Martin v Norton Rose Fulbright Australia

KERR J: 1 On 19 September 2016, Norton Rose Fulbright Australia (NRFA) filed an originating application for the following relief under s 39B of the Judiciary Act 1903 (Cth), relying on the grounds set out in a statement of claim subsequently filed: 1. Pursuant to section 21 of the Federal Court of Australia Act 1976 (Cth), a declaration that the Fair Work Commission does not have jurisdiction under Part 3-1 of the Fair Work Act 2009 (Cth) to deal with the 'General Protections Application Involving Dismissal' dated 5 August 2016 filed by the Second Respondent (FWC Application). 2. Pursuant to section 23 of the Act, an order in the nature of prohibition against the First Respondents restraining them from dealing with, or otherwise purporting to exercise jurisdiction over the Applicants in respect, of the FWC Application. 3. An order that the Second Respondent pay the Applicants' costs of these proceedings on an indemnity basis. 2 The President and Members of the Fair Work Commission (FWC) were named as the First Respondents. Mr Martin was named as the Second Respondent. 3 The proceeding was originally in the docket of Wigney J. 4 It is not necessary to traverse any prior complexities in the proceeding. It is enough for the purposes of this decision to indicate that orders were subsequently made for the trial in the proceeding NSD1610/2016 to be conducted concurrently with the trial in separate proceedings: SAD49/2017, in which Mr Martin is the Applicant and NRFA the Respondent. 5 Ultimately, both matters were allocated to my docket. At the time of writing, they are listed for hearing from 2-6 March 2020. 6 In anticipation of that circumstance, I conducted a case management hearing on 23 December 2019 with the intention of settling any outstanding procedural issues in the lead up to the trial date. 7 However, during that hearing Mr Martin raised a threshold issue concerning whether I as a single judge of the Court had jurisdiction to further hear and determine the matter raised by NRFA's originating application in NSD1610/2016. 8 Mr Martin submitted that although s 20(1) of the Federal Court of Australia Act 1976 (Cth) (the FCA Act) provides that "except as otherwise provided by this Act or any other Act, the original jurisdiction of the Court shall be exercised by a single Judge", that general rule is subject to an express exception as provided for in s 20(2). That exception is as follows: (2) The jurisdiction of the Court in a matter coming before the Court from a tribunal or authority (other than a court) while constituted by, or by members who include, a person who is a Judge of the Court or of another court created by the Parliament shall be exercised by a Full Court. 9 Mr Martin submitted that I therefore lacked jurisdiction with respect to proceeding NSD1610/2016. I should refer the matter to a Full Court, and not make any further procedural orders. 10 Having regard to that submission I gave leave to both parties to file any written submissions, limited to 5 pages, they might wish to make on that issue. I adjourned the hearing until the following day, to provide an opportunity for further oral argument. 11 On 24 December 2019, after receiving submissions from both parties I made the following orders: 1. That the Respondent's oral application that this proceeding be remitted for determination by a Full Court on the basis that a single judge of the Court lacks jurisdiction to hear and determine it be dismissed. 2. The Respondent pay the Applicant's costs of that application, as agreed or assessed. 3. The Respondent's oral application for my recusal be dismissed. 12 I indicated that I would publish my reasons as shortly afterwards as was possible. These are my reasons.

MR MARTIN'S SUBMISSIONS 13 Mr Martin did not file an outline of written submissions, but did make oral submissions on 24 December 2019.

Jurisdiction 14 Mr Martin first drew the attention of the Court to the particular relief sought by NRFA in its originating application, as set out above at [1] of these reasons. He then submitted that the FWC: did attempt to exercise jurisdiction. It listed a telephone conciliation conference and it issued a notice for the Respondents to attend, it agitated with the Respondents to file an employer's response, which is required to be filed under the Rules of the Fair Work Commission. 15 Against those circumstances, Mr Martin then addressed the terms of the s 20(2) of the FCA Act. He submitted that the phrase "a matter coming before the Court" was intended to encompass any circumstance where a matter comes before the Court "by means of an appeal which is a statutory right of action, or through some other means of judicial review". 16 Mr Martin submitted that the construction of s 20(2) for which he contended was supported by the purpose of the provision. Mr Martin submitted that: the mischief flying behind [s 20(2)] is to avoid one judge in this court effectively sitting in judgment over the manner in which another judge has conducted a proceeding on their own, that is, to be the sole judge of that other judge. And there is a well-recognised convention that where a judge of the court has a decision on some step taking subject to appeal or review, that that is undertaken [by] a Full Court. 17 Mr Martin submitted that confining the operation of s 20(2) to circumstances where appeals are brought to this Court from decisions of tribunals or other authorities (while constituted by, or by members who include, judges of the Court) would undermine that purpose. In that regard he submitted as follows: [T]he matters that come before the Court from tribunals or authorities are more extensive than merely appeals against decisions, and the reason for that is that tribunals or authorities commonly constitute a review of administrative action and they're, therefore, subject to constitutional writ, such as a writ of prohibition. The other logical reason why subsection (2) cannot be confined to an appeal against a decision lies in the nature of the prerogative writ of prohibition itself because the writ of prohibition is directed to preventing the attempt to exercise jurisdiction where there is no jurisdiction, and so it would not be amenable to issue a writ of prohibition with respect to a decision that had already been delivered. In fact, there is a body of law regarding when a tribunal or authority is functus officio in those circumstances, and that may affect the availability of the writ of prohibition. 18 As to the meaning in s 20(2) of the phrase "constituted by, or by members who include, a person who is a Judge of the Court", and whether it might apply in circumstances where a judge of this Court is not in fact involved in the disposition or management of a matter before a tribunal or other authority, Mr Martin advanced the following submission: Like the Federal Court [or] any other legislatively constituted court or tribunal, [the FWC] does not have a corporate personality, if I may put it that way, in and of itself. It … consists … of its members. Any such tribunal consists of its members, and so the Fair Work Commission is comprised of all of its members holding office under the Fair Work Act, and those members include the president of the Fair Work Commission who is a judge of this court. Now, the exercise or the attempt to exercise jurisdiction that was the object of NSD1610/2016 when the writ of prohibition was sought was the scheduling of a telephone conciliation conference by the Fair Work Commission … for the purpose of alternative dispute resolution of general protections application. … 19 On that point, Mr Martin further submitted that the FWC conciliation process involved: very limited scope for any decision to be made. In the course of … such conciliation, it's confined to whether a certificate ought to be issued to confirm that there is no prospect for resolution and whether to advise a party … of the Conciliator's views of their prospects should a matter proceed on to the Federal Court. So … the matter is not allocated to a Member, customarily. It may be allocated to a Member of the Fair Work Commission, but customarily it is allocated to a conciliation officer who is a Member of the Fair Work Commission personnel. And so in relation to all such decisions, your Honour, the body that is attempting to exercise jurisdiction is the Fair Work Commission and the Fair Work Commission is constituted by Members who include a judge of the court to pick up the phrase used in section 20, subsection (2). 20 Mr Martin summarised his position as follows: … on the Respondents' own case, as they had to contend, they have identified the exercise of jurisdiction which they were seeking to prevent and that exercise of jurisdiction that was attempted to be undertaken by the Fair Work Commission per se or in itself and that must, for the reasons I've expressed, be understood to comprise an attempted exercise of jurisdiction by all Members of the Commission collectively. And the President of the Fair Work Commission therefore being one of those Members is responsible for that exercise of jurisdiction and the principles of comity then would apply in respect of any judicial review of that attempt to exercise jurisdiction. 21 Mr Martin also made reference to the fact that NRFA had named "The President and Members of the Fair Work Commission" as the First Respondent in its originating application and statement of claim. However, Mr Martin did not appear to press a submission that on that basis the President of the FWC was actually involved in any purported exercise of jurisdiction by the FWC. Rather, he appeared ultimately rely on his broader submission: And I return to the manner in which the pleadings were set out, and I don't have them before me, your Honour, but I would be indebted if you would review the documents that are on the file because my recollection is that they certainly are directed to the President and Members of the Fair Work Commission and … that has been the convention for the naming of parties in relation to such matters. But even if the convention or the rule as it now applies is for … any such matter … to name the Fair Work Commission as the respondent, the fact is that that Fair Work Commission has no legal identity in and of itself and it consists of its Members, which include naturally the President, who is a judge of this court. 22 In reply, Mr Martin further refined his submissions as follows: Whatever the Fair Work Commission does in listing [a] conciliation conference and dealing with a general objections application, it necessarily does so with the endorsement and imprimatur of the President. It could hardly be doing what it does without the concordance of the President. The same assumption would be made about the Federal Court, where registry for the court has a policy or a procedure that is not identifiably connected to any particular member of the court, or officer of the court. It would necessarily be presumed or it must, by operation of principles of association, include all of the members and that would include, in the case of the Fair Work Commission, the President … [W]hat the Respondents … would propose would entail, effectively, the decisions of the President of the Fair Work Commission to enact policy or to administer the jurisdiction that is conferred by the Fair Work Act, having their action subject to review by a single judge of the Court merely because they weren't personally identifiable as having been involved in those decisions or those steps that were taken. And that is plainly unsatisfactory.

Costs 23 As to the issue of costs arising from Mr Martin's oral application that these proceedings should be remitted to a Full Court, Mr Martin submitted there was a "threshold question" as to whether the costs provisions in the Fair Work Act 2009 (Cth) (FWA Act) or the FCA Act applied. He submitted that: Under the Fair Work Act, there is a limited discretion for costs based upon whether it is unreasonable for a party to have commenced or continued or to defend a proceeding, and … in my submission, it could not be suggested that it has been unreasonable for me to raise for your Honour's consideration whether or not your Honour, as a single judge, is exercising jurisdiction properly constituted under the Federal Court of Australia Act. It may be inconvenient and awkward and unseemly for the matter to have been before a single judge all this time and now to be referred to a Full Court, but if that is what the Federal Court of Australia Act requires, then that is what must be done …

NRFA'S SUBMISSIONS 24 NRFA filed an outline of written submissions on 23 December 2019. Solicitor for NRFA Mr Toemoe also appeared and made further oral submissions on 24 December 2019.

Jurisdiction 25 The key aspects of NRFA's submissions with respect to the jurisdictional point are as follows: 12. The following three key points can be gleaned from a natural and ordinary reading of section 20 to immediately dispose of Mr Martin's contention: (a) Absent some specific statutory provision, the original jurisdiction of this Court is to be exercised by a single judge. Until 23 December 2019 (by which time more than three years had elapsed since NSD1610 was commenced) there was no suggestion that a single judge did not have jurisdiction to determine NSD1610. (b) If the proceeding in this Court comes "from" another tribunal or authority (neither of which are defined in the FCA), then the jurisdiction of this Court is to be exercised by a Full Court. Fatal to Mr Martin's contention is that NSD1610 does not come from another tribunal or authority. It is not an appeal from the FWC nor a re-hearing. Rather, NSD1610 is a challenge to the jurisdiction of the FWC to deal with Mr Martin's general protections application - an application that Mr Martin withdrew before it could be heard or determined. (c) The relevant "matter" that had been before the Court was of limited compass, being the jurisdiction of the FWC to deal with Mr Martin's general protections application. Put another way, the "justiciable controversy" between the parties was the jurisdiction of the FWC not any determinations or decisions by the FWC. 13. Put simply, in the absence of any hearing or determination of the FWC Proceedings, section 20(2) is not enlivened. Further, NSD1610 plainly does not come from the FWC with the FWC simply being named to enable the orders sought by NRFA regarding the jurisdiction of the FWC to be made. As it turns out, with the withdrawal of the FWC Proceedings by Mr Martin on 17 October 2016, NRFA's challenge to the jurisdiction of the FWC fell away such that the only outstanding issue in NSD1610 is that of costs. (Footnotes omitted; emphasis in original). 26 NRFA further submits that this Court, alike with any court, must have jurisdiction to determine whether it validly has the jurisdiction which a claimant has purportedly invoked: a proposition I accept to be beyond question. Mr Martin ultimately did not press any contention to the contrary. 27 Mr Toemoe, solicitor for NRFA, advanced further oral submissions responsive to the issues raised by Mr Martin at the hearing. As to the relevance of whether the President of the FWC was in fact involved in the relevant matter, he submitted that: The reference to "while constituted", in my submission, is a temporal reference. It does not and cannot encompass each and every decision or step taken by the members of the Fair Work Commission, the president of the Fair Work Commission. Albeit some … administrative process undertaken by the Fair Work Commission. It must - what it must be is a decision or a matter or some such coming from a person who was, at that time, a judge of this court. That is what the reference to "while constituted" is. It is not a broader reference to the constitution of the Fair Work Commission more generally. 28 Regarding the listing of the telephone conciliation conference by the FWC, Mr Toemoe submitted that: If that is, in fact, the fact, that was an administrative function of the Fair Work Commission. It wasn't the exercise of … quasi-judicial decision making at all. It wasn't a decision made, at least, on the evidence before you, of any members of the commission that are otherwise judges of this court. Rather, to embrace Mr Martin's submission, it was an administrative requirement or a statutory requirement.

Costs 29 With respect to the costs of Mr Martin's application, Mr Toemoe submitted that: An application that is made under the Federal Court Act to the effect that subsection (2) of section 20 is enlivened such that your Honour has no jurisdiction. That is not an application that is made under the Fair Work Commission Act [sic] at all and, in my respectful submission that is the end of it when it comes to costs. The provisions in respect of the costs of today's application - and I put it no highly than today's application only - must, in my submission, be dealt with under the Federal Court Act, and, as your Honour will appreciate, section 43 of that Act gives your Honour wide discretion in relation to making orders as to costs. So, in my submission, if your Honour finds that your Honour does have jurisdiction, and, effectively, finds in favour of my client, then costs ought - as is usually the case - follow the event for not only those reasons, but also the reasons set out in paragraph 16 and 17 of my written submissions. (Footnotes omitted). 30 It is convenient to extract those paragraphs as follows: 16 NRFA seeks an order that Mr Martin pay its costs of 23 December 2019 and that such costs are payable forthwith. Section 43 of the FCA permits such an order and expressly notes that costs orders are at the discretion of the judge. NRFA does not (at the time of preparing these submissions) seek its costs of 24 December 2019 as it recognises a directions hearing needed to take place and, in effect, the hearing on 24 December replaces the directions hearing that was scheduled for 23 December 2019. 17 NRFA seeks the above costs order in the following circumstances: (a) The proceedings were commenced on 19 September 2016 yet it was not until three years and three months later that the challenge to jurisdiction of a single judge was first raised. (b) There has been no explanation for the delay in bringing such challenge. (c) The challenge was first raised on 23 December 2019 without any notice to NRFA. (d) Mr Martin said the jurisdiction issue had "been occupying my attention for the last day or so" (T3.19) but despite that, failed to provide any notice whatsoever of the issue to allow the matter to be argued and dealt with at the hearing on 23 December 2019 meaning that hearing was effectively wasted. Simple courtesy would have been to identify the issue to the Court and NRFA in advance of the hearing - something as simple as a reference to the relevant section raising a question over the Court's jurisdiction in NSD1610 would have been helpful but was not forthcoming. (Footnotes omitted). 31 Mr Toemoe then advanced orally the further following submissions with respect to costs, after I indicated that I was not presently minded to order that costs be paid forthwith given that the hearing of this matter had been listed in the near future at which time a number of costs issues relating to NSD1610/2019 and SAD49/2017 would be considered in aggregate: I accept that an order that costs be payable forthwith … isn't the ordinary type of order that would be made in relation to the costs of the interlocutory application. But, in my submission, the circumstances in which this matter comes before you … ought [to have the] result in an order that costs be payable forthwith, and I say that for this reason. This is a matter that was raised yesterday for the first time was capable of being argued with, or to have been capable of being argued before your Honour yesterday. Indeed, I conceded that whilst I - whilst taken by surprise at yesterday's hearing, I was prepared to take that, deal with the matter then and there, and, effectively, deal with it on my feet. That did not happen and Mr Martin was given more time to bring the matter before your Court today and to develop his submissions. He now says out the outset of this hearing that he was prepared to, in fact, argue that yesterday and had already developed his submissions. Yet, we have, effectively, wasted a day of the court's time and my client's time, and my client's cost and money in dealing with these matters. And taking those matters into Court, it is appropriate, in those circumstances, that an order for costs be payable forthwith be made if your Honour is to find in favour of my client.

Jurisdiction 32 In my view, the exception provided for in s 20(2) of the FCA Act does not deprive a single judge of this Court of jurisdiction in relation to proceeding NSD1610/2016. 33 In SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 262 CLR 362 at [14] Kiefel CJ, Nettle and Gordon JJ recently articulated the approach required to be taken to statutory interpretation as follows (at [14]): The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected. 34 It is settled law that it is competent for a person who is a judge of a Ch III court to be appointed to certain non-judicial tribunals, provided always that there is no inconsistency between such roles and their judicial office such as to make the two roles incompatible: Drake v Minister for Immigration and Ethnic Affairs [1976] 46 FLR 409; 2 ALD 60. 35 In my view the text of s 20(2) of the FCA Act understood in its context is directed to a circumstance in which the Federal Court of Australia is called upon to review a question that has actually been determined by a tribunal while constituted by another judge of this Court or another court created by the Parliament. In that regard, the exception gives effect to normative principles of judicial comity and respect which dictate that a decision of a judge of this Court should not be subject to review or appeal save by a Full Court: notwithstanding that is has been made in that judge's non-judicial capacity as a tribunal member. 36 It is uncontentious that the President of the Fair Work Commission is a judge of this Court, and that where a decision of that Commission has been made by members who include that judge s 20(2) of the FCA Act is thus engaged. Thus in JJ Richards & Sons Pty Ltd v Fair Work Australia [2012] FCAFC 503; 201 FCR 297 Jessup J noted that: 1. This is an application by JJ Richards & Sons Pty Ltd and Australian Mines and Metals Association Inc for writs of certiorari and mandamus in respect of two decisions made by Fair Work Australia ("FWA") under the Fair Work Act 2009 (Cth) ("the Act") on 16 February and 1 June 2011. The Court has jurisdiction under s 562 of the Act, which jurisdiction is to be exercised by a Full Court pursuant to s 20(2) of the Federal Court of Australia Act 1976 (Cth) since, in its decision of 1 June 2011, FWA was constituted by members who included a judge of the Court. 37 I infer that his Honour was intending to distinguish that circumstance from one in which the then Fair Work Australia would have been otherwise constituted. 38 Similarly it was held in Phonographic Performance Company of Australia Limited v Copyright Tribunal of Australia [2019] FCAFC 95 by Besanko, Middleton and Burley JJ: 1 This is an application for judicial review by the Phonographic Performance Company of Australia Limited (PPCA) of a decision of the Copyright Tribunal of Australia (the Tribunal). PPCA invokes the jurisdiction of the Court in s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act) and s 39B of the Judiciary Act 1903 (Cth) (the Judiciary Act). … 4. The Tribunal included a judge of this Court and, in those circumstances, this Court is constituted as a Full Court (Federal Court of Australia Act 1976 (Cth) s 20(2)). 39 Again I infer that their Honours were intending to distinguish that circumstance from one in which the Copyright Tribunal of Australia would have been otherwise constituted. 40 Thus the fact that a Judge of the Court also serves as the President of the Administrative Appeals Tribunal (AAT) does not prevent a single judge determining an appeal where that Judge does not constitute the tribunal. As her Honour Perry J noted in Evans v Secretary, Department of Social Services [2014] FCA 491: 3 I note that the Court's jurisdiction is exercisable by me as a single judge because the appeal is from a decision of a senior member of the Tribunal and therefore from a person who is not a judge by s 6(3) of the AAT Act: cf s 20(2), Federal Court of Australia Act 1976 (Cth). 41 I note also that in P v Child Support Registrar [2013] FCA 1089, Wigney J found (at [7]) that in an appeal from a decision of the AAT s 20(2) of the FCA Act did not apply in circumstances where "the Tribunal in this matter was not constituted by a presidential member or a Judge". 42 I accept NRFA's submission that here there is no evidence before the Court that even faintly suggests that any "person who is a Judge of the Court or of another court created by the Parliament" took any steps, made any decisions or exercised any jurisdiction in the FWC Proceedings. 43 I also accept the contentions advanced by NRFA in the balance of its written submissions as extracted above. 44 In my view, Mr Martin's oral application is misconceived. NRFA's originating application and the declaration it seeks does not involve a matter "coming before the Court from a tribunal or authority (other than a court) while constituted by, or by members who include, a person who is a Judge of the Court". 45 It is simply an application for a declaration as to the jurisdiction of the FWC to be determined on the facts pleaded and found by the Court. As matters have transpired, the residual gravamen of the dispute now before this Court appears to be solely in relation to costs. 46 There is no contextual reason to give the exception provided for in s 20(2) a construction beyond its plain terms. Considerations of context and purpose can compel that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected. However nothing of that kind applies in this instance. In that regard I note that s 20(1A) of the Act provides as follows: (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. 47 The Act thus already makes express provision for those instances in which the underlying issues are such as to warrant a matter to be considered by a Full Court rather than a single judge.

Costs 48 The Applicant seeks its costs of responding to the Respondent's application to be provided forthwith. It submits that this proceeding has been on foot for a number of years and that the Respondent's belated application was without notice and is without merit. I agree. 49 I further accept the submission advanced by Mr Toemoe set out at [29] above that the costs provisions of s 570 of the FWA Act are not relevantly engaged in respect of this interlocutory application. If I am wrong in that regard, in any event I am satisfied that in the circumstances it was Mr Martin's unreasonable act, bringing a belated application without notice and without merit, which caused NRFA to incur the relevant costs as would fall within the terms of s 570(2)(b). 50 There is therefore no reason why costs should not follow the event. I will so order. However, I decline to order that costs be paid forthwith given that the trial of these proceedings is not greatly distant.

RECUSAL APPLICATION 51 In the aftermath of my making orders dismissing Mr Martin's application, I stated that I would publish my reasons as soon as practical thereafter. I then made procedural orders for the further conduct of these proceedings. Mr Martin submitted that there was an unfairness in the Court proceeding to make those orders without him having access to the reasons of the Court with respect to the jurisdictional question upon which I had ruled. 52 In responding to that submission I indicated that, subject to the disposition of his application, the parties had been made aware that the Court would continue the case management hearing earlier adjourned. I further indicated that I had commenced work on draft reasons, subject to both parties' submissions being heard, so that I could in any event provide published reasons to the parties as soon as practicable after court staff returned from their Christmas break. 53 Mr Martin submitted that in those circumstances, a fair minded lay observer might reasonably apprehend that I might not bring an impartial mind to the resolution of the outstanding issues in these proceedings, having regard to my acknowledgment that I had begun drafting reasons prior to hearing his submissions. He sought my recusal on that basis. 54 A fair minded lay observer understanding the practices of the Court and its judges would clearly understand that commencing the outline of a judgement, referring to the relevant sections in issue, and to the submissions of the parties such as had been provided in writing, is far from uncommon. In the present circumstances my preparation was no more than a means of ensuring that I would be in a position to provide my written reasons to the parties over the Christmas period with the least delay. Nothing I said during the hearing of 23-24 December 2019 could suggest that I had formed a closed mind or pre-determined the outcome of Mr Martin's application prior to hearing his submissions. For that reason, I dismissed Mr Martin's application for my recusal. I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kerr.