FEDERAL COURT OF AUSTRALIA

Autistic Association of New South Wales v Dodson [1999] FCA 852

PRACTICE AND PROCEDURE – motion seeking variation of an order of the Court before judgment entered – whether Court should exercise power to vary judgment – whether a costs order in an incompetent proceeding in a matter in which the Court has no jurisdiction under an Act is an order in a proceeding in a matter arising under the Act.

Workplace Relations Act 1996 (Cth) s 347

Federal Court Rules O 35 r 7

The Constitution s 75(v)

Re McJannet; Ex parte The Australian Workers’ Union of Employees, Queensland (No 2) (1997) 189 CLR 654 followed

Shackley v Australian Croation Club Ltd (1996) 141 ALR 736 cited

Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 cited

AUTISTIC ASSOCIATION OF NEW SOUTH WALES v CAROLINE DODSON

NG 117 OF 1998

LEE, HILL AND MERKEL JJ

24 JUNE 1999

PERTH

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

THE COURT ORDERS THAT:

The motion be dismissed.

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

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

THE COURT:

1                     On 14 April 1999 this Court gave reasons why the appeal in this matter should be dismissed as incompetent. On 31 May 1999 the appeal was dismissed and an order made in respect of the costs of the proceeding before the Judge below, a proceeding also found by this Court to be incompetent.

2                     On 8 June 1999, at which time judgment had not be entered, the appellant filed a notice of motion seeking an order pursuant to O 35 r 7 of the Federal Court Rules, that the Court vary the order made as to costs. The entire submissions of the appellant on the motion were set out in an affidavit sworn by the appellant’s solicitor and filed with the motion. No submissions were invited from the respondent and the motion has been dealt with on the papers filed by the appellant.

3                     The appellant submitted that it should have cited to the Court the decisions in Re McJannet; Ex parte The Australian Workers’ Union of Employees, Queensland (No 2) (1997) 189 CLR 654 and Shackley v Australian Croation Club Ltd (1996) 141 ALR 736 and requested the Court to “reconsider its decision in the light of these two authorities”.

4                     The following comments by Mason CJ in Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 at 303 are pertinent in respect of the variation of a judgment delivered but not entered.

“…it must be emphasized that the jurisdiction is not to be exercised for the purpose of re-agitating arguments already considered by the Court; nor is it to be exercised simply because the party seeking the rehearing has failed to present the argument in all its aspects or as well as it might have been put. What must emerge, in order to enliven the exercise of the jurisdiction, is that the Court has apparently proceeded according to some misapprehension of the facts or the relevant law and that this misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing. The purpose of the jurisdiction is not to provide a backdoor method by which unsuccessful litigants can seek to reargue their case.”

5                     It would be an improper exercise of the power to re-visit and vary a judgment on the ground that a party had failed to take the opportunity to refer the Court to a particular case in support of an argument put by that party.

6                     However, if regard is given to the two cases now cited, Shackley did not address whether an incompetent proceeding was a proceeding in a matter arising under the Workplace Relations Act 1996 (Cth) (“the Act”), and the reasons provided by this Court for the making of the costs order are consistent with the reasoning of the High Court in McJannet.

7                     As Brennan CJ, McHugh and Gummow JJ (at 657) pointed out in McJannet, a proceeding to obtain an order of mandamus from the High Court, under s 75(v) of the Constitution, to enforce a duty imposed by the Act on the Industrial Relations Commission to hear and determine a matter, answers the description in s 347 of the Act of a proceeding in a matter arising under the Act. However, a proceeding to obtain an order of prohibition from the High Court, also under s 75(v) of the Constitution, to prevent this Court breaching a duty not to assume a jurisdiction it did not have under the Act, is not a proceeding in a matter arising under the Act. Rather, it is a proceeding in a matter arising under the Constitution. That is, in a proceeding in a matter arising under the Act there must be provided by the Act an enforceable right and a power conferred upon the court in which the proceeding is issued to hear and determine whether that right is to be enforced.

8                     Put another way, the justiciable controversy that constituted the matter to which the proceedings in this Court related was whether the Court had jurisdiction under the Act to determine any right claimed by the appellant. This Court determined that neither the application to have the Registrar’s decision reviewed, nor the appeal, was a proceeding in respect of a right able to be enforced in this Court under the Act. The absence of a right able to be determined or enforced in this Court meant that the purported proceedings were not proceedings in a matter arising under the Act for the purposes of s 347 of the Act.

9                     Thus an order for costs made by this Court in a proceeding in respect of which the Act provides no right to be enforced, nor power to hear and determine any claim to a right provided by the Act, is not an order for costs in a proceeding in a matter arising under the Act. This Court, as a superior court of record, has power to make such an order to protect the management of the business of the Court from incompetent proceedings.

10                  The motion will be dismissed.

Associate:

Dated:              24 June 1999