Citigroup Pty Ltd v Mason

Case [2008] FCA 389

FEDERAL COURT OF AUSTRALIA

Citigroup Pty Ltd v Mason [2008] FCA 389

PRACTICE AND PROCEDURE – proper construction of s 853(2) Workplace Relations Act 1996 (Cth) – does s 853(2) obviate the requirement for leave to appeal from an interlocutory judgment where proposed appeal from a State Court in a matter arising under the Workplace Relations Act?

Held - s 853(2) to be construed literally - leave not necessary

Federal Court of Australia Act 1976 (Cth) ss 4, 24, 25(1)
Workplace Relations Act 1996 (Cth) ss 4, 824, 853(2)
Federal Court Rules O 35 r 7(1), O 52

Bienstein v Bienstein (2003) 195 ALR 225 cited
Hall v Nominal Defendant (1966) 117 CLR 423 considered
Hi-Fert Pty Ltd v Kiukiang Maritime Carriers Inc (No 3) (1998) 86 FCR 374 cited

Musgrove v McDonald (1905) 3 CLR 132 cited
Re Luck (2003) 203 ALR 1 considered

CITIGROUP PTY LTD (ACN 004 325 080) v BRAD MASON

NSD 2185 OF 2007

BRANSON J
26 MARCH 2008
SYDNEY


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 2185 OF 2007

BETWEEN:

CITIGROUP PTY LTD (ACN 004 325 080)
Applicant

AND:

BRAD MASON
Respondent

JUDGE:

BRANSON J

DATE OF ORDER:

26 MARCH 2008

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The orders made on 26 February 2008 be set aside pursuant to O 35 r 7(1) of the Federal Court Rules.

2.Citigroup Pty Ltd’s application for leave to appeal be refused as unnecessary.

3.Citigroup Pty Ltd have leave to amend its notice of appeal.

4.The appeal be included in the next Full Court call-over.

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 2185 OF 2007

BETWEEN:

CITIGROUP PTY LTD (ACN 004 325 080)
Applicant

AND:

BRAD MASON
Respondent

JUDGE:

BRANSON J

DATE:

26 MARCH 2008

PLACE:

SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION

  1. On 5 November 2007 Citigroup Pty Ltd filed a notice of appeal from a judgment of the District Court of New South Wales in a matter arising under the Workplace Relations Act 1996 (Cth) (WR Act). In response to a challenge made by the respondent to the competence of its appeal, Citigroup filed a notice of motion for an order granting it leave to appeal from the judgment of the District Court or alternatively an order extending the time within which to file its notice of appeal. Mr Mason opposed the making of either of the orders sought by Citigroup.

  2. On 26 February 2008, after receiving written submissions from the parties and hearing from counsel, I made certain orders which shortly thereafter I directed not be entered without leave of the Court. I requested supplementary written submissions from the parties on the significance of s 853(2) of the WR Act to the competence of the appeal. I have now had the benefit of those submissions and further brief oral submissions from the parties.

  3. For the reasons set out below…

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Details
AGLC
Citigroup Pty Ltd v Mason [2008] FCA 389
Case
[2008] FCA 389
Decision Date

CaseChat Overview and Summary

In the case of Citigroup Pty Ltd v Mason, Citigroup sought to appeal a judgment of the District Court of New South Wales, which was rendered on 15 October 2007. The central issue before the court was whether the judgment in question was interlocutory, as this would determine whether Citigroup needed to obtain leave to appeal under section 24(1A) of the Federal Court Act. The determination of whether the judgment was interlocutory hinged on whether it finally determined the rights of the parties in the principal cause pending between them. The court, guided by authorities such as Re Luck and Bienstein v Bienstein, adopted a view that an interlocutory order is one that does not conclusively determine the rights of the parties in the overarching dispute, even though it may conclude the particular application in which it is made.

The court's reasoning was influenced by the definition of judgment in the Work Choices Act and the Federal Court Act, which are identical. The court highlighted that the usual test for distinguishing between a final and an interlocutory order is whether the order finally determines the rights of the parties in a principal cause pending between them. The court noted that every order concludes the particular application from which it arises but only a final order conclusively determines the broader dispute. The court also referred to Hall v Nominal Defendant, where Windeyer J emphasized that the test should focus on whether the order finally determines the rights of the parties in the principal cause pending between them. Based on this analysis, the court concluded that the judgment in question was likely interlocutory, as it did not conclusively determine the rights of the parties in the overarching dispute.

Consequently, the court set aside the orders made on 26 February 2008, refused Citigroup's application for leave to appeal as unnecessary, and granted Citigroup leave to amend its notice of appeal. The court also directed that the appeal be included in the next Full Court call-over. This decision underscores the importance of accurately categorizing judgments as final or interlocutory to appropriately determine the appeal process and the necessity of leave under the Federal Court Act.

Orders

Orders of the court

1. The orders made on 26 February 2008 be set aside pursuant to O 35 r 7(1) of the Federal Court Rules.

2. Citigroup Pty Ltd’s application for leave to appeal be refused as unnecessary.

3. Citigroup Pty Ltd have leave to amend its notice of appeal.

4. The appeal be included in the next Full Court call-over.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

BRANSON J
The appeal which Citigroup sought to institute by filing its notice of appeal is an appeal of the kind for which s 24(1)(c) of the Federal Court Act provides. Absent any legislative provision to the contrary, if the judgment of the District Court of New South Wales is an interlocutory judgment, the appeal could not be brought without leave (s 24(1A)).Was the Judgment Interlocutory? Although, because of the construction that I have adopted of s 853(2) of the WR Act, it is not necessary for me finally to determine whether the judgment of the District Court pronounced on 15 October 2007 is interlocutory, I strongly incline in favour of the view that it is interlocutory. In Re Luck (2003) 203 ALR 1 at [4]-[5] McHugh ACJ, Gummow and Heydon JJ said:…the usual test for determining whether an order is final or interlocutory is whether the order, as made, finally determines the rights of the parties in a principal cause pending between them. That question is answered by determining whether the legal effect of the judgment is final or not. If the legal effect of the judgment is final, it is a final order; otherwise, it is an interlocutory order.The order of Gleeson CJ refusing to grant leave to issue process was an interlocutory order. It did not finally determine Ms Luck's rights against the various defendants, if she has any such rights…(emphasis in original) A similar view of the distinction between a final order and an interlocutory order had been taken by McHugh, Kirby and Callinan JJ in Bienstein v Bienstein (2003) 195 ALR 225. In that case their Honours characterised an order of a judge of the High Court dismissing an application for the removal of a cause pending in the Family Court into the High Court as an interlocutory order. In Hall v Nominal Defendant (1966) 117 CLR 423 at 440 Taylor J, with whom Owen J agreed, said:…an order made in the course of an action or suit which does not conclude the rights of the parties inter se, although it may, of course, conclude the fate of the particular application in which it is made, is interlocutory only. In the same case at 442 Windeyer J observed that “the distinction between final and interlocutory orders has in England caused much difficulty”. At 443-444 his Honour said:In most cases the test that seems to be most satisfactory…is…to look at the consequences of the order itself and to ask does it finally determine the rights of the parties in a principal cause pending between them. It is never enough to ask simply does the order finally determine the actual application or matter out of which it arises; because, subject to the possibility of an appeal, every order does that, unless it be an order that is expressly declared to be subject to variation…The effect of such decisions as there are of this Court on the point seems to me to be that when an action has been commenced between parties then whether an order in that action is interlocutory depends on whether or not it results in a final determination of that action. I say of ‘that action’ because it appears that the question depends more upon the action actually brought by a writ than upon the cause of action upon which the writ was founded.After citing certain authorities in support of the view which he adopted, Windeyer J at 444 said:These cases are all illustrative of the general proposition that a final order is one which finally disposes (subject only to appeal) of an action or an existing dispute between parties.

Ratio Decidendi

Legal Principle Established

Established by: BRANSON J

Section 4 of the WR Act contains a definition of judgment in identical terms to that contained in the Federal Court Act.CONSIDERATION The appeal which Citigroup sought to institute by filing its notice of appeal is an appeal of the kind for which s 24(1)(c) of the Federal Court Act provides. Absent any legislative provision to the contrary, if the judgment of the District Court of New South Wales is an interlocutory judgment, the appeal could not be brought without leave (s 24(1A)).Was the Judgment Interlocutory? Although, because of the construction that I have adopted of s 853(2) of the WR Act, it is not necessary for me finally to determine whether the judgment of the District Court pronounced on 15 October 2007 is interlocutory, I strongly incline in favour of the view that it is interlocutory. In Re Luck (2003) 203 ALR 1 at [4]-[5] McHugh ACJ, Gummow and Heydon JJ said:…the usual test for determining whether an order is final or interlocutory is whether the order, as made, finally determines the rights of the parties in a principal cause pending between them. That question is answered by determining whether the legal effect of the judgment is final or not. If the legal effect of the judgment is final, it is a final order; otherwise, it is an interlocutory order.The order of Gleeson CJ refusing to grant leave to issue process was an interlocutory order. It did not finally determine Ms Luck's rights against the various defendants, if she has any such rights…(emphasis in original) A similar view of the distinction between a final order and an interlocutory order had been taken by McHugh, Kirby and Callinan JJ in Bienstein v Bienstein (2003) 195 ALR 225. In that case their Honours characterised an order of a judge of the High Court dismissing an application for the removal of a cause pending in the Family Court into the High Court as an interlocutory order. In Hall v Nominal Defendant (1966) 117 CLR 423 at 440 Taylor J, with whom Owen J agreed, said:…an order made in the course of an action or suit which does not conclude the rights of the parties inter se, although it may, of course, conclude the fate of the particular application in which it is made, is interlocutory only. In the same case at 442 Windeyer J observed that “the distinction between final and interlocutory orders has in England caused much difficulty”. At 443-444 his Honour said:In most cases the test that seems to be most satisfactory…is…to look at the consequences of the order itself and to ask does it finally determine the rights of the parties in a principal cause pending between them. It is never enough to ask simply does the order finally determine the actual application or matter out of which it arises; because, subject to the possibility of an appeal, every order does that, unless it be an order that is expressly declared to be subject to variation…The effect of such decisions as there are of this Court on the point seems to me to be that when an action has been commenced between parties then whether an order in that action is interlocutory depends on whether or not it results in a final determination of that action. I say of ‘that action’ because it appears that the question depends more upon the action actually brought by a writ than upon the cause of action upon which the writ was founded.After citing certain authorities in support of the view which he adopted, Windeyer J at 444 said:These cases are all illustrative of the general proposition that a final order is one which finally disposes (subject only to appeal) of an action or an existing dispute between parties.