Elliott-Carde v McDonald's Australia Limited [2023] FCAFC 162

FEDERAL COURT OF AUSTRALIA

Elliott-Carde v McDonald's Australia Limited [2023] FCAFC 162 File numbers: VID 726 of 2021 SAD 127 of 2022

Judgment of: BEACH, LEE AND COLVIN JJ

Date of judgment: 12 October 2023

Catchwords: REPRESENTATIVE PROCEEDINGS – question reserved under s 25(6) of the Federal Court of Australia Act 1976 (Cth) (FCA Act) – whether Court has power pursuant to s 33V of FCA Act to make a "common fund order" upon settlement of proceeding – where no such order has yet been sought – anterior questions of statutory construction and jurisdiction dismissed – challenge to terms of reserved question dismissed – statutory foundation for making settlement common fund order is s 33V(2) – reserved question answered "yes" REPRESENTATIVE PROCEEDINGS – whether representative applicant can seek order in relation to a contravention of a civil remedy provision pursuant to ss 539 and 540 of Fair Work Act 2009 (Cth) (FW Act) – whether ss 539 and 540 impliedly repeal s 33D of the FCA Act to extent of inconsistency – observations on "representative" capacity of industrial associations – consideration of matters in reach of Pt IVA scheme – no inconsistency HIGH COURT AND FEDERAL COURT – federal jurisdiction – whether reserved question merely advisory and beyond judicial power – question whether common fund order can be made at settlement not hypothetical and ought be answered HIGH COURT AND FEDERAL COURT – federal jurisdiction – whether making of common fund order upon settlement within judicial power of Commonwealth – creation of rights and liabilities an exercise of judicial power – consideration of funder's returns not an impermissible foray into policy – making of settlement common fund order within judicial power