FEDERAL COURT OF AUSTRALIA
Revill v John Holland Group Pty Ltd [2021] FCA 558
Appeal from: Application for Leave to Appeal: Revill v John Holland Group Pty Ltd [2020] FCA 1633 File number: WAD 265 of 2020 Judgment of: MCKERRACHER J Date of judgment: 26 May 2021 Catchwords: COURTS AND JUDICIAL SYSTEM – application for leave to appeal – where leave to appeal is sought from a decision not to join parties – whether the application is competent – effect of s 24(1AA)(b)(i) and s 37M of the Federal Court of Australia Act 1976 (Cth) Legislation:
Federal Court of Australia Act 1976 (Cth) ss 20(3)(c), 24(1)(a), 24(1A), 24(1AA)(a), 24(1AA)(b)(i), 24(1E), 37M, 37M(2), 37M(3), 37M(4), 37N
Federal Court Rules 2011 (Cth) r 9.05
Cases cited:
Division: General Division Registry: Western Australia National Practice Area: Commercial and Corporations Sub-area: Commercial Contracts, Banking, Finance and Insurance Number of paragraphs: 20 Date of hearing: 28 April 2021 Counsel for the Applicant: Mr D Mezger Solicitor for the Applicant: Chapmans Barristers & Solicitors Counsel for the Respondent: Mr M Follett Solicitor for the Respondent: Kelly Hazell Quill Lawyers ORDERS
WAD 265 of 2020 BETWEEN: RAYMOND ANDREW REVILL
Applicant
AND: JOHN HOLLAND GROUP PTY LTD
Respondent
ORDER MADE BY:
MCKERRACHER J
DATE OF ORDER:
26 MAY 2021
THE COURT ORDERS THAT:
1.The application for leave to appeal be dismissed as incompetent with costs.
2.Pursuant to ss 17(2), 23 and 37P of the Federal Court of Australia Act 1976 (Cth), and rr 1.32 and 1.36 of the Federal Court Rules 2011 (Cth), these orders and reasons for judgment in support of these orders are made and published from chambers.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
MCKERRACHER J:
The applicant seeks leave to appeal from a decision of a judge of this Court to refuse to join two parties as respondents to the proceeding: Revill v John Holland Group Pty Ltd [2020] FCA 1633 (Revill (No 1)). Although both parties accept that the decision is interlocutory, the applicant contends that I am empowered to grant leave to appeal pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth). The respondent contends however that there is no discretion to grant leave to appeal in this case by reason of the operation of s 24(1AA)(b)(i) of the Act and the fact that the decision in question is a decision not to join parties. The respondent has filed a notice of objection to the competency of the application on this ground.
It is not contentious that the primary judge’s decision in Revill (No 1) concerned, amongst other things, his Honour’s consideration and dismissal of…
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- Case
- [2021] FCA 558
- Decision Date
CaseChat Overview and Summary
The central legal issue was whether the applicant's appeal was competent under the provisions of s 24(1AA)(b)(i) and s 37M of the Federal Court of Australia Act 1976 (Cth). The court examined the text of the relevant sections and their ordinary meaning, considering the legislative intent behind restricting appeal rights from certain interlocutory decisions. The court also reviewed the precedent set in Dye v Commonwealth Securities Limited (No 2) [2010] FCA 817, where similar issues were considered and the court held that there was no discretion to grant leave to appeal from such interlocutory decisions. The court concluded that the decision not to join parties fell within the scope of s 24(1AA) and therefore the application for leave to appeal was incompetent.
The court dismissed the application for leave to appeal as incompetent, finding that the decision not to join parties was an interlocutory matter that fell within the scope of s 24(1AA)(b)(i) of the Federal Court of Australia Act 1976 (Cth). The court held that there was no discretion to grant leave to appeal such decisions, and that the ordinary meaning of the statutory text supported this interpretation. The court also noted that Parliament intended to restrict appeal rights from certain interlocutory decisions to promote the efficient administration of the court’s caseload. The applicant’s argument regarding substantial injustice was considered but the court found it unnecessary to delve into the substance of the decision, as the primary reason for refusing the joinder application was the availability of a limitation defence.
ORDERS:
1. The application for leave to appeal be dismissed as incompetent with costs.
2. Pursuant to ss 17(2), 23 and 37P of the Federal Court of Australia Act 1976 (Cth), and rr 1.32 and 1.36 of the Federal Court Rules 2011 (Cth), these orders and reasons for judgment in support of these orders are made and published from chambers.
Orders
Orders of the court
1. The application for leave to appeal be dismissed as incompetent with costs.
2. Pursuant to ss 17(2), 23 and 37P of the Federal Court of Australia Act 1976 (Cth), and rr 1.32 and 1.36 of the Federal Court Rules 2011 (Cth), these orders and reasons for judgment in support of these orders are made and published from chambers.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
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
Ratio Decidendi
Legal Principle Established
As to the ‘substantial injustice’ that the applicant says will be occasioned, his written submissions were also directed to the grounds upon which appellable error is said to arise in Revill (No 1). As will be made apparent below, it is unnecessary to consider the substance of the decision. It suffices to say only that the primary reason for the refusal of the joinder application was the apparently clear availability of a limitation defence to the proposed respondents: Revill (No 1) (at [20], [29]-[39]).CONSIDERATION Primarily for the reasons advanced by the respondent, leave to appeal cannot be granted. The plain and ordinary meaning of s 24(1AA)(b)(i) is that an appeal cannot be brought from a decision of a single judge exercising the Court’s original jurisdiction concerning the joinder or removal of a party or parties. It may be accepted that joinder decisions can have significant consequences in the particular context of certain proceedings and that may be so in this case. However, as the authorities discussed below confirm, the purpose of s 24(1AA) is to restrict the appeal rights of litigants in a strictly confined class of interlocutory decisions so as to promote the efficient administration and disposition of the Court’s caseload. This purpose is consistent with the ordinary meaning of the text of the section and accordingly, there is no discretion to consider a grant of leave to appeal. A similar situation to the present case arose in Dye v Commonwealth Securities Limited (No 2) [2010] FCA 817 albeit that the application for leave to appeal was from a decision on an application to amend the statement of claim, which attracts the operation of s 24(1AA)(a) by virtue of s 20(3)(c). In that case, Nicholas J made similar observations (at [13]-[15]) about the effect of s 24(1AA) and the impact of its introduction:13Since her Honour’s judgment was a determination of an application to amend the grounds of an application to the Court, it is a determination of the kind mentioned in sub-section 20(3). Section 24(1AA) provides that an appeal must not be brought from such a judgment. 14This interpretation of the relevant provisions accords with their ordinary meaning. If regard is had to the Explanatory Memorandum and Second Reading Speech for the purpose of seeking confirmation that it was Parliament’s intention to amend s 24 to exclude any right of appeal from interlocutory judgments of the kind specified in s 24(1AA) (including determinations of the kind specified in s 20(3)) then the position is put beyond doubt. 15The change brought about by the introduction of s 24(1AA) is significant and far reaching. The statement appearing in the Explanatory Memorandum at para [81] to the effect that the interlocutory judgments to which s 24(1AA) now applies are “minor procedural decisions” is a generalisation to which there will inevitably be exceptions. In some cases s 24(1AA) may be the source of considerable hardship where there is reason to believe that a judge’s discretion has miscarried. But it is clear when one has regard to the extrinsic material to which I have referred as well as other important amendments that were made to the Act by the Access Act that Parliament intended that there should be no appeal from interlocutory decisions of the kinds specified in s 24(1AA). (Emphasis added.)