FEDERAL COURT OF AUSTRALIA

Dahler v Australian Capital Territory [2015] FCA 1303

THE COURT ORDERS THAT:

1.    On or before 4.00pm on Monday, 21 December 2015, Ms Keys has leave to file an application for leave to appeal from the costs order made against her by the Federal Circuit Court on 30 September 2015.

2.    The appellant’s application for the matter to be heard and determined by a Full Court is dismissed.

3.    The question of costs of the appellant’s application for the matter to be heard and determined by a Full Court is reserved.

4.    Order 2 of the orders made 6 November 2015 is varied so as to read: “Pursuant to r 36.11 of the Federal Court Rules 2011 (Cth), the hearing of the appeal listed on 23 November 2015 be vacated and the appeal be stood over for hearing before a single Judge in the Court’s Full Court and Appellate Sitting Period 8 February to 4 March 2016.”

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

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

1    By an interlocutory application filed 19 October 2015, the appellant, Mr Clinton Dahler, seeks amongst other things an order that the appeal be listed for hearing before a Full Court pursuant to s 25(1AA)(b) of the Federal Court of Australia Act 1976 (Cth) (Federal Court Act).

2    That application is supported by an affidavit of Mr Dahler made on 17 October 2015. At [12] of his affidavit, Mr Dahler contends that the matter should be heard by a Full Court because:

…my appeal involves the interpretation and application of remedial provisions of the Fair Work Act, specifically in relation to -

(a)    whether my role/ participation in a disciplinary process under an enterprise agreement is a workplace right (particularly when the ea expressly states that there is no right of appeal against the termination of employment other that [sic] proceedings under the Fair Work Act) [see sub-sections 340(1)(a)(i) and 341(1)(a) of the FW Act]; and

(b)    whether termination of my employment on the basis of my duties/ responsibilities as a carer is unlawful discrimination in the ACT [see sub-sections 351(1) & (2)(a) of the FW Act]; and

(c)    who can properly be named as an accessorial party to a general protections proceeding under sections 362 and 550 of the Fair Work Act; and

(d)    whether section 570 of the Fair Work Act can apply to an entity who is not a party to proceedings; and

(e)    the interrelationship of section 570 of the Fair Work Act and Federal Circuit Court Rule 21.07.

3    The principles by which it is determined whether in the exercise of discretion an appeal should be heard by a Full Court are helpfully set out in the reasons of Katzmann J in Fair Work Ombudsman v Toyota Material Handling (NSW) Pty Limited [2012] FCA 347 (Toyota) to which counsel for the respondents drew the Court’s attention. Her Honour points out at [8] of her reasons that the prima facie position is that the appeal (and also in that case, the application for leave to appeal) should be heard by a single Judge. Her Honour then posed the question:

Why, then, is it appropriate that they be heard by a Full Court? Why should the resources of three judges be taken up with deciding a matter that can be decided by one?

4    Katzmann J then identified at [9] that the following principles apply to answering this question:

(a)    Whether or not the application and the appeal should be referred to a Full Court is discretionary;

(b)    There are no statutory limits on the exercise of the discretion apart from the requirement to exercise the power in the way that best promotes the overarching purpose: FCA Act, s 37M(3);

(c)    Nevertheless, the starting point is that parliament intended that both applications for leave and appeals be heard by a single Judge unless there is reason to think there is some value, benefit or advantage in the matter being heard by a Full Court (cf. Oswal v Burrup Fertilisers Pty Ltd (Receivers and Managers Appointed) [2011] FCA 536 at [12] per Barker J);

...

5    Thus, as counsel for the respondents, submitted, in considering the question posed it is relevant for the Court to have regard to the purposes of the Federal Court Act and, in particular, to ss 37N and 37M, in promoting expedition and efficiency in the disposition of matters before the Court.

6    Those matters identified by Katzmann J in Toyota at [10] as bearing upon the question of whether the appeal should be heard by a Full Court include, relevantly:

(a)    Whether the judgment concerns a “minor interlocutory squabble” or whether the orders have important and final consequences for the parties regardless of whether substantive rights were determined;

(b)    Whether the application/appeal raises issues of novel and general importance which should be the subject of consideration by a Full Court;

(c)    Whether prima facie it can be said that there are arguments of substance supporting the conclusion that the primary judgment is attended by sufficient doubt to warrant reconsideration by the Full Court or substantial injustice as a hopeless application should not be referred to the Full Court (Allphones Retail Pty Ltd v Weimann [2009] FCA 849 at [13]).

7    Ms Keys, counsel for the appellant, submitted that the decision subject to appeal raised issues of statutory interpretation which had not been judicially determined on a previous occasion by a Full Bench of this Court. She also submitted that this was a new area in which, pursuant to amendments to the general protections afforded by the Fair Work Act 2009 (Cth) (Fair Work Act), the workplace rights, which could be the subject of infringement, had been expanded. The workplace right in this case identified by the appellant’s counsel, is a person’s participation in a process under an enterprise agreement (s 341(1)(b), Fair Work Act). However, Ms Keys accepted that she was not arguing that any prior Full Court decision be departed from, and that the complaint, insofar as it related to the Full Court decision in Khiani v Australian Bureau of Statistics [2011] FCAFC 109 (Khiani), concerned only the application of that decision to the present case. In effect, as I understand her submission, she contends that the decision in Khiani is distinguishable. Ms Keys also referred to the contention on the appeal that s 362 of the Fair Work Act had not been properly considered by the primary judge.

8    In my view, the matters to which Ms Keys has pointed are not sufficient to warrant the matter being referred to a Full Court. In particular, I have had regard to the fact that one of the primary grounds of appeal relates to the application of a prior Full Court decision and does not challenge the correctness of that decision. Furthermore, issues of statutory construction are issues that arise every day in the Court and the fact that a statutory provision may not previously have been subject to consideration by a Full Court does not necessarily indicate in and of itself that the matter should be considered by a Full Court. Moreover, as the respondents submitted, the critical finding in this case was a finding of fact, namely, that the reason the appellant/employee was dismissed was not a proscribed reason under the Fair Work Act, but because of “the proven misbehaviour of Mr Dahler… not the process he participated in which established that misbehaviour”: Dahler v Australian Capital Territory & Anor (No 2) [2015] FCCA 845; (2015) 296 FLR 363 at 367 [21] (Judge Driver).

9    I also take into account the fact that, if the matter were to be referred to a Full Court, it appears unlikely at this stage that it could be heard in the February Full Court and Appellate Sitting Period, but rather that it would have to await a hearing in the May Sitting Period. It is undesirable for the resolution of a matter to await a further delay given that the November hearing has already been vacated unopposed at the appellant’s instigation. I do not consider, in other words, that it would promote the purposes of the Federal Court Act for this matter to be the subject of likely further delay in circumstances where, for the reasons set out above, I do not see why the matter cannot appropriately and fairly be dealt with by a single Judge.

10    For these reasons, the application is refused. I also make the further observation that it was not entirely clear to me, given that no challenge was made to any prior Full Court decision, why the appellant was making the application for the matter to be heard by a Full Court. It was not said, for example, that the appellant had any longer term interest in resolving the issues the subject of the appeal beyond the perimeters of this matter. The only interest of the appellant was apparently in the issues as they pertain to him in this specific appeal.

11    The question of costs is reserved.

Associate:

Dated:    23 November 2015