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O'Halloran v Wood

O'Halloran v Wood

Case [2004] FCA 544 5 May 2004

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FEDERAL COURT OF AUSTRALIA
O’Halloran v Wood [2004] FCA 544
PRACTICE AND PROCEDURE – Respective functions of Application and Statement of Claim - Determination of Preliminary Questions of law - Whether appropriate in the circumstances - Public Service - Judicial Review - Determination that an employee is excess to requirements - Jurisdictional fact - Industrial - Certified Agreement - Relationship between Certified Agreement and Public Service Act
Public Service Act 1999 (Cth)
Administrative Decisions (Judicial Review) Act 1977 (Cth)
Judiciary Act 1903 (Cth)
Workplace Relations Act 1996 (Cth)
Federal Court Rules
O’Halloran v Wood (2003) 75 ALD 446
Commonwealth v Sex Discrimination Commissioner (1998) 90 FCR 179
Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135
Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55
Deputy Commissioner of Taxation v Woodhams (2000) 169 ALR 503
Australian Heritage Commission v Mount Isa Mines Ltd (1995) 60 FCR 456
Craig v South Australia (1995) 184 CLR 163
Australian Heritage Commission v Mount Isa Mines Ltd (1997) 187 CLR 297
Kuar v Minister for Immigration Local Government and Ethnic Affairs (1993) 44 FCR 380
Pharmacy Guild of Australia v Australian Community Pharmacy Authority (1996) 70 FCR 462
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
City of Port Adelaide Enfield v Minister for Transport & Urban Planning (1999) 73 SASR 22
Schwart v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 169
Lee v Jacka (1994) 125 ALR 459
R v Teachers Appeal Board Ex parte Bilney (1984) 35 SASR 492
Preston v Carmody (1993) 44 FCR 1
Barratt v Howard (2000) 170 ALR 529
Public Service Act, 1922 (Cth)
O’Halloran v Wood (2003) 71 ALD 446
JUSTIN JAMES O’HALLORAN v PETER WOOD AND AUSTRALIAN SECURITIES & INVESTMENT COMMISSION
S 481 of 2003
SELWAY J
5 MAY 2004
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

S 481 of 2003

BETWEEN:

JUSTIN JAMES O’HALLORAN
APPLICANT

AND:

PETER WOOD
FIRST RESPONDENT

AUSTRALIAN SECURITIES AND INVESTMENT COMMISSION
SECOND RESPONDENT

JUDGE:

SELWAY J

DATE OF ORDER:

5 MAY 2004

WHERE MADE:

ADELAIDE

THE COURT ORDERS THAT:
1. The application by the respondent to have the question:

‘Is the question whether an employee is excess to the requirements of the Agency for the purpose of section 29(3)(a) of the Public Service Act 1999 a matter for the determination, according to law, of the Agency Head on the material before that person or is that question a jurisdictional fact and one to be determined by the court on the evidence before it?’

determined as a preliminary question in accordance with Order 29 Rule 2 of the Federal Court rules be dismissed.

2. The application by the respondent to have the question:

‘Is the question whether a staff member is excess for the purpose of clause 46.2 of the Certified Agreement 2001-2003 a matter for the determination, according to law, of the Chairman on the material before him or is that question…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading O'Halloran v Wood

Details

AGLC: O'Halloran v Wood [2004] FCA 544
Case: [2004] FCA 544
Decision Date: 5 MAY 2004

CaseChat Overview and Summary

In the Federal Court of Australia, the case of O'Halloran versus Wood involves an application by the respondent to have two questions decided as preliminary matters. The questions concern whether the determination of whether an employee is considered 'excess to the requirements of the Agency' under the Public Service Act 1999, and whether a staff member is deemed 'excess' under the Certified Agreement 2001-2003, are matters to be decided by the relevant authority or if they are jurisdictional facts to be determined by the court. The applicant, O'Halloran, sought to join the Chairman of the Australian Securities and Investments Commission as a party to the proceedings and to file an amended application and statement of claim. The respondent opposed these applications.

The central legal issue before the court was whether the two questions proposed by the respondent should be determined as preliminary questions in accordance with Order 29 Rule 2 of the Federal Court Rules. The court had to assess if these questions were jurisdictional in nature and therefore required judicial determination, or if they were matters for the administrative authority to decide based on the material before them. The court also needed to consider the applications for the applicant to join an additional party and to amend the application and statement of claim.

The court dismissed both applications to have the questions determined as preliminary matters, finding that they were not jurisdictional facts but rather questions to be decided by the relevant authorities based on the material before them. The court granted the applicant leave to join the Chairman of the Australian Securities and Investments Commission as a party to the proceedings and to file an amended application and statement of claim by specified dates. The respondent was also granted leave to file an amended defence by a later date. The court ruled that these steps were necessary to ensure that all relevant parties and issues were properly before the court.

The court's final orders include dismissing the applications for the questions to be determined as preliminary, granting leave for the applicant to join an additional party and to amend the application and statement of claim, and granting the respondent leave to file an amended defence. The applicant was given until 1 June 2004 to file the amended application and statement of claim, and the respondent was given until 1 July 2004 to file the amended defence.

Orders

Orders of the court

1. The application by the respondent to have the question:

‘Is the question whether an employee is excess to the requirements of the Agency for the purpose of section 29(3)(a) of the Public Service Act 1999 a matter for the determination, according to law, of the Agency Head on the material before that person or is that question a jurisdictional fact and one to be determined by the court on the evidence before it?’

determined as a preliminary question in accordance with Order 29 Rule 2 of the Federal Court rules be dismissed.

2. The application by the respondent to have the question:

‘Is the question whether a staff member is excess for the purpose of clause 46.2 of the Certified Agreement 2001-2003 a matter for the determination, according to law, of the Chairman on the material before him or is that question a jurisdictional fact and one to be determined by the court on the evidence before it?’

determined as a preliminary question in accordance with Order 29 Rule 2 of the Federal Court rules be dismissed.

3. The Amended Application filed herein on 1 December, 2003 be struck out.

4. The applicant be given leave to join the Chairman of the Australian Securities and Investments Commission as a party to the proceedings.

5. The applicant have leave to file and serve on or before 1 June, 2004 a further Amended Application complying with Order 4 of the Federal Court Rules.

6. The applicant have leave to file and serve on or before 1 June, 2004 an Amended Statement of Claim complying with Order 4 Rule 6 and Order 11 of the Federal Court Rules.

8. The respondent have leave to file and serve on or before 1 July, 2004 an Amended Defence.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

SELWAY J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: SELWAY J

Full text does not contain this section.

Citations

AGLC Citation

O'Halloran v Wood [2004] FCA 544

Most Recent Citation

Hansen Yuncken Pty Ltd v Yuanda Australia Pty Ltd [2018] SASC 158

Cases citing this decision · 2 of 2 shown

Hansen Yuncken Pty Ltd v Yuanda Australia Pty Ltd
[2018] SASC 158 Para 4

…ng must always be one or the other.[7] [6] Australian Heritage Commission v Mount Isa Mines Ltd (1995) 60 FCR 456 at 465-466. [7] O’Halloran v Wood [2004] FCA 544 at [23].…
Accused A v Callanan
[2009] QSC 12 Para 1

…lian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 378 per Toohey and Gaudron JJ. [63] O’Halloran v Wood [2004] FCA 544 at [24]. [64] Australian Broadcasting Commission Staff Association v Bonner [1984] 2 FCR 561 at 563 per Keely J; see also Morling J at 567; O’Halloran v Wood (supra) ; Australian Broadcasti…

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Cases cited in this decision · 20 of 20 shown

South Australia v Slipper
[2004] FCAFC 164 Para 19

…a matter for determination by the Agency Head and is not a matter of objective fact to be determined by the Court. To paraphrase a comment I made in South Australia v Slipper (2003) 203 ALR 473, 485 [30] ASIC argues ‘in the public law jargon, [that] the relevant jurisdictional fact is whether or not the [Agency Head] is satisfied…
State of South Australia v Honourable Peter Slipper MP
[2003] FCA 1414 Para 19

…n by the Agency Head and is not a matter of objective fact to be determined by the Court. To paraphrase a comment I made in South Australia v Slipper (2003) 203 ALR 473, 485 [30] ASIC argues ‘in the public law jargon, [that] the relevant jurisdictional fact is whether or not the [Agency Head] is satisfied, not whethe…
O'Halloran v Wood
[2003] FCA 854 Para 5

…involved the Certified Agreement. On 15 August, 2003 I decided that this Court did not have such jurisdiction: O’Halloran v Wood (2003) 75 ALD 446; [2003] FCA 854. In 11 November 2003 I made orders that the applicant file and serve an amended statement of claim. The applicant did not do so. Instead the applicant…
Schwart v Minister for Immigration and Multicultural and Indigenous Affairs
[2003] FCA 169 Para 1

…inister for Transport & Urban Planning (1999) 73 SASR 22, 30; Schwart v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 169 [16] (apparently confirmed on appeal: [2003] FCAFC 229 at [16]). In such a case the legal question asked of me would not be capable of an either/or answer of the…
Barratt v Howard
[2000] FCA 190 Para 3

…A recent example of this approach can be seen in the reasoning of the Full Court in Barratt v Howard (2000) 170 ALR 529. That case involved the dismissal of a Secretary of a Department (as Agency heads were then called) pursuant to the Public Service Act 1922 (Cth) s 37 (subsequently repealed). In that case the Full Court…
Deputy Commissioner of Taxation v Woodhams
[2000] HCA 10 Para 21

…sion(s) in light of the statutory purpose so as to identify the relevant Parliamentary intent: see Deputy Commissioner of Taxation v Woodhams (2000) 169 ALR 503 at 512-513.…
Corporation of the City of Enfield v Development Assessment Commission
[2000] HCA 5 Para 20

…ndent and the applicant can be observed in the discussion by the High Court in Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 at 149-150, [33]-[34].…
Re Railway Appeal Board
[1999] WASCA 63 Para 11

…r government employment is a proper matter for public law: see Re Railway Appeal Board Ex parte Western Australian Government Railways Commission (1999) 21 WAR 1 (Railways Commission Case).…
City of Port Adelaide Enfield v Minister for Transport and Urban Planning
[1999] SASC 73 Para 1

…ed with’ would be a question of fact and degree: see Debelle J in City of Port Adelaide Enfield v Minister for Transport & Urban Planning (1999) 73 SASR 22, 30; Schwart v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 169 [16] (apparently confirmed on appeal: [2003] FCAFC 229 at [16]).…
Timbarra Protection Coalition Inc v Ross Mining NL
[1999] NSWCA 8 Para 21

…a particular fact is a ‘jurisdictional fact’ involves a legal conclusion: see Spigelman CJ in Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55 (‘ Timbarra ’) at 64. It is a conclusion reached following an inquiry to identify the statutory pre-conditions to the exercise of the relevant power (or…
Commonwealth v Sex Discrimination Commissioner
[1998] FCA 1607 Para 11

…arty. They also agreed that it was appropriate to describe the Chairman in the name of his office: see Commonwealth v Sex Discrimination Commissioner (1998) 90 FCR 179 at 191. Leave should also be given to enable that to be done.…
Project Blue Sky Inc v Australian Broadcasting Authority
[1998] HCA 53 Para 1

…t were once described as ‘directory’. That description is no longer appropriate: see Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 390-391. However, the rejection of that description does not deny the capacity of the Parliament to legislate to the same effect. In such a case the quest…
Australian Heritage Commission v Mount Isa Mines Ltd
[1997] HCA 10 Para 22

…herwise involves ‘subjective factors’ may suggest that the fact is not jurisdictional: see Australian Heritage Commission v Mount Isa Mines Ltd (1997) 187 CLR 297 ( Mt Isa Mines ) at 301; Kuar v Minister for Immigration Local Government and Ethnic Affairs (1993) 44 FCR 380, 390; Timbarra at 72. The extent to which th…
Pharmacy Guild of Australia v Australian Community Pharmacy Authority
[1996] FCA 1007 Para 22

…t is jurisdictional may also suggest that it is not: Mt Isa Mines at 306; Pharmacy Guild of Australia v Australian Community Pharmacy Authority (1996) 70 FCR 462, 476; Timbarra at 72. The extent to which the factual determination is made in the course of decision-making, rather than as a precondition for it, may sug…
Australian Heritage Commission v Mount Isa Mines Ltd
[1995] FCA 947 Para 22

…t is often difficult, particularly where the issue is left largely to inference: see Black CJ in Australian Heritage Commission v Mount Isa Mines Ltd (1995) 60 FCR 456 at 465-466. It would not appear that there is any presumption, one way or the other, that the statutory reference to a fact as a pre-condition to the…
Craig v South Australia
[1995] HCA 58 Para 22

…erence to a fact as a pre-condition to the exercise of statutory powers is jurisdictional even for administrative bodies: see Craig v South Australia (1995) 184 CLR 163 at 179; Timbarra at 67. However, there are some factors that may give some indication of Parliament’s intent. The extent to which the relevant factua…
Kuar, R. & Anor. v The Honourable Nick Bolkus, Minister of State for Immigration, Local Government and Ethnic Affairs
[1993] FCA 613 Para 22

…ommission v Mount Isa Mines Ltd (1997) 187 CLR 297 ( Mt Isa Mines ) at 301; Kuar v Minister for Immigration Local Government and Ethnic Affairs (1993) 44 FCR 380, 390; Timbarra at 72. The extent to which the relevant decision is subject to a detailed process of prior consultation (see Mt Isa Mines at 306; Timbarra a…
Preston v Carmody
[1993] FCA 542 Para 2

…foundation’ for the relevant decision: see, for example R v Teachers Appeal Board Ex parte Bilney (1984) 35 SASR 492 at 493; Preston v Carmody (1993) 44 FCR 1 at 11-12. The relevant decision was subject to judicial review, including under the ADJR Act, but not for making an error as to a jurisdictional fact. The…
ACTEW Corporation Ltd v Pangallo
[2002] FCAFC 325 Para 10

…to certified agreements. A certified agreement is not a contract - its force and effect are statutory: see ACTEW Corporation Ltd v Pangallo [2002] FCAFC 325. This Court has jurisdiction under WRA s 178 to order penalties for breach of a certified agreement; it also has jurisdiction under WRA s 413A to ‘give an inte…
HEYDON J
[2003] FCAFC 229 Para 1

…22, 30; Schwart v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 169 [16] (apparently confirmed on appeal: [2003] FCAFC 229 at [16]). In such a case the legal question asked of me would not be capable of an either/or answer of the sort assumed in the question.…

Legislation cited in this decision · 5

Judiciary Act 1903 (Cth)
39B 2 mentions (from Para 5)
Public Service Act 1922 (Cth)
37 2 mentions (from Para 3)
Public Service Act 1999 (Cth)
2 mentions (from Para 2)
Administrative Decisions (Judicial Review) Act 1977 (Cth)
1 mention (from Para 4)
Workplace Relations Act 1996 (Cth)
1 mention (from Para 5)

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 481 of 2003

BETWEEN:	JUSTIN JAMES O’HALLORAN APPLICANT
AND:	PETER WOOD FIRST RESPONDENT AUSTRALIAN SECURITIES AND INVESTMENT COMMISSION SECOND RESPONDENT
JUDGE:	SELWAY J
DATE OF ORDER:	5 MAY 2004
WHERE MADE:	ADELAIDE