Construction, Forestry, Mining & Energy Union v Employment Advocate

REASONS FOR JUDGMENT THE COURT: 1 This purported appeal challenges various primary findings made against two unions and two union officials that led the trial judge to make declarations that the unions and officials had engaged in conduct in contravention of s 298P(3) of the Workplace Relations Act 1996 (Cth) ("the Act"). The two union applicants are the Construction Forestry Mining and Energy Union ("the CFMEU") and the Australian Building Construction Employees and Builders' Labourers Federation (Queensland Branch) Union of Employees ("the BLF"). The two union officials are Jamie McHugh and Michael Ravbar. The respondent to the appeal is the Employment Advocate, Jonathan Hamberger. A Preliminary Issue 2 Under s 24(1A) of the Federal Court of Australia Act 1976 an appeal as of right does not lie against an interlocutory order or judgment of the Court. Leave to appeal is required. The question whether leave was necessary in this matter was raised by the Court after appearances were announced. To appreciate why this was done it is necessary to refer to the course of the proceeding before the trial judge. 3 After making the challenged declarations the trial judge adjourned further hearing of the matter to a date to be fixed on the question of pecuniary penalties. Without waiting for the determination on penalties the applicants lodged this appeal (Q 6). It was heard at the same time as those in Q 5 of 2001 (Q 5) and Q 28 of 2001 (Q 28) where the respective appellants had likewise lodged their appeals prior to the determination of penalties. 4 In our reasons for judgment in those appeals we indicated that, where such a course is taken, leave to appeal may be required and that a live consideration on an application for leave could be whether it would be appropriate by the grant of leave further to disrupt the conduct of the trial and, potentially, to fragment the appellate process itself: cf R v DeMarchi [1983] 1 VR 619. The question whether leave is necessary arises directly in this matter. 5 The amended application that was before the trial judge sought (i) declarations (presumably under s 21 of the Federal Court of Australia Act 1976) that the various respondents had engaged in conduct in contravention of s 298P(3) of the Act; (ii) orders imposing penalties on each respondent under s 298U(a) of the Act; (iii) orders requiring the payment of compensation under s 298U(c) of the Act; and (iv) injunctions (presumably under s 298U(e) of the Act) restraining the respondents from engaging etc in contravening conduct. We would note in passing that the claim for compensation appears to have been abandoned during the trial. Likewise the claim for injunctive relief seems not now to be a live matter. 6 The premise of the Court's order-making power under s 298U is contained in its opening words: "In respect of conduct in contravention of this Part, the Court may, if the Court considers it appropriate in all the circumstances of the case, make one or more of the following orders." (emphasis added) For the purpose of any proceeding under Division 6 of the Act for an order or orders under s 298U, a mere finding that a person has engaged in conduct in contravention of Part XA - and any consequential declaration to that effect - can only be characterised as a step along the way to finally disposing of the rights of the parties. Given that the award of relief under s 298U is discretionary and that the trial judge in this matter has not determined that penalties are to be imposed, the trial judge cannot be said to have as yet determined whether any order would be made under s 298U. 7 It is unnecessary here to consider in any detail the differentiating characteristics of orders that are final and those that are interlocutory for the purposes of the leave requirement imposed by s 24(1A) of the Federal Court of Australia Act 1976; but see eg the discussion in Malouf v Malouf (1999) 86 FCR 134. It is sufficient to say that an order will be final for the purposes of an appeal when, even though interlocutory in form, it is final in substance in that it finally disposes of the rights of the parties: Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2000) 104 FCR 564 at 583-584; Arrowcrest Group Pty Ltd v Gill (1993) 46 FCR 90; National Australia Bank Ltd v Maher (No 2) [1999] 3 VR 589 at 592-595; see also French Caledonia Travel Service Pty Ltd (t/a Connection Holidays) v Elatri, unreported, FCA, Full Court, 22 May 1992: Williams, Civil Procedure Victoria, I 64.01.455. 8 In the present matter, while the making of a finding of contravening conduct was a necessary precondition for the grant of relief under s 298U, such a finding even when expressed in a declaration (as here) did not of itself determine any liability of that conduct to any of the forms of relief specified in the section. It "left undetermined the question whether any, and what [penalties] were payable": Computer Edge Pty Ltd v Apple Computer Inc (1984) 54 ALR 767 at 768. It was not equivalent to an order awarding penalties "to be assessed": cf Hall v Busst (1960) 104 CLR 206 at 218; and see generally on this distinction National Australia Bank Ltd v Maher (No 2), above, at 592-595. 9 The declaratory orders made were clearly interlocutory in character: see Australian Builders' Labourers' Federated Union of Workers - Western Australian Branch v J-Corp Pty Ltd (1993) 42 FCR 452 at 454. Leave to appeal is required. Leave to Appeal 10 In this matter and in Q 5 and Q 28, the Employment Advocate simply adopted the submissions of the would-be appellant unions and officials. Those submissions (made only at the beginning of the second day of the combined hearings) were brief. They involved no more than the propositions that (i) leave will more readily be granted where the decision in question determines substantive rights rather than points of procedure; (ii) the declarations here had significant consequences for the applicant and all that remained to be done was the determination of penalties; and (iii) having spent two days arguing the three appeals (ie Q 5, Q 28 and Q 6), considerations of cost favoured the grant of leave. 11 There is no controversy as to the principles which should normally guide a Court in the exercise of its discretion to grant or withhold leave. They are - (i) is the decision in all the circumstances attended with sufficient doubt to warrant its being reconsidered by the Full Court? And (ii) would substantial injustice result if leave were refused supposing the decision to be wrong? On these principles see generally Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397; Johnson Tiles Pty Ltd v Esso Australia Pty Ltd, above. 12 We have in fact heard full argument on the correctness of the trial judge's decision. We are thus in the position to express a definitive view on whether any doubt attended his Honour's decision in Q 6. Other than to observe that the present applicants in Q 6 are attempting to undertake the forbidding task of challenging what might be considered to be careful fact findings made in a setting of adverse findings on credibility, we refrain for the reasons we give below from expressing any view on whether any doubt attends the trial judge's decision. 13 Despite full argument being heard, the parties were left in no doubt that it was a live issue in this matter, as in Q 5 and Q 28, whether leave to appeal would be granted. That it might not be was a risk that attended the course upon which the parties embarked. In the usual case where full argument is heard it might reasonably be expected that the Court would formally grant leave and decide the merits of the matter for reasons both of cost and of convenience to the Court in obviating the need to have the matter reargued at a later date after final orders have actually been made. This is not that usual case. 14 The original application in this matter self-described itself as one brought under s 298T of the Act. It was in substance, for orders under s 298U and, in particular, for civil penalties. Prior to the hearing of the application no order was made or direction given by the trial judge "splitting" the issues of contravention and penalty. At the close of submissions the following exchange occurred: "MR MARTIN: Your Honour, neither of us have made submissions about penalty for obvious reasons. HIS HONOUR: Let's deal with the contravention question first. MR MARTIN: Yes, yes. HIS HONOUR: … [W]hat I want to do is deal with the contravention question first and, depending upon the outcome of that, if need be, we'll have another day in relation to submissions in relation to penalty if that's appropriate. MR MARTIN: Thank you. HIS HONOUR: But you were not proposing to call any evidence on penalty, were you? MR MARTIN: Oh, no." 15 It was, in a sense, fortuitous that the trial judge proceeded actually to make orders (rather than to foreshadow orders to be made) in advance of determining the question of penalties. It was this that provided the opportunity to institute the present "appeal". It is reasonable, though, to infer that his Honour's purpose in making all of the orders he did (a separate order dismissed a claim against a third union official) was to facilitate the determination of the penalties issue, contraventions having been found against some only of the respondents. And that penalties determination was to be no more than a matter of submissions in light of the contraventions found. 16 The consequences of the present applicants having sought to appeal prior to that determination are several. First, it interrupted the orderly and planned resolution of the matter in the manner foreshadowed by the trial judge and apparently acquiesced in by the parties; secondly, it effected no potentially significant saving in costs given that no evidence was to be called on the penalty issue; and, thirdly, it had the potential to fragment the appellate process itself in that, if leave was granted but the appeal was dismissed, a further appeal could be brought contesting any penalty later imposed. Such further appeal would be as of right as the order imposing penalties would ordinarily be a final order. 17 It is well accepted practice in the case of appeals in criminal matters that, exceptional cases apart, all considerations of convenience point to the Court entertaining an application for leave to appeal against conviction only after sentence has been passed. As was indicated by McInerney J in R v De Marchi [1983] 1 VR 619 at 622: "It is obviously more convenient to hear an application for leave to appeal against conviction in conjunction with an application for leave to appeal against sentence, if an appeal against sentence is instituted. In such a case, in the course of hearing the application for leave to appeal against conviction, the Court is ordinarily apprised of all or most of the facts which bear on the question of sentence. It can seldom be convenient to have the time of the Court wasted by having to go through the evidentiary material twice over, or to have an application for leave to appeal against sentence dealt with by a court other than that which dealt with the application for leave to appeal against conviction." 18 Though the present is not a criminal matter, it is in our view sufficiently analogous in the circumstances in relation to the issue of leave to appeal as to warrant the adoption of a like approach for like reasons of convenience to those given by McInerney J. There was, in addition, no significant advantage to be secured, or detriment to be averted, in seeking to appeal prior to (rather than after) the making of an order on penalties. The course taken disrupted the intended finalisation of the matter. The foreshadowed appeal itself raised no issues of general importance. As we have noted, the challenge is to findings of fact and this in a setting where adverse credibility findings affected some of those findings. Even were we to assume that the trial judge's decision was wrong, no substantial injustice to the unions and officials concerned would result. They will remain able to appeal at the usual and proper time, ie when final orders are made on the determination of penalties. 19 The course that has been taken by the applicants is not one to be encouraged. We would refuse leave to appeal. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Lee, Finn and Merkel.