Anning v University of Western Sydney
[2015] FCA 1049
•24 September 2015
FEDERAL COURT OF AUSTRALIA
Anning v University of Western Sydney [2015] FCA 1049
Citation: Anning v University of Western Sydney [2015] FCA 1049 Appeal from: Application for Leave to Appeal: Anning v University of Western Sydney [2015] FCCA 2124 Parties: BERICE ANNING v UNIVERSITY OF WESTERN SYDNEY File number: NSD 970 of 2015 Judge: MARKOVIC J Date of judgment: 24 September 2015 Legislation: Fair Work Act 2009 (Cth) ss 566, 568, 728, 732, 734, Pt 6‑1
Federal Circuit Court of Australia Act 1999 (Cth) ss 10A, 14, 42
Federal Court of Australia Act 1976 (Cth) s 24
Racial Discrimination Act 1975 (Cth) s 10
Federal Circuit Court Rules 2001 r 1.03Cases cited: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397
Oswal v Burrup Fertilisers Pty Ltd (recs and mgrs apptd) (2011) 85 ACSR 531Date of hearing: 15 September 2015 Place: Sydney Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 36 Counsel for the Applicant: The Applicant appeared in person Counsel for the Respondent: Mr M Seck Solicitor for the Respondent: Thomson Geer
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 970 of 2015
BETWEEN: BERICE ANNING
ApplicantAND: UNIVERSITY OF WESTERN SYDNEY
Respondent
JUDGE:
MARKOVIC J
DATE OF ORDER:
24 SEPTEMBER 2015
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The application for leave to appeal is refused.
2.The applicant to pay the respondent’s costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 970 of 2015
BETWEEN: BERICE ANNING
ApplicantAND: UNIVERSITY OF WESTERN SYDNEY
Respondent
JUDGE:
MARKOVIC J
DATE:
24 SEPTEMBER 2015
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The applicant has sought leave to appeal from a judgment of the Federal Circuit Court given on 3 August 2015. There is no issue between the parties that the judgment is interlocutory and that leave is required under s 24(1)(d) and (1A) of the Federal Court of Australia Act 1976 (Cth) (Act). In the judgment appealed from, the Federal Circuit Court judge made orders that two proceedings filed by the applicant in the Federal Circuit Court be consolidated. The orders made, omitting the case management orders, were as follows:
(1)Proceeding SYG1313/2015 be consolidated with proceeding SYG1444/2015 in the docket of Judge Cameron.
(2)The documents filed in SYG1313/2015 be transferred to SYG1444/2015.
(3)The file SYG1313/2015 be closed by the registry.
In support of her application for leave to appeal the applicant relies on her affidavit sworn on 17 August 2015.
The respondent opposes the application for leave to appeal. In doing so it relies on an affidavit of Jonathon James Corlett sworn on 1 September 2015.
THE PROCEEDINGS IN THE FEDERAL CIRCUIT COURT
On 13 May 2015, the applicant commenced proceedings No. SYG1313/2015 in which, in summary, she alleges that she had been dismissed in contravention of a general protection under the Fair Work Act 2009 (Cth) (FW Act Claim). On 26 May 2015, the applicant commenced proceedings No. SYG1444/2015 in which she alleges breaches of the Racial Discrimination Act 1975 (Cth) (RD Act Claim). The University of Western Sydney (UWS) is the respondent to the FW Act Claim and the RD Act Claim.
On 17 July 2015, UWS filed an application in a case in the RD Act Claim seeking consolidation of the RD Act Claim and FW Act Claim. That application was heard on 3 August 2015 at which time the Court made the orders which are now the subject of the application for leave to appeal.
The primary judge formed the view that it was appropriate for the two matters to be consolidated because:
(1)the RD Act Claim and the FW Act Claim concern two series of events which intertwine and seem intimately related. The events seem to involve many of the same individuals and it would be more efficient if the witnesses came to court only once and gave their evidence at one hearing;
(2)consolidation would avoid the risk that different judges would make different findings in relation to the same witnesses or the same evidence;
(3)consolidation would streamline the litigation by ensuring that relief was not sought under two Acts in respect of the same conduct in circumstances where that is prohibited by the Fair Work Act 2009 (Cth) (Fair Work Act);
(4)the court’s task is to achieve a just, efficient and economic resolution of the proceeding and consolidation would not affect the reality that the applicant and the respondent are equal in the eyes of the court; and
(5)consolidation is within the power of the court and would avoid a multiplicity of proceedings.
APPLICABLE PRINCIPLES
The principles to be applied by the Court when exercising the discretion conferred on it in relation to an application for leave to appeal are those articulated in Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397. They are:
(1)whether, in all the circumstances, the decision is attended by sufficient doubt to warrant it being re-considered on appeal; and
(2)whether a substantial injustice would result if leave were refused, supposing the decision to be wrong.
The application for leave to appeal before me concerns an interlocutory judgment on a point of practice and procedure. It does not concern an interlocutory judgment which has the effect of finally determining an issue between parties to the litigation.
In Oswal v Burrup Fertilisers Pty Ltd (recs and mgrs apptd) (2011) 85 ACSR 531, after setting out the principles that apply to an application for leave to appeal from an interlocutory decision, Mansfield and Foster JJ observed at [11]–[12]:
[11] Where the matter concerns a discretionary interlocutory ruling on a matter of practice and procedure, rather than in relation to a substantive right, leave to appeal is less often given. In Hogan v Australian Crime Commission (2010) 240 CLR 651 … the High Court … at [34] said:
[34] Appellate intervention in matters of practice and procedure, where no questions of general principle are at stake, has been said to require the exercise of particular caution.
[12] That approach reflects the approach of the High Court in Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170, and in particular in the joint judgment of the plurality … where their Honours cited with approval the well known passage of Jordan CJ in Re Will of FD Gilbert (dec’d) (1946) 46 SR (NSW) 318 at 323. There his Honour said:
… I am of opinion that … there is a material difference between an exercise of discretion on a point of practice or procedure and an exercise of discretion which determines substantive rights. In the former class of case, if a tight reign were not kept upon interference with the orders of Judges of first instance, the result would be disastrous to the proper administration of justice. The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a Judge in Chambers to a Court of Appeal.
It is the case that where a decision is interlocutory and relates to a matter of practice and procedure, as is the case here, the courts have been reluctant to intervene and a degree of caution must be exercised.
PROPOSED GROUNDS OF APPEAL
The applicant has notified her grounds of appeal in a draft notice of appeal accompanying her application for leave to appeal. Those grounds are reproduced below:
1. Error of law of significance that should overturn the Orders under appeal:
Judge Cameron, who made the Orders on 3 August 2015 and heard the submissions as submitted by the parties prior to and on the 3 August 2015 hearing, made an error of law. The error of law is evidenced in the Judge’s:
(i)application of incorrect principles of law under the relevant Acts; and
(ii)finding of facts that justified the consolidation of the two proceedings.
2. In this appeal, the Appellant maintains that she has not made the same application for unfair dismissal concurrently under the Fair Work Act 2009 and the Australian Human Rights Commission Act 1986 – Racial Discrimination Act 1975.
3. Judge Cameron applied the Fair Work Act 2009 (Cth), sections 728; 732 and 734, in error as stated in his Reasons for Judgement dated 6 August 2015, at paragraph 4 (p.2).
4. The Appellant has not contravened sections 728, 732 and 734 of the Fair Work Act 2009 as is evidenced by the two separate applications.
5. The Appellant seeks the Appeal Judge’s interpretation of these sections, particularly s.734.
6. Jurisdiction of the Federal Circuit Court of Australia: The Federal Circuit Court of Australia Act 1999, No. 193, 1999, Compilation No. 27, in section 10A General and Fair Work Divisions of the Federal Circuit Court of Australia, states the following:
(1)For the purpose of the organisation and conduct of the business of the Federal Circuit Court of Australia, the Federal Circuit Court of Australia comprises 2 Divisions:
(a) the General Division; and
(b) the Fair Work Division.
(2)Every proceeding in the Federal Circuit Court of Australia must be instituted, heard and determined in a Division.
Fair Work Division
(3)The following jurisdiction of the Federal Circuit Court of Australia is to be exercised in the Fair Work Division:
(a)jurisdiction that is required by any other Act to be exercised in the Fair Work Division;
(b)jurisdiction that is incidental to such jurisdiction.
Note:Under section 566 of the Fair Work Act 2009. jurisdiction is required to be exercised in the Fair Work Division of the Federal Circuit Court of Australia in relation to matters arising under that Act.
7. The Appellant’s oral or written submissions on 8 July 2015 to Nicholls, and to Judge Cameron on 19 June 2015; on 10 July 2015 and on 3 August 2015 have all objected to the consolidation of the two proceedings of SYG1313/2015 (Fair Work Division) and SYG1444/2015 (Human Rights Division).
8. The Appellant’s claim of proceeding SYG1313/2015, was lodged in the Fair Work Division of the Federal Circuit Court of Australia on 12 May 2015, being lodged appropriately in the Fair Work Division or the Federal Circuit Court in accordance with the Fair Work Act 2009 s.566 as confirmed in s.567.
9. The Appellant’s other claim of proceeding SYG1444/2015 was lodged In the Human Rights Division of the Federal Circuit Court of Australia on 26 May 2015.
10. In accordance with the Fair Work Act 2009 s.725, the Appellant did not make an application or complaint or a kind referred to in any one of the sections 726 to 732 in relation to the dismissal whilst the other sections applied.
11. The Appellant has not made the same application for dismissal under the Fair Work Act 2009 and the Australian Human Rights Commission Act 1986 – Racial Discrimination Act 1975.
12. The two proceedings of SYG1313/2015 (Fair Work Division) and SYG1444/2015 (Human Rights Division) are separate matters and do not have the same associated facts, evidence and witnesses.
13. The facts and evidence relating to the proceeding or SYG1313/2015 for the General Protections and Unfair Dismissal claim are different to those relating to the human rights claim in the proceeding of SYG1444/2015.
(i)The large quantity of allegations to be pleaded in the Fair Work claim are related to alleged adverse actions taken against the Appellant by the Respondent, which have breached the Appellant’s workplace rights.
(ii)The adverse actions are based on the contravention of the Respondent’s industrial instruments including the Academic Staff Agreement/s.
(iii)The Appellant's claim in proceeding SYG1313/2015 evidences the facts that will refute all of the allegations provided to the Appellant on 18 November 2013 and thereafter, and which were compiled by the Respondent against the Appellant; and in so doing, contravened the Fair Work Act 2009 by taking adverse actions against the Appellant. These claims are matters in proceeding SYG1313/2015 (Fair Work Division) and are not common to the facts in proceeding SYG1444/2015 (Human Rights Division).
14. The relief sought in proceeding SYG1313/2015 is not the same as the relief sought in proceeding SYG1444/2015.
15. There are other matters for consideration in the Appeal that do not refer to an error of law but to the equality of justice; the procedural fairness and rule of law that the Appellant expects from the Federal Circuit Court.
(i)The Appellant is self-represented and has an expectation that the Federal Circuit Court of Australia would provide her procedural fairness and not discriminate against her by proposing to impose conditions and requirements that are not reasonable and which the Appellant cannot meet, thus disadvantaging her if the two proceedings are consolidated.
(ii)Achieving a just resolution so that the Appellant is provided equality before the law, may not always balance out a matter in order to achieve an efficient and economic resolution at the same time, particularly if the rule of law is to be applied.
(iii)The Federal Circuit Court’s ‘Conduct of Proceedings’ in Division 3 of the Act, ss.55; 56; 62, would further disadvantage the Appellant if the two matters that are related to proceedings SYG1313/2015 and SYG1444/2015 are consolidated, seeing the quantity of the facts and evidence in both are separate matters and not associated as stated by Judge Cameron in his Reasons for Judgement dated 6 August 2015, at paragraph 3 (p.1-2).
(iv)The Appellant does not enjoy access to the large or same/similar pool of resources available to the Respondent organisation and remains self-represented, and not able to achieve an equal footing with the Respondent.
(v)The Fair Work Act 2009 provides for each party to bear their own costs if the court is satisfied that the claim was not vexatious or without reasonable cause; no party caused the other party to incur costs; or both the party unreasonably refused to participate in a matter before Fair Work Australia and the matter arose from the same proceedings.
(vi)The Appellant has been willing to conciliate and/or mediate both before and after the two applications were lodged in the Federal Circuit Court of Australia in May 2015.
16. Since the first directions hearing on 19 June 2015, the Respondent has made it clear that they have a close association with Judge Cameron and that he is their single preferred Judge. It should be noted that one of the Respondents’ legal officers had a close association with Judge Cameron as an associate for a period of two years.
(i)The Appellant’s perception is that this has already influenced Judge Cameron’s decision making.
(ii)The Appellant’s perception is that these actions have the capacity to adversely affect, or has already adversely affected the performance of the Judge.
17. The Racial Discrimination Act 1975 (‘RD Act’) is an Act that was enacted by the Commonwealth under the external affairs power of the Australian Constitution based on s.52(26) of the Australian Constitution. The Commonwealth’s enactment introduced statutory protection against racial discrimination in accordance with Australia’s obligation under the International Convention on The Elimination of All Forms of Racial Discrimination. The operation of the RD Act demonstrates the importance of international human rights standards in protecting the interests of Aboriginal and Torres Strait Islander peoples. Section 9 of the RD Act makes it:
unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing of human rights or fundamental freedoms in the political, economic, social cultural or any other field of public right.
18. Section 10 of the RD Act positively grants rights to Aboriginal and Torres Strait Islander people to ensure equality before the law.
19. Since it came into operation on 31 October 1975 the Racial Discrimination Act has provided protection against not only intentional acts of racial discrimination but also the careless or inadvertent denial of the legal rights of Aboriginal and Torres Strait Islander peoples.
20. Finally there is the potential for a Constitutional matter arising from the proceeding of SYG1444/2015 lodged in the Human Rights Division. The consolidation of proceeding SYG1313/2015 with SYG1444/2015 could lead to this action.
PARTIES’ SUBMISSIONS
The applicant provided written submissions which she supplemented orally at the hearing. Those submissions, which reflect the matters raised in the draft notice of appeal, can conveniently be summarised as follows:
(1)The primary judge erred in finding that:
(a) the FW Act Claim and the RD Act Claim involve the same series of facts, similar individuals and similar witnesses;
(b)the two sets of proceedings concern two series of events that intertwine, involve the same individuals and have the same witnesses;
(c)the multiple claims contravene ss 728, 732 and 734 of the Fair Work Act;
(2)by consolidating the proceedings, rather than ordering that the two proceedings be heard together, there is a “narrowing” of the “rule of law”. The applicant submits that the consolidation of the two proceedings, by procedurally transferring the FW Act Claim to the RD Act Claim, will mean that her FW Act Claim will be “trivialised” in favour of her human rights case and that the two matters will not enjoy “an equality of hearing” before the Court;
(3)the FW Act Claim is being removed from the Fair Work Act Division which is where the Federal Circuit Court is required to exercise jurisdiction under the Fair Work Act. The applicant says that she will not have the benefit of the no costs jurisdiction that the Federal Circuit Court permits in that Division;
(4)the applicant alleges bias on the part of the primary judge in that he did not bring an impartial and unprejudiced mind to the consideration of the application for consolidation. The basis for this submission is that the primary judge’s former associate is an in-house lawyer in the respondent organisation and is the respondent’s instructing officer in relation to the FW Act Claim and the RD Act Claim. The applicant submits that the respondent “targeted” the primary judge to hear both claims and that substantial injustice would result if leave to appeal were refused in light of the alleged bias.
The respondent opposes the application for leave to appeal. Primarily the respondent submits that the applicant has not demonstrated that the primary judge has made an error of principle or that substantial injustice will be caused to her if the judgement is allowed to stand.
More particularly, in summary, the respondent submits that:
(1)the Federal Circuit Court’s power to consolidate proceedings is incidental to the obligations in s 14 of the Federal Circuit Court of Australia Act 1999 (Cth) (FCCA Act) to grant all remedies to ensure that all controversies are determined finally and to avoid multiplicity of proceedings;
(2)the primary judge did not find that the FW Act Claim and the RD Act Claim will involve exactly the same allegations of fact and witnesses. There is however, a substantial overlap between the two proceedings and there will be common witnesses;
(3)the consolidation of the proceedings does not narrow the scope of the FW Act claim and expand the scope of the RD Act claim. Both proceedings will be heard and determined on their merits;
(4)the primary judge did not find that the prohibition of multiple actions in Subdiv B of Div 3 of Pt 6-1 of the Fair Work Act operate to prevent the applicant making her claims under the Fair Work Act and Racial Discrimination Act 1975 (Cth) (Racial Discrimination Act). Rather, he found that, given the overlapping nature of the claims, consolidation would assist in avoiding the risk of a potential contravention of s 734 of the Fair Work Act in respect of the same conduct;
(5)the allocation of the consolidated proceeding to the General Division of the Federal Circuit Court as opposed to the Fair Work Division does not result in error;
(6)there is no appeal before this Court in relation to a decision by the primary judge to disqualify himself on the basis of actual bias or reasonable apprehension of bias. No formal application for recusal has been made. That issue is not relevant to the primary judge’s decision on consolidation.
CONSIDERATION
I have already set out the matters the Court must consider when determining whether leave to appeal should be granted. I consider those matters below in the context of the application that is before me.
Is the decision attended with sufficient doubt?
The applicant does not challenge the primary judge’s power to make the order for consolidation. However, as a preliminary matter I note that the power to make that order arose incidentally to the obligations imposed by s 14 of the FCCA Act and in furtherance of the obligations imposed by s 42 of the FCCA Act requiring that court to proceed without undue formality and to ensure that proceedings are not protracted and the principles set out in r 1.03 of the Federal Circuit Court Rules 2001.
The applicant’s draft grounds of appeal can be categorised as follows:
(1)those that allege that the primary judge erred in finding that the two proceedings have the same associated facts, evidence and witnesses;
(2)those that allege that the primary judge erred by finding a contravention of ss 728, 732 and 734 of the Fair Work Act;
(3)those that the allege that the primary judge erred by ordering that the FW Act Claim be transferred to the RD Act claim file and that the FW Act Claim file be closed;
(4)an allegation of bias on the part of the primary judge;
(5)matters that the applicant describes as “equality of justice”, of which she will not have the benefit if the order for consolidation is not set aside.
I will consider each of these categories of grounds of appeal in turn. In doing so I will consider whether they are arguable.
The primary judge erred in finding that the two proceedings have the same associated facts, evidence and witnesses
The primary judge had before him an affidavit of Jonathon James Corlett sworn 17 July 2015. As the respondent’s application for consolidation was filed in the RD Act Claim, Mr Corlett annexed to that affidavit a copy of the FW Act Claim. In paragraph 10 of his affidavit, Mr Corlett set out what he considered to be common allegations between the FW Act Claim and the RD Act Claim and how the facts that the applicant seeks to rely on in support of the FW Act Claim are also facts which she seeks to rely on in the RD Act Claim. Mr Corlett also deposed to the fact that the applicant and respondent were common to both sets of proceedings, both sets of proceedings were at a similar stage, it was likely that the respondent will require a number of individuals to appear as witnesses in both proceedings and that the evidence of those potential witnesses will overlap as a result of the common allegations.
The primary judge was of the view that the two proceedings concerned two series of events which intertwined and seemed intimately related. He found that the events seemed to involve “many of the same individuals” and it would thus be more efficient for those witnesses to come to Court only once and give all of their evidence at one hearing. To do so would also avoid the risk that different judges would make different findings on the same witnesses or the same evidence. His Honour did not find that the two proceedings have the same associated facts and evidence.
His Honour’s findings were open to him on the evidence before him. They were necessary elements in considering the way in which the proceedings should be dealt with in accordance with the requirements of the FCCA Act. In the circumstances, I do not think that this category of grounds of appeal is arguable.
The primary judge erred by finding a contravention of ss 728, 732 and 734 of the Fair Work Act
The primary judge’s finding in relation to this matter was as follows:
It also seems that individual events or causes of conduct are alleged to give rise to concurrent rights under the Racial Discrimination Act and the Fair Work Act. Multiple claims of that sort contravene ss.728, 732 and 734 of the Fair Work Act. Consolidation would streamline the litigation by ensuring that relief was not sought under two Acts in respect of the same conduct in circumstances where the Fair Work Act prohibits that.
In my view, the primary judge did not make a finding that the applicant contravened ss 728, 732 and 734 of the Fair Work Act. Rather, he observed that the consolidation of the two proceedings would minimise the risk of a contravention by the applicant of those sections, and in particular s 734, of the Fair Work Act. Section 734 of the Fair Work Act prohibits the making of a general protections court application in relation to conduct that does not involve the dismissal of that person if an application or complaint under an anti-discrimination law has been made in relation to that same conduct by the person and the application or complaint has not been withdrawn or failed for want of jurisdiction. His Honour saw the minimisation of the risk of contravention as another practical reason underpinning the order that he made to consolidate the proceedings. I do not think that the grounds of appeal that allege error on the part of the primary judge in relation to his consideration of these sections of the Fair Work Act and the way he took them into account in making the orders for consolidation are arguable.
The primary judge erred by ordering that the FW Act Claim be transferred to the RD Act Claim file and that the FW Act Claim file be closed
The primary judge ordered that proceedings No. SYG1313/2015, the FW Act Claim, be transferred to proceedings No. SYG1444/2015, the RD Act Claim, and that file No. SYG1313/2015 be closed. The applicant alleges that the primary judge erred in making these orders in that the FW Act Claim will not be in the Fair Work Act Division of the Federal Circuit Court which is the Division invested with jurisdiction to hear claims arising under the Fair Work Act.
Section 10A of the FCCA Act is in the following terms:
(1)For the purpose of the organisation and conduct of the business of the Federal Circuit Court of Australia, the Federal Circuit Court of Australia comprises 2 Divisions:
(a) the General Division; and
(b) the Fair Work Division.
(2)Every proceeding in the Federal Circuit Court of Australia must be instituted, heard and determined in a Division.
Fair Work Division
(3)The following jurisdiction of the Federal Circuit Court of Australia is to be exercised in the Fair Work Division:
(a)jurisdiction that is required by any other Act to be exercised in the Fair Work Division;
(b) jurisdiction that is incidental to such jurisdiction.
Note:Under section 566 of the Fair Work Act 2009, jurisdiction is required to be exercised in the Fair Work Division of the Federal Circuit Court of Australia in relation to matters arising under that Act.
General Division
(4)The following jurisdiction of the Federal Circuit Court of Australia is to be exercised in the General Division:
(a)jurisdiction that is not required by any other Act to be exercised in the Fair Work Division;
(b)jurisdiction that is incidental to such jurisdiction (including jurisdiction that is required by any other Act to be exercised in the Fair Work Division).
Jurisdiction that is required to be exercised in both Divisions
(5)If the Court’s jurisdiction is required to be exercised in both Divisions in relation to particular proceedings or proceedings of a particular kind, the Chief Judge may, at any time (whether before or after the proceedings are instituted), give a direction about the allocation to one or other Division of those proceedings or proceedings of that kind.
The application in a case seeking the order for consolidation was filed in the RD Act Claim which was in the General Division. It was successful. As a practical matter the primary judge transferred the FW Act Claim to the RD Act Claim, which was the matter before him and in which he made the orders for consolidation. If the application in a case had been filed in the FW Act Claim the reverse may have occurred. It seems to me there is no practical difference in the outcome. Section 10A(3) requires that jurisdiction conferred on the Federal Circuit Court under s 566 of the Fair Work Act is to be exercised in the Fair Work Division. However, s 10A(4), which sets out the jurisdiction of the General Division of the Federal Circuit Court, provides that jurisdiction that is incidental to the Court’s jurisdiction in that Division, including jurisdiction that is required by any other Act to be exercised in the Fair Work Division, can be exercised in the General Division. Section 10A(4) clearly contemplates that the jurisdiction conferred by s 10A(3) to be exercised in the Fair Work Division can also be exercised in the General Division and vice versa. If further reinforcement of this approach is needed, I note s 568 of the Fair Work Act which provides that:
To avoid doubt, nothing in this Act limits the Federal Circuit Court’s power under ss 14, 15 or 16 of the Federal Circuit Court of Australia Act 1999.
The primary judge having made an order for consolidation of the proceedings by exercising a power incidental to the obligations imposed by s 14 of the FCCA Act is not limited by the requirements of the Fair Work Act in the way that the power is exercised.
This category of grounds of appeal is not in my view arguable.
Bias on the part of the primary judge
Bias is raised as a ground of appeal on the basis that one of the respondent’s instructing officers is a former associate of the primary judge, the respondent’s preferred judge is the primary judge and that the applicant’s perception is that the primary judge’s decision making has been influenced by these actions and they will have the capacity to adversely affect the primary judge’s performance.
No application for recusal by the primary judge from hearing the application which has led to the judgment which is now the subject of the application for leave to appeal or otherwise has been made. This ground is not relevant to the Federal Circuit Court’s decision on consolidation. It is not arguable and is unlikely to succeed.
“Equality of justice”
The applicant raises a series of issues as grounds of appeal under this category. They include an expectation that the Federal Circuit Court would provide her with procedural fairness and not discriminate against her by imposing requirements that are not reasonable and which she cannot meet, achieving a just resolution so that the applicant is provided “equality before the law”, the appellants’ lack of resources as compared to those of the respondent, the Fair Work Act provides that each party will bear their own costs of proceedings provided the court is satisfied that certain factors did not occur which would preclude that outcome and that the applicant has been willing to conciliate and/or mediate before and after filing her applications in the Federal Circuit Court. The applicant also raises a ground arising out of s 10 of the Racial Discrimination Act by which she alleges that Act grants rights to Aboriginal and Torres Strait Islander people to ensure equality before the law.
None of these matters can properly be categorised as grounds of appeal which point to any error in the decision of the primary judge. There is no evidence that the applicant was not afforded procedural fairness in the hearing of the application in a case for consolidation. To the contrary, she was given an opportunity to file submissions and to be heard, which she took up. The primary judge clearly had regard to her submissions in coming to his decision. The issues raised are understandably matters about which the applicant feels aggrieved or concerned and matters which she may not fully understand in circumstances where she is unrepresented.
To the extent that the applicant raises a concern in her draft grounds of appeal and in her submissions that the order to consolidate the proceedings will result in the FW Act Claim being “trivialised” in favour of the RD Act Claim I note the procedural order made by the primary judge that the applicant is to file and serve points of claim incorporating all her allegations and prayers for relief. In that way, the applicant has the opportunity to ensure that all of her claims and allegations are before the Court.
Conclusion
Having considered the proposed grounds of appeal included in the draft notice of appeal I do not consider that they are arguable. The decision of the primary judge is not attended with sufficient doubt to warrant its reconsideration on appeal.
If leave to appeal were refused, would there be substantial injustice to the applicant?
The decision of the primary judge is interlocutory. It does not determine the rights of the parties on a final basis. It is concerned with a procedural matter: how two sets of proceedings involving common parties, related events and common witnesses should be administered and heard by the Court. I am not satisfied that the applicant will suffer any substantial injustice by reason of the primary judge’s decision. There is nothing to suggest that her claims will not be heard and determined on their merits by the Federal Circuit Court or that the applicant will be disadvantaged in any way.
I will make orders refusing the application for leave to appeal and that the applicant pay the respondent’s costs.
I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Markovic. Associate:
Dated: 24 September 2015
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