Craig, John v West Australian Petroleum Ltd Curtis, David v West Australian Petroleum Ltd Knowles, Kevin v West Australian Petroleum Ltd

[1997] FCA 670

FEDERAL COURT OF AUSTRALIA

PRACTICE AND PROCEDURE - interlocutory judgment of judicial registrar - whether jurisdiction under Federal Court of Australia Act to grant leave to appeal from interlocutory judgment of judicial registrar - principles applicable to granting leave to appeal from interlocutory judgment discussed - whether jurisdiction to review interlocutory judgment of judicial registrar

Federal Court of Australia Act 1976 ss 18AB(6), 24
Industrial Relations Act 1988 ss 347, 420
Workplace Relations Act 1996 s 377

Shackley v Croatian Club (1996) 141 ALR 736, applied per North J

JOHN CRAIG v WEST AUSTRALIAN PETROLEUM LIMITED
No. WI 1055 of 1996
DAVID CURTIS v WEST AUSTRALIAN PETROLEUM LIMITED
No. WI 1056 of 1996
KEVIN KNOWLES v WEST AUSTRALIAN PETROLEUM LIMITED
No. WI 1057 of 1996

MARSHALL J
ADELAIDE (Heard in Perth)
24 JULY 1997

IN THE FEDERAL COURT OF AUSTRALIA	)
)
WESTERN AUSTRALIA DISTRICT REGISTRY	)  WI 1055 of 1996
)
GENERAL DIVISION	)

BETWEEN:	JOHN CRAIG Applicant
AND:	WEST AUSTRALIAN PETROLEUM LIMITED Respondent

JUDGE:	MARSHALL J
PLACE:	PERTH
DATED:	27 JUNE 1997

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. The notice of motion of the respondent is dismissed.

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	)  WI 1056 of 1996
)
GENERAL DIVISION	)

BETWEEN:	DAVID CURTIS Applicant
AND:	WEST AUSTRALIAN PETROLEUM LIMITED Respondent

JUDGE:	MARSHALL J
PLACE:	PERTH
DATED:	27 JUNE 1997

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. The notice of motion of the respondent is dismissed.

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	)  WI 1057 of 1996
)
GENERAL DIVISION	)

BETWEEN:	KEVIN KNOWLES Applicant
AND:	WEST AUSTRALIAN PETROLEUM LIMITED Respondent

JUDGE:	MARSHALL J
PLACE:	PERTH
DATED:	27 JUNE 1997

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. The notice of motion of the respondent is dismissed.

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	)
)
GENERAL DIVISION	)

BETWEEN:             

JOHN CRAIG
Applicant

  AND:  

WEST AUSTRALIAN PETROLEUM LIMITED
Respondent

WI 1055 of 1996

  BETWEEN:             

DAVID CURTIS
Applicant

  AND:  

WEST AUSTRALIAN PETROLEUM LIMITED
Respondent

WI 1056 of 1996

  BETWEEN:             

KEVIN KNOWLES
Applicant

  AND:  

WEST AUSTRALIAN PETROLEUM LIMITED
Respondent

WI 1057 of 1996

JUDGE:

MARSHALL J

PLACE:

ADELAIDE (HEARD IN PERTH)

DATED:

24 JULY 1997

REASONS FOR JUDGMENT

On 27 June 1997 I dismissed notices of motion of the respondent, West Australian Petroleum Limited (WA Petroleum) filed on 24 June 1997 in three matters before the Court in which it is a respondent to unlawful termination proceedings.  At the conclusion of the submissions of counsel for WA Petroleum I announced that I did not need to hear from the representative of the applicants and ordered that the notices of motion be dismissed.  What follows are my reasons for so ordering.

BACKGROUND

In December 1996 the applicants applied pursuant to s 170EA Workplace Relations Act 1996 for a remedy in respect of what they alleged was the unlawful termination of their employment by WA Petroleum. An order for discovery was made in each matter on 25 March 1997. In response, WA Petroleum filed a list of documents on 14 May 1997, verified by an affidavit of its Human Resources Manager, sworn on 13 May 1997.

On 6 June 1997, the applicants filed notices of motion effectively seeking that WA Petroleum make proper discovery.  The notices of motion were heard by Judicial Registrar R D Farrell on 10 June 1997.  He reserved his judgment on that day and subsequently published what he described as “reasons for interlocutory decision” on 17 June 1997.

In his judgment at 2, the Judicial Registrar said:

“The respondent is contending that it had a valid reason based on its operational requirements for terminating the applicants’ employment.  According to its summary of facts filed on 15 April 1997, there had been a review of the respondent’s business operations due to poor economic returns and financial performance.  The review resulted in a reorganisation of the respondent’s business leading, among other things, to the elimination of jobs.

The existing employees were considered for the remaining positions.  The employees were ranked for these positions according to selection criteria.

The selection process did not place the applicants in any of the available positions, due to the higher ranking of other employees.  The respondent therefore proceeded to terminate the applicants’ employment.

When providing discovery, the respondent has provided documentation relating to selection process and the rankings as they applied to the applicants, but has not provided the equivalent documentation as it relates to the other employees, who were ranked higher.  The respondent contends that this documentation is not relevant, and that its release could cause difficulties in the workplace among those still employed.”

The Judicial Registrar referred to the fact that WA Petroleum bore the onus of showing that there was a valid reason for the selection of each applicant for termination and that such termination was justified and objectively defensible.  In doing so he applied Kenefick v Australian Submarine Corporation Pty Ltd (1996) 65 IR 366 and Kerr v Jaroma Pty Ltd trading as Treasury Motor Lodge (1996) 70 IR 469.

At 3-4 the Judicial Registrar said:

“It is not apparent to me how the respondent in this case could objectively establish that the applicants ranked lower than other employees according to selection criteria without leading evidence to establish how the other employees measured up to the selection criteria.  This is because the employees’ relative rankings are an inherent part of the reason given by the respondent for selecting the applicants.

It seems to me that the same would be true even where the selection criteria is objective, so long as there is an element of comparison.  For example, where employees are selected for redundancy on the basis of length of service, the employer would need to establish the length of service of the employees not so selected, so that the Court can make an objective comparison.

In conclusion, I am of the view that documentation relating to selection process and the rankings as they applied to the other employees of the respondent who were ranked higher than the applicants are relevant and should be discovered  These would include the obscured parts of the copy document entitled ‘Job Summary, Selection Criteria and Possible Candidates’, and the other employees’ skills assessments sheets.  With regard to the respondent’s concerns as to the difficulties which may flow from the release of those documents, I note the representative of applicants’ commitment that the documentation would not be the subject of public comment.

The Court therefore orders that the respondent provide further discovery of any documentation relating to the ranking according to the selection criteria of all employees who were considered for the positions for which the applicants were considered.”

The notices of motion of WA Petroleum which were filed on 24 June 1997 sought the following substantive orders:

“1That leave to appeal the interlocutory judgment and order of Judicial Registrar Farrell dated 17 June 1997 be and is hereby granted.

2That the interlocutory judgment and order be stayed pending the hearing and determination of the appeal.”

When the matters were called on for hearing on 27 June 1997, time for service having been abridged, counsel for WA Petroleum was not able to identify the source of the jurisdiction of the Court to make an order granting leave to appeal to a Full Court from an interlocutory judgment of a Judicial Registrar. I asked counsel whether he wished to seek leave to amend the notices of motion to apply in the alternative for a review of the judgment of the Judicial Registrar pursuant to s 377 Workplace Relations Act 1996. The matter was called on again on the afternoon of 27 June 1997. In the interim, counsel had considered his position and conducted further research. He applied to amend the notice of motion in each matter without opposition. A new paragraph 1A was added to other orders sought in each notice of motion. The terms of the paragraph are as follows:

“Alternatively to order 1 there be a review of the interlocutory judgment and order of Judicial Registrar Farrell.”

THE ISSUES

1. Is there jurisdiction in the Court to grant leave to appeal from an interlocutory judgment of a Judicial Registrar?

Section 24 Federal Court of Australia Act 1976 (“the Federal Court Act”), provides so far as is material:

“(1)Subject to this section and to any other Act ... the Court has jurisdiction to hear and determine:

(a)appeals from judgments of the Court constituted by a single Judge;

....

(1A)An appeal shall not be brought from a judgment referred to in subsection (1) that is an interlocutory judgment unless the Court or a Judge gives leave to appeal.

....”

Section 18AB(6) of the Federal Court Act provides as follows:

“The provisions of this Act, the regulations and the Rules of Court, and of other laws of the Commonwealth, that relate to the exercise of a power by the Court apply, in relation to an exercise of the power by a Judicial Registrar under a delegation under subsection (1), as if a reference to the Court or a Judge, or to a court exercising jurisdiction under this Act, were a reference to a Judicial Registrar.”

Section 18AB(6) of the Federal Court Act was inserted into that Act by Schedule 16 to the Workplace Relations and Other Legislation Amendment Act 1996 with effect from 25 May 1997. Previously, materially identical provision had been made in s 376(6) Industrial Relations Act 1988 (“the IR Act”). Section 420(1) and (2) of the IR Act provided that:

“(1)The Court (meaning the Industrial Relations Court of Australia) has jurisdiction to hear and determine appeals from judgments of the Court constituted by a single Judge.

(2)An appeal does not lie from an interlocutory judgment unless the Court or a Judge gives leave to appeal.”

In Hitchcock v Warner Bros Movie World (1995) 130 ALR 337, 344 Moore J observed that the combined effect of s 376(6) and s 420 of the IR Act was “to create a right of appeal from an interlocutory order of a judicial registrar though only with leave.”

In my view the combined effect of ss 18AB(6) and 24 of the Federal Court Act is likewise to create a right of appeal from an interlocutory judgment or order of a Judicial Registrar but only by leave.

1. Should leave to appeal be granted?

In my view leave to appeal from the judgment of the Judicial Registrar should be refused.  I do not believe that the Judicial Registrar’s decision is attended by any doubt, let alone sufficient doubt to warrant its being reconsidered by a Full Court.  Further, no injustice, let alone substantial injustice, would flow if leave were refused.  See Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397. In my view, the Judicial Registrar was correct in his approach to the resolution of the procedural issue before him, as is apparent from the relevant portions of his judgment extracted above. It logically follows that a stay of the order of the Judicial Registrar must be refused.

Further, leave to appeal from interlocutory judgments involving matters of practice and procedure should not readily be granted.  See Adam P Brown Male Fashions Proprietary Limited v Philip Morris Incorporated (1981) 148 CLR 170, 177. See also generally on the question of leave to appeal from an interlocutory judgment: Health Services Union of Australia v Tasmania (Marshall J, IRCA, 14 Aug 1996, unreported) and Treasurer of the Commonwealth of Australia v Canwest Global Communications Corp (Beaumont, Burchett & Emmett JJ, 30 June 1997, unreported).

1. Can the Court “review” an interlocutory judgment of a Judicial Registrar dealing with the adequacy of discovery?

In the Industrial Relations Court of Australia in Shackley v Croatian Club (1996) 141 ALR 736, 742 Wilcox CJ reaffirmed the approach he took in Matar v Neutral Bay Football Club (IRCA, 26 July 1996, unreported) regarding the nature of orders of Judicial Registrars which were subject to review.  His Honour drew a distinction between “a ruling made in the course of a hearing, on the way to determination of a proceeding, and a ruling determining an interlocutory application commenced by notice of motion.”  He held that the former type of ruling was unreviewable whilst the later type was reviewable.

von Doussa J agreed with the reasons for judgment of Wilcox CJ in Shackley. However as North J observed at 750, the issues in Shackley did not raise the question as to the correct approach to be taken to the question of whether interlocutory decisions of a judicial registrar are reviewable under s 377 of the IR Act. The question in Shackley was whether s 347 of the IR Act precluded the awarding of costs in respect of a review by a Judge of a decision of a Judicial Registrar.

At 750-751, North J said:

“As the present case does not involve an interlocutory decision of the judicial registrar, these questions do not arise.  The appeal may be resolved without reference to those issues.  Thus, a decision of this Full Court will not be a binding authority on the questions.  The issues are not free from difficulty or controversy.  They have not been addressed in submissions which, in any event, were exclusively in writing.  Further, in the light of s 170EHA in relation to unlawful termination applications, it is unlikely that the costs question will arise.  In all these circumstances, I prefer to express no view on the costs question and merely to record that I adhere to the view expressed in Spencer v Baseball Queensland Inc (IRC of A, 15 July 1996, unreported) that s 377 does not give a party a right to review a decision of a judicial registrar in an interlocutory matter. In particular, having regard to the Chief Justice’s comments, there is nothing surprising or unfair in the result that a party to an unlawful termination application cannot review an interlocutory decision in relation to venue until the conclusion of the hearing of the application by the judicial registrar. At this point, the parties have a right to a repeat of the exercise of original jurisdiction. This unusual situation arises from constitutional requirements. Given this unusual ability for parties to have two bites of the cherry, it is understandable that the extent of the first bite might be limited to some degree. The limitation concerns interlocutory matters which, because of their procedural nature, even if wrongly decided are not likely to be critical to the proper disposition of the application. In a few extreme cases, a wrong decision by a judicial registrar in an interlocutory matter may prejudice the proper disposition of the hearing before the judicial registrar. The Act gives a remedy in such a case, which is not confined to an immediate challenge to the interlocutory decision but is a right to review the result of the entire hearing before the judicial registrar. Thus, even if the inability to challenge an interlocutory order in respect of venue has the extreme effect of preventing a party from attending before the judicial registrar, that party can institute a review thereafter and re-argue the question of venue before the judge in relation to the review.

This approach accords with the approach of Moore J in Hitchcock v Warner Bros Movie World (1995) 130 ALR 337 at 342:

I do not consider that parliament intended that s 377 was to provide a mechanism for the review of the exercise of any power by a judicial registrar in the course of hearing and determining an application concerning a matter referred to in s 376(1)(a) and (b).... If s 377 creates the right to have reviewed the final determination by a hearing de novo, then there is no obvious legislative purpose served by permitting the review of all powers exercised in the process of making that final determination, if the final determination, and any interlocutory decisions leading to it, can be exercised again by a judge.

The alternative would be that parties would be able to review every interlocutory decision of a judicial registrar.  Jurisdiction exercised by the judicial registrars is predominantly concerned with claims for reinstatement.  In their nature, these must be dealt with quickly in order that justice be done.  The applicants tend to have limited resources, so that litigation in the jurisdiction must be as inexpensive as possible.  If the Act permitted reviews of interlocutory decisions in the course of the proceedings before the judicial registrar, there would be the possibility of delay and expense contrary to the purpose of the provisions.  Gray J expressed a similar view in Andrews, at 442, as follows:

Thus, it is only when the judicial registrar has made a final order that review can be sought.  If this were not the case trials before judicial registrars could be interrupted constantly by applications to review rulings on the admissibility of evidence and every interlocutory decision of a judicial registrar could be the subject of a separate application for review.  That cannot have been the intention of parliament.

In the result, I agree that the appeal should be allowed, the decision refusing the application for costs be set aside, and that the application for costs be remitted to the trial judge for further determination.”

I agree, with respect, with the observations of North J in Shackley set out above.  As well as according with the judgment of Moore J in Hitchcock they are also consistent with relevant observations made by me in Nixon v Ord Minnett Limited (1996) 64 IR 360, 368-369. I see no logical basis for concluding that simply because a ruling is given in a matter which arises as a result of a notice of motion being filed, a judgment determining such a matter is reviewable. Often in proceedings a judicial registrar or judge with the conduct of a mater will deal with procedural issues and make rulings on them at directions hearings without having before her or him a notice of motion setting out the procedural ruling sought by a party. Simply because a notice of motion is used as a vehicle to obtain a procedural order seems to me, with the greatest respect to Wilcox CJ and von Doussa J, an unsatisfactory reason to conclude that a judgment on the notice of motion is reviewable. I therefore find that the Court has no jurisdiction to review the order of the Judicial Registrar.

However, in the event that I am wrong in my views on that jurisdictional issue, I set out below the view I would have taken on the review in the event that I had decided I had jurisdiction to conduct a review of Judicial Registrar Farrell’s interlocutory judgment and order.

THE REVIEW

On the review I am required to consider afresh the notices of motion by the applicants for further discovery.  See Shackley at 747 per North J where his Honour traverses the relevant authorities.

The notices of motion appear not to have been accompanied by supporting affidavit material.  The Human Resources Manager of WA Petroleum swore an affidavit in opposition, dated 9 June 1997.  The affidavit annexed two documents with portions thereof “covered up”.  The “covered up” parts were alleged not to “relate to the matters in question in this action”.  It was said in the affidavit as to the first document that it contained “names and ranking information of other ... employees considered for redundancy, which information has not generally been provided to those employees”.  This is the material in respect of which Judicial Registrar Farrell ordered further discovery.  WA Petroleum’s concern about providing full discovery in respect of the redundancy process it engaged in appears from the affidavit to have flowed from a concern that employees other than the applicants might learn that they were included in the list of candidates for redundancy.

The objection to providing full discovery in respect of the redundancy process is one based on a fear that persons not parties to the applications before the Court might learn that they were considered for redundancy and that this may embarrass their employer in its future relationship with them.  Such an objection is hardly a cogent basis for keeping from the applicants documentation which is on any rational view plainly relevant to the issue as to whether or not WA Petroleum had a valid reason for selecting the applicants for redundancy.  That issue may only be sensibly and completely addressed by an analysis of the circumstances as to why it was that the applicants and not other workers were chosen for redundancy.  Documents or parts of documents which deal with the application of the relevant process to the other workers are relevant to a determination of whether the applicants had their employment terminated for a valid reason.

It is beyond doubt that an employer when it makes employees redundant must, under the legislation as it stood at the relevant time, show that the redundancy of each individual employee made redundant occurred for some reason that is objectively justifiable.  See Kerr at 473-477, Nettlefold v Kym Smoker Pty Ltd (1996) 69 IR 370, 372-373, Thomas v Lynch, (Wilcox J, IRCA, 20 Dec 1996, unreported), and Western v Union Des Assurances De Paris, (Madgwick J, IRCA, 17 Dec 1996, unreported).

Consequently, it follows that it would have been appropriate to order, had I had the jurisdiction to do so, that in each application for review the respondent make further discovery of any document relating to the ranking according to the selection criteria of all employees who were considered for the positions for which each applicant was considered.  That order is in substance the order which the Judicial Registrar made.

I certify that this and the preceding seven (7) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall

Associate:

Dated:            24 July 1997

Representative of the Applicant:	M Llewellyn
Counsel for the Respondent:	S. Kenner
Solicitor for the Respondent:	Mallesons Stephen Jaques
Date of Hearing:	27 June 1997
Date of Order:	27 June 1997
Date of Publication of Reasons:	24 July 1997