he ceased on that date to be an employee. On 24th September 1956, as it was alleged, the agreement was determined pursuant to a notice in writing given by the defendant Neil. Afterwards a payment was made to him in respect of the amount of long service leave to which he was entitled on the footing that his employment terminated on 26th February 1955. He, however, claimed that he was an employee within the meaning of that word in The Industrial Conciliation and Arbitration Acts 1932 to 1955 (Q.) and remained entitled to payment in respect of long service leave calculated until the termination of his agreement. The pleading alleged further that the officers of the Crown entrusted with the duty of enforcing the provisions of that Act claimed and continued to claim that Neil was an employee until the determination of the agreement and that inspectors had required the plaintiff company to supply information and answer questions in relation to the amounts of his earnings in the disputed period. Finally the statement of claim in its prayer claimed declarations that the defendant Neil was not an employee of the plaintiff within the meaning of the aforesaid Act between 26th February 1955 and 24th September 1956 and that the plaintiff was not liable to the defendant Neil for payment in respect of long service leave in respect of any period between those dates. A further declaration was claimed that no industrial inspector appointed under the said Act was entitled to require the plaintiff to supply the information in question. In pursuance of 0.38, r.2 of the Rules of the Supreme Court it was ordered that a special case should be stated raising the question whether the Supreme Court had jurisdiction to determine whether or not the defendant Neil was an employee of the plaintiff within the meaning of that term as used in The Industrial Conciliation and Arbitration Acts 1932 to 1955 scil. between 26th February 1955 and 24th September 1956. Section 17 of that statute provides that the jurisdiction of the Industrial Court constituted under the Act in all industrial causes, whether original or by appeal, conferred on it by the Act shall be exclusive. It is under this section that the question necessarily arose whether the Supreme Court had jurisdiction in the suit. The special case was argued before Stanley, Mack and Wanstall JJ. and their Honours pronounced a decision against the plaintiff. The formal order in which their decision is expressed recited the question as it appears in the special case in the form already quoted and then proceeded: "And Counsel for the respective parties having agreed before this Honourable Court that the only real questions for the decision of this Honourable Court were: Whether the Supreme Court has jurisdiction on the facts of this case and having regard to the nature of the action (1) To determine, prior to the ascertainment or the purported ascertainment by the Court or an Industrial Magistrate of the relationship which existed between the plaintiff and Neil, whether that relationship was that of employer and employee; and (2) At the same point in time, to make the declaratory orders sought." The formal order then proceeds to recite the appearances of counsel, the reservation of judgment and the delivery thereof and then states the decision as follows:- "This Court is of opinion that questions in the special case should be answered as follows: Answers - (a) No. (b) The plaintiff should pay the taxed costs of the defendants of and incidental to the special case." It is apparent that the formal order ought to have been drawn up to answer the two questions stated to be the only real questions but this was not done and the special case was not amended in order to substitute those questions. It is proper, however, to deal with the appeal in this Court on the footing that some such amendment had been made. The sense of the questions formulated as the real questions appears to be to inquire whether the Supreme Court had jurisdiction in an action as framed to decide whether the relationship was that of employer and employee and thereby forestall a decision of the Industrial Court or industrial magistrate on that question and whether the Court had accordingly jurisdiction to make a declaration of right on the subject. It was suggested that s. 21 of the Act which by sub-s. (4) provides that the validity of any proceedings before an industrial magistrate should not be challenged except as provided in the Act, operated as well as s. 17 to prevent the Supreme Court entertaining the suit. This suggestion, however, may be put on one side. For the suit does not challenge the validity of proceedings before an industrial magistrate notwithstanding that a delegation of the Court's jurisdiction over such matters to an industrial magistrate may have occurred. We were informed from the Bar that a plaint claiming long service leave was lodged on behalf of the defendant respondent Neil in the Industrial Magistrate's Court on 14th August 1959 which was of course within three years from the date when his agreement with the plaintiff appellant was determined, namely 24th September 1956. It was done during the pending of the action, the writ in which was issued on 9th September 1958. The purpose of the action may have been to forestall such a claim but its purpose was not and is not to restrain such a proceeding or to challenge its validity. (at p54)

2. Under s. 10C of the Act provision in relation to long service leave is made covering any and every employee in respect of whose employment there is not in force an award or industrial agreement. Apparently the rights if any in respect of long service leave of Neil and persons covered by the same considerations are governed by s. 10C. Under sub-ss. (2) and (3) of s. 10C the entitlement of such an employee to long service leave on full pay is in respect of his continuous service with one and the same employer and the amount and further amounts are calculated in respect of the period of that continuous service in accordance with what in effect is a scale set out in s. 10C(3) by reference to s. 10B. In these circumstances does s. 17 operate to exclude the jurisdiction of the Supreme Court to entertain the suit? This is entirely a question of jurisdiction, not of the manner in which the jurisdiction should be exercised or of the rules governing the exercise of discretion to make declarations of right. The expression in s. 17 "industrial causes" is affected by the definition of the term "industrial causes" in s. 4. "Industrial cause" is defined to include an industrial matter and an industrial dispute. The expression "industrial dispute" is defined as "any dispute as to any industrial matter". "Industrial matter" is an expression very fully defined. The definition begins with a paragraph of a general character and goes on with a number of paragraphs dealing with various aspects of the relation between employer and employee. An inspection of the definition will show that where there is no relation of employer and employee, at present or in the past, intended or proposed, there can be no industrial matter. It will be noted that the definition is not expressed to be exhaustive but only to include "industrial disputes" and "industrial matters". If therefore s. 10C creates what according to a proper interpretation of the description ought to be considered an industrial cause over which it gives the Industrial Court jurisdiction there is no reason why that jurisdiction should not fall within s. 17. But again an examination of s. 10C and the parts of s. 10B which it incorporates shows that the relation of employer and employee is essential to a claim under s. 10C. Another observation it is necessary to make is that the definition of "industrial matters" really describes relationships and seldom relates to claims of right. The words "industrial cause" in s. 17 must be understood as the kind of cause over which a court has jurisdiction if the jurisdiction of the court is invoked. After all s. 17 is directed at excluding jurisdiction of civil courts and civil courts entertain what very broadly may be called claims of right propounded for their determination or enforcement. It is hard to suppose that the Supreme Court of Queensland possesses any relevant jurisdiction which does not directly or indirectly involve a claim of right in this broad sense. (at p55)

3. Considering the jurisdiction of the Supreme Court apart from s. 17 it would be difficult to doubt that Court's jurisdiction to entertain an action framed as is that now in question. We are not concerned with the question whether the discretion of the Supreme Court to make declarations of right would be exercised properly if the relief prayed were granted: that is not a matter of jurisdiction. Under s. 17 what we are concerned with is simply the extent of the jurisdiction of the Supreme Court that is excluded; and that is measured by the extent, not of the jurisdiction of the Industrial Court, but the extent of the jurisdiction in industrial causes of that Court. To grasp that is to reduce the question in the case to a small compass. It means that it is necessary to determine first what in substance is the jurisdiction which the Supreme Court is asked to exercise in this suit and then to inquire whether pro tanto it forms part of the jurisdiction in industrial causes of the Industrial Court. In effect that means that the question is whether the jurisdiction which the Supreme Court would otherwise possess to declare in a suit that the defendant respondent Neil was not an "employee" of the plaintiff appellant from 26th February 1955 to 24th September 1956 forms part of the jurisdiction in an industrial cause of the Industrial Court. It is important in considering the question to appreciate not only what it is but also what it is not. It is not a question whether for the purpose of exercising its jurisdiction in relation to employers and employees the Industrial Court has authority to ascertain for itself whether a given party is an employer or a given party is an employee. There can be no doubt that it has such an authority. But that tells you nothing as to the conclusive effect of the finding or opinion it reaches. For where its jurisdiction depends on the fact of a party being or not being an employer or an employee it cannot give itself jurisdiction by erroneously determining the question in the affirmative or deprive itself of jurisdiction which it possesses by erroneously determining the question in the negative. Yet before it pronounces a judgment in the supposed exercise of a jurisdiction the Industrial Court like other tribunals must, or at all events should, ascertain whether the fact or event on which its jurisdiction depends exists or occurred. Again it is not a question whether a decision of the Industrial Court is impugned or impeached or any proceedings of the Industrial Court are challenged or any order of that court is vitiated. In other words the protection given to the proceedings and orders and awards of the Industrial Court by s. 21 is not in question and is not relevant. Lastly no one denies that if a man makes a claim for long service leave under s. 10C that the Industrial Court, and by delegation, an industrial magistrate may entertain it. But clearly enough to fall within s. 10C he must be at the material time an employee: for s. 10C(1) says so - "this section applies to any and every employee in respect of whose employment there is not in force an award or industrial agreement". (at p56)

4. Is the task of ascertaining whether he was or was not an employee committed, exclusively, to the Industrial Court (or magistrate) as an industrial cause or part of an industrial cause? When you turn to the definition of "industrial cause" in s. 4 for guidance, you find that it includes, as already stated, an industrial matter and an industrial dispute. Each of these expressions is defined. An "industrial dispute" is a dispute as to an industrial matter and the term "industrial matter" is defined, at great length, but in such a way that you must always have an employee or an employer before you can satisfy the definition. Some of the general words of the definition - "the privileges rights or duties of . . . . employees or of persons who have been . . . . employees" - would suffice to cover, and so give jurisdiction over, claims under s. 10C as industrial causes. But an essential condition of a jurisdiction described by or depending upon those words is that there must be, or have been, an employee. It seems impossible to find in a combination of the definition of "industrial cause" and the definition of "industrial matter" any jurisdiction over an industrial cause unless the character of employee in fact exists or has existed, whatever may be the finding of the Industrial Court. Is it possible to say that the definition of "industrial cause" is not exhaustive and that independently of any definition a claim under s. 10C is an "industrial cause" within s. 17? On the whole it would seem not. For s. 10C itself depends upon the existence, past or present, of the relation of "employee" and the definition of "industrial matter" on that footing is wide enough to cover claims under s. 10C. The true conclusion seems to be that in such a matter there cannot be jurisdiction in the Industrial Court in an industrial cause unless in truth and in fact there be, or has been, an employee who asserts, or of whom it is asserted, that he has rights under s. 10C. (at p57)

5. It follows that the jurisdiction of the Supreme Court exists in respect of the present suit so far as concerns the first question propounded in the recitals to the order of the Supreme Court. It is, it may be hoped, unnecessary, but nevertheless it may be wise to add that the conclusion stated does not nor does anything that has been said in support of it justify any inference that the proceedings or the orders or awards of the Industrial Court are any the less protected from attack by s. 21. (at p57)

6. It would be proper to include in the order an amendment of the case stated substituting the first of the questions as restated in the order of the Supreme Court for those appearing in the case stated. The second of the restated questions covers the whole of the relief claimed and goes beyond what is necessary and beyond what was argued before this court. It is better to omit the second of those questions altogether. The appeal should be allowed, the order of the Supreme Court discharged and the question in the case stated as amended answered - Yes. (at p58)

KITTO J. The very wide jurisdiction conferred on the Industrial Court by s. 7 of The Industrial Conciliation and Arbitration Acts 1932 to 1955 (Q.), would enable that Court, it seems to me, to adjudicate upon every question involved in the respondent's claim for a payment in respect of long service leave under the Acts, including the question whether the respondent was, during the relevant period, an employee of the appellant within the meaning of the Acts; for the jurisdiction extends to every "question arising under this Act". But, as the Chief Justice has pointed out, it is not the whole jurisdiction of that Court, but only its jurisdiction in industrial causes, which is made exclusive by s. 17. The Act does not define the expression "industrial cause" exhaustively, but from the definition of "industrial matters" and from the tenor of the Act generally it is an irresistible conclusion, I think, that "industrial" refers to industrial relations, that is to say relations between employers and employees as such - at least if one puts aside the class of matters referred to in par. (j) of the definition of "industrial matters", relating to trusts, combinations and agreements in restraint of trade; so that a claim of right is not within that part of the Industrial Court's jurisdiction which consists of jurisdiction in industrial causes, unless the parties were employer and employee at the time when the right is said to have accrued, and the right is claimed in virtue of that relationship. Consequently, the question whether the relationship existed at the material time is one to be resolved before any issue involved in the claim can be said to be industrial, in the relevant sense of the word. It is therefore, in my opinion, not a question which s. 17 excludes from the jurisdiction of other courts. (at p58)

2. I agree in the order proposed by the Chief Justice. (at p58)

TAYLOR J. I agree with the reasons and conclusions of the Chief Justice and Kitto J. and merely wish to add a few words. First of all, s. 10 of The Industrial Conciliation and Arbitration Acts (Q.) does not denude courts, other than the Industrial Court, of jurisdiction to decide every issue which can arise in any "industrial cause"; what that section does is to make the jurisdiction of the Industrial Court exclusive "in all industrial causes". That is to say, that its jurisdiction to entertain such causes shall be exclusive. But, wide as the meaning of that expression may be, it does not include a dispute merely as to whether one person is or was employed by another during a specified period. The interlocking definitions of that expression and of "industrial dispute" and "industrial matters" show that "industrial cause" no doubt contemplates, as the foundation for an industrial cause, the existence of an employer-employee relationship; but it is not the relationship, or a dispute as to the relationship, which constitutes the cause; such a cause is constituted by a dispute as to "matters or things affecting or relating to" incidents of the relationship. To my mind the suit instituted in the Supreme Court is not of this character. In substance it raises for consideration merely the question whether the second-named respondent was employed by the appellant during the relevant period and, in my opinion, the Supreme Court had jurisdiction to entertain it. (at p59)

WINDEYER J. I agree that, for the reasons which have been given, the appeal should be allowed. I agree in the order proposed by the Chief Justice. (at p59)

ORDER

Allow appeal. Discharge the order of the Supreme Court.

In lieu thereof order that the special case be amended by substituting for the questions raised by par. 5 thereof for the opinion of the Full Court of the Supreme Court of Queensland the following question, viz. Whether the Supreme Court has jurisdiction on the facts of this case and having regard to the nature of the action to determine, prior to the ascertainment by the Court or an Industrial Magistrate of the relationship which existed between the plaintiff and Neil, whether the relationship was that of employer and employee and that the said question be answered Yes. Order that the respondent, the Attorney-General, a defendant in the action, pay the costs of the appeal to this Court and of the special case in the Supreme Court of Queensland.