Career Employment Australia Inc v Taylor
[2010] FCA 532
•20 May 2010
FEDERAL COURT OF AUSTRALIA
Career Employment Australia Inc v Taylor [2010] FCA 532
Citation: Career Employment Australia Inc v Taylor [2010] FCA 532 Appeal from: Magistrates Court of Queensland, Brisbane Registry
Matter No: 12477/06Parties: CAREER EMPLOYMENT AUSTRALIA INC v GAVIN TAYLOR File number: QUD 217 of 2009 Judge: LOGAN J Date of judgment: 20 May 2010 Catchwords: PRACTICE AND PROCEDURE – Appeal from Queensland Magistrates Court under the Workplace Relations Act 1996 (Cth) – Where Magistrate’s reasoning contained errors but orders made were correct in law
Held: Appeal dismissed – Appeal is from orders made, not reasons for judgment.
PRACTICE AND PROCEDURE – Application of Uniform Civil Procedure Rules (Qld) via the Judiciary Act 1903 (Cth) – Consideration of dismissal under r 16 of the Uniform Civil Procedure Rules (Qld) – Whether dismissal under r 16 necessarily confers ability immediately to allow judgment in default.
Held: No such ability – Reasonable time must be given for filing a defence before permitting judgment in default.
INDUSTRIAL LAW – Meaning of “employer” for purposes of Workplace Relations Act 1996 (Cth) – Whether organisation incorporated under the Associations Incorporation Act 1981 (Qld) is an “employer” – Where organisation employs employees under “transitional awards” under Schedule 6 of the Workplace Relations Act 1996 (Cth) – Whether s 720 of the Workplace Relations Act (Cth) applies to such an organisation
Held: Schedule 6 of the Workplace Relations Act 1996 (Cth) extends the application of s 720 of the Workplace Relations Act 1996 (Cth) to the organisation.
Legislation: Constitution (Cth) s 51(xx)
Corporations Act 2001 (Cth) s 5F
Judiciary Act 1903 (Cth)
Federal Proceedings (Costs) Act 1981 (Cth)
Workplace Relations Act 1996 (Cth) ss 720, 824, 853, Sch 6, Sch 7
Workplace Relations Amendment (Work Choices) Act 2005 (Cth)
Associations Incorporation Act 1981 (Qld) ss 1A, 4, 5(1)(c)Uniform Civil Procedure Rules rr 16, 138, 139, 137, 144
Cases cited: Bankstown Handicapped Children’s Centre Association Inc v Hillman (2010) 265 ALR 23 considered Date of hearing: 20 May 2010 Place: Brisbane Division: FAIR WORK DIVISION Category: Catchwords Number of paragraphs: 41 Counsel for the Appellant: Mr J Shepley Solicitor for the Appellant: De Korte Lawyers Counsel for the Respondent: Mr G Long SC with Mr H Scott-McKenzie Solicitor for the Respondent: Queensland Public Law Interest Clearing House Incorporated
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
FAIR WORK DIVISION
QUD 217 of 2009
ON APPEAL FROM THE MAGISTRATES COURT OF QUEENSLAND
BETWEEN: CAREER EMPLOYMENT AUSTRALIA INC
Appellant
AND: GAVIN TAYLOR
Respondent
JUDGE:
LOGAN J
DATE OF ORDER:
20 MAY 2010
WHERE MADE:
BRISBANE
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The appellant is to file, in the Queensland Magistrates Court, and serve, a defence, not later than twenty-eight (28) days from 20 May 2010.
3.The matter is remitted to the Queensland Magistrates Court for hearing and determination according to law.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
FAIR WORK DIVISION
QUD 217 of 2009
ON APPEAL FROM THE MAGISTRATES COURT OF QUEENSLAND
BETWEEN: CAREER EMPLOYMENT AUSTRALIA INC
Appellant
AND: GAVIN TAYLOR
Respondent
JUDGE:
LOGAN J
DATE:
20 MAY 2010
PLACE:
BRISBANE
REASONS FOR JUDGMENT
Career Employment Australia Inc (Career Employment) has appealed to this Court from the whole of the judgment delivered in the Queensland Magistrates Court (Magistrates Court) on 7 August 2009. That judgment was given in proceedings which had been instituted against Career Employment by Mr Gavin Taylor (Mr Taylor). In those proceedings Mr Taylor sought the sum of $8,188.62 in respect of what was alleged to be unpaid wages due and owing as a redundancy payment to him by Career Employment. He also sought interest on the amount of the unpaid wages together with the costs of issuing the claim.
The response made by Career Employment to the institution of those proceedings was to file, in the Magistrates Court, a conditional notice of intention to defend (conditional notice). That conditional notice was filed in the Brisbane Registry of that court on 22 September 2006. By that notice Career Employment gave notice that it disputed the jurisdiction of the Magistrates Court to entertain Mr Taylor’s claim against it without, so it was said, its consent for the following reasons:
(1)The claim is brought pursuant to section 720 of the Workplace Relations Act 1996 (Cth).
(2)The defendant is not covered by the Workplace Relations Act 1996.
(3)The defendant is not an employer within the definition provided at section 6(a) of the Workplace Relations Act 1996, being an unincorporated entity as it employs an individual.
(4)The defendant is not an employer within the definition provided at section 6 of the Workplace Relations Act 1996 as it is not a constitutional corporation. Refer section 5F Corporations Act 2001 (Commonwealth) and Associations Incorporation Act 1981 section 1A (Queensland).
(5)OR, in the alternative, the defendant is not a constitutional corporation as it is not a trading corporation [sic].
Having filed this conditional notice, Career Employment also filed, on 5 October 2006, an application for orders that the proceeding in the Magistrates Court had not been properly started because of want of the jurisdiction.
It was that application that came before Magistrate Cornack in the Magistrates Court on 7 August 2009. Also dealt with by her Honour that day was an application by Mr Taylor to dispense with the signature on an application for a trial date.
The occasion for the lengthy delay between the filing of Career Employment’s application and its hearing is not material for the purposes of determining this appeal. It suffices to note that, in part, it related to litigation in other places concerning what was or was not a trading corporation for the purposes of s 51(xx) of the Constitution (Cth). That issue, as is to be seen from the conditional notice, was thought by Career Employment to be material to the proceedings in the Magistrates Court.
In the result, for reasons which her Honour published on 7 August 2009, the following orders were made:
(1) Application to dismiss the proceedings for want of jurisdiction is dismissed.
(2) Application to dispense with signature on request for trial date is dismissed.
The grounds of appeal are as follows:
GROUNDS OF APPEAL:
1.Notice of claim in Form 2 under the Uniform Civil Procedure Rules was filed on behalf of the respondent on the 21st August, 2006 for claims seeking a payment of monies allegedly owed in accordance with Section 720 of the Workplace Relations Act 1996.
On the 22nd September, 2006 in accordance with the UCPR, a form 7 was lodged by the appellant for a Conditional Notice of Intention to Defend in accordance with Rule 144 of the UCPR Rules. Such Conditional Notice of Intention to Defend averred to the fact that the appellant was not covered by the Workplace Relations Act 1996.
Under Rule 144, (3) the Defendant must apply for an Order under Rule 16 within 14 days.
2.On the 5th October, 2006, in accordance with Rule 16, an application was made under Form 9 in reference to (Rule 32(sic)) Rule 31 being an application. That application was that the proceeding had not been properly started because of the want of jurisdiction. As this was a Constitutional issue in accordance with the Judiciary Act all Attorney Generals were served with all court material.
3.However, Her Honour found (para 3) as a fact: “On 22nd September 2006, the defendant filed a notice objecting to the jurisdiction of this Court to hear and determine the claim without the Defendants consent. The Defendant did not file a conditional entry of appearance and defence.” This was an error of fact that amounts to an error of law.
4.Further, paragraph 13, her Honour stated “The Plaintiff has brought an application that the signature of the Defendant required for the request for trial date be dispensed with. Such an order would not be appropriate as the issues for determination are not known as no defence has been properly filed and served. That application is dismissed.” This was an error of fact that amounts to an error of law.
5.In the final paragraph, her Honour stated “I am satisfied that the Defendant has failed to file a conditional defence or an entry of appearance and defence. I find therefore that the Plaintiff is entitled to apply for default judgement or summary judgement under the Uniform Civil Procedure Rules. The Plaintiff is at liberty to apply for such judgement at any time.” This was an error of fact that amounts to an error of law.
In Section 281 of Uniform Civil Procedure Rules it provided the Defendant who has started the proceeding by claim to apply for default judgement if the defendant has not filed a notice of intention to defend.
This section also applies where a conditional notice of intention to defend has become an unconditional notice of intention to defend.
6.Her Honour erred as a matter of law and fact that the respondent was entitled to summary judgment in that the application by the respondent was one to dispense with a signature for a trial date and her holding that Section 292 applies required a determination that the appellant had no real prospect of successfully defending all or part of the Plaintiff’s claim and there was no need for a trial of the claim.
7.The Appellant asserts that her Honour erred as a matter of law and fact, in that consequent to making a final determination regarding jurisdiction the Appellant could file a defence in respect to the merits of the claim.
8.However, in determining the jurisdictional point in paragraphs 4, 8, 9, 10, 11 and 12 of her judgement her Honour erred as a matter of law and fact in that she makes no deliberate findings of fact in respect of the submissions made by both the respondent and by the appellant. Her Honour’s findings that she was “satisfied” are without reference to the evidence upon which she was satisfied, which makes an understanding of the decision and certainly on the merits of the decision impossible.
[sic]
The orders sought by Career Employment are that:
1.the judgment of the Magistrates Court be quashed;
2.the orders “contained therein that the plaintiff has liberty to apply for such judgment at any time” be set aside;
3.the matter be remitted for further consideration by another magistrate according to law;
Section 853 of the Workplace Relations Act 1996 (Cth) (Workplace Relations Act) provided materially that:
An appeal lies to the Federal Court from a judgment of a court of a State or Territory in a matter arising under this Act.
That particular grant of jurisdiction is not affected by the subsequent repeal of the Workplace Relations Act. The proceeding which Mr Taylor instituted in the Queensland Magistrates Court was “a matter arising under this Act” in terms of s 853(1) of the Workplace Relations Act.
The reasons for judgment given by her Honour for making the orders noted were, with all due respect, very compressed. Having recited the nature of the grounds relied upon in the conditional entry of appearance by Career Employment, her Honour observed that:
[Career Employment] is an employer bound by the provisions of Schedule 6 of the Workplace Relations Act 1996 (Cwlth). Schedule 6 of the Workplace Relations Act 1996 (Cwlth) continues in force awards that existed prior to reform commencement in relation to non-constitutional corporations as a “traditional award.”
I am satisfied that the defendant is a trading entity within the definition set out in the Workplace Relations Act 1996 (Cwlth). I am further satisfied that the defendant is a constitutional corporation for the purposes of the Workplace Relations Act 1996 (Cwlth).
The Defendant fails to prove to the required civil standard that this court has no jurisdiction to hear and determine this case pursuant to Section 720 of the Workplace Relations Act 1996 (Cwlth). I am satisfied that this court has jurisdictional power to hear and determine this matter. The application disputing jurisdiction is dismissed.
Having made these observations, her Honour continued:
I am satisfied that these proceedings are governed by the Uniform Civil Procedure Rules.
The plaintiff has brought an application that the signature of the Defendant, required for the request for trial date be dispensed with. Such an order would not be appropriate as the issues for determination are not known as no defence has been properly filed and served. The application is dismissed.
I am satisfied that the Defendant has failed to file a conditional defence or an entry of appearance and defence. I find therefore that the plaintiff is entitled to apply for default judgment or summary judgment under the Uniform Civil Procedure Rules. The plaintiff is at liberty to apply for such judgment at any time.
In these further observations made her Honour one finds the germination, in my opinion, of the motivation for Career Employment’s present appeal.
It must be said at once that her Honour’s observation as to Mr Taylor’s entitlement to apply for default judgment or summary judgment under the Uniform Civil Procedure Rules (Qld) (UCPR) has not translated into any order made by the Magistrates Court either on 7 August 2009 or at any time thereafter. The present state of the record in the Magistrates Court is that, following the making of the orders noted on 7 August 2009, Mr Taylor filed on 19 August 2009 a request for default judgment. No such default judgment has been entered; rather, it seems that any process in the Magistrates Court which would have led to a need to consider whether default judgement should be entered in response to that request has been interrupted by the filing by Career Employment of its appeal to this Court.
It should also be observed that the hearing of this appeal was deferred to a time that would be suitable to Mr Taylor who was, at earlier interlocutory stages, representing himself and who was engaged in touring and other commitments interstate. The deferral of the hearing of the appeal was not the subject of any opposition by Career Employment.
The evidence that her Honour had before her at the time when she heard the application brought by Career Employment is somewhat conjectural. That is because, again with all due respect, her Honour has not, in her reasons for judgment, as one might have expected, made any reference to the evidence that was before her. Neither, again as one might expect, is it immediately apparent from a perusal of the record (ie, the controlling cover sheet, in respect of the Magistrates Court file) quite what evidence was read or led before her Honour. It does, though, seem common ground that the evidence at least included an affidavit from a Mr Shane Gilmore Cowan who was, as at 16 October 2006, the group general manager of Career Employment. From that it emerges that Career Employment was originally called Stones Corner Community Training Association Inc. It was registered as an incorporated association under the Associations Incorporation Act 1981 (Qld) (Associations Incorporation Act) on 10 October 1989.
Apart from making what are strictly, in terms of evidentiary objection, objectionable assertions on matters of law as to the status of Career Employment, the affidavit exhibits a copy of the audited report of Career Employment as at 30 June 2006. In the profit and loss statement forming part of the accounts of Career Employment, one sees that its income, which was, in total, substantial, is principally comprised of what is described as “project and contract income” in the amount of $6,209,891.69. It also derives income from, inter alia, what it described as “administration fees”, donations and the hire of vehicles together with, notably, an amount under the heading “Training” which is $228,253.78. Another item in the accounts which should be noted is a total sum of $68,288.72 in respect of fee income. Mr Cowan states in his affidavit that this fee income is less than 1 per cent of the total income of the organisation. What follows then in the affidavit, is the objectionable assertion that if Career Employment is a constitutional corporation it is not a “trading corporation”.
The Associations Incorporation Act, by s 5(1)(c), provides that an association is not eligible for incorporation under that Act if the association is formed or carried on for the purpose of providing financial gain for its members. Section 4 of the Associations Incorporation Act gives content to whether or not, for the purposes of that Act, an association is formed or carried on for the purpose of financial gain to its members. It provides:
4Whether association is formed or carried on for the purpose of financial gain for its members
(1)An association is not formed or carried on for the purpose of financial gain for its members merely because 1 or more of the following circumstances apply to it-
(a)the association makes a financial gain, but no part of the gain is divided among, or received by, any of the association’s members;
(b)the association is established to protect or regulate a trade, business, industry or calling (the pursuit) engaged in by its members, or in which they are interested, but the association does not itself engage or take part in the pursuit;
(c)the association provides its members with facilities or services;
(d)the association trades with its members, but the trade is ancillary to its principal purpose;
(e)the association trades with the public, but the trade is ancillary to the association’s principal purpose and is not substantial when compared with its other activities;
(f)the association makes a financial gain from-
(i)trading to which paragraph (d) or (e) applies; or
(ii)charging admission fees to displays, exhibitions, contests, sporting fixtures or other occasions conducted to promote its objects; or
(iii)charging subscriptions to further its objects; or
(iv)receiving donations to further its objects.
(g)the members of the association are entitled to divide the property of the association between them on its dissolution;
(h)a member of the association-
(i)receives a salary as an employee or officer of the association; or
(ii)makes a financial gain from the association to which a non-member, acting instead of the member, would equally be entitled; or
(iii)receives a trophy or prize (other than money) from the association because of a competition; or
(iv)receives temporary assistance because of illness, injury or bereavement or other financial hardship suffered by a member.
(2)If a person receives a financial gain from an association because of the membership of the association of someone else (the member), the financial gain is taken to have been received by the member.
(3)In subsection (1)(b)-
association includes a branch or part of the association.
On these circumstances it might be noted that the making of financial gain in circumstances when no part is divided among or received by any of the association’s members means that it is not formed for the purpose of financial gain to its members; that it trades with its members but trade is ancillary to its principal purpose, or that it trades with members of the public but trade is ancillary to its principal purpose and is insubstantial when compared with other activities which, likewise, do not prevent an association from being regarded as one not carried for the purpose of financial gain to its members.
In terms of the argument advanced by Career Employment it is important to remember that an appeal lies against a judgment or order, not reasons for judgment. There was advanced in submissions a critique of her Honour’s reasons which focused upon, materially, the observations which her Honour had made at the conclusion of her reasons. Those observations, though did not translate into any order.
It was common ground on the appeal that her Honour’s further observations which, with respect, had a gratuitous quality about them, given the issues before her, were erroneous. That was so for the following reasons.
The UCPR were applicable to the proceedings before her Honour to the extent that they were not inconsistent with any express provision under the Workplace Relations Act by virtue of the operation of the Judiciary Act 1903 (Cth) (Judiciary Act). That the effect of the Judiciary Act, where a State court exercises federal jurisdiction, is that the practice and procedure of that court under State law insofar as that practice and procedure is not inconsistent with any express or necessarily implied provision in federal law is applicable.
So it was then that r 144 of the UCPR was applicable to the proceeding before her Honour. That rule provides:
144Conditional notice of intention to defend
(1)A defendant who proposes to challenge the jurisdiction of the court or to assert an irregularity must file a conditional notice of intention to defend.
(2)Rule 139(1)(b) does not apply to a conditional notice of intention to defend.
(3)If a defendant files a conditional notice of intention to defend, the defendant must apply for an order under rule 16 within 14 days after filing the notice.
(4)If the defendant does not apply for an order under rule 16 within the 14 days, the conditional notice of intention to defend becomes an unconditional notice of intention to defend.
(5)Within 7 days after a conditional notice of defence becomes an unconditional notice of intention to defend, the defendant must file a defence.
(6)A defendant who files an unconditional notice of intention to defend is taken to have submitted to the jurisdiction of the court and waived any irregularity in the proceeding.
Career Employment complied with r 144. It did so because it filed its conditional notice and then, having so done, complied with r 144(3) by making the required application, under r 16, within 14 days after filing its conditional notice. Rule 144(2) provides that r 139(1)(b) of the UCPR does not apply to a conditional notice. The effect of the provision for the non-application of r 139(1)(b) of the UCPR is that the conditional notice does not have to have attached to it the defendant’s defence.
Ordinarily, the effect of r 137(1) of the UCPR is that in a proceeding started by claim a notice of intention to defend must be filed within 28 days after the claim is served. Again, ordinarily, having regard to r 139(1)(b), that notice must have attached to it the defendant’s defence. The intention, in respect of a conditional notice, would seem to be that the challenge on one of the grounds under r 16 is first dealt with before a defendant is obliged to file a defence.
One might have expected, given the orders that her Honour made on 7 August 2009, for provision to have been made for a time within which a defence ought to be filed. That was not done. Instead, her Honour seems to have been of the opinion that a consequence of the dismissal of the application under r 16 was that there was no obstacle, then, under the rules for Mr Taylor’s seeking to enter judgment in the registry in default of a defence. All that the dismissal of the application under r 16 meant, though, was that the case was one which ought to have proceeded in the ordinary way whereby time was allowed to Career Employment for the filing of a defence if so advised. If it had not filed a defence within that time then, and only then, would it have been appropriate for judgment in default of defence to have been applied for and entered.
Rule 138 of the UCPR provides that a defendant may file and serve a notice of intention to defend at any time before judgement even if the defendant is in default under r 137. Career Employment did not, in my opinion, by embarking upon the course for which r 144(3) expressly provides, make itself a person in default in terms of r 137.
That the learned magistrate was in error in her conception of the operation of the UCPR does not, though, mean that it follows that her orders must be set aside. At the risk of repetition, it is those orders, not the reasons, which are the subject of the appeal. In that regard, there was a difference between the parties as to whether Career Employment was or was not a trading corporation. That difference, though, is, in the final analysis, one which is not determinative of whether Career Employment was amenable to suit as an employer under s 720 of the Workplace Relations Act. Why that is so is because, on analysis of what can only be described as Byzantine transitional provisions, whether Career Employment was or was not a trading corporation is not the only basis upon which it can be an “employer” in terms of s 720 of the Workplace Relations Act.
The point was advanced in submissions made on behalf of Mr Taylor, and on the assumption that the evidence comprised the affidavit of Mr Cowan in the court below, that that evidence fell well short of evidence that might have been necessary to establish that Career Employment was not a trading corporation. There is substance in that submission. In Bankstown Handicapped Children’s Centre Association Inc v Hillman (2010) 265 ALR 23 at 43 the Full Court, in making observations concerning the position of an association incorporated in New South Wales under similar legislation to the Associations Incorporation Act, made the following observation at para 43:
[43]Two matters of detail should be mentioned before assessing whether, on the evidence, the association should be characterised as a trading corporation. The first concerns the incorporation of the association. As noted earlier, the association is incorporated under the associations Incorporation Act. Section 66 of that Act provides that an incorporated association shall not trade though s 4 identifies certain circumstances where an association is deemed not to trade by reason only of doing specified things. One is where the association is itself making a pecuniary gain, unless that pecuniary gain or any part of it is divided among or received by the members of the association. We note, parenthetically, that there was no evidence of who the members of the association are in this matter. In our view, the combined effect of these provisions is to prevent an association registered under the Act trading for the profit of its members. The Act does not prohibit trading per se. The effect of the Act is much the same as the associations incorporation legislation considered in R v Judges of the Federal Court of Australia; Ex parte Western Australia National Football League Inc (Adamson) (1979) 143 CLR 190.
There seems to have been a view held by Career Employment that its status as an association incorporated under the Associations Incorporation Act by itself meant that it was not a trading corporation for the purposes of s 51(xx) of the Constitution. That view was erroneous. So, too, was the view apparently put forward that the source of income of Career Employment being principally, it seems, from government grants of one sort or another or fees, meant that it could not be a trading corporation. That view, too, was erroneous.
In the final result it is not necessary to reach any concluded view, though, on the subject. Why that is so was helpfully set out in a way which I did not apprehend was ultimately controversial, in submissions on behalf of Mr Taylor by way of an analysis of the Workplace Relations Act position as it stood despite their appeals and amendments by the Workplace Relations Amendment (Work Choices) Act 2005 (Cth) (Work Choices Act). It would seem that her Honour had this position in mind in the statements that she made in her reasons for judgment.
One sees by regard to item 4 in sch 6 to the Workplace Relations Act that the effect was to continue all pre-reform awards despite the repeals and amendments made by the Work Choices Act and to bind an “excluded employer”. Such an employer was, in effect, an employer who was bound by an award immediately before the commencement of the changes made by the Work Choices Act but who was not, after that time, within the definition of employer in s 6 of the Workplace Relations Act.
An alternative path leading to the same result flows in respect of those bound by pre-reform certified agreements by an analysis of Div 2 of Pt 2 of Sch 7 to the Workplace Relations Act.
It was common ground on the hearing of the appeal before me that Career Employment was, as alleged by Mr Taylor in his amended statement of claim, both a party bound by the Community Employment Training and Support Services Award 1999, which is a federal award, and also a party to a federal industrial agreement known as the Career Employment Australia Inc, Northside Skills Training Project Inc, Gold Coast Skills Centre Inc, Bridging the Gap Job Help Gold Coast Inc, Wynnum-Manly Employment and Training Inc Enterprise Agreement Bargaining Certified Agreement 2003.
In Career Employment’s status as an excluded employer and, irrespective of whether it was or was not a constitutional corporation, and, materially, in that regard, a trading corporation, one finds why it is that it was always, for the purposes of s 720 of the Workplace Relations Act, an employer. Further, the position which obtains under the Associations Incorporation Act of an incorporated association being, by s 1A, declared to be an excluded matter for the purposes of s 5F of the Corporations Act 2001 (Cth) other than to the extent specified in s 1A(2) in no way affected that position. In other words, such exclusion as was effected by s 1A was not determinative of whether or not firstly, and most importantly, Career Employment was an “excluded employer” and, further, for that matter, whether it was or was not a trading corporation.
Thus, the actual order dismissing the application made by Career Employment, under r 16 of the UCPR, was an order which was soundly based even though, as I have observed, the reasons for the making of that order were compressed.
It was also an order which was sound in law, notwithstanding the erroneous conception as to the operation of the UCPR which is later evident in her Honour’s reasons for judgment. That was not, as was submitted on behalf of Career Employment, an irregularity procedurally of a kind which would lead to the setting aside of that order. In the present context, such an irregularity might have been, for example, a failure to accord Career Employment procedural fairness on the hearing of its application under r 16 although, even there, if there had been only one outcome open in law one might have regarded the setting aside of the resultant order of dismissal as futile. It is unnecessary, though, to reflect further on the irregularity submission that was advanced. It was, with respect, misconceived in the circumstances given that it is the order which is under challenge, as opposed to the totality of her Honour’s reasons.
The result, then, is that the order itself is one which was correctly made and one for which there is a correct foundation in law. It should not, therefore be set aside.
The other order that her Honour made in relation to dispensing of the need for a signature in relation to entry of the matter for trial is not attended by any separate challenge, rather it seems to have been of a consequential nature and, for that matter, a reflection, with respect, somewhat incongruently, of a view her Honour had that the matter ought to proceed to trial. So it should if Career Employment is disposed to defend the claim on its merits. In that regard, particularly in light of the application which Mr Taylor later made, it seems to me that it is desirable to make an order which perhaps ought to have been made below providing for the filing of the defence and then to remit the matter to the Magistrates Court for hearing and determination according to law.
There was reference in the orders sought to the making of an order that would have the effect of excluding Magistrate Cornack from those in the State Magistracy who might constitute the Magistrates Court for the hearing of the case upon its remitter That, though, would be to usurp the function of the Chief Magistrate in the administration of the court. Further, there is nothing in the disposal of the r 16 application which would in any way give rise to a reasonable apprehension of bias. Thus, even exceptionally, there is no foundation for the making of that sort of order.
The orders that should be made in respect of the appeal are that:
1.the appeal is dismissed;
2.the appellant file in the Magistrates Court and serve a defence not later than 28 days from today’s date;
3.the matter should be remitted to the Magistrates Court for hearing and determination according to law.
So far as the costs of the appeal are concerned, the Workplace Relations Act, by s 824, provides materially that a party to a proceeding, including an appeal in a matter arising under this Act, must not be ordered to pay costs incurred by any other party to the proceeding unless the first-mentioned party instituted the proceeding vexatiously or without reasonable cause. There was no application for costs made on Mr Taylor’s behalf. That was, in my opinion, an appropriate stance to take having regard to the exception. Whilst there is, with respect, evident in Career Employment’s appeal a misconception as to the difference between reasons for judgment and the formal judgment itself, it must be said that the record of the Magistrates Court is not easily obtainable. It was only apparent upon a scrutiny of the cover sheet precisely what orders were made by her Honour. Further, I can well understand, at the time when the conditional notice was filed, why it was thought that there may have been something in the point about whether or not the appellant was or was not a constitutional corporation. That is so even though a close analysis (and it must truly be a close analysis) of the changes wrought to the Workplace Relations Act by the Work Choices Act would take one to a position that the question of whether Career Employment was or was not a constitutional corporation or a trading corporation was strictly an academic one.
The other observations that I make are, firstly, and though, understandably the parties and, particularly Mr Taylor’s representative, turned their minds to whether or not it was possible or not for a certificate to be granted under the Federal Proceedings (Costs) Act 1981 (Cth) (Federal Proceedings (Costs) Act) in respect of the appeal. The effect of that legislation seems to be that, though this court has a jurisdiction to entertain an appeal in this sort of case from a State Magistrates Court, the only appeal from a State court which is the subject of express provision for a certificate is an appeal from a State Supreme Court. The subject of whether or not there should be some wider provision in the Federal Proceedings (Costs) Act, given the breadth of the Court’s appellate jurisdiction is one for the Parliament, if so advised, to address after reflection on the subject, perhaps, by the Minister administering this legislation.
It is also desirable that, in concluding these reasons for judgment, I particularly commend the Welfare Rights Centre Inc and Mr Long SC and Mr Scott-Mackenzie. Counsel have appeared today pro bono and it is evident that Mr Taylor has been very well served indeed by that appearance as well as by the engagement of counsel and advice provided to him by the Welfare Rights Centre Inc.
I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate:
Dated: 28 May 2010
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