CATCHWORDS Practice and Procedure - Appeals - leave to appeal refused by single Judge ~- whether further application to Full Court for leave to appeal competent - whether appeal to Full Court from refusal to grant leave competent. Federal Court of Australis Aet 1976: sub-sa, 24(1), 24(1A) and 45(2), mn Federal Court Rules: Order 52 rule 10. Conciliation and Arbitration Act 1904: paras. 5(1)(a), 5(1)(f). Reid v. Nairn (1985) 60 A.L.R. 419 Chamberlain v. R. (1983) 46 A.L.R. 493 GENERAL MOTORS~HOLDEN'S LIMITED v. PAUL MICHAEL NOACK SA 10 of 1985 CORAM: SMITHERS, LOCKHART and NEAVES Jv. MELBOURNE 7 MARCH 1986 BOTA eet IN THE FEDERAL COURT OF AUSTRALIA ) ) SOUTH AUSTRALIA DISTRICT REGISTRY ) No. SA 10 of 1985 ) ) INDUSTRIAL DIVISION JUDGES MAKING ORDER: DATE OF ORDER : WHERE MADE: THE COURT ORDERS THAT: 1. The application incompetent. 2. In so far as the as if 1t were an ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN : GENERAL MOTORS-HOLDEN '5S LIMITED Applicant AND: PAUL MICHAEL NOACK Respondent MINUTE OF ORDER SMITHERS, LOCKHART and NEAVES JJ. 7 MARCH 1986 MELBOURNE for leave to 'appeal be dismissed as application for leave to appeal be treated appeal from the decision of the Honourable Mr. Justice Forster in proceedings SA No. 7 of 1985 that appeal be dismissed as incompetent. NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. we np ee een r =, ET Crema EIT a x ee te " a te a hy ue wots -* eyes IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY No. SA 10 of 1985 ws ws INDUSTRIAL DIVISTON ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALTA BETWEEN : GENERAL MOTORS-HOLDEN' S LIMITED / Applicant AND: PAUL MICHAEL NOACK Respondent CORAM: SMITHERS, LOCKHART and NEAVES JJ. 7 MARCH 1986 REASONS FOR JUDGMENT SMITHERS J. I will ask Mr. Justice Lockhart to deliver the first judgment. I certify that Wikeed te preceding noses We a tue copy of the Reasons fer Judgment heisin of the Honourable Bi. Justice j mnitlaoss ; over date Dated: "7? March, (NEG EOIN POE INET EET a IN THE FEDERAL COURT OF AUSTRALTA ae ee 7 ) ~ ) SOUTH AUSTRALIA DISTRICT REGISTRY ) No. SA 10 of 1985 ) ) INDUSTRIAL DIVISION i ON APPEAL FROM A SINGLE JUDGE OF | THE FEDERAL COURT OF AUSTRALIA oyo4 BETWEEN : GENERAL MOTORS-HOLDEN'S i LIMITED 7 Applicant f. AND: PAUL MICHAEL NOACK (: Respondent F br CORAM: SMITHERS, LOCKHART and NEAVES Jd. cere 7 MARCH 1986 REASONS FOR JUDGMENT LOCKHART J. ws ge eee ee On 15 May 1985 Paul Michael Noack, the prosecutor, lodged two informations in this Court under the Conciliation and Arbitration Act 1904 ("the Act") and caused two summonses to be issued to General Motors-Holden's Limited, the defendant. Each information and summons i alleged matters relevant to the dismissal of the prosecutor from the defendant's employ. The information and summons in proceedings SA No. a — 7 of 1985 alleged that the dismissal was contrary to para. 5(1)(a) of the Act. The information and summons in proceeding SA No. 8 of 1985 alleged that the dismissal was contrary to para. 5(1)(f) of the Act. \ | | In each of the matters notices of motion were filed by the { i defendant seeking orders that either of the proceedings be struck out, { { | | | | | | | Carer Cee eae eos pe PPT TE [Oe een ee or pe tery oT, ALE leet er" : hd Fe oe 7 oe mw tree ee eine oe cetera oo so ate? st eee 2, =.7 He apelin Saba a tt se even Ie 4A tLe Ps GB Im Be = a cobs that certain particulars be delivered by the prosecutor and that he give discovery of documents. Certain other orders were sought which it is unnecessary to mention. The motions were heard by a_ single Judge of this Court, Forster J., on 17 September 1985. At the outset of the hearing counsel for the prosecutor sought leave to amend the information in proceeding No. 7 of 1985 by filing an amended information and summons. The application for leave was opposed by the defendant. After argument the learned Judge said that he would permit an amended information to be filed and the consequential amended summons to be issued in matter No. 7. He then granted leave to the prosecutor to withdraw the information in matter No. 8 of 1985. After hearing further argument the Judge ordered the prosecutor to provide further and better particulars of certain of the allegations. Counsel for the defendant sought an order that the prosecutor give discovery of documents, and his Honour, after argument, refused that application. His Honour did not then give reasons for his decisions granting leave to amend and refusing discovery, but said he would give reasons in writing shortly thereafter. Later that same day (17 September) counsel for the defendant applied to the Judge, pursuant to Order 52 rule 10 of this Court's cs Rules, for leave to appeal both from the order granting the prosecutor leave to amend the information and summons in proceeding No. 7 of \ - Emscrayen nyiemninpipinenramenpe spate ane ; nonce Soa A AEE RR AE I ~_ FUL eS" + kh mers cle r Papeareny a rr' 1985, and from the Judge's refusal to order discovery against the prosecutor. After hearing argument his Honour delivered ex tempore reasons for judgment and refused leave to appeal. On 25 September his Honour delivered the written reasons for judgment which he had foreshadowed on 17 September. ' There is perhaps some question whether the orders presently relevant were made on 17 or 25 September because his Honour, when delivering his written reasons for judgment on 25 September, accompanied them, as is this Court's practice, with a Minute of the Court''s order and Catchwords. That minute referred to the date on which the orders were made as being 25 rather than 17 September. The order was taken out in October 1985 and after it had been sealed in the Registry, the order recorded its date as 25 September. However, the reasonable interpretation of the events is that the orders were made in fact on 17 September and the reasons for those orders were given on 25 September. This is not only, I think, the correct construction of the relevant events, it is also consistent with the language of the Judge in his written reasons for judgment delivered on 25 September. On 25 September upon the application of the defendant his Honour made a further order in these terms: "I abridge time and grant the defendant seven days in which to lodge an appeal." a eee ree 7 oy . It is not perhaps entirely clear how this order came to be made, but no doubt it was because as the time was fast approaching when the matter had been set down for a lengthy trial his Honour took the view that, if the defendant wished to assert any right of appeal which it might have against the orders that he had made, it should do so within a time shorter than that limited by the Rules, so that if no steps were taken to prosecute any such appeal the trial could have proceeded. The defendant filed in this Court a document titled "Application for Leave to Appeal". A scrutiny of that document shows that the defendant is seeking leave to appeal from the judgment of Forster J. given on 25 September 1985 and, in so far as 1t may he necessary, leave to appeal from his Honour's judgment made on 17 September 1985. In view of what I have said thus far it is only necessary to consider the application as relating to the orders made on 17 September. The prosecutor subsequently filed a notice of motion in this Court seeking orders that, in so far as the application by the defendant be treated as if it were an appeal from the decision of Forster J., that purported appeal should be dismissed as incompetent. _Tt is thus the application of the defendant and the notice of motion of the prosecutor that have come before this Full Court today. An appeal from the judgment of a single Judge of this Court is oi pene ree ee _ > 2 rors woe i ane pre rmares afl Sooetaent int meenidnemecnaieahenrien EPI OS CTE Tt governed by sub-ss. 24(1) and (1A) and 25(2) of the Federal Court of Australia Act 1976, and by the provisions of Order 52 rule 10. The question arises whether the defendant, having already sought and been refused leave to 'appeal, can make a second attempt to appeal by seeking leave from this Full Court. A Full Court of this Court, differently constituted, considered this question in Reid v. Nairn (1985) 60A.L.R. 419. In that case, it appears that there was before the Court both an application for what was called special leave to appeal against an order granting discovery by a single Judge of the Court and an appeal against his Honour's refusal to grant special leave to appeal from his order. The order of the Full Court was that the application for special leave to appeal be dismissed as incompetent and that the appeal from the refusal of the single Judge to grant special leave to appeal be dismissed as incompetent. The Full Court in that case held that the sections of the Federal Court of Australia Act 1976, to which I have referred, when read together, as they must be, provide that the question of leave to appeal is to be decided by either a single Judge or a Full Court, whichever is first seized of the matter. They are true alternatives and not progressive. Thus, there was no appeal in that case from the decision of the single Judge refusing leave to appeal. Hence, a party, wishing to appeal from an interlocutory order, must elect whether a Judge or a Full Court be first approached. I should add that it is agreed in the case before us that the relevant orders are all interlocutory orders. LESTE IT, OS EL IN THE FEDERAL COURT OF AUSTRALIA ) ) SOUTH AUSTRALIA DISTRICT REGISTRY ) No. SA 10 of 1985 he ) INDUSTRIAL DIVISION ) ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA ear a, 7 BETWEEN : GENERAL MOTORS-HOLDEN'S F LIMITED . re, Applicant . AND: PAUL MICHAEL NOACK fe ic Respondent 2 I CORAM: Smithers, Lockhart and Neaves JJ. { i DATE: 7 March 1986 ii L. \ I KE REASONS FOR JUDGMENT L Neaves J. Z I agree with what has been said and I do not wish to by add anything. a i. ie I certify that this page Y is a true copy of the bo Reasons for Judgment ~ herein of the Honourable . Mr Justice Neaves. | a breN_Ly | Dated: 7 March 1986 ae agi ireeen eee | sy 2 RE ONS ORL a - IN THE FEDERAL COURT OF AUSTRALTA SQUTH AUSTRALIA DISTRICT REGISTRY No. SA 10 of 1985 ~ INDUSTRIAL DIVISTON | , ON APPEAL FROM A SINGLE JUDGE OF' i THE FEDERAL COURT OF AUSTRALTA f BETWEEN : GENERAL MOTORS-HOLDEN' S LIMITED - Applicant AND: PAUL MICHAEL NOACK 1 , Respondent CORAM: SMITHERS, LOCKHART and NEAVES Juv. 7 MARCH 1986 REASONS FOR JUDGMENT : SMITHERS J. Po ogtor I agree with what has been said. I say nothing as to the correctness or otherwise of the decision in Reid v. Nairn other than that I am not convinced that that decision 1s wrong. The order will therefore be as proposed, namely, that the application be dismissed and in so far as that application be treated } f i I ' as an appeal from the decision of Forster J. that appeal be dismissed. There will be no order as to costs. F I certify that thi ; preceding pages ate a true copy of the Reasons for Judgment herein of the Honourable Mr. Justice Sauithiots (Vicente | | g 1S Associate Dated: "72 Moran (ASG