Warramunda Village Inc v Pryde [2001] FCA 61

FEDERAL COURT OF AUSTRALIA

Warramunda Village Inc v Pryde [2001] FCA 61

JUDGMENTS AND ORDERS – declarations – purpose of declarations – preliminary determination of issues – whether appropriate to make purported declarations recording summary of conclusions in reasons for judgment – whether appeal lies from such purported declarations Workplace Relations Act 1996 (Cth), s 178 Federal Court of Australia Act 1976 (Cth), ss 21, 24 Federal Court Rules, O 29 r 2 Arrowcrest Group Pty Ltd v Gill (1993) 46 FCR 90, cited Landsal Pty Ltd (In liq) v REI Building Society (1993) 41 FCR 421, cited Driclad Pty Ltd v Federal Commissioner of Taxation (1968) 121 CLR 45, cited WARRAMUNDA VILLAGE INC v PRYDE V 768 OF 2000 GRAY, BRANSON AND NORTH JJ 9 FEBRUARY 2001 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V768 OF 2000

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF

AUSTRALIA

BETWEEN: WARRAMUNDA VILLAGE INC

APPELLANT

AND: DIANNE PRYDE

FIRST RESPONDENT

BERYL ANDERSON

SECOND RESPONDENT

JUDGE: GRAY, BRANSON AND NORTH JJ

DATE OF ORDER: 9 FEBRUARY 2001

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT the notice of appeal filed on 6 October 2000 be set aside. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V768 OF 2000

BETWEEN: WARRAMUNDA VILLAGE INC

APPELLANT

AND: DIANNE PRYDE

FIRST RESPONDENT

BERYL ANDERSON

SECOND RESPONDENT

JUDGE: GRAY, BRANSON AND NORTH JJ

DATE: 9 FEBRUARY 2001

PLACE: MELBOURNE

REASONS FOR JUDGMENT THE COURT: 1 The proceeding with which these reasons for judgment are concerned was commenced by notice of appeal filed in the Court on 6 October 2000. According to the notice of appeal, the appellant sought to appeal from the whole of the judgment of a single judge of the Federal Court of Australia given on 15 September 2000, in a proceeding in which the two respondents to the notice of appeal were applicants and the appellant was respondent. 2 That judgment was given in a proceeding commenced in the Federal Court of Australia by application. The amended application described the proceeding as an application under s 178 of the Workplace Relations Act 1996 (Cth) ("the WR Act"). In summary terms, the relief sought was as follows: · the imposition of penalties on the respondent in respect of breaches of two named awards · orders that the appellant pay a specified sum to the first applicant and another specified sum to the second applicant · interest pursuant to s 179A of the WR Act · an order under s 356(b) of the WR Act that any penalty be paid to the applicants. 3 On the pleadings, there appeared to be no issue that the appellant is an incorporated association, bound by each of the specified awards, one in succession to the other, in respect of its employment of the two respondents. The amended statement of claim referred to various clauses of the awards, relating to overtime rates and to the performance of work on weekends and public holidays. It contained allegations as to numbers of days worked by each of the respondents between specified dates, the total amount of wages paid by the appellant to each of them in respect of such periods and allegations that, because specified numbers of the days worked were Saturdays, Sundays or public holidays, the appellant had been obliged to pay other, greater, specified total sums in wages. The amended defence pleaded that times worked by the respondents were times spent in a "sleepover role" and that the awards made no provision for payment with respect to the sleepover role, or alternatively required that it be remunerated as if the person performing the sleepover role were "on call". 4 The trial occupied some six days, during which the parties led a substantial quantity of evidence. On 15 September 2000, the trial judge published reasons for judgment. His Honour made general findings about the nature of what he called a "sleepover shift". He made no findings as to whether either of the respondents worked a sleepover shift on any particular day, and whether, if so, such a day was a Saturday, Sunday or public holiday. His Honour made a general finding that a sleepover shift was covered by the provisions of each of the awards and was not the subject of the "on call" provision. In the reasons for judgment, his Honour said: "[t]he parties agreed that, at this stage, the Court should consider the question of liability only and leave any underpayments issue to the parties to sort out with a hearing concerning penalty to be programmed at a later stage. It is, however, pertinent at this stage to record for the purposes of s 178(2) of the Workplace Relations Act 1996 (Cth) that the relevant breaches of the awards have arisen out of a single course of conduct. Accordingly, it is sufficient at this point in time to merely make the following declarations and otherwise adjourn the matter to a directions hearing." 5 His Honour then made an order in the following terms: "1 It is declared that the respondent committed a breach or non-observance of the Health Services Union of Australia (Victoria-Private Sector) Interim Award 1993 ("the 1993 Award") by failing to pay the applicants whilst engaged on sleepover duties in accordance with the terms of the Health and Allied Services Award of the Industrial Relations Commission of Victoria ("the State Award") in respect of: - ordinary time rates of pay - week day ordinary hours - week day overtime - weekend ordinary hours - weekend overtime - public holidays, and - failure to pay the correct wages arrears at times required by the State Award. 2 It is declared that the respondent has committed a breach or non-observance of the Health and Allied Services-Private Sector-Victoria Consolidated Award 1995 ("the 1995 Award") by failing to pay the applicants whilst engaged on sleepover duties in accordance with the 1995 Award provisions in respect of: - ordinary time rates of pay - week day ordinary hours - week day overtime - weekend ordinary hours - weekend overtime - public holidays, and - failure to pay the correct wages arrears at times required by the 1995 Award.