FEDERAL COURT OF AUSTRALIA
Qube Ports Pty Ltd v McMaster [2016] FCA 59
ORDERS
VID 935 of 2015 BETWEEN: QUBE PORTS PTY LTD ACN 123 021 492
Applicant
AND: TORREN MCMASTER
Respondent
JUDGE:
BUCHANAN J
DATE OF ORDER:
10 FEBRUARY 2016
THE COURT ORDERS THAT:
1.The application for leave to appeal, filed on 18 December 2015, be dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
BUCHANAN J:
On 23 July 2013, Mr Torren McMaster was dismissed from his employment as a stevedore with Qube Ports Pty Ltd (“Qube”). He commenced proceedings in this Court on 11 November 2013 claiming relief under the Fair Work Act 2009
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- AGLC
- Qube Ports Pty Ltd v McMaster [2016] FCA 59
- Case
- [2016] FCA 59
- Decision Date
CaseChat Overview and Summary
The court held that ordinarily an appeal does not lie unless an order is made. An expression of reasons, for example, does not give rise to a right of appeal. However, Qube argued that the order made by North J could be treated as an appealable order because it separated the “Question of Liability” from other issues in the proceeding. The court noted that the requirements of O 29(3) no longer apply. It held that the reasoning in Town, as explained in Landsal, had no application in this case because North J was not required to make an order incorporating his conclusions. The absence of such an order could not be treated as a mere procedural oversight or an unimportant formality.
The court dismissed Qube’s application for leave to appeal. It held that there was no relevant order of 4 December 2015 in respect of which an appeal lies. The hearing was adjourned to a directions hearing fixed for 3 February 2016, at 10.15am.
Orders
Orders of the court
1. The application for leave to appeal, filed on 18 December 2015, be dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
1. The hearing is adjourned to a directions hearing fixed for Wednesday 3 February 2016, at 10.15am.
On 18 December 2015, Qube applied for leave to appeal against “the judgment of Justice North given on 4 December 2015 at Melbourne”, relying on s 24(1A) of the Federal Court of Australia Act 1976 (Cth) (“the FCA Act”).
Section 24(1)(a) and (1A) of the FCA Act provide:
24 Appellate jurisdiction
(1) Subject to this section and to any other Act, whether passed before or after the commencement of this Act (including an Act by virtue of which any judgments referred to in this section are made final and conclusive or not subject to appeal), the Court has jurisdiction to hear and determine:
(a) appeals from judgments of the Court constituted by a single Judge exercising the original jurisdiction of the Court;
…
…
(1A) An appeal shall not be brought from a judgment referred to in subsection (1) that is an interlocutory judgment unless the Court or a Judge gives leave to appeal.
Section 25(1) of the FCA Act provides:
25 Exercise of appellate jurisdiction
(1) The appellate jurisdiction of the Court shall, subject to this section and to the provisions of any other Act, be exercised by a Full Court.
but s 25(2)(a) and (e) provide:
(2) Applications:
(a) for leave or special leave to appeal to the Court; …
…
must be heard and determined by a single Judge unless:
(e) a Judge directs that the application be heard and determined by a Full Court; …
…
In addition, a single Judge may, in the exercise of the Court’s appellate jurisdiction, give summary judgment (s 25(2B)(aa)), including on an application for leave to appeal (s 25(2BA)). Those powers must normally, indeed, be exercised by a single Judge, rather than a Full Court (s 25(2BB)).
On 28 January 2016, Mr McMaster filed a notice of objection “to the competency of the appeal”, stating the following ground of objection:
1. There is no relevant order of 4 December 2015 in respect of which an appeal lies.
Mr Champion, who appeared for Mr McMaster on Qube’s present application for leave to appeal, conceded candidly that the objection to competency was procedurally misdirected as no leave to appeal has yet been granted and, strictly speaking, no appeal is before the Court. The objection to competency of an appeal serves, nevertheless, to expose an issue which requires attention in connection with the present application.
In Prime Property Investment Pty Ltd v Van Der Velde (2011) 199 FCR 34, Besanko J (at [2]) treated an objection to the competency of an appeal (see now r 36.72 of the Federal Court Rules 2011 (Cth)) as an application for summary judgment with which he could deal as a single judge. In Dauguet v Centrelink [2015] FCA 1212, Murphy J expressed the view, obiter, that a single judge could deal with an objection to competency (at [71]-[76]).
The question does not strictly arise in the present case because the objection to competency is admittedly premature, but I see considerable force in the observations of Murphy J that summary judgment may be given on the ground that an appeal is incompetent and in the practical course taken by Besanko J. In the present case, indeed, the applicant asked me to take into account the objection to competency when dealing with its present application.
In any event, it seems to me to be unavoidable in the present case that I decide whether there is any order against which an appeal might be brought when deciding whether or not to grant leave to appeal.
Qube accepts that, normally, an appeal does not lie unless an order is made. It argues for a way around that difficulty in the present case on a number of bases, but first that general proposition should be further explained because it is a fundamental one which is relevant to an assessment of the attempts by Qube to quarantine it.
Section 24(1)(a) of the FCA Act (set out earlier) provides for appeals from “judgments of the Court”. Section 4 defines “judgment” as follows:
judgment means:
(a) a judgment, decree or order, whether final or interlocutory; or
(b) a sentence;
and includes a conviction.
(Emphasis in original.)
In Lawrance v The Commonwealth of Australia [2007] FCA 1524, I had occasion to say (at [65]):
65 An appeal may be brought in this Court against a ‘judgment’ of the FMCA (Federal Court of Australia Act 1976 (Cth) (‘FCA Act’) s 24(1)(d)) provided that, in the case of an interlocutory judgment, leave is obtained (FCA Act s 24(1A)). ‘Judgment’ is defined by s 4 of the FCA Act to mean ‘a judgment, decree or order, whether final or interlocutory, or a sentence’. The words ‘judgment, decree or order’ have been held to have the same meaning as the words ‘all judgments, decrees, orders’ in s 73 of the Constitution (Ah Toy v Registrar of Companies (1985) 10 FCR 280; Moller v Roy (1975) 132 CLR 622). Judgments, accordingly, involve formal orders. An expression of reasons, for example, does not give rise, independently, to a right of appeal (Driclad Pty Limited v Federal Commissioner of Taxation (1968) 121 CLR 45 at 64; R v Ireland (1970) 126 CLR 321 at 330; Moller v Roy at 639).
More recently, in Maughan Thiem Auto Sales Pty Ltd v Cooper (2013) 216 FCR 197, Katzmann J (with whom Greenwood and Besanko JJ agreed) said (at [46]):
46 … As Mansfield J recognised in Vincent Lee Consulting Services v Bourne at [25], it is well accepted that reasons for judgment are not themselves judgments and there is no appeal against reasons (see, for example, Hi-Fert Pty Ltd v Kiukiang Maritime Carriers Inc (No 3) (1998) 86 FCR 374 at 378 per Beaumont J). For there to be a judgment there must be an order. The accepted legal meaning of judgment is “the formal order made by a court which disposes of, or deals with, the proceeding then before it” (Moller v Roy (1975) 132 CLR 622 at 639 per Mason J; Ah Toy v Registrar of Companies (1985) 10 FCR 280 at 285-286). …
On the present application, Qube argued for an exception to this principle based on the order made by North J on 5 August 2014 for a separate hearing and determination of the “Question of Liability”. Qube relied particularly on cases which concerned O 29 of the former Federal Court Rules (Cth). In those former Rules, O 29(1)-(4) provided as follows:
Order 29 Separate decision of questions: consolidation
Division 1 Separate decision of questions
1 Interpretation
In this Order, question includes any question or issue in any proceeding, whether of fact or law or partly of fact and partly of law, and whether raised by pleadings, agreement of parties or otherwise.
2 Order for decision
The Court may make orders for:
(a) the decision of any question separately from any other question, whether before, at or after any trial or further trial in the proceedings; and
(b) the statement of a case and the question for decision.
3 Orders, directions upon decision
Where any question is decided under this Order, the Court shall, subject to rule 4, make such order, grant such relief or give such directions as the nature of the case requires.
4 Disposal of proceedings
Where the decision of a question under this Order:
(a) substantially disposes of the proceeding or of the whole or any part of any claim for relief in the proceeding; or
(b) renders unnecessary any trial or further trial in the proceeding or on the whole or any part of any claim for relief in the proceeding;
the Court may, as the nature of the case requires:
(c) dismiss the proceeding or the whole or any part of any claim for relief in the proceeding; or
(d) pronounce any judgment; or
(e) make any other order.
(Emphasis in original.)
The requirements of O 29(3) should particularly be noted because they seem to me to be fundamental to some of the reasoning to which I will refer shortly.
In Town v Australian Telecommunications Commission (1983) 67 FLR 48; 47 ALR 137 (“Town”), a Full Court allowed an appeal against an answer by a single judge to a question formulated by parties to the proceedings. The answer was given in an apparently formal way in open court, after argument and later explained in written reasons for judgment, but was not the subject of separate formal order. The procedure adopted was not expressed to be based on O 29, but the Full Court accepted that, in substance, it was. The judge made it clear in observations in court that he understood an appeal might be brought in relation to the conclusions on the questions of law which he had answered. The parties agreed that the appeal was competent and should be decided.
It was in that context that Sheppard J (with whom Franki J agreed) said ((1983) 67 FLR 48 at 60; 47 ALR 137 at 150):
His Honour having found against the appellant, it is superficially difficult to perceive what order his Honour has made. Unless there is an order — there is certainly no judgment — there can be no appeal pursuant to s. 24 because there is nothing to appeal against. But it seems to me that in deciding to answer the question in the way that he has, his Honour has, in reality, made an order determining the question favourably to the respondents. The order is not a final order but an appeal lies against an order which is interlocutory only. …
(Emphasis added.)
and McGregor J said ((1983) 67 FLR 48 at 55; 47 ALR 137 at 145):
Order 29 empowers this Court (including a single judge thereof) to make a decision in respect of any question separately from any other question or questions. Such a course would be justified by consent of the parties, acted upon in an appropriate case by the judge at first instance. We have not been referred to any specific order made by the learned judge referable to that order; yet it is implicit on a consideration of the whole matter that the judge proceeded as if such an order were made, and if it is necessary to remember, with the concurrence of all parties. We should therefore, I consider, accept that he proceeded as if the orders were made. We need not concern ourselves with a consideration that, for example, there was a failure by him to take some procedural step which was available and acquiesced in by the parties.
(Emphasis added.)
Acceptance by the Court of the proposition that the judge had “in reality” or “implicitly”, made an order seems to me, with respect, to be fundamental to the reasoning extracted above. The implication did not arise from the making of any prior order under O 29 for the determination of a separate question (no such formal order had been made) but from a consideration of the whole of the circumstances including the position taken by the parties at first instance and on appeal.
The case, with respect, is an unusual (perhaps exceptional) one.
Town was explained and distinguished in Landsal Pty Ltd (in liquidation) and Others v REI Building Society, now The Co-Operative Building Society of South Australia (1993) 41 FCR 421 (“Landsal”). In Landsal, O 29 had not been specifically invoked either. The primary judge (O’Loughlin J) had, however, given directions that the trial would initially proceed upon some matters, and not others. The Full Court referred to O 29, and Town, as follows (at 425):
… It is clear from O 29, rr 3 and 4 that if this procedure is invoked, the court is required, after having decided any separate question, to make such order, grant such relief or give such directions as the nature of a case requires. Where the decision of a question tried separately substantially disposes of the whole proceeding, r 4 requires the court to make an order reflecting that result. Such orders are, of course, orders from which an appeal lies under s 24 of the Federal Court of Australia Act.
If a judge can be seen to have dealt with a question in the litigation as a separate issue under O 29, Town v Australian Telecommunications Commission (1983) 67 FLR 48 shows that an appeal will lie from such a determination, even though the judge may not have made a formal order reflecting that decision, as is required by r 3 or 4.
(Emphasis added.)
and (at 426):
Although the trial judge had not made any formal order, this Court concluded that he had acted under O 29 in determining the question of law by deciding it against one party and in favour of the other: he had done something which r 3 of that Order required to be done by the pronouncement of a formal order. It was for this reason that the court regarded the appeal as competent, even though the trial judge had not in fact pronounced any order.
(Emphasis added.)
By contrast to Town, in Landsal the Full Court found that O’Loughlin J had neither intended to proceed under O 29 nor, when making his findings on the matters initially addressed, to make orders at that stage. Rather:
… his Honour regarded the publication of the findings as but one step in the hearing of the case, which would be resumed and would proceed until the trial was finished, when his Honour would give judgment, unless the parties in the meantime were able to settle the litigation after considering his findings.
and:
We do not think his Honour proceeded under O 29. We think instead that his Honour decided to hear the trial in two phases, because he accepted that there were advantages to the parties if he were to deal with important matters upon which a determination of liability would in large part depend, and then give the parties an opportunity to consider their position, before completing the hearing.
More generally, the Full Court said (at 430-431):
… Here, O’Loughlin J was not exercising a jurisdiction which required him to make any final determination on the issues the subject of his findings. He was therefore entitled to refrain from incorporating his findings in an order which, if made, would have been appealable. …
Unless the case is one in which the judge has pronounced a judgment or order or can be seen to have intended to do that, we do not think it is open to a litigant to appeal from a determination made in the course of a hearing, which does not necessarily dispose of any question in the litigation, irrespective of the finality with which the judge may have expressed himself in making the determination. It may be appropriate to infer that the judge intended to make an order if the case is one in which he was required by the particular procedure he followed to conclude the matter by giving a judgment or by making an order. It is not to the point that the litigant desirous of appealing is able, by a process of appropriate drafting, to reflect the effect of the ruling or determination in the form of a declaration. That does not assist in conferring a right of appeal where the judge himself, not being bound to do so, has declined to make such a declaration.
If, in the exercise of his inherent jurisdiction, a judge decides to conduct a trial in separate parts, there is no requirement that he make an order reflecting the conclusions he has reached part way through the hearing. Whether a judge, in exercising this particular jurisdiction has reached a conclusion on some of the issues part way through the task, which can be immediately made the subject of an appeal, depends upon whether he has either formally incorporated those conclusions in an order or can be seen to have intended to have done that. If in such a case it can be seen that the judge did not intend to make an order reflecting conclusions he has reached part way through conducting the trial of a matter, then there is nothing that can be the subject of an appeal, whether by leave or as of right.
(Emphasis added.)
The requirements stated by O 29(3) no longer apply. Rules 30.01 and 30.02 (of the Federal Court Rules 2011 (Cth)) provide:
Part 30—Hearings
Division 30.1—Separate decisions on questions
30.01 Application for separate trials
(1) A party may apply to the Court for an order that a question arising in the proceeding be heard separately from any other questions.
(2) The application must be made before a date is fixed for trial of the proceeding.
Note 1: The Court may order that a party state a case and the question for decision.
Note 2: The Court will give any directions that are necessary for the hearing of the separate question.
30.02 Disposal of proceedings after hearing separate questions
If a decision on a question substantially disposes of the proceeding or renders any further trial of the proceeding unnecessary, a party may apply to the Court for:
(a) judgment; or
(b) an order dismissing the whole or any part of the proceeding.
Qube argued that no change in substance from O 29 had been intended, relying on a statement in the Explanatory Statement which was published when the Rules were promulgated:
Part 30 adopts, simplifies and streamlines the process and procedures which operated under the former Rules and does not substantially alter existing practice.
The argument cannot be accepted. The requirement in O 29(3) no longer appears. The reasoning in Town, as explained in Landsal, has no application. North J was not required to make an order incorporating his conclusions; nor can the absence of such an order be treated as merely an inconvenience, a procedural oversight or an unimportant formality.
It is, of course, a matter for his Honour whether an order dealing with the issue of contravention of the FW Act is made at this stage of the proceedings before him, but it does not appear that either party has a present intention to seek such an order.
Qube referred also to observations by French J (with whom Jenkinson and Spender JJ agreed) in Arrowcrest Group Pty Ltd v Gill (1993) 46 FCR 90 (“Arrowcrest”) and by Mansfield J in Griffiths v Northern Territory of Australia (No 2) [2015] FCA 443 (“Griffiths”), but it is not necessary to discuss those cases in any detail. In Arrowcrest, a formal order had been made, from which an appeal lay with leave, whatever the source of the power to determine a preliminary question; in Griffiths, no order under r 30.01 had been made for the determination of a separate question and no formal order was subsequently made about the question itself.
In Kruhse Enterprises Pty Ltd v Darwin Fibreglass Pty Ltd [1999] FCA 20 (“Kruhse”), O’Loughlin J considered an application for leave to appeal from reasons for judgment in the Supreme Court of the Northern Territory dealing with questions considered under Rules of that Court relevantly indistinguishable from rr 30.01 and 30.02. His Honour said (at [6], [8]):
6 The first question to address is whether there is a judgment of the Supreme Court that can be the subject of an application for leave to appeal. No judgment has yet been entered and sealed. Despite the title
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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