Drummond v Canberra Institute of Technology
[2020] FCAFC 131
At a glance
Source factsCourt
Federal Court of Australia (Full Court)
Decision date
2020-07-31
Before
Adam P, Charlesworth JJ
Source
Original judgment source is linked above.
Judgment (7 paragraphs)
THE COURT NOTES:
- The concession given by Counsel on behalf of the Canberra Institute of Technology that in making the orders on 28 November 2017 and in his judgment and orders of 20 September 2019 the discretion of the primary Judge miscarried in that no consideration was given to the provisions of Division 11.2 of the Federal Circuit Court Rules 2001 (Cth). AND BY CONSENT ORDERS THAT:
- Leave to appeal be granted.
- The Notice of Appeal be amended to incorporate: (i) appeals from the orders made on 28 November 2017 and the whole of the judgment in [2019] FCCA 2612; and (ii) an amendment to Ground 2 to include "and in failing to have regard to the provisions of Division 11.2 of the Federal Circuit Court Rules 2001 (Cth)."
- The appeal be allowed.
- The following orders be set aside: (i) orders 2 to 5 (inclusive) as made on 28 November 2017; and (ii) the orders made on 20 September 2019.
- The Interlocutory Applications filed on 3 and 13 July 2020 be dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Introduction 1 Mark Lea Drummond is a teacher. For a period of about six years he was employed by the Canberra Institute of Technology (CIT) on a succession of fixed term contracts. On 22 May 2009 CIT notified him of its intention not to offer him any further contracts after 30 September 2009 "without a merit-based process". In August 2009 CIT informed him that funding for his position was not available after that date. On 31 July 2015 he filed a general protections application in the Federal Circuit Court of Australia (Circuit Court), claiming that CIT had taken "adverse action" against him more than 100 times in contravention of various provisions of the Fair Work Act 2009 (Cth) because he had made a number of inquiries and complaints about a range of matters. Serious allegations were made against multiple individuals. Amongst other things, for example, Dr Drummond alleged that he has been the victim of a conspiracy to injure him in his employment, financial wellbeing, general health, and mental health in particular, involving "coercion, undue influence [and] bullying on a shocking scale", which caused him "extreme levels of distress, torment and damage". 2 On 24 November 2017, four days before the trial was due to begin, Dr Drummond contacted CIT and the Circuit Court to request an adjournment of the hearing. However, on the first day of the prospective trial, 28 November 2017, the Court not only vacated the hearing dates, but dismissed the substantive application and all outstanding interlocutory applications, granting Dr Drummond leave to apply to reopen within six months on certain conditions. Dr Drummond applied for leave to reopen but on 20 September 2019 his application and all outstanding interlocutory applications were dismissed "on a final basis". In effect, leave to reopen was refused. Dr Drummond is understandably aggrieved by the Circuit Court's decision and wants this Court to set it aside. Consequently, he applied for leave to appeal. The application for leave to appeal and any appeal were listed together for hearing by a Full Court. 3 The primary judge's decision involved the exercise of a discretion. An appeal against the exercise of a discretion is governed by the following principles in House v The King (1936) 55 CLR 499 at 504-5: It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has .been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred. 4 As the judgment was interlocutory, leave to appeal is required: Federal Court of Australia Act 1976 (FCA Act), ss 24(1A); 24(1D)(b). 5 The decision the primary judge made also involved a matter of practice and procedure. There are well-recognised constraints upon the ability of an appellate court to "second guess" such a decision. "Particular caution", it has been said, should be exercised "in reviewing decisions pertaining to practice and procedure": Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 177 (Gibbs CJ, Aickin, Wilson and Brennan JJ). 6 In general, leave to appeal will only be granted if the judgment in question is attended by sufficient doubt to warrant its reconsideration and if substantial injustice would result were leave to be refused, assuming the decision to be wrong: Décor Corp Pty Limited v Dart Industries Inc (1991) 33 FCR 397. But this is not a rigid or inflexible rule: Décor at 399. Where an order, even though interlocutory, has the practical effect of finally disposing of a party's rights, leave will more readily be granted. See, for example, SZAJB v Minister for Immigration and Citizenship (2008) 168 FCR 410 (French J). 7 At the outset of the hearing on 24 July 2020 counsel for CIT informed the Circuit Court that CIT did not oppose a grant of leave. 8 Dr Drummond also filed two interlocutory applications. One, filed on 3 July 2020, sought, amongst other things, an order enabling him to file additional evidence and restricting the disclosure of confidential matters. The other, filed on 13 July 2020, sought leave under s 27 of the FCA Act to adduce the additional evidence accompanied by an affidavit annexing that evidence. As events transpired, however, it became unnecessary to resolve either of these two applications. 9 During the course of argument, counsel for CIT properly conceded that the discretion of the primary judge had miscarried. Orders were then made by consent, giving effect to the concession, including an order allowing the appeal by consent. It was foreshadowed that short reasons would be provided for the making of those orders. These are those reasons.