General Motors - Holdens Ltd v Noack, P.m - [1986] FCA 129

I '

CATCHWORDS

'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

ON APPEAL FROM A SINGLE JUDGE OF

THE FEDERAL COURT OF AUSTRALIA	l.,;
i'
1:

BETKEEN:	GENERAL	MOTORS-HOLDn'J'S	I
LIMITED	l
L '
.

Applicant

I -

-	MJD :	PAUL MICHAEL NOACK	l.
, '

Respondent

MINUTE OF ORDER

, 1

l	JUDGES	MAKING	ORDER:	SMITHERS,	LOCKHART	and	NEAVES JJ.	L. .
,>

I	-
I

DATE OF ORDER:

7 MARCH 1986

i	WHERE MADE:	MELBOURNE
~

I	L.,'
I	L
i.
I	,."

THE COURT

ORDERS

THAT:

..'.

. .~

, .

L .~

The

application

for

leave

'appeal

dlsmlssed

incompetent.

2 .	In so far	as	the	application	for	leave	to	appeal	be	treated	I
r ,

as if it were an	appeal from the decision of the Honourable	li
. -
1 :

Mr. Justice Forster	in proceedings SA No. 7 of 1985 that	i d
i:

appeal be dismissed as incompetent.

1 :

- .

t ,

I :

Settlement and entry of orders 1s dealt wlth in Order 36

I ,

the Federal Court Rules.

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.

l i

IN THE FDERAL COURT OF AUSTRALIA

)

SOUTH AUSTFLALIA DISTRICT REGISTRY )

No. SA 10 of 1985

)

DIV SION

INDUSTRIAL

)

ON APPEAL FROM A SINGLE JUDGE OF

i	THE FEDERAL. COURT OF AUSTRALIA
I

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

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.

Continue reading General Motors - Holdens Ltd v Noack, P.m

Details

AGLC: General Motors - Holdens Ltd v Noack, P.m [1986] FCA 129
Case: [1986] FCA 129
Decision Date: 3 Jul 1986

CaseChat Overview and Summary

In the case of General Motors-Holdens Ltd v Noack, the Full Court of the Federal Court of Australia dismissed an application for leave to appeal against a decision of a single judge in an industrial relations matter. The applicant, General Motors-Holdens Ltd, had sought leave to appeal against a decision of Forster J, who had granted the respondent, Paul Michael Noack, leave to amend an information and had refused to order discovery against the respondent. The Full Court, consisting of Smithers, Lockhart, and Neaves JJ, held that the application for leave to appeal was incompetent as the question of leave to appeal must be decided by either a single judge or a Full Court, whichever is first seized of the matter. The Full Court followed the decision in Reid v. Nairn, which held that there is no appeal from the decision of a single judge refusing leave to appeal.

The legal issues before the court were whether the respondent could make a second attempt to appeal by seeking leave from the Full Court after having already sought and been refused leave to appeal by a single judge, and whether an appeal to the Full Court from the refusal to grant leave to appeal was competent. The court held that the respondent's application for leave to appeal was incompetent as it was a second attempt to appeal and that an appeal to the Full Court from the refusal to grant leave to appeal was not competent. The court also held that there was no order as to costs. The Full Court dismissed the application for leave to appeal and, in so far as the application was treated as an appeal from the decision of Forster J, that appeal was also dismissed.

Orders