Hogan v Riley & Ors
[2008] FMCA 794
•5 June 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HOGAN v RILEY & ORS | [2008] FMCA 794 |
| INDUSTRIAL LAW – Interlocutory orders – joinder of party. |
| Building and Construction Industry Improvement Act 2005 (Cth), s.57 Federal Court Rules , Order 6 (2), (8) Federal Magistrates Act 1999 (Cth), ss.3, 3 (2), 42, 43, 43 (2)(b) Federal Magistrates Court Rules 2001 (Cth), Rules 1.03, 11.01, 11.02, 16, 16.05 (3) Workplace Relations Act 1996 (Cth) ss.767 (3)(b), 769, 769 (1) |
| Granada Tavern v Smith [2008] FCA 646 M. Allars, “Perfected judgments and inherently angelical administrative decisions: The powers of courts and administrators to reopen or consider their decisions,” (2001) 21 Australian Bar Review 50 |
| Applicant: | GERARD JOSEPH JOHN HOGAN |
| First Respondent: | MICHAEL RILEY |
| Second Respondent: | WAYNE CLARK |
| Third Respondent: | BRENDAN BYATT |
| Fourth Respondent: | IQON PTY LTD |
| File Number: | CAG 57 of 2007 |
| Judgment of: | Neville FM |
| Hearing date: | 30 May 2008 |
| Date of Last Submission: | 30 May 2008 |
| Delivered at: | Canberra |
| Delivered on: | 5 June 2008 |
REPRESENTATION
| Counsel for the Applicant: | Ms McDonald |
| Solicitors for the Applicant: | Australian Government Solicitor |
| Counsel for the First, Third and Fourth Respondents: | Mr McCarthy |
| Solicitors for the First, Third and Fourth Respondents: | Macphillamy’s Lawyers |
| Second Respondent: | Ms McMahon on behalf of Mr Clark |
ORDERS
Mr Wayne Clark be joined as a respondent.
The current hearing dates of 26 and 27 June 2008 be vacated and the matter re-listed for final hearing on 24 and 25 September 2008.
Evidence in chief at the hearing be by way of affidavit. Oral evidence in chief will only be permitted by leave.
The applicant file and serve any further affidavits upon which he intends to rely by close of business on 30 July 2008.
The respondents file and serve any further affidavits upon which they intend to rely by close of business on 13 August 2008.
The applicant file and serve any affidavits in reply by close of business on 27 August 2008.
All parties file and serve a case outline and minute of orders sought by 10 September 2008.
The applicant is to pay the costs of all of the respondents for the 8th and 30th of May 2008 in relation to the application to have Mr Clark joined as a respondent.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
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 |
Fourth Respondent
REASONS FOR JUDGMENT
Introduction
Proceedings have been commenced in this court seeking relief under the Workplace Relations Act 1996 (Cth). They were commenced by application and statement of claim filed on 28 December 2007. I make no formal comment on the curious state of filing; it speaks for itself.
The applicant is an Australian building and construction inspector under section 57 of the Building and Construction Industry Improvement Act 2005. Save what is noted below, I will not traverse the detail in relation to each of the four occasions the matter has come before the Court thus far. The matter is listed for hearing on 26 and 27 June.
The facts and circumstances that give rise to the proceedings are of quite narrow compass. Mr Clark has provided a statement in relation to the events in question. It is already before the court as part of annexure B to the applicant Mr Hogan’s affidavit of 17 April 2008. The reference to Mr Clark and his centrality will become more explicit shortly.
On 28 February I dismissed the proceedings against the second respondent, Mr Clark. He had not been served at the time I made that order. On subsequent occasions when the matter was before me for mention or direction, the applicant indicated that Mr Clark had been located and that an application would be made to rejoin him as a respondent. Counsel for the respondents indicated concern at this proposed course. That concern was formalised in submissions in opposition to the application which I heard on 30 May. The applicant appears not to have been as judicious, or expeditious, as one would have expected (or wished) in the steps taken to locate Mr Clark. This is especially so in light of submissions very clearly and cogently put by Mr Clark’s partner, Ms McMahon, who appeared on his behalf without objection by either Ms McDonald or Mr McCarthy. Ms McMahon confirmed that he, Mr Clark, has lived at the same address for quite some years. How and why there has been such difficulty in service has not been adequately explained.
Against this very brief background the issues immediately for determination are twofold: (i) Does the court have power to add a party to the proceedings in circumstances where there is a prior order dismissing the same party from those proceedings? (ii) If the answer to the first question is yes, and if the court orders Mr Clark to be rejoined, should the hearing on 26 and 27 June proceed?
These questions must be addressed in the context, facts, and circumstances of the case before the court, as briefly outlined already, and in the light of the clear objects, powers and rules of this court. I wish to turn to those matters now.
Rules of Court
The objects of the Federal Magistrates Act 1999 are set out in section 3 of that Act. Section 3(2) states:
The other objects of this Act are:
(a) to enable the Federal Magistrates Court to operate as informally as possible in the exercise of judicial power; and
(b) to enable the Federal Magistrates Court to use streamlined procedures.[1]
[1] I do not need to deal with s.3(2)(c), which relates to encouraging the use of appropriate dispute resolution processes.
Section 42 of the same Act states:
In proceedings before it, the Federal Magistrates Court must proceed without undue formality and must endeavour to ensure that the proceedings are not protracted.
Section 43 deals with “practice and procedure.” Paraphrased, s.43(2)(b) relevantly provides that where the Rules of the Federal Magistrates Court are “insufficient,” the rules of the Federal Court of Australia, with necessary modifications, may be applied to the practice and procedure in a matter before this Court.
I note, not completely in passing, but interestingly, a very recent case decided by the Federal Court of Australia in Grenada Tavern v Smith.[2] That was an appeal from a decision of the Federal Magistrates Court in relation to an industrial and workplace agreement. Heerey J emphasised the importance of s.42 of the Federal Magistrates Court Act in proceeding without undue formality and the responsibility of this Court endeavouring to ensure that the proceedings are not protracted. Certainly the context and circumstances of that case are rather different to the present, but nonetheless it was in an industrial matter and a very recent decision focusing upon the importance of section 42 of the Act.
[2] [2008] FCA 646 (15th May 2008).
The objects of the Act are replicated to varying degrees in the Rules of the Federal Magistrates Court so that, for example, Rule 1.03 specifies the Rules which are to assist the “just, efficient and the economical resolution of proceedings.” And in accordance with the objects of the Act, Rule 1.03(2) provides that:
The Rules aim to help the Federal Magistrates Court
to operate as informally as possible[and]
to use streamlined processes.
And as I have already indicated, the Rules also encourage the use of appropriate dispute resolution procedures, which are not immediately relevant to this matter.
I move to Rule 11. Rule 11.01 refers to “necessary parties,” while Rule 11.02 provides that a party “may include another person as a party.” I need not read those rules in any detail but move as expeditiously as I can to Rule 16. Part 16 of the Federal Magistrates Court’s Rules deals with “Judgments and Orders.” Particularly I draw attention to Rule 16.05(3).[3] That rule states:
This rule does not affect the power of the Court to vary or terminate the operation of an order by a further order.
[3] Curiously, the introduction to this Rule is clearly misspelt. It should read [“Proviso”] but is spelt “Priviso.”
In addition to these statutory and regulatory provisions, the following may be taken as a summary from judicial and other authority. In much of what follows, but by no means all of what follows, I am indebted to two works, the first by Professor Allars, now of the New South Wales Bar; the second by Justice Handley, recently retired from the New South Wales Court of Appeal.[4]
[4] M. Allars, “Perfected judgments and inherently angelical administrative decisions: The powers of courts and administrators to reopen or consider their decisions,” (2001) 21 Australian Bar Review 50;
K. Handley, Spencer Bower, Turner and Handley: The Doctrine of Res Judicata, (Third Edition) (London: Butterworths, 1996). In the latter, see especially Chapter 5 [at p.69], which is entitled “Finality,” the last section of which is headed [at p.82], “Interlocutory orders not final for any purpose.”
In addition to the above, in comparable parts of the Federal Court Rules, for example, Order 6, Rules 2 and 8, there is abundant judicial authority to the effect that such Rules should be interpreted and applied liberally.
The following may suffice as a summary of the principles gleaned from the authorities and materials to which reference has been made. Firstly, standard but longstanding judicial definitions of what is and is not an interlocutory order confirm that such orders are those in which there has been no determination of the substantive rights of parties. Put another way, an interlocutory order is any order other than the final order or decree in an action.[5]
[5] This part of the summary draws significantly from Words and Phrases Judicially Defined, 4th edition, Volume 1, pp. 1256-57, and the authorities there cited. For a recent, expansive judicial discussion of what constitutes an “interlocutory order”, see the Full Court of the Federal Court decision in Jefferson Ford Pty Ltd v Ford Motor Company of Australia Limited [2008] FCAFC 60 (15th April 2008).
Secondly, while there can be distinctions drawn between orders relating to purely procedural matters and other interlocutory orders, much of which discussion is made by Mahoney J in the New South Wales Court of Appeal in the unreported judgment of Wentworth v Woollahra Municipal Council in 1983, as a general principle, interlocutory orders may be varied or set aside in appropriate circumstances.[6]
[6] As cited in Allars, op. cit., at p.56.
Thirdly, on the basis of the Federal Magistrates Court Rules, as well as in light of similar rules in the Federal Court, this court has wide powers to alter an interlocutory order concerning matters of practice and procedure. I move to the issue of `joinder of parties.’
Joinder of Parties
In News Limited v the Australian Rugby League,[7] the Full Court of the Federal Court dealt with the relevant test regarding the joinder of parties. The Full Court relied on a statement by Lord Diplock delivering an opinion of the Judicial Committee of the Privy Counsel in Pegang Mining Company Limited v Choong Sam.[8]
[7] (1996) 64 FCR 410.
[8] Pegang Mining Company Limited v Choong Sam [1969] 2 MLJ 52.
In Lord Diplock’s words, as quoted by the Federal Court:
The cases illustrate the great variety of circumstances in which it may be sought to join an additional party to an existing action. In their Lordships’ view, one of the principal objects of the rule is to enable the court to prevent injustice being done to a person whose rights will be affected by its judgment by proceeding to adjudicate upon the matter in dispute in the action without his being given an opportunity of being heard. To achieve this object calls for a flexibility of approach which makes it undesirable in the present case, in which the facts are unique, to attempt to lay down any general proposition that could be applicable in all cases.[9]
[9] [1969] 2 MLJ at pp.55-56; quoted in 64 FCR at p.524.
The Full Court of the Federal Court said: “In our opinion the question of joining parties should be decided according to the test proposed by Lord Diplock. The test involves matters of degree and ultimately judgment having regard to the practical realities of the case, and the nature and value of the rights and liabilities of a third party which might be directly affected.”[10]
[10] 64 FCR at p.525.
Not dissimilar comments were made by Starke J in the High Court in Richardson v Trautwein.[11] I will not trouble the parties with reading that small extract from his Honour but it is to similar effect.
[11] (1942) 65 CLR 585 at p. 593.
Summary & Conclusion
In the light of what I have said, the following is by way of summary in answer to the two questions posed earlier regarding the power of the court to add a party where there exists an earlier order dismissing them prior to service being effected, and the second question, which relates to whether Mr Clark is joined, is whether the hearing on 26 and 27 June should proceed.
In my view the order of 28 February dismissing Mr Clark as a respondent was an interlocutory order. No substantive right, claim or issue between the parties was determined by that order. As an interlocutory order, it is able to be varied or rescinded under the Rules of this Court.
I have already noted that Mr Clark has made a statement which is before the court and is directly relevant to determination of issues in dispute. If any finding or determination is to be made against, or involving, him he should have the opportunity, as a matter of procedural fairness, to put submissions to the Court. I would fear that that would not be possible if he was not a party. I do consider him to be a necessary party to the proceedings, and therefore there will be an order joining him to the proceedings as a respondent.
I turn then to the second question of whether the matter should proceed at the end of June. There is indeed significant force in Mr McCarthy’s submission that the matter should proceed on the scheduled hearing dates. However, in my view, principally because of the late joinder of Mr Clark, I am concerned that he would not have sufficient time to prepare for the hearing. Likewise, the other parties should have the opportunity to re-consider the materials already filed in the proceedings in the light of Mr Clark being joined as a party. As well, because the Court is now in a position to give the parties fresh dates only three months hence, and with appropriate orders as to costs, I do not see that their positions are necessarily prejudiced by an order that the current hearing dates be vacated and a new hearing date fixed in the week commencing 22 September. The actual dates for hearing of the matter during that week can be arranged with my Associate that are suitable to counsel.
In light of the above, the substantive orders will be that Mr Wayne Clark be joined as a respondent; secondly, that the applicant is to pay the costs for all of the respondents for 8 and 30 May, in relation to the application to have Mr Clark joined as a respondent; also provided in the orders is a revised timetable.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Neville FM
Associate: Renee Davidson
Date: 24 June 2008
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