All Districts Coating Pty Ltd v Barhoum

FEDERAL COURT OF AUSTRALIA

All Districts Coating Pty Ltd v Barhoum [2008] FCA 1525

PRACTICE AND PROCEDURE – appeal from order of Federal Magistrates Court – whether such order was interlocutory in nature – whether appeal competent  

Federal Court of Australia Act 1976 (Cth), s 24(1A)
Workplace Relations Act 1996 (Cth), s 824

ALL DISTRICTS COATING PTY LTD, ALL DISTRICTS COATING (AUST) PTY LTD, CARLOS HABIBEH and RITA HABIBEH v EAD BARHOUM

NSD 547 OF 2008

MOORE  J
14 OCTOBER 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 547 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

ALL DISTRICTS COATING PTY LTD
First Appellant

ALL DISTRICTS COATING (AUST) PTY LTD
Second Appellant

CARLOS HABIBEH
Third Appellant

RITA HABIBEH
Fourth Appellant

AND:

EAD BARHOUM
Respondent

JUDGE:	MOORE  J
DATE OF ORDER:	14 OCTOBER 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed as incompetent.

2.The appellants pay the respondent's costs on and from 8 May 2008.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 547 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

ALL DISTRICTS COATING PTY LTD
First Appellant

ALL DISTRICTS COATING (AUST) PTY LTD
Second Appellant

CARLOS HABIBEH
Third Appellant

RITA HABIBEH
Fourth Appellant

AND:

EAD BARHOUM
Respondent

JUDGE:	MOORE  J
DATE:	14 OCTOBER 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The respondent to this appeal has filed a notion of motion seeking orders that the appeal be struck out as incompetent pursuant to O 52 r 18 of the Federal Court Rules. The respondent contends, by notice of motion, that the appeal is incompetent on the basis that the orders from which the appeal is brought are interlocutory in nature, and as a result, the appeal is incompetent in the absence of a grant of leave by the Court: s 24(1A) of the Federal Court of Australia Act 1976 (Cth).

2. The circumstances giving rise to the respondent’s application are as follows. On 18 April 2008, the appellants (who were described in the notice of appeal as applicants) filed a notice of appeal in which they sought to appeal against the following orders made by a Federal Magistrate on 28 March 2008. 

   (1) The first respondent and/or second respondent and/or third respondent, having breached the requirements of s.659(2)(a) of the Act, pay a penalty of $7,000.

   (2) The payment of such penalty be made to the NSW Branch of the Construction Forestry Mining and Energy Union within twenty-eight (28) days of the making of this order.

   (3) Within fourteen (14) days of the making of these orders, each of the parties file and serve written submissions and/or evidence by way of affidavit in relation to the reinstatement to employment of the applicant, and the amount of compensation to be paid to the applicant.

   (4)Each of the parties file and serve written…