Revill v John Holland Group Pty Ltd

• Jurisdiction: Australia Federal only
• Court: Full Federal Court (Australia)
• Judgment Date: 08 November 2022
• Neutral Citation: [2022] FCAFC 178
• Date: 08 November 2022

Federal Court of Australia

Revill v John Holland Group Pty Ltd [2022] FCAFC 178

Appeal from:	Application for Leave to Appeal:
File number:	WAD 214 of 2021
Judgment of:	BROMBERG, BANKS-SMITH AND FEUTRILL JJ
Date of judgment:	8 November 2022
Catchwords:	APPEAL – application for leave to appeal – new points on appeal – further evidence on appeal – interlocutory or final judgment – finality – re-open – costs under the Fair Work Act 2009 (Cth) – corporate group employer – enterprise agreement employer – leave refused
Legislation:	Access to Justice (Civil Litigation Reforms) Amendment Act 2009 (Cth) Corporations Act 2001 (Cth) ss 479(3), 556 Evidence Act 1995 (Cth) s 91(1) Fair Work Act 2009 (Cth) ss 50, 51(1), 52(1)(a), 52, 52(1), 53, 53(1), 54(1), 172(1), 172(2), 172(2)(b), 172(4), 172(5), 177(a), 182(3), 185, 186, 544, 550, 550(2), 561, 570, 570(2)(a) Federal Court of Australia Act 1976 (Cth) ss 24, 24(1AA), 24(1AA)(b)(i), 24(1A), 24(1C), 24(1D), 24(1D)(b), 24(1E), 27, 31A, 31A(2), 37M, 37N, 43(1), 43(3)(f) Federal Court Rules 2011 (Cth) rr 5.23(1)(b)(i), 9.05, 17.02, 35.13, 35.14, 35.32(a), 35.32(d), 36.01(1), 36.01(2), 36.57 Insurance Contracts Act 1984 (Cth) s 48 Limitation Act 2005 (WA)
Cases cited:	Australian Rail, Tram and Bus Industry Union v Railtrain Pty Ltd [2019] FCA 1740 Bailey v Marinoff [1971] HCA 49; (1971) 125 CLR 529 Blunden v Commonwealth of Australia [2000] FCA 1581 Burswood Catering and Entertainment Pty Ltd v Australian Liquor, Hospitality and Miscellaneous Workers Union, Western Australian Branch [2002] WASCA 354; (2002) 131 IR 424 CKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 124 Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) v Personnel Contracting Pty Ltd [2022] HCA 1; (2022) 398 ALR 404 Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1 Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655; (1991) 33 FCR 397 DJL v Central Authority [2000] HCA 17; (2000) CLR 226 Doherty v Murphy [1996] 2 VR 553 Eastman v The Queen [2008] FCAFC 62; (2008) 166 FCR 579 Fair Work Ombudsman v Ramsey Food Processing Pty Ltd [2011] FCA 1176; (2011) 198 FCR 174 Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22; (2002) 209 CLR 478 Gothard (recs and mgrs of AFG Pty Ltd (in liq) v Davey [2010] FCA 1163; (2010) 80 ACSR 56 House v The King [1936] HCA 40; (1936) 55 CLR 499 Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd [2008] FCAFC 60; (2008) 167 FCR 372 John Holland Group Pty Ltd v Federal Commissioner of Taxation [2015] FCAFC 82; (2015) 232 FCR 59 Kowalski v MMAL Staff Superannuation Fund Pty Ltd [2009] FCAFC 117; (2009) 178 FCR 401 Kuligowski v Metrobus [2004] HCA 34; (2004) 220 CLR 363 Luck v University of Southern Queensland [2009] FCAFC 73; (2009) 176 FCR 268 Metwally v University of Wollongong [1985] HCA 28; (1985) 60 ALR 68 Michael Wilson & Partners Ltd v Porter [2022] FCA 336 Mostert v Durban Roodepoort Deep Ltd [2004] WASCA 309 O’Brien v Komesaroff [1982] HCA 33; (1982) 150 CLR 310 Pantzer v Wenkart [2007] FCAFC 27 Perri v Coolangatta Investments Pty Ltd [1982] HCA 29; (1982) 149 CLR 537 Re Branded Media Holdings Pty Ltd (in liq) [2020] NSWSC 557 Re Plutus Payroll Australia Pty Ltd (in liq) [2019] NSWSC 1171; (2019) 139 ACSR 536 Revill v John Holland Group Pty Ltd [2021] FCA 558 Schlieske v Young; Schlieske v Robilliard (1987) 79 ALR 554 Sun v Minister for Immigration and Border Protection [2016] FCAFC 52; (2016) 243 FCR 220 Thomas Borthwick & Sons (Pacific Holdings) Ltd v Trade Practices Commission (1988) 18 FCR 424 Tropicus Orchids Flowers and Foliage Pty Ltd v Territory Insurance Office (1998) FLR 441 VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588 WorkPac Pty Ltd v Rossato [2021] HCA 23; (2021) 271 CLR 456 WorkPac Pty Ltd v Skene [2018] FCAFC 131; (2018) 264 FCR 536 Williams v Grant [2004] FCAFC 178 ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2; (2022) 398 ALR 603
Division:
Registry:
National Practice Area:
Number of paragraphs:	193
Date of hearing:	16 May 2022
Counsel for the Applicant:	Mr DJ Mezger
Solicitor for the Applicant:	Chapmans Barristers & Solicitors
Counsel for the Respondent:	Mr MJ Follett
Solicitor for the Respondent:	KHQ Lawyers

ORDERS

		WAD 214 of 2021
BETWEEN:	RAYMOND ANDREW REVILL Applicant
AND:	JOHN HOLLAND GROUP PTY LTD Respondent

order made by:	BROMBERG, BANKS-SMITH AND FEUTRILL JJ
DATE OF ORDER:	8 NOVEMBER 2022

THE COURT ORDERS THAT:

1. The following documents are received in the application for leave to appeal and are to form part of Part C of the appeal book and otherwise the applicant’s interlocutory application for the Court to receive further evidence in the application and in any appeal is dismissed.

   1. Letter to Mr Revill from JH Group dated 21 August 2013.

   2. Letter to JH Group from Mr Revill’s solicitors dated 21 November 2013.

   3. Letter to Mr Revill solicitors from JH Group dated 21 November 2013.

   4. Emails of 3 and 14 October 2014 between the Financial Ombudsman Service and a representative of Regis.

   5. Letters passing between Mr Revill’s solicitors and JH Group of 3 and 16 February 2016.

   6. Letters passing between Mr Revill’s solicitors and JH Group of 16 and 22 March 2018 and 4 April 2018.

2. The applicant is granted leave to amend his application to seek leave to appeal in terms of the amended draft written notice of appeal filed on 14 December 2021.

3. The application for leave to appeal is dismissed.

4. By 4.00pm on 15 November 2022, the respondent is to file and serve any submissions it wishes to make regarding the costs of the applications.

5. By 4.00pm on 22 November 2022, the applicant is to file and serve any submissions he wishes to make regarding the costs of the applications.

6. Otherwise, the costs of the applications are reserved.

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

REASONS FOR JUDGMENT

BROMBERG J:

1. I have had the benefit of reading in draft the reasons for judgment of Feutrill J. I agree that the orders proposed by his Honour should be made in the terms suggested. I also agree with Feutrill J that Mr Revill should be granted leave to amend his application for leave to appeal.

2. The reasons for judgment of Feutrill J have helpfully set out the facts, the judgments the subject of Mr Revill’s application for leave to appeal, the relevant principles applicable on such an application and other background matters. I gratefully adopt his Honour’s recitation of those matters.

3. This is a proceeding in which a misconception at the core...