Case: Felton v Mulligan [1971] HCA 39 ; (1971) 124 CLR 367
Outcome: cited
The respondent submitted the scope of 'the matter' in question was to be identified by reference to the scope of the 'justiciable controversy' to be determined in this application. The applicant argued that the determination of the justiciable controversy required the determination of both the applicant's claim and its defence, namely, that the impugned conduct was 'protected action' under the Act and afforded the respondent immunity from the suit brought by the applicant under the TP Act in respect of an alleged breach of s 45D of that Act . The respondent argued that this was a sufficient basis upon which the Court could conclude that the respondent was a party to a proceeding in a matter arising under the Act for the purposes of s 347 of the Act . In support of this submission, the respondent relied upon the following observations of the High Court in the case of L.N.C. Industries Limited v B.M.W. (Australia) Limited [1983] HCA 31 ; (1983) 151 CLR 575 at 581 ('L.N.C.') : 'It is true to say that a matter does not arise under a law made by the Parliament merely because the interpretation of the law is involved: Felton v Mulligan ((1971) 124 CLR 376, at pp. 374, 382, 396, 408, 416). On the other hand, a matter may arise under a law of the Parliament although the interpretation or validity of the law is not involved; R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett ((1945) [1945] HCA 50 ; 70 CLR 141, at p. 154). The conclusion reached by Latham C.J. in that case, and stated in a passage that has often been cited with approval is, "that a matter may properly be said to arise under a federal law if the right or duty in question in the matter owes its existence to federal law or depends upon federal law for its enforcement, whether or not the determination of the controversy involves the interpretation (or validity) of the law." Equally, there is a matter arising under a federal law if the source of a defence which asserts that the defendant is immune from the liability or obligation alleged against him is a law of the Commonwealth: Felton v Mulligan ((1971) [1971] HCA 39 ; 124 CLR [367] , at p. 408).' 29 In Felton v Mulligan [1971] HCA 39 ; (1971) 124 CLR 367 ('Felton') Walsh J said at 408: 'A comparison between the terms of s. 76(i.) and those of s 76(ii.) of the Constitution indicates that a distinction is to be drawn between a matter "arising under" a law of the Parliament and a matter which involves the interpretation of such a law. The fact that the interpretation of a law is involved does not necessarily mean that there is a matter arising under the law. But, in my opinion, there is a matter arising under the law if the source of the right claimed by the plaintiff or applicant or the source of a defence which asserts that the defendant or respondent is immune from the liability or obligation alleged against him is a law of the Parliament. I think that that view of what constitutes a matter arising under a law of the Parliament is in conformity with the statements made in R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett [1945] HCA 50 ; (1945) 70 CLR 141 by Latham C.J. and by McTiernan J. (1945) 70 CLR, at p 173. There Latham C.J. said: "If a right claimed is conferred by or under a federal statute, the claim arises under the statute" (1945) 70 CLR, at p 154. Likewise, in my opinion, if the answer made to a claim is that the defendant is free from the obligation asserted against him and that this freedom is conferred by an Act of the Parliament, the defence arises under that Act and the result is that there is before the Court a "matter" which arises under that Act .' 30 In my view, the determination of the justiciable controversy, which includes the applicant's claim that the impugned conduct comprised a threatened breach of s 45D of the TP Act , would also require determination of the respondent's defence that the impugned conduct was protected action within the meaning of the Act . Both the claim and the defence are in my view part of the same matter. Applying the observations of the High Court in the Felton and LNC cases referred to above, the proceeding is to be regarded as being in a matter arising under the Act because the source of the defence which asserts that the respondent is immune from liability or obligation, is founded on s 170ML and s 170MT of the Act . 31 In my view, the observations of the High Court in the McJannet case which were relied upon by the applicant and which refer only to the source of the claim which is made and not the source of any defence to such claim, were not intended to derogate the pre-existing law which is articulated in the observations in each of the LNC and the Felton cases referred to above. The observations that the High Court made in the McJannet case which are relied upon by the applicant, are to be read subject to the context in which those observations were made. In McJannet , the prosecutors sought in the High Court a writ of prohibition against the judges of the Federal Court. The proceeding before the High Court was one where the prosecutor asserted that there was an absence of jurisdiction in the Federal Court to consider the proceeding which was before the Federal Court. The High Court was not therefore required to consider the characterisation of the 'matter' other than by reference to the characterisation of the claim by way of a writ of prohibition, which had been made in the High Court. There was in the proceeding before the High Court no attempt to enforce a duty arising under the Act , and, therefore, there was no need for the High Court to address the question of whether a claim arising under the Industrial Relations Act 1988 (Cth) (as the Act was then named), or a defence of immunity under that Act , would be included within the scope of 'a matter arising under the Act '.