McLoughlin v Randstad Pty Ltd
[2023] FedCFamC2G 30
Federal Circuit and Family Court of Australia
(DIVISION 2)
McLoughlin v Randstad Pty Ltd [2023] FedCFamC2G 30
File number(s): SYG 143 of 2022 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 25 January 2023 Catchwords: INDUSTRIAL LAW – Practice and procedure – Full Court of the Federal Court of Australia allowed an appeal from a Judge of the Federal Circuit and Family Court of Australia (Division 2) (Court) and ordered that the proceeding be remitted for rehearing before another Judge of the Court (Remitter Order) – whether the Remitter Order was an order for a further hearing with the consequence that the hearing on Remitter will be a continuation of the first hearing – whether the Remitter Order was an order for a new trial – Remitter Order an order for a new trial. Legislation: Evidence Act 1995 (Cth) ss 64(2), 64(3)
Fair Work Act 2009 (Cth) ss 340, 351
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 190
Federal Court of Australia Act 1976 (Cth) ss 24, 27, 28(1)
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 1.04
Common Law Procedure Act 1899 (NSW) s 160
Cases cited: Addenbrooke Pty Ltd v Dunkan (No 3) [2017] FCAFC 166
Astrazeneca Pty Limited v GlaxoSmithKline Australia Pty Limited [2006] FCAFC 22
Australian Iron and Steel Ltd v Greenwood [1962] HCA 42
Builders Licensing Board v Sperway Constructions (SYD.) Pty Ltd (1976) 135 CLR 616
Conway v The Queen [2002] HCA 2
CPSU, The Community and Public Sector Union v Telstra Corporation Ltd (No 2) [2001] FCA 479
CSR Limited v Della Maddalena [2006] HCA 1
Dearman v Dearman (1908) 7 CLR 549
Fernando v Commonwealth of Australia [2014] FCAFC 181
Graziers Association of New South Wales v Australian Legion of Ex-Servicemen and Women (1949) 49 SR (NSW) 300
Hamersley Iron Pty Ltd v The National Competition Council [2008] FCA 598
Kotsis v Kotsis (1970) 122 CLR 69
McLoughlin v Randstad Pty Ltd [2021] FCAFC 160
Owston Nominees No 2 Pty Ltd v Branir Pty Ltd (2003) 129 FCR 558
Pateman v Higgin (1957) 97 CLR 521
Pettitt v Dunkley [1971] 1 NSWLR 376
Phillips v Ellinson Brothers Pty Ltd (1941) 65 CLR 221
Police Federation of Australia v Nixon [2011] FCAFC 161
Quilter v Mapleson (1882) 9 QBD 672
Radmanovich v Nedeljkovic [2002] NSWSC 212
Vata-Meyer v Commonwealth of Australia (No 2) [2015] FCAFC 167
Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73
Yates Property Corporation Pty Ltd v Boland (1998) 89 FCR 78
Division: Fair Work Number of paragraphs: 43 Date of hearing: 27 June 2022 Place: Sydney Counsel for the Applicant: Ms K Edwards Solicitor for the Applicant: Turner Freeman Lawyers Counsel for the Respondents: Mr M Seck Solicitor for the Respondents: Holding Redlich Lawyers ORDERS
SYG 143 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BEVERLY MCLOUGHLIN
Applicant
AND: RANDSTAD PTY LTD ABN 28 080 275 378
First Respondent
BROOKE O'KEEFE
Third Respondent
NICK PESCH
Fourth Respondent
order made by:
JUDGE MANOUSARIDIS
DATE OF ORDER:
25 january 2023
THE COURT ORDERS THAT:
1.The proceeding is listed for directions at 9.30 am on 8 February 2023.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
introduction
On 26 August 2021 the Full Court of the Federal Court of Australia (Full Federal Court) allowed an appeal by the applicant, Ms McLoughlin, against the orders of a Judge of this Court (Primary Judge) that dismissed a proceeding Ms McLoughlin brought against the respondents under the Fair Work Act 2009 (Cth) (FW Act). The Full Federal Court made a number of other orders (Orders), including an order that the “matter is remitted to the Federal Circuit Court for rehearing before another Judge” (Remitter Order).
The matter has now been docketed to me; but the parties are in dispute about how I should hear the matter. Ms McLoughlin submits I should hear the matter on the basis of the evidence that was adduced at the hearing before the Primary Judge, subject to Ms McLoughlin adducing updated evidence on damages, and the respondents adducing responsive evidence. The respondents, on the other hand, submit I am bound to conduct a trial afresh, and decide the matter on evidence that will be adduced at the hearing, just as I would be required to proceed if there had been no hearing before the Primary Judge.
The determination of the dispute largely turns on the proper construction of the Remitter Order. That, in turn, depends on identifying the nature of the jurisdiction the Full Federal Court exercised when allowing the appeal from the Primary Judge’s orders, and the basis on which the Full Federal Court made the Remitter Order. Ms McLoughlin’s principal submission is that the Full Federal Court made the Remitter Order pursuant to s 28(1)(c) of the Federal Court of Australia Act 1976 (Cth) (FCA Act), while the respondents’ principal submission is that the Full Federal Court did so pursuant to s 28(1)(f) of the FCA Act. The determination of the dispute also requires me to identify the relevant principles for construing orders of a court.
course of proceeding
Ms McLoughlin’s claims
The proceeding Ms McLoughlin commenced in this Court arises out of the first respondent’s (Randstad) decision to terminate Ms McLoughlin’s employment. Randstad communicated its decision by letter dated 7 August 2018 which was signed by the fourth respondent, Mr Pesch. Mr Pesch was then employed by Randstad as “National Director, Construction, Property & Engineering, Sales, Marketing, Digital & Communications”.
Ms McLoughlin claims that Randstad terminated her employment because Ms McLoughlin had exercised a workplace right by lodging a bullying complaint with the Fair Work Commission (FWC) and, for that reason, Randstad contravened s 340(1) of the FW Act. Ms McLoughlin also claims that if Randstad did terminate her employment because of the LinkedIn post, her posting the material on LinkedIn manifested a mental health condition and, by deciding to terminate Ms McLoughlin’s employment for posting the material on LinkedIn, Randstad contravened s 351 of the FW Act.
Randstad contends it terminated Ms McLoughlin’s employment because, among other things, she posted material on LinkedIn which offended Randstad’s Social Media/Private policy, and she failed to remove the post immediately after Randstad requested her to do so.
Before the Primary Judge
The hearing before the Primary Judge was conducted by video link. The hearing was in accordance with how hearings were conducted in this Court and in other courts during COVID-19 pandemic restrictions. One consequence of the hearing proceeding by video was the creation of a video recording of the entire hearing, including the examination and cross-examination of each witness who gave evidence.
Randstad contended that Mr Pesch was the only person whose state of mind was relevant to determining the reason or reasons for which Randstad terminated Ms McLoughlin’s employment. Ms McLoughlin disputed Randstad’s contention; she claimed that other persons were involved in Randstad’s decision to terminate her employment. This included the external solicitor who advised Randstad in relation to its termination of Mr McLoughlin’s employment.
After hearing the evidence over three days, the Primary Judge adjourned the proceeding to permit the parties to file written submissions, which they did. The Full Federal Court described the submissions Ms McLoughlin filed as follows:[1]
The submissions for Ms McLoughlin were detailed. They identified each of the propositions advanced to support the case and the evidence and contentions relied upon to support those propositions. It was evident that the case advanced depended upon understanding the narrative of events and viewing the actions that had been taken by Randstad within that context. The nature of the case being advanced was described by reference to the evidence that had been led. The law was set out carefully and submissions were made as to how the law applied to the facts. The case as advanced depended upon events that had occurred over a two year period and a challenge to the evidence of Mr Pesch as to what he knew when he signed the dismissal letter and why he did so. Those contextual matters, said to be known to Mr Pesch and others involved for Randstad from the history of the circumstances of the employment of Ms McLoughlin over a considerable period, were claimed to be significant for her case.
[1] McLoughlin v Randstad Pty Ltd [2021] FCAFC 160, at [5]
On 19 February 2021 the Primary Judge dismissed Ms McLoughlin’s claim. The Primary Judge relied on findings about Mr Pesch’s evidence:[2]
The Court accepts [Mr Pesch’s] evidence that the decision to terminate the applicant was only made on 6 August 2018 by the fourth respondent and at that stage was the subject of instructions given to the solicitor, Mr Rossi, to prepare the termination letter. The Court has taken into account s 793 of the Act and finds that it was the fourth respondent only being an officer of the [Randstad] who engaged in the ultimate decision making that constituted the adverse conduct of termination of the [Ms McLoughlin]. The Court has taken into account s 360 of the Act and finds that [Mr Pesch] was the real and ultimate decision maker in respect of the adverse conduct being the termination of the applicant.
In the circumstances of this case, the Court finds that focus of the inquiry is on the reasons of [Mr Pesch] as the real and ultimate decision maker. The Court does not accept that any other person than [Mr Pesch] was involved in the ultimate decision to terminate the applicant. This is because as a matter of credit the Court has accepted [Mr Pesch’s] evidence that he was the sole decision maker and finds that this is supported by the surrounding circumstances. The Court does not accept that circumstances referred to in these reasons individually or cumulatively support the drawing of an adverse inference against the respondents as to a substantial and operative reason or reasons being a proscribed reason for the adverse action. The Courts [sic] accepts [Mr Pesch’s evidence] and finds no other person’s involvement had a material effect on the ultimate decision to terminate the applicant. The Court rejects the submission that [Mr Pesch] acted as a mere rubber stamp and the Court finds that he acted independently in making the ultimate decision to dismiss [Ms McLoughlin].
As [Mr Pesch] was the real and ultimate decision maker, no adverse inference against the respondents arises by reason of the absence of evidence from Mr Rossi or Mr Stewart. The Court accepts [Mr Pesch’s] evidence that the reference by Mr Rossi to [Ms McLoughlin] not returning to Parramatta was an error and does not accept that this warrants the drawing of any adverse inference against the respondents as to a substantial and operative reason or reasons being a proscribed reasons for the adverse action. This is because [Ms McLoughlin] had two offices and also because it is contrary to the evidence of [Mr Pesch] which the Court accepts.
[2] McLoughlin v Randstad Pty Ltd (No 3) [2021] FCCA 223, at [66]-[68]
Full Federal Court’s reasons (FFC Reasons)
The Full Federal Court held that the Primary Judge’s form of reasons does not outline or describe the case Ms McLoughlin advanced or the defence Randstad advanced; it does not provide any narrative of the facts on which it relied, or set out factual findings in the usual way; and it does not apply law to those facts. The Full Federal Court further held that these difficulties could not be overcome by a chronology of events because a chronology could not be prepared by reference to the Primary Judge’s reasons for decision.[3] Nor could the difficulties be overcome by attempting to identify the parts of the Primary Judge’s reasons that could be said to have addressed aspects of the case Ms McLoughlin advanced, and that is because the Primary Judge’s reasons were addressed “at the highest level of generality”.[4]
[3] McLoughlin v Randstad Pty Ltd [2021] FCAFC 160, at [6]-[7]
[4] McLoughlin v Randstad Pty Ltd [2021] FCAFC 160, at [8]
Further, in relation to the Primary Judge’s treatment of the “key issue of whether Mr Pesch was to be believed as to the evidence that he gave concerning the reasons for dismissal”, the Full Federal Court identified a number of passages from the Primary Judge’s reasons that “are illustrative of the way in which the issues were approached by the” Primary Judge:[5]
(a)Although the Primary Judge referred to “[d]etailed analysis” having been “engaged in both in cross-examination of the” third respondent and Mr Pesch, “in relation to [Randstad’s] disciplinary policy in relation to ensuring the absence of bullying in the workplace and” to have a safe place of work and procedure for disciplinary investigations”, the Primary Judge did not consider the “detailed analysis or why it should not be accepted”.[6]
(b)Although the Primary Judge accurately described the overall character of the case Ms McLoughlin advanced, he did not develop in his reasons “any consideration of the whole circumstances as relied upon to support the claim”. The Primary Judge, in effect, did not undertake the task of “setting out the findings of fact and the pathway by which a conclusion is reached”.[7]
(c)Although the Primary Judge had hinted at an important aspect of the case Ms McLoughlin advanced, namely, Randstad’s asserted disavowal of awareness of the seriousness of the status of the mental health of Ms McLoughlin, the Primary Judge “addressed at the highest level of generality without any indication as to why, despite what would appear to be an acceptance of part of the case for Ms McLoughlin, it was said to have no consequence for the credibility of the evidence given by” Mr Pesch.[8]
(d)Although the Primary Judge recognised that the nature of the case advanced by Ms McLoughlin depended on a close analysis of the surrounding circumstances, the Primary Judge failed to engage in any meaningful way with the matters raised by Ms McLoughlin’s submissions.[9]
(e)Although the Primary Judge referred to there being a detailed focus on the communications following the making of the bullying complaint, the Primary Judge did not consider the detail, and that aspect of Ms McLoughlin’s case was “rejected with the sweep of a few general sentences”.[10]
(f)The Primary Judge did not address at all Ms McLoughlin’s claim that the conduct the led to her dismissal was a manifestation of her mental disability; and there were “other such failures which it would serve no purpose to enumerate”. [11]
[5] McLoughlin v Randstad Pty Ltd [2021] FCAFC 160, at [9]
[6] McLoughlin v Randstad Pty Ltd [2021] FCAFC 160, at [10], [11]
[7] McLoughlin v Randstad Pty Ltd [2021] FCAFC 160, at [13]
[8] McLoughlin v Randstad Pty Ltd [2021] FCAFC 160, at [15]
[9] McLoughlin v Randstad Pty Ltd [2021] FCAFC 160, at [16], [17]
[10] McLoughlin v Randstad Pty Ltd [2021] FCAFC 160, at [18]
[11] McLoughlin v Randstad Pty Ltd [2021] FCAFC 160, at [24]
The Full Federal Court said:[12]
The reasons of the primary judge in this case are repetitive and expressed at a high level of generality. Their length, 99 paragraphs, belies their lack of content. They lack a statement of the detail of the applicant's case, a consideration of what actually happened in the dealings between the parties the subject of the proceedings or why the applicant's claim in the terms in which it was put was not accepted. That is because the document lacks any real analysis of the evidence, any consideration of what was said under cross-examination, any reference to the content of any material document and any articulation of or engagement with the content of the key submissions advanced to support the applicant's claim, or indeed the respondents' defence. They are in a form which deprives the parties of a fair exercise of their right to appeal to this Court, a right the exercise of which depends upon the primary judge adequately discharging the primary duty of finding the relevant facts. Equally, they fail to serve the purpose of fairly quelling the dispute because they are a manifestly insufficient foundation for a decision of the kind that the primary judge was called upon to make.
[12] McLoughlin v Randstad Pty Ltd [2021] FCAFC 160, at [31]
The Full Federal Court concluded “there is nothing to be done but to remit the matter for rehearing by another judge”.[13] The Full Federal Court concluded so because:[14]
(a)it was accepted that a significant part of the case Ms McLoughlin advanced depended on the assessment of Mr Pesch’s credibility;
(b)the case advanced by Ms McLoughlin sought to impeach Mr Pesch’s credibility through relying on the historical narrative, which the Primary Judge made no findings of fact about;
(c)there was therefore a need for findings of credibility to be made based on properly supported findings; but
(d)the Primary Judge’s reasons lacked content.
[13] McLoughlin v Randstad Pty Ltd [2021] FCAFC 160, at [32]
[14] McLoughlin v Randstad Pty Ltd [2021] FCAFC 160, at [32]
The Full Federal Court further concluded:[15]
The reasons provided were so inadequate and failed to deal with so much of the critical content of the case advanced for Ms McLoughlin that they manifest a failure to make the necessary findings of fact and law required to dispose of the essential aspects of the case advanced by Ms McLoughlin. The extent of their deficiency means that this is not a case where this Court might fairly exercise its discretion against ordering a new trial: as to which, see Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [67].
[15] McLoughlin v Randstad Pty Ltd [2021] FCAFC 160, at [33]
relevant provisions
Under s 24(1)(d) of the FCA Act the Federal Court of Australia (Federal Court) “has jurisdiction to hear and determine . . . appeals from judgments of the Federal Circuit and Family Court of Australia (Division 2) exercising original jurisdiction under a law of the Commonwealth”, other than the Acts and Regulations specified in s 24(1)(d) of the FCA Act.[16]
[16] At the time the Full Federal Court dismissed Ms McLoughlin’s appeal the Federal Circuit and Family Court of Australia (Division 2) was known as the “Federal Circuit Court of Australia”.
The FCA Act does not define the word “appeal”; nor does the FCA Act specify the nature of the jurisdiction s 24 confers on the Federal Court. The nature and extent of that jurisdiction, however, may be inferred from s 28(1) of the FCA Act, which identifies the orders the Federal Court may make when exercising the jurisdiction conferred by s 24 of the FCA Act. Subsection 28(1) provides:
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.
As will appear shortly, s 28(1) of the FCA Act, when read with s 27 (which permits the reception of fresh evidence in an appeal), incorporates various heads of jurisdiction that, before the Supreme Court of Judicature Act 1875 (UK) (Judicature Act), the Court of Chancery and the common law courts possessed to review decisions of those courts.[17]
[17] As to what the rights of review were see C H O’Halloran “Right of Review and Appeal in Civil Cases Before the Judicature Acts, 1875” (1949) 27 Canadian Bar Review 46
Paragraphs (a) and (b) of s 28(1) of the FCA Act
Paragraphs (a) and (b) of s 28(1) of the FCA Act imply that the appellate jurisdiction conferred on the Federal Court by s 24 at the very least includes jurisdiction to consider any material before the primary judge whose orders are the subject of the appeal, and the reasons for judgment on the basis of which the orders were made; and to “give the judgment which in its opinion ought to have been given in the first instance”.[18] The exercise of such jurisdiction has been described as an appeal by way of “rehearing”.
[18] Dearman v Dearman (1908) 7 CLR 549, at page 561
The cases have noticed at least two types of appeal by way of “rehearing”. The first is often referred to as an “appeal stricto sensu”,[19] or as an “appeal strictly so called”,[20] which Jessel MR described as follows:[21]
On an appeal strictly so called, such a judgment can only be given as ought to have been given at the original hearing; but on a rehearing such a judgment may be given as ought to be given if the case came at that time before the Court of first instance.
[19] Builders Licensing Board v Sperway Constructions (SYD.) Pty Ltd (1976) 135 CLR 616, at page 619 (Mason J)
[20] Quilter v Mapleson (1882) 9 QBD 672, at page 676 (Jessel MR)
[21] Quilter v Mapleson (1882) 9 QBD 672, at page 676
The second type of appeal by way of rehearing is often referred to as an “appeal by way of rehearing” without any qualification; and this reflects the appellate jurisdiction that was conferred on the English Court of Appeal by r 5 of Order LVIII of the Rules of Court in the First Schedule to the Judicature Act. Dixon J, in Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan, described the nature of the appellate jurisdiction conferred on the English Court of Appeal as follows:[22]
In the English Court of Appeal “all appeals are by way of rehearing, that is by trial over again, on the evidence used in the Court below; but there is special power to receive further evidence” . . . . Accordingly, that Court must decide an appeal by applying to the circumstances as they exist, when the appeal is dealt with, the law which then operates to determine the rights and liabilities of the parties . . . If, by a retrospective change in the law, the rights and obligations of the parties come to depend upon facts which have not been ascertained, the Court of Appeal takes the necessary steps to have the dispute between the parties decided according to the law presently in force, and it may set aside the order appealed against, and remit the cause to be reheard so that the rights of the parties may be determined as at the date of rehearing . . . .
[22] Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73, at pages 107-108
Thus, the difference between appeal by way of rehearing and an appeal strictly so called turns on the material that the appeal court may have regard to, and the time by reference to which the appeal court is to determine what judgment it ought to give. The second type of appeal, by way of rehearing, is the jurisdiction “judges in Chancery” had to “re-hear their own decisions and those of their respective predecessors”, with such re-hearings being, “in effect, appeals from former hearings”.[23]
[23] Graziers Association of New South Wales v Australian Legion of Ex-Servicemen and Women (1949) 49 SR (NSW) 300, at page 303
Kirby J, in CSR Limited v Della Maddalena, described the tasks an appeal court must undertake when determining an appeal by way of rehearing:[24]
The form of rehearing so provided “shapes the requirements, and limitations, of such an appeal”. The relevant “requirements” are that the appellate court is obliged to conduct a thorough examination of the record and a real rehearing. It is not confined to reconsideration of the record in order to correct errors of law, although that will certainly be encompassed in such an appeal. It is required to consider suggested errors of fact-finding. Experience teaches that many errors of this kind arise at first instance, more perhaps than errors of law. Having conducted a rehearing as so described, the appellate court is obliged to “give the judgment which in its opinion ought to have been given in the first instance”. This involves, where, as here, there is no jury, conducting a thorough review of the primary judge's reasons and engaging in the tasks of “weighing conflicting evidence and drawing … inferences and conclusions”.
[24] CSR Limited v Della Maddalena [2006] HCA 1, at [16] (footnotes omitted), quoted with approval by the Full Federal Court in Astrazeneca Pty Limited v GlaxoSmithKline Australia Pty Limited [2006] FCAFC 22, at [32]
Paragraph (f) of s 28(1) of the FCA Act
Paragraph (f) of s 28(1) of the FCA confers on the Federal Court the power each of the common law courts in banc (that is, as a bench of judges) could exercise if, after a jury delivered its verdict, the unsuccessful party applied for a new trial.[25] Rich J explained the practice of the common law courts in Phillips v Ellinson Brothers Pty Ltd:[26]
According to the practice of the courts of common law, trials at nisi prius were, in substance, inquiries as to facts, and no judgment could be entered except by the court in banc, the judges of which exercised the right of granting in their discretion a new trial, if there appeared to have been any miscarriage on the trial . . . . The record with the jury's finding came before the court in banc, and if the unsuccessful party took no further proceedings the court gave judgment for the party who had obtained the jury's verdict. An unsuccessful party had the right to challenge the judgment against him, and one method of doing so was by an application for a new trial—a practice which came into existence in the seventeenth century. . . . The courts at Westminster, however, could not direct a verdict to be entered unless leave had been reserved at the trial, and the consent of the parties to this course was implied upon the reservation of this leave . . . . .
[25] “According to the tradition of the common law, a superior court of record is a court sitting in banc for the administration of justice. In the course of time it became settled that, for some purposes, the jurisdiction of a superior court of common law could be exercised by a single judge” - Kotsis v Kotsis (1970) 122 CLR 69, at page 91 (Windeyer J)
[26] Phillips v Ellinson Brothers Pty Ltd (1941) 65 CLR 221, at pages 228-229
In Australian Iron and Steel Ltd v Greenwood Windeyer J identified the grounds on which a new trial would be granted:[27]
Broadly stated, there are two classes of case in which at common law a new trial may be had of an action tried by a jury at nisi prius. The first is for an error of law made by the judge. Examples are cases in which there was a wrongful reception or rejection of material evidence; or in which a non-suit or verdict by direction was improperly granted or refused; or in which there was a misdirection on some point of law, as distinct from an insufficient direction on matters of fact. Errors of law of that kind could in the past have been made the subject of a bill of exceptions and a writ of error or, in some cases, be a ground for a venire de novo. In cases of that sort a new trial is thus a substitute for older remedies.
Cases of the second class are those in which there was no error of law. They include those in which the jury, disregarding the evidence, returned a verdict that was clearly wrong. . . . As error did not lie to correct a verdict, and as attaint was virtually obsolete after Bushell’s Case . . . the only means the courts had of controlling juries' verdicts was by ordering new trials. By the middle of the seventeenth century the practice had become well established: . . . At one period new trials were somewhat readily granted if the judge who had presided at nisi prius expressed himself as dissatisfied with the jury's verdict. But it was always for the court in banc to decide, in its discretion, whether or not there should be a new trial . . .
[27] Australian Iron and Steel Ltd v Greenwood [1962] HCA 42; (1962) 107 CLR 308, at page 315
The power to grant a new trial is distinguishable from an appeal. The Court of Chancery understood that an appeal “was not a process of the common law”;[28] whereas, the power to grant a new trial was a remedy available in jury trials conducted in common law courts. A new trial, however, may now be granted in relation trials conducted by a judge alone. That fact reduces the range of circumstances in which a court exercising appellate jurisdiction would consider it appropriate to order a new trial; and that is because the trial judge is required to give reasons for his or her findings of fact and, in many cases, the appeal court will be in as good a position as the trial judge to assess the evidence that was before the trial judge, and make the findings of fact that in its opinion ought to have been made. Nevertheless, s 28(1)(f) of the FCA Act “is expressed in wide terms and should be given a liberal construction”;[29] and the power to order a new trial will often be considered to be an appropriate remedy where the hearing before the primary judge has substantially miscarried because, for example, a party has been denied procedural fairness, or where a party has failed to comply with disclosure orders, or where the trial judge has failed to give adequate reasons.[30] A new trial will also be granted if the appeal court concludes that, because of the limitations inherent in a rehearing based on the record of the trial, the court of appeal will be denied the advantages a trial judge would have in assessing evidence. Kirby J identified these limitations in CSR:[31]
The “limitations” introduced into the rehearing based on the record of the trial are those necessarily involved in that form of appellate procedure. Such limitations include those occasioned by the resolution of any conflicts at trial about witness credibility based on factors such as the demeanour or impression of witnesses; any disadvantages that may derive from considerations not adequately reflected in the recorded transcript of the trial; and matters arising from the advantages that a primary judge may enjoy in the opportunity to consider, and reflect upon, the entirety of the evidence as it is received at trial and to draw conclusions from that evidence, viewed as a whole.
[28] Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73, at page 108
[29] Conway v The Queen [2002] HCA 2, at [36]
[30] See, for example, Pettitt v Dunkley [1971] 1 NSWLR 376, at page 382; Police Federation of Australia v Nixon [2011] FCAFC 161, at [67]
[31] CSR Limited v Della Maddalena [2006] HCA 1, at [17]
It remains to identify the nature of the trial that must be conducted if an order granting a new trial is granted pursuant to s 28(1)(f) of the FCA Act. Finkelstein J did so in CPSU, The Community and Public Sector Union v Telstra Corporation Ltd (No 2):[32]
A new trial is a rehearing “as if [the case] had never been heard before”: Blackstone's Commentaries on the Laws of England (1768) vol 3 at 391. See also Murray v Murray 856 P2d 463 (Alaska, 1993) (the judgment, upon reversal, is vacated, and the case is put in the same posture in which it was before the judgment was entered); Ceravole v Giglio 587 NYS 2d 741 (NY App Div,1989) (the parties' rights are left wholly unaffected by any previous determination that was set aside); Parker v Elam 829 P2d 677 (Okla,1992) (a judgment that is set aside and remitted stands as if no trial has yet been held). Thus, for the purpose of a new trial, any finding in the first trial has been got rid of: Roe v Naylor (1918) 87 LJKB 958, 963. The parties are not bound by the manner in which they conducted the original trial. On the rehearing, the parties may improve their case by leading evidence that had not been led at the first trial or by putting forward new arguments: Horton v Horton [1960] 1 WLR 987, 988. See also Venn v Tedesco [1926] 2 KB 227, where counsel, who waived a right to rely on a defence at the first trial, was not precluded from raising the point in the new trial. That is because a new trial is a trial that starts again de novo. In Bobolas v Economist Newspaper Ltd [1987] 1 WLR 1101, 1104, Lloyd LJ explained that: “[A] new trial `means what it says'. Existing issues can be abandoned and fresh issues can be raised. Where the same issues arise in both trials, the judge at the second trial should not be hampered by any decision at the first trial.”
[32] CPSU, The Community and Public Sector Union v Telstra Corporation Ltd (No 2) [2001] FCA 479, at [11]
This passage applies to where a court has granted a new trial on the ground of error of law. Where a new trial was granted because the jury verdict was unreasonable, it was open to the court in banc to confine the new trial to one or more issues. It is more than arguable that, given its broad terms, s 28(1)(f) of the FCA Act incorporates the different treatment of the two classes of case in which common law courts granted new trials; and that, in relation to s 28(1)(f), the position is that which Kitto J, in Pateman v Higgin identified in relation to s 160 of the Common Law Procedure Act 1899 (NSW):[33]
The courts of common law at Westminster observed a distinction between cases in which a defeated party was entitled to a new trial ex debito justitiae, e.g., where inadmissible evidence had been allowed in or the jury had been misdirected, and cases in which a new trial was in the discretion of the court, e.g., where the verdict was against the evidence. In the former class of cases the new trial had to be on all issues; in the latter it might be confined to one issue only: Chitty’s Archbold’s Practice, 12th ed. (1866), p. 1530; Willis v. David Jones Ltd. . . . . In New South Wales, under s. 160 of the Common Law Procedure Act 1899, a new trial may be granted either generally or on some particular point or points only as the court thinks fit; and, the old distinction having thus been made irrelevant it would seem that the fundamental guiding principle in choosing between a general and a limited new trial ought to be that which was formerly applied where a new trial was in the discretion of the court: “if on the evidence the court above thinks that justice has not been done, but they shall do more injustice by setting the matter at large again, they may restrict the parties to certain points on the second trial” . . .
[33] Pateman v Higgin (1957) 97 CLR 521, at page 527
Paragraph (c) of s 28(1) of the FCA Act
There are a number of observations that may be made about the text of s 28(1)(c) of the FCA Act. The first relates to the word “remit”; that may be taken to mean “send” or “transfer”. Second, there is the grammatical object of “remit”, namely, “the proceeding”; that is a reference to “the proceeding the subject of the appeal”.[34] Third, the proceeding is to be remitted for a particular purpose, namely, “further hearing”. This implies there will be a continuation of the first trial, which, in turn, implies that, on the proceeding being returned to the court from which the appeal was brought, the second trial will be conducted as if the first trial had not ended. Finkelstein J so held in CPSU. His Honour said:[35]
I have not found it easy to resolve these issues. On the one hand, it is open to conclude that an order under s 28(1)(c) results in a new trial. There are two factors that suggest that possibility. The first is that s 28 does not expressly confer power on the Full Court to grant a new trial on a particular point and, as a matter of common sense, such a power must exist. Section 28(1)(c) does provide for the retrial of part of a case. If there is no other basis for ordering a new trial of part of a case, the power may have to be found in s 28(1)(c). The second factor that suggests that an order under s 28(1)(c) results in a new trial is that unless the case goes back to the original trial judge, it is difficult to describe the remitted case as a continuation of the first trial. And there will be many cases where the trial judge can no longer preside over the remitted case. However, there are powerful factors that tend against the conclusion that an order under s 28(1)(c) produces a new trial. First, such a result ignores the difference in language between s 28(1)(c) (“further hearing”) and s 28(1)(f) (“new trial”). Second, it would render unnecessary either s 28(1)(f), or the words "in whole or" in the expression "in whole or in part" in s 28(1)(c) because of the existence of s 28(1)(f).
On the other hand, the power to grant a new trial for part of a case may be found in s 28(1)(f); that is, the power to grant a new trial may implicitly carry with it the power to grant a new trial on a particular point. In that event, it is not necessary to read s 28(1)(c) as providing for a new trial. Under this approach, the Full Court could order either a new trial, including a new trial of a particular issue under s 28(1)(f), or a more limited form of rehearing, if appropriate under s 28(1)(c). In this way, a “further hearing” would be just that, namely a continuation of a trial that has already begun, though interrupted by a final order which has been set aside.
There are two decisions which bear upon the resolution of the present controversy. In Marks v GIO [1999] FCA 1010, the question was whether the trial judge should receive “fresh evidence” on the hearing of a matter remitted by the Full Court. The trial judge held (at [29]) that, as a result of the order under s 28(1)(c), “the trial was incomplete and unfinished”. As to the admissibility of fresh evidence on the “remitted issue”, the trial judge said that this was a matter of discretion, and he allowed the fresh evidence. On the other hand, in Lynch v Howard (1980) 44 FLR 71, a decision of the Full Court, Evatt and Keely JJ declined to remit a case under s 28(1)(c) on the ground that if such an order were made, it would enable a party to depart from the manner in which he had conducted the first trial, in that case by leading further evidence: 44 FLR at 86. The unstated assumption was that if the Full Court made an order under s 28(1)(c), the “further hearing” would be a new trial, at which all parties would be at liberty to call further evidence. The point presently under consideration was not squarely raised in Lynch v Howard and it would not be appropriate to regard that case as an authority in point. It seems that the parties themselves adopted the assumption that lies behind the judgment, and Evatt and Keely JJ merely accepted that assumption.
The better view appears to me to be that an order under s 28(1)(c) does not result in a new trial. Accordingly, the “further hearing” will be conducted on the basis that it is a continuation of the first trial, where the parties can only mend their hand or change course in accordance with well known rules.
[34] Vata-Meyer v Commonwealth of Australia (No 2) [2015] FCAFC 167, at [13]
[35] CPSU, The Community and Public Sector Union v Telstra Corporation Ltd (No 2) [2001] FCA 479, at [14]-[17]; approved by the Full Federal Court in Fernando v Commonwealth of Australia [2014] FCAFC 181, at [52]-[53]
This Court is bound by this Finkelstein J’s construction of s 28(1)(c) of the FCA Act. There may, however, be another explanation for s 28(1)(c) of the FCA Act. The granting of a new trial was a remedy a common law court in banc granted in relation to a verdict that was rendered in that court. The granting of a new trial, therefore, did not require the record being remitted – that is, sent or transferred - to any other court; it remained with the court. That would also be the case where the Full Federal Court,[36] in the exercise of its appellate jurisdiction, [37] sets aside an order of a judge of the Federal Court. The one court – the Federal Court – would exercise both original and appellate jurisdiction. Where, however, the common law courts’ jurisdiction to grant a new trial has been conferred on a separate court, namely, an appeal court, it becomes an essential incident of the appellate court’s power to grant a new trial that the appeal court remit the proceeding to the court from which the appeal has been brought. An additional explanation for s 28(1)(c) of the FCA Act may be that s 28(1)(f) is restricted to appeals from orders based on the verdicts of juries, whereas s 28(1)(c) of the FCA Act was intended to apply to appeals from orders that were not based on the verdict of a jury.
[36] Constituted as such pursuant to s 14 of the FCA Act
[37] Pursuant to s 25(1) of the FCA Act
consturction of court orders
A court construes a court order “just like any other document”; it “does not delve into the subjective intention of the judge pronouncing the order”.[38]
[38] Radmanovich v Nedeljkovic [2002] NSWSC 212, at [7] (Young CJ in Eq)
The authorities differ about the circumstances in which a court, when construing its or another court’s orders, may refer to material beyond the text of the orders.[39] Some cases insist there must be some ambiguity in the order before the court may refer to the reasons for judgment, while other cases have held that it is permissible or even necessary to consider the reasons for judgment before construing the orders. The weight of authority, at least in the Federal Court, is that a court is entitled to examine the reasons for judgment when construing orders that were made pursuant to those reasons, even where there is no ambiguity in the language of the order.[40]
[39] J Tarrant “Construing undertakings and court orders”, (2008) 82 Australian Law Journal 82
[40] Yates Property Corporation Pty Ltd v Boland (1998) 89 FCR 78; Owston Nominees No 2 Pty Ltd v Branir Pty Ltd (2003) 129 FCR 558 at page 575 (Allsop J); Hamersley Iron Pty Ltd v The National Competition Council [2008] FCA 598, at [86] (Weinberg J): “In my opinion, it is permissible when construing court orders (irrespective of whether they be ambiguous) to have regard to, at least, the pleadings which defined the issues to be resolved.”. The relevant authorities were recently reviewed by Wheelehan J in Menon, in the matter of an election for offices of the Manufacturing Division of the Construction, Forestry, Maritime, Mining and Energy Union (No 3) [2021] FCA 1263
parties’ submissions
Ms McLoughlin submits that the Remitter Order is in substance the same as the remitter order Finkelstein J considered in CPSU, with the consequence that the Remitter Order was made pursuant to s 28(1)(c) of the FCA Act. The proceeding before me, therefore, must be conducted on the basis that it is a continuation of the trial before the Primary Judge; and that the parties may adduce further evidence only in accordance with the well-known rules relating to the reopening of a case. For these reasons, Ms McLoughlin submits, the hearing of the remitted matter should be conducted on the basis of my making the following orders:
1.The evidence relied upon by the parties at first instance SYG 2985/2018 (First Instance Proceedings) will be evidence in these proceedings.
2.The rulings made as to the admissibility of evidence made on 19 October 2020 in the First Instance Proceedings apply to the evidence referred to in the paragraph immediately above.
3.The submissions relied upon by the parties in the First Instance Proceedings will be submissions in these proceedings.
4.The transcript and recording of the hearing on Teams of the First Instance Proceedings will be evidence in these proceedings.
5.The Teams recording of the First Instance Proceedings (Team Recording) will be provided to the parties by 30 May 2022.
6.By 30 June 2022, the parties to identify those parts of the Teams Recording that concern contested credit and factual matters to be viewed by His Honour prior to the first day of hearing.
7.The Applicant to file and service updated expert evidence on or before 21 July 2022.
8.The Respondent to file and serve any expert evidence in reply by 18 August 2022.
9.The Applicant file and service any expert evidence in response on or before 8 September 2022.
10.The matter be listed for evidence in chief and cross-examination in relation to the expert evidence only for one day at a time suitable to the Court on or after 12 September 2022.
11.The parties to file and serve any additional submissions on the expert evidence a week before the matter is listed for submissions.
12.The matter be listed for oral submissions for two days at a time suitable to the court not less than a week after the hearing on expert evidence.
Ms McLoughlin further submits that the making of orders to this effect are not only authorised, but necessary to give effect to the overarching purpose (Overarching Purpose) specified by s 190 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFC Court) and r 1.04 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (GFL Rules).
The respondents, on the other hand, submit that the Remitter Order does not faithfully reflect the language of either s 28(1)(c) or s 28(1)(f) of the FCA Act. The Remitter Order uses the word “rehearing”, not “further hearing” or “new trial”. In those circumstances it is necessary to have regard to the FFC Reasons to determine the nature and scope of the Remitter Order. The respondents particularly rely on the judgment of the Full Federal Court (Addenbrooke FFC) in Addenbrooke Pty Ltd v Dunkan (No 3),[41] which they submit is analogous to the circumstances in which the Remitter Order was made. The respondents submit as follows:
[41] Addenbrooke Pty Ltd v Dunkan (No 3) [2017] FCAFC 166
(a)The Addenbrooke FFC declined to specify pursuant to which of s 28(1)(c) or s 28(1)(f) of the FCA Act it ordered that the “claims” based on misleading or deceptive and unconscionable conduct “be remitted for trial before another Judge”.
(b)The Addenbrooke FFC nevertheless clarified that the hearing was to be conducted as a “new trial” on the basis of the pleading and evidence before the new judge, and with the benefit of seeing the witnesses give evidence in the witness box in the conventional manner.
(c)Having regard to the FFC’s reasons, it is tolerably clear that the Full Federal Court intended that the Court on the basis of pleadings and evidence before the new primary judge, and with the new primary judge having the advantage of observing witnesses give evidence to assess the credibility of witnesses in the usual way. The respondents rely on the following passages from the FFC Reasons (emphasis added by the respondents):
(i)“[T]he lack of content in the reasons and the need for findings of credibility to be made based upon properly supported findings as to the events in issue means that there is nothing to be done but to remit the matter for rehearing by another judge” (FFC Reasons, [32]).
(ii)“The extent of their deficiency means that this is not a case where this Court might fairly exercise its discretion against ordering a new trial” (at [33]).
(iii)“As a result of upholding the appeal on the ground that the primary judge had failed to give adequate reasons for judgment, “that by itself necessitates a retrial of the appellant's application”” (at [34]).
(iv)“[O]n remitter it would be open to the judge conducting the fresh hearing to make such orders as may be considered appropriate in all the circumstances” (at [35]).
(v)“To be clear, the issue of the damages or other relief that might be granted if Ms McLoughlin is successful on any rehearing will be a matter for the judge hearing the matter and any such decision should be made unconstrained by the views expressed by the primary judge” (at [35])
The respondents further submit that the circumstances in CSPU differ significantly from those in which the Full Federal Court made the Remitter Order: the form of the Remitter order in CSPU is different from the Remitter Order because it directed the primary judge to determine the matter in accordance with the Full Federal Court’s reasons; whereas, the appeal concerned a narrow legal issue; and the proceeding was remitted to the same primary judge.
determination
The principal question that arises on the competing submissions is: what is the proper construction of the Remitter Order? That question must be answered having regard to the purpose for which it is necessary to construe the Remitter Order. That purpose is to determine whether the Remitter Order is an order of the sort identified in s 28(1)(c) of the FCA Act, in which case I will be bound to conduct the hearing “on the basis that it is a continuation of the first trial, where the parties can only mend their hand or change course in accordance with well known rules”;[42] or whether the Remitter Order is an order of the sort identified in s 28(1)(f) of the FCA Act, in which case I will be bound to conduct a trial as if the case had never been heard before.[43]
[42] CPSU, The Community and Public Sector Union v Telstra Corporation Ltd (No 2), [2001] FCA 479, at [17]
[43] CPSU, The Community and Public Sector Union v Telstra Corporation Ltd (No 2) [2001] FCA 479, at [11]
I begin with text of the Remitter Order, and note the following:
(a)The Remitter Order uses the word “remitted”, being the past tense of the word “remit” that appears in s 28(1)(c), but not in s 28(1)(f), of the FCA Act. This might suggest that the Remitter Order has been made pursuant to s 28(1)(c) of the FCA Act. The presence of “remitted”, however, is neutral. As I have noted above, the power to remit is a necessary incident of the power to grant a new trial where, as is the case here, the appeal court is separate from the court from which the appeal has been brought.
(b)The Remitter Order does not contain the words “further hearing”. That is significant because it is these words that imply that the hearing that will be conducted on a proceeding remitted pursuant to an order under s 28(1)(c) of the FCA Act will be a continuation of the first hearing.
(c)There are the words “for rehearing”. It is conceivable the Full Federal Court intended “rehearing” to mean the jurisdiction “judges in Chancery” had to “re-hear their own decisions and those of their respective predecessors”.[44] That, however, would be a most implausible construction. The Judicature Act conferred on the English Court of Appeal the jurisdiction judges in Chancery had to rehear their own decisions and those of their predecessors; and in jurisdictions, such as Australia, that have adopted the Judicature system, the jurisdiction to rehear a matter is exclusively associated with the exercise of the appellate, not original, jurisdiction. The more natural construction of “for rehearing” is for the proceeding that was the subject of the appeal be heard again by a Judge of this Court, other than the Primary Judge, in the manner in which this Court is required to hear cases, namely, by holding a hearing in which each party is given the opportunity to adduce and test evidence, and to make submissions.
[44] Graziers Association of New South Wales v Australian Legion of Ex-Servicemen and Women (1949) 49 SR (NSW) 300, at page 303
There is another matter to note. The Orders do not expressly provide for the Primary Judge’s orders be set aside. Order 2 of the Orders, however, provides that the appeal be allowed; and this may be taken to be an order setting aside the Primary Judge’s orders.
I conclude that the Remitter Order is an order of the sort comprehended by s 28(1)(f) of the FCA Act. I rely on the passages from the Full Federal Court’s reasons for judgment on which the respondents rely. Those passages make it plain that the Full Federal Court’s intention in remitting the proceeding to this Court was that a Judge of this Court, other than the Primary Judge, would hear and determine the matter in the way it is bound to hear all matters, namely, by holding a hearing in which each party is given the opportunity to adduce and test evidence, and make submissions, in support of their case.
I do not accept Ms McLoughlin’s submission that even if the Remitter Order is construed as an order for a new trial that the Overarching Purpose authorises this Court on remitter to conduct the hearing on the basis Ms McLoughlin contends it should be conducted. The Overarching Purpose identifies the purpose of the GFL Rules; and it mandates that the Court and parties apply and engage with the GFL Rules in a way that promotes the Overarching Purpose. The Overriding Purpose does not licence the Court to override the GFL Rules, or the manner in which this Court is bound to hear matters.
In any event, it is not self-evident that conducting the hearing on the basis Ms McLoughlin submits it should be conducted would be more efficient or quicker than hearing the matter afresh. It will be open to the parties to tender at the new hearing transcript or video of evidence each witness gave before the primary judge;[45] and, if sufficient cause is shown, it will be open to me to refuse or limit cross-examination on matters that had been the subject of cross-examination before the Primary Judge. Further, there will be a forensic imperative for each of the parties to conduct their cases at the new hearing consistently with the manner in which they conducted their case before the Primary Judge to avoid submissions of inconsistency and recent invention.
[45] Under s 64(2) or s 64(3) of the Evidence Act 1995 (Cth)
disposition
The only order I propose to make is to list the matter for directions at 9.30 am on 8 February 2023 to give the parties an opportunity to consider and possibly agree on what further directions should be made for the hearing of the matter. I expect that at the directions hearing I will be in a position to set the matter down for hearing.
I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 25 January 2023
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