Warramunda Village Inc v Pryde

3 It is declared that each such breach of the 1993 Award and the 1995 Award was part of a single course of conduct. 4 The application be otherwise adjourned to a directions hearing at 10.15 am on 16 October 2000." 6 By its notice of appeal, the appellant purported to appeal from this judgment. The purported appeal was listed for hearing on 8 February 2001. On the preceding day, the Court notified the solicitors for the parties that an issue might arise as to whether an appeal lay as of right, or whether it was necessary for the appellant to have sought leave to appeal, pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth) on the basis that the judgment of 15 September 2000 is an interlocutory judgment. Accordingly, on 8 February 2001, Mr O'Grady of counsel for the appellant sought to argue that the judgment of 15 September 2000 was not an interlocutory judgment, so that leave to appeal was unnecessary. Alternatively, counsel for the appellant sought an enlargement of the time fixed by O 52 r 10(2)(b) of the Federal Court Rules within which a notice of motion seeking leave to appeal must be filed and served, and a dispensation, pursuant to the general dispensing power in O 1 r 8, from the requirement to file and serve a notice of motion and accompanying affidavit. Mr Borenstein of counsel, who appeared with Ms Bornstein of counsel for the respondents, supported the argument of counsel for the appellant. 7 Section 178(1) of the WR Act relevantly provides that, where a person bound by an award breaches a term of the award, a penalty may be imposed by the Court. Section 178(2) provides that where two or more breaches of a term of an award are committed by the same person and the breaches arose out of a course of conduct by the person, the breaches shall, for the purposes of the section, be taken to constitute a single breach of the term. Section 178(4) makes provision for maximum penalties. Section 178(6) provides that where, in a proceeding against an employer under the section, it appears to the court concerned that an employee of the employer has not been paid an amount that the employer was required to pay under an award, the court may order the employer to pay to the employee the amount of the underpayment. The term "award" is defined in s 4(1) of the WR Act by reference to s 143(1). In substance, a decision or determination expressed to be an award, signed by at least one member of the Australian Industrial Relations Commission and showing the day on which it is signed, is an award. Section 4(1) also defines "breach" as including non-observance. The parties accept that the remedies provided by s 178(1) and s 178(6) are in each case discretionary remedies. 8 Section 178 of the WR Act contains no specific provision empowering the Court to make a declaration of any kind. Nor is there to be found in the WR Act any provision empowering the Court to grant a declaration in a proceeding under s 178. The source of the power to grant a declaration must therefore be s 21 of the Federal Court of Australia Act 1976 (Cth), which empowers the Court, in relation to a matter in which it has original jurisdiction, to make "binding declarations of right", whether or not any consequential relief is or could be claimed. The remedy of a declaration of right is ordinarily granted as final relief in a proceeding. It is intended to state the rights of the parties with respect to a particular matter with precision, and in a binding way. The remedy of a declaration is not an appropriate way of recording in a summary form, conclusions reached by the Court in reasons for judgment. This is even more strongly the case when the conclusion is not one from which any right or liability necessarily flows. 9 Order 29 r 2 of the Federal Court Rules empowers the Court to make orders for the decision of any question separately from any other question, whether before, at or after any trial or further trial in a proceeding. If the Court adopts that course, it will ordinarily make an order upon the determination of a question. The order will set forth the question and the answer given to it. Leave to appeal may be sought in respect of such an order if the order is of an interlocutory nature. See Arrowcrest Group Pty Ltd v Gill (1993) 46 FCR 90. Of course, the Court is not bound to follow the procedure under O 29 r 2. Pursuant to its implied incidental power to control its processes and proceedings, the Court may choose to proceed by delivering reasons for judgment expressing findings of fact and conclusions of law in respect of some issues that arise in a proceeding. The proceeding may then be further conducted on the basis of those findings and conclusions. See Landsal Pty Ltd (In liq) v REI Building Society (1993) 41 FCR 421. If that course is taken, however, there will be nothing in respect of which leave to appeal can be granted, or from which an appeal can be brought. No appeal lies from findings or conclusions of law expressed in reasons for judgment. See

Driclad Pty Ltd v Federal Commissioner of Taxation (1968) 121 CLR 45 at 64 per Barwick CJ and Kitto J. 10 In the present case, the trial judge did not proceed by making an order for the decision of any question separately from any other question, pursuant to O 29 r 2. The parties did not invite his Honour to take that course and he did not take it of his own motion. Instead, he chose to attempt to express his conclusions about certain issues in the form of the declarations that appear in his order of 15 September 2000. We do not think that this was an appropriate use of the power to make binding declarations of right. The declarations do no more than set out in summary form conclusions that his Honour had reached in his reasons for judgment. They do not purport to declare the rights of the parties in any respect. Nor do they purport to declare the meaning of any term of an award upon the proper construction of that term. 11 The jurisdiction exercised by the Court pursuant to s 178(1) of the WR Act is jurisdiction to impose a penalty for a breach of a term of an award. As a step towards the exercise of the jurisdiction, it is obviously necessary to determine whether any breach of any term of an award has occurred. It may be necessary to determine the proper construction of the term of the award. It will almost certainly be necessary to make findings of fact. In a case such as the present, those findings must include findings as to the circumstances in which particular persons performed work for their employer on particular days and the amount or amounts they were paid in respect of that performance of work. It can then be determined, by reference to specific terms of the award concerned whether the person concerned should have been paid some other amount, by way of overtime rate, or specific rate fixed for a Saturday, Sunday or public holiday, pursuant to a particular term of an award. The amended statement of claim did not seek to deal with the application in this way. It attempted to plead the alleged under-payments in a global sense, referring only to numbers of days worked that were Saturdays, Sundays or public holidays, and not specifying any particular breach in respect of any particular day. The trial judge dealt with the matter on the basis that the point of substance he had to determine was whether sleepover shifts attracted various provisions of the relevant awards or were to be dealt with entirely separately from those awards. All his Honour did was to decide that the awards applied to sleepover shifts. 12 In no sense, therefore, did the declarations made by the trial judge declare the rights of the parties. They did not attempt to declare the proper construction of any term of an award. They did not declare that, on any specified day, any breach of any term of an award had occurred. Rather, the first two declarations reflect the view that his Honour had expressed in his reasons for judgment that, in general terms, each award was applicable to a sleepover shift. Each of the first two declarations is in terms of a single "breach or non-observance" of an award, perhaps because his Honour regarded himself as having applied s 178(2) of the WR Act to what he assumed, without finding, to be multiple breaches of various terms of that award. His Honour then made a third declaration, to the effect that the breaches of the separate awards were part of a single course of conduct. It should be noted that s 178(2) provides that, where two or more breaches of a term of an award arose out of a course of conduct by a person, those breaches are to be taken to constitute a single breach of the term. There appears to be no warrant for the application of the subsection to breaches of more than one term of an award arising out of a course of conduct, or to breaches of the terms of more than one award so arising. These issues serve to underline the difficulty of the course undertaken by his Honour of attempting to deal with part of the case by granting declarations which were not specific as to the date of any breach, the term of any particular award of which the breach had been committed, or the nature of the breach. 13 We are therefore of the view that the declarations made by his Honour are not binding declarations of right, within the meaning of s 21 of the Federal Court of Australia Act 1976 (Cth). They are no more than summary expressions of conclusions that his Honour had reached in his reasons for judgment. As such, any attempt to appeal from the declarations can have no more validity than an attempt to appeal from conclusions reached in reasons for judgment. The only other order made by his Honour was an order adjourning the application to a directions hearing. Again, this does not provide a foundation for an appeal. There is nothing inherently objectionable about an order adjourning a proceeding to a directions hearing. The basis of such an order could only be impugned by invoking the reasons for judgment published by the trial judge, and attempting to argue that his Honour should have dismissed the application, instead of adjourning it to a directions hearing. This would amount to an appeal from the reasons for judgment, and not from any judgment itself. 14 For these reasons, we are of the view that no appeal can be sustained from the order made by the trial judge on 15 September 2000. It is unnecessary for us to deal with the argument as to whether that order was interlocutory, because the order was not one from which an appeal lay. It would be pointless to discuss the issue whether the Court should have entertained an application for leave to appeal, extending the time for such an application and dispensing with the requirements of the rules to enable it to be heard, because there is nothing with respect to which leave to appeal could be sought. The proper course is for us to set aside the purported notice of appeal filed on 6 October 2000. Because the original application remains pending before the trial judge, there is no need for any order remitting anything to his Honour. 15 We have reached this conclusion with considerable regret. We are conscious that the representatives of both parties were before the Court on 8 February 2001, prepared to argue the question whether a sleepover shift was or was not governed by the provisions of the two awards. To undertake the task of resolving this question, in the circumstances, would have amounted to giving an advisory opinion in the course of a proceeding. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Counsel for the Respondent: Mr H Borenstein and Ms J Bornstein

Solicitor for the Respondent: Maurice Blackburn Cashman