Ecob v Tongue - [1988] FCA 864

IN TIE FEDERAL COURT OF AUSTRALIA 1
)

NEW SOUTE WALES DISTRICT REGISTRY ) No. I 1 of 1986

)

DIV SION INDUSTRIAL )

Between: ERNEST C&ARLES ECOB
Applicant

And : CECIL TONGUE
-
Respondent

CORAM: Einfeld J.

- DATE: 11 July 1988

PLACE: Sydney
This matter is part heard and the respondent employer has applied for

leave to appeal from the expressions of opinion which I published on the

relevant legal issues on 23 May 1988. Those views were given subject to

a number of factual assumptions, there being no agreement manifest at or

since the hearing on the facts which would found the views expressed.

The respondent argues that the relevant facts are agreed on the pleadings and affidavits. Bowever, the circumstances concerning the

facts are outlined in my earlier published opinion. They are underlined
by the unsatisfactory exchange of correspondence between the parties
since the hearing, at one point involving the Court. They have again
been emphasised by statements made today by the solicitor for the
applicant. Agreement seems to me to be far from the fact. This type of

matter is not appropriate to be dealt with "on the pleadings" even if,
as I doubt, they cover all the relevant matters. It is simply not
reasonable for the Court to be required to fossick through a sizeable
collection of filed documentation to try to find the attitude of each of

the parties on each individual matter that needs to be proved in a
matter such as this. The applicant has always indicated that some facts

at least are disputed, and both parties agreed to my directions for the
filing of agreed facts and other matters given at the conclusion of the
hearing.

The respondent's first submission today is that I should take no further
steps to resolve the factual issues. The respondent, having chosen to
seek leave to appeal from what amounts merely to an expression of

opinion on the law on the assumption that certain facts are ultimately

established, should certainly be entitled to pursue that application. I
make no further comment about it.
It is obvious that between now and the date when the application for

leave to appeal is to be heard in about two weeks time, no trial of the

factual issues can occur, and I am informed this morning that no

agreement has yet been reached. I therefore accede to the respondent's

request that

I take no further steps at this stage with regard to the

facts. I point out that in the event that the application for leave to

appeal fails, there

will still need to be, as there has always needed to

be, either agreement on the relevant facts or a trial of the factual

issues. In that matter

I am at present part heard.

The second application which the respondent makes today is that

I make

formal orders and declarations to give effect to the views

which

expressed on 23 May. It is true…

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: [1988] FCA 864
Decision Date: 11 Jul 1988

CaseChat Overview and Summary

In the Federal Court of Australia, the case of Ecob v Tongue involved a dispute between Ernest Charles Ecob, the applicant, and Cecil Tongue, the respondent. The case was heard in the New South Wales District Registry, with Justice Einfeld presiding over the matter. The respondent, Cecil Tongue, sought leave to appeal from the opinions expressed by Justice Einfeld on 23 May 1988 regarding certain legal issues in the case. The court was required to determine whether it should proceed with resolving factual issues, whether formal orders should be made, and whether Justice Einfeld should disqualify himself from further considering the matter.

Justice Einfeld declined to take further steps to resolve the factual issues as there was no agreement on the facts between the parties. He also stated that he was not in a position to make any orders or declarations as the facts had not been fully determined. Justice Einfeld declined the application for his disqualification, stating that there was no basis for such an application. He further refused a request for an adjournment, stating that there had been ample time for the parties to obtain necessary instructions and that the Court could not be played with in this manner. The further steps to be taken in the matter would be considered after the application for leave to appeal had been heard.

The court's decision was that it would not take further steps to resolve the factual issues, make any formal orders or declarations, or disqualify Justice Einfeld from further considering the matter. The respondent's request for an adjournment was also refused. The case was effectively put on hold pending the outcome of the application for leave to appeal.

Orders