Cugura v Frankston City Council (No.4)
[2012] FMCA 708
•2 August 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CUGURA v FRANKSTON CITY COUNCIL (No.4) | [2012] FMCA 708 |
| INDUSTRIAL LAW – Practice and Procedure – general protections court application – substantive application dismissed – costs not yet determined – appeal filed before costs determined – matter adjourned – interlocutory order – interlocutory order for stay set aside – matter adjourned to date to be fixed. |
| Fair Work Act 2009 (Cth), s.570 Federal Magistrates Court Rules 2001 (Cth), r.16.05, Sch.1 Federal Court of Australia Act1976 (Cth), s.29 |
| Cugura v Frankston City Council (No.1) [2012] FMCA 340 Cugura v Frankston City Council (No.2) [2012] FMCA 530 Cugura v Frankston City Council (No.3) [2012] FMCA 614 Pierson’s Pro-Health Pty Ltd & Ors v Silvex Nominees Pty Ltd & Anor (No.3) [2010] FMCA 250 |
| Applicant: | LUDWIG LEWIS CUGURA |
| Respondent: | FRANKSTON CITY COUNCIL |
| File Number: | MLG 1724 of 2010 |
| Judgment of: | O’Sullivan FM |
| Hearing date: | 2 August 2012 |
| Date of Last Submission: | 2 August 2012 |
| Delivered at: | Melbourne |
| Delivered on: | 2 August 2012 |
REPRESENTATION
| Counsel for the Applicant: | Ms Aufgang |
| Counsel for the Respondent: | Ms Dawson |
ORDERS
Pursuant to Rule 16.05(2) of the Federal Magistrates Court Rules 2001, order 2 of the orders made 16 July 2012 be set aside.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1724 of 2010
| LUDWIG LEWIS CUGURA |
Applicant
And
| FRANKSTON CITY COUNCIL |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
Before the Court today for mention are proceedings between Ludwig Cugura (“the applicant”) and Frankston City Council (“the respondent”).
The background to this matter is set out in three decisions of the Court, as currently constituted. Those decisions are Cugura v Frankston City Council(No.1) [2012] FMCA 340, Cugura v Frankston City Council (No.2) [2012] FMCA 530 and most recently Cugura v Frankston City Council(No.3) [2012] FMCA 614.
For the reasons set out in the latter decision, on 16 July 2012, the Court made two orders. Those orders were:
“(1)That the issue of the respondent’s costs under schedule 1 of the Federal Magistrates Court Rules 2001 be listed for hearing on a date to be fixed.
(2)Order 1 be stayed, pending the outcome of the appeal filed by Ludwig Cugura on 10 July 2012.”
At the time that the reasons for decision in Cugura v Frankston City Council (No.3) [2012] FMCA 614 were published, the Court had not considered section 29 of the Federal Court of Australia Act1976. That section provides:
“(1) Where an appeal to the Court from another Court has been instituted:
(a) the Court or a Judge or a Judge of that Other court, not being the Federal Magistrates Court or a Court of summary jurisdiction, may order on such conditions, if any, as it or he or she thinks fit, a stay of all or any proceedings under the judgment appealed from; and
(b) the Court or a Judge may by order, on such conditions, if any, as it or he or she thinks fit, suspend the operation of an injunction or other order to which the appeal in whole or in part relates.
(2)This section does not affect the operation of any provision made by or under any other Act or by the Rules for the Court for or in relation to the stay of proceedings.”
When that section of the Federal Court of Australia Act1976 (Cth) came to the Court’s attention a notice of listing was then issued to the parties and this matter was listed for mention today. Today Ms Aufgang of Counsel appeared on behalf of the applicant, and Ms Dawson, Solicitor appeared on behalf of the respondent.
At the commencement of today’s mention, the Court set out, in brief background, the reason why the matter was listed for mention today, and asked the parties what, if anything, they wished to say in relation to order 2 of the orders of 16 July 2012. Each of the parties had an opportunity to make submissions on the issue.
Rule 16.05 of the Federal Magistrates Court Rules2001 provides as follows:
“(1) The Court may vary or set aside its judgment or order before it has been entered;
(2) The Court may vary or set aside its judgment or order after it has been entered if:
(a)the order is made in the absence of a party; or
(b) the order is obtained by fraud; or
(c)the order is interlocutory; or
(d)the order is an injunction or for the appointment of a receiver; or
(e)the order does not reflect the intention of the Court; or
(f)the party in whose favour the order is made consents.
(3)This rule does not affect the power of the Court to vary or terminate the operation of any order by a further order.”
As is clear from the reasons in Cugura v Frankston City Council (No.3) [2012] FMCA 614 it is arguable that the order 2 referred to at paragraph [3] above didn’t reflect the intention of the Court.[1] However it’s not disputed today that the orders of 16 July 2012 were clearly interlocutory orders as they do not determine the substantive rights of the parties, and the orders are in no way, shape, or form a final order. Finally not surprisingly given s.29 of the Federal Court of Australia Act 1976 the parties don’t oppose that order (order 2 of the orders of
16 July 2012) being set aside.
[1] see paras 9-11 in Cugura v Frankston City Council (No.3) [2012] FMCA 614.
Given s.29 of the Federal Court of Australia Act 1976 and the broad powers available to the Court under the Rules, in the face of the parties’ position in relation to order 2 of the orders of 16 July 2012 and whether it is pursuant to Rule 16.05(2)(c) of the Rules as the order was an interlocutory order[2] or because pursuant to Rule 16.05(2)(f) of the Rules the parties consent to the order being vacated,[3] I will, pursuant to Rule 16.05(2) of the Rules, make an order this day vacating order 2 of the orders of 16 July 2012. I so order.
[2] see Pierson’s Pro-Health Pty Ltd & Ors v Silvex Nominees Pty Ltd & Anor (No.3) [2010] FMCA 250 at paras 19-20.
[3] see Pierson’s Pro-Health Pty Ltd & Ors v Silvex Nominees Pty Ltd & Anor (No.3) [2010] FMCA 250 at paras 23-26.
Now that means the matter will be listed for hearing to determine the question of costs to be ordered on a date to be fixed. This does not prevent any further application being made to the Court by either party.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of O’Sullivan FM
Date: 16 August 2012
4
3