Wardman v Macquarie Bank Limited [2023] FCAFC 125 | Case summary

BROMBERG AND WHEELAHAN JJ: 1 On 17 February 2023, the Court published reasons for judgment in these five appeals: Wardman v Macquarie Bank Limited [2023] FCAFC 13; 322 IR 278. These reasons should be read with those in the primary reasons of the members of the Court. 2 The appeals raised the following issues - (1) did the Bank contravene the Fair Work Act 2009 (Cth) (FW Act) by failing to pay wages to the employees; (2) did the Bank contravene the FW Act by failing to pay the employees during periods of leave and public holidays as required by the National Employment Standards; (3) did the Bank contravene the FW Act by failing to pay annual leave loading to the employees as required by the relevant Award; (4) were deeds of release that had been executed by several of the employees effective to preclude their claims; and (5) were there other errors made by the primary judge in fixing penalties? 3 The conclusions that we reached were those set out in the judgment of Wheelahan J at [285], with which Bromberg J agreed at [2] and [48]. The only contraventions found by the primary judge that were upheld were those relating to annual leave loading in respect of most, but not all of the employees. This was the sole issue on which Snaden J dissented. It followed, in our view, that the orders of the primary judge relating to the payment of outstanding monies, the payment of penalties, most of the declarations, and the orders as to costs, should be set aside. We determined that the matter should be remitted to the primary judge for further hearing. We also proposed that orders should be made for the repayment of any monies that had been made under the primary judge's orders. 4 Upon delivering judgment, the Court ordered the practitioners for the parties to confer and to submit draft orders to the chambers of the members of the Court to give effect to the Court's reasons and, if they were unable to agree, to file written submissions. The Court proposed to consider the orders on the papers. Draft orders were originally required by 3 March 2023, but the parties sought and were granted a series of extensions of time. 5 The parties have now submitted proposed consent orders with a joint memorandum signed by senior and junior counsel and separate consents signed by two parties to the proceedings who were not represented on the appeals. In substance, the parties have advised the Court that they have compromised the proceedings, and seek that the following orders be made - (a) Each of the appeals be allowed. (b) The orders made by the primary judge on 2 October 2020 and 22 December 2020 in the three proceedings below be set aside, and in their place it be ordered that: (i) each of the proceedings is dismissed; and (ii) there be no order as to costs. (c) There be no orders as to costs of the appeals. 6 A small point arises upon which the Court sought, and was assisted, by submissions of counsel for the parties in the joint memorandum. The point is whether the Court should set aside the primary judge's declarations relating to the Bank's failure to pay annual leave loadings where, in respect of most of the employees, we held that there was no error by the primary judge in making findings as to contravention. For the following reasons it is our view that it is appropriate for the Court to give effect to the parties' compromise and to make the consent orders that are sought. 7 The Court's powers in its appellate jurisdiction include those referred to in s 25(2B) and s 28(1) of the Federal Court of Australia Act 1976 (Cth). The powers in s 25 are of a procedural or summary character that may be exercised by a single Judge or a Full Court, and include - (2B) A single Judge (sitting in Chambers or in open court) or a Full Court may: … (b) make an order by consent disposing of an appeal to the Court (including an order for costs); or … 8 The Full Court's powers of disposition of an appeal are the broadly-expressed powers in s 28(1), which include - (1) Subject to any other Act, the Court may, in the exercise of its appellate jurisdiction: (a) affirm, reverse or vary the judgment appealed from; (b) give such judgment, or make such order, as, in all the circumstances, it thinks fit, or refuse to make an order; (c) set aside the judgment appealed from, in whole or in part, and remit the proceeding to the court from which the appeal was brought for further hearing and determination, subject to such directions as the Court thinks fit; … 9 In Allesch v Maunz [2000] HCA 40; 203 CLR 172, Gaudron, McHugh, Gummow and Hayne JJ, in discussing the nature of an appeal by way of rehearing and comparing it with a rehearing de novo, stated at [23] that "the powers of an appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error". There was an important qualification to that observation, namely where "there is some statutory provision which indicates that the powers may be exercised whether or not there was error at first instance", citing Re Coldham; Ex parte Brideson (No 2) [1990] HCA 36; 170 CLR 267. 10 In Telstra Corporation Ltd v Minister for Broadband, Communications and the Digital Economy [2008] FCAFC 7; 166 FCR 64 (Telstra) the Full Court (French, Weinberg and Greenwood JJ) considered the question whether it was necessary for parties to an appeal to show appellable error before the Court would act on proposed consent orders that provided that an appeal should be allowed. After citing a number of authorities, the Court stated at [51] - In our opinion none of the preceding authorities relieves this Court of the duty to be satisfied, as a condition of the exercise of its power to allow an appeal by consent, that there was an appellable error. 11 The Court then referred at [52] to the agreement of the parties that there had been arguable appellable error before concluding at [54] - In our opinion and without descending into the merits of the appeal, there is sufficient basis for the existence of error by his Honour to enliven the power of the Court to allow this appeal. … 12 In a subsequent decision, Citigroup Pty Ltd v Mason [2008] FCAFC 151; 171 FCR 96 (Citigroup), a differently constituted Full Court (Moore, Finn and Dowsett JJ) stated at [6] that it was not clear whether the Full Court in Telstra concluded that there was error, or only arguable error. While expressly refraining from not following Telstra, the Full Court in Citigroup held at [8] that there was a basis for concluding that the decision was plainly wrong and should not be followed. The reasons for this view were set out by the Court at [11]-[15]. 13 The correctness or otherwise of Telstra has also been referred to in other Full Court decisions, without the point being decided, including: Commonwealth Bank of Australia v Walker as liquidator of A.B.C. Learning Centres Limited (in liquidation) [2012] FCAFC 68; 289 ALR 674 at [3]-[6] (Perram J) and [13]-[15] (Rares J); and Bradken Ltd v Norcast S.ár.L [2013] FCAFC 123; 219 FCR 101 at [19]-[24] (Allsop CJ, Mansfield and Jacobson JJ). There are single Judge decisions that have proceeded on the basis that only arguable appellable error needs to be demonstrated in order to persuade the Court to make orders by consent allowing an appeal: Comcare v Stefaniak [2020] FCA 560; 170 ALD 262 at [4] (Thawley J); and Redbubble Ltd v Hells Angels Motorcycle Corporation (Australia) Pty Limited [2021] FCA 1467; 163 IPR 491 (Redbubble) at [7]-[13], [17]-[20] (McKerracher J). In Redbubble, McKerracher J collected and summarised the principal authorities, and concluded that it was only necessary to be satisfied of arguable error before the Court could exercise the power under s 25(2B)(b) of the Act to make orders allowing an appeal on the basis of consent orders. McKerracher J's summary of the authorities in Redbubble was endorsed by the Full Court in PYDZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 14; 289 FCR 304 (PYDZ) at [14] (Rangiah, S C Derrington, and Banks-Smith JJ). The Court in PYDZ then proceeded on the basis that only arguable error had to be demonstrated for the Court to act on proposed consent orders that the appeal be allowed, and also on that basis made declaratory orders directed to the invalidity of an administrative decision. 14 We were invited by the joint memorandum of counsel for the parties to hold that Telstra should not be followed. The differences of views between the Court in Telstra on the one hand, and the other authorities to which we have referred above such as Citigroup, concern whether it is necessary before making consent orders allowing an appeal for the Court to be satisfied that there was an appellable error, or only that there was an arguable error. There is much to be said for the view that the only material condition that must be established in order to engage the power in s 25(2B)(b) to dispose of an appeal is the existence of consent, and that whether the Court should be satisfied of arguable error, and if so to what degree of satisfaction, goes to the discretion to exercise the power, and is not a condition on the existence of the power. See, in an allied context, the observations in FAI General Insurance Co Ltd v Southern Cross Exploration NL [1988] HCA 13; 165 CLR 268 at 283-4 (Wilson J) in relation to arbitrary limits on powers not expressed in the words conferring the power. On the assumption that the existence of appellable error goes to discretion, the level of satisfaction required might depend upon the nature of the orders that are sought, and whether the legal interests of non-parties are affected. For instance, if a retrial is sought by consent, then before public resources are committed to that course the Court on appeal should normally be satisfied that a retrial is appropriate. On the other hand, in a dispute between parties about the quantum of damages, a Court might more readily act on the parties' consent to final orders on appeal in substitution for those made at trial. 15 In this case, the question of error is not in issue and the correctness of Telstra does not have to be decided. That is because this Court has held that the primary judge's decisions were attended with a range of errors. The question now before the Court is what orders should be made upon the establishment of those errors. 16 There are two reasons why it is appropriate, consequent upon this Court's findings of error, to accept the parties' proposal that the declarations concerning the unpaid annual leave loading should be set aside. The first is that the terms of the primary judge's declarations do not conform with this Court's findings. In the Arundell proceeding, declarations in relation to annual leave loading would have to exclude the employee Haslem because we held that the liability to pay annual leave loading to him was discharged. In the Wardman proceeding, the primary judge excluded Sandford and Edwards from the terms of the relevant declarations on the basis that his Honour held that their claims were barred by the deeds of release that they executed. We have overturned those findings. In the Briody proceeding, declarations in relation to annual leave loading would have to exclude the employees McKenzie and Ryan because, as with Haslem, we held that the liability to pay annual leave loading to them was discharged. 17 The second reason is that the declarations sought by the employees were part of a suite of remedies that were claimed. We concluded that penalties would have to be re-assessed because of the errors that we upheld. Penalties serve the purpose of deterrence. So too may declarations: see, Director of the Fair Work Building Industry Inspectorate v Stephenson [2014] FCA 1432; 146 ALD 75 at [104] (White J); Australian Securities and Investments Commission v Allianz Australia Insurance Ltd [2021] FCA 1062; 156 ACSR 638 at [121] (Allsop CJ). It would be open to the parties to re-argue the whole question of deterrence upon the fresh factual foundation that arises from this Court's findings, including whether declarations should be made in addition to any orders for penalties. 18 In conclusion, this Court's findings in relation to contraventions of the Award by Macquarie Bank Ltd concerning non-payment of annual leave loading stand. As for the disposition of the appeals, upon the findings of error by this Court there is no impediment to giving effect to the parties' agreement to bring all the controversies to a conclusion by making the consent orders that are sought which involve setting aside all the primary judge's orders and dismissing the proceedings. We are satisfied that those orders are appropriate orders for the purposes of s 25(2B)(b) and s 28(1) of the Act. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Bromberg and Wheelahan.

SNADEN J: 19 On 17 February 2023, the court gave reasons for judgment in these five appeals: Wardman v Macquarie Bank Ltd (2023) 322 IR 278 (Bromberg, Wheelahan and Snaden JJ) (hereafter, the "Primary Appeal Judgment"). By majority, it was resolved that each of the appeals should be allowed in part; and that some (but, importantly, not all) of the orders that were the subject of the primary judgment should be set aside, with part of the controversy to be remitted for further hearing before the primary judge. The parties were requested to draw up a minute of orders that gave effect to the majority's reasons. 20 That did not occur. 21 Instead, the parties reached an accord in settlement of their disputes, following which they asked the court to make orders by consent allowing all of the appeals and setting aside all of the orders of the primary judge. Following receipt of that proposal, they were asked to file submissions addressing, amongst other things, the reasons why relief of that nature - being relief that was unambiguously inconsistent with the reasoning in the Primary Appeal Judgment - should be granted. 22 Those submissions were received in the form of a joint memorandum. For the reasons that follow, I accept what is said there and would make orders in the forms proposed by consent. 23 The jurisdiction of this court is established (at least at a headline level) by Part III of the Federal Court of Australia Act 1976 (Cth) (the "FCA Act"). Division 2 of Part III is concerned with the court's appellate jurisdiction in relation to civil matters. Section 24 of the FCA Act vests various species of such appellate jurisdiction and s 25 - which is of present relevance - serves in various ways to regulate its exercise. Section 25(2B) of the FCA Act relevantly provides as follows, namely: (2B) A single Judge (sitting in Chambers or in open court) or a Full Court may: … (b) make an order by consent disposing of an appeal to the Court (including an order for costs)… … 24 Section 25(2BB) of the FCA Act relevantly provides as follows, namely: (2BB) An application for the exercise of a power mentioned in subsection (2B) must be heard and determined by a single Judge unless: (a) a Judge directs that the application be heard and determined by a Full Court; or (b) the application is made in a proceeding that has already been assigned to a Full Court and the Full Court considers it is appropriate for it to hear and determine the application. 25 The relief that the parties now propose by consent is said to be relief that the court may grant under s 25(2B)(b) of the FCA Act. For present purposes, it is appropriate for the question of relief by consent to be determined by the full court. At issue is whether relief in the form proposed should be granted; and, in particular, whether it should be granted in light of the conclusions that were stated in the Primary Appeal Judgment. 26 Section 25(2B) of the FCA Act has been the subject of competing authority. In Telstra Corp Ltd v Minister for Broadband, Communications and Digital Economy (2008) 166 FCR 64 (French, Weinberg and Greenwood JJ; hereafter, "Telstra"), a full court expressed the view (at 77 [51]) that it was under a "…duty to be satisfied, as a condition of the exercise of its power to allow an appeal by consent, that there was an appellable error". 27 In Commonwealth Bank of Australia v Walker as Liquidator of ABC Learning Centres Ltd (in liq) (recs and mgrs apptd) (2012) 289 ALR 674, Perram J (with whom Rares and Flick JJ agreed) had occasion to consider that statement, and the context in which it was made and applied. His Honour noted (at 675 [4]) that the court's acceptance of a "duty to be satisfied": …needs to be understood in the context of [its] later statement at [52]-[54], which appears to proceed on the basis that demonstration of an arguable appealable error is all that is required. 28 That adaptation of the "duty" has been favoured. In Bradken Ltd v Norcast S.ár.L (2013) 219 FCR 101 (Allsop CJ, Mansfield and Jacobson JJ), the court observed (at 102 [2]) that: …the exercise of the power to allow an appeal by consent is dependent upon the identification, to the satisfaction of the Court, of arguable appellable error in the decision below. 29 Other authorities have offered similar endorsements: CQX18 v Minister for Home Affairs (2019) 372 ALR 137, 139 [9] (Allsop CJ, Perry and Gleeson JJ); PYDZ v Minister for Immigration (2022) 289 FCR 304, 307 [14] (Rangiah, SC Derrington and Banks-Smith JJ). 30 The principle has also been questioned. In Citigroup Pty Ltd v Mason (2008) 171 FCR 96 (Moore, Finn and Dowsett JJ; hereafter "Mason"), the court observed in obiter (at 99 [8]) that: …there may be, in our respectful opinion, a basis for concluding that the judgment of the Full Court in Telstra 166 FCR 64 was plainly wrong and should not be followed. 31 Addressing the power conferred by s 25(2B)(b) of the FCA Act, their Honours noted (at 100-101 [11]-[12]) that an order made thereunder: …is, in the words of the Act, made to dispose of an appeal. It does not involve, other than in the loosest sense, a determination of the appeal and certainly does not involve the determination of the appeal after a contested hearing. The fact that a consent order can be made by a single judge militates, in our opinion, against the conclusion that, as a matter of construction, the power to make the order can only be exercised if the Court, in exercising appellate jurisdiction, is satisfied there is error on the part of the judge whose judgment is the subject of appeal… Depending on what the Full Court meant in Telstra 166 FCR 64, a range of practical problems emerge. If it is necessary for a Full Court (we will not continue to refer to the exercise of the power to make a consent order by a single judge, although it should not be lost sight of) to be satisfied there is error, how can that be done short of hearing and assessing full submissions that would otherwise have been put had the appeal not been settled? …[I]t is difficult to discern what the middle ground might be between being satisfied that there is error before making consent orders in an appeal and making them without regard to whether there was error at all… 32 After setting out other "practical problems", their Honours observed (at 101 [15]-[16]): Some of these problems are particularly acute in litigation that can truly be characterised as inter partes litigation, that is, where one party is asserting a legal right and seeking a remedy against another party and nothing more. The approach in Telstra 166 FCR 64 may substantially inhibit parties reaching agreement and requesting a Full Court to give effect to their agreement in an appeal by making consent orders. Even if it does not inhibit parties in reaching settlement, it requires them to undertake, in some cases probably, at additional expense, the burden of establishing appellable error. We accept there may be classes of cases heard in the appellate jurisdiction where it is appropriate for the parties to explain or justify the outcome to which they have agreed, as there are in relation to some classes of cases in the Court's original jurisdiction. However, we find it difficult to accept that, as a matter of principle of general application, parties to an appeal must be required to justify their settlement (by demonstrating error) as a condition precedent to the exercise of a power in the appellate jurisdiction to make consent orders. However these issues need not be explored further because, as we noted earlier, we have not been invited to conclude that the judgment of the Full Court in Telstra 166 FCR 64 was plainly wrong. 33 Presently, the parties invite the court to reject the reasoning favoured in Telstra (and the subsequent authorities that have applied or not questioned it). They contend that the exercise of the power conferred by s 25(2B)(b) of the FCA Act is not conditioned upon acceptance that a primary judgment is attended, or arguably attended, by error; and that, instead, the court (whether via the agency of a single judge or a full court) may - and, here, should - give effect to consent orders even absent the identification of error, arguable or otherwise. 34 As a matter of statutory construction, the parties' submission has much to commend it. The broad discretion conferred by the language of s 25(2B)(b) of the FCA Act is just that: broad. Its exercise is not, in terms, constrained by the identification of error or arguable error; and there is nothing about the statutory context in which it appears, nor about the subject matter, scope or purpose of the FCA Act, that should, by implication, compel recognition of such a constraint. Insofar as Telstra and other authorities that have considered it hold otherwise, I would respectfully agree that that reasoning is plainly wrong and should not here be applied. 35 That is not to say, however, that the existence of error or arguable error is not a consideration by which the broad discretion may properly be informed. As the court observed in Mason, there may well be cases in which the discretion ought not to be exercised absent some perception of error or arguable error. Matters involving the exercise of executive power are obvious examples. Ordinarily, in the absence of some identification of error or arguable error, the court might properly have some reluctance to allow by consent an appeal that results in the granting of prerogative relief. Although not directly on point, the observations of Colvin J in VNPC v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 921 (at [3]-[5]) are apposite: Even where the proper contradictor to an application for judicial review consents to the grant of relief, the Court must be satisfied that there is error. As explained by French J in Kovalev v Minister for Immigration and Multicultural Affairs [1999] FCA 557; (1999) 100 FCR 323 at [12], there is a public interest that requires the Court to specify the error and its satisfaction that an error has occurred which justifies the proposed relief being granted within the public law jurisdiction of the Court. It is necessary for this to occur because it is not a matter for the parties to determine by agreement whether the extent of executive authority has been exceeded. Constitutional integrity requires that the limits upon the extent of judicial power to confine or constrain the exercise of executive power are carefully observed. Further, in cases where the proposed orders will result in the matter being remitted, it is necessary for sufficient guidance to be provided whether by way of note to the orders (where that will be sufficient) or by publication of reasons to enable a further exercise of power according to law as determined by the Court. It is always a significant step for a court to exercise its jurisdiction to supervise the actions of the repositories of executive power and it is appropriate that due respect be afforded to a Tribunal, decision-maker or other repository by communicating the reasons for the grant of public law relief. Finally, in many instances where public law relief is granted, the orders will affect the exercise of powers which have significance beyond the interests of the parties before the Court and for that reason the Court should make plain why it has granted relief. 36 Perhaps mandatory terms like "must" and "necessary" are more definitive than is warranted; but, regardless, the point is well understood. For present purposes, the proper exercise of the discretion conferred by s 25(2B)(b) depends upon the circumstances; and, in some appeals, it may well be that the discretion should not be exercised absent some identification of error or arguable error. Regardless, the existence or perception of error is merely a consideration that might be taken into account in the exercise of the court's broad discretion. 37 That invites some consideration of the present appeals and whether they should be disposed of by consent in the absence of error. Here, of course, the question of error has been answered. By majority, the court has made findings, the net effect of which is to accept that the orders of the primary judge were, in some respects made in error; and, in others, were not. Plainly as to the latter, the court could not take the view that they should be set aside by consent on the basis of actual or perceived error. 38 Should they nonetheless be set aside because the parties have struck an accord and now want them to be? Insofar as concerns the orders that have been held to have been products of error, there could be no occasion to hesitate. They were going to be set aside anyway. But, as has been noted, not all of the primary judge's orders were in that category. 39 In each of the matters from which the present appeals have been brought, his Honour granted declaratory relief concerning the employee applicants' entitlement to annual leave loading. By majority, that relief was held not to have been the product of error. Is it relief of the kind that ought not, as a matter of discretion, to be set aside by consent absent some identification or perception of error? 40 In my view, that question should be answered in the negative. That the orders to be set aside were not made in error may be accepted (leaving aside, for the moment, my own dissent on that issue: Primary Appeal Judgment, [288]). That is a circumstance that informs the exercise of the discretion; but, in my view, it is not one that demands rejection of what the parties now seek. Each of the declaratory orders that was granted (and that should now be set aside) "…was not a conclusive declaration as to the respective rights and liabilities of the parties but [was] more akin to a finding of fact": Singh v Khan [2021] NSWCA 281, [27] (Brereton J), citing Jess v Jess (2021) 361 FLR 126 (Alstergren CJ, Strickland and Kent JJ). Any public deterrent that they were intended to realise is likely to have been limited, if there was any at all. Thus, accepting that that relief might not have been solely inter partes, it very much appears to have been predominantly so. Its nature affords some - but not an especially compelling - basis to refuse the relief now sought. 41 Against that, there is obvious sense in proceeding as the parties invite. Doing so will put an end to their lengthy disputes, and will do so efficiently and with as limited cost as possible. It will avoid the need for further hearing that was to be a necessary consequence of the majority's reasoning in the Primary Appeal Judgment and it will afford the parties a measure of finality consistent with what they themselves have now agreed. 42 On balance, I consider that it is appropriate to exercise the court's discretion under s 25(2B)(b) and grant relief in the nature of what the parties propose. 43 For the avoidance of doubt, I am minded to note that doing so will not, of itself, serve to erase from history the findings of the primary judge or this court on appeal. Those findings - including as to the employee respondents' entitlement to annual leave loading - are matters of record and are not set at nought merely because the parties have reached agreement about the orders that were made (or that, in the case of this court, would otherwise have been made) in consequence of them. 44 Likewise, there could be no implicit criticism of the primary judge inherent in a decision to set aside his Honour's orders merely on the basis of the parties' consent. At the risk of labouring the point, this court has already ruled upon the correctness of his Honour's judgment. Proceeding in the way that is now proposed reflects no more than the considerations - mostly practical considerations - to which I have referred above. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Snaden.

Wardman v Macquarie Bank Limited

At a glance

Court

Decision date

Before

Source

Judgment (26 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (28)