Compass Group (Australia) Pty Ltd t/as ESS World Wide Services v Melvyn Bartram

[2006] FCA 1337

FEDERAL COURT OF AUSTRALIA

Compass Group (Australia) Pty Ltd t/as ESS World Wide Services v Melvyn Bartram [2006] FCA 1337

Workplace Relations Act 1996 (Cth)
Long Service Leave Act1992 (Vic)
Federal Court of Australia Act1976 (Cth)
Acts Interpretation Act 1901 (Cth)
Magistrates Court Act 1989 (Vic)

COMPASS GROUP (AUSTRALIA) PTY LTD T/AS ESS WORLD WIDE SERVICES v MELVYN BARTRAM
VID1045 OF 2006

JESSUP J
27 SEPTEMBER 2006
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID1045 OF 2006

BETWEEN:	COMPASS GROUP (AUSTRALIA) PTY LTD T/AS ESS WORLD WIDE SERVICES Appellant
AND:	MELVYN BARTRAM Respondent

JUDGE:	JESSUP J
DATE OF ORDER:	27 SEPTEMBER 2006
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The appellant pay the respondent's costs of today's hearing.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID1045 OF 2006

BETWEEN:	COMPASS GROUP (AUSTRALIA) PTY LTD T/AS ESS WORLD WIDE SERVICES Appellant
AND:	MELVYN BARTRAM Respondent

JUDGE:	JESSUP J
DATE:	27 SEPTEMBER 2006
PLACE:	MELBOURNE

REASONS

1. The matter before the Court is an appeal under s 853 of the Workplace Relations Act 1996 (Cth) (“the Act”) from a judgment of the Industrial Division of the Magistrates Court of Victoria given on 30 August 2006 in a matter in which the respondent had lodged a complaint in which he claimed against the appellant, his employer, long service leave or payment in lieu thereof. The only defence raised by the appellant before the Magistrate was that the relevant provisions of the Long Service Leave Act 1992 (Vic) were inconsistent with s 170LZ and s 152 of the Act as they were then numbered and to that extent were ineffective as a source of obligation of the appellant in relation to the respondent.

2. The matter was argued fully before the Magistrates Court, and that court ruled in favour of the respondent. As a result of that ruling an order was made by that court requiring the appellant to pay the sum of $16,267.95 in respect of long service leave which had not been granted. The appeal to this court was lodged on 20 September 2006 and seeks to invoke the court's jurisdiction under s 853(1) of the Act. All that would have been perfectly conventional were it not for the fact that the appellant has a concern that it might later be said that the appeal is beyond the jurisdiction of this court for the reason that the judgment of the Magistrate was not in a matter arising under the Act as required by s 853(1).

3. The approach which the appellant has taken is to procure the matter to be listed before the court at short notice in order to have either a ruling or an expression of view by the court as to whether the appeal is competent. It has taken this course because of the operation of subs (2) of s 850 of the Act, which makes the jurisdiction of this court, if validly invoked under s 853, exclusive of the jurisdiction of any Victorian court. The appellant, in effect, desires to know whether this court has jurisdiction to hear the appeal, and if it does not, to be able to appeal to the Supreme Court of Victoria. I have been told that the time for the lodgment of such an appeal would expire on 29 September 2006.

4. The position taken by the appellant in the hearing before me today is that the court does have jurisdiction and that the court should say so.  The position taken by the respondent is also that the court does have jurisdiction.  Indeed the respondent has not filed a notice of objection to competency as was, and is, his right under the Rules of Court.  It is clear from what has been put to me this morning on behalf of the respondent that he has no intention of filing such a notice or of taking any objection to the jurisdiction of the court. 

5. In the circumstances, I am not persuaded that the court should say anything in response to the appellant's invitation to make a ruling or express a view on the subject of jurisdiction.  The court does not exist to provide advisory opinions to the parties.  In my view it would be quite inappropriate for the court to express a view about the matter, not only when both parties are furiously in agreement in upholding the court's jurisdiction, but also in the circumstances where the respondent takes the position, and takes it quite strongly, that the court should not provide the appellant with the opinion which it seeks. 

6. The appellant's concern is based upon the undoubted circumstance that the parties to a proceeding, in this or any court, cannot by their consent invest the court with jurisdiction, and that jurisdiction is a legal circumstance which either exists or does not exist.  The appellant is concerned that when the appeal is listed for hearing, the court as then constituted might raise the question of jurisdiction, by which time the appellant will have lost its opportunity to appeal to the Supreme Court.  Although it is a theoretical possibility in every case that the court at trial, or at appellate hearing, might express concerns as to whether it has jurisdiction, it is not the situation that every applicant or appellant is justified in having their potential fears in that regard removed by way of what is, in effect, an early indication from a member of the court on the question of jurisdiction.

7. All I have before me is a Notice of Appeal which appears to be regular.  The respondent has filed an unconditional appearance and has not taken any objection to the competency of the appeal.  There is no obvious ground upon which I would be justified in embarking upon an investigation as to the jurisdiction of the court. 

8. The circumstances are such this morning as to have produced the ironical situation in which Mr Ginnane SC, who represents the appellant, was attempting to persuade me that the view might be taken that there were doubts about jurisdiction based upon what the High Court said in Collins v Charles Marshall Pty Limited (1955) 92 CLR 529 at 540. Their Honours said:

   “Clearly enough a matter or a proceeding may involve the interpretation of the Act or of an order or of an award, although the proceeding does not arise under the Act. This very case is an example and it may be said that almost always it will be so where the Act, order or award is relevant only to some matter of defence to a proceeding based on some cause of action or ground which is prima facie independent of the Act, order or award.”

   Mr Ginnane proposed that that passage had the potential to give his client concern that, at some point, either the respondent or a member of the court might express some disquiet about the question of jurisdiction.  Because of the position adopted by the respondent, it would not in my view be desirable for the court to deal with the very substantial amount of jurisprudence which has been developed, not only in the High Court but also in this court, on the subject of whether a matter arises under a law made by the Parliament.  It is sufficient if I say that nothing which has been put to me this morning by Mr Ginnane disposes me to the view that it would be appropriate for me to attempt to give some kind of indication on that question in the particular circumstances of this case.

9. There is another reason why I am not inclined to venture into the matter of jurisdiction this morning. Under s 25(5) of the Federal Court of Australia Act 1976 (Cth) the jurisdiction of the court in an appeal from a judgment of a court of summary jurisdiction may be exercised by a single Judge or by a Full Court. Under s 25(1) of the same Act the appellate jurisdiction of the court shall, subject to other provisions of the section and the provisions of any other Act, be exercised by a Full Court. The result is that unless the present appeal is from a judgment of a court of summary jurisdiction, jurisdiction cannot be exercised by a single Judge of the court. Although this question was not raised specifically for argument today, the appellant has come prepared to deal with the point, and has referred me to a judgment of the Full Court of this court in John L Pierce Pty Limited v Kennedy (2000) 104 FCR 225. In that matter the Full Court held that a proceeding under s 178 of the Act, as it was then numbered, which came before the Chief Industrial Magistrate of New South Wales was a proceeding in a court of summary jurisdiction within the meaning of s 25(5). Whitlam J, who effectively gave the judgment of the Full Court on that occasion, pointed out that there is a provision in the Acts Interpretation Act 1901 (Cth), s 26D, which defines the term, ‘court of summary jurisdiction.’ Relevantly for present purposes, a court of summary jurisdiction includes a magistrate of a State, sitting as a court for the making of summary orders.

10. As I pointed out in argument this morning, it is probably accepted orthodoxy that a Magistrates Court is the exemplar of a court of summary jurisdiction.  However, the matter is complicated by the fact that this is not a criminal proceeding, by the scope of the jurisdiction of the Magistrates Court under the Magistrates Court Act 1989 (Vic), and by the absence of any statutory meaning, under either federal or state law, as to what constitutes a summary order, within the meaning of s 26D of the Acts Interpretation Act. It is apparent that the respondent came to court this morning unprepared to advance full argument on this question, and even the appellant, I sense, would value some additional opportunity to give attention to the matter.

11. Although, intuitively, one would think that the Magistrates Court was a court which made summary orders, it is not something which has been argued before me this morning in sufficient depth for me to form a concluded view about the matter. I was informed by Ms Gooley, who represented the respondent, of her experience in a previous proceeding in this court, in which those representing both sides had not apparently been able to resolve the question of whether an appeal from the Victorian Magistrates Court was an appeal from a court of summary jurisdiction.  In the circumstances of that matter, according to Ms Gooley, a compromise was achieved by having the matter dealt with by a Full Court in any event.

12. If the Magistrates Court, in the present matter, could not be regarded as a court of summary jurisdiction, then it would be incompetent for me to say anything about the question of the jurisdiction of the court as such under s 853 of the Act. For that reason also, I decline the invitation of the appellant to make a ruling, or to express a view, about that latter question.

13. That leaves the question as to how I should dispose of the matters which were before me today.  Ms Gooley has submitted that I should dismiss the appellant's Notice of Motion.  The difficulty with that course, as I suggested to her, was that the only relevant orders sought in that motion related to the procedure by which the matter was brought before the court today.  The court made orders with the consent of the parties to enable that to be done.  There is no form of order, at least expressed anywhere in writing, which the appellant seeks from the court today.  If the appellant had applied for a particular kind of order, which would reflect the indication which it sought from the court on the matter of jurisdiction, it is apparent from what I have said already that I would have dismissed that application.

14. In the circumstances, I will not make any order on the substantive issues which have been argued before me, but leave the reasons which I have just pronounced as an indication of the disposition by the court of the matters raised by the appellant today. 

15. The respondent has asked for his costs upon the ground that either the appellant's Notice of Motion, or the persistence by the appellant in having the jurisdictional question debated before the court today, constituted an unreasonable act or omission within the meaning of s 824(2) of the Act. I accept that the appellant's advisers in good faith perceived that there may be some doubt about the question whether the judgment of the Victorian Magistrate was in a matter arising under the Act, and therefore that there may be some doubt as to whether this court had jurisdiction under s 853 of that Act. It follows that it could not have been regarded as an unreasonable act for counsel for the appellant, on the first day of the appeal in this court, to have raised the matter of jurisdiction, albeit in conjunction with a submission that the court did have jurisdiction, and whether or not he or she was aware that the respondent proposed to make the same submission.

16. The question then becomes whether it was an unreasonable act or omission for the appellant to have brought the matter on before this court in an expedited way so that the appellant would still be within time in the Supreme Court should this court express the view that it did not have jurisdiction.  I am not prepared to find that for the appellant to have acted in that way was an unreasonable act or omission. 

17. However, prior to service on the respondent of its Notice of Motion, it appears that the appellant did not notify the respondent that it proposed to have the matter dealt with by the court in the way that it did, or attempt to obtain an indication of the respondent's reaction, either in point of substance or in point of procedure, to that course.  As soon as the solicitors for the respondent received the Notice of Motion, they corresponded with the solicitors for the appellant in terms which left no misunderstanding but that they took the view that the court did have jurisdiction, and that the court's jurisdiction was solidly established in accordance with many authorities.  The final paragraph of that correspondence was in these terms:

    “We are therefore instructed to put you on notice that should you persist with the hearing of the notice of motion filed in this matter we are instructed to apply for costs pursuant to section 824(2) of the Workplace Relations Act 1996 and we will rely on this correspondence in that application.”

    Notwithstanding that indication, the appellant decided to persist with its intention to have the court opine on the matter of its concern, and told the respondent so in a letter from its solicitors of 25 September 2006. 

18. In considering whether the appellant's persistence in that course constituted an unreasonable act or omission, I think it is relevant to bear in mind the potential consequences for the appellant had it not done so.  Its reason for having the matter dealt with in an expedited way was that, as I have indicated before, it desired to keep open the option of instituting an appeal in the Supreme Court of Victoria.  Although I have not had the benefit of perusing the rules of that court this morning, Mr Ginnane has indicated both that the time limit for the lodgment of the appeal expires in two days, and also that the Victorian Court of Appeal has the power to extend that time but, according to Mr Ginnane, would do so only in exceptional circumstances.

19. Given the attitude which the respondent expressed in his solicitors’ letter of 25 September 2006, it is hard to see any way in which it would legitimately remain open for him to contest an application for an extension of time in the Victorian Court of Appeal, even if, as events should transpire, this court should later indicate that it had no jurisdiction under s 853 of the Act. I consider that there would be the strongest possible discretionary ground for granting an extension of time in those circumstances. Indeed, I am disposed to think that the respondent would, as a matter of law, be estopped or precluded from submitting to the Court of Appeal that there were no exceptional circumstances warranting such an extension.

20. I do not think the respondent should have been exposed to the costs and expenses of a hearing in the court today in the light of the correspondence which passed between his solicitors and the appellant's solicitors on 25 September.  I do take the view that the persistence of the appellant in having the matter dealt with by the court today was an unreasonable act, and that the respondent should have his costs of the day.  However, I make it clear that I have not held that the appellant's Notice of Motion was an unreasonable act, and the costs which I will order will be the costs of this day only, not including the costs of anything which happened before today. 

21. The order which the court makes is that the appellant pay the respondent's costs of today's hearing in the court.

I certify that the preceding twenty-two (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup .

Associate:
Dated:        11 October 2006

Counsel for the Appellant:	T Ginnane SC
Solicitor for the Appellant:	Freehills
Counsel for the Respondent:	A Gooley
Solicitor for the Respondent:	Maurice Blackburn Cashman
Date of Hearing:	27 September 2006
Date of Judgment:	27 September 2006