Wu v DSMJ Pty Ltd

1. Prayer 2 of the Interlocutory Application filed on 19 May 2024 be dismissed.
2. Costs of today be reserved. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

KENNETT J: 1 The appellant in this matter appeals from a judgment of the Federal Circuit and Family Court of Australia, Division 2 (the Circuit Court) dated 21 November 2023, in which that Court dismissed a claim for relief under the Fair Work Act 2009 (Cth) (the FW Act). The appellant filed an interlocutory application on 19 May 2024 seeking several orders, most of which were in substance final orders and not appropriate for an interlocutory application. At a hearing before a registrar on 31 May 2024 it was agreed that one aspect of the interlocutory application would be pressed at this stage. This was prayer 2 by which the appellant sought an order that the appeal be heard by a Full Court. 2 The appellant (who is unrepresented) and counsel for the first, third, fourth and fifth respondents made brief oral submissions on this issue before me this morning. 3 Section 25(1AA) of the Federal Court of Australia Act 1976 (Cth) provides that the appellate jurisdiction in an appeal from the Circuit Court is to be exercised by a single judge or, if a judge considers it appropriate, to be exercised by a Full Court. It is apparent from the terms of the section that the intention behind it is that appeals from the Circuit Court will be heard by a single judge unless there is some persuasive reason why it is more appropriate for the case to go to a Full Court. So much has been recognised by judgments of the Court (see, eg, Dahler v Australian Capital Territory [2015] FCA 1303 at [3]-[4] (Perry J)). 4 This recognises the additional public resources that are involved in having a case heard by three judges, and the more complicated logistics, and usually accompanying delay, involved in convening a Full Court to hear an appeal. 5 There are no fixed limits or express criteria for the exercise of the discretion. Usually, where the discretion to refer a matter to a Full Court is exercised, it is exercised because the appeal raises novel issues of law or issues of general importance which it is considered ought to be settled by a Full Court; or where the appeal raises questions as to the correctness of existing authority. 6 In the present case the appellant submits that the matter ought to be referred to a Full Court for four broad reasons. One of these reasons was a concern as to whether the judge allocated to hear the matter has specific expertise in workplace relations law. I put this to one side as it is not relevant to the issue whether the case is one that warrants reference to a Full Court. That is a question that depends on the nature of the case. 7 The appellant submitted that a conflict might arise if the case is heard by a single judge, because part of what he alleges in the appeal is a denial of procedural fairness by the judge who constituted the Circuit Court to hear his application. Any application in which a single judge was asked to make adverse findings concerning the conduct of a trial by a colleague (that is, a member of the same court) would have the potential for embarrassment, and one can well imagine that such a case might be referred to a Full Court. Hence, for example, s 44(3) of the Administrative Appeals Tribunal Act 1975 (Cth) provides for an appeal from the Administrative Appeals Tribunal to be heard by a Full Court if the Tribunal was constituted by or included a judge. However, no such situation arises here. A judge of this Court has no need to feel any hesitation in dealing, on their merits, with submissions that procedural fairness has not been afforded by a lower court or by a tribunal. 8 Next, the appellant submitted that his appeal involves the application of s 62(3) of the FW Act, as to which he contends that there is no binding authority. Section 62(3) comprises a list of factors which a court is to take into account in deciding whether additional hours are "reasonable" for the purposes of s 62(1) and (2). The appellant refers in this connexion to SZOXP v Minister for Immigration and Border Protection [2015] FCA 183 at [2] (McKerracher J). Despite what is said there, I do not accept that there is any general principle that an absence of precedent in and of itself is a justification for referring a matter to a Full Court. Absence of binding precedent means that there is no impediment to a single judge deciding the point on the arguments presented. It is to be distinguished from a situation where there are precedents and a party seeks to submit that those cases are wrongly decided. 9 In addition, I have considerable doubt as to whether a decision of the Full Court will assist with the interpretation and application of s 62(3) in future cases significantly more than a decision by a single judge. The provision, as I have noted, is no more than a list of factors to consider. As to the broader question of whether additional hours are or are not reasonable under s 62, if that issue does need to be determined in this appeal, it is an issue that is necessarily heavily fact dependent. That is because it involves a judgment about reasonableness which must take into account all the circumstances. The usefulness of decided cases on such a question such as this is limited, because each case involves in effect a judgment on the individual circumstances. If the issue falls to be decided in this case, then it will become one individual case with which other individual cases might be compared. There is no particular reason why a judgment of the Full Court on a question such as that is significantly more useful than a judgment of a single judge. This is the case despite the appellant's foreshadowed argument that the Universal Declaration of Human Rights is relevant to the issue of statutory construction of s 62. 10 Finally, the appellant submitted that it is appropriate for an appeal to be referred to a Full Court where the outcome will affect a large number of people. SZTVU v Minister for Home Affairs [2018] FCA 1394 at [36] (Perry J) (SZTVU) was cited for this proposition. In SZTVU the capacity of the case to affect a large number of persons was an agreed position between the parties. The case had direct implications for a cohort of persons in relation to whom decisions had been made on the basis of a particular statutory instrument. Here, while it may be accepted that the rights of large numbers of workers and their employers are affected by s 62 of the FW Act, it does not follow that this particular case has special significance for a large body of employees. It is, as I have noted, no more than an individual instance in which a judgment may need to be made about the reasonableness or otherwise of additional hours of work. 11 I am therefore not persuaded that the present case is one in which a departure from the normal rule is justified. 12 The orders of the Court will be that prayer 2 of the Interlocutory Application filed on 19 May 2024 is dismissed, and the costs of today will be reserved. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Kennett.