FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HOGAN v RILEY & ORS | [2010] FMCA 408 |
| INDUSTRIAL LAW – Practice and procedure – appeal from dismissal of application for penalties – Federal Court remitter to Federal Magistrates Court for further hearing – whether order required re-listing before previous trial judge – docketing arrangements within Court – application for new docket judge to transfer matter to previous trial judge – application refused. |
| Federal Court of Australia Act 1976 (Cth), ss.28, 28(1), 28(1)(c) Federal Magistrates Act 1999 (Cth), ss.8, 12 Federal Magistrates Court Rules 2001 (Cth) Occupational Health and Safety Act 1989 (ACT), s.77 Workplace Relations Act 1996 (Cth), ss.767(1), 767(3), 767(3)(b), 824 |
| Applicant: | GERARD JOSEPH JOHN HOGAN |
| First Respondent: | MICHAEL RILEY |
| Second Respondent: | WAYNE CLARK |
| Third Respondent: | BRENDAN BYATT |
| Fourth Respondent: | IQON PTY LIMITED ACN 008 595 122 |
| File Number: | CAG 57 of 2007 |
| Judgment of: | Smith FM |
| Hearing date: | 7 June 2010 |
| Delivered at: | Sydney |
| Delivered on: | 7 June 2010 |
REPRESENTATION
| Counsel for the Applicant: | Ms P McDonald |
| Solicitors for the Applicant: | Australian Government Solicitor |
| Counsel for the Respondents: | Mr G McCarthy |
| Solicitors for the Respondents: | Macphillamy’s |
ORDERS
The application in a case filed on 24 May 2010 is refused.
The time under Order 2 made on 30 April 2010 is extended to 5 July 2010.
The time under Order 3 made on 30 April 2010 is extended to 26 July 2010.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
CAG 57 of 2007
| GERARD JOSEPH JOHN HOGAN |
Applicant
And
| MICHAEL RILEY |
First Respondent
| WAYNE CLARK |
Second Respondent
| BRENDAN BYATT |
Third Respondent
| IQON PTY LIMITED ACN 008 595 122 |
Fourth Respondent
REASONS FOR JUDGMENT
(revised from transcript)
In this interlocutory application filed on 24 May 2010, the four respondents apply to the Court for an order that:
1.The matter be listed before Federal Magistrate Neville for the purposes stated in paragraph 5 of the Federal Court’s Orders made on 1 April 2010 in Federal Court Proceedings ACD 33 of 2009.
The interlocutory application was listed for hearing before myself because the matter is at present generally in my docket as a result of directions given to the Registry by the relevant co‑ordinating Federal Magistrates acting on behalf of the Chief Federal Magistrate. Under current Federal Magistrates Court arrangements, I thereby acquired the judicial responsibility for the future case management of the proceedings, and for conducting the trial of the outstanding issues which will determine the giving of final orders in this Court.
The matter has been in my docket since shortly before a directions hearing held on 30 April 2010, at which the…
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Details
- AGLC
- Hogan v Riley [2010] FMCA 408
- Case
- [2010] FMCA 408
- Decision Date
CaseChat Overview and Summary
In the case of Hogan v Riley, the dispute involved the interpretation and application of an order made by the Full Court of the Federal Court of Australia. The case was brought to the court to clarify the scope and implications of the Full Court's order under section 28(1) of the Federal Court of Australia Act. The central legal issue was whether the Full Court's order, which required a "further hearing" in the Federal Magistrates Court of Australia, was ambiguous and, if so, whether extrinsic material could be considered to interpret the order.
The court found that the Full Court's order was not ambiguous when read in its terms. The court held that orders of appellate courts should generally be construed based on their terms alone unless there is an ambiguity that necessitates the use of extrinsic material. The court referred to various precedents, including Repatriation Commission v Nation and Codelfa Construction Pty Ltd v State Rail Authority, to support its position that the clear meaning of the order should prevail unless there is an evident ambiguity. The court also noted that while the Full Court might have intended for the further hearing to be conducted by a specific Federal Magistrate, this did not create an ambiguity in the terms of the order itself.
Consequently, the court ruled that the Full Court's order should be interpreted strictly based on its terms, and the reference to the "Federal Magistrates Court of Australia" was not ambiguous. The court also noted that any reference to extrinsic material to limit the scope of the order was impermissible given the clear terms of the order. The Full Court's jurisdiction to order a further hearing was upheld, and the court found no basis to restrict the hearing to a specific Federal Magistrate.
ORDERS:
1. The application filed on 24 May 2010 is refused.
2. The time under Order 2, made on 30 April 2010, is extended to 5 July 2010.
3. The time under Order 3, made on 30 April 2010, is extended to 26 July 2010.
The court found that the Full Court's order was not ambiguous when read in its terms. The court held that orders of appellate courts should generally be construed based on their terms alone unless there is an ambiguity that necessitates the use of extrinsic material. The court referred to various precedents, including Repatriation Commission v Nation and Codelfa Construction Pty Ltd v State Rail Authority, to support its position that the clear meaning of the order should prevail unless there is an evident ambiguity. The court also noted that while the Full Court might have intended for the further hearing to be conducted by a specific Federal Magistrate, this did not create an ambiguity in the terms of the order itself.
Consequently, the court ruled that the Full Court's order should be interpreted strictly based on its terms, and the reference to the "Federal Magistrates Court of Australia" was not ambiguous. The court also noted that any reference to extrinsic material to limit the scope of the order was impermissible given the clear terms of the order. The Full Court's jurisdiction to order a further hearing was upheld, and the court found no basis to restrict the hearing to a specific Federal Magistrate.
ORDERS:
1. The application filed on 24 May 2010 is refused.
2. The time under Order 2, made on 30 April 2010, is extended to 5 July 2010.
3. The time under Order 3, made on 30 April 2010, is extended to 26 July 2010.
Orders
Orders of the court
1.
The application in a case filed on 24 May 2010 is refused.
2.
The time under Order 2 made on 30 April 2010 is extended to 5 July 2010.
3.
The time under Order 3 made on 30 April 2010 is extended to 26 July 2010.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
The powers exercised by the Full Court on the appeal were found in s.28(1) of the Federal Court of Australia Act: 28Form of judgment on appeal (1)Subject to any other Act, the Court may, in the exercise of its appellate jurisdiction: (a) affirm, reverse or vary the judgment appealed from; (b) give such judgment, or make such order, as, in all the circumstances, it thinks fit, or refuse to make an order; (c) set aside the judgment appealed from, in whole or in part, and remit the proceeding to the court from which the appeal was brought for further hearing and determination, subject to such directions as the Court thinks fit; (d) set aside a verdict or finding of a jury, and enter judgment notwithstanding any such verdict or finding; (f) grant a new trial in any case in which there has been a trial, either with or without a jury, on any ground upon which it is appropriate to grant a new trial; or (g) award execution from the Court or, in the case of an appeal from another court, award execution from the Court or remit the cause to that other court, or to a court from which a previous appeal was brought, for the execution of the judgment of the Court. It was submitted on behalf of the respondents that the Court’s order under paragraph 5 should be understood as exercising the appellate power under s.28(1)(c) to order a “further hearing” rather than under paragraph (f) to “grant a new trial”. This was not contested on behalf of the applicant, and some confirmation of that intent might appear in the last sentence of [28] of their Honour’s judgment which I have extracted above. I shall assume that the order should be understood to be made under that paragraph. I am not prepared, however, to assume that the non‑specific identification of the “Federal Magistrates Court of Australia” in the terms of the order requiring a ‘further hearing’ was made by mistake, or did not properly reflect the intention of the Full Court, even when juxtaposed with the statements in [28] of their Honours’ judgment. I would accept, aided by a brief passage from the transcript on the hearing of the appeal, that at the time that their Honours gave judgment they held an opinion that the matter could be re‑listed before Neville FM. However, I am unable to find any ambiguity in the order of the Federal Court which would allow me to read a limiting effect on their Honours’ order of remitter, so that as a matter of jurisdiction the further hearing and adjudication ordered by the Federal Court could only be performed by Neville FM and by no other Federal Magistrate. It is established, in my opinion, that orders of an appeal court should normally be construed in their terms without regard to extrinsic material, except where this is necessary to resolve ambiguity. In Repatriation Commission v Nation (1995) 57 FCR 25 at 33, Beaumont J with whom Black CJ and Jenkinson J agreed, said: The rule in England is that when a judgment is clear as to its terms, not even the pleadings nor the history of the action may be utilised to construe the judgment contrary to its clear meaning (see Halsbury’s Laws of England (4th ed, 1979), Vol 26, p 273). Where, however, the judgment or order is ambiguous, it may be permissible to resort to extrinsic material, including the reasons for judgment, to resolve the ambiguity (see Gordon v Gonda [1955] 2 All ER 762 at 765, 768). A similar approach has been taken in this country. If, as in the case of a “speaking” order (see, eg, ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248 at 262) its true meaning is “immediately plain”, the terms of the order will speak for themselves. If this is not the case, the true meaning may be ascertained according to ordinary rules of construction (see Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483 per Windeyer J at 503; McNair Anderson Associates Pty Ltd v Hinch [1985] VR 309 at 311‑312; cf Kwikspan Purlin System Pty Ltd v Commissioner of Taxation (Cth) (1986) 86 ATC 4,602 at 4,605; Australian Energy Ltd v Lennard Oil NL (No 2) [1988] 2 Qd R 230 at 232; Sharpe v Goodhew (unreported, Federal Court, Drummond J, 11 December 1992), at pp 10‑12; Australian Securities Commission v Skase (unreported, Federal Court, Drummond J, 13 January 1993), at pp 16‑17. Under the ordinary rules of construction, evidence of surrounding circumstances is admissible to assist in the interpretation of an instrument if the language is ambiguous or susceptible of more than one meaning, but not admissible to contradict the language of the instrument when it has “a plain meaning” (see Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337 per Mason J at 352).
Ratio Decidendi
Legal Principle Established
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