Federal Court of Australia

Revill v John Holland Group Pty Ltd [2021] FCA 558

ORDERS

THE COURT ORDERS THAT:

1.    The application for leave to appeal be dismissed as incompetent with costs.

2.    Pursuant to ss 17(2), 23 and 37P of the Federal Court of Australia Act 1976 (Cth), and rr 1.32 and  1.36 of the Federal Court Rules 2011 (Cth), these orders and reasons for judgment in support of these orders are made and published from chambers.

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

REASONS FOR JUDGMENT

MCKERRACHER J:

1    The applicant seeks leave to appeal from a decision of a judge of this Court to refuse to join two parties as respondents to the proceeding: Revill v John Holland Group Pty Ltd [2020] FCA 1633 (Revill (No 1)). Although both parties accept that the decision is interlocutory, the applicant contends that I am empowered to grant leave to appeal pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth). The respondent contends however that there is no discretion to grant leave to appeal in this case by reason of the operation of s 24(1AA)(b)(i) of the Act and the fact that the decision in question is a decision not to join parties. The respondent has filed a notice of objection to the competency of the application on this ground.

2    It is not contentious that the primary judge’s decision in Revill (No 1) concerned, amongst other things, his Honour’s consideration and dismissal of an interlocutory application to join parties brought by the applicant pursuant to r 9.05 of the Federal Court Rules 2011 (Cth).

SECTION 24 OF THE ACT

3    Section 24 of the Act defines the scope of the appellate jurisdiction of this Court. In general, a right to appeal lies from a decision of the Court constituted by a single judge exercising the original jurisdiction of the Court: s 24(1)(a). That right, and the Court’s jurisdiction in this regard, is subject to the exceptions and leave requirements imposed by the rest of the section. Relevantly here, s 24(1AA)(b)(i) provides:

…

[a]n appeal must not be brought from a judgment referred to in paragraph (1)(a) … if the judgment is:

…

(b)    a decision to do, or not to do, any of the following:

(i)    join or remove a party;

…

4    The applicant relies on s 24(1A) which provides:

[a]n appeal shall not be brought from a judgment referred to in subsection (1) that is an interlocutory judgment unless the Court or a Judge gives leave to appeal.

5    Section 24(1E) is also relevant and provides:

The fact that there has been, or can be, no appeal from an interlocutory judgment of the Court in a proceeding does not prevent:

(a)    a party from founding an appeal from a final judgment in the proceeding on the interlocutory judgment; or

(b)    the Court from taking account of the interlocutory judgment in determining an appeal from a final judgment in the proceeding.

THE APPLICANT’S ARGUMENTS

6    The applicant’s argument in support of the application for leave to appeal can be summarised as follows:

(a)    section 24(1A) of the Act is a civil practice and procedure provision for the purposes of s 37M(3) and s 37M(4) of the Act;

(b)    the fundamental overarching purpose of civil practice and procedure provision is defined in s 37M(2) of the Act and must be interpreted and applied, and any power conferred or duty imposed must be exercised or carried out, in the way that best promotes the overarching purpose in s 37M(3) of the Act;

(c)    in this case by reason of s 24(1AA)(b)(i) of the Act an appeal may not be brought from a decision to ‘join or remove a party.’ In the circumstances of this case, this means a substantial injustice will occur, when the matter can only be appealed in accordance with s 24(1E) of the Act;

(d)    if s 24(1A) of the Act is interpreted without regard to s 37M of the Act, the applicant would instead have to appeal following the orders finally determining the proceedings despite the error being founded on the dismissal of the applicant’s interlocutory application to join or remove a party. This would be in total contradiction of the overarching purpose of s 37M of the Act; and

(e)    only substantial injustice can flow to the applicant, quite simply because the proceedings would have to end in the final judgement being appealed as per s 24(1E) of the Act.

7    While the applicant does accept that s 24(1AA)(b)(i) on its face, operates to bar any right of appeal from a decision to join (or not join) a party or parties, he submits that its operation in this particular set of circumstances is contrary to both the overarching purpose (s 37M) and the purpose for which the section was enacted. Reference is made to the Explanatory Memorandum, Access to Justice (Civil Litigation Reforms) Amendment Bill 2009 particularly at [80]-[81]:

80.    As a result of item 12, only judgments of a single Judge exercising original jurisdiction can be appealed to the Full Court. However, new subsection 24(1AA) provides that there is no appeal to the Full Court from a number of specified interlocutory decisions of a single Judge exercising original jurisdiction.

81.    These interlocutory matters involve minor procedural decisions for which there should be no avenue of appeal. The removal of the right to appeal for these types of matters will ensure the efficient administration of justice by reducing delays caused by appeals from these decisions.

8    Far from being a ‘minor procedural decision’, the applicant says that the refusal of the joinder application in Revill (No 1) has prevented the applicant from advancing a significant aspect of his case. Further, if s 24(1AA)(b)(i) were to operate to bar an appeal at this interlocutory stage, this would occasion a substantial injustice; the applicant would be forced to proceed all the way to a final hearing and judgment only to then appeal that judgment on the grounds of error in the refusal of the joinder application: s 24(1E). The applicant submits that this course would lead to an extremely inefficient use of the judicial and administrative resources of the Court that would be contrary to the overarching purpose and lead to a result that could not have been intended by the legislature in enacting s 24(1AA)(b)(i).

9    As to the ‘substantial injustice’ that the applicant says will be occasioned, his written submissions were also directed to the grounds upon which appellable error is said to arise in Revill (No 1). As will be made apparent below, it is unnecessary to consider the substance of the decision. It suffices to say only that the primary reason for the refusal of the joinder application was the apparently clear availability of a limitation defence to the proposed respondents: Revill (No 1) (at [20], [29]-[39]).

CONSIDERATION

10    Primarily for the reasons advanced by the respondent, leave to appeal cannot be granted. The plain and ordinary meaning of s 24(1AA)(b)(i) is that an appeal cannot be brought from a decision of a single judge exercising the Court’s original jurisdiction concerning the joinder or removal of a party or parties.

11    It may be accepted that joinder decisions can have significant consequences in the particular context of certain proceedings and that may be so in this case. However, as the authorities discussed below confirm, the purpose of s 24(1AA) is to restrict the appeal rights of litigants in a strictly confined class of interlocutory decisions so as to promote the efficient administration and disposition of the Court’s caseload. This purpose is consistent with the ordinary meaning of the text of the section and accordingly, there is no discretion to consider a grant of leave to appeal.

12    A similar situation to the present case arose in Dye v Commonwealth Securities Limited (No 2) [2010] FCA 817 albeit that the application for leave to appeal was from a decision on an application to amend the statement of claim, which attracts the operation of s 24(1AA)(a) by virtue of s 20(3)(c). In that case, Nicholas J made similar observations (at [13]-[15]) about the effect of s 24(1AA) and the impact of its introduction:

13    Since her Honour’s judgment was a determination of an application to amend the grounds of an application to the Court, it is a determination of the kind mentioned in sub-section 20(3). Section 24(1AA) provides that an appeal must not be brought from such a judgment.

14    This interpretation of the relevant provisions accords with their ordinary meaning. If regard is had to the Explanatory Memorandum and Second Reading Speech for the purpose of seeking confirmation that it was Parliament’s intention to amend s 24 to exclude any right of appeal from interlocutory judgments of the kind specified in s 24(1AA) (including determinations of the kind specified in s 20(3)) then the position is put beyond doubt.

15    The change brought about by the introduction of s 24(1AA) is significant and far reaching. The statement appearing in the Explanatory Memorandum at para [81] to the effect that the interlocutory judgments to which s 24(1AA) now applies are “minor procedural decisions” is a generalisation to which there will inevitably be exceptions. In some cases s 24(1AA) may be the source of considerable hardship where there is reason to believe that a judge’s discretion has miscarried. But it is clear when one has regard to the extrinsic material to which I have referred as well as other important amendments that were made to the Act by the Access Act that Parliament intended that there should be no appeal from interlocutory decisions of the kinds specified in s 24(1AA).

(Emphasis added.)

13    The respondent relies on Tran v Singh [2019] FCA 70 per Thawley J (at [36]-[37]) where the Court reached effectively the same conclusion as in Dye but in the context of an application for leave to appeal an extension of time decision:

36    Sections 24(1AA)(a) and 20(3)(b) have the effect that, if an extension of time within which to appeal were to be granted, the appeal would be incompetent – see: WZAUG v A Judge of the Federal Circuit Court of Australia [2018] FCA 649 at [4]; FEZ17 v Minister for Home Affairs [2018] FCA 1689 at [7]; Zetta Jet Pte Ltd v The Ship “Dragon Pearl” [2018] FCAFC 99 at [39]; Torres Strait Regional Authority v Akiba on Behalf of the Torres Strait Regional Sea Claim [2018] FCA 601 at [5]; Rana v Google Inc [2017] FCA 542 at [21].

37    There is no provision which qualifies s 24(1AA) by, for example, permitting an appeal by leave notwithstanding the prohibition contained in s 24(1AA).

(Emphasis added.)

(see also Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 956 per Bromwich J (at [16]) in the context of an application for leave to appeal the refusal of an oral adjournment application).

14    The applicant says that the decisions in Tran and Singh should be distinguished because they did not concern a decision to join or remove a party such that the absence of an appeal right did not give rise to the substantial injustice of this case. There is no proper basis for such a distinction; s 24(1AA) makes separate and specific reference to both the determination of the kinds of applications mentioned in s 20(3) of the Act (s 24(1AA)(a)), as well as decisions to, or not to, join or remove a party: s 24(1AA)(b)(i).

15    As to the alleged inconsistency between s 24(1AA) and s 37M of the Act in this case, the respondent correctly observes that both s 37M and s 37N, (indeed all of Pt VB of the Act dealing with case management in civil proceedings) were inserted by the same amending act that introduced s 24(1AA): Access to Justice (Civil Litigation Reforms) Amendment Act 2009 (Cth). Each of the decisions in Dye, Tran and Singh were accordingly made after both sections were introduced. Further, it would be a rather peculiar result if the enactment by the legislature of a mandatory prohibition on certain appeals could be rendered nugatory by another provision introduced by the very same amending act.

16    It is also important to observe that the objectives of case management and the interpretation of civil procedure provisions in accordance with the overarching purpose will often-times present a tension between the interests of the individual litigant and the interests of all litigants in the timely and efficient resolution of disputes before the Court. Though I should stress that there is no ambiguity in the meaning and effect of s 24(1AA)(b)(i) by the words used, it is necessary to recognise the broader objectives of case management in light of the submissions advanced by the applicant. The observations of Charlesworth J in Irwin v Irwin [2016] FCA 1565 (at [37]) are apposite:

37    Section 37M(2) enumerates, without exhaustion, some of the objectives to be achieved by the civil practice and procedure provisions in accordance with their overarching purpose. Subsections 37M(2)(a) to (d) each refer to considerations affecting not only the parties to a particular dispute, but to the effective administration of justice across the whole of the Court more generally. Construed as a whole, the reference in s 37M(1) to the “just resolution of disputes” is to be given a wide meaning, so as to encompass considerations affecting not only the interests of the parties in a particular proceeding, but the effective resolution of all disputes pending in the Court. The just resolution of “disputes” in the Court may well be served by the application of a civil practice and procedure provision in a manner that advances the wider objectives specified in s 37M(2) even though the interests of individual litigants may be adversely affected in the particular case, and perhaps seriously so. The terms of s 37M recognise that the judicial and administrative resources available for the purposes of the Court are not unlimited.

17    For these reasons, s 24(1AA) does not permit the exercise of any discretion in relation to a grant of leave to appeal. On its plain and ordinary meaning, it operates to mandatorily prohibit any appeals from being brought against certain decisions, of which Revill (No 1) is clearly one. A submission in relation to the occasioning of a substantial injustice may have been relevant in circumstances where a discretion was conferred on the Court, in which case the overarching purpose would be a relevant consideration. But s 37M cannot alter the clear meaning of s 24(1AA) as is contended, nor does it create a source of power. Finally, it is not readily apparent that there will in actual fact be a great waste of resources or time if this matter proceeds. Whether or not that is so, the applicant will retain a right of appeal from any final judgment which will permit him to challenge the decision in Revill (No 1). The application must be dismissed as incompetent.

COSTS

18    The respondent submits that in circumstances where the present application could never have succeeded, the respondent should not have been put to the time and expense of filing submissions and appearing at the hearing of this matter. The Court had initially proposed to the parties that the application be determined on the papers. By correspondence sent to the Court on 18 March 2021, the applicant objected to this course and the application was set down for hearing. The respondent accordingly seeks its costs on an indemnity basis on and from 18 March 2021.

19    There is no good reason why costs should not follow the event. I do not consider the applicant’s election for an oral hearing of the application, while unproductive and an unnecessary cost, to amount to sufficiently unreasonable conduct to warrant the award of costs on an indemnity basis. Consistent with the disposition in Dye (at [27]) the application for indemnity costs is refused. However in the interests of saving further costs, this interlocutory decision will be delivered from chambers.

CONCLUSION

20    The application for leave to appeal must be dismissed as incompetent with costs.

Associate:

Dated:    26 May 2021