FEDERAL COURT OF AUSTRALIA

Sunbuild Pty Ltd v Ramsay [2014] FCA 308

THE COURT ORDERS THAT:

1.    The application for leave to appeal is refused.

2.    Liberty to the parties to file within 14 days brief written submissions as to the costs of the application.

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

REASONS FOR JUDGMENT

1    The applicant seeks leave to appeal from the Orders made by a Judge of the Court in this matter (in which the applicant was the respondent) on 18 February 2014.

2    The Orders then made were to answer separate questions heard and determined separately from the principal part of the proceedings under r 30.01 of the Federal Court Rules 2011 (Cth). The questions and answers given were as follows:

1.    on the assumption that each of the applicants complied with all of the provisions of Division 3 of Part 3-4 of the Fair Work Act 2009 (Cth) (the FW Act), yes, all of the applicants were permit holders who were entitled to enter the respondent’s worksite in accordance with Prat 3-4 within the meaning of s 501 of the FW Act; and

2.    on the assumption that all of the applicants complied with all of the provisions of Division 3 of Part 3-4 of the FW Act, yes, all of the applicants were permit holders exercising rights in accordance with Part 3-4 within the meaning of s 502(1) of the FW Act.

3    In effect, his Honour found that the prohibitions in ss 501 and 502 of the FW Act against refusing, delaying, hindering or obstructing the exercise of rights or entry to premises, the breach of which may give rise to civil remedies under the FW Act enforceable by the respondents to this application (and the applicants in the principal proceeding) applied not just to rights of entry conferred by Pt 3-4 of the FW Act but extended to rights of entry conferred by State or Territory Occupational Health and Safety laws. The applicant had contended that the civil remedies available under the FW Act were not available because the entry which had been sought by the respondents (the applicants in the principal proceeding) under the Work Health and Safety (National Uniform Legislation) Act 2011 (NT) (the WHS Act).

4    The principles upon which leave to appeal should be granted under s 25(1)A of the Federal Court of Australia Act 1976 (Cth) are straightforward. Firstly, the decision from which leave to appeal is sought must be attended with sufficient doubt to warrant it being reconsidered by the Full Court. Secondly, substantial justice must result if leave to appeal were refused, supposing the decision at first instance was wrong. Those principles were established in DÉcor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399, and reaffirmed in Spencer v Commonwealth (2012) 206 FCR 309 at [6].

5    A question whether the decision on 18 February 2014 is attended with sufficient doubt to warrant it being re-considered by the Federal Court occupied much of the submissions of the parties. In the circumstances of this matter, as I am not satisfied that substantial injustice could result if leave to appeal were refused, I do not need to address those submissions.

6    The leave to appeal is in respect of orders made on the hearing and determination of two particular separate questions. The matter may now proceed to hearing and determination, and in the light of the facts as then found, the answers to those questions will form the foundation for the final judgment. An appeal may be brought as of right from the final judgment, which may raise the correctness of the answers given to the two questions in the determination.

7     In those circumstances, the substantial injustice asserted by the applicant is acknowledged to be one of timing and expense, but not one involving the deprivation of the opportunity to challenge the correctness of the answers given to those questions.

8    In my view, considerations of timing and expense do not support a conclusion that substantial injustice would be caused to the applicant if leave to appeal were refused, assuming the two questions were incorrectly answered. The particular circumstances include the following.

9    The pleadings are not yet closed and certain facts in issue were still relevantly in dispute at the time of the judgment: see [57], [64], [71] and [103]. Counsel for the applicant indicated that the factual dispute ongoing may be a substantial one, and that hearing an appeal on the two questions at this point would be likely to save the costs of an extensive hearing. I am not satisfied that, at this point, it is appropriate to allow those two questions to go to the Full Court without all of the relevant factual matters being agreed. There is a provisional proposal to amend the statement of claim. There is a foreshadowed substantial cross-claim. It is unclear the extent to which the facts as ultimately found may or may not give rise to the need to answer the two questions which have been identified, or whether some facts might be found which might affect those answers. In addition, I am not satisfied without the completion of the pleadings, that the cost and time expended on a trial would be significant. The trial presently appears to me to involve some issues which would be relatively largely addressed by written statements supported by oral evidence and extend over a period of about three days. That may be wrong, but the material does not satisfy me at present that a trial on all issues would require an extensive period of hearing or the incurring of extensive costs to the point where it could properly be said that there will be substantial injustice to the applicant by refusing the present application.

10    I note that, on the issues of law which have been identified by the questions, there will be little or no further need for submissions as that aspect has been fully canvassed by the trial judge.

11     For those reasons, the application for leave to appeal is refused. I will give liberty to the parties each to file within 14 days a brief written submission as to the costs of the application, unless it is agreed that the costs of the application should be determined by the trial judge. If written submissions are received, the issue of costs will be determined on the papers.

Associate:

Dated:    31 March 2104