Construction, Forestry, Mining and Energy Union v Clarke - [2007] FCAFC 8

FEDERAL COURT OF AUSTRALIA
Construction, Forestry, Mining and Energy Union v Clarke [2007] FCAFC 8
PROCEDURE – whether determination by single judge of an appeal from the Industrial Magistrate’s Court precludes an appeal to Full Court – Federal Court of Australia Act 1976 (Cth) ss 24(1), 25(2), 25(5)
Federal Court of Australia Act 1976 (Cth), ss 24(1), 25(2), 25(5)
Federal Court Rules, O 52 r 18(1)
Ah Toy v Registrar of Companies (1985) 10 FCR 280
Clarke v Powell (2005) 85 WAIG 1508
Hall v Anderson (unreported, Spender, Finn & North JJ, 18/07/97)
Hamod v New South Wales (2002) 188 ALR 659
Kristoffersen v Department of Employment, Workplace Relations & Small Business [2002] FCAFC 269
Nguyen v Nguyen (1990) 169 CLR 245
Papps v Medical Board of South Australia [2006] SASC 234
Queensland v The Commonwealth (1977) 139 CLR 585
Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) (2001) 207 CLR 72
SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 150 FCR 214
Thomas Borthwick & Sons (Pacific Holdings) Ltd v Trade Practices Commission (1988) 18 FCR 424
Transurban City Link Ltd v Allan (1999) 95 FCR 553
Wati v Minister for Immigration & Multicultural Affairs (1997) 78 FCR 543
CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION, MICHAEL POWELL AND WALTER VINICIO MOLINA v MARCUS THOMAS CLARKE
WAD 88 OF 2006
RYAN, TAMBERLIN AND MIDDLETON JJ
9 FEBRUARY 2007
MELBOURNE (HEARD IN PERTH)

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

WAD 88 OF 2006

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
First Appellant

MICHAEL POWELL
Second Appellant

WALTER VINICIO MOLINA
Third Appellant

AND:

MARCUS THOMAS CLARKE
Respondent

JUDGES:

RYAN, TAMBERLIN AND MIDDLETON JJ

DATE OF ORDER:

9 FEBRUARY 2007

WHERE MADE:

MELBOURNE (HEARD IN PERTH)

THE COURT ORDERS THAT:
1.The respondent’s motion seeking orders pursuant to O 52 r 18(1) of the Federal Court Rules be dismissed.
2.The respondent pay the appellants’ costs of and incidental to the motion.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

WAD 88 OF 2006

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
First Appellant

MICHAEL POWELL
Second Appellant

WALTER VINICIO MOLINA
Third Appellant

AND:

MARCUS THOMAS CLARKE
Respondent

JUDGES:

RYAN, TAMBERLIN AND MIDDLETON JJ

DATE:

9 FEBRUARY 2007

PLACE:

MELBOURNE (HEARD IN PERTH)

REASONS FOR JUDGMENT
RYAN J:

I have had the benefit of reading in draft the reasons for judgment prepared by Middleton J and the orders which he has proposed. I agree, for the reasons explained by his Honour, that those orders are appropriate.

I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.
Associate:
Dated: 9 February 2007

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2007] FCAFC 8
Decision Date: 9 FEBRUARY 2007

CaseChat Overview and Summary

In the matter of Construction, Forestry, Mining and Energy Union v Clarke, the Court was asked to determine whether there is a right of appeal to a Full Court from a judgment of a single judge of the Federal Court of Australia, exercising the appellate jurisdiction of the Federal Court on appeal from a State Court of summary jurisdiction. The legal issues before the Court were primarily centred on the interpretation of sections 24(1)(a), 25(1), and 25(5) of the Federal Court Act, and how these provisions interact to confer or limit the right of appeal. Specifically, the Court had to decide whether the use of the disjunctive "or" in section 25(5) indicated that the appellate jurisdiction could only be exercised once, either by a single judge or by a Full Court, and if so, whether this would exhaust the jurisdiction.

The Court's reasoning was grounded in the statutory language and the doctrine of precedent. The Court found that the language of section 25(5) does not limit the right of appeal to a Full Court from a judgment of a single judge. While the use of the disjunctive "or" acknowledges the alternative modes of exercising the appellate jurisdiction, it does not necessarily mean that the jurisdiction is exhausted once exercised. The Court emphasised that the construction of the statute must give effect to its purpose and context, and that any previous interpretations suggesting otherwise were incorrect. The Court also noted that the doctrine of precedent and the need for predictability in the law must be maintained, and that the earlier decisions on the operation of sections 24(1A) and 25(2) would remain intact.

Accordingly, the Court dismissed the motion seeking orders that the appeal be dismissed as incompetent. The Court ordered that the respondent pay the appellants' costs of and incidental to the motion. This decision clarifies that there is no statutory barrier to an appeal to a Full Court from a judgment of a single judge exercising appellate jurisdiction under section 25(5) of the Federal Court Act.

Orders

Orders of the court

1. The respondent’s motion seeking orders pursuant to O 52 r 18(1) of the Federal Court Rules be dismissed.

2. The respondent pay the appellants’ costs of and incidental to the motion.

Background

Background to the litigation

The question for determination is whether there can be an appeal to a Full Court from a judgment of a single judge of the Federal Court of Australia exercising the appellate jurisdiction of the Federal Court on appeal from a State Court of summary jurisdiction.STATUTORY BACKGROUND Sub-sections 14(1) and (2) of the Federal Court Act provide:(1)For the purposes of the exercise of the jurisdiction of the Court, the Court may be constituted by a single Judge or as a Full Court.(2)A Full Court consists of 3 or more Judges sitting together or, to the extent permitted by subsection (3), of 2 Judges sitting together.Sub-sections 20(1) and (1A) of the Federal Court Act provide:(1)Except as otherwise provided by this Act or any other Act, the original jurisdiction of the Court shall be exercised by a single Judge.(1A)If the Chief Justice considers that a matter coming before the Court in the original jurisdiction of the Court is of sufficient importance to justify the giving of a direction under this subsection, the Chief Justice may direct that the jurisdiction of the Court in that matter, or a specified part of that matter, shall be exercised by a Full Court.Sub-section 24(1) of the Federal Court Act provides, as far as is relevant;(1)Subject to this section and to any other Act, whether passed before or after the commencement of this Act (including an Act by virtue of which any judgments referred to in this section are made final and conclusive or not subject to appeal), the Court has jurisdiction to hear and determine:(a)appeals from judgments of the Court constituted by a single Judge;…Sub-section 25(1) of the Federal Court Act provides as follows:(1)The appellate jurisdiction of the Court shall, subject to this section and to the provisions of any other Act, be exercised by a Full Court.However, s 25(2) of the Federal Court Act provides:(2) Applications:(a) for leave or special leave to appeal to the Court; or(b)for an extension of time within which to institute an appeal to the Court; or(c) for leave to amend the grounds of an appeal to the Court; or(d) to stay an order of a Full Court; may be heard and determined by a single Judge or by a Full Court.Further, s 25(5) of the Federal Court Act provides:(5)Subject to any other Act, the jurisdiction of the Court in an appeal from a judgment of a Court of summary jurisdiction may be exercised by one Judge or by a Full Court. In the Federal Court Act, unless the context requires otherwise, ‘judgment’ means ‘judgment, decree or order, whether final or interlocutory, or a sentence’ (see s 4 of the Federal Court Act). There is no doubt that ‘judgment’ includes any order of the Court exercising appellate jurisdiction, and embraces the orders made by Nicholson J in the present case: see generally Ah Toy v Registrar of Companies (1985) 10 FCR 280 at 285.CONSIDERATION An inquiry into the nature of the rights of appeal conferred by the Federal Court Act must begin with an analysis of the relevant statutory provisions: see Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) (2001) 207 CLR 72 at [9] (‘Roy Morgan’); and Papps v Medical Board of South Australia [2006] SASC 234 at [22].

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

RYAN, TAMBERLIN AND MIDDLETON JJ

However, to the extent that any of the earlier judgments may be authority for the proposition that s 24(1)(a) is to be read down so as to apply only to judgments of a single judge exercising original jurisdiction, a matter not directly addressed in any of the cases, I would be compelled to the conclusion that such a construction was clearly wrong (see Nguyen v Nguyen (1990) 169 CLR 245 at 269 (‘Nguyen’); Allan at 560; and SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214 at 256–257). However, my view in this case does not affect the earlier decisions of this Court on the operation of s 24(1A) and s 25(2) to the extent that they applied the reasoning in Thomas Borthwick. The doctrine of precedent and the need for predictability of the law in this way will remain intact: see Queensland v The Commonwealth (1977) 139 CLR 585 at 620 et seq per Aickin J; Nguyen at 269.CONCLUSION For the reasons I have given, I would dismiss the motion seeking orders pursuant to O 52 r 18(1) of the Federal Court Rules that the appeal be dismissed as incompetent.

Ratio Decidendi

Legal Principle Established

Established by: RYAN, TAMBERLIN AND MIDDLETON JJ

In the Federal Court Act, unless the context requires otherwise, ‘judgment’ means ‘judgment, decree or order, whether final or interlocutory, or a sentence’ (see s 4 of the Federal Court Act). There is no doubt that ‘judgment’ includes any order of the Court exercising appellate jurisdiction, and embraces the orders made by Nicholson J in the present case: see generally Ah Toy v Registrar of Companies (1985) 10 FCR 280 at 285.CONSIDERATION An inquiry into the nature of the rights of appeal conferred by the Federal Court Act must begin with an analysis of the relevant statutory provisions: see Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) (2001) 207 CLR 72 at [9] (‘Roy Morgan’); and Papps v Medical Board of South Australia [2006] SASC 234 at [22]. The appellate jurisdiction of the Court, subject to s 25 of the Federal Court Act and to the provisions of any other Act, is exercisable by a Full Court: s 25(1). However, s 25(5) allows the appellate jurisdiction to be exercised by ‘one Judge’, (which I take to be the same as the reference to ‘a single Judge’ in contradistinction to a Full Court). The decision of Nicholson J to dismiss the appeal was an exercise of appellate jurisdiction by a single judge. It was argued that s 25(5) provided for a right of appeal which is alternative and not progressive. In the respondent’s outline of contentions dated 10 August 2006 it was submitted as follows:26.The appellate jurisdiction being exercised “may be exercised by one judge or by a Full Court”. The use of the disjunctive “or” in this context makes it apparent that a single judge or the Full Court are true alternatives in the exercise of this appellate jurisdiction: see Pearce & Geddes, Statutory Interpretation in Australia (6th edn) (Sydney: LexisNexis, 2006) at pages 46-51, paragraphs 2.25-2.26.27.So too does a comparison with the relevant words of ss.25(2) of the Federal Court Act, and their interpretation by the Federal Court as “true alternatives” in the exercise of the appellate jurisdiction under that subsection: see generally Reid and Thomas Borthwick, supra.28.Moreover, the s 25(2) authorities make it clear, it is submitted, that as a matter of principle, the appellate jurisdiction of the Federal Court can only be exercised once, and is then exhausted… Putting aside considerations that may apply in relation to s 25(2), to which I will return later, I do not regard the language of s 25(5) as limiting an appeal to a Full Court from a judgment of a single judge. Sub-section 25(5) expressly provides that the jurisdiction to entertain an appeal from an order of a Court of summary jurisdiction may be exercised by one judge or by a Full Court, and in this sense these are alternative modes of exercising the appellate jurisdiction. This says nothing as to the consequences that may flow when one of these alternatives is pursued. The use of the disjunctive ‘or’ acknowledges that the alternatives are available, but does not necessarily entail that the appellate jurisdiction, as conferred by s 24(1) of the Federal Court Act, can ‘only be exercised once, and is then exhausted’.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD 88 OF 2006

JUDGES:	RYAN, TAMBERLIN AND MIDDLETON JJ
DATE OF ORDER:	9 FEBRUARY 2007
WHERE MADE:	MELBOURNE (HEARD IN PERTH)

JUDGES:	RYAN, TAMBERLIN AND MIDDLETON JJ
DATE:	9 FEBRUARY 2007
PLACE:	MELBOURNE (HEARD IN PERTH)