General Motors - Holdens Ltd v Noack, P.m

[1986] FCA 129

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CATCHWORDS

- Pr 'actic e and Procedure - Appeals - leave to appe a1 refused by single

Judge - whether further application to Full Court for leave to appeal

competent - whether appeal to Full Court from refusal to grant leave

competent.

Federal Court of Australm Act. 1476: zuh-58 , 2 4 ( 11, 24t LA) and 2 5 ( 2 ) ,

Federal Court Rules: Order 52 rule 10.

Conciliation and Arbitration Act 1904: paras. 5(l)(a), 5(l)(f).

Reid v. Nairn (1985) 60 A.L.R. 419

Chamberlain v. 8. (1983) 46 A.L.R. 493

GENERAL MOTORS-HOLDEN'S LIMITED	V. PAUL MICHAEX NOACK
SA 10 of 1985

CORAM: SMITHERS, LOCKHART and NEAVES JJ.

MELBOURNE

7 MARCH 1986

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ON APPEAL FROM A SINGLE JUDGE OF

THE FEDERAL COURT OF AUSTRALIA	l.,;
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BETKEEN:	GENERAL	MOTORS-HOLDn'J'S	I
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Applicant I -

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-	MJD :	PAUL MICHAEL NOACK	l.
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! Respondent I ,

I	MINUTE OF ORDER	.-
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l	JUDGES	MAKING	ORDER:	SMITHERS,	LOCKHART	and	NEAVES JJ.	L. .
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DATE OF ORDER: 7 MARCH 1986

i	WHERE MADE:	MELBOURNE
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I THE COURT ORDERS THAT:

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1. The application for leave to 'appeal be dlsmlssed as i

incompetent.

2 .	In so far	as	the	application	for	leave	to	appeal	be	treated	I
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as if it were an	appeal from the decision of the Honourable	li
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Mr. Justice Forster	in proceedings SA No. 7 of 1985 that	i d
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appeal be dismissed as incompetent.

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m: Settlement and entry of orders 1s dealt wlth in Order 36 of I ,

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the Federal Court Rules.

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IN THE FEDERAL COURT OF AUSTRALIA ) )

SOUTH AUSTRALIA DISTRICT REGISTRY 1	No.	SA 10 of 1985
INDUSTRIAL DIVISION

ON APPEAL FROM A SINGLE JUDGE OF

THE FEDERAL COURT OF AUSTRALIA

BEZ?TE!ZN:	GENERAL	MOTORS-HOLDEN'S
LIMITED

Applicant

m: PAUL MICHAEL NOACK

Respondent

CORAM: SMITHERS, LOCKHART and NEAVES JJ.

7 MARCH 1986

REASONS FOR JUDGMENT

SMITHERS J.

I will ask Mr.. Justice Lockhart to deliver the first

judgment.

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IN THE FDERAL COURT OF AUSTRALIA )

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l SOUTH AUSTFLALIA DISTRICT REGISTRY ) No. SA 10 of 1985

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DIV SION INDUSTRIAL )

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ON APPEAL FROM A SINGLE JUDGE OF

i	THE FEDERAL. COURT OF AUSTRALIA
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BETWEEN :	GENERAL	MOTORS-HOLDDJ'	S
LIMITED

Applicant

m: PAUL MICHAEL NOACK

Respondent

CORAM: SMITHERS, LOCKHART and NEAVES JJ.

7 MARCH 1986

REASONS FOR JUDGMENT

LOCKHART J.

On 15 May 1985 Paul Michael Noack, the prosecutor, lodged LWO

informations in this Court under the Conciliation and Arbitration Act

1904 ("the Act") and caused two summonses to be issued to General

Motors-Holden's Limited, the defendant. Each information and summons

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1 alleged matters relevant to the dismissal of the prosecutor from the

I	defendant's employ. The information and summons in proceedings SA No.
I	7 of 1985 alleged that the dismissal was contrary to para. 5(l)(a1 of
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l	the Act. The information and summons in proceeding SA No. 8 of 1985

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! alleged that the dismissal was contrary to para. 5(l)(f) of the Act.

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I	In each of the matters notices of	motion were filed by the
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I	defendant seeking orders that either of the proceedings be struck out,
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that certain particulars be delivered by the prosecutor and that he

give discovery of documents. Certain other orders were sought whlch

it is unnecessary to mention. The motions were heard by a single

Judge of this Court, Forster J., on 17 September 1985.

At the outset of the hearing counsel for the prosecutor

sought leave to amend the Information in proceeding No. 7 of 1985 by

filing an amended information and summons. The application for leave

was opposed by the defendant. After argument the learned Judge said

that he would permlt an amended informatlon to be filed and the

consequential amended summons to be issued in matter No. 7. He then

granted leave to the prosecutor to wlthdraw the information in matter

No. E of 1985.

After hearing further argument he Judge ordered the

prosecutor to provide further and better partlculars of certain of the

allegations. Counsel for the defendant sought an order that the

prosecutor give discovery of documents, and his Honour, after

argument, refused that application. His Honour did not then give

reasons for his decisions granting leave to amend and refusing

discovery, but said he would give reasons in writing shortly

thereafter.

Later that same day ( 1 7 September) counsel for the defendant

applied to the Judge, pursuant to Order 52 rule 10 of thls Court's

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Rules, for leave to appeal both from the order granting the prosecutor

leave to amend the information and summons in proceeding No. 7 of

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1985, and from the Judge's refusal to order discovery agalnst the

prosecutor.

After hearing argument his Honour delivered ex tempore

reasons for judgment and refused leave to appeal. On 25 September hls

Honour delivered the written reasons for judgment which	he had
foreshadowed on 17 September.

S There is perhaps some question whether the orders presently

relevant were made on 17 or 25 September because his Honour, when

delivering his written reasons for -judgment on 25 September,

accompanied them, as is this Court's practice, with a Mlnute of the

Court's order and Catchwords. That minute referred to the date on

which the orders were made as being 25 rather than 17 September. The

order was taken out in October 1985 and after it had been sealed in

the Registry, the order recorded its date as	25 September. However,
the reasonable interpretation of the events	is that the orders were

made in fact on 17 September and the reasons for those orders were

given on 25 September. This is not only, I think, the correct

construction of the relevant events, it is also consistent wlth the

language of the Judge	in his wrltten reasons for judgment dellvered on
25 September.

On 25 September upon the application of the defendant his

Honour made a further order in these terms:

"I abridge tune and grant the defendant seven days

in which to lodge an appeal."

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It is not perhaps entirely clear how this order came to be made, but

no doubt It was because as the time was fast approachlng when the

matter had been set down for a lengthy trial his Honour took the view

that, if the defendant wished to assert any right of appeal which it

might have against the orders that e had made, it should do so within

a time shorter than that limited by the Rules, so that if no steps

were taken to prosecute any such appeal the trial could have

proceeded.

The defendant filed in this Court a document itled

"Application for Leave to Appeal". A scrutiny of that document shows

that the defendant is seeking leave to apFeal from the judgment of

Forster J. given on 25 September 1985 and, in so far as It may be

necessary, leave to appeal from his Honour's	~udgment	made on 17
September 1985.

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In view of what I have said thus far It is only necessary to

consider the application as relating to the orders made on 17

September. The prosecutor subsequently filed a notice of motion in

this Court seeking orders that, in so far as the application by the

defendant be treated as if It were an appeal from the decision of

Forster J., that purported appeal should be dismissed as incompetent.

It is thus the application of the defendant and the notice of

motion of the prosecutor that have come before this Full Court today.

An appeal from the judgment of a single Judge of this Court is

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governed by sub-ss. 24(11 and (1A) and 2 5 ( 2 ) of the Federal Court of

Australia Act 1976, and by the provisions of Order 52 rule 10. The

question arises whether the defendant, having already sought and been

refused leave to appeal, can make a second- attempt to appeal by

seeking leave from this Full Court.,

A Full Court of this Court, differently constituted,

considered this question in Reid v. Nairn (1985) 60 A.L.R. 419. - .. In

that case, it appears that there was before the Court both an

application for what was called special leave to appeal against an

order granting discovery by a single Judge of the Court and an appeal

against his Honour's refusal to grant special leave to appeal from his

order. The order of the Full Court was that the appllcation for

special leave to appeal be dismissed as incompetent and that the

appeal from the refusal of the single Judge to grant special leave to

appeal be dismissed as incompetent. The Full Court in that case held

that the sections of the Federal Court of Australia Act 1976, to which

I have referred, when read together, as they must be, provide that the

question of leave to appeal is to be decided by either a single Judge

or a Full Court, whichever is first seized of the matter. They are

true alternatives and not progressive. Thus, there was no appeal in

that case from the decision of the single Judge refusing leave to

appeal. Hence, a party, wishing to appeal from an interlocutory

order, must elect whether a Judge or a Full Court be first approached.

I should add that it is agreed in the case before us that the relevant

orders are all interlocutory orders.

IN THE! FEDERAL COURT OF AUSTRALIA	) )
SOUTH AUSTRALIA DISTRICT REGISTRY	) No. SA 10 of 1985
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DIVISIO INDUSTRIAL )

ON APPEAL FROM A SINGLE JUDGE OF

THE! FEDERAL COURT OF AUSTRALIA

BFIWEEN:	GENERAL MOTORS-HOLDEN’S
LIMITED

Applicant

m: PAUL MICHAEL NOACK

Respondent

CORAM: Smithers, Lockhart and Neaves JJ.

D=: 7 March 1986

REASONS FOR JUDGMENT

Neaves J. ! I

I agree with what has been said and I do not wish to

add anything.

I certify that this page

is a true copy of the

Reasons f r Judgment

herein of the Honourable

Neaves.	Justice	Mr	t	I
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Associate	I .
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Dated: 7 March 1986

IN THE FEDERAL COURT OF AUSTRALIA ) )

SOUTH AUSTRALIA DISTRICT REGISTRY ) No. SA 10 of 1985

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DIV SION	INDUSTRIAL	)
ON APPEAL F R O M A SINGLE JUDGE OF
THE FEDERAL COURT OF AUSTRALIA

BETWEEN: GENERAL MOTORS-HOLDEN'S

LIMITED

Applicant

- AND: PAUL MICHAEL NOACK

, Respondent

CORAM: SMITHERS, LOCKHFRT and NEAVES JJ.

7 MARCH l986

REASONS FOR JUDGMENT

SM1THEP.S J.

I agree with what has been said. I say nothing as to the

correctness or otherwise of the decision in Reid v. Nairn other than

that I am not convinced that that decision s wrong.

The order will therefore be as proposed, namely, that the

application be dismissed and in so far as that application be treated

as an appeal from the decision of Forster J. that appeal be dismissed.

There will be no order as to costs.