Construction, Forestry, Mining and Energy Union v Clarke

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judgment Date: 09 February 2007
• Neutral Citation: [2007] FCAFC 8

FEDERAL COURT OF AUSTRALIA

Construction, Forestry, Mining and Energy Union v Clarke [2007] FCAFC 8

PROCEDURE – whether determination by single judge of an appeal from the Industrial Magistrate’s Court precludes an appeal to Full Court – Federal Court of Australia Act 1976 (Cth) ss 24(1), 25(2), 25(5)

Federal Court of Australia Act 1976 (Cth), ss 24(1), 25(2), 25(5)

Federal Court Rules, O 52 r 18(1)

Ah Toy v Registrar of Companies (1985) 10 FCR 280

Clarke v Powell (2005) 85 WAIG 1508

Hall v Anderson (unreported, Spender, Finn & North JJ, 18/07/97)

Hamod v New South Wales (2002) 188 ALR 659

Kristoffersen v Department of Employment, Workplace Relations & Small Business [2002] FCAFC 269

Nguyen v Nguyen (1990) 169 CLR 245

Papps v Medical Board of South Australia [2006] SASC 234

Queensland v The Commonwealth (1977) 139 CLR 585

Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) (2001) 207 CLR 72

SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 150 FCR 214

Thomas Borthwick & Sons (Pacific Holdings) Ltd v Trade Practices Commission (1988) 18 FCR 424

Transurban City Link Ltd v Allan (1999) 95 FCR 553

Wati v Minister for Immigration & Multicultural Affairs (1997) 78 FCR 543

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION, MICHAEL POWELL AND WALTER VINICIO MOLINA v MARCUS THOMAS CLARKE

WAD 88 OF 2006

RYAN, TAMBERLIN AND MIDDLETON JJ

9 FEBRUARY 2007

melbourne (heard in PERTH)

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD 88 OF 2006

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION First Appellant MICHAEL POWELL Second Appellant WALTER VINICIO MOLINA Third Appellant
AND:	MARCUS THOMAS CLARKE Respondent

JUDGES:	RYAN, TAMBERLIN AND MIDDLETON JJ
DATE OF ORDER:	9 FEBRUAry 2007
WHERE MADE:	MELBOURNE (heard in perth)

THE COURT ORDERS THAT:

1. The respondent’s motion seeking orders pursuant to O 52 r 18(1) of the Federal Court Rules be dismissed.

2. The respondent pay the appellants’ costs of and incidental to the motion.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD 88 OF 2006

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION First Appellant MICHAEL POWELL Second Appellant WALTER VINICIO MOLINA Third Appellant
AND:	MARCUS THOMAS CLARKE Respondent

JUDGES:	RYAN, TAMBERLIN AND MIDDLETON JJ
DATE:	9 february 2007
PLACE:	MELBOURNE (HEARD IN PERTH)

REASONS FOR JUDGMENT

RYAN J:

1 I have had the benefit of reading in draft the reasons for judgment prepared by Middleton J and the orders which he has proposed. I agree, for the reasons explained by his Honour, that those orders are appropriate.

I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.

Associate:

Dated: 9 February 2007

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD 88 OF 2006

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION First Applicant MICHAEL POWELL Second Applicant WALTER VINICIO MOLINA Third Applicant
AND:	MARCUS THOMAS CLARKE Respondent

JUDGES:	RYAN, TAMBERLIN AND MIDDLETON JJ
DATE:	9 february 2007
PLACE:	melbourne (heard in perth)

REASONS FOR JUDGMENT

TAMBERLIN J:

2 I agree with the reasons and the orders proposed by Middleton J.

3 In my opinion, the language of s 24 of the Federal Court Act 1976 (Cth) is clear and confers jurisdiction on the Court in express terms to hear an appeal from a judgment of the Court constituted by a single judge. In the present case, the Court was constituted by a single judge and his Honour was exercising appellate jurisdiction pursuant to s 25(5) of the Act. Prima facie, the Full Court therefore has jurisdiction in this case. There is no express prohibition in the Act preventing an appeal from a judgment of the Court constituted by a single judge exercising appellate jurisdiction. In Roy Morgan Research Centre Pty Limited v Commissioner of State Revenue (Vic) (2001) 207 CLR 72 at [11], the Court noted that a provision which confers jurisdiction upon a court ought not to be given a narrow interpretation but must be construed with all the amplitude that the ordinary meaning of its words admits: see Owners of Ship ‘Shin Kobe Maru’ v Empire Shipping Company Inc (1994) 181 CLR 404 at 421. There is no principled basis for the insertion in s 24 by way of implication of any prohibition or restriction on the appeal from a judgment of a single judge.

4 The express and specific provision in s 24(1AAA), which provides that an appeal may not be brought to the Federal Court from a judgment of the Court constituted by a single judge exercising appellate jurisdiction in relation to an appeal from the Federal Magistrates Court, in my view, reinforces the interpretation advanced for the appellant.

5 It is important to note that s 24 is the provision of the Act which confers jurisdiction to hear and determine an appeal. Section 25, on the other hand, is concerned with the constitution of the Court. Where the Court is constituted by a single judge, one turns to s 24 to see whether, and on what conditions, an appeal lies. If the judgment is an interlocutory judgment, for example, leave to appeal must be obtained under s 24. I agree that the authorities concerning interlocutory applications do not require a conclusion that similar restrictions apply in relation to final decisions of a single judge exercising appellate jurisdiction.

6 I note that in Thomas Borthwick & Sons (Pacific Holdings) Ltd v Trade Practices Commission (1988) 18 FCR 424 at 431, the Court adverted to the perceived need to limit what is referred to as “a string of appeals from interlocutory judgments of a single judge given in the course of a trial.” The Court considered that such appeals delay and interfere with the proper conduct of a trial and hamper the proper administration of justice. Their Honours noted that in light of the particular mischief to be addressed, the purpose of the amendment requiring leave was clear. Their Honours noted that the amendments under consideration were intended to have the result that appeals from interlocutory judgments could be brought to the Court only by leave, and that a party might apply for leave before a single judge or the Full Court once and only once. In my view, that case was decided on the basis of the particular limited problem which the Court faced, namely, the prolixity created by repeated applications for leave to appeal in interlocutory matters. That mischief is not an issue of significance in the present circumstances.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

Associate:

Dated: 9 February 2007

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD 88 OF 2006

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION First Appellant MICHAEL POWELL Second Appellant WALTER VINICIO MOLINA Third Appellant
AND:	MARCUS THOMAS CLARKE Respondent

JUDGES:	RYAN, TAMBERLIN AND MIDDLETON JJ
DATE:	9 february 2007
PLACE:	melbourne (heard in PERTH)

REASONS FOR JUDGMENT

MIDDLETON J: Procedural Background

7 On 8 September 2004, a complaint was made by the respondent before the Industrial Magistrate’s Court of Western Australia which alleged that the Construction, Forestry, Mining and Energy Union (‘CFMEU’), and two of its organisers, Michael Powell (‘Powell’) and Walter Vinicio Molina (‘Molina’), had engaged in industrial action before the nominal expiry date of a certified agreement contrary to s 170MN(1) of the Workplace Relations Act 1996 (Cth) (‘WR Act’), and breached a term of a certified agreement, namely the dispute resolution procedures, contrary to s 178(1) of the WR Act. On 28 April 2005, the Industrial Magistrate’s Court delivered judgment: see Clarke v Powell, Molina & CFMEU (2005) 85 WAIG 1508. The application was successful against each of CFMEU, Powell and Molina, and monetary penalties were ordered to be imposed under s 170NF and s 178(4) of the WR Act.

8 On 18 May 2005, CFMEU, Powell and Molina (the appellants in this proceeding) appealed to this Court from the judgment of the Industrial Magistrate’s Court. The appeal invoked the jurisdiction conferred by s 422(1) of the WR Act, which then provided:

An appeal lies to the Court from a judgment of a court of a State or Territory in a matter arising under this Act.

For the purposes of s 442(1), ‘Court’ is defined as the Federal Court of Australia.

9 The appeal was listed before Nicholson J for the purpose of making a recommendation to the Chief Justice as to whether the appeal should be heard by a single judge or a Full Court in accordance with s 25(5) of the Federal Court of Australia Act 1976 (Cth) (‘Federal Court Act’). Before a direction under that sub-section was made, a...