Moon v JLG Industries (Australia)
[2011] FMCA 343
•16 May 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MOON v JLG INDUSTRIES (AUSTRALIA) | [2011] FMCA 343 |
| INDUSTRIAL – Alleged contravention of general protections provision – notice of objection to competency – whether application filed within specified time. |
| PRACTICE & PROCEDURE – Whether application filed within specified time – “within 14 days after”. |
| PRACTICE & PROCEDURE – Withdrawal of lawyer – requirements for withdrawal of lawyer – adjournment sought – principles concerning adjournment. |
| WORDS & PHRASES – “day” – “within” – “within 14 days after” – “after”. |
| Acts Interpretation Act 1901 (Cth), s.36(1) Federal Magistrates Act 1999 (Cth), ss.3 and 42 Federal Magistrates Court Rules 2001 (Cth), rr.1.03, 9.03 |
| Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 Autumn Solar Installations Pty Ltd v Solar Magic Australia Pty Ltd [2010] NSWSC 463 |
| A Waugh, Time. From Micro-Seconds to Millennia – A Search for the Right Time (London: Headline Book Publishing, 1999) The Concise Oxford Dictionary (Oxford: Oxford University Press, 1982) The Shorter Oxford English Dictionary on Historical Principles (Volume I) (Oxford: Oxford University Press, 1973) |
| Applicant: | ROBERT MOON |
| Respondent: | JLG INDUSTRIES (AUSTRALIA) (A DIVISION OF JLG INDUSTRIES, INC) |
| File Number: | PEG 32 of 2011 |
| Judgment of: | Lucev FM |
| Hearing date: | 9 May 2011 |
| Date of Last Submission: | 9 May 2011 |
| Delivered at: | Perth |
| Delivered on: | 16 May 2011 |
REPRESENTATION
| Counsel for the Applicant: | Ms N Leedman |
| Solicitors for the Applicant: | Talbot Olivier |
| Counsel for the Respondent: | Mr M Holler |
| Solicitors for the Respondent: | Baker & McKenzie |
ORDERS
That the respondent’s Notice of Objection to Competency be dismissed.
That the applicant’s solicitor’s oral application made 9 May 2011 to withdraw as lawyers for the applicant be dismissed.
That the applicant’s oral application made on 9 May 2011 for adjournment of the hearing of the Notice of Objection to Competency be dismissed.
That the matter be adjourned to a directions hearing at 2.15pm on
30 May 2011.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 32 of 2011
| ROBERT MOON |
Applicant
And
| JLG INDUSTRIES (AUSTRALIA) (A DIVISION OF JLG INDUSTRIES, INC) |
Respondent
REASONS FOR JUDGMENT
Introduction
In the substantive application in these proceedings, the applicant,
Mr Moon, alleges that the respondent, JLG Industries (Australia),[1] has contravened a general protections provision under s.340 of the Fair Work Act 2009 (Cth)[2] and seeks relief under s.539 of the FW Act in relation to the alleged contravention.
[1] “JLG Industries”.
[2] “FW Act”.
Notice of Objection to Competency
On 4 March 2011 JLG Industries filed a Notice of Objection to Competency on the following grounds:
The Respondent objects to the competency of this application on the grounds that:
1.No substantive Form 5 Application was filed on 26 November 2010 or to date. The purported Form 5 Application consists of an application in form only and does not disclose the Applicant’s claim or include any affidavit in support or any particulars giving substance to the Applicant’s claim.
2.Alternatively the Form 5 Application dated and filed 26 November 2010 was not filed within 14 days after a certificate under s.369 of the Fair Work Act 2009 (Cth) was issued as required by s.371 of the Fair Work Act 2009 (Cth).
The certificate was issued on 12 November 2010 and the Form 5 Application was filed on 26 November 2010 being on the 14th day after issue and not within 14 days after issue.
At hearing JLG Industries did not pursue ground 1 of the Notice of Objection to Competency.
Was the application filed “within” time?
Issue
The issue raised by the Notice of Objection to Competency is whether the application was filed “within” time, namely “within 14 days after”[3] after the issuance of a certificate by Fair Work Australia[4] under s.369 of the FW Act.[5]
[3] FW Act, s.371(2)
[4] “FWA”.
[5] “Section 369 Certificate”.
JLG’s written submissions
In regard to whether the application was filed “within” time JLG Industries’ submissions were as follows:
3.The facts are agreed being that the certificate was issued on 12 November 2010 and the Form 5 Application filed on
26 November 2010 being on the 14th day after issue of the certificate.
4.Section 371 of the Fair Work Act 2009 (Cth) requires the Form 5 Application to be filed within 14 days after a certificate is issued.
5.Essentially the construction point is whether “within” excludes the 14th day after or includes the 14th day after.
6.The Federal Court has held that the 14th day after is excluded from the calculation of “within”. See Susiatin Susiatin v Minister for Immigration & Multicultural Affairs [1998] FCA 825. Statutory Interpretation in Australia, 6th edition, 2006 by DC Pearce and RS Geddes at [6.45].
7.Accordingly the objection to competency ought to be upheld as the Form 5 Application was not filed within 14 days after the certificate was issued on 12 November 2010.
Mr Moon’s submissions
No submissions were filed by Mr Moon. At hearing no submissions were made on behalf of Mr Moon. This unsatisfactory state of affairs, in contravention of the Court’s orders, was sought to be explained by Counsel for Mr Moon by reference to the fact that the lawyers for
Mr Moon were seeking to withdraw as his lawyers. Mr Moon’s lawyer’s oral application to withdraw as lawyers for Mr Moon is addressed further below.[6]
Consideration
[6] See paras.32-35 below.
Understanding the issue
In order to understand the issue, it is necessary to understand:
a)the relevant legislation, and its jurisdictional importance;
b)what constitutes a “day” for the purposes of calculating “14 days”; and
c)the meaning of “within” and “after” within the phrase “within 14 days after”.
Legislation and jurisdictional importance
Sections 369 and 371 of the FW Act provide as follows:
s.369
If FWA is satisfied that all reasonable attempts to resolve the dispute have been, or are likely to be, unsuccessful, FWA must issue a certificate to that effect.
s.371
FWA conference to be held before application
(1) A person who is entitled to apply under section 365 to FWA for FWA to deal with a dispute must not make a general protections court application in relation to the dispute unless:
(a) FWA has issued a certificate under section 369 in relation to the dispute; or
(b) …
Time for application
(2) Despite section 544, a general protections court application that requires a certificate under section 369 must be made within 14 days after the certificate is issued, or within such period as a court allows on an application made during or after those 14 days.
The Section 369 Certificate is therefore an essential requirement in relation to a general protections court application[7] under s.371 of the FW Act, and without it the Court does not have jurisdiction to deal with the general protections court application.[8]
[7] A “general protections court application” is defined in s.370(2) of the FW Act as an “application to a court under Division 2 of Part 4-1 for orders in relation to a contravention of this Part.”
[8] Rentuza v Westside Auto Wholesale (2009) 236 FLR 231 at 237 per Lucev FM; [2009] FMCA 1022 at paras.21-23 per Lucev FM; Hughes v Mainrange Corporation Pty Ltd (No. 2) (2009) 190 IR 351 at 354 per Lucev FM; [2009] FMCA 1044 at para.14 per Lucev FM; Wills v Passeck [2011] FMCA 39 at paras.4-5 per Lucev FM.
The determination of time
The legal regime for the specification of a time in Western Australia is governed by the Standard Time Act 2005 (WA).[9] Under the ST Act, time in Western Australia is determined by reference to “Coordinated Universal Time” as determined by the International Bureau of Weights and Measures, with time in Australia being maintained by the Chief Meteorologist under s.8AA of the National Measurement Act 1960 (Cth).[10]
[9] “ST Act”.
[10] “NM Act”. The legal regime is thus expounded in Electricity Retail Corporation t/as Synergy v The State of Western Australia [2008] WASC 19 at para.37 per Martin CJ.
Day
What constitutes a “day” for the purposes of s.370(2) of the FW Act, is not defined by the FW Act, nor by the NM Act or any other relevant legislation.
Historically, many ancient peoples did not count by days, but rather by nights. This was so of the Taiwanese, Greenlanders, and some Native American Indian tribes: the Dakota Indians counted days in “sleep times”, and the Kiowa used “darks” to measure journey lengths.[11] According to the Roman historian Tacitus the ancient Britons also counted nights not days.[12] Tacitus wrote:
“Non dierum numerum, ut nos, sed noctium computant” (“They do not count time by numbering days, as we do, but by counting in nights”).
This was surprising to a Roman, because the Romans counted their days from one dawn to the next.[13] Different again were the Jews and Christians who traditionally counted days from sunset to sunset, hence the Jewish Sabbath from sunset Friday to sunset Saturday.[14]
[11] A Waugh, Time. From Micro-Seconds to Millennia – A Search for the Right Time (London: Headline Book Publishing, 1999) page 69 (“Time”).
[12] Time, page 69.
[13] Time, page 68.
[14] Time, page 69. The origins of the Christian practices are in the Book of Genesis which records that God made two great lights, a greater light and a lesser light, the day and night respectively: Genesis Ch.1 v.16, and then observes that “And the evening and the morning were the fourth day”: Genesis Ch.1 v.19.
These ancient notions of what constitutes a “day” are not necessarily otiose. Hence the ordinary meaning of “day” is “‘the time between the rising and the setting of the sun’ … [from Johnson’s Dictionary]; the interval of light between one night and the next; in ordinary usage including the lighter part of morning and evening twilight”[15] or “time during which sun is above horizon, interval of light between two nights”.[16] Arguments based on these definitions of “day” are not unknown. In Re Rogers v Secretary, Department of Family and Community Services & Anor[17] the Administrative Appeals Tribunal held that a reference to “daily care” in Commonwealth social security legislation did not justify any distinction between day and night care.[18] In Taig v Fawcett[19] a Victorian Court of Petty Sessions had dismissed information alleging that a person had lit a fire in the open air on a day of acute fire danger, contrary to country fire legislation.[20] A Stipendiary Magistrate had agreed with a contention that the word “day”, which was not defined in the relevant legislation, was therefore ambiguous, as it could mean a day of 24 hours or it could refer to the period from sunrise to sunset. Giving the defendant the benefit of a beneficial reading of the legislation, the information was dismissed because the fire was lit after sunset.[21] On an application for an order to review before the Victorian Supreme Court the same contentions were argued as were before the Stipendiary Magistrate. The Victorian Supreme Court held that “day” in the context of the relevant legislation meant a “calendar day”.[22] The Victorian Supreme Court observed as follows:
In my opinion, on a proper reading of s40(1), the word “day” should be read as meaning a calendar day. The section contemplates a day being specified as a day of acute fire danger -- see subs(4)--and that specification would naturally be achieved by reference to a calendar day, a certain day in the week or the month. It is difficult to see how else a day could be specified. This is the way the specification was effected in the present case. The broadcast was made on 16 March in respect of 17 March. I suppose the same effect could have been produced, if on
16 March it had been broadcast that “tomorrow will be a day of acute fire danger”. But in that event “tomorrow” would mean the calendar day designated by the description, 17 March. And once it is conceded, as I think it must be, that in order to specify a day for the purposes of the section, you have to go to the calendar and refer to a day of the week or a day in the month as designated therein, there can be no justification as a matter of interpretation for saying that the day you are referring to is something other than the calendar day you have specified, namely, a part of it merely and not the whole.
It is true, of course, that in an appropriate setting the word “day” does denote the period between sunrise and sunset. “Day” is there used in contradistinction to “night”. The “day” ends and the “night” begins. The Legislature in s40 is not concerned with this distinction. It is concerned to prevent fires being lit or suffered to remain alight in the open air during a specified day. Whether it is day or night is of no consequence. At a time of acute fire danger, the period does not end when the sun goes down. It may continue for several or more days on end, and the whole purpose of the legislation would be frustrated, if the specification of, say, 17, 18 and 19 March covered only the daylight hours of each of those days and not the whole period from midnight on 16 March until midnight on 19. For the weather conditions that are conducive to the spread of fires, hot north winds and the like, are not confined to daylight hours. There is certainly nothing in the Act to support the view that “day” in s40(1) should be read in the restricted sense. The purpose of the Act is the prevention and suppression of fires in the country area of Victoria, and especially during summer months, when heat conditions make the danger of bush and grass firers so great: see s6, s14, s20, s37, s38 s39 and s50.[23]
[15] The Shorter Oxford English Dictionary on Historical Principles (Volume I) (Oxford: Oxford University Press, 1973) page 491.
[16] The Concise Oxford Dictionary (Oxford: Oxford University Press, 1982) page 242.
[17] (1999) 57 ALD 754; [1999] AATA 768 (“Rogers”).
[18] Rogers ALD at 759 per Senior Member Dwyer; AATA at para.18 per Senior Member Dwyer.
[19] [1962] VR 58 (“Taig”).
[20] Section 40(1) of the Country Fire Authority Act 1958 (Vic) provided that:
[21] Taig at 59 per Herring CJ.
[22] Taig at 60 per Herring CJ.
[23] Taig at 60 per Herring CJ.
When used as a unit of time however the word “day” seems to take on a specific meaning, namely, “the space of twenty-four hours”, as in the “civil day” which is the “period from midnight to midnight”[24] and “period of 24 hours as unit of time …, esp from midnight to midnight.”[25]
[24] Shorter Oxford Dictionary, page 492.
[25] Concise Oxford Dictionary, page 242.
In West v Armstrong[26] the Victorian Supreme Court was dealing with s.74 of the Stock Diseases Act 1890 (Vic) which required travelling sheep to be driven six miles “on each day”. The Victorian Supreme Court held that “on each day”, “refers to each day of the week, and such a day computed from midnight on the one day to midnight on the other, because, in law, day includes day and night.”[27] Although not otherwise relevant, the Federal Court noted in Buresti v Beveridge & Anor[28] that the normal English meaning of the word “days” was “a period of 24 hours”.[29]
[26] [1908] VLR 685 (“West”).
[27] West at 687 per Madden CJ.
[28] (1998) 88 FCR 399 (“Buresti”).
[29] Buresti at 400 per Hill J.
That a day begins and ends at midnight, and that that is a period of
24 hours, was recognised in Autumn Solar Installations:
9. The second and particularly powerful reason for rejecting the suggested analysis is the point made by Kitto J in Prowse v McIntyre [1961] HCA 789; (1961) 111 CLR 264, at 274:
“The beginning of a day is nothing but the end of the day before, and the end of the day is nothing but the beginning of the next; just as the eastern boundary of a piece of land is identical with the western boundary of contiguous land.”
10. Thus all beginnings of days and all ends of days fall precisely at the point of midnight, not an instant before or an instant after. As Euclid recognised in mathematics, a point has no magnitude.[30]
[30]It is therefore the Court’s view, that where the word “days” appears in s.371(2) of the FW Act, what is being referred to are days, which are periods of 24 hours from midnight to midnight, unless the contrary intention specifically appears or can be implied. In this case, nothing in the FW Act either expressly or impliedly requires that a day or days for the purposes of s.371(2) of the FW Act, be interpreted as other than a unit of time of 24 hours from midnight to midnight.
Within
The effect of JLG Industries’ argument is that to be “within” 14 days the application must have been filed by the end of the thirteenth day after the issuance of the Section 369 Certificate, that is, by the end of 25 November 2010.[31]
[31] See Transcript at 7 where Counsel for JLG Industries argued that both the first and last days were excluded from the relevant period.
In the context of the payment of demurrage due “within five banking days” after signing and release of bills of lading the Federal Court has recently observed as follows:
50 Under addendum No 1 to the charterparty, Bowen Basin was obliged to pay freight and load port demurrage within five banking days after signing and release of the bills of lading. Thus, after the charterparty was entered into on 12 March 2010, the time for performance of that obligation was some way off in the future. A contractual obligation to pay “within” a period of time generally requires performance during the interval that elapses between, but not counting the day or event nominated, as the point from which counting beings and the circumstance or day nominated as the end of the period: Thomas v Lambert (1835) 3 Ad & El 61 at 62 per Lord Denman CJ and Littledale J at 63 per Patterson J and Coleridge J (also reported in 4 LJ KB 153 at 154); i.e. the obligation is generally construed as requiring payment before the expiration of the nominated period: Compania Naviera General SA v Kerametal Ltd (“the Lorna”) 1 [1983] 1 Lloyd’s Rep 373 and 375 per Sir John Donaldson MR, 376 per O’Connor LJ, 377 per Dillon LJ. A similar construction has been given to “within” when used in a statute to define a period for the performance of an act: Morton v Hampson [1962] VR 364 at 365 per Herring CJ, Sholl and Little JJ. These constructions accord with the natural and ordinary meaning of “within” and its commercial usage. I am of the opinion that the obligation to pay freight and load port demurrage under addendum No 1 should be construed in the same way, so that the last day for payment was the fifth banking day after the later of the signing and release of the bills of lading.
…
52 … However the release of the bills on Wednesday, 28 April 2010 had the result that Bowen Basin’s obligation to pay freight and load port demurrage had to be fulfilled “within 5 banking days”. That period excluded 28 April 2010 and concluded on the fifth banking day following, namely on 5 May 2010.[32]
[32] STX Pan Ocean Co Ltd v Bowen Basin Coal Group Pty Ltd (No 2) [2010] FCA 1240 at paras.50 and 52 per Rares J (“STX Pan Ocean”).
The effect of the judgment in STX Pan Ocean is that payment was due, excluding the day of the release of the bills of lading, namely
28 April 2010, on the fifth banking day, and not excluding that day. In short, the period commenced on the day after the relevant act, which was therefore the first day, and concluded on the fifth day, not before it.
In a recent judgment of this Court in Swarbrick v Burge and Others[33] the Court dealt with whether an application was filed before the expiration of time fixed for compliance in the context of the time allowed for compliance with a Bankruptcy Notice. The Court observed as follows:
[33] (2009) 236 FLR 311; [2009] FMCA 985 (“Swarbrick”).
11. The time allowed for compliance with the Bankruptcy Notice was “within 21 days”. Section 36(1) of the Acts Interpretation Act 1901 (Cth) provides that:
Reckoning of time
Where in an Act any period of time, dating from a given day, act, or event, is prescribed or allowed for any purpose, the time shall, unless the contrary intention appears, be reckoned exclusive of such day or of the day of such act or event.
12. The provisions of the Acts Interpretation Act apply to the provisions of s.40(1)(g) of the Bankruptcy Act, but also apply to the terms of the Bankruptcy Notice, it being a notice prescribed under s.41(2) of the Bankruptcy Act by reg.4.02 of the Bankruptcy Regulations 1996 (Cth), and is thus a legislative instrument to which the Acts Interpretation Act applies. Thus, the day upon which the Bankruptcy Notice was served is excluded from the calculation of the 21 days.
13. The above interpretation is consistent with the law relating to the meaning of the word “within” in this context. In Susiatin v Minister for Immigration and Multicultural Affairs the Federal Court observed as follows:
“I turn then to the provision of s 478(1)(b). As has been noted, it is there provided, as a mandatory requirement, that an application of the present kind “must be lodged with a Registry of the Federal Court within 28 days of the applicant being notified of the decision”.
The first question that arises concerns the meaning of the term "within" in this context. In Reynolds v Reynolds [1941] VLR 249, O'Bryan J said (at 252):
The word `within' in relation to a period of time does not usually mean `during' or `throughout the whole of'; it is more frequently used to delimit a period `inside which' certain events may happen.
In Morton v Hampson [1962] VR 364, the Full Court said (at 365):
The modern rule in relation to a period of time fixed by statute `within' which an act is to be done after a specified event is that the day of the event is to be excluded; the next day is that first day of the stipulated period and the time expires on the last day of the period, counting from and of course including the first day.
In Ward v Walton (1989) 10 MVR 537, a question arose as to the meaning of s 44(3)(b)(i) of the Limitation Act 1981 (NT) which prohibits the exercise of a discretion to extend the time to lodge an action for damages arising from a motor vehicle accident unless the Court is satisfied that the action has been instituted "within 12 months after the ascertainment of" the material facts by the plaintiff. Asche CJ said (at 541):
So far as the Oxford English Dictionary defines `within' in temporal terms, those definitions are as follows: `In the limits of (a period of time); most usually, before the end of, after not more than; also, since the beginning of, not more than... ago; or generally between the beginning and end of, in the course of, during.
Clearly some of those definitions favour the appellant, (`before the end of'), some, the respondent (`during'). In the context, however, and to avoid an otherwise absurd result I consider that the former meaning is appropriate. For it seems to make good sense for the court to be satisfied that `the action was instituted within' (ie, before the end of or not later than) '12 months after the ascertainment of those facts by the plaintiff'.
A reading of `within' as meaning `before the end of' appears in Earl of Morton's Trustees v McDougal 1944 SC 410... Lord Justice-Clerk Cooper said, at 443: “It is to be noted that the words are `within one month' and not `within the month'. According to its normal significance, as evidenced by the dictionaries, `within' when applied to a period of time most usually means `before the end of'... It seems to me that that is a sufficient meaning to give to the words of the statute - in other words to read them as prescribing a time limit on the expiry of which, if the claim and particulars have not been given, the claim will prescribe.
In my opinion, the word "within" in the present context, has a meaning similar to that attributed to it in the authorities I have mentioned, that is to say, it should be read as indicating the limits of a period before the end of which the relevant act must be done and that for this purpose, the day of the act in question is to be excluded.”
14. Therefore, the day upon which the Bankruptcy Notice was served is excluded from the calculation of the 21 days. Thus,
Mr Swarbrick was required to comply with the Bankruptcy Notice by 3 June 2009. The present “application” was filed on
3 June 2009, and was therefore filed before the expiration of the time for compliance with the Bankruptcy Notice.
In Earl of Morton’s Trustees v McDougall,[34] in addition to the passage cited above in the lengthy extract from Susiatin v Minister for Immigration and Multicultural Affairs[35] in Swarbrick, it was also said that the meaning of “within one month after the expiration of the calendar year” had the “obvious meaning” of “not later than the expiration of one month.”[36]
[34] [1944] SC 410 (“Earl of Morton’s Trustees”).
[35] (1998) 83 FCR 574 (“Susiatin”).
[36] Earl of Morton’sTrustees at 415 per Lord Jamieson.
Morton v Hampson[37] is directly on point insofar as the relevant limitation period was “within 14 days after”. The ratio of that decision is set out in Susiatin, but its practical implications are best appreciated if the facts are understood as they are set out in the judgment in Morton as follows:
[37] [1962] VR 364 (“Morton”).
The judgment was pronounced shortly before 6 p.m. on Thursday, 22 June last. …
Section 74 (1) and (2) of the County Court Act provide:
“(1) Any party to an action or matter who is dissatisfied with any judgment or order of the court or a judge, not being an order of commitment, may appeal from the same to the Supreme Court, notwithstanding that such action or matter may have been brought… by consent as provided by this Act.
(2) (a) Such party shall within fourteen days after such judgment or order give notice in writing of such appeal, together with the grounds thereof, to the other party or his practitioner.
…”
On Friday, 7 July 1961, the defendant’s solicitors served on the plaintiff’s solicitors, at about 11 a.m., a notice of appeal which is in evidence before us. …
There is, in our opinion, no doubt that the notice was served out of time. ‘The modern rule in relation to a period of time fixed by statute “within” which an act is to be done after a specified event is that the day of the event is to be excluded; the next day is the first day of the stipulated period and the time expires on the last day of the period, counting from and of course including the first day’; see Lester v. Garland (1808), 15 Ves Jun 248, Watson v Issell (1890), 16 V L R 607, McPherson v Lawless, [1960] V.R. 363. Therefore the first day of the 14-day period was Friday, 23 June, and the fourteenth (and last) was Thursday, 6 July.[38]
[38] Morton at 365-366 per Herring CJ, Sholl and Little JJ.
Thus, had the appeal notice in Morton been given on the fourteenth day, that is 6 July 1961, it would have been within time. Applied to the facts of this case, it is clear therefore, that on the basis of the judgment in Morton, this application was made within time. That Morton is still good law, is evident from its citation without disapproval in STX Pan Ocean.[39]
[39] STX Pan Ocean at para.50 per Rares J.
The reliance placed by JLG Industries on Susiatin is misplaced.
In Susiatin the relevant period began on 22 October 1997,[40] and not
23 October 1997 as was accepted by the Minister,[41] and as was incorrectly posited by Counsel for JLG Industries in argument. On the basis of the22 October 1997 period commencement, the application in Susiatin was out of time. That said, it is readily apparent that the Federal Court in Susiatin accepted that the ordinary meaning of “within” a period of days “after” was as set out in the authorities cited above, but in Susiatin the Federal Court had to count and not exclude the actual day of notification because of the effect of a relevant regulation. The consequence of that was that the date of receipt counted and the application was a day out of time. The notice of competency objection was therefore sustained.[40] Susiatin at 581 per Beaumont J.
[41] Susiatin at 578 per Beaumont J.
There is no equivalent in this case of the relevant regulation in Susiatin. Therefore, the provisions of the Interpretation Act apply. Applying the provisions of s.36(1) of the Interpretation Act, the first of the 14 days after the certificate was issued on 12 November 2010 is 13 November 2010 because 12 November 2010 is excluded. Therefore, the application being filed on 26 November 2010 was filed within 14 days after the issuance of the Section 369 Certificate under the FW Act.
Within a period “after”
The issue can be approached another way by reference to the use of the word “after” in the phrase “within 14 days after”.
In the context of Commonwealth corporations legislation, and the phrase “within 21 days after”, the New South Wales Supreme Court in calculating whether an application was made within the period of
21 days “after” 16 March 2010 observed as follows:
No period “after” 16 March 2010 started until 16 March 2010 had itself ended. The first day of every period “after” 16 March 2010 was 17 March 2010. At the conclusion of 17 March 2010, one day of every period “after” 16 March had elapsed. In the same way, two days of every period “after” 16 March 2010 had elapsed at the end of 18 March 2010. If one continues this process of counting day by day, twenty-one days “after” 16 March 2010 are seen to have elapsed at the conclusion of 6 April 2010.[42]
[42] Autumn Solar Installations at para.6 per Barrett J.
Applying the above reasoning to this case shows that the first day “after” 12 November 2010, when the Section 369 Certificate issued, is 13 November 2010, and the fourteenth day “after” 12 November 2010 is 26 November 2010.
Another reason that 12 November 2010 is not the first day of the
14 days, is that the general rule, at law, is that the law takes no account of fractions of a day.[43] Therefore, the first day “after” the Section 369 Certificate was issued on 12 November 2010 was 13 November 2010. Again, then, the fourteenth day “after” 12 November 2010 is
26 November 2010.
[43] Forster v Jododex Australia Pty Limited & Anor (1972) 127 CLR 421 at 426 per Gibbs J, cited and applied in Autumn Solar Installations at para.8 per Barrett J.
Conclusion – whether the application was filed “within” time
The final day for filing of this application “within 14 days after” the issuance of the Section 369 Certificate on 12 November 2010 was 26 November 2010, because it was by the expiry of that day, that is the midnight dividing 26 November 2010 from midnight on 27 November 2010, that the application had to be filed. It was filed on 26 November 2010. It was therefore filed within time. It therefore follows that the Notice of Objection to Competency must fail.
Withdrawal of applicant’s lawyers
Rule 9.03 of the Federal Magistrates Court Rules 2001 (Cth)[44] provides as follows:
[44] “FMC Rules”.
(1) A lawyer for a party may withdraw from the record in a proceeding by filing a notice of withdrawal, in accordance with the approved form, and serving the notice on each other party.
(2) However, a lawyer may not file or serve a notice of withdrawal without leave of the Court unless the lawyer has, not less than 7 days before filing the notice, served a notice of intention to withdraw on the party for whom the lawyer is acting.
(3) A notice of intention to withdraw must be in accordance with the approved form.
(4) A lawyer may serve a party with a notice of intention to withdraw by posting it to the residential or business address of the party last known to the lawyer.
(5) If a party's lawyer withdraws from the record, the party's last known residential or business address is the address for service until:
(a) the party appoints another lawyer; or
(b) the party files a notice of address for service.
Rule 9.03 is complied with by:
a)a lawyer serving, either personally or by post, on the party for whom they are acting a Notice of Intention to Withdraw as Lawyer not less than seven days before filing a Notice of Withdrawal as Lawyer;[45] and
b)not less than seven days after serving a Notice of Intention to Withdraw as Lawyer, by filing a Notice of Withdrawal as Lawyer, in accordance with an approved form, and serving the notice on each other party.[46]
[45] FMC Rules, r.9.03(2) and (4).
[46] FMC Rules, r.9.03(1).
A Notice of Withdrawal as Lawyer must not be filed or served without the leave of the Court unless the lawyer has, not less than seven days before filing the notice, served the Notice of Intention to Withdraw as Lawyer on the party for whom the lawyer is acting.[47] That, at the time of the hearing of the Notice of Objection to Competency, was the position between Mr Moon and his lawyers, a Notice of Intention to Withdraw as Lawyer having apparently been served on the applicant by post on 6 May 2011.
[47] FMC Rules, r.9.03(2).
Because a Notice of Intention to Withdraw as Lawyer had only been filed by Mr Moon’s lawyers on the working day before the hearing, an oral application for leave to withdraw as Mr Moon’s lawyer was made at hearing. That application was unsupported by any affidavit evidence, either from Mr Moon or his lawyers. There was brief reference from the bar table to breach of a costs agreement by Mr Moon, but no evidence of it was put before the Court. The Court refused the oral application, insofar as it was pursued, by Mr Moon’s lawyers to withdraw, and did so on the basis that there was no evidence before the Court to justify making such an order, and, because in any event, having given Notice of Intention to Withdraw as Lawyer the previous working day (a Friday) that notice would take automatic effect within a few days, thus entitling Mr Moon’s lawyers to serve a Notice of Withdrawal as Lawyer. There will now be a formal order dismissing the oral application for leave to withdraw as Mr Moon’s lawyer.
Adjournment
Mr Moon’s lawyers made an oral application for adjournment of the hearing of the Notice of Objection to Competency so as to allow
Mr Moon to obtain alternative legal representation.
Any application for adjournment in proceedings in this Court must be considered in the relevant statutory, factual and case management context. The role and mode of operation of this Court as set out in the Federal Magistrates Act 1999 (Cth)[48] and the FMC Rules as prescribed by the objects of the FM Act[49] and the objects of the FMC Rules,[50] provide for the Court to operate in a manner:
a)as informal as possible in the exercise of judicial power;
b)which is not protracted in its proceedings;
c)which resolves proceedings justly, efficiently and economically;
d)which uses streamlined procedures; and
e)that avoids undue delay, expense and technicality.
[48] “FM Act”.
[49] FM Act, ss.3 and 42.
[50] FMC Rules, r.1.03.
Further, the Court must take into account the following principles when determining whether or not to grant leave to allow an adjournment:
a)that paramount consideration remains the doing of justice between the parties, but a just resolution must have regard to any relevant legislative purpose or object;
b)modern principles of case management;
c)the avoidance of undue delay; and
d)the wastage of public resources.[51]
[51] Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 at 192 per French CJ and 213-215 per Gummow, Hayne, Crennan, Kiefel and Bell JJ; [2009] HCA 27 at para.30 per French CJ and paras.97-103 per Gummow, Hayne, Crennan, Kiefel and Bell JJ; Fair Work Ombudsman v Kentwood Industries Pty Ltd [2010] FCA 98 at para.2 per McKerracher J.
On the day of the hearing the Court refused Mr Moon’s application for an adjournment for a number of reasons, including the following:
a)affidavits were due to be filed on 22 March 2011, and submissions and submissions in reply on 11 and 18 April 2011 respectively, and thus were not affected by Mr Moon’s lawyer’s Notice of Intention to Withdraw as Lawyer, as affidavits and the submissions ought to have already been filed in compliance with the Court’s orders;
b)the Court understood the issues being advanced, and did not consider that either a lay or legal practitioner would be able to advance the matter much further on behalf of Mr Moon;
c)there was likely to be a three or four week delay in relation to a short, simple point which ought to be decided promptly;
d)there were likely to be further costs incurred to the prejudice of JLG Industries in respect of a short, simple point which ought to be decided cheaply; and
e)the objects of the FM Act and FMC Rules, especially as they related to the issues adverted to in the preceding two sub-paragraphs, would not be met by the grant of an adjournment.
There will now be a formal order dismissing the oral application for an adjournment.
Conclusions
The Court has concluded that:
a)JLG Industries’ Notice of Objection to Competency is to be dismissed;
b)Mr Moon’s lawyer’s oral application made 9 May 2011 to withdraw as lawyers for the applicant be dismissed; and
c)Mr Moon’s oral application made on 9 May 2011 for adjournment of the hearing of the Notice of Objection to Competency be dismissed.
There will be orders accordingly. Further, the matter is adjourned to a directions hearing at 2.15pm on 30 May 2011.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Lucev FM
Associate:
Date: 16 May 2011
“…on any day in respect of which the Authority or (when so authorised in writing by the Chairman of the Authority either generally or in a particular instance) the Chief Officer or the Secretary of the Authority has cause to be broadcast from a broadcasting station in the State of Victoria a warning of the likelihood of the occurrence of weather conditions conducive to the spread of fires in the whole or any specified part or parts of the said State, no person shall:
(a) light any fire in the open air or permit or suffer any fire in the open air to remain alight notwithstanding any permit or direction which may have been issued or given to him under this or any other act;
… within the said State or (as the case may be) any part of the State specified as aforesaid”.
Autumn Solar Installations Pty Ltd v Solar Magic Australia Pty Ltd [2010] NSWSC 463 at
paras.9-10 per Barrett J (“Autumn Solar Installations”).
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