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Wardman v Macquarie Bank Limited

Wardman v Macquarie Bank Limited

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Case Copied 10 April 2019 34 min read

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FEDERAL CIRCUIT COURT OF AUSTRALIA

WARDMAN & ORS v MACQUARIE BANK LIMITED

[2019] FCCA 939

Catchwords:
INDUSTRIAL LAW – Federal Judges appointed under Chapter III of the Constitution cannot act as mediators – a mediator does not exercise the judicial power of the Commonwealth and mediation is not incidental to judicial power either generally or under s.51(xxxix) of the Constitution – accordingly r.45.13B(2)(a) of the Federal Circuit Court Rules 2001 (Cth) which purportedly authorises the appointment of a Judge of this Court to be a mediator is incompatible with Chapter III of the Constitution and hence invalid – further as a matter of discretion a Judge of this Court should not act as mediator.

Legislation:

Charter of Human Rights and Responsibilities Act2006 (Vic), s.36

Civil Procedure Act 2005 (NSW), s.25

Commonwealth Conciliation and Arbitration Act 1904 – 1956 (Cth), s.2

Fair Work Act 2009 (Cth), ss.45, 546, 566

Federal Circuit Court of Australia Act 1999 (Cth), ss.34, 81

Federal Circuit Court Rules 2001 (Cth)

Cases cited:

Abriel v Australian Guarantee Corporation Ltd [2000] FCA 1198
Attorney-General (Cth) v Alinta Limited (2008) 233 CLR 542
Attorney-General (Cth) v The Queen (1957) 95 CLR 529
British Imperial Oil Company Limited v Commissioner of Taxation (Cth); Commissioner of Taxation (Cth) v Munro (1926) 38 CLR 153
Cunliffe v The Commonwealth (1994) 182 CLR 272
CSR Limited v Eddy (2005) 226 CLR 1
D’emden v Pedder (1904) 1 CLR 91
Fencott v Muller (1983) 152 CLR 570
Graham v Minister for Immigration and Border Protection (2017) 347 ALR 350
Grollo v Palmer (1995) 184 CLR 348
Harris v Caladine (1991) 172 CLR 84
Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51
Matsen v Superannuation Complaints Tribunal [2017] FCA 765
Momcilovic v The Queen (2011) 245 CLR 1
Monard v H. M. Leggo & Co. Ltd. (1923) 33 CLR 155
Mulqueen v Minister for Labour and Industry and Zinc Corporation Ltd (1938) 38 SR (NSW) 583
Nicholas v The Queen (1998) 193 CLR 173
Plaintiff M68/2015 v Minister for Immigration and Border Protection (2016) 257 CLR 42
Polyukhovich v The Commonwealth (1991) 172 CLR 501
Queen Victoria Memorial Hospital v Thornton (1953) 87 CLR 144
R v Tait & Bartley (1979) 24 ALR 473
State Bank of New South Wales v Freeman (1996) BC9607062
The Duke Group Ltd (In Liq) v Alamain Investments Ltd [2003] SASC 272
The Queen v Bain; Ex Parte Cadbury Schweppes Australia Ltd (1984) 159 CLR 163
The Queen v Davison (1954) 90 CLR 353
The Queen v Kirby; Ex Parte Boilermakers’ Society of Australia (1956) 94 CLR 254
von Schulz v Attorney-General Qld [2000] QCA 406
Wong v The Queen (2001) 207 CLR 584

First Applicant:

JOHN WARDMAN

AND 14 OTHERS

Respondent:

MACQUARIE BANK LIMITED

File Number:

SYG 1540 of 2018

Judgment of:

Judge Dowdy

Delivered at:

Sydney

Delivered on:

10 April 2019

REPRESENTATION

Solicitors for the Applicants:

Williamsonlegal

Solicitors for the Respondent:

K & L Gates

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1540…

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.

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Details

Case: [2019] FCCA 939
Decision Date: 10 April 2019

CaseChat Overview and Summary

In *Wardman v Macquarie Bank Limited*, Dowdy J of the Federal Court of Australia considered the validity of a Federal Circuit Court Rule that purported to authorise a judge to act as a mediator. The applicant, Mr Wardman, sought to have Macquarie Bank Limited's defence struck out, arguing that the appointment of a Federal Circuit Court judge as a mediator was invalid and that the judge's conduct during mediation was improper.

The central legal issue before the Court was whether a Federal Circuit Court judge, appointed under Chapter III of the Constitution, could validly act as a mediator. This involved determining whether the role of a mediator involved the exercise of the judicial power of the Commonwealth, or if mediation was incidental to judicial power, either generally or under section 51(xxxix) of the Constitution. The Court also considered whether, as a matter of discretion, a judge should act as a mediator.

Dowdy J held that a mediator does not exercise the judicial power of the Commonwealth, nor is mediation incidental to judicial power. Consequently, Rule 45.13B(2)(a) of the Federal Circuit Court Rules 2001 (Cth), which purported to authorise the appointment of a judge to be a mediator, was found to be incompatible with Chapter III of the Constitution and therefore invalid. The Court further determined that, as a matter of discretion, a judge of the Federal Circuit Court should not act as a mediator.

The Court ordered that the mediation conducted by the judge was invalid.

Orders