FEDERAL COURT OF AUSTRALIA
Revill v John Holland Group Pty Ltd [2022] FCAFC 178
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Details
- Case
- [2022] FCAFC 178
- Decision Date
CaseChat Overview and Summary
The Federal Court of Australia was asked to decide whether to grant leave to appeal in the case of Revill v John Holland Group Pty Ltd. The applicant, Mr Revill, sought leave to appeal the summary judgment entered in favour of the respondent, JH Group, and sought to adduce further evidence in any appeal. The primary judge had dismissed the proceedings and ordered Mr Revill to pay costs. The legal issues before the court were whether the proposed grounds of appeal raised new points not considered by the primary judge and whether it was appropriate to allow the introduction of further evidence in the appeal. The court considered whether the proposed evidence was relevant and truly new. The court found that much of the proposed evidence was not relevant or was duplicative of evidence already before the primary judge. The court also noted that the minute of the proposed further substituted statement of claim was not evidence but part of Mr Revill's submissions. Ultimately, the court found that the proposed grounds of appeal did not raise new points and that it was not appropriate to allow the introduction of further evidence in the appeal. The court dismissed the application for leave to appeal and ordered the parties to file and serve submissions regarding the costs of the applications.
In conclusion, the Federal Court of Australia dismissed Mr Revill's application for leave to appeal and his application for the court to receive further evidence in any appeal. The court found that the proposed grounds of appeal did not raise new points and that it was not appropriate to allow the introduction of further evidence. The court ordered the parties to file and serve submissions regarding the costs of the applications. The dismissal of the application for leave to appeal means that the primary judge's decision stands, and Mr Revill is not able to appeal that decision. The order regarding costs requires the parties to address the issue of costs in their submissions.
In conclusion, the Federal Court of Australia dismissed Mr Revill's application for leave to appeal and his application for the court to receive further evidence in any appeal. The court found that the proposed grounds of appeal did not raise new points and that it was not appropriate to allow the introduction of further evidence. The court ordered the parties to file and serve submissions regarding the costs of the applications. The dismissal of the application for leave to appeal means that the primary judge's decision stands, and Mr Revill is not able to appeal that decision. The order regarding costs requires the parties to address the issue of costs in their submissions.
Orders
Orders of the court
1. The following documents are received in the application for leave to appeal and are to form part of Part C of the appeal book and otherwise the applicant’s interlocutory application for the Court to receive further evidence in the application and in any appeal is dismissed.
(a) Letter to Mr Revill from JH Group dated 21 August 2013.
(b) Letter to JH Group from Mr Revill’s solicitors dated 21 November 2013.
(c) Letter to Mr Revill solicitors from JH Group dated 21 November 2013.
(d) Emails of 3 and 14 October 2014 between the Financial Ombudsman Service and a representative of Regis.
(e) Letters passing between Mr Revill’s solicitors and JH Group of 3 and 16 February 2016.
(f) Letters passing between Mr Revill’s solicitors and JH Group of 16 and 22 March 2018 and 4 April 2018.
2. The applicant is granted leave to amend his application to seek leave to appeal in terms of the amended draft written notice of appeal filed on 14 December 2021.
3. The application for leave to appeal is dismissed.
4. By 4.00pm on 15 November 2022, the respondent is to file and serve any submissions it wishes to make regarding the costs of the applications.
5. By 4.00pm on 22 November 2022, the applicant is to file and serve any submissions he wishes to make regarding the costs of the applications.
6. Otherwise, the costs of the applications are reserved.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
For the reasons summarised above and set out in more detail below, the applications for leave to appeal and application to receive further evidence should be dismissed. Costs should be reserved with a direction that the parties file and serve submissions addressing the question of costs.BACKGROUND Mr Revill commenced proceedings against JH Group by originating application dated 15 August 2019. Mr Revill filed a statement of claim the same day. On 2 October 2019, Mr Revill filed an amended statement of claim. In the amended statement of claim Mr Revill alleged that JH Group was his employer from February 2013 to November 2013 and that the terms and conditions of his employment were provided for by the John Holland Pty Ltd Wheatstone Project Agreement 2012, AG2012/9638 (that is the enterprise agreement referred to earlier in these reasons as the Wheatstone Agreement). On 16 October 2019, JH Group filed a defence to the amended statement of claim. In its defence, JH Group denied that it was Mr Revill’s employer and alleged that his employer was JHPL. On 28 April 2020, JH Group made an interlocutory application for orders striking out the amended statement of claim. On 11 May 2020, the primary judge made orders striking out the amended statement of claim and granting Mr Revill leave to file a further amended statement of claim. On 3 July 2020, JH Group made an interlocutory application for orders dismissing the proceedings pursuant to r 5.23(1)(b)(i) of the Federal Court Rules 2011 (Cth). On 17 July 2020, Mr Revill made an interlocutory application for orders to join JHPL and JHG Mutual as respondents in the proceedings (joinder application). On 10 August 2020, JH Group filed an index and copies of the documents relied on in support of its application in accordance with r 17.02 of the Rules. On 11 August 2020, Mr Revill filed an index and copies of the documents he relied upon in support of the joinder application in accordance with r 17.02. On 17 August 2020, Mr Revill filed copies of the documents he relied upon in opposition to JH Group’s application in accordance with r 17.02. I consider that documents filed in accordance with r 17.02 were evidence before the primary judge and, as such, may be referred to in any appeal without the need for an application to be made under r 36.57 to receive those documents as ‘further evidence’ in any appeal. The application to receive further evidence in any appeal included documents in this category. On 6 November 2020, the primary judge made orders dismissing each of JH Group’s application and Mr Revill’s joinder application (joinder judgment). Reasons for those decisions were published on 10 November 2020: Revill v John Holland Group Pty Ltd [2020] FCA 1633 (joinder reasons or JR). On 20 November 2020, Mr Revill filed a substituted statement of claim. In that statement of claim he alleged that he was employed by JH Group, alternatively JHPL, and that his employment was governed by the Wheatstone Agreement. On the same day, Mr Revill made an application for leave to appeal from the joinder judgment.
Evidence
Evidence Before The Court
Determination of the question as to whether the summary judgment was attended by sufficient doubt to warrant the grant of leave is bound up with a consideration of the merits of the grounds of appeal proposed in the amended draft notice of appeal. In the case of proposed ground 1, the assessment of the merits of the proposed ground of appeal, in turn, depends on the extent to which it is likely that, if leave to appeal were granted, the Court would grant leave for the appellant to raise any new points not raised before the primary judge and would receive further evidence in any appeal on those new points. Therefore, a consideration of the merits of the proposed ground of appeal cannot be divorced from a consideration of the likelihood that Mr Revill would be permitted to raise new points in the appeal and that further evidence would be received in the appeal. A similar approach to the question of leave to appeal where certain grounds of appeal raised new points was taken in Michael Wilson & Partners Ltd v Porter [2022] FCA 336 and Mostert v Durban Roodepoort Deep Ltd [2004] WASCA 309 at [52]–[55], [73] (per Le Miere J, Steytler and Jenkins JJ agreeing).What is the proposed ‘further’ evidence? Before considering the extent to which proposed ground 1 raises new points and whether leave to raise them and receive further evidence should be permitted in any appeal, it is necessary to identify whether the evidence that is the subject of Mr Revill’s application to receive further evidence is both relevant to any proposed ground of appeal and is truly ‘further’ evidence in the sense that it was not evidence before the primary judge. The necessity arises because much of the evidence contained in the affidavits of Mr Revill and Mr Mezger of 4 May 2022 is not obviously relevant to any ground of appeal, or duplicates documents contained in other parts of the appeal book, or appears to have been in evidence before the primary judge as it is referred to in the summary judgment reasons. During the hearing of the application, Mr Revill was requested to provide a note to the Court identifying which of the documents in the affidavits of Mr Revill and Mr Mezger of 4 May 2022 were not in evidence before the primary judge. On 20 May 2022, Mr Revill informally submitted a document entitled ‘Index of Proposed New Evidence’. There are 34 items in that index. Item 34 in the index is the minute of proposed further substituted statement of claim. Mr Revill submitted that if leave were granted and his appeal upheld, it is his intention to amend his statement of claim in terms of that minute. The minute of proposed further substituted statement of claim articulates claims against JHPL, as first respondent, JH Group, as second respondent, and JHG Mutual, as third respondent. The minute of proposed substituted statement of claim is not further evidence but is part of Mr Revill’s submissions in support of his application for leave to appeal and any appeal. It should be received as a document in the application and in any appeal as part of Mr Revill’s submissions.
Decision
Reasons for decision
On 2 September 2021, the primary judge made an order pursuant to s 31A(2) of the FCA Act entering judgment in favour of JH Group in relation to the whole of the proceedings (summary judgment). Reasons for that judgment were delivered at the same time: Revill v John Holland Pty Ltd (No 2) [2021] FCA 1056 (summary judgment reasons or SJR). On 12 November 2021, the primary judge made orders to the effect that Mr Revill must pay JH Group’s costs of the proceedings. Reasons for those orders were delivered at the same time: Revill v John Holland Pty Ltd (No 3) [2021] FCA 1403 (costs judgment and costs reasons or CR).APPLICATIONS On 16 September 2021, Mr Revill made an application for leave to appeal from the summary judgment. The application attached a copy of the primary judge’s orders of 2 September 2021 and a draft notice of appeal. The application was also supported by an affidavit of Mr Daniel James Mezger affirmed on 16 September 2021. On 14 December 2021, Mr Revill filed an amended draft notice of appeal. In the amended draft notice of appeal Mr Revill proposes to expand the judgments the subject of the proposed appeal to include the joinder judgment and costs judgment. Although no formal application for leave to amend the application was made, the application was treated as an application for leave to appeal on the grounds set out in the amended draft notice of appeal. Thereby, the application included applications for leave to appeal from the joinder and costs judgments. Also, by order of Colvin J of 18 November 2021, Mr Revill was ordered to file an amended draft notice of appeal complying with r 36.01(1) and r 36.01(2) and dealing appropriately with the costs judgment. As there was no apparent objection to such amendment of the application for leave, I am content to grant Mr Revill leave to amend his application for leave to appeal to include application for leave to appeal from the joinder judgment and costs judgment. On 22 April 2022, JH Group made an interlocutory application for an order dismissing the application for leave to appeal pursuant to r 35.32(a) and (or) (d) of the Rules. That application was withdrawn and dismissed with no order as to costs at the hearing of the application for leave to appeal on 16 May 2022 and orders were entered on 27 May 2022. On 4 May 2022, Mr Revill filed an affidavit of Mr Mezger affirmed on 4 May 2022 and an affidavit of Mr Revill affirmed the same day. Mr Revill also filed a minute of proposed further substituted statement of claim. On 9 May 2022, Mr Revill made an application, in effect, pursuant to s 27 of the FCA Act and r 36.57 of the Rules, for the Court to receive further evidence in any appeal. That evidence consisted of the minute of proposed further substituted statement of claim and the affidavits of Mr Revill and Mr Mezger of 4 May 2022 (and annexed documents). The application to rely on further evidence was also supported by an affidavit of Mr Mezger affirmed 9 May 2022.PROPOSED GROUNDS OF APPEAL
Ratio Decidendi
Legal Principle Established
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