King v Melbourne Vicentre Swimming Club Inc

SNADEN J: 1 The applicant is a former employee of the first respondent's. He moves for a grant of leave pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth) (hereafter, the "FCA Act") to appeal from a judgment of this court. 2 The judgment in question - King v Melbourne Vicentre Swimming Club Inc [2020] FCA 1173 (hereafter, the "Primary Judgment") - was made in connection with an ongoing suit in which the applicant alleges, amongst other things, that he was not remunerated in accordance with the requirements of awards made by the Fair Work Commission (as it is now known). He accuses the first respondent of having contravened s 45 of the Fair Work Act 2009 (Cth) (hereafter, "the FW Act") and seeks relief in connection with those and other alleged statutory contraventions. Relief is sought against the other respondents on the basis that they were accessories to one or more of the statutory contraventions alleged against the first respondent. 3 In the primary proceeding, the respondents deny that the applicant's employment was covered by the awards in question - specifically, the Fitness Industry Award 2010, the Sporting Organisations Award 2010 and the Miscellaneous Award 2010. By the time that the matter came before his Honour, the parties had agreed that the latter two had not applied to his employment but the application of the Fitness Industry Award 2010 (hereafter, the "Fitness Award") remained live. The issue of award coverage was tried as a separate question within that proceeding, following which the primary judge determined that the awards in question did not cover the applicant's employment with the first respondent. His Honour granted declaratory relief that gave effect to his conclusion and it is in respect of that relief that the present application is brought.

The requirement for leave 4 The parties all approached the present application upon the basis that the applicant required leave to bring his proposed appeal from the Primary Judgment. It was accepted that the Primary Judgment was interlocutory in nature. 5 Although the question is probably something of a distraction, it is in my view quite possible that the applicant does not require leave to appeal. Pursuant to s 24(1A) of the FCA Act, leave to appeal is required before an appeal may be brought from an interlocutory judgment. As the authorities make clear, the line that divides interlocutory judgments from final judgments is not always easily drawn. But, in the present case, there seems limited scope for debate. The relief that was granted (and in respect of which the applicant seeks to appeal) was declaratory relief. There is no such thing as an interlocutory declaration: Dovuro Pty Limited v Wilkins (2003) 215 CLR 317, 359 [127] (Kirby J), 363 [143] (Hayne and Callinan JJ); Australian Competition and Consumer Commission v Cement Australia Pty Ltd [2014] FCA 148, [11] (Greenwood J). If the relief that was granted was not interlocutory relief, it must have been final relief: Warramunda Village Inc v Pryde (2002) 116 FCR 58, 77 [68] (Finkelstein J, Lee and Gyles JJ offering no view). It seems axiomatic to me that the judgment by which that relief was granted was a final, rather than interlocutory, judgment. 6 That, though, might be too simplistic an analysis. In N and E Bowder Pty Ltd v Australian Keg Company Pty Ltd (2014) 220 FCR 166, Rangiah J held that a judgment granting declaratory relief in respect of a separate question did not dispose of the whole of the proceeding to which it related and was, therefore, interlocutory in nature. His Honour noted (at 167-168 [8]-[9]): 8 There is a division of authority in this Court as to whether a declaration made in respect of a separate issue which does not dispose of the whole proceeding is interlocutory or final. A long line of authority holds that such a judgment is interlocutory: see, for example, the judgments of the Full Court in Australian Builders' Labourers' Federated Union of Workers - Western Australian Branch v J-Corp Pty Limited (1993) 42 FCR 452 at 454; Fisher & Paykel Healthcare Pty Ltd v Avion Engineering Pty Ltd (1991) 103 ALR 239 at 242; Caboche & Anor v Ramsay & Ors (1993) 119 ALR 215 at 226; NZI Securities Australia Ltd v Poignand (1994) 51 FCR 584 at 593-594; Fraser v NRMA Holdings Ltd (1995) 55 FCR 452 at 457; Construction, Forestry, Mining and Energy Union v Employment Advocate [2001] FCA 1442 at [8]-[9]; Lewis v Hall [2005] FCAFC 251 at [7]. These cases applied the reasoning of the High Court in Computer Edge Pty Ltd v Apple Computer Inc (1984) 54 ALR 767 at 767-768. 9 Other decisions of this Court support the view that a declaration made in respect of a separate issue which does not finally dispose of the case is a final judgment, so that leave to appeal is not required. That view was strongly expressed by Finkelstein J in Warramunda Village Inc v Pryde (2002) 116 FCR 58 at [65]-[70]. In Ho v Grigor (2006) 151 FCR 236, the Full Court cited those passages from the judgment of Finkelstein J with approval. However, the Full Court was not directly deciding the question addressed by Finkelstein J and its apparent approval of those views appears to be obiter dicta. For present purposes, I consider that I am bound by the earlier Full Court decisions to conclude that the judgment was interlocutory and that leave to appeal is required. 7 By contrast, Tracey J in Damorgold Pty Ltd v JAI Products Pty Ltd [2014] FCA 448 considered whether leave to appeal was required in respect of a judgment given on the trial of a separate question. His Honour expressed the view (at [9]): I am not persuaded that the applicants require leave to appeal. In TAG Pacific Limited v McSweeney [1992] FCA 168; (1992) 34 FCR 438 Olney J held that, in a split trial in which questions relating to liability are ordered to be determined as preliminary questions, orders finally determining those questions are not to be treated as interlocutory: see at 444-5. A similar conclusion was reached by the majority of the Full Court of the Supreme Court of Victoria in City of Camberwell v Camberwell Shopping Centre Pty Ltd [1994] 1 VR 163 at 173-175. See also Cairns B, Australian Civil Procedure (10th ed, Lawbook Co, 2013) at 568-569. The orders made by His Honour in relation to the revocation of the patent bear the same character of finality as would have attended such orders had they been made following a trial in which questions of liability and relief had been considered in the normal manner. Left undisturbed those orders would finally determine the issues relating to the validity of the patent. They fall within the defined meaning of the word 'judgment' for the purposes of s 24(1) of the Act. 8 Given the regrettable uncertainty, practitioners might be forgiven for erring on the side of caution and seeking leave to appeal in circumstances such as the present, even if it's not strictly necessary to do so. Perhaps it is better to seek what might not be required than to risk substantive failure for want of something that is. 9 Fortunately, I need not attempt to navigate that minefield. Assuming (as I do - and as the preponderance of authority seems to indicate) that leave to appeal is required, it is appropriate in the present circumstances to grant it. If it is not required, then the applicant requires in any event an extension of time within which to initiate his appeal, the granting of which calls for consideration of similar issues: Singh v Minister for Immigration and Border Protection [2017] FCAFC 195 (Perram, Farrell and Perry JJ). Either way, it is appropriate, for the reasons outlined below, to permit the appeal to proceed.

Principles relevant to this application 10 The considerations relevant to the exercise of the Court's discretion to grant leave to appeal are well established. They include whether or not an appeal would have reasonable prospects of success and whether the applicant would suffer substantial injustice if leave were refused: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397, 398-399 (Sheppard, Burchett and Heerey JJ); Iannuzzi v Commissioner of Taxation (2019) 268 FCR 349, 351 [3] (Kenny, Jagot and Banks-Smith JJ); and Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (the costs of the Cup of Tea Case) [2019] FCAFC 36, [2] (Flick, Reeves and O'Callaghan JJ). 11 The respondents identified a third matter of principle to which the court's attention should be drawn: namely, that leave to appeal ought not to be granted unless there is some merit or utility in doing so. Duncan v Secretary, Department of Family and Community Services [2007] FCA 507 (French J) was cited in that regard. I will proceed upon that basis; although, in reality, to consider whether there is merit or utility in granting leave is unlikely (at least in the present context) to take the debate much further than it will be taken by consideration of whether there are reasonable prospects of success and a possibility that substantial injustice will result if the primary decision is left undisturbed. 12 I turn to consider the various considerations that shape my determination of the present application.

The merits of the proposed appeal 13 The applicant contends that the primary judge wrongly concluded that the Fitness Award did not cover his former employment as a swimming coach with the first respondent. That was, of course, the inquiry to which the trial of the separate question was directed. It was one in respect of which the parties, over the course of four days before the primary judge, led a significant volume of evidence and made detailed submissions, the particulars of which are set out with his Honour's customary thoroughness in the Primary Judgment and need not here be rehearsed. 14 Before the primary judge, the applicant contended that he had been employed within what was known as classification level 4 under the Fitness Award. Relevantly, that classification applied to employees who were employed to work in businesses such as the one operated by the first respondent and who: (1) worked "…under limited supervision and guidance"; (2) were "…required to exercise initiative and judgment in the performance of their duties"; and (3) received "…broad instructions and [had] their work…checked intermittently". 15 Clause B.5.3 of Schedule B to the Fitness Award assumes some significance. It provides (and provided) as follows: B.5.3 An employee at this level [level 4] may also be: ... (b) a coach of beginner swimmers (including mini and junior squads), being a holder of a current ASCTA Bronze Licence for Coaching or equivalent, who has: (i) performed 12 hours per year of recognised workshops and 500 hours of coaching beginners and attended a recognised seminar/conference within the past 12 months, or (ii) delivered 700 hours of coaching beginners. … 16 The applicant contended that clause B.5.3 was indicative and, insofar as it made reference to swimming coaches, was not prescriptive: in other words, it did not limit the application of that classification level to swimming coaches that answered the description in cl B.5.3(b). Even if it did, the applicant contended that, at least for some of his employment, his role was such that the swimmers that he coached were "beginner swimmers" (within the award's contemplation of that phrase) and that he should be understood as holding a "current ASCTA Bronze Licence for Coaching or equivalent". Insofar as concerns that last submission, it was not in contention that the applicant was, at the relevant times, the holder of a "Silver" licence. 17 As the court's rules require, the applicant has provided a draft of the notice of appeal that he proposes to file if given leave to do so. It identifies seven appeal grounds, the combined effect of which is to agitate anew the contentions that he agitated before the primary judge. The respondents accept that the applicant should be granted leave in respect of three of those grounds but oppose any additional grant of leave. 18 The four remaining grounds are opposed on the basis that they are either inarguable or cannot result in any different outcome. In other words, it is said that the applicant lacks reasonable prospects of succeeding on them and that no substantial injustice will result if he is prevented from pursuing them. 19 It is not necessary to dissect in detail the four grounds that are the subject of challenge. As I have already said (and as counsel for the respondents accepted), the applicant effectively seeks to reagitate on appeal the arguments that he unsuccessfully pursued before the primary judge. The grounds by which he proposes to do so could doubtless benefit from some refinement; but, during the course of argument before me, it was plain enough that they are intended to reflect what was put before the primary judge. 20 Proposed appeal grounds 1 through 5 concern the scope of cl B.5.3 - and, more specifically, charge the primary judge with having erred insofar as he was moved to conclude that that clause was prescriptive of the qualifications that swimming coaches require in order to qualify for coverage under classification level 4 of the Fitness Award. It is unnecessary that I should rehearse the individual grounds. In combination, they are directed to that aspect of the applicant's case; individually, they attack various of the intermediate findings that led his Honour to reject it. The respondents' criticisms of some of those proposed grounds (specifically, proposed grounds 4 and 5) reflect a degree of imprecision in the way that they are expressed; but I do not consider that a basis sufficient to refuse a grant of leave to appeal. 21 Proposed grounds 6 and 7 concern cl B.5.3(b). They charge the primary judge with error insofar as he concluded that the applicant was not (at least for some of the period relevant to the proceeding) employed to coach beginner swimmers and was not the "holder of a current ASCTA Bronze Licence for Coaching or equivalent". The respondents submit that those contentions lack any prospect of succeeding on appeal. Respectfully and for the reason identified summarily below, that submission cannot be accepted. 22 Although the primary judge was not moved to accept the submissions that were put on the applicant's behalf, there is no reason upon which fairly to conclude that they were advanced without an arguable basis. It reflects the very nature of the inquiry that his Honour's conclusion, though adverse to the applicant, was anything but foregone. On the contrary, it was the culmination of lengthy and careful reasoning made necessary on account of the evidence and submissions that were advanced (including with respect to the Fitness Award's origins and the historical context within which it was made). It reflected a process of construction, which, like many such processes, lent itself to reasonable alternatives. 23 As I have said, the applicant's hope is to reagitate on appeal the submissions that failed before the primary judge. Just as it could not be said that he lacked a reasonable prospect of succeeding before the primary judge, so too could that not be said now. The threshold that the applicant needs to clear in order to attract a grant of leave is not especially onerous. I am satisfied that the applicant's prospects of succeeding on appeal are sufficient to warrant that outcome.

Substantial injustice 24 I am also satisfied - and the respondents did not seriously resist the court's finding - that the applicant stands to suffer substantial injustice in the event that the primary judge's ruling is to stand (assuming, momentarily, that it was the product of error). Absent a grant of leave and the concomitant possibility that the primary judgment might be overturned, the applicant stands to be permanently deprived of a cause of action that is worth (or is potentially worth) a substantial sum of money. There is not really any doubt that that should suffice as prejudice of the kind upon which the court's attention should presently and fairly focus.

Disposition 25 It is appropriate that leave to appeal should be granted. In light of s 570 of the FW Act, the applicant did not seek any order for costs and none shall be made. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Snaden.

SCHEDULE OF PARTIES VID 589 of 2020 Respondents Fourth Respondent: NICOLE LIVINGSTONE