Construction, Forestry and Maritime Employees Union v JW Land Construction (No 2)
[2024] FedCFamC2G 328
•15 April 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Construction, Forestry and Maritime Employees Union v JW Land Construction (No 2) [2024] FedCFamC2G 328
File number(s): CAG 47 of 2021 Judgment of: JUDGE W J NEVILLE Date of judgment: 15 April 2024 Catchwords: PRACTICE AND PROCEDURE - construction of Orders where the parties do not agree upon the form of declarations to be made following the Court’s findings regarding liability – no reference by any party to authority regarding construction – declaration to be made in the alternative – further dispute regarding allocation of hearing regarding penalty where the parties were advised in May 2023 of the presiding Judge’s retirement in mid-2024 – considerations of “public resources” and the imposition on another Judge to determine penalty. Legislation: Fair Work Act 2009 (Cth) s.503 Cases cited: AON Risk Services Australia Limited v Australian National University (2009) 239 CLR 175
Construction Forestry and Maritime Employees Union v JW Land Construction [2024] FedCFamC2G 145
Racing New South Wales v Racing Victoria Ltd [2024] NSWSC 147
Division: Division 2 General Federal Law Number of paragraphs: 14 Date of hearing: 4 April 2024 Place: Canberra Solicitor for the Applicant Construction, Forestry and Maritime Employees Union Solicitor for the Respondents Holman Webb Lawyers ORDERS
CAG 47 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CONSTRUCTION, FORESTRY AND MARITIME EMPLOYEES UNION
ApplicantAND: JW LAND CONSTRUCTION PTY LTD
Respondent
ORDER MADE BY:
JUDGE W J NEVILLE
DATE OF ORDER:
15 APRIL 2024
UNTIL FURTHER ORDER, THE COURT ORDERS THAT:
1.The hearing to determine penalties be listed before his Honour, Judge Cameron in Sydney, on a date to be advised by his Honour.
2.The declarations sought by the Applicant in the liability hearing regarding breaches of s.503 of the Fair Work Act 2009 (Cth) shall be framed in the alternative in accordance with that section.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE W J NEVILLE
Introduction
The “liability hearing” in this matter took place in March and May 2023. Regrettably, final submissions were regularly delayed, with multiple extensions of time sought.[1] The final submissions were ultimately filed on 9th October 2023. Judgment was delivered on 22nd February 2024, with multiple contraventions of the Fair Work Act 2009 (Cth) (“the FW Act”) being established by the Applicant against the Respondents.[2]
[1] Extensions of time for filing were sought or made on 30th May, 11th July, and 4th August 2023.
[2] Construction Forestry and Maritime Employees Union v JW Land Construction [2024] FedCFamC2G 145.
At the hearing on 12th May 2023, Counsel for the parties were advised, indeed cautioned, of the need to be mindful of my retirement in mid-2024, which necessitated that any “penalty hearing” occur in sufficient time for the judgment in that aspect of the matter to be finished well before the said retirement.[3] Counsel gave relevant assurances. Alas, because of further delays and the likely unavailability of both Counsel and, significantly, of a witness for the Respondents, one of the two issues for the Court to determine now is whether the Court should effectively force the parties on, with the same or different Counsel, or should the matter be transferred to a different Judge, who would bear the burden of not having been in the matter from the beginning and would, therefore, be reliant upon the liability judgment.
[3] See the Transcript for this date, T 110.
For my part, despite every caution, and regular encouragement to all the lawyers involved (which includes very experienced Counsel), the conduct of the matter has too often been too meandering. From my perspective, it is a lamentable circumstance that has now arisen where I cannot undertake the penalty hearing without jeopardising having a judgment delivered before my retirement. It therefore follows that there is, or will be, a potential extra burden, indeed imposition, on a fellow Judge to hear the remaining part of the matter.
The second matter that requires [further] determination is the lawyers’ inability to agree upon the form of the declarations to be made in the light of the Court’s reasons. I will deal with the “hearing” issue first.
The Penalty Hearing
Put shortly, at the directions hearing on 4th April 2024, both parties effectively said that who heard the issue of penalty was a matter for the Court. Curiously, in earlier correspondence (dated 27th March 2024), the Applicant recorded (a) an “agreed” timetable for the filing of submissions, and (b) a range of “available dates” in late June, late July, and in August. Given that I had advised all parties in May 2023 that the penalty hearing would need to occur generally within 12 months due to my retirement shortly thereafter, these range of dates, doubtless unintentional, bordered on the bizarre and almost insulting – or worse! They effectively require that the penalty hearing be undertaken by another Judge who might be able to accommodate such matters and finalise a judgment without the pressure of a very imminent retirement date, and that the “notice” given by the Court in May 2023. Regrettably, the generalised assurance by both Counsel in May 2023, counted for nought.
Moreover, given the demands on the Judges of this Court, it will likely mean that any penalty hearing will not take place until the second half of 2024, well over 12 months after the original liability hearing. Such a delay, through no fault of the Court at all, makes quite a mockery of any and all principle and Rules that require matters to be dealt with “efficiently and expeditiously.” It also necessarily pays not even “lip-service” to the comments by the High Court regarding the flow-on impact of delay upon other litigants and public resources.[4]
[4] See AON Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 at [5] (French CJ), andat [113] – [114] (Gummow, Hayne, Crennan, Kiefel and Bell JJ).
Regrettably, for the reasons given, the conduct of the matter by the parties now requires that the penalty hearing is undertaken by another Judge of this Court. It shall be listed before his Honour, Judge Cameron, in Sydney, on a date and time to be advised, whether for directions or final hearing.
The form of declarations
As notified to the Court, on two occasions, the last in the correspondence of 27th March 2024, the Respondents “neither consents nor opposes declarations 1-4, but has advised an objection to declarations 5-10. Specifically, the disagreement between the parties relates to the question of whether the contraventions of s.503 of the Act found by the Court were “intentional or reckless.”
At an earlier directions hearing, without traversing all matters set out in the judgment, the lawyer for the Respondent indicated that a declaration in the alternative would be acceptable. The parties agreed to have further discussions and were to advise the Court within 7 days of the outcome. Unfortunately, what appeared to have been a rapprochement on 4th April turned out to be premature. Indeed, things deteriorated somewhat.
The lawyer for the Respondents confirmed that even if a declaration was made in the alternative, at the penalty hearing, the Respondents would be arguing (doubtless, perhaps, with some degree of contortion) that the contraventions were, in fact, “only” reckless and not intentional. Some might take a view that such distinctions are unlikely to make an immense difference in the determination of penalty. Of course, such things are for the Court to determine at the penalty hearing.
At one level, however, everyone is fortunate to have the benefit of a very recent decision of the New South Wales Supreme Court regarding the “construction of Orders.” In Racing New South Wales v Racing Victoria Ltd, at [5] – [11], Rees J set out the following outline of principle:[5]
[5] Racing New South Wales v Racing Victoria Ltd [2024] NSWSC 147.
[5] The first task is to construe the discovery orders made by Ball J. Court orders are interpreted according to the ordinary rules of construction, without delving into the subjective intention of the judge who made the order: Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483 at 503 (Windeyer J); Repatriation Commission v Nation (1995) 57 FCR 25 at 33 (per Beaumont J, Black CJ and Jenkinson J agreeing). Extrinsic materials may be consulted where ambiguity exists on the face of the orders: Wende v Horwath (NSW) Pty Ltd (2014) 86 NSWLR 674 at [670] (Basten JA). Less settled is whether extrinsic materials may be taken into account absent ambiguity: Perry Herzfeld and Thomas Prince, Interpretation (2nd ed, 2020, LawBook Co) at [36.90].
[6] The ordinary rules of construction, in the context of commercial contracts, were recently restated in Laundy Hotels (Quarry) Pty Ltd v Dyco Hotels Pty Ltd (2023) 407 ALR 613 at [27]:
“It is well established that the terms of a commercial contract are to be understood objectively, by what a reasonable businessperson would have understood them to mean, rather than by reference to the subjectively stated intentions of the parties to the contract. In a practical sense, this requires that the reasonable businessperson be placed in the position of the parties. It is from that perspective that the court considers the circumstances surrounding the contract and the commercial purpose and objects to be achieved by it.”
[7] As to when extrinsic material may be considered in the contractual context, Leeming JA (Gleeson and White JJA agreeing) explained in Cherry v Steele-Park (2017) 96 NSWLR 548 that the ambiguity of a contract may only be revealed once the surrounding circumstances are considered: at [68]-[86]. That is, ambiguity is a “conclusion, rather than a precondition to the admissibility of evidence of surrounding circumstances”: at [79]. As such, commercial context may be considered from the outset, for example, in Laundy at [36]. However, if after considering the contract as a whole and the surrounding circumstances, the Court concludes that the language of a contract is unambiguous, then the Court must give effect to that language unless to do so would give the contract an “absurd” operation: Cherry v Steele-Park at [73]-[75].
[8] Returning to how the issue of ambiguity and reference to extrinsic materials has been considered in the context of construing orders, Drummond J (Sundberg and Finkelstein JJ agreeing) observed in Yates Property Corporation Pty Ltd v Boland ((9198) 89 FCR 78 at 78:
“It is impermissible, in my view, as well as being quite unrealistic to attempt to read, that is, to understand, an order in isolation from the context of the reasons for it being made. The Full Court of the Queensland Supreme Court, in Australian Energy Ltd v Lennard Oil NL (No 2) [1988] 2 Qd R at 230 held that, in interpreting an order of a court framed in unambiguous language, regard should still be had to the reasons given by the Court for making the order because they form part of a context in which the order was made.”
[9] In Athens v Randwick City Council (2005) 64 NSWLR 58, Santow JA explained at [129], [130] and [137] (emphasis in original):
“The purpose of a court order is, ordinarily, to give effect to a judgment. The judgment is not some kind of penumbral context surrounding the order. Rather the judgment is the source of the order. A court order derives from its originating judgment ... The order must therefore conform to the judgment, with only such latitude as the judgment allows. ...
... It is the judgment which controls the scope of any consequential orders, setting the parameters for what conformance requires. ...
Orders when delivered have a continuing life of their own, once the umbilical cord has been thereby severed from the originating judgment. But it does not follow that orders so launched are to be treated thereafter as completely self-contained when it comes to their interpretation. Convenience and clarity, especially for the party bound, dictate that the orders should so far as reasonably practicable, be self-standing...”
[10] In Lim v Comcare (2019) 165 ALD 217, the Full Federal Court considered that regard may be had to the reasons for the court order “whether the orders are ambiguous or not”: at [40] (per McKerracher, Markovic and Snaden JJ). See likewise Hamersley Iron Pty Ltd v National Competition Council (2008) 247 ALR 385; John Tarrant, “Construing Undertakings and Court Orders” (2008) 82 ALJ 82 at 84-85.
[11] I agree. Where the categories were to give effect to Ball J’s earlier reasons, I consider that it is important to have regard to the judgment when considering how the orders should be read. I do not consider that ambiguity in the orders is a pre-condition to having regard to the judgment, where ambiguity may only become apparent after considering both the reasons and the orders made to give effect to those reasons. The need to have regard to Ball J’s reasons is accentuated here where his Honour directed the parties to bring in orders to reflect his reasons; his Honour then amended the orders as drafted by the parties slightly, to quell remaining points of disagreement.
Concerningly, there were no submissions by any party about relevant principle in relation to the framing of the declarations. Mere statements of disagreement were made; nothing else. This was not helpful.
The “issue” relating to the contravention of s.503 of the Act was dealt with in pars.172 – 181 of the liability judgment. The Court noted in particular the admissions made in the pleadings by the Respondents regarding the alleged beach of this section. That is a telling circumstance. Equally so are the Court’s findings (at [178] – [181]) that the conduct of the personal Respondents was, at least, reckless. In the same place, the Court also recorded accepting the Applicant’s written submissions in relation to these matters.
In my view, the references to (a) the admissions in the pleadings, (b) the words “at least”, (c) reference to the conduct of the personal Respondents as a “charade”, and (d) acceptance of the Applicant’s submissions, obviously point to findings of conduct properly described as “reckless.” Without having made a specific finding regarding “intention”, nonetheless there is significant indicia of the Court’s high level of concern at the interference by the officials on site with the standard operating procedure of Mr Poskus of what should have been a relatively routine inspection. It was for these reasons that the company officials were found to be, at least, “reckless”. On the evidence, and for the reasons published, whether “reckless” or intentional, doubtless at the penalty hearing, the Court will take into account the conduct of the officials as found by the Court in the liability judgment. For current purposes, the declarations should be framed in the alternative regarding the breaches of s.503 of the FW Act.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment of Judge W J Neville. Associate:
Dated: 15 April 2024
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