FEDERAL COURT OF AUSTRALIA

APPEALS –industrial dispute arising out of termination of employment of independent contractors by appellant – dispute resolved between parties after hearing at first instance – appeal essentially moot – exercise of Court’s discretion to stay an appeal when the outcome would neither confirm nor modify rights capable of being enjoyed by the parties

Workplace Relations Act 1996

Cases considered:

Beitseen v Johnson (1989) 29 IR 336, followed

Hoyle v Insurance Commissioner [1962] VR 394, followed

MAYNE NICKLESS LIMITED  v TRANSPORT WORKERS UNION OF AUSTRALIA AND OTHERS

VG 32 of 1998

BLACK CJ, VON DOUSSA & CARR JJ

melbourne

16 july 1988

THE COURT ORDERS THAT:

1.         The appeal be permanently stayed.

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

REASONS FOR JUDGMENT

THE COURT

On 24 December 1997 Ryan J made orders, pursuant to s 298U of the Workplace Relations Act 1996 (the “Act”), that Mayne Nickless Limited re‑engage 30 of the independent contractors listed in the schedule to the applications filed in the proceedings.  The orders were based on a finding that, in contravention of s 298K(2) of the Act, Mayne Nickless Limited had decided to treat the owner-drivers as having repudiated their contracts for service for a prohibited reason or reasons, which included the prohibited reason specified in s 298L(1) of the Act.  Mayne Nickless Limited appeals against these orders.

Ryan J further decided that if he had not made orders pursuant to s 298U of the Act he would have made a declaration that the conduct of the owner‑drivers did not amount to a repudiation by them of their contracts with the appellant.

When the appeal came on for hearing before us today it became apparent that the legal issues between the parties no longer had any practical significance.  It is common ground that after the orders were made by Ryan J on 24 December 1997 the parties resolved their differences, and indeed that Ryan J, whose orders expressly left further matters to be resolved, has been informed that there will be no further steps in the proceedings before him. It is also common ground that the appellant no longer operates its IPEC business and that none of the individual respondents is now engaged by the appellant.  It is common ground too that the terms of settlement preclude there being any remaining question as to the imposition of penalties or as to any form of court-ordered compensation.

Since it was not and could not be suggested that the proceedings were brought without reasonable cause, no question of costs arose or can arise, whatever the outcome of the appeal.  In both practical and legal terms, therefore, the outcome of the appeal would neither confirm nor modify rights, which remain capable in a real and genuine sense of being enjoyed:  see Beitseen v Johnson (1989) 29 IR 336 at 337-338 and also Hoyle v Insurance Commissioner [1962] VR 394, referred to in Beitseen at 337.

It was conceded by Mr McDonald of counsel for the appellant, and properly in our view, that in these circumstances the Court has discretion not to proceed further with the hearing of the appeal.  But in a strongly argued submission he relied upon other factors which he said were not only relevant to the exercise of our discretion but compelled its exercise in favour of the appeal being heard.  He argued that the finding of a breach of s 298K(2), read with s 298L(1)(l) of the Workplace Relations Act, remained a live issue and one of importance, since the provisions were of a penal character and the finding involved a publicly listed company and its officers.  Moreover, he said, the appeal was self-evidently one of merit, against orders which it would be wrong and unfair to his client and its officers to let stand.

Mr Bell QC, who appeared with Mr Moore for the respondent, drew our attention to certain matters but declined to argue the effect of them, given no doubt the circumstance that the settlement between the parties preserved the capacity of the appellant to proceed with its appeal.  

In our view, the considerations advanced by Mr McDonald on behalf of the appellant do not compel the conclusion that the appeal, otherwise essentially academic in character, should nevertheless proceed.  Although a breach of the provisions of s 298K of the Workplace Relations Act is a serious matter, the penal provisions are nevertheless not criminal in character.  There was no finding of a criminal offence.  Proceedings taken in breach of section 298K(2) are taken by or on behalf of affected individuals and, as happened here, can be compromised by the parties to the proceedings.  This is clearly understood by those whose work is concerned with relations in the workplace.

The second matter that counsel urged upon us as a factor pointing to the exercise of our discretion in favour of hearing the appeal was what he described as "adverse findings" in respect of senior managers employed by the appellant.  We have looked at those findings.  We do not think that they should be characterised as sufficiently "adverse" or critical of those concerned as to warrant a full scale appeal, which has been overtaken by the events that we have just mentioned.  The findings were only those necessary to decide factual matters on the balance of probabilities.

Moreover, the findings made by Ryan J were made in the context of a statutory presumption in favour of the employees in circumstances of a termination (see s 298V).  His Honour found – and this lies at the heart of the matter - that the presumption had not been displaced by the contested evidence adduced on behalf of the appellant.  What has happened here is that there was a serious industrial dispute which led to litigation but which was then settled between the parties.  Any findings on disputed facts must been seen in that context and this would, we think, be widely understood by those knowledgeable about the realities of workplace relations.

An industrial dispute having been settled, an outcome in itself to be encouraged, the Court should we think be reluctant to revisit factual matters that now belong in the past.  For this appeal involves, as we understand it from the extensive written submissions already filed, essentially no more than a challenge to the factual conclusions reached by his Honour.  An examination of those factual conclusions, which are strongly contested on one side but equally strongly supported on the other, is a matter that would necessarily involve the Court in consideration of the facts well beyond the day set aside for the actual hearing of the appeal.  We note that the submissions are very detailed and contain many references to the evidence given and the documents tendered over the course of a five-day hearing.  We note too that the appeal books comprise some 1000 pages.

The courts have an obligation to conduct their proceedings, and to deal with an ever-increasing workload, with as much expedition as the overriding demands of justice permit.  No encouragement should be given, therefore, to the use of scarce judicial time to decide appeals that are essentially moot.  There are other litigants with cases pending before the Court for hearing or delivery of judgment and their claims involve the determination of substantial legal rights of practical importance.  This is not the situation in this appeal (see and compare Beitseen).

In all these circumstances we consider that in the exercise of the Court's discretion the appeal should be permanently stayed, and we so order.

Associate:

Dated:              16 July 98