Construction, Forestry, Mining & Energy Union v Mammoet Australia Pty Ltd

IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION WAD 456 of 2011

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

AND: MAMMOET AUSTRALIA PTY LTD (ACN 075 483 644)

JUDGE: GILMOUR J DATE: 11 December 2012 PLACE: PERTH

REASONS FOR JUDGMENT 1 The appellant applies to have Order 2 of the orders made by the Court in Construction, Forestry, Mining & Energy Union v Mammoet Australia Pty Ltd [2012] FCA 850 (CFMEU v Mammoet) set aside under r 39.05(h) of the Federal Court Rules 2011 (the Rules). The orders were made by the Court on 14 August 2012 and entered on 6 September 2012. Order 2 (the Order) requires that the appellant pay the respondent's costs, to be taxed if not agreed. The parties have filed written submissions on this question and are content for it to be resolved on the papers. 2 Rule 39.05 of the Rules, upon which the appellant relies, allows the Court to vary or set aside an order or judgment after it has been entered in particular circumstances. The respondent made no express submissions as to the applicability of this rule other than to submit that it would seem to be enlivened in the present circumstances. 3 Relevantly, r 39.05 previously existed in the same terms as O 35, r 7 (2) and (3) of the Federal Court Rules 1979 (the 1979 Rules). In particular, r 39.05(h) now replicates what was O 35, r 7(3) with one notable difference; O 35, r 7(3) allowed only for a "correction" of an order whilst r 39.05 now allows an order to be set aside. 4 Rule 39.05(h), commonly referred to as the "slip rule", is a reflection of the common law principles which determine when orders can be varied or set aside. See by analogy from cases dealing with the present rule's predecessor, O 35 r 7: Caboolture Park Shopping Centre Pty Ltd (in liquidation) v White Industries (Qld) Pty Ltd (1993) 45 FCR 224 at 234; Owston Nominees No 2 Pty Ltd v Branir Pty Ltd (2003) 129 FCR 558 at 569; Pharm-a-Care Laboratories Pty Ltd v Commonwealth of Australia (No 7) [2011] FCA 715 at [17]-[20]. 5 Generally, the setting aside or variation of orders after they are entered is permissible only in limited circumstances. The Full Court in Dib Group Pty Ltd v Coolabah Tree Aust-Wide Pty Ltd [2011] FCAFC 57 stated at [77]: Courts exercise a power to set aside judgments or orders after those judgments or orders have been entered in only limited circumstances so as to uphold the principle that there must be some finality in litigation and that once an order has been entered it should not be subject to review by the judge who made the order: Preston Banking Co v William Allsup & Sons [1895] 1 Ch 141 at 144; Caboolture Park Shopping Centre Pty Ltd (in liq) v White Industries (Qld) Pty Ltd (1993) 45 FCR 224 at 235. But even that principle must yield in the appropriate case to the interests of justice. 6 In Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 61 FCR 385 at 389 (Elyard Corporation), Lockhart J stated, citing Milson v Carter [1893] AC 638 at 640, that O 35, r 7 "reflects the inherent or implied jurisdiction of a superior court of record 'at any time to correct an error in a decree or order arising from an accidental slip or omission'". Section 5(2) of the Federal Court of Australia Act 1976 (Cth) (the FCA Act) provides that the Court, being the Federal Court, is a superior court of record. 7 In Elyard Corporation, Lockhart J at 389-392 stated as follows: The rule [O 35, r 7 of the 1979 Rules] is very wide in its scope; but is not available as a matter of course: Shaddock at 597]. Courts have an inherent or implied jurisdiction to amend judgments which do not correctly state what was actually decided and intended. Indeed, after a decree or order has been passed and entered a court will not, unless by consent, permit it to be altered without a rehearing, except in cases of mistakes or errors arising from accidental slips or omissions. . . . The slip rule applies where the proposed amendment is one upon which no real difference of opinion can exist. It does not apply where the amendment is a matter of controversy; nor does it extend to mistakes that are the consequence of a deliberate decision: see Arnett v Holloway [1960] VR 22; Re Army and Navy Hotel (1886) 31 Ch D 644 and Ivanhoe Gold Corporation Ltd v Symonds (1906) 4 CLR 642. The slip rule may be invoked irrespective of whether the order has been drawn up, passed and entered: Milson v Carter at 640; Fritz v Hobson (1880) 14 Ch D 542 at 560; Shaddock at 594-595 per Mason ACJ, Wilson and Deane JJ; Gould v Vaggelas (1985) 157 CLR 215 and Tak Ming Co Ltd v Yee Sang Metal Supplies Co [1973] 1 WLR 300; [1973] 1 All ER 569. It is well settled that the application of the slip rule is not confined to giving effect to the intention of the judge at the time when the court's order was made, or judgment given. It extends to the intention which the Court would have had, but for the failure that caused the accidental slip or omission: Symes v Commonwealth (1987) 89 FLR 356. The rule also extends to permit the correction of an order or decree where the omission results from the inadvertence of a party's legal representative: Fritz v Hobson at 561-562; Chessum & Sons v Gordon [1901] 1 KB 694; Tak Ming Co Ltd at 304; Shaddock per Mason ACJ, Wilson and Deane JJ; and Gould v Vaggelas at 274-275. . . . An exercise of the power of the court under the slip rule is ultimately to avoid injustice. 8 Whilst Elyard Corporation dealt with the Courts consideration of "correcting" an order under O 35, r 7, the appellant submits, correctly in my view, that the same principles apply to the setting aside of an order under r 39.05. 9 It would, as the respondent has observed, be unfortunate, assuming s 570 of the Fair Work Act 2009 (Cth) (the FW Act) had application here, if the only way the error could be corrected was by appellate intervention. 10 I consider that the Court may invoke r 39.05, specifically r 39.05(e), that the order does not reflect the intention of the Court. As was pointed out in Symes v Commonwealth of Australia (1987) 89 FLR 356 at 357, this includes the "intention which the Court would have had but for the failure by reason of which there was an accidental slip or omission". That failure may be expressed as a failure by the parties to positively make submissions on the question of costs, or perhaps more fairly to them, a failure on the part of the Court to raise the question with the parties before making the order. Had either of those failures not occurred then I am confident that the order would not have been made for reasons I will now explain.

Setting Aside the Order 11 Section 43 of the FCA Act states: 43 Costs (1) Subject to subsection (1A) and section 570 of the Fair Work Act 2009, the Court or a Judge has jurisdiction to award costs in all proceedings before the Court (including proceedings dismissed for want of jurisdiction) other than proceedings in respect of which this or any other Act provides that costs shall not be awarded. 12 Section 570 of the FW Act provides as follows: SECTION 570 COSTS ONLY IF PROCEEDINGS INSTITUTED VEXATIOUSLY ETC. 570 (1) A party to proceedings (including an appeal) in a court (including a court of a State or Territory) exercising jurisdiction under this Act may be ordered by the court to pay costs incurred by another party to the proceedings only in accordance with subsection (2) or section 569 or 569A. . . . 570 (2) The party may be ordered to pay the costs only if: (a) the court is satisfied that the party instituted the proceedings vexatiously or without reasonable cause; or (b) the court is satisfied that the party's unreasonable act or omission caused the other party to incur the costs; or (c) the court is satisfied of both of the following: (i) the party unreasonably refused to participate in a matter before FWA; (ii) the matter arose from the same facts as the proceedings. 13 CFMEU v Mammoet was an appeal brought from the Federal Magistrates Court of Australia to a single judge of the Federal Court of Australia in relation to a "general protections" application brought by the appellant under s 340 of the FW Act. The application at first instance was clearly a matter arising under the FW Act. 14 Section 562 of the FW Act confers jurisdiction on this Court "in relation to any matter (whether civil or criminal) arising under the [FW Act]". 15 Section 563(f) of the FW Act provides: SECTION 563 EXERCISING JURISDICTION IN THE FAIR WORK DIVISION OF THE FEDERAL COURT The jurisdiction conferred on the Federal Court under section 562 is to be exercised in the Fair Work Division of the Federal Court if: . . . (f) an appeal is instituted in the Federal Court from a judgment of the Federal Magistrates Court or a court of a State or Territory in a matter arising under this Act ... 16 The appellant submits that as the appeal is from a matter arising under the FW Act from the Federal Magistrates to the Federal Court, it falls squarely within s 563(f) of the FW Act, and accordingly, the Federal Court was "exercising jurisdiction under this Act" for the purposes of s 570(1) of the FW Act. 17 It follows, on the appellant's submission, that the Court can only award costs in the circumstances set out in s 570(2) of the FW Act. There was no suggestion by the respondent or the Court that the appellant's appeal fell within the circumstances of s 570(2) of the FW Act. No application for costs on any basis was made by either party at the hearing or in writing. The respondent concedes, correctly, in my opinion, that if s 570 of the FW Act operates then Order 2 ought not to have been made. 18 The respondent submits that because s 570 of the FW Act has no application: (1) s 562 of the FW Act is not a grant of jurisdiction to this Court to hear and determine appeals from the Federal Magistrates Court, as such an appeal is not "a matter arising under the FW Act"; and (2) in any event, even if it were, the Court was plainly exercising the appellate jurisdiction conferred on it by the FCA Act to the exclusion of any original jurisdiction under the FW Act.

Consideration 19 The costs aspect of the jurisdiction is attracted under s 570 of the FW Act in "proceedings (including an appeal) in a court (including a court of a State or Territory) exercising jurisdiction under this Act … only in accordance with subsection (2) or section 569 or 569A". No reliance has been placed by the respondent on s 569 or s 570(2) of the FW Act. 20 After setting out the legislative antecedents of s 570, Jessup and Tracey JJ in Australasian Meat Industry Employees' Union v Fair Work Australia (No 2) (2012) 289 ALR 552 (AMIEU (No 2)), said at [6]: [6] Under s 562 the court is given jurisdiction in relation to any matter arising under the FW Act. Jurisdiction so vested is jurisdiction "under this Act" for the purposes of s 570. To the extent that the operation of s 570 is tied to the exercise of jurisdiction vested by s 562, therefore, the ultimate question is whether the matter being dealt with arose under the FW Act. Or, to put it the other way round, the condition for the existence of jurisdiction under s 562 is that the matter in relation to which that jurisdiction would be exercised arose under the FW Act, and s 570 would apply to any such case: 21 Prior to the decision in AMIEU (No 2), the Full Court in Construction, Forestry, Mining and Energy Union v CSBP Ltd (No 2) (2012) 202 FCR 149 (CSBP (No 2)), held at [11] that: Section 570(1) of the FW Act, in speaking of "proceedings (including an appeal) in a court ... exercising jurisdiction under this Act", is speaking, in terms, of proceedings including appeals brought in the Federal Court pursuant to ss 563(f) and 565 of the FW Act from other courts and tribunals. The FW Act makes no provision for an appeal from a single judge of the Federal Court to a Full Court of this Court. 22 The respondent submits that this passage should not be read as a conclusion that an appeal from the Federal Magistrates Court (s 563(f) of the FW Act) is itself a matter arising under the FW Act for the purposes of s 562 of the FW Act, such that s 570 of the FW Act would catch such proceedings, but should be read as referring only to appeals to the Federal Court from State or Territory courts exercising jurisdiction under the FW Act: s 563(f) of the FW Act. Such an appeal, it contends, is itself a matter arising under the FW Act for the purposes of s 562 because there exists a separate, specific grant of jurisdiction for such appeals in the FW Act: s 565 of the FW Act. 23 Alternatively, it submits, it was decided per incuriam because it is entirely inconsistent with other aspects of the decision, as well as established principle. 24 I do not accept these submissions. Section 563(f) of the FW Act, as I have mentioned, includes, relevantly, an appeal instituted in this Court from a judgment of a Federal Magistrate in a matter arising under the FW Act. The Full Court in CSBP (No 2) at [32] expressly acknowledged this fact when it stated: Importantly, except for those cases to which s 570 of the FW Act and s 329 of the FWRO Act apply, the Parliament left the Court with its discretion in s 43(1) of the Federal Court Act unfettered. The Parliament recognised that the prohibition against awarding costs under s 570 of the FW Act should not be expressed or extend as widely as that in s 329 of the FWRO Act. Since these appellate proceedings do not fall within s 570 of the FW Act, and do not concern a matter arising under the FWRO, the Court is free to exercise the discretion under s 43(1) on ordinary principles governing the award of costs. However, s 570 of the FW Act is a relevant consideration because it makes a special provision in matters arising in the original jurisdiction of the Federal Court and those in its appellate jurisdiction on an appeal from the Federal Magistrates Court or a court of a State or Territory in a matter arising under the FW Act (s 563(f)). (Emphasis added.) 25 The Full Court's statement in CSBP (No 2) at [11] was directed to include appeals from the Federal Magistrates Court as well as State courts. Its reference to "these appellate proceedings" in [32] was limited to an appeal from a single judge of the Federal Court to the Full Court, being a matter which is not prescribed in s 563 of the FW Act. 26 This conclusion is supported by the reasons of the Full Court at [13] in CSBP (No 2), which provides that: The exercise of the appellate jurisdiction of this Court on appeal from a single judge of the Federal Court must not be confused with an appeal of the kind authorised by s 562 of the FW Act from another tribunal to a single judge of the Federal Court. 27 The plurality in AMIEU (No 2) at [9] stated that: Although s 563 of the FW Act does not confer jurisdiction, it reveals a clear legislative intention that, when a writ of mandamus is sought in the Federal Court against a person holding office under the FW Act (para (b)) and when the High Court remits a matter arising under the FW Act to the Federal Court (para (j)), the jurisdiction subsequently exercised is within that conferred under s 562. 28 It follows from that reasoning that the legislative intent with respect to s 563(f) of the FW Act is that, where an appeal is instituted in this Court from a judgment of the Federal Magistrates Court in a matter arising under the FW Act, the jurisdiction subsequently exercised is within that conferred under s 562 of the FW Act. 29 I do not think there is room then for the decision of the Full Court in CSBP (No 2) to be read down, or be held to have been decided per incuriam. 30 I accept the appellant's submission that it matters not that the mechanism by which the appeal was brought into this Court was found in other legislation. The concurrent exercise of jurisdiction does not preclude the characterisation of a matter arising under the FW Act. 31 This submission is supported by the approach of the Full Court in AMIEU (No 2). 32 As to the plurality's approach in AMIEU (No 2), the Full Court in Australian Industry Group v Fair Work Australia (No 2) [2012] FCAFC 138 stated at [7] as follows: [7] AIG cited Australasian Meat Industry Employees' Union (No 2) [2012] FCAFC 103 and argues that in the present proceeding we should not depart from such a 'clear, persuasive, directly relevant, and recent authority'. In Australasian Meat Industry Employees' Union (No 2), the Full Court considered whether s 570 of the FW Act applied in a proceeding brought in the original jurisdiction of the Court where jurisdiction was conferred by s 562 of the FW Act. In their joint judgment, Jessup and Tracey JJ explained (at [16]) that because the 'right or duty sought to be enforced owed its existence to the provisions of the FW Act', notwithstanding that the Court also had jurisdiction under s 39B(1) of the Judiciary Act 1903 (Cth), the matter arose under the FW Act and s 570 of the FW therefore applied to preclude a costs order because the Court was not satisfied that the applicant had acted unreasonably or vexatiously. In our respectful view, this decision is clearly correct. 33 Flick J in AMIEU (No 2) stated likewise at [35] that: It matters not that the court could also have exercised jurisdiction - and may, indeed, have been concurrently exercising jurisdiction - pursuant to s 39B of the Judiciary Act. The terms of ss 562 and 570 of the Fair Work Act are not to be given any narrow construction or applied in a manner which denies parties the protection afforded by s 570(1) when the court is resolving matters "arising under" the Fair Work Act. 34 In Re McJannet; Ex parte Australian Workers' Union of Employees (Qld) (No 2) (1997) 189 CLR 654 (McJannet) it was held, at 656, that the test of whether a matter arose under the Industrial Relations Act 1988 (Cth) was "whether the right or the duty that is sought to be enforced owes its existence to a provision of the Act". This was applied by the Full Court in CSBP (No 2) at [26]. 35 Here, the appellant sought to exercise a right by way of appeal under the general protection provisions of the FW Act. The respondent invoked s 470 of the FW Act in its defence to that asserted right. 36 There is a distinction between "the matter" and "the proceedings". In Construction, Forestry, Mining and Energy Union v Clarke (2008) 170 FCR 574 (Clarke), the appellant sought costs on the basis that, inter alia, certain proceedings in the appeal fell outside of s 824 of the post reform Workplace Relations Act 1996 (Cth) (WR Act). One such proceeding put in issue was the respondent's motion that challenged the competency of the appeal itself. That motion was dismissed. The decision upholding the competency of the appeal turned on the construction of s 24 of the FCA Act: see Construction, Forestry, Mining and Energy Union v Clarke (2007) 156 FCR 291. 37 The Full Court in Clarke rejected the application for costs and held at [26] that: We reject the submission of the appellants that the right or duty put in issue by the Notice of Objection to Competency related solely to the right of appeal under s 24(1)(a) of the FCA Act. This submission is not supported by the text of s 824(1) of the WR Act. The text of the provision requires that one must look to the enactment from which the matter before the Court arises, not merely the proceeding. If the enactment thus identified as the source of the matter is the WR Act, then no costs order can be made. In this case, the justiciable controversy is whether the appellants engaged in industrial action before the nominal expiry date of a certified agreement contrary to s 170MN(1) of the WR Act, and whether they breached a term of a certified agreement contrary to s 178(1). Although in the course of litigating this controversy particular proceedings were instituted pursuant to provisions in the FCA Act (s 24(1)(a) for the Notice of Appeal) and the Federal Court Rules (O 52, r 18(1) for the Notice of Objection to Competency and O 52, r 22(3) for the Notice of Contention), that is not to the point. The matter arises out of the WR Act, and consequently the usual prohibition in s 824(1) on the making of costs orders applies. (Original emphasis.) 38 The source of the appellate jurisdiction under s 24 of the FCA Act did not preclude the finding that the matter arose under the WR Act. 39 Likewise, the controversy between the parties in this matter arose out of the FW Act including, as was the case in Clarke, on the appeal.

Conclusion 40 I consider myself bound by the decision in AMIEU (No 2), and in particular the conclusions of the Full Court there at [9]. To the extent that the statements of the Full Court in CSBP (No 2) at [11], [13] and [32] may be regarded as obiter dicta, although this is by no means clear, they are obviously highly persuasive and I would adopt them in the way that I have explained they ought be read. 41 I am of the opinion that in hearing this appeal from the judgment of the Federal Magistrate, as articulated by s 563(f) of the FW Act, the Court was thereby exercising the jurisdiction conferred upon it by s 562 FW Act. 42 Accordingly, s 570 of the FW Act is attracted in this appeal thus precluding the jurisdiction to award costs in the absence of the invocation of the exceptions, as is the case here. 43 For these reasons, the Order should be set aside in accordance with r 39.05 (h) of the Rules. It would seem to follow that there ought be no order as to costs in respect of the appellant's application under r 39.05, but I will grant the parties liberty to apply on this question should either wish to be heard on that question. I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour.