FEDERAL COURT OF AUSTRALIA

BHP Coal Pty Ltd v Construction, Forestry, Mining and Energy Union [2014] FCAFC 138

THE COURT ORDERS THAT:

1.    the respondent pay the appellant’s costs of and incidental to the appeal and the application for leave to appeal.

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

REASONS FOR JUDGMENT

dowsett and FLICK JJ

AT FIRST INSTANCE

1    The respondent (“CFMEU”) sought declaratory and other relief arising out of certain conduct of the appellant (“BHP”), which conduct was allegedly contrary to ss 340 and 346 of the Fair Work Act 2009 (Cth) (the “Fair Work Act”). The learned primary Judge found that CFMEU had established a breach of s 346(b) of that Act. On 7 November 2012 his Honour made the following orders:

1.    The respondent reinstate Henk Doevendans to the position in which he was employed before the termination of that employment on 21 May 2012.

2.    The parties have leave to file further written submissions as to penalties, and as to any remedial or consequential orders which ought to be made in the light of the court’s reasons published this day, according to the following timetable:

(a)    the applicant, within 14 days;

(b)    the respondent, within a further 14 days;

(c)    the applicant in reply if necessary, within a further 7 days.

2    On 21 December 2012, his Honour made further orders as follows:

1.    Further to Order 1 made on 7 November 2012, the respondent treat Henk Doevendans’ service as unbroken for all purposes.

2.    The respondent pay a pecuniary penalty in the amount of $7,500 in respect of its contravention of s 346 of the Fair Work Act 2009 (Cth) identified in the reasons of the court published in this proceeding on 7 November 2012.

3.    The said penalty be paid to the applicant.

THE APPEAL

3    BHP appealed against his Honour’s orders. On 13 December 2013 this Court, by majority, upheld the appeal, ordering that:

    the appeal be allowed;

    the order made on 7 November 2012, reinstating Mr Henk Doevendans to the position he occupied prior to the termination of his employment on 21 May 2012, be set aside;

    the order made on 21 December 2012 that a payment of a pecuniary penalty in the amount of $7,500 in respect to a contravention of s 346 of the Fair Work Act 2009 (Cth) be set aside; and

    the parties exchange submissions as to costs and file such submissions on or before 31 January 2014.

COSTS

4    We are now concerned with the question of costs. Section 43 of the Federal Court of Australia Act 1976 (Cth) (the “FCA”) provides:

(1)    Subject to subsection (1A) and section 570 of the Fair Work Act 2009, the Court or a Judge has jurisdiction to award costs in all proceedings before the Court (including proceedings dismissed for want of jurisdiction) other than proceedings in respect of which this or any other Act provides that costs shall not be awarded.

…

(2)    Except as provided by any other Act, the award of costs is in the discretion of the Court or Judge.

5    Prior to 1 January 2013 s 570 of the Fair Work Act provided:

(1)    A party to proceedings (including an appeal) in a court (including a court of a State or Territory) exercising jurisdiction under this Act may be ordered by the court to pay costs incurred by another party to the proceedings only in accordance with subsection (2) or section 569 or 569A.

(2)    The party may be ordered to pay the costs only if:

(a)    the court is satisfied that the party instituted the proceedings vexatiously or without reasonable cause; or

(b)    the court is satisfied that the party’s unreasonable act or omission caused the other party to incur the costs; or

(c)    the court is satisfied of both of the following:

(i)    the party unreasonably refused to participate in a matter before FWA;

(ii)    the matter arose from the same facts as the proceedings.

6    In Construction, Forestry, Mining and Energy Union v CSBP Limited (No 2) (2012) 202 FCR 149, the Full Court held that as s 570(1) stood prior to 1 January 2013 (the “2012 section”) it did not limit the Court’s jurisdiction to award costs in appellate proceedings, notwithstanding the fact that the appeal was against a decision at first instance to which the 2012 section would apply. In so holding, the Full Court also held that proceedings by way of appeal were separate proceedings from the proceedings at first instance from which the appeal was brought. Pursuant to the Fair Work Amendment Act 2012 (Cth) (the “Amendment Act”), with effect from 1 January 2013, the words, “exercising jurisdiction under this Act”, were deleted and the words, “in relation to a matter arising under this Act”, were inserted. We shall refer to the amended section as the “2013 section”. It appears from the explanatory memorandum that this amendment was made with the express intention of overcoming the decision in CSBP. CFMEU submits that in any event, we should not follow that decision.

7    It is common ground between the parties that if the 2013 section applies to this appeal, there should be no order as to costs. However the appellant seeks its costs of and incidental to the appeal, including the costs of and incidental to the application for leave to appeal, on the basis that the appeal was commenced prior to the commencement of the Amendment Act, so that the 2012 section applies. Pursuant to item 1 of sch 10 to that Act the amendment to s 570 commenced on the date of its proclamation, 1 January 2013. Item 31 of sch 11 provides:

The amendment made by Part 1 of Schedule 10 to the [Amendment Act] (which is about costs orders in court proceedings) applies in relation to proceedings commenced after the commencement of that Part.

8    Thus the 2013 section will only apply for present purposes if the appeal was commenced on or after 1 January 2013. The application for an order for the costs of the application for leave to appeal may raise different questions. We do not understand BHP to seek its costs at first instance. Such costs are presumably caught by the 2012 section.

THE NOTICE OF APPEAL AND OTHER DOCUMENTS

9    On 9 November 2012, BHP filed and served a notice of appeal, purporting to appeal against, “the whole of the judgment of, and orders made by the Federal Court given on 7 November 2012.” On 19 November, BHP filed an interlocutory application seeking a stay of the re-instatement order. On 21 November, it filed an amended notice of appeal, again purporting to appeal against the judgment and orders made on 7 November 2012. On the following day, CFMEU filed a notice of objection to competency, apparently on the basis that the order made by the primary Judge was, at that time, interlocutory, and that BHP had not sought leave to appeal. On 23 November 2012 BHP filed an application for leave to appeal. On 30 November 2012 that application was heard by Logan J. His Honour ordered that:

    BHP be granted leave to appeal on the grounds set out in its amended draft notice of appeal;

    the application for stay of the Court’s decision of 7 November 2012 be dismissed; and

    costs be reserved.

10    His Honour did not order the filing of a further notice of appeal. On 19 December 2012, CFMEU filed a notice of contention. At a callover on 6 February 2013, BHP was granted leave to file a further amended notice of appeal. It was filed on 25 February 2013.

RIGHT OF APPEAL

11    Appeals are creatures of statute. The Court’s appellate jurisdiction is derived from s 24(1) of the FCA which relevantly provides:

Appellate jurisdiction

(1)    Subject to this section and to any other Act, whether passed before or after the commencement of this Act (including an Act by virtue of which any judgments referred to in this section are made final and conclusive or not subject to appeal), the Court has jurisdiction to hear and determine:

(a)    appeals from judgments of the Court constituted by a single Judge exercising the original jurisdiction of the Court;

…

12    However that jurisdiction is restricted by s 24(1A) which provides that:

An 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.

13    It is implicit in these provisions that a dissatisfied party has a right of appeal, subject to the limitation imposed by s 24(1A).

14    Pursuant to s 59 of the FCA:

(1)    The Judges of the Court or a majority of them may make Rules of Court, not inconsistent with this Act, making provision for or in relation to the practice and procedure to be followed in the Court (including the practice and procedure to be followed in Registries of the Court) and for or in relation to all matters and things incidental to any such practice or procedure, or necessary or convenient to be prescribed for the conduct of any business of the Court.

(2)    In particular, the Rules of Court may make provision for or in relation to:

    …

(r)    the time and manner of instituting appeals to the Court;

…

15    The current rules are the Federal Court Rules 2011 (the “Rules”). They replaced the Federal Court Rules 1979 (the “former rules”). Part 35 of the Rules deals with applications for leave to appeal. In certain circumstances such an application may be made orally. Otherwise it is to be made by filing an application. Part 36 deals with the commencement of appeals.

16    It relevantly provides:

36.01    Form of notice of appeal

(1)    A party who wants to appeal to the Court must file a notice of appeal … .

(2)    The notice of appeal must state:

(a)    whether the whole judgment or all of the orders, or only part of the judgment or some of the orders, are appealed from; and

(b)    if only part of the judgment, or some of the orders, is appealed from—the part of the judgment or the particular orders appealed from; and

(c)    briefly but specifically, the grounds relied on in support of the appeal; and

(d)    the judgment or orders the appellant wants instead of the judgment or orders appealed from.

(3)    If an appeal is brought by leave of the Court:

(a)    the notice of appeal must include a statement to that effect; and

(b)    a copy of the order giving leave must be attached to the notice of appeal.

(4)    The notice of appeal must include the appellant’s address for service.

36.02    Filing of notice of appeal

A notice of appeal must be filed:

(a)    if the appeal is from a single Judge of the Court—in the District Registry in the State or Territory where the proceeding was last heard before the judgment was pronounced or the order was made;

…

36.03    Time for filing and serving notice of appeal

An appellant must file a notice of appeal:

(a)    within 21 days after:

(i)    the date on which the judgment appealed from was pronounced or the order was made; or

(ii)    the date on which leave to appeal was granted; or

(b)    on or before a date fixed for that purpose by the court appealed from.

17    In Moore v Tooheys Ltd (1981) 56 FLR 345 at 348 the Full Court held that, under the former rules, the appeal was commenced by filing of the notice of appeal. We see no reason for concluding that the position under the Rules is otherwise. For present purposes, we nonetheless accept that generally, a notice of appeal, filed out of time, will not in the absence of an order extending time, commence an appeal. We also accept, for present purposes, that generally, where leave to appeal is required, the filing of a notice of appeal without leave will not commence an appeal. The present question is as to the date upon which appellate proceedings were commenced. For reasons which appear below we consider that neither proposition definitively resolves that question.

LEAVE TO APPEAL

18    As we have observed, Pt 35 deals with applications for leave to appeal. It is common ground that in this case, there was no right of appeal, other than by leave granted pursuant to Pt 35. Relevant rules are as follows:

35.01    Oral application for leave to appeal

A party may apply orally for leave to appeal from an interlocutory judgment or order of the Court:

(a)    at the time of the pronouncement of the judgment or the making of the order; and

(b)    to the Judge who pronounced the judgment or made the order.

35.11    Application of Division

A party may apply to the Court under this Division for leave to appeal if:

(a)    an Act gives the party a right of appeal to the Court subject to the party obtaining leave to appeal; and

(b)    the party has not made an oral application for leave to appeal from an interlocutory judgment or order of the Court.

…

35.13    Time for filing application

The application must be filed:

(a)    within 14 days after the date on which the judgment was pronounced or the order was made; or

(b)    on or before a date fixed for that purpose by the Court from which leave to appeal is sought.

35.14    Extension of time to seek leave to appeal

(1)    A person who wants to apply for an extension of time to seek leave to appeal must file an application, in accordance with Form 118.

…

OTHER RULES

19    The Rules must be read in light of rr 1.31 – 1.35 as follows:

1.31    Orders to have regard to nature and complexity of proceeding

(1)    The Court may in making any order in the proceeding have regard to the nature and complexity of the proceeding.

(2)    The Court may deal with the proceeding in a manner that is proportionate to the nature and complexity of that proceeding.

1.32    Court may make any order it considers appropriate in the interests of justice

The Court may make any order that the Court considers appropriate in the interests of justice.

Note:    See sections 23 and 28 of the Act.

1.33    Orders may be subject to conditions

The Court may make an order subject to any conditions the Court considers appropriate.

1.34    Dispensing with compliance with Rules

The Court may dispense with compliance with any of these Rules, either before or after the occasion for compliance arises.

1.35    Orders inconsistent with Rules

The Court may make an order that is inconsistent with these Rules and in that event the order will prevail.

20    The Rules should not be seen as the authority by which the Court acts. Rather, they are a guide to the parties and their legal advisers as to the way in which the Court will conduct proceedings. Hence they set out the Court’s expectations as to how the parties and their representatives will proceed. See Ratnam v Cumarasamy [1965] 1 WLR 8 at 12 where Lord Guest said:

The rules of court must prima facie be obeyed, and in order to justify a court in extending the time during which some step in procedure requires to be taken there must be some material upon which the court can exercise its discretion. If the law were otherwise, a party in breach would have an unqualified right to an extension of time which would defeat the purpose of the rules, which is to provide a time table for the conduct of litigation.

21    However, in Fernance v Nominal Defendant (1989) 17 NSWLR 710 at 729 Kirby P said:

The Rules of Court must never become the master of the court. They are servants for the better administration of justice.

Rules of Court, it has been said, “should never be allowed to be an instrument of tyranny”: Outboard Marine Australia Pty Ltd v Byrnes [1974] 1 NSWLR 27 at 30 per Reynolds, Hutley and Bowen JJA.

22    In Jackamarra v Krakouer (1989) 195 CLR 516 at 526 – 527, Gummow and Hayne JJ, after discussing the adverse consequences of delay in litigation, said:

It is with these considerations in mind that the rules of court prescribe times for the taking of certain steps in a proceeding. They are not prescribed for the purpose of implementing what Roscoe Pound referred to more than ninety years ago as the “sporting theory of justice” … . They are prescribed as aids to the attainment of justice. Just as case management is not an end in itself, but an aid to the prompt and efficient disposal of litigation … , so, too, the rules of court and the time limits which are prescribed there are not to be seen as ends in themselves. But they are aids to the attainment of justice and the times that they fix are prescribed as sufficient to take the step or steps identified while maintaining the general momentum of the litigation.

23    The Rules, and these observations concerning rules of court generally, must be considered in light of s 51 of the FCA which provides:

(1)    No proceedings in the Court are invalidated by a formal defect or an irregularity, unless the Court is of opinion that substantial injustice has been caused by the defect or irregularity and that the injustice cannot be remedied by an order of the Court.

(2)    The Court or a Judge may, on such conditions (if any) as the Court or Judge thinks fit, make an order declaring that the proceeding is not invalid by reason of a defect that it or he or she considers to be formal, or by reason of an irregularity.

We make two points concerning this section. First, the Judges’ exercise of their rule-making power and their application of those Rules must be consistent with s 51. Secondly, the effect of s 51(1) is that a defect or irregularity does not invalidate proceedings unless the Court considers that such defect or irregularity has caused irremediable injustice. The validating effect of s 51(1) is not dependent upon a declaration pursuant to s 51(2).

THE COURT’S JURISDICTION TO GRANT LEAVE TO APPEAL

24    In Thomas Borthwick & Sons (Pacific Holdings) Ltd v Trade Practices Commission (1988) 18 FCR 424 at 431 – 432, the Full Court held that determination of an application for leave to appeal was an exercise of the court’s appellate jurisdiction. Nonetheless CFMEU submits that in this case the application was, “part of the initial proceedings”, and not part of any appellate proceedings which may follow those proceedings. It relies on the decision of Jessup J in Apostolou as Trustee of the VA Unit Trust and Vasiliou Family Trust v VA Corporation of Aust Pty Ltd (No 4) [2012] FCA 1342 at [12] - [13]. In that case, his Honour concluded that an application for leave to appeal was to be treated as an application at first instance, and not as part of any separate appellate proceedings. However that case concerned the use of the word “proceeding” in an order where context may have been relevant to its meaning. Secondly, the decision seems to have been, in part, influenced by the former rules.

25    In any event, in CSBP the Full Court distinguished between proceedings at first instance and on appeal, on the basis that the former were in the original jurisdiction of the Court and the latter, in its appellate jurisdiction. Since an application for leave is heard in the Court’s appellate jurisdiction, as contemplated by s 24, it follows that such an application is either part of the subsequent appellate proceedings or discrete appellate proceedings, not forming part of either the proceedings at first instance, or the subsequent proceedings. In other words, the decision in CSBP applies to the application for the costs of the proceedings for leave to appeal, as well as to the costs of the subsequent appeal.

THE PARTIES’ SUBMISSIONS

26    CFMEU does not dispute that BHP, at some point, validly invoked its right of appeal. The question is when such invocation occurred. BHP submits that the appeal was commenced not later than 30 November 2012, the date of the grant of leave. CFMEU submits that the appeal was commenced by the filing of the further amended notice of appeal on 25 February 2013. That proposition must depend upon the following propositions:

    that there could be no appeal prior to the filing of a notice of appeal;

    that where an appeal is brought by leave, such filing must follow the grant of leave;

    that the leave granted by Logan J was leave to file a notice of appeal (as opposed to leave to appeal);

    that the failure to file a notice of appeal following the grant of leave was an irregularity which was not implicitly excused by the order of Logan J, having regard to rr 1.31 – 1.35; and

    that such failure was also not excused or otherwise validated by the operation of s 51 of the FCA.

No Notice of Appeal

27    Save for the requirement as to leave to appeal, s 24 of the FCA does not prescribe any step as being necessarily incidental to the commencement of an appeal. Although the Judges have prescribed that an appeal be commenced by filing a notice of appeal, an order permitting or validating a departure from that requirement would fall within the ambit of the orders contemplated by rr 1.31 – 1.35. Although it would rarely be convenient so to do, we consider that the Court could hear and determine an appeal, notwithstanding the absence of a notice of appeal. Such a notice serves two purposes. First, it is the process by which a party generally engages the Court’s appellate jurisdiction. Secondly, it gives notice to the respondent of the issues to be raised on appeal. However the latter requirement is really one of procedural fairness. It may be met in other, less formal ways. Courts have, for a very long time, granted relief, particularly injunctive relief, before the filing of any document formally commencing the relevant proceedings. See Carr v Morice (1873) LR 16 Eq 125; Thorneloe v Skoines (1873) LR 16 Eq 126; Chanoch v Hertz (1888) 4 TLR 331; and In re N (Infants) [1967] 1 Ch 512 at 527 – 528. Whilst the Court will generally only take this step where there is great urgency, the practice demonstrates that the Court’s jurisdiction may be invoked other than by filing an originating process as prescribed by the Rules. The case management powers conferred on a single Judge by s 25(2B)(ab), (bd) and (c) are sufficiently wide to allow a single Judge to deal with any irregularity in appellate proceedings and to give directions as to future steps in the conduct of the appeal.

28    Thus we do not accept CFMEU’s assumption that there can be no engagement of the appellate jurisdiction in the absence of a filed notice of appeal.

Must a notice of appeal be filed after a grant of leave to appeal?

29    Pursuant to r 36.01(3), where an appeal is brought by leave, the notice of appeal must say so, and the order granting leave must be attached. Rule 36.03 contemplates a notice of appeal being filed after the grant of leave. Whilst Pt 36 deals with notices of appeal, Pt 35, in various places, refers to “leave to appeal”, not “leave to file a notice of appeal”. In so doing, Pt 35 adopts the language of s 24(1A) of the FCA. It may be argued that the grant of leave merely gives the relevant party a right to appeal, without actually commencing an appeal. However, once it is accepted that the filing of a notice of appeal is not an essential step in engaging the appellate jurisdiction of the Court, it follows that the Court may proceed to hear and determine an appeal, even if there is no notice of appeal. In his Honour’s reasons for granting leave, Logan J made no reference to the notice of appeal which had been filed, or to the notice of objection to competency. Nonetheless the parties were obviously aware of them. A document described by his Honour as a draft notice of appeal was attached to his reasons. The order granted leave to appeal, “on the grounds set out in the amended draft notice of appeal”. This document was, as we understand it, in the same form as the amended notice of appeal filed on 21 November 2012. Given that there was already, on the file, a notice of appeal in the form in respect of which Logan J granted leave, it is difficult to see that any point was to be served by requiring that another, identical document be filed.

30    It would certainly have been within his Honour’s power to dispense with the filing of another amended notice of appeal, or to direct that the document already filed stand as the notice of appeal. He might have made the grant of leave conditional upon the filing of another notice of appeal but did not. CFMEU might have asked him to strike out the amended notice of appeal in expectation of a further notice being filed. It did not do so, notwithstanding its extant notice of objection to competency. In fact, as we have indicated, on 19 December 2012, 19 days after his Honour’s order, CFMEU filed a notice of contention and, on 6 February 2012, BHP was given leave to file a further amended notice of appeal. It was filed on 25 February 2013. It is difficult to avoid the conclusion that on and after the order of 30 November 2012, the parties (and probably, the Court) proceeded on the basis that there was an extant appeal. It seems likely that the parties were led to that conclusion by a shared belief that Logan J had, by his orders, regularized BHP’s attempt to appeal. As far as we can see, the parties proceeded on that basis until BHP applied for costs.

31    It may be possible to argue that the order made by Logan J was intended to operate nunc pro tunc, so that BHP was retrospectively given leave to file the amended notice of appeal. It may also be possible to argue that his Honour intended that his order dispense with compliance with the Rules to the extent of any irregularity. It may be argued that CFMEU waived any failure by BHP to comply with the Rules. However it is not necessary that we consider those various arguments as s 51 of the FCA provides a clear solution to the problem.

Section 51 of the FCA

32    The decision of the Court of Appeal reported as In re Pritchard (decd.) [1963] 1 Ch 502, seems to have led indirectly to the enactment of s 51. Prior to 1963, the Rules of the Supreme Court in England provided that:

Non-compliance with rules not to render proceedings void (O. 70 r 1)

1. Non-compliance with any of these Rules, or with any Rule of practice for the time being in force, shall not render any proceedings void unless the Court or a Judge shall so direct, but such proceedings may be set aside either wholly or in part as irregular, or amended, or otherwise dealt with in such manner and upon such terms as the Court or Judge shall think fit.

In Pritchard the Court of Appeal considered the validity of an originating summons wrongly presented and sealed in a District Registry of the High Court. The rules required that an originating summons be presented and sealed in the Central Office in London. By majority (Upjohn and Danckwerts LJJ, Denning MR dissenting), the Court held that the proceedings were a “nullity” because the relevant court officer lacked authority to seal the summons. Upjohn and Danckwerts LJJ considered (at 519) that, “some proceedings are such that they are properly described as a nullity, and [O 70 r 1] cannot apply to them.”. At 523 – 524, Upjohn LJ said:

I do not think that the earlier cases or the later dicta upon them prevent me from saying that, in my judgment, the law when properly understood is that Ord. 70 applies to all defects in procedure unless it can be said that the defect is fundamental to the proceedings. A fundamental defect will make it a nullity. The court should not readily treat a defect as fundamental and so a nullity, and should be anxious to bring the matter within the umbrella of Ord. 70 when justice can be done as a matter of discretion, still bearing in mind that many cases must be decided in favour of the party entitled to complain of the defect ex debito justitiae. Lord Denning in MacFoy pointed out … that a useful test was whether the defect could be waived. I agree with that as a good common-sense test, but I also agree with Mr. Rubin that it cannot be a completely legal test, for until you have decided whether the proceeding is a nullity, you cannot decide whether it is capable of waiver.

The authorities do establish one or two classes of nullity such as the following. There may be others though for my part I would be reluctant to see much extension of the classes. (i) Proceedings which ought to have been served but have never come to the notice of the defendant at all. This, of course, does not include cases of substituted service, or service by filing in default, or cases where service has properly been dispensed with: see, for example, Whitehead v. Whitehead … . (ii) Proceedings which have never started at all owing to some fundamental defect in issuing the proceedings. (iii) Proceedings which appear to be duly issued but fail to comply with a statutory requirement: see, for example, Finnegan v. Cementation Co. Ltd. … .

33    His Lordship then observed that in the case under consideration, the relevant officer had no power to issue the proceedings. Thus the proceedings had not been commenced by writ or in such other manner as was prescribed under the rules of court, as required by the relevant legislation.

34    In response to In re Pritchard, the rules were amended by adding O 2 r 1 as follows:

Non-compliance with rules (O. 2 r 1)

(1)    Where, in the beginning or purporting to begin any proceedings or at any stage in the course of or in connection with any proceedings, there has, by reason of any thing done or left undone, been a failure to comply with the requirements of these rules, whether in respect of time, place, manner, form or content or in any other respect, the failure shall be treated as an irregularity and shall not nullify the proceedings, any step taken in the proceedings, or any document, judgment or order therein.

(2)    Subject to paragraph (3) the Court may, on the ground that there has been such a failure as is mentioned in paragraph (1), and on such terms as to costs or otherwise as it thinks just, set aside either wholly or in part the proceedings in which the failure occurred, any step taken in those proceedings or any document, judgment or order therein or exercise its powers under these rules to allow such amendments (if any) to be made and to make such order (if any) dealing with the proceedings generally as it thinks fit.

(3)    The Court shall not wholly set aside any proceedings or the writ or other originating process by which they were begun on the ground that the proceedings were required by any of these rules to be begun by an originating process other than the one employed.

35    The effect of O 2 r 1(1) was to vary the rules so that any failure to comply with a requirement of the rules, including any requirement concerning the commencement of proceedings, would not avoid those proceedings. Pursuant to O 2 r 1(2) the Court might set aside those proceedings. However, pursuant to O 2 r 1(3), the Court would not do so where the irregularity was the initiation of proceedings by a process other than that prescribed in the rules.

36    As McMurdo J pointed out in Stone v ACE-IRM Insurance Broking Pty Ltd [2004] 1 Qd R 173 at 181, a similar rule was adopted in Queensland and is still to be found in the Uniform Civil Procedure Rules at r 371. For this Court, s 51 of the FCA has been adopted to deal with the problem created by the decision in Pritchard. Unlike the English and Queensland situations, s 51 provides statutory authority which is wide enough to deal with irregularities other than in respect of compliance with the Rules. In effect, it validates proceedings notwithstanding any formal defect or irregularity, unless such defect or irregularity creates an irremediable injustice. The Court has power to declare that proceedings are not invalid by virtue of a formal defence or irregularity, but the validating effect of s 51(1) is not dependent upon the making of such a declaration. Given that the Judges may effectively dispense with compliance with the Rules, failure to comply with them can only rarely be other than a formal defect or irregularity. In the present case, assuming that the Rules require that a notice of appeal be filed after the grant of leave, non-compliance could not be more than a formal defect or irregularity. In our view this appeal validly proceeded to hearing and determination by virtue of the operation of s 51(1). It follows that the appeal was commenced prior to 1 January 2013.

37    In any event it is difficult to see how any irregularity can ever lead to the conclusion that proceedings in a superior court of record are a nullity. In Re Macks; Ex parte Saint (2000) 204 CLR 158 at 177-178, Gleeson CJ endorsed the view of Rich J in Cameron v Cole (1943) 68 CLR 571 at 590 that:

It is settled by the highest authority that the decision of a superior court, even if in excess of jurisdiction, is at the worst voidable, and is valid unless and until it is set aside.

In Stone, McMurdo J (with whom McPherson JA and Holmes J agreed) said that:

It is then difficult to regard proceedings as a nullity in the sense that they are void whilst recognising that they can be the subject of a judgment which is valid unless and until set aside. To the extent that the expression is useful, it can only refer to a proceeding which is defective in a way which the court with its various powers, including those conferred by its particular rules of procedure, cannot cure. If there is an apparent remedial power under the procedural rules, the defect is curable and the proceedings should not be described as a nullity. It is the extent of the remedial power which defines what can be remedied, rather than the remedial powers being qualified by a characterisation of something as a nullity, according to what was said in other contexts and under different procedural rules.

38    Clearly, CFMEU did not, at any time prior to the application for costs, consider that it had suffered any injustice.

A reconsideration of CSBP

39    Assuming that the 2012 section applies to the appeal, CFMEU submits that this Court should not follow the decision of the Full Court in CSBP. It submits that on its proper construction the 2012 section applies to appeals from decisions at first instance to which that section applies.

40    CFMEU advances two propositions which were apparently not put to the Full Court in CSBP. First, it submits that the introductory words “subject to any other Act” in s 24 of the FCA limit the power of the Court on appeal. Thus s 24 of the FCA cannot be the sole source of the Court’s jurisdiction to hear an appeal from a decision at first instance pursuant to the jurisdiction conferred by s 562 of the Fair Work Act. Secondly, CFMEU submits that the powers conferred upon the Court in its appellate jurisdiction, as set out in s 28, are limited to the kinds of relief available at first instance.

41    As to s 24 we accept that exercise of the Court’s appellate jurisdiction in relation to matters arising under the Fair Work Act must be consistent with the terms of that Act. However the Fair Work Act does not deal with appeals from first instance decisions of this Court. Whilst s 562 may be wide enough to include the conferment of appellate jurisdiction, it is also consistent with the understanding that the conferment of first instance jurisdiction on this Court carried with it the conferment of appellate jurisdiction pursuant to s 24 of the FCA. It is telling that in s 564 of the Fair Work Act, it is made clear that specific provisions in the FCA relating to first instance jurisdiction are not to be limited by provision of the Fair Work Act, but there is no such provision concerning the appellate jurisdiction. Further, the Court’s jurisdiction to hear appeals from other courts is dealt with expressly in ss 563 and 565, but there is no mention of appeals from first instance decisions of this Court.

42    As to s 28 of the FCA, we do not accept that in hearing and determining an appeal from a decision of this Court at first instance, the Full Court is limited in its capacity to make orders by the range of orders available at first instance. Section 28 provides for a much wider range of orders. In any event, this does not assist in the proper construction of ss 562 and 570.

The Discretion to Award Costs

43    CFMEU submits that even if this Court has power to award costs on appeal, it should not do so. First, it submits that there is a “clear legislative policy” against the award of costs in industrial causes. Generally the Court will not be swayed by broad policy considerations unless they appear to be adopted or prescribed by the relevant statute. The point here is that on the proper construction of s 570 as it stood prior to and after 1 January 2013, different statutory intentions were demonstrated. We see no basis for asserting some broad policy consideration which informed both of the relevant provisions. Once it is accepted that on a proper construction of the legislation, the question of costs on appeal falls to be determined pursuant to the FCA, little room remains for the consideration of such policy matters.

44    Secondly, CFMEU seems to submit that an order for costs should only be made if the unsuccessful party was plainly without merit. The discretion to award costs under s 43 of the FCA is unfettered, subject to express restrictions which do not presently apply. Although in CSBP, the Court considered that the appellant’s arguments were “distinctly adventurous”, their reasons do not suggest that because, at first instance, costs are not generally to be awarded, costs should only follow the event on appeal when the party appealing brings a case wholly without merit. For that reason, we are not persuaded that the fact that this Court was divided in its opinion, or that the respondent was successful at first instance demonstrates that costs should not follow the event. The respondent has been wholly unsuccessful.

Conclusions

45    The respondent should pay the appellant’s costs of and incidental to the appeal and the application for leave to appeal.

Associate:

Dated:    15 October 2014

REASONS FOR JUDGMENT

KENNY J:

46    After the Court allowed the appeal considered in BHP Coal Pty Ltd v Construction, Forestry, Mining and Energy Union (2013) 219 FCR 245, the parties made submissions concerning the costs of the appeal. The Court is presently concerned with the question of costs.

47    I have had the benefit of reading in draft the reasons for judgment prepared by Dowsett and Flick JJ and, for the reasons stated by their Honours, I agree that the appellant began the appeal before 1 January 2013 and that the question of costs is to be determined by reference to s 570(1) of the Fair Work Act 2009 (Cth) (‘FWA’) as it stood prior to that date. The applicable version of this provision is set out in paragraph [5] of their Honours’ reasons for judgment.

48    Further, I reject the respondent’s submission to the effect that this Court should not follow the decision of the Full Court in Construction, Forestry, Mining and Energy Union v CSBP Ltd (No 2) (2012) 202 FCR 149 (‘CSBP’) that s 570(1) (in its pre-1 January 2013 form) did not limit the Court’s power to award costs in its appellate jurisdiction. Although the Court is not bound by its previous decisions, the Court will follow a previous decision unless convinced that the previous decision is clearly or plainly wrong: see Transurban City Link Ltd v Allan (1995) 95 FCR 553 at [29] 560. This test has been regularly applied: see, for example, Hill v Keith [2002] FCAFC 7 at [5]; Uddin v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 149 FCR 1 at 15 [54]-[55]; SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214 at 257 [190] (Allsop J, with whom Weinberg J agreed); Construction, Forestry, Mining and Energy Union v Clarke (2007) 156 FCR 291 at 300 [33] (Middleton J, with whom Ryan and Tamberlin JJ agreed); and Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505 at 546 [201] (Lander and Gordon JJ). Having regard to the considerations set out in paragraphs [41] and [42] of the reasons for judgment of Dowsett and Flick JJ, it cannot be said that the decision in CSBP is clearly or plainly wrong. Accordingly, this Court should follow the decision in CSBP, to the effect that, in its pre-1 January 2013 form, s 570(1) does not limit this Court’s power to award the costs of and incidental to the appeal.

49    Whilst the award of costs is within the general discretion of the Court, nonetheless there is no circumstance shown here to justify a departure from the ordinary position that costs follow the event and that the successful party to the appeal (in this case, the appellant) receive an award of costs. The fact that the legislature has reformulated s 570(1) of the FWA, in terms that might lead to a different outcome in another case has no bearing on the outcome in this case. Similarly, the fact that this Court was not unanimous (since I dissented in part) does not alter the fact that the appellant was ultimately the wholly successful party on the appeal since it was the judgment of the Court that the appeal be allowed and the orders for the re-instatement of Mr Doevendans and the payment of a pecuniary penalty be set aside.

50    For these reasons, I agree with the order proposed by Dowsett and Flick JJ that the respondent should pay the appellant’s costs of and incidental to the appeal and the application for leave to appeal.

Associate:

Dated:    15 October 2014