FEDERAL COURT OF AUSTRALIA Spastic Society of Victoria Ltd v Ardelle [2001] FCA 70 SPASTIC SOCIETY OF VICTORIA LTD v ARDELLE V 881 OF 2000 GRAY, BRANSON AND NORTH JJ 9 FEBRUARY 2001 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V881 OF 2000 ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: SPASTIC SOCIETY OF VICTORIA LTD APPELLANT AND: KIMRAY ARDELLE FIRST RESPONDENT GERALDINE ARDELLE 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 9 November 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 V881 OF 2000 ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: SPASTIC SOCIETY OF VICTORIA LTD APPELLANT AND: KIMRAY ARDELLE FIRST RESPONDENT GERALDINE ARDELLE SECOND RESPONDENT JUDGE: GRAY, BRANSON AND NORTH JJ DATE: 9 FEBRUARY 2001 PLACE: MELBOURNE REASONS FOR JUDGMENT THE COURT: 1 By notice of appeal filed on 9 November 2000, the Appellant sought to appeal from the whole of a judgment given by a single judge of the Federal Court of Australia on 20 October 2000. That judgment was given in a proceeding commenced by application filed on 7 September 1999. 2 The application described the proceeding as an application under s 178 of the Workplace Relations Act 1996 (Cth) ("the WR Act"). In the application, the two parties now named as respondents in the notice of appeal sought against the appellant: · the imposition of penalties pursuant to s 178(1) of the WR Act in respect of alleged breaches of two specified awards · orders pursuant to s 178(6) of the WR Act that the appellant pay specified sums to the respondents · an order pursuant to s 356(b) of the WR Act that any penalties be paid to the applicants · interest pursuant to s 179A of the WR Act 3 The matter proceeded by way of pleadings. To the statement of claim were attached detailed schedules of times alleged to have been worked by the appellants, weekly and daily wage rates, and amounts allegedly underpaid. 4 The trial occupied only one day. It was clear that there was one issue between the parties, namely whether a particular clause of each award (the awards being successive in time), on its proper construction, applied to the arrangements under which the respondents worked for the appellant. In his reasons for judgment, given on 20 October 2000, the trial judge found that, when properly construed, each such clause did have application to the respondents in their employment with the appellant. His Honour said: "The parties agreed that in the event that the Court found that the relevant clauses did apply to the Ardelles, a calculation of the sums owing would be arrived at by the solicitors on each side of the record. It is sufficient at this stage to make declarations recording the respective award breaches and otherwise adjourn the proceeding to a directions hearing at which the Court will consider submissions regarding any further orders which may be made to dispose of the proceeding." 5 So far as presently relevant, the orders made by the trial judge on that day are: "1. It is declared that the respondent has committed a breach or non- observance of the Health Services Union of Australia (Private Sector) Interim Award 1993 ("the 1993 Award") by failing to pay the applicants between 20 December 1993 and 2 August 1995 in accordance with clause 6 of the former Residential Child Care Workers Award of the Industrial Relations Commission of Victoria. 2. It is declared that the respondent has committed a breach or non- observance of the Health (Residential Care – Victoria) Award 1995 ("the 1995 Award") by failing to pay the applicants between 3 August 1995 and 1 July 1998 in accordance with clause 23(1)(ii) of the 1995 Award. … 4. The proceeding be adjourned to a directions hearing at 10.15 am on 20 November 2000 for the purpose of considering any further submissions on what further orders, if any, the Court should make." 6 By its notice of appeal, the appellant purported to appeal from this judgment. The purported appeal was listed for hearing on 9 February 2001. On 7 February, the Court notified the solicitors for the parties that an issue might arise as to whether an appeal lay as of right, or whether it was necessary for the appellant to have sought leave to appeal, pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth). Accordingly, Mr McKeown of counsel for the appellant sought to argue that the judgment of 20 October 2000 was not an interlocutory judgment, so that leave to appeal was unnecessary. Alternatively, counsel for the appellant sought an enlargement of the time fixed by O 52 r 10(2)(b) of the Federal Court Rules within which a notice of motion seeking leave to appeal must be filed and served, and a dispensation, pursuant to the general dispensing power in O 1 r 8, from the requirement to file and serve a notice of motion and accompanying affidavit. Ms Richards of counsel, who appeared for the respondents, supported the argument of counsel for the appellant. 7 It is desirable that we should refer to one further development. It appears that the parties were able to agree as to the amount of money that the appellant was obliged to pay to each respondent, on the assumption that the award had been construed correctly by the trial judge. This agreement was apparently the basis on which the trial judge was invited to make an order by consent. His Honour did make such an order on 20 December 2000. By hand-written endorsement on the typewritten order, which endorsement bears the imprint of the seal of the Court, the order is described as having been made "by consent". It is an order to the effect that, under s 178(6) of the WR Act, the appellant pay a specified sum of money to each of the respondents. 8 The order was entered only yesterday, in what may have been an attempt by the respondents' legal advisers to demonstrate that there was finality, at least on the issue of underpayments, and to obviate the need to determine whether the judgment of 20 October 2000 was interlocutory. Counsel for the respondents referred to the possibility that the appellant might seek to amend the notice of appeal, so as to include in it an appeal against the consent order of 20 December 2000. As no such application was made, we need not consider this issue further. 9 On its face, the consent order of 20 December 2000 would have the effect of resolving any issue between the parties as to whether the appellant had underpaid the respondents, in breach of the relevant awards. Such a resolution may have led to the conclusion that there was no longer any issue between the parties as to the proper construction of the awards and that there was no longer any point of substance in any appeal. From what counsel for the parties told the Court, it is clear that the consent order does not reflect the agreement of the parties, which was an agreement only as to the calculation of the amounts owing, on the assumption that the award clauses were applicable to the respondents. It was the intention of the parties to leave open to the appellant the right to argue that the award clauses did not apply to the respondents' employment. In view of this, we should expect that the parties will apply by consent to set aside the consent order of 20 December 2000, pursuant to O 35 r 7(2)(f) of the Federal Court Rules. That could be done without resiling from the agreement as to the calculation of amounts. The trial judge could be invited to make final orders on the basis that the calculation was agreed, leaving the appellant to appeal from those final orders if it thought fit. For these reasons, we do not regard the order of 20 December 2000 as having any relevance to our deliberations today. 10 For reasons similar to those we have given in Warramunda Village Inc v Pryde [2001] FCA 61, we are of the view that the declarations made by the trial judge on 20 October 2000, so far as they are relevant to this purported appeal, are not binding declarations of right, within the meaning of s 21 of the Federal Court of Australia Act 1976 (Cth). They do not declare the rights of the parties to the proceeding in which they were made. They reflect the fact that his Honour has taken a certain view of the construction of the award clauses, but do not in terms declare the proper construction of those clauses. His Honour appears to have gone beyond the agreement of the parties, to which he referred in his reasons for judgment, by purporting to make declarations that a breach or non-observance of each award clause had occurred within the range of dates specified. The declarations in this case are more specific than those with which the Court dealt in Warramunda Village, but we do not think that they are specific enough as to the nature of the breaches to be regarded as other than a convenient recording of the conclusions his Honour has reached in his reasons for judgment. 11 Similarly, we are of the view that it is not permissible to attempt to appeal from the order adjourning the matter to a further directions hearing. As we have said in Warramunda Village, at [13], such an appeal would amount to an appeal from reasons for judgment. 12 For these reasons, we are of the view that the purported notice of appeal, filed on 9 November 2000, must be set aside. It does not relate to any judgment from which an appeal lies. It is unnecessary for us to consider whether the judgment of 20 October 2000 was interlocutory. 13 We have been told by counsel that written submissions have already been made to the trial judge on the questions of penalty and interest, and that the parties have indicated to him that they do not wish to make further oral submissions. In the light of the agreement as to calculation, all that remains for his Honour to do is to deliver judgment and make orders disposing of the proceeding before him. Although, as we said in Warramunda Village, it is regrettable that the matter cannot proceed today, the order we make today will occasion little in the way of extra expense to the parties, assuming that the appellant chooses to exercise its right to appeal from a judgment finalising the proceeding. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court. Associate: Dated: 9 February 2001 Counsel for the Applicant: Mr G McKeown Solicitor for the Applicant: Michael P Rahilly Counsel for the Respondent: Ms M Richards Solicitor for the Respondent: Maurice Blackburn Cashman Date of Hearing: 9 February 2001 Date of Judgment: 9 February 2001