FEDERAL COURT OF AUSTRALIA

Australian Industry Group v Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union [2002] FCAFC 386

PRACTICE AND PROCEDURE – leave to appeal – application by non-party – when permissible – standing – unsuccessful party not appealing – whether justiciable controversy

Constitution ss 71, 75, 76, 77

Federal Court of Australia Act 1976 (Cth) ss, 21, 23, 24

Workplace Relations Act 1996 (Cth) ss 170MN, 170NF, 170NG, 470, 471

Abebe v Commonwealth of Australia (1997) 197 CLR 510 cited

Attorney-General (NSW) v Brewery Employee’s Union of New South Wales (1908) 6 CLR 469 cited

Attorney-General (NSW) v Commonwealth Savings Bank of Australia (1986) 160 CLR 315 referred to

Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493 cited

Bateman’s Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247 cited

Breen v Williams (1994) 35 NSWLR 522 referred to

Commonwealth v Construction, Forestry, Mining and Energy Union (2000) 98 FCR 31 followed

Corporate Affairs Commission v Bradley [1974] 1 NSWLR 391 cited

Cuthbertson v Hobart Corporation (1921) 30 CLR 16 applied

Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 referred to

Deputy Federal Commissioner of Taxation (NSW) v WR Moran Pty Ltd (1939) 61 CLR 735 cited

Fencott v Muller (1983) 152 CLR 570 referred to

Judiciary and Navigation Acts; In re (1921) 29 CLR 257 considered

Gardner v Dairy Industry Authority of New South Wales (1977) 18 ALR 55 referred to

Hooper v Kirella Pty Ltd (1999) 96 FCR 1 considered

Lambert v Weichelt (1954) 28 ALJ 282 cited

Levy v State of Victoria (1997) 189 CLR 579 cited

Macleod v Australian Securities and Investments Commission  (2002) 76 ALJR 1445 referred to

Maritime Union of Australia v Burnie Port Corporation Pty Ltd (2000) 101 IR 435 discussed

McBain, re; Ex parte Australian Catholic Bishops Conference (2002) 76 ALJR 694 distinguished

Moorgate Tobacco Co Ltd v Philip Morris Ltd (1980) 145 CLR 457 referred to

Multicon Engineering Pty Ltd v Federal Airports Corporation (1997) 47 NSWLR 631 cited

Onus v Alcoa of Australia Ltd (1981) 149 CLR 27 cited

Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1 referred to

Poulos v Waltons Stores (Interstate) Ltd (1986) 68 ALR 537 considered

Robinson v Western Australian Museum (1977) 138 CLR 283 cited

Shields v Official Receiver in Bankruptcy (1996) 66 FCR 171 distinguished

Shop Distributive & Allied Employees Association v Minister for Industrial Affairs (SA) (1995) 183 CLR 522 applied

Stack v Coast Securities (No. 9) Pty Ltd (1983) 154 CLR 261 referred to

Telstra Corporation Ltd v Hurstville City Council (2002) 189 ALR 737 cited

Thompson v Hodder (1989) 21 FCR 467 considered

Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 200 CLR 591 applied

United States Tobacco Co v Minister for Consumer Affairs (1988) 20 FCR 520 cited

Warramunda Village Inc v Pryde (2001) 105 FCR 437 referred to

Witness v Marsden (2000) 49 NSWLR 429 applied

AUSTRALIAN INDUSTRY GROUP v AUTOMATIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION AND EMWEST PRODUCTS PTY LIMITED TRADING AS EMAIL METERING (ABN 78 002 894 224)

V 125 OF 2002

GRAY, GOLDBERG and FINKELSTEIN JJ

29 NOVEMBER 2002

MELBOURNE

On appeal from a single judge of the Federal Court of Australia

THE COURT ORDERS THAT:

1        Leave be granted to the Minister for Employment and Workplace Relations to intervene in the hearing of the application for leave to appeal.

2        Leave be granted to the Australian Industry Group to appeal from the judgment of the Court given on 6 February 2002.

3        The Australian Industry Group file and serve its Notice of Appeal within 7 days.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

GRAY J:

The nature of the proceeding

1                     This is an application for leave to appeal from a judgment of a single judge of this Court, made by a non-party to the proceeding in which that judgment was given. 

2                     In proceeding number V 985 of 2001, Emwest Products Pty Ltd, trading as Email Metering (“Emwest”) sought relief against the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (“the Union”), an organisation registered pursuant to the Workplace Relations Act 1996 (Cth) (“the WR Act”).  Emwest applied for a penalty, alleging a contravention by the Union of s 170MN(1) of the WR Act, which provides relevantly:

“From the time when:

(a)       a certified agreement …

comes into operation until its nominal expiry date has passed, an … organisation … must not, for the purpose of supporting or advancing claims against the employer in respect of the employment of employees whose employment is subject to the agreement …, engage in industrial action.”

Emwest also sought declaratory and injunctive relief, alleging in addition to the contravention a threatened contravention of s 170MN(1). 

3                     In the course of the proceeding, on 18 September 2001, Kenny J granted an interlocutory injunction, restraining the Union from directing, inducing, encouraging, procuring or authorising any employee of Emwest at a particular location to stop work, or fail to work otherwise than in accordance with a particular certified agreement, for the purpose of supporting or advancing claims against Emwest for redundancy benefits in respect of such employees.  Emwest did not pursue its claim for a penalty, but continued to seek declaratory and injunctive relief.  The proceeding went to trial and her Honour gave judgment on 6 February 2002, dismissing Emwest’s application.

4                     In her Honour’s reasons for judgment, Emwest Products Pty Ltd v Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union [2002] FCA 61 (2002) 112 IR 388, she found that there existed a certified agreement, binding Emwest and the Union, relating to redundancy, that had been certified on 14 December 1998 and had a nominal expiry date of 30 September 2000.  Her Honour also found that there was a certified agreement, certified on 13 October 1999 and with a nominal expiry date of 30 June 2000, binding Emwest and the Union, dealing with a range of terms and conditions of employment, including redundancy.  A further certified agreement, certified on 30 April 2001 and with a nominal expiry date of 30 June 2003, binding Emwest and the Union, provided for a range of employment conditions but did not contain any provision dealing directly with redundancy. 

5                     After the expiration of the first two agreements, from July 2001, negotiations took place between representatives of the Union and Emwest relating to a new redundancy agreement.  They took place in the context of the proposed sale of Emwest’s business at Newport in Victoria to a new owner.  In due course, in support of the claim for a new redundancy agreement, the Union gave notice to Emwest of proposed industrial action by Emwest’s employees at Newport.  It was accepted that the third certified agreement, dealing with terms and conditions of employment of those employees in general, but not with redundancy, was still in operation.

6                     In her reasons for judgment, Kenny J dealt with the issue of the construction of s 170MN(1) of the WR Act.  At [42] – [43], her Honour identified the issue as follows:

“The effect of s 170MN is straightforward enough.  Where there is on foot a certified agreement, the nominal expiry date of which has not yet passed, s 170MN(1) prohibits industrial action by an employee whose employment is subject to the agreement, or by a union bound by the agreement or officer of such a union, ‘for the purpose of supporting or advancing claims against the employer in respect of the employment of employees whose employment is subject to the agreement’.  The prohibition in s 170MN(1) against industrial action is, on any view, a limited one.  The prohibition does not extend to industrial action taken for a non-prescribed purpose, even where there is a relevant certified agreement:  cf [Email Ltd v Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union [2000] FCA 1932] at [12] per Madgwick J.  This aspect of the provision’s operation reflects the statutory assumption that when parties make an agreement with respect to employment, they do so on the basis that they will not resort to industrial action during the currency of the agreement in respect of the matters upon which they have reached agreement.

The issue in this case arises out of the ambiguity created by the use of the expression ‘in respect of the employment of employees whose employment is subject to the agreement’.  The reference to ‘the agreement’ is a reference to the certified agreement, the nominal expiry date of which has not yet passed.  The whole expression is, however, capable of having more than one meaning.  The expression may be read as referring to ‘the employment of employees [where this] employment is [specifically] subject to the agreement’.  That is, the expression may refer to only the matters actually agreed upon by the parties in the agreement.  If so, the prohibition would relevantly extend only to industrial action taken for the purpose of advancing claims in respect of such agreed matters.  The union contends that this is the correct construction of s 170MN(1).”

7                     After examining some relevant authorities, her Honour said at [48] – [49]:

“The question of the proper construction of the expression ‘in respect of the employment of employees whose employment is subject to the agreement’ is not free from doubt.  Although the construction that Emwest favours is perhaps the most obvious, and results in a relatively straightforward application of the provision, for the reasons set out below, I am not persuaded that it is to be accepted as the preferable construction.

Part VIB permits a certified agreement to cover a single business, or part of a single business such as a geographically distinct part of an employer’s business or a distinct operational or organisational unit: see ss 170L and 170LB.  Part VIB also contemplates that employees may be subject to more than one certified agreement (the nominal expiry date of which has not passed) at any one time: see s 170LY(1)(b) of the Act.  This latter matter is, as appears below, significant in resolving the issue with which I am presently concerned.”

8                     Her Honour adopted a construction that appeared to her to be consistent with the purpose of s 170MN.  At [51], she referred to the scheme of Div 8 of Pt VIB of the WR Act, which deals with the process of negotiating a certified agreement, and particularly with the circumstances in which protected action may be taken for the purpose of persuading the opposite party in the negotiations to concede.  At [52], her Honour said:

“Save for the ambiguity attaching to the expression ‘in respect of the employment of employees whose employment is subject to the agreement’ in s 170MN(1), there is nothing in the above-mentioned provisions that would support the proposition that the bargaining regime for a certified agreement is not available in respect of the bona fide negotiation of any certified agreement that may be negotiated and made under the Act, subject to the statutory safeguards: see, e.g. s 170MW.  On the contrary, save possibly for s 170MN, the statutory assumption is not only that more than one certified agreement, the nominal expiry date of which is not yet passed, may apply at a work site but that the remainder of Div 8 would apply in relation to the negotiation of a certified agreement under the Act.”

9                     At [55] – [56], her Honour said:

“Assuming the policy behind s 170MN is to encourage parties to adhere to the bargain they have struck, then the policy would not, in my view, be defeated by permitting the parties to negotiate effectively in respect of matters that were not the subject of a relevant certified agreement.  The policy is sufficiently protected if s 170MN(1) is construed as prohibiting parties to a certified agreement from resorting to industrial action to undo the matters they have agreed upon in the certified agreement, if its nominal expiry date has not passed.  If the parties so desired, they could agree that a certified agreement made by them was intended to cover the whole field of relevant employment, thereby excluding the possibility of industrial action during the currency of the agreement.

From time to time, issues about the purpose of industrial action will arise, on whatever view one takes of s 170MN.  If the construction for which the union contends is accepted, issues may well arise as to whether a matter was dealt with in a relevant agreement.”

10                  At [59], her Honour concluded:

“For the reasons given, s 170MN(1) does not prohibit industrial action for the purpose of advancing the redundancy claims of Emwest’s employees at Newport, notwithstanding the 2000 agreement.”

11                  Undoubtedly, Emwest had a right of appeal to the Court in its appellate jurisdiction, pursuant to s 24(1)(a) of the Federal Court of Australia Act 1976 (Cth) (“the Federal Court Act”), as the unsuccessful applicant in proceeding number V 985 of 2001.  Emwest did not exercise this right.  Instead, the dispute between the Union, Emwest and its employees at Newport in relation to redundancy entitlements was resolved by agreement after negotiation. 

12                  On 27 February 2002, the Australian Industry Group (“AIG”), also an organisation registered pursuant to the WR Act, filed an application for leave to appeal from the judgment of Kenny J in proceeding number V 985 of 2001.  In its original form, the application named the Union as the only respondent.  Pursuant to a direction of the Court, given on 4 March 2002, Emwest was added as a respondent to the application, it having an obvious interest in the question whether there should be an appeal from the judgment of Kenny J.

13                  No doubt because it was apprehended that there would be an argument about the question whether an appeal by AIG from the judgment of Kenny J would give rise to a “matter” of the kind referred to in Ch III of the Constitution, the Australian Government Solicitor, acting on behalf of the Minister for Employment and Workplace Relations (“the Minister”), who sought to intervene, served notices pursuant to s 78B of the Judiciary Act 1903 (Cth) on the Attorney-General for the Commonwealth of Australia and for each State and Territory.  No Attorney-General sought to intervene in the proceeding.

The Minister’s intervention

14                  As I have said, the Minister sought to intervene in the proceeding.  He claimed to do so in the exercise of his right to intervene, given by s 471 of the WR Act.  That right is available, by s 471(1), “in a proceeding before the Court in a matter arising under this Act.”  It is likely that the word “matter” in s 471(1) of the WR Act has a meaning the same as, or similar to, the word “matter” in s 76 and 77 of the Constitution.  Compare Poulos v Waltons Stores (Interstate) Ltd (1986) 68 ALR 537 at 542 – 543 per Gray J, with whom Keely J agreed, and Thompson v Hodder (1989) 21 FCR 467 at 469.  On one view of the scope of such a matter, the question whether the Minister has a right to intervene might therefore give rise to the very question that is at the heart of AIG’s application, namely whether there exists a matter that would found the jurisdiction of the Court.  Invoking the general power of the Court pursuant to s 470 of the WR Act to grant leave to intervene in a proceeding would give rise to the very same issue, as that section requires the proceeding to be “in a matter arising under this Act”.

15                  The Minister therefore also sought to intervene on the basis of the general principles applicable to intervention in proceedings in a court.  Alternatively, the Minister sought to be heard by the Court as amicus curiae.  The Court heard submissions from counsel for the Minister in support of AIG’s application for leave to appeal.  It did so on the practical basis that it could not resolve in advance a major question at issue on that application.  In my view, it is unnecessary to consider at length the possible justifications for hearing those submissions.

16                  For reasons which appear below, I take the view that the question whether AIG is entitled to apply for, and should be granted, leave to appeal is itself a matter, the subject of which is distinct from the question of the correctness of Kenny J’s judgment, so that the Court has jurisdiction to hear and determine the application for leave.  Such a more limited matter arises only under s 24 of the Federal Court Act.  It does not arise under the WR Act, so does not give rise to the Minister’s right of intervention under s 471, or the power of the Court to allow intervention under s 470.  It is therefore necessary to resort to the ordinary principles on which leave to intervene in a proceeding is granted.  Although no affidavit material was filed to demonstrate what interest of the Minister he seeks to pursue by supporting AIG’s application for leave to appeal, it may be taken that he, as the Minister responsible for the administration of the WR Act, has a greater interest than that of a member of the public.  This is sufficient to justify a grant of leave to intervene on ordinary principles.  For the purpose of regularising the position, I would grant the Minister leave to intervene in the application by AIG for leave to appeal.  In the event that that application were successful, there would be no need for any further grant of leave, as the Minister would undoubtedly have a right pursuant to s 471 of the WR Act to intervene in the appeal, which would unquestionably answer the description of a proceeding in a matter arising under the WR Act.

The grant of leave to appeal to a non-party

17                  The question whether a non-party to the proceeding in which a judgment has been given can appeal from that judgment by leave has been dealt with in several cases.  The most recent is the judgment of the Full Court in Commonwealth v Construction, Forestry, Mining and Energy Union [2000] FCA 453 (2000) 98 FCR 31.  At [18] – [19], the Full Court referred to s 24 of the Federal Court Act and said:

“There being a judgment, there can be no doubt that jurisdiction to hear an appeal from it is conferred by s 24.  The point of controversy here arises because an entity other than a party wishes to invoke that jurisdiction.  Having regard to the legislation and the authorities discussed in the preceding paragraphs, we are of the view that s 24 picks up the long established practice that permits non-parties to appeal by leave.  In [Witness v Marsden [2000] NSWCA 52 (2000) 49 NSWLR 429 at [85]] Heydon JA referred to the observations of Knox CJ and Starke J in Cuthbertson v City of Hobart (1921) 30 CLR 16 at 25 that a person not a party to proceedings cannot appeal except by leave, and that leave is given as a rule if the person applying might properly have been a party.  Heydon JA said:

            ‘Their Honours do not appear to have been propounding an
            exhaustive test for leave to appeal.  The test propounded, in any
            event, must give way to the structure of legislation and rules within
            which the Court in question works:  rights of appeal depend on
            statute, not common law.  The Supreme Court of New South Wales is
            in part controlled by Part 37 rule 8, as expounded by authority since
            the time of Cuthbertson’s case.  Section 101 of the Supreme Court Act
            and equivalent provisions in other jurisdictions are construed in the
            light of more generous standing tests such as whether persons are
            “aggrieved” or “sufficiently interested”.’

Cases such as Sen v The Queen (1991) 30 FCR 173 and Shields v Official
Receiver in Bankruptcy (1996) 66 FCR 171, in which it is said that a non-party cannot appeal under s 24, do not bear upon the present question, which is whether a non-party can obtain leave to appeal, not whether the non-party can appeal as of right.”

18                  The Federal Court Act is an exercise of the legislative power conferred by ss 71, 76 and 77 of the Constitution, whereby the Commonwealth Parliament can create a Federal Court and confer on it defined jurisdiction in respect of “any matter” answering the description, among others, of a matter arising under any laws made by that Parliament.  Without the existence of a “matter” of a relevant kind, there cannot be an exercise of the judicial power of the Commonwealth of Australia by a court created in the exercise of that legislative power.  Accordingly, the power to grant leave to a non-party to appeal from a judgment pursuant to s 24 of the Federal Court Act can only be exercised where there is such a “matter”.

19                  Three related questions therefore arise on the application for leave to appeal.  The first is whether there exists a “matter”, so as to found the jurisdiction of the Court to hear the proposed appeal, pursuant to s 24 of the Federal Court Act.  The second question is whether AIG has sufficient standing to be granted leave to appeal from the judgment of Kenny J.  If positive answers are given to both of those questions, the third question arises whether leave ought to be granted on the principles usually applicable to grants of leave to appeal.  Of course, the answer to the first question depends very much upon the answer to the second and the two cannot really be separated.  Nevertheless, for the sake of clarity, it is desirable to discuss the three questions separately.

The existence of a matter

20                  The usual starting point for an inquiry into whether a matter exists for the purposes of the conferral of the judicial power of the Commonwealth upon a Court is the judgment of the High Court of Australia in In re Judiciary & Navigation Acts (1921) 29 CLR 257 at 265.  There, the Court said:

“It was suggested in argument that ‘matter’ meant no more than legal proceeding, and that Parliament might at its discretion create or invent a legal proceeding in which this Court might be called on to interpret the Constitution by a declaration at large.  We do not accept this contention; we do not think that the word ‘matter’ in sec. 76 means a legal proceeding, but rather the subject matter for determination in a legal proceeding.  In our opinion there can be no matter within the meaning of the section unless there is some immediate right, duty or liability to be established by the determination of the Court.”

21                  This passage was cited by Mason, Murphy, Brennan and Deane JJ in Fencott v Muller (1983) 152 CLR 570 at 603, where their Honours then said:

“It follows that a particular federal matter may be part only of a proceeding (as Menzies J. observed in Felton v. Mulligan [(1971) 124 CLR 367 at 382 – 383]) and it is possible to envisage a proceeding where a party seeks to litigate both a federal claim and a distinct and unrelated non-federal claim (as Stephen, Mason, Aickin and Wilson JJ. observed in Moorgate Tobacco Co. Ltd. v Philip Morris Ltd [(1980) 145 CLR 457 at 482]).  On the other hand, particular legal proceedings may relate to part only of what should properly be seen as the one larger ‘matter’.  An obvious example is to be found in the not uncommon situation under pre-Judicature Act systems where separate proceedings in equity lay in certain circumstances to enjoin a plaintiff in common law proceedings from pursuing his common law rights.

Though the concept of ‘matter’ may be narrower than that of a ‘legal proceeding’, it is a term of wide import.  ‘The word “matters”’, Griffith C.J. said in South Australia v. Victoria [(1911) 12 CLR 667 at 675], ‘was in 1900 in common use as the widest term to denote controversies which might come before a Court of Justice’.  The concept of ‘matter’ as a justiciable controversy, identifiable independently of the proceedings which are brought for its determination and encompassing all claims made within the scope of the controversy, was accepted by a majority of the Court in Philip Morris.”

22                  Cases such as Philip Morris and Fencott were concerned mainly with the concept of a matter as a means of attracting to federal jurisdiction non-federal elements of a controversy.  They were not concerned with attempting to define the limits of a matter as to parties, subject-matter or time.  By contrast, AIG’s application for leave to appeal raises the question whether there can be a matter in which a non-party to a proceeding seeks to question by way of appeal the correctness of a judgment given in that proceeding when no party to that proceeding has exercised or proposes to exercise a right of appeal.  To say that a matter is a justiciable controversy as to some immediate right, duty or liability may be a useful definition for some purposes, but it does not provide a ready answer to the question at issue here.  It is necessary to explore to some extent the limits of the concept of a matter. 

23                  For the purpose of seeking to discern the principles according to which the limits of a matter may be determined, it may be assumed that a particular person has engaged, or proposes to engage, in conduct that might be alleged to involve a contravention of some law.  It may also be assumed that such conduct might give rise to a legal duty or liability on the part of that person towards another person, or might give rise to a right of the second person against the first person.  It can hardly be imagined that the mere existence of these facts can give rise to a matter.  The second person may be totally unaware of the occurrence or threat of the conduct.  Even if aware, the second person may choose, or be constrained by circumstances, to do nothing to enforce the right, duty or liability.  The potential for the creation of a matter exists, but no matter has been created.  It is only when the second party takes some step to create a justiciable controversy about the conduct in question that a matter will come into existence.  It may be that threatening to commence legal proceedings unless the first person desists from the conduct or makes amends would be sufficient.  By that act, the parties will have been brought into conjunction in relation to the conduct in a way that brings about a justiciable controversy.  The actual commencement of a legal proceeding in relation to the conduct will certainly have that effect. 

24                  It may be that the conduct, or threatened conduct, in question will give rise to a range of rights in, or duties or liabilities owed to, a number of different persons.  Some of those persons may choose, or be constrained by circumstances, to do nothing in relation to the conduct.  Others may threaten or take legal proceedings.  It could hardly be contended that the matter or matters that come into existence as a result of the actions of those who do threaten or take legal proceedings include as parties those who do nothing. 

25                  The possibility of a multiplicity of parties gives rise to the question whether, when legal proceedings are threatened or instituted, there will be a single matter, or more than one matter.  There can be no doubt that it is possible for a matter to have many parties, even in a situation where the rights, duties and obligations at issue are not the same in relation to each of those parties.  There is also no reason why there cannot be a number of separate matters connected with the same conduct, involving different parties, where there has been no step taken to bring the parties into conjunction, and thereby to create a single matter.  Joinder of all the relevant parties into a single proceeding is an obvious example of such a step.  It is possible, however, that separate proceedings may be part of a single matter:  Hooper v Kirella Pty Ltd [1999] FCA 1584 (1999) 96 FCR 1 at [53] – [55].  The question whether there is a single matter or more than one matter, when rights, duties or obligations of a number of parties in relation to a single subject matter, if it needs to be answered, does not appear to be easy.

26                  The difficulty in identifying whether there exists one matter or more than one matter is not limited to the issue of parties.  Differences among the rights, duties or liabilities sought to be enforced may give rise to the view that a single justiciable controversy does not exist, but that more than one such controversy exists.  Of particular importance in the present case is the question whether the fact that a proceeding is an appeal means that there is underlying it a matter separate from the matter that underlay the proceeding which led to the judgment from which the appeal is brought.  In a proceeding at first instance, the controversy is as to the ascertainment of the facts that form the basis of the complaint or complaints the subject of the case, and the application to those facts of the remedy or remedies sought.  Once judgment is given in the proceeding, that controversy is quelled.  The question then arises whether the matter has been brought to an end by the judgment quelling the controversy, or whether the matter remains alive because of the possibility of appeal.

27                  On the one hand, the view can be taken that the matter underlying a first instance proceeding must remain alive even after judgment has been given.  It may be necessary for the judgment to be amended, even after it has been perfected, because of a slip.  The alternative view is that an application to amend a judgment because of a slip gives rise to a new matter, namely a controversy about whether the judgment as recorded represents correctly the conclusion of the court about every aspect of the proceeding.  In similar fashion, it might equally be said that the original matter remains alive after judgment, for the purpose of the possible exercise of a right of appeal, or that the exercise of the right of appeal gives rise to a new matter, namely a controversy about the correctness of the judgment appealed from.  Of course, the controversy in any appeal will involve some or all of the elements that made up the controversy at first instance, but this provides no ground for saying that the appeal must be regarded as part of the same controversy as led to the first instance judgment for the purposes of the application of the concept of matter.

28                  Although there has been little discussion of the two possible views about an appeal, the prevailing view in the High Court of Australia seems to be that the matter underlying an appeal is separate from the matter underlying the proceeding in which the judgment from which the appeal is brought was given.

29                  In Attorney-General (NSW) v Commonwealth Savings Bank of Australia (1986) 160 CLR 315, the question was whether it was open to the High Court of Australia to remove an appeal pending in the Court of Appeal in New South Wales into the High Court, pursuant to s 40 of the Judiciary Act 1903 (Cth).  The High Court held that such a removal was permissible, and that dealing with the proceeding so removed would be an exercise of the original, and not the appellate, jurisdiction of the High Court.  At 323, the High Court said:

“For present purposes we do not need to discuss the word ‘matter’ in s. 76, for that task has been undertaken on many occasions in the past.  It is sufficient to make the point that ‘matter’ is wide enough to include any subject-matter for determination in legal proceedings, whether the proceedings be proceedings at first instance or proceedings by way of an appeal.  When s. 76(i) is so understood, it enables the Parliament to confer original jurisdiction on the High Court in such a matter, not only when the matter is litigated in proceedings commenced in the High Court, but also when the matter arises in proceedings in some other court, whether the matter arises in proceedings at first instance or by way of appeal.”

The issue in that case did not require the High Court to determine whether the appeal in New South Wales was in a separate matter from the proceeding at first instance.  Nor did the High Court express a view as to whether there was or was not involved a single matter. 

30                  More recently, in Macleod v Australian Securities & Investments Commission [2002] HCA 37 (2002) 76 ALJR 1445, the High Court dealt with an issue as to whether a federal statutory authority, which had unsuccessfully prosecuted a person for offences under State legislation, could avail itself of a right of appeal given to a person aggrieved by a decision, again by State legislation.  It was held that the State provision for appeal did not empower the federal statutory authority to institute the appeal.  At [6], Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ said:

“The nine heads of ‘matters’ which fall within federal jurisdiction are identified in Ch III of the Constitution as to some by the source of the rights and liabilities in question or by the remedy sought.  However, s 75(iii) is attracted by the presence of the Commonwealth as a ‘party’ in a ‘matter’; the rights or liabilities which supply content to the ‘matter’ in question; and the nature of the remedy sought are to be ascertained aliunde.  In the proceeding in the Court of Petty Sessions, the identity of the ASC as the complainant attracted the exercise by that Court of federal jurisdiction; the liability sought to be established in the proceeding, and the substantive content of the ‘matter’ within the head of s 75(iii) was the determination of liability for contravention of certain laws of Western Australia and the imposition of penalties if liability was established.  It is accepted that, for the purposes of Ch III of the Constitution, in particular s 75(iii), the ASC is to be regarded as ‘a party’ which is ‘the Commonwealth’.”

31                  Their Honours then discussed the subsequent history of the proceedings at [13] – [18].  Relevantly, their Honours said:

“In November 1998, after a summary hearing before a magistrate in the Court of Petty Sessions, Mr Macleod was convicted in respect of the second count, concerning the prediction of the annual profit.  He was found not guilty in respect of the first count, concerning the recovery of diamonds.

The decision and orders by the magistrate resolved the controversy between the ASC and Mr Macleod, namely the determination of his liability for contravention of State law upon the two counts in question.  That particular exercise of federal jurisdiction was thereby concluded.  However, Pt VIII (ss 183-219) of the Justices Act provided for appeals.  In particular, s 185 provided for an appeal, by leave, to the Supreme Court of Western Australia constituted by a single judge.

…

The appeal came before a Commissioner sitting as a single judge of the Supreme Court.  The ASC appeared, by counsel, as the respondent.

The presence of the ASC as a party again attracted the exercise of federal jurisdiction, on this occasion by the Supreme Court, but in a ‘matter’ in which the right sought to be vindicated was that conferred upon Mr Macleod as an appellant by Pt VIII of the Justices Act.  In particular, Mr Macleod sought to have removed his conviction on count 2 of the complaint and the controversy was whether the Court of Petty Sessions had erred in convicting him.  On 31 May 1999, the Commissioner, pursuant to s 199 of the Justices Act, ordered that the appeal be allowed, the judgment of the Court of Petty Sessions be set aside and in place thereof it be ordered that counts 1 and 2 of the complaint be dismissed with Mr Macleod to have his costs of those proceedings.  The Commissioner also ordered that the ASC pay Mr Macleod’s costs of the appeal to the Supreme Court.

…

Section 206A(2) of the Justices Act conferred standing to apply for leave to appeal (and, inferentially, to institute and conduct an appeal if leave be granted) upon ‘a party’ to the first appeal.  The ASC had been a party to the appeal before the Commissioner and thus answered the description in par (a) of s 206A(2).  On the application by the ASC, the Full Court (Malcolm CJ, Ipp and Parker JJ) on 16 August 1999 granted leave to appeal from the decision of the Commissioner.  Thereafter, on 13 April 2000, the Full Court (Ipp, Anderson and Owen JJ) allowed the appeal, ordered that the orders made by the Commissioner be set aside, that the conviction on count 2 be restored, the costs order made by the magistrate be reinstated and Mr Macleod pay the ASC’s costs of the appeal to the Commissioner and to the Full Court.”

32                  Their Honours characterised these events at [20] as follows:

“The presence of the ASC as a party had engaged the Commissioner, as it had the Court of Petty Sessions, in the exercise of federal jurisdiction.  Likewise, by appealing, with leave, to the Full Court, the ASC engaged the Full Court in the exercise of federal jurisdiction in a ‘matter’ in which the Commonwealth was a party within the meaning of s 75(iii) of the Constitution.  However, at each level, the ‘matter’ had a distinct substantive content supplied by State law.  At the Full Court level, the liability which the ASC sought to establish was that of Mr Macleod to suffer the setting aside of the orders in his favour by the Commissioner and the reimposition of the penalty imposed at first instance in respect of the conviction on count 2.”

33                  These statements clearly support the view that an appeal is conceived as being based upon a matter separate from the matter on which the first instance proceeding was based.  In essence, the substance of the matter underlying an appeal is the controversy as to whether the judgment below should be set aside and orders different from those made in the court below should be made.  Support for that view is also to be found in Re McBain; Ex parte Australian Catholic Bishops Conference [2002] HCA 16 (2002) 188 ALR 1.  In that case, the controversy at first instance was as to whether a doctor who desired to provide fertilisation treatment to a woman who was neither married nor living with a man in a de facto relationship was not precluded by State legislation from providing that treatment, on the ground that the State legislation was inconsistent with federal legislation.  In the course of the proceeding at first instance, two conferences of bishops had applied to be heard as amici curiae and had been so heard.  Following the judgment in that case, no party to the case exercised the right of appeal available to the unsuccessful parties.  The two conferences of bishops, one with the fiat of the Attorney-General for the Commonwealth, instituted a proceeding in the High Court, seeking to quash by certiorari the judgment at first instance.  By a majority, the High Court held that they had no standing to institute the proceeding.  In doing so, the majority of the court recognised that, for it to have jurisdiction to entertain an application for certiorari, there would have to be a matter in the constitutional sense.  There was no such matter, because there was no justiciable issue between the bishops (or the Attorney-General as relator in one proceeding) on the one hand and the doctor or the judge at first instance on the other hand.  At [64], Gaudron and Gummow JJ said:

“The subject-matter for determination in each proceeding is whether there is an error of law on the face of the record of the Federal Court, represented by the outcome of the proceeding before Sundberg J, and the purging of that record by administration of a remedy in the nature of certiorari.  None of the applicants presents a claim for declaratory relief to reflect a particular view of the construction of the Commonwealth Act and the State Act and the operation of s 109 of the Constitution.  Rather, the whole of the relief the applicants seek is directed to the outcome of the particular proceeding which was disposed of in the Federal Court.”

34                  At [246], Hayne J said:

“Reduced to its essentials, the application to this Court is by a third party (here the Episcopal Conference and the Commonwealth Attorney-General) for orders that rights, duties and obligations declared to exist as between two other parties (Dr McBain and State of Victoria) are not as they were determined to be by Sundberg J.  Understood in that way it is apparent that the claim gives rise to no ‘matter’ except, of course, the controversy in this Court about whether there is a ‘matter’.  (It is desirable to add this qualification, if only to point out that that latter controversy unquestionably founds the jurisdiction of this Court to entertain the applications that have been made.)  The applications will quell no controversy about any immediate right, duty or liability of the applicants for relief; each application seeks only to enliven the subject-matter of a controversy between others which has already been quelled by the application of judicial power.”

35                  It is of no moment for present purposes to attempt to distinguish between an application to the High Court of Australia for certiorari and an appeal to the Full Court of this Court pursuant to s 24 of the Federal Court Act.  In either case, there can be no jurisdiction to deal with a proceeding unless there is a matter to form the basis for that jurisdiction.  The reasoning in Macleod and McBain supports the view that jurisdiction to hear an appeal is based on a matter separate from that underlying the proceeding in which the judgment the subject of the appeal was given.  In my view, that reasoning also supports the view that jurisdiction to hear the application for leave to appeal is founded on a separate matter again, in which the controversy is as to whether leave can, and should, be granted.  If it were otherwise, the mere bringing of an application for leave to appeal would itself provide the answer to the first question arising on such an application, namely whether there exists a matter on which to found jurisdiction for the proposed appeal.

36                  AIG was not a party to the proceeding in which the judgment of Kenny J was given.  It makes no case to the effect that it sought to vindicate any right, duty or obligation in a way that would have made it a party to the matter in which that proceeding was brought.  It may therefore be unnecessary to decide whether its proposed appeal would itself be a separate matter or part of the same matter as the dispute between Emwest and the Union that was resolved by the judgment of Kenny J or by the subsequent agreement between them.

37                  In my view, it is necessary for AIG to show that there is a justiciable controversy between it and the Union as to the correctness of the judgment of Kenny J, before it can be granted leave to appeal.  In other words, it needs to show that it seeks to vindicate against the Union some immediate right, duty or liability of AIG, not merely to enliven the subject-matter of a controversy between others which has already been quelled by the application of judicial power.  This leads to an inquiry as to the standing of AIG to seek some remedy or relief against the Union.

38                  The question whether a party has standing to bring the proceeding may be part of the controversy that constitutes the “matter”, so that it is not always necessary to establish that there is a party with standing to bring a proceeding, in order that there can be a matter in existence.  The relationship between standing and a matter was explained by Gaudron J in Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd [2000] HCA 11 (2000) 200 CLR 591 at [45] – [49] as follows:

“Once it is accepted that neither the concept of ‘judicial power’ nor the constitutional meaning of ‘matter’ dictates that a person who institutes proceedings must have a direct or special interest in the subject matter of those proceedings, it follows as was pointed out in Bateman’s Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd [(1998) 194 CLR 247 at 262] that, for the purposes of Ch III of the Constitution, ‘questions of “standing”, when they arise, are subsumed within the constitutional requirement of a “matter”.’  This does not mean that, for the purposes of Ch III, questions of standing are wholly irrelevant.

There may be cases where, absent standing, there is no justiciable controversy.  That may be because the court is not able to make a final and binding adjudication.  To take a simple example, a court could not make a final and binding adjudication with respect to private rights other than at the suit of a person who claimed that his or her right was infringed.  Or there may be no justiciable controversy because there is no relief that the court can give to enforce the right, duty or obligation in question.

The relationship between ‘standing’ and available relief was adverted to by Aickin J in Australian Conservation Foundation v The Commonwealth.  In that case his Honour observed [(1980) 146 CLR 493 at 511]:

            ‘it is an essential requirement for locus standi that it must be related
            to the relief claimed.  The “interest” of a plaintiff in the subject matter
            of an action must be such as to warrant the grant of the relief
            claimed.  I do not mean that, where the relief is discretionary, locus
            standi depends on showing that the discretion must be exercised
            favourably.  What is required is that the plaintiff’s interest should be
            one related to the relief claimed.’

That passage not only poses the test to be applied when there is a question of standing but, in my view, discloses the significance of standing to the existence of a matter for the purposes of Ch III of the Constitution.

There is no matter within the constitutional meaning of that term unless there is a remedy available at the suit of the person instituting the proceedings in question.  That follows from the essential features of ‘matter’ identified in In re Judiciary and Navigation Acts.  It was said in that case [(1921) 29 CLR 257 at 265 – 266]:

            ‘there can be no matter . . . unless there is some immediate right,
            duty or liability to be established by the determination of the Court
            . . . [And the legislature] cannot authorise [the] Court to make a
            declaration of the law divorced from any attempt to administer that
            law.’

Absent the availability of relief related to the wrong which the plaintiff alleges, no immediate right, duty or liability is established by the Court’s determination.  Similarly, if there is no available remedy, there is no administration of the relevant law.  Thus, as Gleeson CJ and McHugh J pointed out in Abebe v The Commonwealth [(1999) 197 CLR 510 at 526], ‘[i]f there is no legal remedy for a “wrong”, there can be no “matter”.’”

39                  Thus, both for the purposes of determining whether there is a matter, and for the purposes of deciding whether leave to appeal should be granted if there is, it is necessary to deal with the question of the standing of AIG.

The standing of AIG

40                  In relation to standing, the submission on behalf of AIG began with the proposition that there is no specific provision of the WR Act giving to an organisation of employers standing to bring a proceeding of the type brought by Emwest at first instance, or to appeal.  Rather, the contention was that the obligation imposed by s 170MN(1) is a public law obligation.  Questions of standing to bring a proceeding to enforce such an obligation are to be determined by the application of the principles laid down in Onus v Alcoa of Australia Ltd (1981) 149 CLR 27 at 35 – 36, per Gibbs CJ, where his Honour said:

“A plaintiff has no standing to bring an action to prevent the violation of a public right if he has no interest in the subject matter beyond that of any other member of the public; if no private right of his is interfered with he has standing to sue only if he has a special interest in the subject matter of the action.”

41                  According to the argument put on behalf of AIG, such a special interest arises from its status as an organisation of employers, registered under the WR Act.  AIG claims to have an interest in having the industrial action the subject of the proceeding at first instance declared to be not protected action, which interest extends beyond the interests of Emwest.  This is because of the effect of the judgment of Kenny J as a precedent in relation to the industrial interests of employers who are members of AIG. 

42                  It is necessary to set out the provisions of the WR Act that deal with proceedings for an alleged contravention of s 170MN.  They are found in Div 10 of Pt VIB of the WR Act.  Section 170ND provides, so far as is relevant:

“For the purposes of this Division, each of the following is a penalty provision:

...

(b)       section 170MN”.

Section 170NE, so far as is relevant, provides:

“For the purposes of this Division, each of the following is an eligible court:

(a)       the Federal Court of Australia”.

The relevant provisions of s 170NF are as follows:

“(1)     A contravention of a penalty provision is not an offence.  However, an eligible court may make an order imposing a penalty on a person who contravenes a penalty provision.

(2)       The penalty cannot be more than $10,000 for a body corporate or $2,000 in other cases.

...

(4)       An application for an order under subsection (1) that relates to a contravention of section 170MN may be made by:

(a)       any employee whose employment is subject to the certified agreement
            concerned; or

(b)       any other person who is bound by the agreement; or

(c)        any person who is affected by the industrial action or lockout
            concerned; or

(d)       any other person prescribed by the regulations.”

It is significant that subss (3), (5), (6) and (7) make specific provision as to who has standing to make applications for the imposition of penalties for various other penalty provisions in Pt VIB of the WR Act.  There appear to be no regulations prescribing persons who may make application, for the purposes of s 170NF(4)(d).

43                  Finally, s 170NG provides:

“An eligible court may grant an injunction requiring a person not to contravene, or to cease contravening, a penalty provision.”

44                  Section 170NF is an example of a number of provisions in the WR Act that are very specific as to the classes of persons who may make applications of various kinds.  Compare, for example, ss 45(3), 99, 127(2), 127A(3), 170CE, and 170VV(3).  In contrast, s 170NG, which in terms is a grant of jurisdiction to an eligible court, contains no provision as to who might be an applicant for such an injunction.  It might be supposed that, because the jurisdiction is to grant an injunction restraining a contravention of a penalty provision, that standing might be limited to those who have standing pursuant to s 170NF to apply for the imposition of penalties in respect of the various penalty provisions referred to in s 170ND.  The submission on behalf of AIG is that there is no such limit.  Rather, AIG says that standing to apply for an injunction pursuant to s 170NG is to be determined according to whether the applicant concerned has the requisite special interest.

45                  The application is based on the judgment of Ryan J in Maritime Union of Australia v Burnie Port Corporation Pty Ltd [2000] FCA 1189 (2000) 101 IR 435.  That case involved provisions analogous to Div 10 of Pt VIB of the WR Act, which are found in Div 7 of Pt VID of the WR Act, which relates to Australian Workplace Agreements (“AWAs”).  Section 170VV contains provisions that an eligible court may make an order imposing a penalty on a person who contravenes a penalty provision and a provision that an application for such an order may be made by a party to the AWA or ancillary document.  Section 170VZ provides that an eligible court may grant an injunction requiring a person not to contravene, or to cease contravening, Pt VID.  The relevant definition of the term “penalty provision”, for the purposes of ss 170VV and 170VZ includes references to s 170WG(1) and (2), which prohibit the application of duress, or the making of false or misleading statements, in connection with the making of an AWA.

46                  In the Burnie Port case, an organisation of employees, registered pursuant to the WR Act, sought an injunction to restrain alleged breaches of the relevant penalty provisions.  The standing of the applicant was put in issue.  Ryan J determined it on the application of the “special interest” test.  At [21] – [22], his Honour said:

“Mr Friend, for the Union, submitted that its ‘special interest’, which may be affected by any application of duress by the Corporation in the way alleged, arises because the Union’s position in bargaining for a new certified agreement will be affected in that as more employees are covered by AWAs, correspondingly fewer will be covered by the certified agreement.  Hence the strength of the Union to bargain on behalf of its members will be diminished unless it can seek to be protected from alleged application of duress by employers by obtaining injunctive relief restraining such duress.  Broadly speaking, Mr Friend said, Pt VID of the WR Act is intended to provide for an alternative mode of regulating conditions of employment.  Part of the maintenance of AWAs as an alternative to, rather than a replacement for, pre-existing modes of industrial regulation, requires that collective bargaining power (as represented by unions), is protected, and is able to protect itself, against diminution through duress applied to individual members to enter into AWAs, contrary to s 170WG of the WR Act.

Mr Friend went further to argue that the Union has an interest in representing its members who are alleged to be subject to duress and that interest of itself is also sufficient to attract standing.  However, it is more accurate, I consider, to say that the Union members presumptively subject to duress have an interest in enlisting the support of the Union to further their industrial interests and protect them against being coerced to enter into disadvantageous AWAs.  Accordingly, this second limb of the contention is rejected, because that interest of the Union members would be protected no less effectively if they were individually joined as applicants and had legal representation provided by the Union.  Alternatively they could appoint the Union their bargaining agent under s 170VK of the Act.  The distinction between the private right of Mr Rolls, Mr Donahue and Mr Oates in the negotiation of specific AWAs free from duress, and the public right in the assurance that industrial relations will be conducted lawfully, illustrates the special interest of the Union which is described in par 21 above.  The present litigation is not concerned with the terms of a particular AWA, which could be agitated in the context of other provisions of Pt VID.  Nor is it concerned with hindering or interfering with the negotiation of AWAs.  The applicant’s complaint in these proceedings is against the alleged unlawful application of duress.  Contrary to the Corporation’s submissions, that complaint is not related solely to private rights, and, accordingly, the principle set out in Onus v Alcoa of Australia Ltd applies.”

47                  No submission was made in the present case that Burnie Port was decided incorrectly.  It will be noted that Ryan J accepted that the applicant in that case had a special interest because its own position in bargaining for a new certified agreement would be affected if more employees were covered by AWAs.  The applicant was therefore protecting its own interest as a party, or potential party, to a certified agreement, when it applied for an injunction.  His Honour rejected the argument that the applicant had standing on the basis of its interest in representing its members who were alleged to be subject to duress.  His Honour took the view that it was the members who had an interest in enlisting the support of the applicant.  The applicant as an organisation had no relevant interest in being able to represent its members. 

48                  In the present case, AIG is not able to point to any interest of its own that it could seek to protect or advance by seeking an injunction against the Union, pursuant to s 170NG.  It cannot equate its position with that of the applicant in Burnie Port, because it is unable to show that obtaining an injunction against the Union in respect of industrial action by employees of Emwest at Newport would have any bearing on the interests of AIG itself as an organisation, as distinct from the interests of one or more of AIG’s members.  In other words, AIG can only seek to allege a special interest of the second kind considered by Ryan J in Burnie Port, ie the kind said to be derived from the interest of the organisation in representing its members.  His Honour rejected that type of interest as a special interest sufficient to enliven the principle relating to standing expounded in Onus.

49                  Burnie Port is therefore of no assistance to AIG in this case.  It would not have assisted AIG if AIG had sought to bring a proceeding in the original jurisdiction of the Court, seeking an injunction pursuant to s 170NG, in relation to the taking of industrial action by employees of Emwest at Newport.  It is true that AIG could have exercised the right, given by s 470 of the WR Act, of any organisation registered pursuant to the WR Act to apply for leave to intervene in the proceeding instituted by Emwest.  If it had so applied, and if it had been granted leave, it would have had a right to appeal from the judgment of Kenny J as a party to the proceeding in which the judgment was given.  AIG did not so apply.  No occasion arose for Kenny J to consider whether she was of the opinion that AIG should be heard in the proceeding.  It is not possible to speculate on what the outcome of such a consideration would have been.

50                  In almost all respects, the position of AIG in seeking leave to appeal from the judgment of Kenny J is identical to the position of the bishops in McBain.  The bishops in fact applied to intervene in the proceeding before Sundberg J.  If his Honour had granted that application, they would have acquired a right of appeal.  Instead, his Honour heard them as amici curiae, so they acquired no right of appeal and no standing to seek to overturn by certiorari the judgment of Sundberg J.  If the bishops’ want of standing was sufficient to prevent their creation of a matter for the purposes of an application for certiorari, it would also have been sufficient to prevent the creation of a matter for the purposes of any application they might have made for leave to appeal from the judgment of Sundberg J.  Likewise, in the present case, AIG’s failure to make application to intervene at first instance means that it has no standing to create a matter on which the appellate jurisdiction of this Court might be founded.

51                  Indeed, the comments of Gleeson CJ as to the position of the bishops in McBain are apposite in relation to the position of AIG in the present case.  At [23], his Honour said:

“This court is asked, by people who were not parties to the action in the Federal Court, to quash the decision of Sundberg J on the ground that it was wrong.  People who were not parties to litigation do not have a claim of right to have judicial decisions quashed because they are erroneous.  Suppose, for example, a taxpayer became involved in litigation against the revenue authorities, in the Federal Court, and the litigation raised a question as to the interpretation of a certain provision of the Act, under which tax is assessed.  That question might affect many other taxpayers as well.  Suppose a Federal Court judge answers the question adversely to the taxpayer, who accepts the decision and does not appeal.  It does not follow that some other taxpayer, affected by the same issue, could have the decision quashed.  The second taxpayer’s adverse opinion of the correctness of the judge’s reasoning does not give rise to a justiciable issue between the second taxpayer and the judge; and the judge has made no determination of the second taxpayer’s rights, even though, in a precedential sense, the decision may affect the assertion of those rights.  Or suppose the taxpayer succeeds in the Federal Court, on a basis that points the way to the success of some arrangement to minimise tax, and the revenue authorities do not appeal.  Concerned citizens, opposed to tax minimisation, do not thereby find themselves legally at issue with the judge, or the taxpayer, or the revenue authorities.”

52                  In the present case, this Court is asked, by AIG, which was not a party to the proceeding at first instance, for leave to appeal from the judgment of Kenny J on the ground that it was wrong.  AIG has no claim of right to have a judicial decision quashed because it contends that the decision is erroneous.  This is so even though the question of interpretation of the provision of the WR Act might affect others, including members of AIG.  AIG’s adverse opinion of the correctness of Kenny J’s reasoning does not give rise to a justiciable issue between AIG and Kenny J.  Kenny J made no determination of AIG’s rights, even though, in a precedential sense, her decision may affect the assertion of rights of members of AIG.  In short, the mere assertion of the incorrectness of the reasoning leading to a judgment cannot entitle a non-party to the proceeding in which the judgment was given to a grant of leave to appeal from it.

53                  With respect to the question whether industrial action taken, or threatened, by employees of Emwest at Newport was, or would have been, protected action, AIG stood in no different position from any other employer or employer organisation.  Its only interest was in the question of the construction of s 170MN of the WR Act.  It desired the Court to state the meaning and application of that section in terms different from those in which they were stated by Kenny J.  In a sense, every employer, and every employer organisation, has an interest in s 170MN having broad application.  This is because employers may wish to call in aid that section in the future, if their employees engage, or threaten to engage, in industrial action.  Employer organisations, representing as they do the interests of employers, would like employers to be able to call in aid that section in the widest possible circumstances.  The interest of a person or corporation in having the law stated in favourable terms for its possible application in the future is not a “special interest” for the purpose of conferring standing to sue.  It is no greater than the interest of any member of the public in the proper administration of the law.  AIG had no interest other than as a member of the public in the particular question whether industrial action taken or threatened by employees of Emwest at Newport was protected action.  Whatever the limits of standing to seek an injunction under s 170NG of the WR Act, a person whose only interest is in the manner in which the law is stated can have no standing.  This is not a case like Truth About Motorways, in which the issue was the constitutional validity of legislation specifically giving “any person” a right to apply for specified forms of relief in relation to specified conduct.

54                  It will be recalled that the relief sought in the proceeding at first instance was of three kinds.  Section 170NF(4) of the WR Act makes it clear that AIG could not have sought the imposition of a penalty.  For reasons which I have given, it also lacked standing to seek an injunction pursuant to s 170NG.  The third element of the relief was a declaration that the industrial action, or proposed industrial action, by employees of Emwest at Newport was or would be in contravention of s 170MN of the WR Act.  The power to grant declaratory relief is found in s 21 of the Federal Court Act.  That section provides that the Court may, in relation to a matter in which it has original jurisdiction, make binding declarations of right, whether or not any consequential relief is or could be claimed, and that a suit is not open to objection on the ground that a declaratory order only is sought.  Even if it be assumed that, in the absence of any other relief available to AIG, there would have been a “matter” within the jurisdiction of the Court, to which AIG was a party, there is still a question whether AIG had any standing to apply for a declaration.  Section 21 empowers the Court to grant a declaration of right.  Such a declaration will be granted only if some relevant right or interest of the party seeking it is infringed.  It will not be made if it “will produce no foreseeable consequences for the parties.”  See Gardner v Dairy Industry Authority of New South Wales (1977) 18 ALR 55 at 69 per Mason J, with whom Jacob and Murphy JJ agreed.  A declaration is not a convenient method of stating a finding of fact or a conclusion of law, but will only be made if some right or liability will flow from its subject matter.  See Warramunda Village Inc v Pryde [2001] FCA 61 (2001) 105 FCR 437 especially at [13].  In the present case, AIG would not have had standing to apply for a declaration as to the nature of the industrial action by employees of Emwest at Newport.  For the reasons I have given, no right or interest of AIG depended upon that particular industrial action being in contravention of s 170MN of the WR Act.  AIG had no standing to bring proceedings for a declaration at first instance.

55                  For these reasons, I am of the view that AIG had no standing at all to bring a proceeding against the Union at first instance in respect of industrial action by employees of Emwest at Newport.  Nor does AIG have any standing to seek leave to appeal from the judgment of Kenny J, given in a proceeding instituted by Emwest at first instance, with respect to that conduct.  No right or interest of AIG was or is at stake.  AIG’s position is that of someone who disagrees with the correctness of the reasoning leading to Kenny J’s judgment.  The best it can say is that the application of that reasoning in other cases might adversely affect AIG’s members.  This is an insufficient basis for a grant of leave to appeal.  There can be no appeal from the reasons for judgment of a judge, only from the judgment of the Court based on those reasons.  It follows that, save for the matter the subject of which is the question whether AIG can or should be granted leave to appeal, there is no matter before the Court.  There is no right, duty or liability at stake which could form the content of a matter that would found the jurisdiction of the Court pursuant to s 24 of the Federal Court Act to deal with an appeal by AIG.  What AIG seeks is an advisory opinion of the Court on the interpretation of a provision of a statute, when there is no subject-matter in dispute between AIG and the Union.  Such an application cannot give rise to a matter, for the purpose of founding the exercise of the judicial power of the Commonwealth.  The result is that the Court has no power to grant AIG leave to appeal.

The principles on which leave is granted

56                  In case my preceding conclusion is incorrect, and in deference to the arguments put, I should deal briefly with the question whether leave should be granted in any event.  At heart, this is a discretionary question.  The discretion is guided by the application of principles, in particular whether the decision from which leave to appeal is sought is attended by sufficient doubt to warrant it being reconsidered by the Full Court and whether substantial injustice would result if leave were refused, supposing the decision to be wrong.  See Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398 – 400.  These principles were considered in Commonwealth v Construction, Forestry, Mining & Energy Union at [20], in deciding whether leave should be granted to a non-party to appeal.

57                  It may be said that the judgment of Kenny J is attended by some doubt.  Her Honour recognised that there was ambiguity in s 170MN(1) of the WR Act.  The presence of ambiguity tends to suggest that two views as to the interpretation of the statutory provision are open, and that accordingly there must be doubt whether the correct one has been adopted.

58                  The application of the second principle is more difficult.  AIG’s application appears to be based on the view that Kenny J’s judgment is authority for the proposition that s 170MN(1) does not apply to industrial action taken for the purpose of supporting or advancing claims relating to terms and conditions of employment not dealt with in the relevant certified agreement.  AIG claims to fear that there will be widespread industrial action on the part of employees of its members, taken for the purpose of supporting or advancing claims with respect to terms and conditions of employment as to which certified agreements are silent.  The fear is that AIG’s members will be unable to bring proceedings for injunctions to restrain such industrial action because Kenny J’s judgment will be regarded as a precedent, standing for the proposition that s 170MN(1) does not prohibit such action. 

59                  It is plain that this contention rests on a misunderstanding of her Honour’s judgment.  No such broad principle as that supposed can be discerned from her Honour’s reasons.  If it were, the judgment would undoubtedly be in disregard of the plain terms of s 170MN(1).  What her Honour says in her reasons for judgment must be read in the light of the facts of the case before her.  Her Honour was confronted with a situation in which two certified agreements dealing with redundancy had expired.  If there were no other circumstance, provided that the requisite steps to comply with the provisions of the WR Act were taken, the Union and the employees of Emwest at Newport would have been entitled to take protected action, for the purpose of supporting or advancing claims against Emwest in respect of terms and conditions of employment relating to redundancy.  The question before her Honour was whether the existence of the unexpired certified agreement, dealing with terms and conditions of employment other than redundancy, was sufficient to do away with this right.  Her Honour sought to construe the WR Act as a whole.  She sought to determine whether, in the circumstance in which certified agreements have different nominal expiry dates, those provisions of the WR Act that would otherwise authorise the taking of protected action prevail over s 170MN(1), in respect of claims about terms and conditions the subject of the expired agreement.

60                  Once the judgment of Kenny J is understood, it cannot be said that it is so obviously wrong that leave to appeal should be granted on that ground.  What can be said is that there is no material before the Court to demonstrate that AIG’s fears of wholesale industrial action involving evasion of the plain terms of s 170MN(1) is a real likelihood.  Experience suggests that the particular conjunction of facts that led to Kenny J’s judgment is likely to be comparatively rare.  Undoubtedly, there will be many employers whose certified agreements deal with all aspects of the relations between them and their employees, so that the question of differential expiry dates will not arise.

61                  If it were the case that Kenny J’s judgment became widely used as a shield when interlocutory injunctions restraining industrial action were sought, many opportunities would exist for testing the correctness of that judgment.  If any member of AIG became involved in such litigation, it would be open to AIG to assist in that testing by offering financial and other support to its member, or by seeking to intervene in the relevant proceeding.  If a judge were to accept the broad proposition for which AIG says that Kenny J’s judgment is authority, ample opportunity would exist for testing the correctness of that conclusion on appeal.

62                  For these reasons, no substantial injustice would result if leave were refused, even supposing that Kenny J’s judgment can be said to be wrong.

Conclusion

63                  My view, therefore, is that no leave to appeal can be granted to AIG.  If such leave were granted, there would be no matter of the kind essential to found the appellate jurisdiction of the Court.  AIG had no standing to seek relief at first instance of the kind that it claims it would seek on appeal.  It has no standing to seek that relief on appeal.  No right, duty or liability affecting it exists.  Its disagreement with the correctness of Kenny J’s judgment provides no basis for the grant of leave to appeal.

64                  Alternatively, on the application of the ordinary principles relating to grants of leave to appeal, leave should be refused as a matter of discretion.

65                  I would therefore dismiss AIG’s application for leave to appeal.  Because the only matter before the Court is the controversy as to whether AIG can and should be granted leave to appeal, and that matter arises under s 24 of the Federal Court Act, and not under the WR Act, the prohibition on the making of an order for costs in s 347 of the WR Act is inapplicable.  I would therefore order that AIG pay the Union’s costs of the application for leave to appeal.

Associate:

Dated:              29 November 2002

On appeal from a single judge of the Federal Court of Australia

REASONS FOR JUDGMENT

GOLDBERG AND FINKELSTEIN JJ:

66                  It is widely believed that workers have an unconstrained right to take industrial action in support of claims against employers.  Nothing could be further from the truth.  The common law has long imposed constraints on labour’s ability to take concerted action against capital.  Not only are there actions available under contracts of employment, the so called intentional torts (conspiracy, procuring breach of contract and interference with business relations among others) took their modern form to provide additional remedies against industrial action taken by organised labour.  By the end of the 19^th century governments recognised the need to intervene in industrial affairs.  The New South Wales Royal Commission investigating the causes of the maritime strike of 1890 recommended the establishment of State conciliation and arbitration machinery.  This legislation was soon enacted, and in due course formed the basis of the Conciliation and Arbitration Act 1904 (Cth), which provides procedures as an alternative to the strikes and lockouts that followed a breakdown in collective bargaining.  However, in the absence of economic power that comes with the ability to take industrial action, trade unions were at a disadvantage when it came to collective bargaining. In recognition of this, the Workplace Relations Act 1996 (Cth) (“the Act”)- the latest federal enactment that provides the machinery for employers and employees to reach agreement on wages and conditions of employment- makes provision for taking “protected action”, that is industrial action in respect of which there is immunity from suit, with certain limited exceptions. 

67                  The case at trial was concerned with the circumstances in which “protected action” can be taken.  The applicant below, Emwest Products Pty Ltd, sought a declaration that the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (“the union”) was taking impermissible industrial action during the currency of a certified agreement.  It also sought an injunction to restrain that conduct.  Section 170MN(1) provides that from the time a certified agreement comes into operation until its nominal expiry date has passed an employee or a union bound by the agreement must not engage in industrial action for the purpose of supporting or advancing claims against the employer in respect of the employment of employees who are covered by the agreement.  This provision is founded on the not unreasonable premise that when parties (usually a union and an employer) have resolved an industrial dispute by an agreement which is to operate for a minimum period (until its nominal expiry date) they should be restricted, at least to some extent, from using industrial action to support further claims during the currency of the agreement. 

68                  The union defended Emwest’s claim on a number of grounds, only one of which was substantial.  Section 170MN(1) bars industrial action to advance claims of employees “whose employment is subject to [a certified] agreement”.  Emwest’s employees were covered by a certified agreement, but the provisions of that agreement did not deal with redundancy.  The threatened industrial action related to redundancy.  The union argued that s 170MN only struck at industrial action which related to the matters that were covered by the certified agreement.  Industrial action in support of claims not covered by the agreement could not offend against s 170MN, so the argument went.

69                  The trial judge accepted these submissions.  In a decision handed down on 6 February 2002, the judge said:

“The question of the proper construction of the expression ‘in respect of the employment of employees whose employment is subject to the agreement’ is not free from doubt. Although the construction that Emwest favours is perhaps the most obvious, and results in a relatively straightforward application of the provision, for the reasons set out below, I am not persuaded that it is to be accepted as the preferable construction.

…

Emwest also submitted that the construction of s 170MN(1) for which the union contends ‘would severely limit the scope of s 170MN, as unions and employees would be able to take industrial action in relation to claims about matters arguably not in the certified agreement’ and ‘would undermine the purpose and effect of parties reaching agreements and having them certified’. Assuming the policy behind s 170MN is to encourage parties to adhere to the bargain they have struck, then the policy would not, in my view, be defeated by permitting the parties to negotiate effectively in respect of matters that were not the subject of a relevant certified agreement.  The policy is sufficiently protected if s 170MN(1) is construed as prohibiting parties to a certified agreement from resorting to industrial action to undo the matters they have agreed upon in the certified agreement, if its nominal expiry date has not passed.  If the parties so desired, they could agree that a certified agreement made by them was intended to cover the whole field of relevant employment, thereby excluding the possibility of industrial action during the currency of the agreement.”

Accordingly, the judge declined to make the orders sought by Emwest, and dismissed its application. 

70                  Emwest had twenty-one days within which to appeal the judge’s order.  It decided not to bring an appeal.  Instead it reached agreement with the union about redundancy payments for Emwest’s employees, so nothing immediate was to be gained from a reversal of the order. 

71                  The judge’s decision has the potential to affect adversely many employers by permitting employees to take, and unions to organise, industrial action in circumstances when it was previously thought there would be a measure of industrial peace.  Accordingly, the Australian Industry Group, a registered organisation of employers of which Emwest is a member, seeks leave to appeal.  It applied for leave within twenty-one days of the judge’s order.  AIG says that the judge’s decision “has had, and is having, an immediate impact on [its members]” and that the effect has been “significant”.  It brings its application for leave in accordance with its perceived “duty to protect the interests of its members and itself”.  If granted leave, AIG will prosecute the appeal not to obtain penalties under s 170NF but for the purpose of obtaining a declaration along the lines sought by Emwest, namely that the industrial action which the union threatened to undertake and took in September 2001 was not protected industrial action within the meaning of the Act.  That is, AIG seeks to appeal the judge’s order, not the judge’s reasons for decision.  In addition, the Minister for Employment and Workplace Relations wishes to intervene in support of AIG’s application for leave and, if leave is granted, in support of its appeal.  As to the Minister’s right to intervene see s 471.

72                  The application raises a number of important issues, some more controversial than others.  Can a non-party, by leave, appeal a decision with which it is dissatisfied?  If it can, in what circumstances will leave be granted?  Is there a justiciable controversy which could be the subject of appeal in respect of orders which the unsuccessful party does not wish to contest:  that is, is there in existence a “matter” within the meaning of Chapter III of the Constitution? 

73                  Logically the constitutional issue should be determined first.  But as the resolution of that issue will require an examination of the provisions upon which AIG’s application for leave to appeal depends, it is convenient first to consider that application.  At any rate, if in this case leave to appeal should not be granted, we would refrain from expressing our opinion on the constitutional question in accordance with cases such as Attorney-General (NSW) v Brewery Employee’s Union of New South Wales (1908) 6 CLR 469, 553-4; Deputy Federal Commissioner of Taxation (NSW) v WR Moran Pty Ltd (1939) 61 CLR 735, 773-4; Lambert v Weichelt (1954) 28 ALJ 282, 283; Multicon Engineering Pty Ltd v Federal Airports Corporation (1997) 47 NSWLR 631, 642; and Telstra Corporation Ltd v Hurstville City Council (2002) 189 ALR 737, 756.

74                  The background against which AIG’s application must be considered is as follows.  The first matter is that AIG was not a party to the proceeding below.  That, however, does not prevent it being granted leave to appeal.  There is a longstanding rule of practice that a person not a party to a proceeding may, in certain circumstances, be given leave to appeal from an order or judgment.  In Cuthbertson v Hobart Corporation (1921) 30 CLR 16, 25 Knox CJ and Starke J acknowledged the existence of this practice and said that the test for deciding whether leave should be given is “if the person applying though not a party to the proceedings might properly have been one”.  In Witness v Marsden (2000) 49 NSWLR 429, 448 Heydon JA noted that the test mentioned by Knox CJ and Starke J was not exhaustive, and the true test was more generous.  According to Heydon JA (at 448), having regard to the provisions relating to appeal in the Supreme Court Act 1970 (NSW) and the New South Wales Supreme Court Rules, the relevant test was whether the person seeking leave was a person “aggrieved” by, or “sufficiently interested” in, the decision to be appealed.

75                  In the Federal Court the right to appeal is conferred by s 24 of the Federal Court of Australia Act 1976 (Cth).  In Commonwealth v Construction, Forestry, Mining and Energy Union (2000) 98 FCR 31 the Full Court said (at 37) that “s 24 picks up the long established practice that permits non-parties to appeal by leave”.  The Full Court adopted the more generous test propounded by Heydon JA for deciding whether leave should be granted.  We note in passing that the earlier decision of Shields v Official Receiver in Bankruptcy (1996) 66 FCR 171 should only be understood as holding that a non-party has no right to appeal.  We do not regard the decision as denying the court’s ability to allow a non-party to appeal by leave. 

76                  Moreover, although not a party below, AIG could have begun an action in its own right, but for limited relief, against the union.  A person who contravenes s 170MN(1) is not guilty of an offence, but because that section is a “penalty provision” (as to which see s 170ND) the person is liable to a penalty (s 170NF(1)).  Section 170NF(4) prescribes the persons who may bring an application for a penalty resulting from a contravention of s 170MN.  Those persons are:  an employee whose employment is subject to the certified agreement, any other person who is bound by the certified agreement, any person who is affected by the industrial action, and any other person prescribed by the regulations.  In addition to the imposition of a penalty the court may grant an injunction requiring a person not to contravene a penalty provision:  see s 170NG.  It may be that the court could also grant that relief under s 23 of the Federal Court of Australia Act: see Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1, 29, 45-46 per Brennan CJ, Mc Hugh, Gummow, Kirby and Hayne JJ, 61-62 per Gaudron J.

77                  A person other than one who falls within the classes of persons mentioned in s 170NF(4) may bring an application for an injunction under s 170NG.  In Maritime Union of Australia v Burnie Port Corporation Pty Ltd (2000) 101 IR 435, one of the allegations made by the union was that, in contravention of s 170WG, the corporation had applied duress to two employees to induce them to sign Australian Workplace Agreements.  The union sought an injunction to restrain the conduct.  Section 170VZ permits the court to “grant an injunction requiring a person not to contravene, or to cease contravening, [Part VID]”, in which s 170WG is to be found.  The corporation contended that the union did not have standing to claim an injunction.  It argued that an injunction could only be granted in a suit instituted under s 170VV(1), which permits the court to impose a penalty for a contravention of s 170WG.  An application under that section can only be maintained by a party to the Australian Workplace Agreement:  see s 170VV(3).  Ryan J rejected the corporation’s submission.  He held that a contravention of s 170WG is a violation of a public duty and any person with a “special interest” in preventing the violation of that duty could maintain an action for a statutory injunction.  The leading cases on standing to enforce a public right are Robinson v Western Australian Museum (1977) 138 CLR 283; Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493; Onus v Alcoa of Australia Ltd (1981) 149 CLR 27; and Bateman’s Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247.  Certain aspects of the reasoning in Maritime Union are not without their difficulties, but because the decision was not challenged we should proceed on the basis that it was correctly decided. 

78                  It would seem that the scheme of the provisions presently under consideration is sufficiently close to that which was dealt with in Maritime Union for the conclusion reached in that case to cover the present situation.  The result is that, while AIG could not commence a proceeding against the union for a penalty under s 170NF, it had standing to bring an application for an injunction under s 170NG because of its “special interest” in the subject matter.  As the High Court cases show there is now a flexible approach to the identification of a “special interest”.  Further, “the nature and subject matter of the litigation will dictate what amounts to a special interest”:  Shop Distributive & Allied Employees Association v Minister for Industrial Affairs (SA) (1995) 183 CLR 522, 558.  AIG derives its special interest both from the representative character of the organisation, that is as an organisation representing employers who regularly enter into certified agreements with unions, and the fact that Emwest is one of the employer organisations that it represents.

79                  The second background matter which bears upon AIG’s application derives from s 470.  That section provides that the court may grant leave to an organisation to intervene in proceedings in a matter arising under the Act if the court is of the opinion that the organisation should be heard.  To obtain that leave it would not be necessary for the organisation to show that it had standing to commence an action for penalties.  The court would be justified in permitting intervention if the organisation had a sufficient interest in the outcome of the case.  An order might also be made if the organisation could show that it might provide assistance to the court if it were permitted to intervene.  As to the basis upon which leave to intervene may be given see generally, Levy v State of Victoria (1997) 189 CLR 579, 600 - 604 per Brennan CJ.  An organisation given leave to intervene becomes a party to the proceeding with all the attendant rights and duties:  Corporate Affairs Commission v Bradley [1974] 1 NSWLR 391 (not followed on another ground: see Breen v Williams (1994) 35 NSWLR 522, 532); United States Tobacco Co v Minister for Consumer Affairs (1988) 20 FCR 520, 534.

80                  Turning to the question whether AIG should be given leave to appeal, the first point to note is that we are not here concerned with leave to appeal from an interlocutory order so the well known two stage test has no application.  On the leave question the status of the organisation is relevant.  As we have said, AIG is an organisation that had standing to commence an action against the union for an injunction under s 170NG.  It could have applied for leave to intervene in the proceeding begun by Emwest and if that leave had been granted it would have been entitled to appeal as of right.  These matters are also relevant for other issues as will become apparent later.

81                  We are of opinion that provided there is still in existence a justiciable controversy, AIG should be given leave to appeal.  The judge’s decision has ramifications which travel far beyond the dispute that subsisted between Emwest and the union.  As the judge recognised, the construction question which was required to be resolved, was capable of going the other way.  It is highly probable that the matter will come before a Full Court.  This case is an appropriate vehicle for that purpose.  Further, the employers who are represented by AIG do have a significant interest in having the construction question resolved by a Full Court. 

82                  In the light of the foregoing it is now necessary to determine whether there still is a justiciable controversy which can be taken to the Full Court.  According to the Constitution the jurisdiction of federal courts, including the Federal Court of Australia, can only be invoked “with respect to any of the matters mentioned” in s 75 and s 76: see s 77.  “We need to recollect … that a court does not begin to exercise federal jurisdiction until a ‘matter’ within ss 75 or 76 is raised in the proceedings and that the federal jurisdiction then exercised by the court is co-extensive with the content of that ‘matter’”:  Stack v Coast Securities     (No. 9) Pty Ltd (1983) 154 CLR 261, 290 per Mason, Brennan & Deane JJ.  Although the concept of “matter” may be elusive, the following propositions are established by the cases.  Central to the meaning of “matter” is the need for there to be a justiciable controversy:  Abebe v Commonwealth of Australia (1997) 197 CLR 510, 523-524, 585.  The controversy must be about “some immediate right, duty or liability to be established by the determination of the Court”:  In re Judiciary and Navigation Acts (1921) 29 CLR 257, 265.  Without the right to bring a proceeding in respect of which there is a remedy, there can be no “matter”.  However, the person who raises the justiciable controversy need not have a personal, direct or special interest in the outcome of the controversy.  Parliament has power to confer standing upon any person to invoke the jurisdiction of the court:  Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 200 CLR 591. 

83                  Inevitably a justiciable controversy must come to an end, with the consequence that the “matter” will cease to exist.  Usually this will occur either when a dispute is settled or when the court rules in favour of one party or the other and grants the appropriate remedy.  In most cases an unsuccessful party has a right of appeal, although in some cases leave is required.  Whenever there is a right of appeal the justiciable controversy will not be at an end until the rights of appeal are exhausted or forgone.  Until that occurs the “matter” subsists.  According to the High Court in Attorney-General (NSW) v Commonwealth Savings Bank of Australia (1986) 160 CLR 315, 323 “‘matter’ is wide enough to include any subject-matter for determination in legal proceedings, whether the proceedings be proceedings at first instance or proceedings by way of an appeal.”  Another view is that an appeal gives rise to a separate “matter” (the controversy then being whether the decision appealed from is correct) but that is of no moment because a legal controversy can give rise to separate “matters”:  Abebe at 529-530 per Gleeson CJ and McHugh J. 

84                  In the present case the union says that the justiciable controversy between it and Emwest was brought to an end when Emwest decided not to prosecute an appeal from the judge’s decision.  The union relies upon Re McBain; Ex parte Australian Catholic Bishops Conference (2002) 76 ALJR 694 in support of this argument which, if it be correct, would deny to the Federal Court any jurisdiction to entertain the application for leave to appeal and the appeal itself. 

85                  A close examination of McBain, however, shows that it does not support the union’s submission.  In Victoria the Infertility Treatment Act 1995 (Vic) made it unlawful for a medical practitioner to perform fertilisation procedures on a woman unless she was married and living with her husband, or living with a man in a de facto relationship.  Dr McBain, a medical practitioner, sought a declaration from the Federal Court that the relevant provisions of the Victorian statute were invalid as they were inconsistent with the Commonwealth Sex Discrimination Act 1984.  The Australian Catholic Bishops Conference and the Australian Episcopal Conference of the Roman Catholic Church were given leave to appear as amici curiae, their application for leave to intervene not being pressed.  After hearing submissions from the named respondents, and those appearing amicus, the trial judge, Sundberg J, acceded to Dr McBain’s application and made a number of declaratory orders concerning the extent to which the State legislation was invalid.  No appeal was taken from those orders.  However, the Bishops, and later the Attorney-General on the relation of the Australian Episcopal Conference, brought proceedings in the original jurisdiction of the High Court to quash the decision of Sundberg J on the ground that, while his decision was made within jurisdiction, it was wrong in law.  The question whether there was in existence a “matter” or “justiciable controversy” arose for consideration.  A majority of the High Court answered this question in the negative. 

86                  It is necessary to refer in some detail to the majority reasons for this conclusion.  Gleeson CJ said (at 700):

“Before those questions are answered, it should be noted that the argument for the applicants assumes that a writ of certiorari is a remedy of the kind to which s 32 refers, and that such a remedy may be granted in respect of a decision of the Federal Court on the basis of non-jurisdictional error of law on the face of the record. The second part of that assumption was strongly disputed, reliance being placed on the reasoning of Deane J in R v Gray; Exparte Marsh (1985) 157 CLR 351 at 385-389. It is unnecessary to decide that question in this case. Furthermore, it is common ground that, assuming certiorari may go to the Federal Court for non-jurisdictional error, the remedy is discretionary. Arguments were advanced both ways on the matter of discretion. As will appear, I do not reach that issue. But if I did, I would find it necessary in considering the position of the Bishops, and the significance of their failure to press for joinder as parties to the action in the Federal Court under O 6 r 8 of the Federal Court Rules, to form a view on whether their position was covered by that rule. If O 6 r 8 did not apply to their position, and they had no realistic prospect of becoming parties to the proceedings, then their decision to confine their role in the Federal Court to that of amici curiae, with the consequence that they had no right of appeal, would, in my mind, have a discretionary significance different from that which it might otherwise have. Furthermore, a full appreciation of their position would require attention to the significance of the fact that the Victorian authorities did not seek, by argument, to uphold the Victorian legislation.”

In their joint judgment Gaudron and Gummow JJ said (at 703, 705 and 706-707):

“However, no suggestion has been made that the Federal Court lacked jurisdiction or exceeded its jurisdiction in making the orders in question. Plainly it acted within the jurisdiction conferred by par (b) of s 39B(1A) of the Judiciary Act. Further, in this Court, no party to the Federal Court litigation has asserted that in any respect the Federal Court fell into error of any description. No appeal has been instituted. No party to the determination by the Federal Court seeks relief under s 75(v) in this Court. The exercise of the judicial power of the Commonwealth in the disposition of the matter of which Sundberg J was seized is at an end.”

…

In respect of the litigation tried by Sundberg J, there were adequate appellate avenues to the Full Court and thence by special leave to this Court. The circumstance that appellate standing was limited to parties to the Federal Court litigation cannot render those appellate processes inadequate because strangers lack the standing to meddle in concluded litigation.

…

There is no controversy apparent between the applicants and the respondents, Sundberg J and Dr McBain. The latter has the protections against action against him by the State of Victoria of the declaration made in his favour, in particular par 3 thereof. But no relief by way of prohibition is sought against him. The learned judge has no interest in the matter; he has discharged the duty to exercise the judicial power of the Commonwealth in the proceeding which came before him and the orders have been entered. His Honour has acted within the jurisdiction conferred by par (b) of s 39B(1A) of the Judiciary Act and there has been no enlivening of the appellate processes of the Federal Court.”

Hayne J said (at 738):

“Neither of those parties, however, seeks to impugn these declarations. Those who now apply for orders quashing them were not parties to the proceedings in the Federal Court. For that reason, they are not in any way bound by the outcome of those proceedings. Reduced to its essentials, the application to this Court is by a third party (here the Episcopal Conference and the Commonwealth Attorney-General) for orders that rights, duties and obligations declared to exist as between two other parties (Dr McBain and State of Victoria) are not as they were determined to be by Sundberg J. Understood in that way it is apparent that the claim gives rise to no ‘matter’ except, of course, the controversy in this Court about whether there is a ‘matter’. (It is desirable to add this qualification, if only to point out that that latter controversy unquestionably founds the jurisdiction of this Court to entertain the applications that have been made.) The applications will quell no controversy about any immediate right, duty or liability of the applicants for relief; each application seeks only to enliven the subject-matter of a controversy between others which has already been quelled by the application of judicial power.”

87                  The essential distinction between the position in McBain and the present case is that in McBain the Federal Court’s jurisdiction had been exhausted.  If an appeal had been instituted calling into question the correctness of Sundberg J’s decision, the justiciable controversy would have remained alive.  But as there was no appeal the controversy was at an end.  In the present case AIG sought to enliven the appeal process within the time limited for instituting an appeal.  That AIG was not a party to the original decision, and that no party to the decision sought to appeal the order made by the judge, does not mean that the controversy had come to an end.  The controversy remained alive while it was possible that some person, whether a party or not, might bring an appeal.  That the controversy does not seek to vindicate any right of AIG is inconsequential according to Truth About Motorways Pty Ltd.  If the union’s argument were accepted it would mean that the rule of practice identified in Cuthbertson and followed in Commonwealth v CFMEU would be contrary to Chapter III of the Constitution unless one of the parties also sought to appeal.  That has never been the position and we would not adopt it in this case. 

88                  To summarise, in our view a justiciable controversy which is brought before a court will come to an end either when the court (including an appeal court) has resolved the controversy by ruling on the issue in dispute or, if the controversy concerns a matter of private law, when the parties have resolved their differences by agreement.  Before those events occur the court retains jurisdiction to enter upon the controversy. 

89                  It remains to mention one final point raised by the union.  It says that its controversy with Emwest came to an end by the resolution of the industrial dispute and so the “matter” ceased to exist.  True it is that the industrial dispute was resolved when a new agreement was certified.  But it did not resolve the question whether the union’s conduct had contravened s 170MN(1).  That dispute was not a matter private to the union and Emwest to resolve if only for the reason that a proceeding for a penalty could have been instituted by any of the persons mentioned in s 170NF(4).  That controversy remains alive until the appeal process is exhausted. 

90                  As regards the Minister’s application, as we have had the benefit of full argument from him, his position should be regularised by an intervention order.  It is not necessary to decide whether the Minister could intervene as of right under s 471.  We will leave it to the Full Court that hears the appeal to deal with the Minister’s request to intervene on the appeal. 

91                  Accordingly, we would make the following orders:

1.      Leave be granted to the Minister for Employment and Workplace Relations to intervene in the hearing of the application for leave to appeal.

2.      Leave be granted to the Australian Industry Group to appeal from the judgment of the Court given on 6 February 2002.

3.      The Australian Industry Group file and serve its Notice of Appeal within 7 days.

Associate:

Dated:              29 November 2002