FEDERAL COURT OF AUSTRALIA

McIlwain v Ramsey Food Packaging Pty Ltd (No. 3) [2006] FCA 994

PRACTICE AND PROCEDURE – application for a stay pending an application for leave to appeal.

Federal Court Act 1976 (Cth), s 24(1A)

Workplace Relations Act 1996 (Cth), s 298U(a), s 356

McIlwain v Ramsey Food Packaging Pty Ltd [2006] FCA 828

Driclad Pty Ltd v FCT (1968) 121 CLR 45

Ah Toy v Registrar of Companies (1985) 10 FCR 280

Hannpost Pty Ltd v Mita Copiers Australia Pty Ltd (1996) 137 ALR 701

Gribbles Pathology (Vic) Pty Ltd v Minister for Human Services and Health (1996) 67 FCR 327.

MCILWAIN v RAMSEY FOOD PACKAGING PTY LTD & ORS

QUD66 OF 2003

GREENWOOD J

3 AUGUST 2006

BRISBANE

THE COURT ORDERS THAT:

1.                  The application made by each of the respondents for a stay of any further hearing of the proceeding made by notice of motion filed on 20 July 2006 is dismissed.

2.                  The costs of the application are reserved.

3.                  By way of further directions:

(a)        the respondents shall file in the court and serve upon the applicant any further affidavit material upon which any of them intend to rely in relation to the determination of the question of whether a penalty ought to be imposed upon any of them pursuant to s 298U(a) of the Workplace Relations Act 1996 (Cth) by 4.00pm, Thursday 17 August 2006;

(b)        the applicant shall file affidavits in reply (if any) by Thursday, 24 August 2006;

(c)        the matter will be re‑listed for the hearing of further submissions at 10.15am on Monday, 28 August 2006. 

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

REASONS FOR JUDGMENT

1                     I have before me an application by notice of motion by each of the four respondents (applicants on the motion) filed on 20 July 2006 for an order that until an application for leave to appeal and any appeal arising from the grant of such leave is finally determined, further proceedings in the disposition in this matter (QUD66 of 2003) be stayed. 

2                     The application for the stay was heard on Thursday, 27 July 2006 at 10.15am.  At the conclusion of argument, I reserved the matter with a view to advising the parties that judgment on the matter would be delivered later that morning.  The parties, by consent, requested that the matter be listed at 3.30pm in order to allow discussions to take place.  I was then asked to adjourn the application for the stay generally subject to further notification from the parties.  On Tuesday, 1 August 2006, I was advised that no resolution had been reached and accordingly I advised the parties that I would give judgment on the application for the stay at 9.45am today. 

3                     On 20 January 2006, I published reasons in relation to particular matters arising out of a consideration of the factual and legal issues in the matter consequent upon a trial of the action in which extensive argument occurred in relation to a ‘no case’ to answer submission made by the respondents.  That submission was made on the footing that the respondents were put to an election not to call evidence in the proceeding as a condition of making the ‘no case’ submission.  In dealing with the matter, I reviewed all of the evidence and the issues with a view to ultimately making final dispositive orders subject to further submissions on particular matters before making any orders.  See generally McIlwain v Ramsey Food Packaging Pty Ltd [2006] FCA 828 at [82] – [92] and [370] – [382]. 

4                     The respondents have filed an application for leave to appeal from the judgment and leave is sought pursuant to s 24(1A) of the Federal Court Act 1976.  A date for the hearing of the application will shortly be allocated by the Registry.  Although an engaged consideration of the merits of that application is not part of this application for a stay, one aspect of the orthodoxy of the approach to considering the treatment of appeals is the recognition that an appeal does not lie either with or without leave from reasons for judgment but only from judgments, decrees and orders.  As the authorities observe, the word ‘judgment’ in this context refers to operative judicial acts and is not used as a convenient shorthand description of reasons for judgment:  see Driclad Pty Ltd v FCT (1968) 121 CLR 45; Ah Toy v Registrar of Companies (1985) 10 FCR 280 at 285­86; Hannpost Pty Ltd v Mita Copiers Australia Pty Ltd (1996) 137 ALR 701 at 711 and Gribbles Pathology (Vic) Pty Ltd v Minister for Human Services and Health (1996) 67 FCR 327.  In publishing the reasons on 30 June 2006, directions orders were made for the making of further written and oral submissions on particular matters.  In order to accommodate counsels’ availability, the applicant was required to make submissions on the relevant matters by Friday, 14 July 2006 and the respondents by Friday, 21 July 2006 with a view to the matter being listed for further argument at 10.15am on 27 July 2006.  On that day, the application for the stay was argued. 

5                     The further matters which are to occur in the proceeding (QUD66 of 2003) involve a number of things.  In publishing the reasons, I gave directions for the further conduct of the trial with a view to resolving matters which would, upon resolution, lead to the making of dispositive orders.  The matters that remain to be dealt are these.  First, the applicant was requested to formulate draft declarations reflecting the findings of contravention of the Workplace Relations Act 1996 (Cth) (‘the Act’).  Those proposed declarations are to be the subject of submissions and further consideration.  Mr Hatcher SC characterises the request made of the applicant to submit draft forms of declaration as a delegation to the applicant of the judicial task.  However, those formulations are to be considered and will be the subject of further oral submissions.  Secondly, aspects of the claim for lost earnings concerning Mr Blackadder is to be the subject of further submissions.  Thirdly, written submissions were sought from the applicant and the respondents concerning the principles governing the assessment of a compensation component described as general damages in the applicants’ Further, Further Amended Statement of Claim.  Fourthly, written submissions were to be provided on the question of whether a penalty ought to be imposed upon any of the respondents pursuant to s 298U(a) of the Act and if so, the principles guiding the determining of such a penalty in all the circumstances.  Fifthly, the principles guiding the circumstances in which an order ought to be made under s 356 of the Act that any penalty imposed upon the respondents be paid to the Employment Advocate, is the subject of further argument. 

6                     Counsel for the respondents say that the respondents have been substantially prejudiced because they have not been given an opportunity to be heard on the unchallenged evidence of lost earnings and whether the accepted evidence supports the loss claimed and its calculation.  That lack of opportunity to be heard is said to be compounded by a further hearing of the matter and thus the proceeding should be stayed pending the application for leave and the resolution of any appeal, should leave be given. 

7                     Counsel for the respondents will seek to establish the merits of the primary position in arguing the application for leave.  It seems to me, however, that the appellate process of the Court is greatly aided by ensuring that all matters that remain to be dealt with are dealt with so that dispositive orders might be made which can then be the subject of appeal and thus bring the entire controversy before the Court in its appellate jurisdiction subject to the scope of the grounds of appeal.  Such an appeal might be heard together with any appeal from the ‘Reasons for Judgment’ should leave be given pursuant to the existing application. 

8                     Accordingly I propose to take the following course.  I propose to make further directions in the conduct of the trial and they are that the respondents file in the Court and serve upon the applicant any further affidavit material upon which any of them intend to rely in relation to the determination of the question of whether a penalty ought to be imposed upon any of the respondents pursuant to s 298U(a) of the Act, by 4.00pm on Thursday, 17 August 2006.  The applicant is to file affidavits in reply (if any) by Thursday, 24 August 2006.  The matter will be re‑listed for the hearing of oral submissions in relation to that matter, to the form of any declaration that ought to be made, the question going to Mr Blackadder, the question of the principles and material going to whether an award of damages ought be made in respect of any one of the individuals and submissions as to whether an order ought to be made pursuant to s 356 of the Act, at 10.15am on Monday, 28 August 2006. 

9                     I will then determine each of those matters and make a series of orders which will be dispositive of the matters in issue.  I do not propose to make orders piecemeal but will make all final orders upon the hearing of oral submissions and the consideration of all oral and written submissions. 

10                  I will dismiss the application for the stay and reserve the question of the costs of the stay to be dealt with at the time of determining the costs of the action. 

I certify that the preceding ten [10]

numbered paragraphs are a true copy of the

Reasons for Judgment herein of the

Honourable Justice Greenwood.

Associate:

Dated:              3 August 2006