Revill v John Holland Group Pty Ltd

• Jurisdiction: Australia Federal only
• Judgment Date: 26 May 2021
• Neutral Citation: [2021] FCA 558
• Court: Federal Court
• Date: 26 May 2021

Federal Court of Australia

Revill v John Holland Group Pty Ltd [2021] FCA 558

Appeal from:	Application for Leave to Appeal: Revill v John Holland Group Pty Ltd [2020] FCA 1633
File number:	WAD 265 of 2020
Judgment of:	MCKERRACHER J
Date of judgment:	26 May 2021
Catchwords:	COURTS AND JUDICIAL SYSTEM – application for leave to appeal – where leave to appeal is sought from a decision not to join parties – whether the application is competent – effect of s 24(1AA)(b)(i) and s 37M of the Federal Court of Australia Act 1976 (Cth)
Legislation:	Federal Court of Australia Act 1976 (Cth) ss 20(3)(c), 24(1)(a), 24(1A), 24(1AA)(a), 24(1AA)(b)(i), 24(1E), 37M, 37M(2), 37M(3), 37M(4), 37N Federal Court Rules 2011 (Cth) r 9.05
Cases cited:	Dye v Commonwealth Securities Limited (No 2) [2010] FCA 817 Irwin v Irwin [2016] FCA 1565 Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 956 Tran v Singh [2019] FCA 70 Wilson v South Australia [2017] FCA 219; (2017) 250 FCR 241
Division:	General Division
Registry:	Western Australia
National Practice Area:	Commercial and Corporations
Sub-area:	Commercial Contracts, Banking, Finance and Insurance
Number of paragraphs:	20
Date of hearing:	28 April 2021
Counsel for the Applicant:	Mr D Mezger
Solicitor for the Applicant:	Chapmans Barristers & Solicitors
Counsel for the Respondent:	Mr M Follett
Solicitor for the Respondent:	Kelly Hazell Quill Lawyers

ORDERS

		WAD 265 of 2020
BETWEEN:	RAYMOND ANDREW REVILL Applicant
AND:	JOHN HOLLAND GROUP PTY LTD Respondent

order made by:	MCKERRACHER J
DATE OF ORDER:	26 MAY 2021

THE COURT ORDERS THAT:

1. The application for leave to appeal be dismissed as incompetent with costs.

2. Pursuant to ss 17(2), 23 and 37P of the Federal Court of Australia Act 1976 (Cth), and rr 1.32 and 1.36 of the Federal Court Rules 2011 (Cth), these orders and reasons for judgment in support of these orders are made and published from chambers.

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

REASONS FOR JUDGMENT

MCKERRACHER J:

1. The applicant seeks leave to appeal from a decision of a judge of this Court to refuse to join two parties as respondents to the proceeding: Revill v John Holland Group Pty Ltd [2020] FCA 1633 (Revill (No 1)). Although both parties accept that the decision is interlocutory, the applicant contends that I am empowered to grant leave to appeal pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth). The respondent contends however that there is no discretion to grant leave to appeal in this case by reason of the operation of s 24(1AA)(b)(i) of the Act and the fact that the decision in question is a decision not to join parties. The respondent has filed a notice of objection to the competency of the application on this ground.

2. It is not contentious that the primary judge’s decision in Revill (No 1) concerned, amongst other things, his Honour’s consideration and dismissal of an interlocutory application to join parties brought by the applicant pursuant to r 9.05 of the Federal Court Rules 2011 (Cth).

SECTION 24 OF THE ACT

3. Section 24 of the Act defines the scope of the appellate jurisdiction of this Court. In general, a right to appeal lies from a decision of the Court constituted by a single judge exercising the original jurisdiction of the Court: s 24(1)(a). That right, and the Court’s jurisdiction in this regard, is subject to the exceptions and leave requirements imposed by the rest of the section. Relevantly here, s 24(1AA)(b)(i) provides:

…

[a]n appeal must not be brought from a judgment referred to in paragraph (1)(a) … if the judgment is:

…

(b) a decision to do, or not to do, any of the following:

(i) join or remove a party;

…

4. The applicant relies on s 24(1A) which provides:

[a]n appeal shall not be brought from a judgment referred to in subsection (1) that is an interlocutory judgment unless the Court or a Judge gives leave to appeal.

5. Section 24(1E) is also relevant and provides:

The fact that there has been, or can be, no appeal from an interlocutory judgment of the Court in a proceeding does not prevent:

(a) a party from founding an appeal from a final judgment in the proceeding on the interlocutory judgment; or

(b) the Court from taking account of the interlocutory judgment in determining an appeal from a final judgment in the proceeding.

THE APPLICANT’S ARGUMENTS

6. The applicant’s argument in support of the application for leave to appeal can be summarised as follows:

1. section 24(1A) of the Act is a civil practice and procedure provision for the purposes of s 37M(3) and s 37M(4) of the Act;

2. the fundamental overarching purpose of civil practice and procedure provision is defined in s 37M(2) of the Act and must be interpreted and applied, and any power conferred or duty imposed must be exercised or carried out, in the way that best promotes the overarching purpose in s 37M(3) of the Act;

3. in this case by reason of s 24(1AA)(b)(i) of the Act an appeal may not be brought from a decision to ‘join or remove a party.’ In the circumstances of this case, this means a substantial injustice will occur, when the matter can only be appealed in accordance with s 24(1E) of the Act;

4. if s 24(1A) of the Act is interpreted without regard to s 37M of the Act, the applicant would instead have to appeal following the orders finally determining the proceedings despite the error being founded on the dismissal of the applicant’s interlocutory application to join or remove a party. This would be in total contradiction of the overarching purpose of s 37M of the Act; and

5. only substantial injustice can flow to the applicant, quite simply because the proceedings would have to end in the final judgement being appealed as per s 24(1E) of the Act.

7. While the applicant does accept that s 24(1AA)(b)(i) on its face, operates to bar any right of appeal from a decision to join (or not join) a party or parties, he submits that its operation in this particular set of circumstances is contrary to both the overarching purpose (s 37M) and the purpose for which the section was enacted. Reference is made to the Explanatory Memorandum, Access to Justice (Civil Litigation Reforms) Amendment Bill 2009 particularly at [80]-[81]:

80. As a result of item 12, only judgments of a single Judge exercising original jurisdiction can be appealed to the Full Court. However, new subsection 24(1AA) provides that there is no appeal to the Full Court from a number of specified interlocutory decisions of a single Judge exercising original jurisdiction.

81. These interlocutory matters involve minor procedural decisions for which there should be no avenue of appeal. The removal of the right to appeal for these types of matters will ensure the efficient administration of justice by reducing delays caused by appeals from these decisions.

8. Far from being a ‘minor procedural decision’, the applicant says that the refusal of the joinder application in Revill (No 1) has prevented the applicant from advancing a significant aspect of his case. Further, if s 24(1AA)(b)(i) were to operate to bar an appeal at this interlocutory stage, this would occasion a substantial injustice; the applicant would be forced to proceed all the way to a final hearing and judgment only to then appeal that judgment on the grounds of error in the refusal of the joinder application: s 24(1E). The applicant submits that this course would lead to an extremely inefficient use of the judicial and...