Construction, Forestry, Mining and Energy Union v Clarke

WESTERN AUSTRALIA DISTRICT REGISTRY WAD 88 OF 2006

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

Procedural Background 7 On 8 September 2004, a complaint was made by the respondent before the Industrial Magistrate's Court of Western Australia which alleged that the Construction, Forestry, Mining and Energy Union ('CFMEU'), and two of its organisers, Michael Powell ('Powell') and Walter Vinicio Molina ('Molina'), had engaged in industrial action before the nominal expiry date of a certified agreement contrary to s 170MN(1) of the Workplace Relations Act 1996 (Cth) ('WR Act'), and breached a term of a certified agreement, namely the dispute resolution procedures, contrary to s 178(1) of the WR Act. On 28 April 2005, the Industrial Magistrate's Court delivered judgment: see Clarke v Powell, Molina & CFMEU (2005) 85 WAIG 1508. The application was successful against each of CFMEU, Powell and Molina, and monetary penalties were ordered to be imposed under s 170NF and s 178(4) of the WR Act. 8 On 18 May 2005, CFMEU, Powell and Molina (the appellants in this proceeding) appealed to this Court from the judgment of the Industrial Magistrate's Court. The appeal invoked the jurisdiction conferred by s 422(1) of the WR Act, which then provided: An appeal lies to the Court from a judgment of a court of a State or Territory in a matter arising under this Act. For the purposes of s 442(1), 'Court' is defined as the Federal Court of Australia. 9 The appeal was listed before Nicholson J for the purpose of making a recommendation to the Chief Justice as to whether the appeal should be heard by a single judge or a Full Court in accordance with s 25(5) of the Federal Court of Australia Act 1976 (Cth) ('Federal Court Act'). Before a direction under that sub-section was made, a preliminary question arose as to whether the Industrial Magistrate's Court was a 'Court of summary jurisdiction' for the purposes of the application of s 25(5) of the Federal Court Act. On 20 July 2005, Nicholson J decided that the Industrial Magistrate's Court was indeed a court of summary jurisdiction, and accordingly concluded that it was open for the appeal to be heard either by a single judge or a Full Court pursuant to s 25(5) of the Federal Court Act: see Construction, Forestry, Mining and Energy Union v Clarke (2005) 144 FCR 226. On 8 August 2005, the Chief Justice determined that the appeal should to be heard by a single judge. 10 Justice Nicholson subsequently heard and dismissed the appeal (see Construction, Forestry, Mining and Energy Union v Clarke (2006) 149 IR 224) and, on 3 April 2006, the appellants appealed against that order of Nicholson J. By notice of motion dated 2 June 2006, the respondent seeks an order pursuant to O 52 r 18(1) of the Federal Court Rules that the appeal be dismissed as incompetent. This is the motion presently before this Full Court for determination.

Issue for determination 11 The question for determination is whether there can be an appeal to a Full Court from a judgment of a single judge of the Federal Court of Australia exercising the appellate jurisdiction of the Federal Court on appeal from a State Court of summary jurisdiction.

Statutory Background 12 Sub-sections 14(1) and (2) of the Federal Court Act provide: (1) For the purposes of the exercise of the jurisdiction of the Court, the Court may be constituted by a single Judge or as a Full Court. (2) A Full Court consists of 3 or more Judges sitting together or, to the extent permitted by subsection (3), of 2 Judges sitting together. Sub-sections 20(1) and (1A) of the Federal Court Act provide: (1) Except as otherwise provided by this Act or any other Act, the original jurisdiction of the Court shall be exercised by a single Judge. (1A) If the Chief Justice considers that a matter coming before the Court in the original jurisdiction of the Court is of sufficient importance to justify the giving of a direction under this subsection, the Chief Justice may direct that the jurisdiction of the Court in that matter, or a specified part of that matter, shall be exercised by a Full Court. Sub-section 24(1) of the Federal Court Act provides, as far as is relevant; (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; … Sub-section 25(1) of the Federal Court Act provides as follows: (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. However, s 25(2) of the Federal Court Act provides: (2) Applications: (a) for leave or special leave to appeal to the Court; or (b) for an extension of time within which to institute an appeal to the Court; or (c) for leave to amend the grounds of an appeal to the Court; or (d) to stay an order of a Full Court; may be heard and determined by a single Judge or by a Full Court. Further, s 25(5) of the Federal Court Act provides: (5) Subject to any other Act, the jurisdiction of the Court in an appeal from a judgment of a Court of summary jurisdiction may be exercised by one Judge or by a Full Court. 13 In the Federal Court Act, unless the context requires otherwise, 'judgment' means 'judgment, decree or order, whether final or interlocutory, or a sentence' (see s 4 of the Federal Court Act). There is no doubt that 'judgment' includes any order of the Court exercising appellate jurisdiction, and embraces the orders made by Nicholson J in the present case: see generally Ah Toy v Registrar of Companies (1985) 10 FCR 280 at 285.

Consideration 14 An inquiry into the nature of the rights of appeal conferred by the Federal Court Act must begin with an analysis of the relevant statutory provisions: see Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) (2001) 207 CLR 72 at [9] ('Roy Morgan'); and Papps v Medical Board of South Australia [2006] SASC 234 at [22]. 15 The appellate jurisdiction of the Court, subject to s 25 of the Federal Court Act and to the provisions of any other Act, is exercisable by a Full Court: s 25(1). However, s 25(5) allows the appellate jurisdiction to be exercised by 'one Judge', (which I take to be the same as the reference to 'a single Judge' in contradistinction to a Full Court). The decision of Nicholson J to dismiss the appeal was an exercise of appellate jurisdiction by a single judge. 16 It was argued that s 25(5) provided for a right of appeal which is alternative and not progressive. In the respondent's outline of contentions dated 10 August 2006 it was submitted as follows: 26. The appellate jurisdiction being exercised "may be exercised by one judge or by a Full Court". The use of the disjunctive "or" in this context makes it apparent that a single judge or the Full Court are true alternatives in the exercise of this appellate jurisdiction: see Pearce & Geddes, Statutory Interpretation in Australia (6th edn) (Sydney: LexisNexis, 2006) at pages 46-51, paragraphs 2.25-2.26. 27. So too does a comparison with the relevant words of ss.25(2) of the Federal Court Act, and their interpretation by the Federal Court as "true alternatives" in the exercise of the appellate jurisdiction under that subsection: see generally Reid and Thomas Borthwick, supra. 28. Moreover, the s 25(2) authorities make it clear, it is submitted, that as a matter of principle, the appellate jurisdiction of the Federal Court can only be exercised once, and is then exhausted… 17 Putting aside considerations that may apply in relation to s 25(2), to which I will return later, I do not regard the language of s 25(5) as limiting an appeal to a Full Court from a judgment of a single judge. Sub-section 25(5) expressly provides that the jurisdiction to entertain an appeal from an order of a Court of summary jurisdiction may be exercised by one judge or by a Full Court, and in this sense these are alternative modes of exercising the appellate jurisdiction. This says nothing as to the consequences that may flow when one of these alternatives is pursued. The use of the disjunctive 'or' acknowledges that the alternatives are available, but does not necessarily entail that the appellate jurisdiction, as conferred by s 24(1) of the Federal Court Act, can 'only be exercised once, and is then exhausted'. 18 If one judge exercises this jurisdiction, then appeal rights may differ from those available if a Full Court exercises the jurisdiction. To determine the nature of those appeal rights, one is directed to other provisions of the Federal Court Act, in this instance, s 24(1)(a). Paragraph (a) of s 24(1), in granting the Court jurisdiction to hear and determine appeals, is not in its express terms confined to an appeal from the judgment of the Court constituted by a single judge exercising original jurisdiction. Paragraph (a) is expressed broadly and on its face confers jurisdiction to entertain an appeal from any judgment of a single judge. 19 As stated in Roy Morgan a provision that confers jurisdiction on a court is to be construed 'with all the amplitude that the ordinary meaning of its words admits'. If the legislature had wished to limit the right of appeal to a Full Court in the circumstances of this case, it could have easily so provided by confining s 24(1)(a) to judgments of a single judge exercising original jurisdiction (see, e.g. s 40 of the Judiciary Act 1903 (Cth)) or by specifically so prescribing as s 24(1AAA) of the Federal Court Act does in respect of appeals from the Federal Magistrates Court. The ordinary meaning of the words of s 24(1)(a) permits an appeal to a Full Court from a judgment of the Court constituted by a single judge exercising appellate jurisdiction. 20 If s 24(1)(a) is clear in giving a right of appeal in circumstances from a single judge's exercise of jurisdiction (whether it be original or appellate), s 25(5) as an enabling provision providing for alternative modes of appeal from a judgment of a Court of summary jurisdiction should not be allowed to circumscribe the otherwise clear operation of s 24(1)(a) in providing for an appeal from a judgment of the Court constituted by a single judge. It is to be observed that s 24(1) is expressed to be subject to s 24 as a whole and to any other Act. On this basis, s 24(1) is not made subject to the operation of s 25. In my view, in these circumstances, the language of s 24(1)(a) being clear, there is no warrant to limit the operation of s 24(1)(a) by anything to be found in s 25(5), and, in particular, by its use of the disjunctive 'or'.

Recent amendments to the Federal Court Act 21 Recent amendments to the Federal Court Act confirm the construction contended for by the appellant in opposing the motion for the appeal to be dismissed as incompetent. Sub-section 24(1AAA) of the Federal Court Act, inserted by item 2 sch 12 of the Federal Magistrates (Consequential Amendments) Act 1999 (Cth), provides: An appeal may not be brought to the Court from a judgment of the Court constituted by a single Judge exercising the appellate jurisdiction of the Court in relation to an appeal from the Federal Magistrates Court. Section 24(1AAA) provides, in effect, that only one appeal lies to this Court from an order of the Federal Magistrates Court. 22 It seems to me that the amendment assumes that a right to appeal would otherwise exist from a decision of a single judge exercising appellate jurisdiction, for otherwise the amendment would not be necessary. 23 I am mindful that one must be careful construing provisions of an Act introduced at different times. It could be said that s 24(1AAA) was introduced to deal with a particular topic and, out of an abundance of caution, expressly imposed the limitation which it does on appeals from the Federal Magistrates Court. However, the introduction of s 24(1AAA) confirms the ordinary meaning of the words to be found in s 24(1)(a) in light of the legislative scheme of the Federal Court Act. Further, one should attempt to harmonise the provisions of the Federal Court Act if possible. As Kirby J said in Roy Morgan at 95 (footnotes omitted): Illogicalities can, of course, sometimes intrude into legislation, particularly where the different parts of legislation are enacted at different times. However, such disharmony in the interpretation of succeeding sections of the Supreme Court Act should, if possible, be avoided. 24 Reading s 24(1)(a) in a way that allows an appeal to a Full Court from a judgment of a single judge exercising appellate jurisdiction is not disharmonious, and indeed is consistent, with the introduction of s 24(1AAA). 25 In this context, reliance was placed by all parties upon the Explanatory Memorandum accompanying the Federal Magistrates (Consequential Amendments) Bill 1999 (Cth) which introduced s 24(1AAA). Relevantly, it recited: Item 2 inserts subsection 24(1AAA), to provide that an appeal cannot be brought in the Federal Court from a judgment of a single Judge exercising the appellate jurisdiction of the Federal Court in relation to an appeal from the Federal Magistrates Court. This is consistent with the judicial interpretation of the exercise of appellate jurisdiction by a single Judge under section 25 of the Act, where no such appeals are possible (see Thomas Borthwick & Sons (Pacific Holdings) Ltd v Trade Practices Commission (1988) 79 ALR 171 and Wati v Minister for Immigration and Multicultural Affairs (1997) 148 ALR 578), and applies to both interlocutory and final decisions in such appeals. 26 The Explanatory Memorandum does no more than express a view that s 24(1AAA) limits the right of appeal in a manner consistent with past interpretations of s 25. There has been no previous interpretation by this Court of s 25(5), and the cases referred to in the Explanatory Memorandum were specifically concerned with s 25(2). Whilst the Explanatory Memorandum may be of assistance in certain circumstances in interpreting s 24(1AAA), I do not find it of assistance in the task of construing ss 24(1) and 25(5) of the Federal Court Act.

Authorities on s 25(2) 27 The issue for determination on the present motion has never arisen in the context of s 25(5) of the Federal Court Act. Reliance was placed by the respondent upon a number of authorities concerned with the operation of s 25(2) as illuminating the application of s 25(5). 28 The applications identified in s 25(2) affect different practical considerations from those which arise in the context of s 25(5). This is apparent from these observations of the Full Court in Thomas Borthwick & Sons (Pacific Holdings) Ltd v Trade Practices Commission (1988) 18 FCR 424 ('Thomas Borthwick') at 431-3 in dealing with the interpretation of s 25(2); The appellate jurisdiction of the Court is generally exercised by a Full Court, but the legislature made an exception to this with respect to the hearing and determination of applications for leave to the Court and for extensions of time within which to institute appeals. This exception has sound practical reasons, given the difficulty of convening Full Courts at short notice in certain circumstances and given the obvious desirability in some cases of applications for leave to appeal being heard and determined by the judge who made the orders in respect of which leave to appeal is sought, because of his knowledge of the issues in the case. Although it may seem anomalous at first glance that the appellate jurisdiction of the Federal Court may be exercised in these cases by a single judge, the apparent anomaly disappears when it is remembered that the sound considerations of policy mentioned earlier underlie the legislative amendments to ss 24(1A) and 25(2).… In our opinion, ss 24(1A) and 25(2) of the Federal Court Act, when read together, mean that application may be made to either a single judge or a Full Court of the Federal Court for leave to appeal from an interlocutory judgment, whether an interlocutory judgment of the Court constituted by a single judge or an interlocutory judgment of the Supreme Court of a State or Territory. A party must elect to apply for leave to appeal to this Court constituted by a single judge or a Full Court. As the Court remarked in Reid v Nairn, the parties' election is between true alternatives which are neither progressive nor successive. Once the order has been made granting or refusing leave, no appeal lies from that order. 29 The Court therefore determined the issue by reading together s 24(1A) and s 25(2) of the Federal Court Act and keeping in mind that the purpose of the legislation is to deal with certain interlocutory applications. The subsequent cases have also emphasised these practical considerations by reference to Thomas Borthwick: see, e.g. General Motors - Holden's Ltd v Noack, PM (unreported, Smithers, Lockart & Neaves JJ, 07/03/86); Currie v The Queen (unreported, Burchett, Miles & O'Loughlin JJ, 6/11/92); Theo v Official Trustee in Bankruptcy (unreported, Burchett, Drummond & Mansfield, 28/04/97); Hall v Anderson (unreported, Spender, Finn & North JJ, 18/07/97); Wati v Minister for Immigration & Multicultural Affairs (1997) 78 FCR 543 ('Wati'); Atkinson v Commissioner of Taxation (2000) 46 ATR 32; Hamod v New South Wales (2002) 188 ALR 659 ('Hamod'); Kristoffersen v Department of Employment, Workplace Relations & Small Business [2002] FCAFC 269 ('Kristoffersen'); see also Hi-Fert Pty Ltd v Kiukiang Maritime Carriers Inc (No 2) (unreported, Beaumont, Branson & Emmett JJ, 12/06/98); Tait v Harris [2003] FCA 416; Minister for Immigration & Multicultural & Indigenous Affairs v WAKX (2005) 218 ALR 274; Dart v Norwich Union Life Australia Ltd [2005] FCA 327; Worchild v Queensland Television Ltd [2005] FCA 1894. 30 The respondent submitted that there is a broader principle to be found in these cases, namely that there can be no appeal from a single judge exercising appellate jurisdiction. Reliance was placed upon statements made by a Full Court of this Court in Wati, which involved the question of whether the refusal by a single judge to grant the appellant an extension of time within which to bring an appeal could be the subject of an appeal to the Full Court. The Full Court considered the conclusion of another Full Court in Hall v Anderson, that the power under O 52 r 15(2) for the Court or a single judge to give leave to appeal involves a true alternative and not a progressive choice, and held at 548: Implicit in this conclusion is the proposition that the conferral of jurisdiction on the Court to hear and determine appeals from judgments of the Court constituted by a single Judge (Federal Court Act, s 24(1)(a)) is limited to appeals from judgments of a single judge exercising the original jurisdiction of the Court in the manner contemplated by the Federal Court Act, s 20(1). In our view, the reasoning in Thomas Borthwick v TPC and Hall v Anderson applies in the present case. It may be arguable whether the order in Hall v Anderson dismissing the bankrupt's application for annulment of her bankruptcy was final or interlocutory in character. However, the Full Court in Hall v Anderson did not regard that as material. Their Honours' reasoning rests on the proposition that the power recognised in O 52, r 15(2), like that in s 24(1A) of the Federal Court Act, involves a true alternative and not a progressive choice. It also rests on the proposition that a single judge hearing an application for an extension of time within which to institute an appeal to the Court is exercising the appellate jurisdiction of the Court. Both propositions apply in the circumstances of the present case to render the appeal incompetent. Similarly, reliance was placed upon a statement made by another Full Court in Hamod at 663: Mr Hamod made to us what might, on one view, have amounted to an oral application for an extension of time to apply for leave to appeal and for leave to appeal. In view of the fact that his previous application for such an extension of time was refused by Katz J, the question arises whether a further application can be made. Section 24(1A) and s 25(2) of the Federal Court Act make it clear that only one application for leave to appeal can be made. See Thomas Borthwick & Sons (Pacific Holdings) Ltd v Trade Practices Commission (1988) 18 FCR 424 at 426, and the cases there cited. This is because the consideration of an application for leave to appeal is an exercise of the court's appellate jurisdiction and the court cannot hear an appeal from its own decision on an appeal. Section 25(2)(b) of the Federal Court Act makes it clear that an "application for an extension of time within which to institute an appeal to the Court" also invokes the appellate jurisdiction of the court. These words are apt to include an application for an extension of time to seek leave to appeal. A purposive construction leads to the same conclusion. Repeated attempts to seek extensions of time for leave to appeal are in the same category as repeated attempts to enlarge the time allowed for filing a notice of appeal. It follows that a further application for an extension of time in which to seek leave to appeal cannot be dealt with. In the absence of an extension of time for leave to appeal, no application for leave to appeal can be dealt with. In those circumstances, an order should be made putting an end to the purported appeal. See also Kristoffersen at [7]-[9], [12] and [13]. 31 In my view these statements do not preclude the conclusion that an appeal lies to a Full Court from a single - or one - judge exercising appellate jurisdiction under s 25(5). The wording of s 24(1)(a) is clear, and there is no warrant for reading it as if there were added at the end the words 'exercising original jurisdiction' so as to impose the limitation upon the right of appeal for which the respondent contends. Each of the cases relied upon involved an interlocutory application of the type referred to in s 25(2), and not final orders of a single judge. Different policy considerations apply in respect of these interlocutory decisions from those applicable to a final decision of a single judge. Further, the observations of Kirby J in Roy Morgan at [60] can be paraphrased to apply to this context in the sense that to commit to virtually absolute finality, unreviewable by a Full Court, a final judgment of a single judge of the Court by invoking notions of 'appellate jurisdiction' or 'original jurisdiction' divorced from the actual wording of s 24(1)(a) of the Federal Court Act does not seem logical or just. 32 It was contended on behalf of the respondent that, the numerous decisions of differently constituted Full Courts referred to above illustrate the general proposition that conferral of jurisdiction on the Court to hear and determine appeals from judgments of the Court constituted by a single judge is limited to appeals from judgments of a single judge exercising the original jurisdiction of the Court. In the light of that proposition, it was argued this Full Court should dismiss the appeal as incompetent. There has been an acceptance by differently constituted Full Courts of the general proposition that this Court cannot entertain an appeal from its own judgment on an appeal. The corollary is said to be that appeals from judgments of the Court constituted by a single judge are limited to appeals from judgments of a single judge exercising the original jurisdiction of the Court. 33 There is no doubt that a Full Court has power to decline to follow a previous decision of a differently constituted Full Court, although it is a power which must be exercised with great care (see Transurban City Link Ltd v Allan (1999) 95 FCR 553 at 560-1 ('Allan')). This must particularly be so when a Full Court is invited to depart from a series of Full Court judgments over a significant period. 34 At one level, I do not think that rejecting the objection to competency involves any disharmony with the earlier decisions, founded as they are upon the specific provisions of s 24(1A) and s 25(2) and the purposive approach adopted by previous Full Courts. In each case reliance was placed upon the reasoning in Thomas Borthwick, which turned upon different considerations from those pertaining to s 25(5) of the Federal Court Act. 35 However, to the extent that any of the earlier judgments may be authority for the proposition that s 24(1)(a) is to be read down so as to apply only to judgments of a single judge exercising original jurisdiction, a matter not directly addressed in any of the cases, I would be compelled to the conclusion that such a construction was clearly wrong (see Nguyen v Nguyen (1990) 169 CLR 245 at 269 ('Nguyen'); Allan at 560; and SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214 at 256-257). However, my view in this case does not affect the earlier decisions of this Court on the operation of s 24(1A) and s 25(2) to the extent that they applied the reasoning in Thomas Borthwick. The doctrine of precedent and the need for predictability of the law in this way will remain intact: see Queensland v The Commonwealth (1977) 139 CLR 585 at 620 et seq per Aickin J; Nguyen at 269.

Conclusion 36 For the reasons I have given, I would dismiss the motion seeking orders pursuant to O 52 r 18(1) of the Federal Court Rules that the appeal be dismissed as incompetent. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Middleton.

Associate: Dated: 9 February 2007 Counsel for the Appellants: R C Kenzie QC with T J Dixon

Counsel for the Respondent: A G Southall QC with R L Hooker