FEDERAL COURT OF AUSTRALIA

Kronen v Commercial Motor Industries Pty Ltd (trading as CMI Toyota) [2018] FCAFC 136

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    A copy of these reasons be provided to the President of the South Australian Employment Tribunal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

WHITE, PERRY AND CHARLESWORTH JJ:

1    This appeal from the South Australian Employment Tribunal (the SAET) is a further step in the pursuit by the Applicant, Mr Kronen, of a claim for payment of superannuation contributions against the Respondent (CMI).

2    There are two grounds of appeal. The first is a challenge to the finding of the SAET that it did not have jurisdiction to hear and determine an application made by Mr Kronen to the former Industrial Relations Court of South Australia (IRCSA) for the reopening of proceedings in that Court. It arises from the circumstance that the IRCSA was dissolved with effect from 1 July 2017 and that, in general, the jurisdiction of the kind it formerly exercised is now exercised by the SAET in Court Session, known as the South Australian Employment Court.

3    The second ground concerns the SAET’s conclusion that, even if it did have jurisdiction, Mr Kronen had not established that it was appropriate for it to allow the reopening of his proceedings in the former IRCSA.

4    For the reasons which follow, we consider that the first ground of appeal fails, and the appeal must be dismissed. The SAET did not have jurisdiction to hear and determine the reopening application. However, that does not mean that Mr Kronen’s proceedings are at an end. The effect of s 16 of the Acts Interpretation Act 1915 (SA) (the AI Act) is that Mr Kronen may continue his application in the IRCSA. That conclusion makes it both unnecessary and inappropriate to determine the second ground of appeal.

Factual setting

5    CMI employed Mr Kronen between 14 April 1998 and 3 November 2000, initially as a retail new car consultant and then as business manager. His employment in both positions was governed by the Vehicle Industry – Repair, Services and Retail – Award 1983 (the Vehicle Industry Award), which was made initially under the Conciliation and Arbitration Act 1904 (Cth) and continued in force under the Workplace Relations Act 1996 (Cth) (the WR Act).

6    In 2005, Mr Kronen commenced proceedings against CMI in the IRCSA, by which he sought payment of unpaid wages and unpaid superannuation contributions. The application was heard by an Industrial Magistrate and was dismissed: Kronen v Commercial Motor Industries Pty Ltd (t/as CMI Toyota) [2006] SAIRC 31. Mr Kronen then appealed, unsuccessfully, to a single judge in the IRCSA. His subsequent appeal to the Full Court of this Court was also unsuccessful: Kronen v Commercial Motor Industries Pty Ltd (t/as CMI Toyota) [2008] FCAFC 171.

7    The cause of action on which Mr Kronen had sued in the IRCSA was that granted by s 179(1) of the WR Act. Section 179(1) provided:

Where an employer is required by an award, order or certified agreement to pay an amount to an employee, the employee may, not later than 6 years after the employer was required to make the payment to the employee under the award, order or agreement, sue for the amount of the payment in the Court or in any court of competent jurisdiction.

8    The effect of s 179(1) was to allow an employee to sue his or her employer in this Court or “in any court of competent jurisdiction” for any amount required to be paid by the employer under (relevantly) an award. The IRCSA was a court of competent jurisdiction for the purposes of s 179(1) – see s 177A of the WR Act. However, s 179(1) was confined to amounts to be paid “to an employee” and did not extend to amounts to be paid on behalf of an employee, such as superannuation contributions. For this reason, the Full Court held that the IRCSA did not have jurisdiction to hear and determine Mr Kronen’s claim to superannuation contributions, at [12]-[13].

9    In the past, Mr Kronen has disputed that his claim in 2005 was made pursuant to s 179, or at least, only pursuant to s 179. However, that issue is foreclosed by the 2008 Full Court decision. It held then, at [3], that the jurisdiction being exercised by the IRCSA (and that invoked by Mr Kronen) was that conferred by s 179(1). The balance of the Court’s reasons was premised on s 179 having been the source of the IRCSA’s jurisdiction.

10    Between 2008 and 2013, Mr Kronen engaged in a variety of forensic courses of action in pursuit of his claim for payment of the superannuation contributions. It is not necessary for present purposes to outline the steps he took.

11    On 9 September 2013, Mr Kronen embarked on a new tack. He filed an application for directions in the IRCSA seeking orders for “the re-opening and reconsideration of various questions relating to that part of the original application that embodied the “superannuation” claim”. It is apparent that Mr Kronen sought the reopening of his 2005 proceedings so that he could seek leave to amend them to include a claim pursuant to s 178 of the WR Act as in force at the time of his employment with CMI.

12    Section 178 provided (relevantly):

178 Imposition and recovery of penalties

(1)    Subject to section 182, where an organisation or person bound by an award, an order of the Commission or a certified agreement breaches a term of the award, order or agreement, a penalty may be imposed by the Court or, except in the case of a breach of a bans clause, by a court of competent jurisdiction.

…

(6A)    Where, in a proceeding against an employer under this section, it appears to the court concerned that the employer has not paid an amount to a superannuation fund that the employer was required, under an award, order or agreement, to pay on behalf of a person, the court may order the employer to make a payment to or in respect of that person for the purpose of restoring the person, as far as practicable, to the position that the person would have been in had the employer not failed to pay the amount to the superannuation fund.

(6B)    Without limiting the generality of subsection (6A), the court concerned may order that the employer pay to the superannuation fund referred to in subsection (6A), or another superannuation fund, an amount equal to the amount (in this subsection called the unpaid amount) that the employer failed to pay together with such additional amount as, in the opinion of the court, represents the return that would have accrued in respect of the unpaid amount had it been duly paid by the employer.

…

(8)    A proceeding under this section in relation to a breach of a term of an award, order or agreement shall be commenced not later than 6 years after the commission of the breach.

13    As can be seen, s 178(1) empowered courts to impose a penalty on a person who breached an award by which they were bound. Subsection (6A) and (6B) empowered a court hearing an application for the imposition of a penalty to make orders with respect to the payment of unpaid superannuation contributions. Section 179, which Mr Kronen had invoked in the 2005 proceedings, did not contain any counterpart to subs (6A) and (6B).

14    Mr Kronen’s application for directions has followed a tortuous course. An Industrial Magistrate in the IRCSA directed the Registrar of the IRCSA to strike out the application, and that occurred. Mr Kronen then appealed to a single judge and, in turn, to the Full Court in the IRCSA. Being unsuccessful, he then appealed to the Full Court of the Supreme Court of South Australia. That Court considered that the direction of the Industrial Magistrate was a judgment which could be the subject of an appeal, but held that Mr Kronen’s right of appeal lay to this Court: Kronen v Commercial Motor Industries Pty Ltd (t/as CMI Toyota) [2016] SASCFC 8.

15    Mr Kronen then filed (on 29 February 2016) a fresh application in the IRCSA seeking to reopen the 2005 proceedings (in the same terms as his 2013 application). On 10 August 2016, that application was dismissed by an Industrial Magistrate in the IRCSA: Kronen v Commercial Motor Industries Pty Ltd (t/as CMI Toyota) [2016] SAIRC 23.

16    Mr Kronen’s appeal to this Court against that decision succeeded: Kronen v Commercial Motor Industries Pty Ltd (t/as CMI Toyota) [2017] FCA 33. That was because the Industrial Magistrate had erred in concluding that the claim which Mr Kronen wished to pursue in the re-opening was necessarily statute barred and, accordingly, had not addressed the re-opening application on its merits. By its orders of 30 January 2017, the Court remitted Mr Kronen’s application for directions of 29 February 2016 to the IRCSA for further consideration.

17    However, the application was not heard by the IRCSA. Other events intervened, in particular, the dissolution of the IRCSA and the vesting of the SAET with jurisdiction with respect to industrial matters.

The amendments in 2016

18    The SAET was established on 1 July 2015 by the South Australian Employment Tribunal Act 2014 (SA) (the SAET Act). Between 1 July 2015 and 30 June 2017, its jurisdiction had been confined to the hearing and determination of proceedings under the Return to Work Act 2014 (SA).

19    In 2016, the South Australian Parliament enacted the Statutes Amendment (South Australian Employment Tribunal) Act 2016 (SA) (the 2016 Amendment). Amongst other things, the 2016 Amendment provided for there to be a Tribunal in Court Session, known as the South Australian Employment Court, as part of the SAET (s 5). Sections 6-6B vested jurisdiction over specified matters in the Tribunal in Court Session. The 2016 Amendment also provided for another part of the SAET to act as an industrial relations commission. It came into operation on 1 July 2017.

20    Part 4 of the 2016 Amendment effected amendments to the Fair Work Act 1994 (SA) (the FW (SA) Act). In particular, it substituted a new Ch 2 for the existing Ch 2. Amongst other things, the SAET was thereby vested with jurisdiction to hear and determine monetary claims under industrial legislation, awards and instruments.

21    Part 4 of the 2016 Amendment contained a number of special provisions relating to monetary claims. It also contained transitional provisions in s 69. By s 69(2), the IRCSA and the Industrial Relations Commission of South Australia were dissolved. This occurred with effect from 1 July 2017. Other subsections in s 69 provided for proceedings which had, or could have, been commenced in the IRCSA to be commenced or continued in the SAET:

(11)    A determination of an industrial authority under the principal Act in force immediately before the relevant day will, on and from the relevant day, be taken to be a determination of the Tribunal.

(12)    A right to bring proceedings before an industrial authority in existence under the principal Act before the relevant day (but not so exercised before that day) will be exercised as if this Part had been in operation before the right arose, so that the relevant proceedings may be commenced before the Tribunal rather than the industrial authority.

(13)    Any proceedings before an industrial authority under the principal Act immediately before the relevant day will, subject to such directions as the President of the Tribunal thinks fit, be transferred to the Tribunal where they may proceed as if they had been commenced before that Tribunal.

(14)    The Tribunal may—

(a)    receive in evidence any transcript of evidence in proceedings before an industrial authority, and draw any conclusions of fact from that evidence that appear proper; and

(b)    adopt any findings or determinations of an industrial authority that may be relevant to proceedings before the Tribunal; and

(c)    adopt or make any determination in relation to proceedings before an industrial authority before the relevant day (including so as to make a determination in relation to proceedings fully heard before the relevant day); and

(d)    take other steps to promote or ensure the smoothest possible transition from 1 jurisdiction to another in connection with the operation of this section.

22    Section 69(13) is particularly pertinent presently. It provides for any proceedings before an “industrial authority” (a term defined to include the IRCSA) under the FW (SA) Act immediately before the relevant day (1 July 2017) to be transferred to the SAET, subject to such directions as the President of the SAET thinks fit, and then to proceed as if they had been commenced before the SAET. Section 69(14) permits the SAET to adopt evidence and rulings in the transferred proceedings and to take other steps to facilitate the transition of the proceedings from one jurisdiction to another.

The hearing of Mr Kronen’s remitted application for directions

23    The application for directions remitted to the IRCSA by the order of this Court on 30 January 2017 was heard by his Honour Judge Clayton, sitting as an Auxiliary Judge in the SAET. It is not clear how that came about but it is reasonable to infer that it had been thought that s 69(13) of the 2016 Amendment had the effect of transferring Mr Kronen’s application to the SAET. On 27 November 2017, Judge Clayton dismissed the application: Kronen v Commercial Motor Industries Pty Ltd (t/as CMI Toyota) [2017] SAET 156. His Honour concluded that:

(a)    the SAET did not have jurisdiction with respect to Mr Kronen’s claim because the transitional provisions in the 2016 Amendment did not have the effect of transferring the proceedings from the IRCSA to the SAET;

(b)    even if the proceedings had been transferred, Mr Kronen had not established that it was appropriate for the proceedings to be reopened.

24    In addition to finding that the SAET did not have jurisdiction with respect to the proceedings, Judge Clayton also expressed the view that Mr Kronen’s proceedings had come to an end when the IRCSA was dissolved with effect from 1 July 2017.

25    In relation to the jurisdiction issue, Judge Clayton accepted that the SAET is an “eligible State or Territory Court” for the purposes of provisions in the Fair Work Act 2009 (Cth) (FW Act). We will refer shortly to the provisions indicating that this is so (although the SAET has not been vested with jurisdiction to hear claims under the WR Act). Judge Clayton considered that, while the SAET has jurisdiction which enables it to hear claims of the general kind which Mr Kronen wishes to advance, it would have jurisdiction in relation to Mr Kronen’s claim only if the proceedings had been “transferred” to it from the IRCSA pursuant to s 69(13). His Honour considered that the proceedings had not been so transferred, having regard to the following:

(a)    in order for proceedings to be transferred from the IRCSA to the SAET, they had to be proceedings before an industrial authority “under” the FW (SA) Act, at [67];

(b)    the jurisdiction of the IRCSA which Mr Kronen had invoked in 2005 was that bestowed on it by ss 177A and 179 of the WR Act, at [68], [76]-[77];

(c)    although s 14 of the FW (SA) Act had provided that the IRCSA had jurisdiction to hear and determine monetary claims under the FW Act, including claims for unpaid superannuation contributions, that had not been the jurisdiction being exercised by the IRCSA in relation to Mr Kronen’s claim, at [71]-[76]; and

(d)    accordingly, Mr Kronen’s claim could not be regarded as “proceedings under the principal Act” within the meaning of s 69(13) of the 2016 Amendment, with the consequence that that provision had not operated to transfer them to the SAET.

The appeal to this Court

26    Mr Kronen brings the present appeal against this decision of Judge Clayton. He contends that Judge Clayton should have found that the SAET did have jurisdiction, and that he erred in the exercise of the discretion with respect to the reopening. Mr Kronen was unrepresented in this Court, as he had been in the SAET.

27    Having regard to an issue raised by the Respondents in an appeal from the SAET commenced by Qantas Airways Ltd which was to be heard by the Court on the day after Mr Kronen’s appeal (Qantas Appeal), a Registrar of the Court drew Mr Kronen’s attention to s 78B of the Judiciary Act 1903 (Cth). The issue foreshadowed in the Qantas Appeal was whether a State Parliament could legislate validly to prevent the enforcement of rights which had accrued to an applicant by reason of the exercise of federal jurisdiction by a State court. By letters dated 16 May 2018, Mr Kronen served notices pursuant to s 78B on the Commonwealth, State and Territories’ Attorneys General. As we understood it, Mr Kronen’s letters sought to give notice of the same issue as had been raised in the Qantas Appeal.

28    The Attorney-General for the State of South Australia did intervene. The Solicitor-General for the State of South Australia submitted that, having regard to the application of legislation of the South Australian Parliament, including s 16 of the AI Act, the foreshadowed constitutional question does not arise. On that basis, he also submitted that it was appropriate for the Court to proceed with the hearing but that if the Court considered that the constitutional question should be addressed, a further hearing should be held: see Sagacious Legal Pty Ltd v Wesfarmers General Insurance Ltd (No 3) [2010] FCA 428; (2010) 184 FCR 516, at [16]. The Court decided that it was appropriate to proceed with the hearing on that basis.

The jurisdiction of the SAET

29    It is appropriate to commence by noting two matters. First, the jurisdiction being exercised by the IRCSA with respect to Mr Kronen’s claim was federal jurisdiction, namely, the jurisdiction to hear and determine a claim arising under a law of the Australian Parliament, in this case, s 179 of the WR Act. Mr Kronen’s application to reopen and to amend his proceedings was an application in the original proceedings and, accordingly, sought the exercise of federal jurisdiction. Secondly, only the Australian Parliament can vest federal jurisdiction in a State or Territory court: Re Wakim; ex parte McNally [1999] HCA 27, (1999) 198 CLR 511 at [60] (McHugh J) and [107]-[108] (Gummow and Hayne JJ with Gleeson J agreeing at [25]); Kronen v Commercial Motor Industries Pty Ltd (CMI Toyota) [2008] FCAFC 171 at [13].

30    By s 77(iii) of the Australian Constitution, the Australian Parliament may invest any court of a State with federal jurisdiction. The effect of s 39 of the Judiciary Act is that State courts are divested of their inherent State jurisdiction with respect to all matters referred to in ss 75 and 76 of the Constitution, and then invested with federal jurisdiction with respect to some of those matters.

31    Section 545(3) of the FW Act vests jurisdiction in “an eligible State or Territory court” with respect to specified subject matters:

Eligible State or Territory courts

(3)    An eligible State or Territory court may order an employer to pay an amount to, or on behalf of, an employee of the employer if the court is satisfied that:

(a)    the employer was required to pay the amount under this Act or a fair work instrument; and

(b)    the employer has contravened a civil remedy provision by failing to pay the amount.

Note 1:    For the court’s power to make pecuniary penalty orders, see section 546.

Note 2:    For limitations on orders in relation to costs, see section 570.

32    Section 546(1) vests this Court, the Federal Circuit Court and an “eligible State or Territory court” with the jurisdiction to impose a pecuniary penalty in respect of a contravention of a “civil remedy provision” in the FW Act. It provides:

(1)    The Federal Court, the Federal Circuit Court or an eligible State or Territory court may, on application, order a person to pay a pecuniary penalty that the court considers is appropriate if the court is satisfied that the person has contravened a civil remedy provision.

Note:    Pecuniary penalty orders cannot be made in relation to conduct that contravenes a term of a modern award, a national minimum wage order or an enterprise agreement only because of the retrospective effect of a determination (see subsections 167(3) and 298(2)).

33    The term “eligible State or Territory court” used in ss 545(3) and 546(1) is defined in s 12 of the FW Act:

eligible State or Territory court means one of the following courts:

(a)    a District, County or Local Court;

(b)    a magistrates court;

(c)    the Industrial Relations Court of South Australia;

(ca)    the Industrial Court of New South Wales;

(d)    any other State or Territory court that is prescribed by the regulations.

34    By reg 1.05 of the Fair Work Regulations 2009 (Cth), which came into force on 1 July 2017, the South Australian Employment Court is prescribed as an eligible State or Territory Court for the purposes of subpara (d) of this definition – see Fair Work and Other Legislation Amendment (South Australian Employment Court) Regulations 2017 (Cth), Sch 1 reg 1. However, there has been no prescription of the South Australian Employment Court under the counterpart definition of “eligible court” in s 717 of the WR Act.

35    Mr Kronen is not seeking a payment under the FW Act or a “fair work instrument” (as that term is defined in s 12 of the FW Act). Nor is he alleging that CMI had contravened a “civil remedy provision” of the FW Act by failing to pay the superannuation contributions he claims. Accordingly, neither s 545(3) nor s 546(1) confer jurisdiction on the SAET with respect to Mr Kronen’s claim for payment of superannuation contributions pursuant to the Vehicle Industry Award.

36    Mr Kronen submitted that there were other means by which the SAET had been vested with jurisdiction to hear and determine his application. He referred to s 14(c)(ii) of the FW (SA) Act as it stood before 1 July 2017. That provision stated that the IRCSA had jurisdiction to hear and determine claims for sums due (relevantly) to a former employee from a former employer under “the Commonwealth Act, or an award or agreement under the Commonwealth Act”. Since 1 January 2010, the term “Commonwealth Act” has been defined in s 4(1) of the FW (SA) Act to be the FW Act. Before 31 December 2009, it was defined as the WR Act and before 3 September 1997, it was defined as the Industrial Relations Act 1988 (Cth). However, as already indicated, it is not within the capacity of a State Parliament to confer federal jurisdiction on one of its courts. Accordingly, s 14(c)(ii) was ineffective to confer federal jurisdiction on the IRCSA.

37    For similar reasons, s 9(1)(a)(ii) of the FW (SA) Act as in force since 1 July 2017, which is the current counterpart to s 14(c)(ii), does not vest jurisdiction with respect to Mr Kronen’s claim in the SAET.

38    Mr Kronen also submitted that Judge Clayton had been in error in construing the word “under” in s 69(13) as referring to the source of the jurisdiction being exercised. The submission, as we understood it, was that his application could be said to have been “under” the FW (SA) Act because it was governed by the institutional, evidential and procedural regime established by the IRCSA for the hearing and determination of claims.

39    In our opinion, this submission should not be accepted. It is convenient to provide the reasons for that conclusion when addressing the submissions of the Solicitor-General concerning the effect of s 16 of the AI Act.

40    As already indicated, it was the IRCSA which had been vested with jurisdiction pursuant to s 177A of the WR Act to hear and determine Mr Kronen’s claim. For reasons to be elaborated in the next section of this judgment, the IRCSA continues to have that jurisdiction. It was not suggested that the repeal of Pt 14 of the WR Act effected by cl 2 of Sch 1 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) had any effect on Mr Kronen’s ability to pursue his claim under the WR Act in the IRCSA.

41    For these reasons, Judge Clayton was correct to conclude that the SAET does not have jurisdiction with respect to Mr Kronen’s claim, although that is so for reasons which differ from those given by his Honour.

42    It is appropriate to refer to the competence of Mr Kronen’s present appeal given this conclusion. Section 565(1) of the FW Act, which grants the right of appeal on which Mr Kronen relies, provides:

An appeal lies to the Federal Court from a decision of an eligible State or Territory court exercising jurisdiction under this Act.

43    The effect of s 565(1) is that an appeal lies to this Court from a decision of the SAET only when it is exercising jurisdiction under the FW Act. Plainly, the SAET was not exercising any jurisdiction expressly vested in it by the FW Act. However, the SAET had the implied jurisdiction possessed by every court to determine whether its jurisdiction had been validly invoked: Grassby v The Queen (1989) 168 CLR 1 at 16 (Dawson J); Pelechowski v The Registrar, Court of Appeal (NSW) [1999] HCA 19, (1999) 198 CLR 435 at [50]. This meant that it had an implied jurisdiction to determine whether its jurisdiction under the FW Act had been invoked. That jurisdiction was implied in the express grant of jurisdiction to the SAET contained in ss 545(3) and 546(1) of the FW Act. Although Judge Clayton did not refer to these provisions, it is apparent that his Honour was engaged in the exercise of determining the SAET’s jurisdiction to hear and determine Mr Kronen’s application. On that basis, we consider that it can be concluded that, in determining the SAET’s jurisdiction, Judge Clayton was exercising the implied jurisdiction arising under ss 545(3) and 546(1), with the consequence that an appeal does lie to this Court from his decision.

The effect of the dissolution of the IRCSA on Mr Kronen’s application

44    As already noted, Judge Clayton went on to hold that Mr Kronen’s cause of action ceased upon the dissolution of the IRCSA. Although strictly speaking, it is not necessary to address the submissions of the parties on that question, we consider, given the sorry history of Mr Kronen’s application, that it is appropriate to do so.

45    Judge Clayton expressed this conclusion without referring to the effect of s 16 of the AI Act. Section 16 provides (relevantly):

16 – Saving of operation of repealed, amended or expired Act

(1)    Where an Act is repealed or amended, or where an Act or enactment expires, then, unless the contrary intention appears, the repeal, amendment or expiry does not—

(a)    …

(b)    affect the operation of the repealed, amended or expired Act or enactment, or alter the effect of the doing, suffering or omission of anything, prior to the repeal, amendment or expiry; or

(c)    affect any right, interest, title, power or privilege created, acquired, accrued, established or exercisable, or any status or capacity existing, prior to the repeal, amendment or expiry; or

(d)    …

(e)    affect any investigation, legal proceedings or remedy in respect of any such right, interest, title, power, privilege, status, capacity, duty, obligation, liability, burden of proof, penalty, forfeiture or punishment.

(2)    Any such investigation, legal proceedings or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed and enforced, as if the repeal or amendment had not been effected or as if the expired Act or enactment had not expired (as the case may be).

(2a)    Where any office, court, tribunal or body would, apart from this section, cease to exist by reason of the repeal, amendment or expiry, then, for the purpose of instituting, continuing or enforcing any such investigation, legal proceeding or remedy, the office, court, tribunal, or body continues in existence (and, if necessary, new appointments may be made to it) as if the repeal or amendment had not been effected, or as if the expired Act or enactment had not expired (as the case may be).

(3)    Any Act or enactment will, notwithstanding its repeal, amendment or expiry, continue in force for the purposes of continuing and completing any act, matter or thing commenced or in progress under that Act or enactment, if there is no substituted Act or enactment adapted to its continuance and completion.

(4)    In this section—

legal proceeding includes any proceeding pursuant to an Act, enactment or law whether of a judicial or administrative nature.

46    As can be seen, s 16 operates when an Act has been repealed or amended, or expires. It provides in subs (1)(e) that, subject to any apparent contrary intention, the repeal, amendment or expiry does not affect (relevantly) any legal proceeding or remedy in respect of any right, interest or power existing prior to the repeal, amendment or expiry to which subs (1)(c) refers. By subs (2), any legal proceedings may be continued as if the repeal or amendment had not been effected. By subs (2)(a), a court or tribunal which would otherwise cease to exist by reason of the repeal or amendment, continues in existence for the purpose (relevantly) of continuing the legal proceeding and, if necessary, new appointments may be made to the court or tribunal as if the repeal or amendment had not been effected.

47    The Solicitor-General for the State of South Australia submitted that the effect of s 16 is that Mr Kronen’s proceedings in the IRCSA are able to be continued as if the amendments in Pt 4 of the 2016 Amendment had not been effected. Further, for the purpose of Mr Kronen continuing those proceedings, the IRCSA has continued in existence as if those amendments had not been effected. The Solicitor-General acknowledged that it will be necessary for a new appointment to be made to the IRCSA so that it can continue hearing Mr Kronen’s application.

48    Section 16 of the AI Act is subject to any contrary intention being apparent in the amending Act. The Solicitor-General acknowledged that the 2016 Amendment, in particular s 69, does contain some indication of a contrary intention. That is self-evidently so. Subsections (11) to (13) refer to three different circumstances: determinations already made by an industrial authority (subs (11)); an existing but unexercised right to bring proceedings before an industrial authority (subs (12)); and proceedings which have been commenced but not finally concluded (subs (13)).

49    In relation to the first of these circumstances, s 69(11) provides that a determination of an industrial authority in force immediately before 1 July 2017 will be taken from that date to be a determination of the SAET and, implicitly, capable of being enforced as such. That is inconsistent with an intention that a determination of an industrial authority should continue to be a determination of that authority and enforceable as such.

50    In relation to the second circumstance, the effect of s 69(12) is to convert the existing but unexercised right to commence proceedings before an industrial authority into a right to commence those proceedings in the SAET. That is inconsistent with an intention that persons should be able, in accordance with s 16 of AI Act, to commence their proceedings in the industrial authority.

51    In relation to the third circumstance, the effect of s 69(13) is to transfer current proceedings before an industrial authority to the SAET where they may proceed as if commenced before the SAET. That is inconsistent with an intention that applicants should be able, in accordance with s 16 of the AI Act, to continue their proceedings before the industrial authority.

52    However, s 69(13) is to be construed having regard to the limits of the legislative power of the Parliament of the State of South Australia. Section 22A of the AI Act requires as much:

22A – Construction of Act so as not to exceed power of State

(1)    Every Act and every provision of an Act will be construed so as not to exceed the legislative power of the State.

(2)    Any Act or provision of an Act which, but for this section, would exceed the power of the State, is nevertheless a valid enactment to the extent to which it does not exceed that power.

53    As already indicated, it is trite that the Parliament of a State does not have the legislative capacity to confer federal jurisdiction on one of its courts. It is also plain that an enactment of a State Parliament cannot transfer proceedings from one State court which has been vested with federal jurisdiction to another State court which has not. Section 69 should, if possible, be construed so as to conform with these limitations on the legislative power of the Parliament of the State of South Australia. Accordingly, if there is an available construction of s 69(13) which would mean that it is not to be understood as referring to matters before (relevantly) the IRCSA in the exercise of federal jurisdiction, that construction should be preferred. This requires attention to the term “proceedings … under the principal Act” in s 69(13).

54    In Griffith University v Tang [2005] HCA 7; (2005) 221 CLR 99, the High Court considered the term “decision … made … under an enactment” appearing in s 4(a) of the Judicial Review Act 1991 (Qld). The plurality (Gummow, Callinan and Heydon JJ) said:

[89]    The determination of whether a decision is "made ... under an enactment" involves two criteria: first, the decision must be expressly or impliedly required or authorised by the enactment; and, secondly, the decision must itself confer, alter or otherwise affect legal rights or obligations, and in that sense the decision must derive from the enactment. A decision will only be "made ... under an enactment" if both these criteria are met. It should be emphasised that this construction of the statutory definition does not require the relevant decision to affect or alter existing rights or obligations, and it will be sufficient that the enactment requires or authorises decisions from which new rights or obligations arise. Similarly, it is not necessary that the relevantly affected legal rights owe their existence to the enactment in question. Affection of rights or obligations derived from the general law or statute will suffice.

Obviously, the statutory context considered in Tang is different from the present case. Nevertheless, the requirement for the decision to be “expressly or impliedly required or authorised” by the enactment is consistent with the term “under the principal Act” being construed as a reference to the exercise of jurisdiction under the FW (SA) Act.

55    In Hall v City of Burnside [2005] SASC 343; (2005) 92 SASR 579, the Full Court of the Supreme Court of South Australia considered whether an appeal from a decision of the Environment Resources and Development Court concerning the application of the Development Act 1993 (SA) was an appeal under the latter Act. The question arose because the right of appeal was expressed in a regulation made under the Development Act as an “appeal under this Act”. Bleby J, with whom Doyle CJ and Perry J agreed on this point, said:

[74]    … The same body of law and planning principles specified in and given effect by Div 1 of Pt 4 of the Act will govern the determination of the appeal to the Supreme Court in the same way that it governs an appeal to the Environment Court from a relevant authority. The result of the appeal will be dictated by the matters prescribed in and under the Development Act. The effect of any consent or approval arising from the decision will be regulated by the Act. The enforcement of rights created by the decision will be under and in accordance with the provisions of the Act. …

56    This judgment too suggests that regard is to be had to the source of the underlying rights and liabilities rather than to the process for the determination of those rights and liabilities.

57    The manner in which s 69(13) is expressed suggests that a similar construction is appropriate. The inclusion of the term “under the principal Act” in s 69(13) appears intended as a term of limitation. That is to say, s 69(13) should not be construed as though it read “any proceedings before an industrial authority immediately before the relevant day will …”. The limitation is that the proceedings be in the exercise of jurisdiction under the principal Act.

58    We recognise that construing the term “proceedings … under the principal Act” as referring to proceedings in the exercise of jurisdiction bestowed by the FW (SA) Act, will have the effect that s 69(13) does not encompass proceedings over which the IRCSA had jurisdiction under other legislation of the South Australian Parliament. That may be so, and it may be an unforeseen consequence, but that circumstance does not detract from the construction of s 69(13) which we consider appropriate.

59    Mr Kronen adopted the submissions of the Solicitor-General.

60    Initially, counsel for CMI submitted that the 2016 Amendment and s 16 of the AI Act did not have the effect for which the Solicitor-General contended. Later, however, counsel withdrew these submissions. CMI said that it did not wish to advance any submissions inconsistent with those of the Solicitor-General concerning the effect of s 16.

61    Counsel for CMI raised two further matters. The first was that any entitlement which Mr Kronen had on the commencement of the 2016 Amendment on 1 July 2017 was not an “accrued right” for the purposes of s 16(1)(c) and (e). Instead, he possessed, at most, the ability to seek an indulgence from the IRCSA. Counsel referred in this respect to JR Exports Pty Ltd v Australian Trade Commission (1987) 14 FCR 161 in which the Full Court held, by majority, that an applicant seeking reconsideration of a decision refusing an extension of time in which to make an application for a grant had only a right to claim an indulgence, and not an accrued right within the meaning of s 8 in the Acts Interpretation Act 1901 (Cth) (the counterpart of s 16 in the AI Act). He submitted that Mr Kronen’s application to reopen should be similarly characterised. In JR Exports, Fox J said, at 163-4:

What it was sought to have “reconsidered” was in the first place the application for the indulgence respecting time. This did not acquire the nature of an “accrued right” simply because the application had already been refused.

62    Two matters indicate that the reasoning of JR Exports should not be applied in the present case. In the first place, by filing his application in the IRCSA, Mr Kronen had acquired a right to have the IRCSA determine the application: Continental Liqueurs Pty Ltd v GF Heublen and Bro Incorporated (1960) 103 CLR 422 at 426 (Kitto J). Secondly, Mr Kronen had acquired a right to the same effect by reason of the order of this Court made on 30 January 2017 remitting his application to the IRCSA for further consideration. Both circumstances indicate that Mr Kronen had more than a right to seek an indulgence.

63    The second matter raised by CMI was less easy to understand. It seemed to be to the effect that the six-year limitation period contained in s 178(8) of the WR Act, in conjunction with s 79(1) of the Judiciary Act, meant that Mr Kronen’s application was futile, because it would inevitably be statute barred. This submission would appear to face a number of difficulties, but it is not necessary for the Court to address them presently. They can be addressed, if pursued, by the IRCSA.

Conclusion

64    For the reasons given above, the appeal should be dismissed.

65    Having regard to the terms of s 28(1)(c) of the Federal Court of Australia Act 1976 (Cth), it is not open to the Court to make any order with respect to the remittal of the matter to the IRCSA. The issues in the appeal have now come to the attention of the Attorney-General of the State of South Australia, and the Court can expect that arrangements will now be made for the IRCSA to complete the hearing and determination of Mr Kronen’s application.

66    The Court should, however, direct that a copy of these reasons be provided to the President of the SAET.

67    In the circumstance that Mr Kronen’s application is yet to be heard and determined by the IRCSA, it is inappropriate for this Court to address the second ground of appeal.

Associate:

Dated:    23 August 2018