Hogan v Riley
[2010] FMCA 408
•7 June 2010
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 |
| Amalgamated Television Services Pty Ltd v Marsden (No 2) [2003] NSWCA 186 Community & Public Sector Union v Telstra Corporation Ltd (No 2) (2001) 112 FCR 324 Hogan v Riley [2010] FCAFC 30 Hogan v Riley & Ors [2009] FMCA 269 Marks v GIO Australia Holdings Ltd [1999] FCA 1010 Minister for Immigration & Multicultural Affairs v Wang (2003) 215 CLR 518 Repatriation Commission v Nation (1995) 57 FCR 25 |
| 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 issue of the current constitution of the Court was first raised. The possibility that an application might be made in the above terms was foreshadowed on that occasion. Meanwhile, I have given directions for the preparation of the matter on an assumption that the hearing will be conducted by me in Canberra on 31 August 2010.
The substantive application was commenced in Canberra in 2007. The applicant is an Australian Building and Construction Inspector, who seeks the imposition of civil penalties under the Workplace Relations Act 1996 (Cth) on a building contractor and persons associated with the contractor, for contravening s.767(3)(b) of the Act at a building site in Canberra in June 2007. This section provided:
(1)A permit holder exercising, or seeking to exercise, rights:
(a)under section 747, 748 or 760; or
(b)under an OHS law in accordance with section 756 or 757;
must not intentionally hinder or obstruct any person, or otherwise act in an improper manner.
…
(3)A person must not refuse or unduly delay entry to premises by a permit holder who is entitled to enter the premises:
(a)under section 747, subsection 748(8) or (10) or section 760; or
(b)under an OHS law in accordance with section 756.
The application reached a hearing conducted by Neville FM on 24 and 25 September 2008. There were then post‑hearing submissions received up to May 2009. His Honour reserved his decision, and delivered a judgment on 10 July 2009 (see Hogan v Riley & Ors [2009] FMCA 269). He dismissed the application, and ordered the applicant to pay the respondents’ costs.
In the course of his judgment, his Honour assessed the evidence given by witnesses on behalf of both sides of the litigation, and at [77] concluded generally:
… I prefer the evidence given on behalf of the respondents to that given by [the applicant’s witnesses] where there is any inconsistency between the accounts given.
His Honour then addressed the evidence to consider whether the persons seeking entry to the building site were entitled to demand entry, and also whether they had rights of entry under an OHS law, and whether they had acted in an ‘improper manner’ for the purposes of s.767(1). He concluded at [154] that they did not have rights of entry, and he also expressed an opinion at [131] that they had acted in an improper manner contrary to s.767(1). He also “for the sake of completeness only” made observations in relation to penalty, and said at [157]:
… in the event that I was required to consider matters relating to penalty it is more likely than not that little or no penalty would have been imposed.
He gave no reasons for awarding costs against the applicant.
On appeal, Neville FM’s judgment was addressed by a Full Court constituted by Finn, Lander and Jessup JJ, who gave a reserved judgment on 1 April 2010 (see Hogan v Riley [2010] FCAFC 30). They referred to the background of the matter, and analysed Neville FM’s judgment. They upheld the principal ground of appeal at [18]:
18We would, therefore, allow the appeal because the Federal Magistrate was in error to have regarded the operation of subs (3) of s 767 as contingent upon the permit holder in question not contravening subs (1). However, we also consider that his Honour was in error to have held that Messrs Kivalu and O’Mara were contravening subs (1) when they sought to enter the Convention Centre site on 30 May 2007. We take this view for two reasons. First, his Honour ought not to have made a finding of contravention under subs (1) in the absence of any submission to that effect on behalf of the respondents. It is a serious matter to conclude that a person has contravened a penal provision in legislation, and, although there may be occasions when such a course is appropriate in proceedings other than for contravention of the provision itself, this should not be done unless the matter has been squarely raised on the submissions of the parties.
They also upheld grounds of appeal challenging Neville FM’s rejection of the evidence of the applicant’s witnesses:
26In these circumstances, it was not, in our respectful view, open to the Federal Magistrate to reject the evidence of Messrs Kivalu and O’Mara. We recognise, of course, that the existence or absence of reasonable grounds is an objective fact, rather than one which must necessarily be established, one way or the other, on the evidence given directly by the person who claims to have the grounds. Nonetheless, for an authorised representative to exercise the statutory powers given by s 77 of the OHS Act is a serious matter, and it is the representative himself or herself who, in the first instance at least, is implicitly charged with giving conscientious consideration to the question whether the grounds, as they appear at the relevant time, are such as would warrant the holding of the suspicion referred to. To have concluded, as invited to do so by counsel for the respondents, that reasonable grounds for such a suspicion were not present on the facts in the present case without having given the union organisers the opportunity to justify the position which they took was, in our view, a course which the Federal Magistrate was not entitled to take.
Their Honours concluded their judgment:
27Because of the way the Federal Magistrate approached the case before him, what was probably the most important question was never reached: whether any of the respondents refused or unduly delayed the entry of Messrs Kivalu and O’Mara to the Convention Centre site on 7 June 2007. It seems relatively uncontroversial that they were refused entry to the site, but it is not clear that each of the respondents should be regarded as having participated in that refusal. The evidence before his Honour indicates that this question may be quite problematic in the case of Messrs Riley and Byatt. Because of the parties’ focus, in their submissions on appeal, upon the way in which the Federal Magistrate had dealt with the case, the question of the liability of the individual respondents was not sufficiently explored before us.
28At the conclusion of the hearing of the appeal, we indicated that, should we be minded to uphold the appeal, the matter of penalties would have to be returned to the Federal Magistrate for consideration. Upon reflection, for the reasons given in the previous paragraph, we take the view that the issue of the primary liability under s 767(3) must also be returned to his Honour. We do not propose, however, that the proceeding as a whole should be re‑opened. We shall allow the appeal, and make declarations giving effect to the reasons set out above. In the limited respects to which we have referred, the proceeding will be remitted to the Federal Magistrate pursuant to s 28(1)(c) of the Federal Court of Australia Act 1976 (Cth).
29Because of the way in which we have dealt with the substantive issues raised on appeal, it will not be necessary to give separate attention to the order made below that the appellant pay the respondents’ costs. We note, however, that this order too was the subject of appeal, on the ground that the Federal Magistrate did not refer to s 824 of the WR Act, and made no finding to the effect that the proceeding had been instituted vexatiously or without reasonable cause. A finding to that effect was a jurisdictional precondition to the making of a costs order. We were not addressed as to how this apparent oversight on the part of his Honour came about, nor as to whether he was addressed on the applicability of s 824 at any stage, but we make these brief observations in the hope that, if the question of costs again becomes relevant before his Honour, the course marked out by the section might be duly followed.
The orders made by the Full Court were:
THE COURT ORDERS THAT:
1.The appeal be allowed.
2.The orders made by the Federal Magistrates Court of Australia on 10 July 2009 be set aside.
THE COURT DECLARES THAT:
3.On 7 June 2007, Halafihi Kimonu Kivalu and Jason Lawrence O’Mara, authorised representatives for the purposes of Div 5.4 of the Occupational Health and Safety Act 1989 (ACT), were entitled to enter the construction site at the National Convention Centre, Canberra, for the purposes of s 767(3) of the Workplace Relations Act 1996 (Cth).
4.In seeking to exercise their rights of entry to the National Convention Centre site on 7 June 2007, Halafihi Kimonu Kivalu and Jason Lawrence O’Mara did not intentionally hinder or obstruct any person, and did not otherwise act in an improper manner, within the meaning of s 767(1) of the Workplace Relations Act 1996 (Cth).
THE COURT FURTHER ORDERS THAT:
5.The proceeding be remitted to the Federal Magistrates Court of Australia for the following purposes:
(a)to determine whether any, and if so which, of the respondents refused or unduly delayed entry to the National Convention Centre site of Halafihi Kimonu Kivalu and Jason Lawrence O’Mara, or either of them, on 7 June 2007, in breach of s 767(3) of the Workplace Relations Act 1996 (Cth);
(b)consistently with such determination or determinations, to impose such pecuniary penalties, if any, as are thought appropriate pursuant to s 769 of the Workplace Relations Act 1996 (Cth); and
(c)to make such incidental orders, including any orders as to costs, that are appropriate in the circumstances.
I am informed that these orders have not yet been entered.
As is apparent in the order for remitter in paragraph 5, the Federal Court’s order remitted the proceedings “to the Federal Magistrates Court of Australia” and not “to the Federal Magistrate” who had constituted the Court previously, that is, Neville FM. The respondents argue, however, that the order had a confining effect on the permissible constituting of the Federal Magistrates Court for determination of the remitted matter, when it is read in the light of [28] and [29] of the Full Court’s judgment. Alternatively, they argue that these parts of the judgment provide compelling reasons for the Court to cause the remitted proceedings to be returned to the docket of Neville FM.
The respondents did not submit that I have any judicial powers to make an order compelling this. Nor is it submitted that I should recuse myself from determining the matter by reason of an order of a superior court requiring this, or upon any other principle of judicial disqualification. No section of the Federal Magistrates Act 1999 (Cth) or Federal Magistrates Court Rules 2001 (Cth) giving me a judicial power to transfer a matter from my docket into the docket of a colleague is identified. In effect, the respondents submit that I should invite the Chief Federal Magistrate or his delegates responsible for case allocation to reconsider their decisions which have resulted in the matter being placed in my docket, and that I should recommend a specific outcome for their deliberations.
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).
In Nation, Beaumont J identified language in an order for remitter to the AAT which was “susceptible of more than one meaning”, and then referred to the reasons for judgment given when the order was made.
In the present case I am, however, not able to identify in the terms of paragraph 5 any meaning other than that the Full Court has remitted the further hearing of the matter to the “Federal Magistrates Court of Australia”, in accordance with the usual practice of appeal courts when allowing an appeal and remitting the matter back to a lower court. That practice does not usually interfere in the internal listing arrangements of a lower division or court (compare Amalgamated Television Services Pty Ltd v Marsden (No 2) [2003] NSWCA 186 at [35] and [41]).
I was not referred to any authorities which have examined the powers of the Federal Court to direct the specific constitution of a ‘further hearing’ ordered under s.28(1)(c) of the Federal Court of Australia Act. Counsel for the respondents cited Marks v GIO Australia Holdings Ltd [1999] FCA 1010 at [4], and Community & Public Sector Union v Telstra Corporation Ltd (No 2) (2001) 112 FCR 324 at [1], where suggestions in Full Court judgments that a further hearing should be conducted by “the primary judge” appear to have led to the previous primary judges conducting the further hearing. It is not apparent from these judgments, nor from the published reports of the preceding Full Court judgments in these two matters, whether or not the formal orders of the Full Court made a specific remitter to the primary judge. However, I am content to assume that there are at least two instances where the Full Court has concluded that it had the power to order, and has ordered, a re‑hearing to be conducted by a specified judge of the Federal Court.
I do not accept the respondents’ submission that necessarily in every case where the s.28(1)(c) power is exercised, the ‘further hearing’ must be conducted by the original trial judge. Contrary to counsel’s submission, I consider that Finkelstein J’s discussion in the CPSU Case of the nature of a ‘further hearing’ suggests the contrary at [14], where his Honour noted that “there will be many cases where the trial judge can no longer preside over the remitted case”.
In my opinion, the two illustrations cited by counsel for the respondents do not substantially advance the respondents’ arguments as to the effect of the present orders. It is conceivable that a Full Court might more readily specify the judge to conduct a further hearing, in a matter to be conducted by another member of the Federal Court, rather than a separate lower Court. There are also other possible reasons why the statements made by the present Full Court in their judgment might have been intended as no more than providing an opinion which was not intended to confine the listing procedures of this Court.
After considering the context provided by the Full Court’s judgment, in my opinion, the language of its order left to the Chief Federal Magistrate the allocation of the matter for the purposes of the further hearing ordered by their Honours.
Under s.8 of the Federal Magistrates Act:
(4)The Federal Magistrates Court consists of the following justices:
(a)a Chief Federal Magistrate;
(b)such other Federal Magistrates as from time to time hold office in accordance with this Act.
The sole power to determine how particular matters are to be constituted is given to the Chief Federal Magistrate, acting in consultation with other Federal Magistrates:
12Arrangement of business of the Federal Magistrates Court
Responsibility of Chief Federal Magistrate
(1)The Chief Federal Magistrate is responsible for ensuring the effective, orderly and expeditious discharge of the business of the Federal Magistrates Court.
(2)In discharging his or her responsibility under subsection (1), the Chief Federal Magistrate must promote the objects of this Act.
(3)In discharging his or her responsibility under subsection (1) (and without limiting the generality of that subsection) the Chief Federal Magistrate:
(a) may, subject to this Act and to such consultation with Federal Magistrates as is appropriate and practicable, do all or any of the following:
(i)make arrangements as to the Federal Magistrate who is to constitute the Federal Magistrates Court in particular matters or classes of matters;
(ii)without limiting the generality of subparagraph (i) — assign particular caseloads, classes of cases or functions to particular Federal Magistrates;
(iii)temporarily restrict a Federal Magistrate to non‑sitting duties; and
(b) must ensure that arrangements are in place to provide Federal Magistrates with appropriate access to (or reimbursement for the cost of):
(i)annual health assessments; and
(ii)short‑term counselling services; and
(iii)judicial education.
…
The exercise of the Chief Federal Magistrate’s powers in relation to case allocation, including pursuant to orders of appeal courts, must be expected to be exercised according to the fundamental convention of Australian courts, that case allocation to particular judges is normally kept confidential and free from interference or influence by parties.
As Gleeson CJ said in Minister for Immigration & Multicultural Affairs v Wang (2003) 215 CLR 518:
12… In ordinary adversarial litigation, the parties do not choose their judge. Where it is the function of a Chief Justice to assign members of a court to hear particular cases, the capacity to exercise that function, free from interference by, and scrutiny of, the other branches of government is an essential aspect of judicial independence. The limits on the power to inquire into the reasons for a decision to assign a judge to a case were examined by the Supreme Court of Canada in MacKeigan v Hickman. If one party takes objection to a judge hearing a case, then that objection will be determined in accordance with ordinary procedures and, if unsuccessful, may ultimately constitute a ground of appeal. However, it is one thing for a party to litigation to object to a judge hearing a case. It is a different matter for a party to claim a right to have, or an interest in having, a particular judge hear a case. …
(citations omitted)
These considerations cause me to be very slow to accede to the present application, in circumstances where I am not satisfied that the order of the Full Court was framed with an intent to confine the re‑hearing to only one Federal Magistrate, and to confine the discretions of the Chief Federal Magistrate in relation to case allocation.
The present parties have not challenged, and properly have not sought discovery of, the administrative processes which have caused the matter now to be listed in my docket and not in the docket of Neville FM. I took no part in that decision other than to confirm my availability, and I have no judicial or administrative role in relation to case allocation to the dockets of other Federal Magistrates. So far as I am concerned, I am satisfied that the matter was properly allocated to me by the appropriate co‑ordinating Federal Magistrate, exercising delegations or responsibilities on behalf of the Chief Federal Magistrate. I consider that I should neither inquire into that decision, nor invite its reconsideration in response to the present application. Particularly, where the other party to the proceedings opposes the present application.
It is appropriate that I should assume that the relevant people took into account what had been said in the Full Court, including in [28] of their Honours’ judgment, and that it is likely that Neville FM was consulted. It would be inappropriate for me to speculate as to their deliberations in this respect. It would also be inappropriate for me to speculate as to the reasons for the remitted matter being placed in my docket, even if I can conceive of various logistical and other reasons why the expression of opinion by the Full Court might not have been implemented.
I did canvass in argument today whether it is possible that considerations of apprehended bias if the matter returned to Neville FM might have influenced the re‑allocation of the matter, but I have no personal knowledge that this was the case. It would not be appropriate for me to express any opinions on this topic, in circumstances where I do not consider that issues of bias are properly before me for judicial determination. If issues of apprehended bias ever arise for judicial consideration, it must occur in other forums.
Taking into account all the submissions made to me today, I have not been satisfied that it would be appropriate for me in the exercise of any discretions, whether administrative or judicial, to recuse myself from continuing to case manage and hear this matter.
In my opinion, confidence in the Federal Magistrates Court would be best assisted by my continuing to deal with the matter in my docket, subject to any compelling order from a superior court. I would not recommend to the Chief Federal Magistrate that he should reconsider the docketing decision, in the light of the matters canvassed before me in the present application.
As I have pointed out to counsel for the respondents, it is open to his clients to apply to the Full Court to vary their orders, so as to include words showing an intention which I have not found in the expressed language of the Full Court’s order. Whether they should make that application is a matter for them. I would, however, expect any such application to be brought promptly, and am not at present persuaded to vacate the hearing appointed for August. I am prepared to vary the timetable in other respects.
One thing which does appear to me clearly from reading the Full Court’s judgment, is that their Honours are hoping that this Court will be able to decide the remaining issues as efficiently and expeditiously as possible.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 15 June 2010
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