HIGH COURT OF AUSTRALIA
BRENNAN CJ, McHUGH AND GUMMOW JJ
RE McJANNET & ORS; EX PARTE THE AUSTRALIAN WORKERS' UNION OF EMPLOYEES, QUEENSLAND & ORS
Costs
(1997) 146 ALR 569
14 August 1997
Costs
Costs—Industrial Law—Absence of jurisdiction of Federal Court—Order absolute for prohibition made by High Court pursuant to s 75(v) of the Constitution—Whether High Court required to refuse to make order as to costs by reason of s 347(1) of the Industrial Relations Act 1988 (Cth)—Whether enforcement of duty not to assume absent jurisdiction was enforcement of a right or duty created or conferred by the Industrial Relations Act.
Orders
Order:
1. The respondent, the Media Entertainment and Arts Alliance, to pay the prosecutors' costs of and incidental to the application for prohibition.
2. The respondent, the Media Entertainment and Arts Alliance, to pay he prosecutors' costs of the argument on costs in this Court.
Decision
BRENNAN CJ, McHUGH AND GUMMOW JJ.
The Australian Workers' Union of Employees, Queensland, obtained in this Court[1] an order absolute directed to Judges of the Federal Court prohibiting them from acting upon, giving effect to, proceeding further upon or enforcing the decision of those Judges made on 4 May 1994 in the Industrial Division of the Federal Court of Australia Victoria District Registry. The respondents to the order nisi, other than the Judges of the Federal Court, were the Media Entertainment and Arts Alliance, an industrial organisation registered under the Industrial Relations Act 1988 (Cth)[2] ("the Act") and two officers of that organisation.
The proceeding before the Federal Court was held to be outside the jurisdiction of the Federal Court and, in particular, outside the scope of that Court's jurisdiction arising either under s 253X or s 253ZC of the Act. There was no proceeding in the Federal Court which fell within the parameters marked out by those sections. This Court held that the Federal Court had wrongly assumed jurisdiction in circumstances where none existed. Accordingly, the order absolute for prohibition was made. When that order was made the parties were given liberty to apply in writing within 14 days for an order as to the costs of the proceedings in the Federal Court and in this Court. After hearing counsel for the prosecutors and the respondent industrial organisation, the Court has ordered that the time for lodging the submission be extended.
Section 26 of the Judiciary Act 1903 (Cth) states:
" The High Court and every Justice thereof sitting in Chambers shall have jurisdiction to award costs in all matters brought before the Court, including matters dismissed for want of jurisdiction."The prosecutors seek an order for costs against the respondent industrial organisation, but that respondent submits that s 347(1) of the Act requires this Court to refuse to make any order for costs. That provision reads:
" A party to a proceeding (including an appeal) in a matter arising under this Act shall not be ordered to pay costs incurred by any other party to the proceeding unless the first-mentioned party instituted the proceeding vexatiously or without reasonable excuse."The question whether a proceeding is in a matter arising under the Act within the meaning of s 347(1) was considered in Re Polites; Ex parte Hoyts Corporation Pty Ltd[3] where this Court made an order absolute for mandamus directing Mr Deputy President Polites to hear and determine a matter which was pending under the Act before him in the Industrial Relations Commission. That order enforced the statutory duty imposed upon the Deputy President by the Act. That was sufficient to make the proceeding in this Court itself a proceeding in a matter under the Act. By contrast, the proceeding in this case was to prohibit the continuance of the proceeding in the Federal Court on the ground that that Court had no jurisdiction under the Act to determine the matter in controversy between the parties as to their substantive rights.
The test for determining whether a proceeding is in a matter arising under the Act for the purposes of s 347(1) is whether the right or the duty that is sought to be enforced owes its existence to a provision of the Act. That test follows from what was said with respect to s 76(ii) of the Constitution in R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett[4], where Latham CJ said:
"[O]ne is compelled to the conclusion that a matter may properly be said to arise under a Federal law if the right or duty in question in the matter owes its existence to Federal law or depends upon Federal law for its enforcement, whether or not the determination of the controversy involves the interpretation (or validity) of the law. In either of these cases, the matter arises under the Federal law. If a right claimed is conferred by or under a Federal statute, the claim arises under the statute."Ex parte Barrett is the root authority which was followed in Re Polites[5]. In the present case, the proceeding before the Federal Court was in a matter arising under the Act because the respondents were claiming a right under the Act against the prosecutors. No order for costs could be made in respect of the proceeding in the Federal Court.
The proceeding in this Court, however, is of a different nature and the controversy between the parties is a different matter[6]. In this Court, the prosecutors asserted the absence of a jurisdiction in the Federal Court to proceed further in the proceeding pending there. The jurisdiction of this Court which the prosecutors invoked is conferred by s 75(v) of the Constitution. The duty which was sought to be enforced was the duty not to assume a jurisdiction which the Federal Court did not have. Although the jurisdiction of this Court to issue mandamus in Re Polites, like the jurisdiction to issue prohibition in the present case, was conferred by s 75(v) of the Constitution, the proceeding in Re Polites answered the description of a matter arising under the Act within the meaning of s 347(1). But the proceeding in the present case does not. The relief which was sought by way of mandamus owed its form and content to the provisions of the Act which imposed the duty that the respondent was commanded to perform. The relief which is sought in an application for prohibition is not for the enforcement of any right or duty created or conferred by the Act. Accordingly, s 347(1) has no application to a proceeding for the issue by this Court of prohibition under s 75(v) of the Constitution.
The respondent organisation was unsuccessful in this Court and the ordinary rule as to costs must be applied. It follows that the respondent organisation should pay the prosecutors' costs of and incidental to the application for prohibition to be taxed. The prosecutors should have their costs of the argument on costs in this Court.
FOOTNOTES:
[1] Re McJannet; Ex parte Minister for Employment, Training and Industrial Relations (Q) (1995) 184 CLR 620.
[2] The Industrial Relations Act 1988 (Cth) has been renamed the Workplace Relations Act 1996 (Cth) and that Act and others have been amended in other respects by the Workplace Relations and Other Legislation Amendment Act 1996 (Cth). Further amendments were introduced by the Workplace Relations and Other Legislation Amendment Act (No 2) 1996 (Cth). This judgment refers in the present tense to the statutory position as it stood at the relevant time.
[3] (1991) 173 CLR 78.
[4] (1945) 70 CLR 141 at 154.
[5] (1991) 173 CLR 78 at 93.
[6] As to the distinction between "proceeding" and "matter", see Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457 at 509.