ISG Management Pty Ltd v Mutch

• Jurisdiction: Australia Federal only
• Judgment Date: 30 November 2020
• Neutral Citation: [2020] FCAFC 213
• Court: Full Federal Court (Australia)
• Date: 30 November 2020

Federal Court of Australia

ISG Management Pty Ltd v Mutch [2020] FCAFC 213

Appeal from:	Application for leave to appeal from: Mutch v ISG Management Pty Ltd [2020] FCA 362
File number:	VID 222 of 2020
Judgment of:	WHITE, LEE AND SC DERRINGTON JJ
Date of judgment:	30 November 2020
Catchwords:	REPRESENTATIVE PROCEEDINGS – application for leave to appeal – industrial class action – claims that group members were employees of respondent – where primary judge dismissed application for orders under ss 33C and 33N of the Federal Court of Australia Act 1976 (Cth) that proceeding not validly commenced as a representative proceeding, or alternatively that it not continue as a representative proceeding – whether claims of group members did not give rise to substantial common issue of fact or law – whether claim that group members were employees must be determined on individual-by-individual basis and thus no common issue raised – where primary judge satisfied of two common questions – whether proceeding ought to have been declassed because most if not all common issues not capable of determination on common basis – whether representative proceeding would provide efficient and effective means of dealing with claims of group members – whether otherwise inappropriate that claims be pursued as representative proceeding – consideration of relevant principles – primary judgment not attended by doubt – no substantial injustice – application dismissed
Legislation:	Acts Interpretation Act 1901 (Cth) s 33 Fair Work Act 2009 (Cth) Federal Court of Australia Act 1976 (Cth) Pt IVA, ss 33C, 33H, 33N, 33ZB, 33ZF
Cases cited:	Bright v Femcare Ltd [2002] FCAFC 243; (2002) 195 ALR 574 Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 Davaria Pty Limited v 7-Eleven Stores Pty Ltd [2020] FCAFC 183 Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 Dillon v RBS Group (Australia) Pty Ltd [2017] FCA 896; (2017) FCR 150 Dyczynski v Gibson [2020] FCAFC 120; (2020) 381 ALR 1 House v The King (1936) 55 CLR 499 Merck Sharp & Dohme (Australia) Pty Ltd v Peterson [2009] FCAFC 26; (2009) 355 ALR 20 Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 Multiplex Funds Management Ltd v P Dawson Nominees Pty Ltd [2007] FCAFC 200; (2007) 164 FCR 275 Nationwide News Pty Ltd v Rush [2018] FCAFC 70
Division:	General Division
Registry:	Victoria
National Practice Area:	Employment and Industrial Relations
Number of paragraphs:	46
Date of hearing:	12 November 2020
Counsel for the Applicant:	Mr F Parry QC and Dr C Button QC with Mr D Snyder and Mr B Avallone
Solicitor for the Applicant:	Lander & Rogers
Counsel for the Respondent	Mr I Pike SC with Mr J Dooley
Solicitor for the Respondent:	Shine Lawyers

ORDERS

		VID 222 of 2020
BETWEEN:	ISG MANAGEMENT PTY LTD Applicant
AND:	MR ROBERT MUTCH Respondent

order made by:	WHITE, LEE AND SC DERRINGTON JJ
DATE OF ORDER:	30 November 2020

THE COURT ORDERS THAT:

1. The application for leave to appeal be dismissed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

A INTRODUCTION

1. The applicant (ISG) seeks leave to appeal against an order of the primary judge dismissing an interlocutory application by which ISG sought: (a) a declaration that a class action brought by the respondent, Mr Mutch, was not properly commenced under Pt IVA of the Federal Court of Australia Act 1976 (Cth) (Act) because it does not satisfy the requirements of s 33C of the Act (Invalidity Application); and alternatively (b) an order under s 33N of the Act that the proceeding not continue as a class action under Pt IVA (Declassing Application). The primary judge also dismissed a further alternative application for an order under s 33ZF of the Act that the proceeding only continue as an “opt-in” class action, but no challenge is maintained in relation to this last aspect of his Honour’s determination.

2. The relevant principles attending applications for leave to appeal are well settled and not in dispute. As was observed in Nationwide News Pty Ltd v Rush [2018] FCAFC 70 (at [2]–[6] per Lee J, Allsop CJ and Rares J agreeing):

The principles informing the determination of whether to grant leave to appeal from a decision of a single judge of this Court are not novel. The starting point is that in exercising the power to grant leave, regard must be had to the statutory charge in s 37M(3) of the [Act] that the power must be exercised or carried out in the way that best promotes the overarching purpose, being the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible.

Consistently with the facilitation of a just resolution, an applicant must usually show that: (a) in all the circumstances, the decision to be appealed is attended with sufficient doubt to warrant its reconsideration on appeal; and (b) supposing the decision to be wrong, substantial injustice would result if leave were refused: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399 (Sheppard, Burchett and Heerey JJ). The sufficiency of the doubt in respect of the decision to be appealed and the question of substantial injustice bear upon each other so that the degree of doubt which is sufficient in one case may be different from that required in another. It has also been said that the considerations are cumulative such that leave ought not be granted unless each limb is made out: Rawson Finances Pty Ltd v Deputy Commissioner of Taxation [2010] FCAFC 139; (2010) 81 ATR 36 at 38 [5] (Ryan, Stone and Jagot JJ); Melbourne City Investments Pty Ltd v Treasury Wine Estates Ltd [2017] FCAFC 98; (2017) 252 FCR 1 at 4 [3] (Jagot, Yates and Murphy JJ).

Additionally, consistent with the facilitation of a quick, inexpensive and efficient resolution is the principle which emerges from the oft-cited warning of Jordan CJ in In re the Will of F. B. Gilbert (Deceased) (1946) 46 SR (NSW) 318 at 323, that if a tight rein is not kept upon the interference with orders of judges at first instance in the exercise of discretion on a point of practice and procedure, the result will be “disastrous to the proper administration of justice”.

…

Even if it was reasonably arguable that the primary judge’s discretion miscarried, that would not, in and of itself, be a sufficient basis for the grant of leave.

(Emphasis in original)

3. It is appropriate to deal initially with the question as to whether the proposed grounds of appeal which seek to impugn the rejection by the primary judge of the Invalidity Application or the Declassing Application have any merit, and then, shortly deal with the issue of substantial injustice.

B THE INVALIDITY APPLICATION

4. The contention of ISG below was that the claims of all group members did not give rise to a substantial common issue of law or fact as required by s 33C(1)(c). The primary judge correctly noted (at [84]) that this threshold requirement requires identification of only one substantial common issue and that the determination of that issue need not resolve, to any significant degree, the claims of all group members. The question as to whether the class action was validly commenced is a binary assessment and does not call for the exercise of any discretion.

5. The key question in the proceeding is whether telecommunications...