Gray, Rodney John v Australian Liquor Hospitality and Miscellaneous Workers Union
[1998] FCA 745
•26 JUNE 1998
FEDERAL COURT OF AUSTRALIA
PRACTICE AND PROCEDURE - substantive application made pursuant to s 253ZJ of Workplace Relations Act 1996 (Cth) (“the Act”) - application required by s 253ZJ(4) of the Act and r 98J and Form 11A of the Workplace Relations Regulations to be in specified form and contain mandatory particulars - application failed to contain mandatory particulars - application dismissed in previous judgment - motion to vary or set aside orders dismissing application and amend application - power to set aside orders before entry of judgment - basis of exercising such power - whether application is a pleading - whether amendment to application should be allowed - principles to be applied when amendment of pleadings is sought - whether s 22 of Federal Court of Australia Act 1976 (Cth) allows resurrection of incompetent proceedings where proper opportunities to amend available prior to Court reserving judgment.
INDUSTRIAL LAW - whether failure in application to provide mandatory particulars can be described as a “difficulty” for the purposes of s 253ZV of the Act - meaning of the term “difficulty” in s 253ZV - costs application - whether the term “proceeding” in s 347(1) of the Act refers to substantive proceeding or procedural motion brought within the matter - test for awarding costs in s 347.
WORDS AND PHRASES - “difficulty” - “proceeding”
Workplace Relations Act 1996 (Cth), ss 253ZJ, 253ZV, 347
Federal Court of Australia Act 1976 (Cth), s 22
Workplace Relations Regulations, r 98J, Form 11A
Federal Court Rules, O 35 r 7, O 1 r 4, O 14 r 16, O 4 r 6
Rodney John Gray v Australian Liquor Hospitality And Miscellaneous Workers Union (Marshall J, 4 June 1998, unreported), referred to
Qantas Airways Ltd v Cameron (No.2) (1996) 68 FCR 367, applied
Autodesk Inc v Dyason (No.2) (1993) 176 CLR 300, applied
Lindon v Commonwealth (No.2) (1996) 136 ALR 251, distinguished
Hyster Australia Pty Ltd v Anti-Dumping Authority (No.2) (1993) 41 FCR 259, followed
Thomson Australian Holdings Pty Ltd v Trade Practices Commission (1981) 148 CLR 150, discussed
Re McJannet; ex parte Minister for Employment, Training & Industrial Relations (Q) (1995) 184 CLR 620, applied
Andrews v Uniting Church in Australia Frontier Services (t/a Old Timers) (1995) 60 IR 437, followed
R v Moore; ex parte Federated Miscellaneous Workers’ Union of Australia (1978) 140 CLR 470, applied
RODNEY JOHN GRAY v AUSTRALIAN LIQUOR HOSPITALITY AND MISCELLANEOUS WORKERS UNION VI 1294 OF 1997
MARSHALL J
MELBOURNE
26 JUNE 1998
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 1294 of 1997
BETWEEN:
RODNEY JOHN GRAY
APPLICANTAND:
AUSTRALIAN LIQUOR HOSPITALITY AND MISCELLANEOUS WORKERS UNION
RESPONDENTJUDGE:
MARSHALL J
DATE OF ORDER:
26 JUNE 1998
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
The applicant’s notice of motion dated 12 June 1998 be dismissed.
There be no order as to costs.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 1294 of 1997
BETWEEN:
RODNEY JOHN GRAY
APPLICANTAND:
AUSTRALIAN LIQUOR HOSPITALITY AND MISCELLANEOUS WORKERS UNION
RESPONDENT
JUDGE:
MARSHALL J
DATE:
26 JUNE 1998
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
On 12 June 1998 a notice of motion was filed in this matter. It was purportedly filed on behalf of “Rodney Gray & Others” who are described in the notice of motion as “the Applicants”. The notice of motion seeks orders pursuant to O 35 r 7 of the Federal Court Rules for the setting aside of an order made by the Court in this proceeding on 4 June 1998. The proceeding is an application made in the name of Rodney John Gray pursuant to s 253ZJ of the Workplace Relations Act 1996 (Cth) (“the Act”). On 4 June 1998 the Court delivered its reasons for judgment in the proceeding and made an order that the application be dismissed. See Rodney John Gray v Australian Liquor Hospitality And Miscellaneous Workers Union (Marshall J, 4 June 1998, unreported). In those reasons for judgment the Court observed that, although the application was made by Mr Gray, it was in effect an application by the members of the committee of management of the relevant constituent part of the Australian Liquor Hospitality and Miscellaneous Workers Union (“the Union”). Perhaps that is why the notice of motion is described as being made by “the applicants”, although leave has not been sought to join additional applicants. However, for present purposes, nothing turns on that issue and the Court will treat the notice of motion as made by Mr Gray on his own behalf and on behalf of other members of the relevant committee of management.
BACKGROUND
The background to this notice of motion is sufficiently contained in the reasons for judgment of the Court of 4 June 1998. As appears from those reasons for judgment the substantive application was dismissed because it failed to comply with the mandatory requirements imposed by s 253ZJ(4) of the Act and Regulation 98J of the Workplace Relations Regulations.
ORDER 35 RULE 7
Order 35 r 7(1) of the Federal Court rules provides that:-
“The Court may vary or set aside a judgment or order before it has been entered.”
The order of the Court of 4 June 1998 has not been entered. Accordingly the Court has jurisdiction to set aside the order if it is appropriate to do so. It is not disputed that the jurisdiction is one which should be exercised with “great caution”. See Qantas Airways Ltd v Cameron (No.2) (1996) 68 FCR 367, 368 (per Davies J). See also Autodesk Inc v Dyason (No.2) (1993) 176 CLR 300, 301-302, 317.
CAMERON
In Cameron the respondent on the appeal sought to have a judgment of the Full Court of this Court set aside and judgment of the trial judge restored. It was claimed that the Full Court had misapprehended “the manner in which the case was put below”. See at 368 per Davies J. In effect it was contended that the Full Court had decided an appeal on a ground which was not in substance argued before the Full Court. It has not been submitted, in this matter, that the only basis upon which an order may be set aside is on the ground raised in Cameron. However, I pause now to deal with one submission raised by counsel for Mr Gray. This submission was to the following effect; at the hearing of the substantive application, Mr Gray did not apprehend that the application would be dismissed in the event that the Court upheld the contentions regarding the competency of the application, upon which the Union was ultimately successful. In my view, this submission is not a meritorious one. At p 132 of the transcript of the proceedings heard on 28 May 1998 the Court invited Mr Gray’s counsel to respond to a submission that failure to comply with s 253ZJ(4) of the Act was “fatal to the application”. More importantly at p 33 of the transcript of proceedings on 25 May 1998, counsel for the Union submitted that “the application should be dismissed”. I therefore reject the submission made on behalf of Mr Gray that the order of 4 June 1998 should be set aside on the basis that his client did not apprehend that the application would be dismissed should the respondent’s submission on the competency of the application be upheld.
THE “PLEADING” ISSUE
Counsel for Mr Gray submitted that the Court essentially concluded on 4 June 1998 that there were inadequacies in the application. He contended that the body of the application, that is, the particulars required by Form 11A, are similar to particulars that would be found in a statement of claim. Consequently, so the argument ran, the Court, instead of dismissing the application, should have struck out the offending parts of the application and permitted the applicant to amend the application to overcome its shortcomings. Counsel referred to a “common practice” of Courts allowing litigants to re-plead. He relied on the observations of Kirby J in Lindon v Commonwealth (No.2) (1996) 136 ALR 251, 256 that:
“If, notwithstanding the defects of pleadings, it appears that a party may have a reasonable cause of action which it has failed to put in proper form, a court will ordinarily allow that party to reframe its pleading.”
I do not believe that the above observations of Kirby J in Lindon are relevant to this notice of motion. An application pursuant to s 253ZJ of the Act is not a pleading. “Pleading” is defined in O 1 r 4 of the Federal Court Rules as follows:
“ ‘pleading’ includes a statement of claim and a cross-claim to which Order 5 applies and subsequent pleadings, but does not include an application, notice of motion or affidavit;” (emphasis added)
The Federal Court Rules are redolent with references to the staying or the dismissing of a proceeding, which is ordinarily an application: see, O 10 r 7, O 12 r 23, O 15 r 16, O 16 r 9, O 20 r 2, O 28 r 5 and O 35 r 6. On the other hand O 14 r 16 applies for the striking out of “the whole or any part of the pleading”.
Counsel for Mr Gray submitted that his client was required to commence proceedings as he had done because of the specific provision in s 253ZJ(4) of the Act requiring the application to contain such information as is prescribed. He submitted that the application was effectively a statement of claim. He referred to the fact that Form 11A requires 13 particulars to be set out. I do not share his view that a consequence of that is that these particulars should be equated with particulars in a statement of claim. The application in this matter was accompanied by an affidavit of Mr Gray. That was the applicant’s choice. He was equally entitled to file a statement of claim to accompany the application. Order 4 r 6 of the Federal Court Rules provides:
“The applicant shall file and serve with the application either an affidavit or a statement of claim, whichever is appropriate.
(2) The affidavit or statement of claim shall show -
(a) the nature of the applicant’s claim; and
(b) the material facts on which it is based.”
To describe the particulars in the application as set out in Form 11A as being in the nature of particulars in a statement of claim is to misdescribe the effect of s 253ZJ(4) of the Act and Regulation 98J. As indicated in the reasons for judgment of 4 June 1998 the requirement to provide such particulars is mandatory and a failure to do so is fatal to the application. Once the matter has been heard and judgment given, it is inappropriate, in applications under s 253ZJ of the Act, to allow continual amendments until the applicant or applicants provide an application which does not offend s 253ZJ(4) of the Act. Additionally, any such amendments may require further advertising of the application, especially in the interests of creditors of the amalgamated organisation, who may be affected by what is disclosed. The vice in allowing continual amendments is demonstrated by the Union’s contention, that even if such amendments as foreshadowed are granted, the application remains fatally flawed. Even on the assumption that one could regard the application herein as a statement of claim, I would not allow an amendment, as it would be undesirable at this late stage. I agree with the following observations of Hill J in Hyster Australia Pty Ltd v Anti-Dumping Authority (No.2) (1993) 41 FCR 259, 263 where his Honour said:
“Generally speaking, the courts have taken the view that it is in the interests of justice that parties be permitted to amend their pleadings so that the real matters in issue between them may be litigated. However, courts are reluctant to permit an amendment to pleadings after evidence has closed in the interests of finality of litigation, notwithstanding the provisions of s 22. This is not to say that amendments will always be refused or that in any way the refusal should be seen as punishing an applicant for not raising the matter earlier. It would be highly unusual for a court to permit an amendment to a statement of claim to be made not only after evidence has concluded but also after argument is concluded and judgment has indeed been given.”
SECTION 22 FEDERAL COURT ACT
Counsel for Mr Gray submitted that the relief sought in the notice of motion was consistent with s 22 of the Federal Court of Australia Act 1976 (“the Federal Court Act”) which provides that:
“The Court shall, in every matter before the Court, grant, either absolutely or on such terms and conditions as the Court thinks just, all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward by him or her in the matter, so that, as far as possible, all matters in controversy between the parties may be completely and finally determined and all multiplicity of proceedings concerning any of those matters avoided.”
I reject that contention. I accept the submission of counsel for the Union that s 22 of the Federal Court Act, by referring to “a legal or equitable claim properly brought forward”, does not permit amendments to applications fatally flawed, for failure to comply with mandatory requirements, prior to the delivery of judgment dismissing the application. There is no warrant in s 22 of the Federal Court Act for the resurrection of incompetent proceedings where all proper opportunities to amend have been available prior to the closing of the applicant’s case and final submissions. As the High Court said in Thomson Australian Holdings Pty Ltd v Trade Practices Commission (1981) 148 CLR 150, 161, the effect of s 22 of the Federal Court Act:- “... is to enable the Court to dispose of all rights, legal and equitable, in the one action, so far as that is possible ...”. The section does not compel the Court to resurrect by amendment after judgment a fatally flawed application, simply to save the applicant the trouble of filing another application in proper form.
SECTION 253ZV
Section 253ZV of the Act provides that:
“(1) If any difficulty arises in relation to the application of this Division to a particular matter, the Court may, on the application of an interested person, make such order as it thinks proper to resolve the difficulty.
(2) An order made under subsection (1) has effect despite:
(a) any Commonwealth, State or Territory law; or(b)the rules of an organisation or any association proposed to be registered as an organisation.”
Counsel for Mr Gray submitted that the section was an appropriate vehicle for the Court to use to remedy the difficulty caused by the failure of his client to include in the application one of the required particulars, that is, the financial accounts of the Union. I reject that submission. In my view, it is a misdescription to describe a failure in an application to comply with a mandatory particular as a “difficulty”. A failure to provide a mandatory particular is much more than a mere difficulty. Further, s 253ZL(1)(a) of the Act provides that an application for ballot will only be granted where it is “validly made”. Section 253ZV of the Act cannot be called in aid to make valid an invalid application on the basis that the invalidity is a mere “difficulty”. Section 253ZV of the Act was designed to assist the Court in dealing with any procedural problem or difficulty which may arise under the Division 7A of Part IX of the Act for which no provision is made in the Act, the Regulations or the Federal Court Rules. For example, the method of notification of creditors or other affected persons of the fact of the making of the application, may involve the Court making orders, as North J did at an early stage of these proceedings, to overcome a “difficulty” with the process of notification which may otherwise have arisen. A difficulty may also arise with respect to the provision, pursuant to s 253ZN of the Act, of information to electoral officials which may affect their capacity to conduct a ballot. The Court may intervene to overcome such a difficulty by ordering that material, such as up to date lists of members of the “relevant constituent part” of the particular organisation, be provided. However, whatever a “difficulty” can be said to constitute, it is incorrect to describe a fatal flaw as a mere difficulty. As is apparent from the joint judgment of Toohey, McHugh and Gummow JJ in Re McJannet; ex parte Minister for Employment, Training & Industrial Relations (Q) (1995) 184 CLR 620, 659, where the High Court considered a similar provision (s 253ZC of the Act) to s 253ZV, the term “difficulty” is not “narrow in scope” but it is important to “identify the essential event or circumstance without which there is no difficulty in relation to the application of [the Division]”. Here the essential event or circumstance was the failure to remedy such deficiency prior to judgment. That is not a difficulty “in relation to the application of ... Division [7A]” but a difficulty in the application, that is, the initiating process itself. Consequently, in my view, s 253ZV of the Act cannot be called in aid to set aside the order made on 4 June 1998. Even if I am in error as to that approach, I would not, as a matter of discretion, view s 253ZV of the Act as a factor in support of an application to set aside that order for the reason that a fatally flawed application is not apt to be described as a mere “difficulty”. Further, there must be some finality to proceedings before the Court. The applicant had every opportunity, over a considerable period of time, to ensure that the application was in proper form before the Court reserved its judgment. That is another important factor which leads the Court to consider, on a discretionary basis, that the relief sought in the notice of motion is inappropriate. Consequently, the Court will dismiss the applicant’s notice of motion.
COSTS
Counsel for the Union contended that the applicant should pay the Union’s costs of the motion. In my view, the Court has no power to order costs against the applicant in this matter having regard to s 347(1) of the Act. In my opinion the “proceeding” referred to in that sub-section is the substantive proceeding and not any procedural motion brought within the matter. See by way of analogy in an unlawful termination of employment matter the judgment of Gray J in Andrews v Uniting Church in Australia Frontier Services (t/a Old Timers) (1995) 60 IR 437, 438-444. However, if I have erred in holding that the Court has no power to award costs in the motion, I would, in any event, decline to award costs in the motion, as I believe that although ultimately unpersuasive, the submissions made on behalf of the applicant were “not unworthy of consideration”. See R v Moore; ex parte Federated Miscellaneous Workers’ Union of Australia (1978) 140 CLR 470, 473 per Gibbs J.
ORDER
The order of the Court is as follows:
The applicant’s notice of motion dated 12 June 1998 be dismissed.
There be no order as to costs.
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: 26 June 1998
Counsel for the Applicant: Mr Herman Borenstein Solicitor for the Applicant: Howie & Maher Counsel for the Respondent: Mr Jim Nolan Solicitor for the Respondent: Ryan Carlisle Thomas Date of Hearing: 17 June 1998 Date of Judgment: 26 June 1998
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