FEDERAL COURT OF AUSTRALIA Queensland Marine and General Insurance Management Pty Ltd v Fair Work Ombudsman [2011] FCA 852 Citation: Queensland Marine and General Insurance Management Pty Ltd v Fair Work Ombudsman [2011] FCA 852 Appeal from: Application for extension of time: Workplace Ombudsman v QMGIM Pty Ltd & Ors [2010] FMCA 64 Application for extension of time: Workplace Ombudsman v Qld Marine Pty Ltd & Ors [2010] FMCA 441 Application for extension of time: Workplace Ombudsman v QMGIM Pty Ltd & Ors [2011] FMCA 261 Parties: QUEENSLAND MARINE AND GENERAL INSURANCE MANAGEMENT PTY LTD ACN 010 887 644, PETER RALPH MARTINUZZI and QUEENSLAND MARINE AND GENERAL INSURANCE BROKERS PTY LTD v FAIR WORK OMBUDSMAN File number: QUD 83 of 2011 Judge: LOGAN J Date of judgment: 25 July 2011 Catchwords: PRACTICE AND PROCEDURE – leave to file and serve a notice of appeal out of time – whether special reasons shown by applicants – where applicant's solicitor filed a notice of appeal within time but it was rejected by the registry – where notice of appeal was in respect of a judgment of February 2010, an interlocutory judgment of 21 July 2010 on a matter of procedure and a final judgment of 15 March 2011 – no leave required to include in appeal against final judgment a ground challenging the earlier procedural order – special reasons shown by applicants – extension of time within which to appeal, where necessary, granted Legislation: Fair Work Act 2009 (Cth) Workplace Relations Act 1996 (Cth) Cases cited: Crowley v Glissan (1905) 2 CLR 402 followed Jess v Scott (1986) 12 FCR 187 followed Perry v Comcare [2006] FCA 481 considered Workplace Ombudsman v Queensland Marine and General Insurance Management Pty Ltd and Ors (2010) 245 FLR 369 cited Date of hearing: 25 July 2011 Place: Brisbane Division: FAIR WORK DIVISION Category: Catchwords Number of paragraphs: 28 Counsel for the Applicants: Mr M Sumner-Potts Solicitor for the Applicants: Myles Thompson Counsel for the Respondent: Mr C Murdoch Solicitor for the Respondent: McCullough Robertson IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY FAIR WORK DIVISION QUD 83 of 2011 BETWEEN: QUEENSLAND MARINE AND GENERAL INSURANCE MANAGEMENT PTY LTD ACN 010 887 644 First Applicant PETER RALPH MARTINUZZI Second Applicant QUEENSLAND MARINE AND GENERAL INSURANCE BROKERS PTY LTD Third Applicant AND: FAIR WORK OMBUDSMAN Respondent JUDGE: LOGAN J DATE OF ORDER: 25 JULY 2011 WHERE MADE: BRISBANE THE COURT ORDERS THAT: 1. Queensland Marine and General Insurance Management Pty Ltd, Mr Peter Ralph Martinuzzi and Queensland Marine and General Insurance Brokers Pty Ltd respectively are granted an extension of time within which to appeal against so much of the orders of the Federal Magistrates Court of 4 February 2010 as declared contraventions or involvement on their respective parts. 2. An extension of time is further granted to each of the persons in order 1 to appeal against the orders of the Federal Magistrates Court of 15 March 2011. 3. Insofar as Queensland Marine and General Insurance Management Brokers Pty Ltd and Mr Peter Ralph Martinuzzi are concerned, the need for the filing and service of an application seeking an extension of time within which to appeal in respect of those orders of the Federal Magistrates Court is dispensed with. The oral application made today by those parties by their counsel is sufficient and is also sufficient service of such an application. 4. The notice of appeal is to be filed by the applicants not later than 5 August 2011 and served forthwith thereafter. 5. The need for the filing and service of a notice of motion, by the applicants, seeking a stay of the orders of the Federal Magistrates Court of 15 March 2011 is dispensed with. The oral application made today by the applicants by their counsel is sufficient and is also sufficient service of such an application. 6. The application for a stay of the orders of the Federal Magistrates Court of 15 March 2011 is adjourned to a date to be fixed. 7. Liberty to apply is granted in respect of the application referred to in order 6. 8. The costs of and incidental to the application for an extension of time within which to appeal by each of the applicants be the respondent's costs in the appeal. 9. The name of the respondent be amended from Workplace Ombudsman to Fair Work Ombudsman. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY FAIR WORK DIVISION QUD 83 of 2011 BETWEEN: QUEENSLAND MARINE AND GENERAL INSURANCE MANAGEMENT PTY LTD ACN 010 887 644 First Applicant PETER RALPH MARTINUZZI Second Applicant QUEENSLAND MARINE AND GENERAL INSURANCE BROKERS PTY LTD Third Applicant AND: FAIR WORK OMBUDSMAN Respondent JUDGE: LOGAN J DATE: 25 JULY 2011 PLACE: BRISBANE REASONS FOR JUDGMENT 1 A Commonwealth Officer formerly known as the Workplace Ombudsman and now known as the Fair Work Ombudsman instituted proceedings for the imposition of pecuniary penalties on Queensland Marine and General Insurance Management Pty Ltd, Mr Peter Martinuzzi, and Queensland Marine and General Insurance Brokers Pty Ltd respectively. Those proceedings were instituted in the Federal Magistrates Court. The pecuniary penalties were sought under the then Workplace Relations Act 1996 (Cth) (Workplace Relations Act) and rose from alleged breaches of provisions in the Insurance Industry Award 1998 in its application, so it was alleged, to two employees, Mr Michael Lee and Mr David Stone. 2 The proceedings in the Federal Magistrates Court occurred in a number of stages. In the first stage, the court as constituted by Wilson FM concluded on 4 February 2010 that the first respondent below (Queensland Marine and General Insurance Management Pty Ltd) had breached the award mentioned and made declarations accordingly. The court further declared that the second and third respondents below, ie Mr Martinuzzi and Queensland Marine and General Insurance Brokers Pty Ltd, were involved in each contravention. The court then made procedural orders directed to the determination of penalty. The orders envisaged, that determination was to occur before the court as constituted by Burnett FM. The reason for that would seem to have been the impending coming into effect of Wilson FM's resignation from that court. 3 In any event, it fell to Burnett FM to determine whether or not the proceedings should be started afresh, that point having been raised before him. His Honour concluded that he could constitute the court for the purpose of determining penalty: see Workplace Ombudsman v Queensland Marine and General Insurance Management Pty Ltd and Ors (2010) 245 FLR 369. The only order which his Honour made on 21 July 2010, the date upon which he published his reasons for judgment in which he concluded that he was empowered to proceed to hear and determine the matter of penalty, was an order that the matter be listed at 9.30am on 4 August 2010 for further directions. 4 It is axiomatic that any appeal by leave or otherwise lies against the formal judgment, order or direction of a court, not the reasons for judgment for that formal judgment, order or direction. Thus, the only order made on 21 July 2010 was procedural, ie, an adjournment order. 5 I should record that the parties had, between them, agreed as far back as February last year that there would be no point taken in relation to the time within which any appeal was to be filed against the declaration of breaches or involvement in breaches. That was with a view to there being but one appeal which would follow the determination of penalty. 6 In the result, penalty was not determined in the Federal Magistrates Court until 15 March 2011. For reasons which were given that day, orders were made imposing penalty and also ordering the payment of particular amounts of money to Messrs Lee and Stone. 7 Thereafter, an unusual and unfortunate chain of events unfolded. 8 Queensland Marine and General Insurance Management Pty Ltd, by its solicitor, sought to file by registered post in the Queensland District Registry a notice of appeal. The notice of appeal on its face purports to be one by that company alone from the whole of the judgment of the Federal Magistrates Court given on 15 March 2011 at Brisbane. Also on its face it seeks that the notice be served on Mr Martinuzzi and Queensland Marine and General Insurance Brokers Pty Ltd, ie, the second and third respondents below, as well as on the solicitors for the Fair Work Ombudsman. 9 When one looks to the grounds of appeal, one finds that in grounds 1, 4, 8, 9, 10 and 12 there is reference to respondents in the plural. Further, an analysis of the notice of appeal grounds discloses an evident endeavour to challenge the conclusion that the court below could be constituted by a different federal magistrate as between the determination of liability for contravention and the determination of penalty and ancillary orders. Yet further, it is evident that there is a desire on the part, apparently, of each respondent below to challenge the finding of a contravention or an involvement in a contravention. 10 I was informed by counsel for Queensland Marine and General Insurance Management Pty Ltd, who also in the course of proceedings came to appear for the other respondents below, that there was an apprehension on the part of those advising each of the respondents below that, for each of them to appeal, an aggregate filing fee would have been necessary. That, it was said, would have constituted a hardship. 11 It is certainly, with all respect, a very odd notice of appeal in the sense that it seeks, apparently by a back door, to bring in as parties to the appeal persons who are not those who, on the face of the notice, seek to challenge the outcome below but nonetheless were parties below. The correct way of proceeding would have been for each of the respondents below to have sought to appeal the orders made below. Perhaps for that reason, and also perhaps because of the evident reference in the grounds to earlier orders, or the basis for earlier orders made by the Federal Magistrates Court, the notice of appeal was not accepted for filing in the registry. 12 It seems that the notice was sent off from Cairns by registered post on 1 April and arrived in the registry in Brisbane on 2 April. There, though, it seems to have not come to the attention of an appropriate registry officer until 4 April. No later than 6 April 2011, those acting for the Fair Work Ombudsman were aware of the desire of each of the respondents to challenge on the grounds specified in the notice, the various orders of the Federal Magistrates Court. 13 It has not, for one reason or another, including the desirability of at least attempting to have a hearing by video link, been possible to hear the application for an extension of time until today. Even then, for reasons which are most unfortunate, given the importance of Cairns as a regional centre in this State, it has not been possible to conduct the hearing as envisaged by video link. Rather, it has been conducted by audio link only. The counsel for the parties are to be commended for the way in which they have cooperated in the interests of justice in the conduct of that hearing, in the extremis of no video and only audio link being available. 14 The long and short of the case is that, so far as the orders of 4 February 2010 declaring contraventions or involvement in contraventions are concerned, there is no dispute between the parties that time ought to be extended, having regard to an agreement earlier reached as to the convenient way of dealing with any question touching on liability as well as penalty. That then explains why it is that there ought to be an extension of time within which to appeal against the judgment of 4 February 2010, insofar as declarations of contravention are concerned. 15 There is, in my opinion, no need for a grant of an extension of time within which to appeal or leave to appeal in respect of the order of 21 July 2010. That order was not just interlocutory but wholly procedural. It had no quality of finality about it. That being so, on an appeal from a final judgment an appellant, without obtaining leave, is entitled to question that interlocutory order, that being a step in the procedure leading up to the final judgement: see Crowley v Glissan (1905) 2 CLR 402. 16 However that may be, neither the judgment of 4 February 2010 nor that of 21 July 2010 is referred to in the draft notice of appeal. There ought, if nothing else, to be a reference to the order which declared contraventions on 4 February 2010. The notice of appeal in draft is deficient in this regard. 17 In the course of submissions this afternoon, Mr Sumner-Potts on behalf of Queensland Marine and General Insurance Management Pty Ltd came to make an application, and for a related dispensation respect of the filing of any notice of motion in that regard for an extension of time within which Mr Martinuzzi and Queensland Marine and General Insurance Brokers Pty Ltd might appeal against the orders of 4 February 2010, 21 July 2010 and 15 March 2011. There are, in my opinion, inferences open on the face of the draft notice of appeal that it was always desired that they be parties to the appeal. I am also prepared to accept that there was, albeit wrong headedly with respect, a view that for them to be appellant parties might entail an additional filing fee. 18 It seems to me that there is a community of interest in the applicants, such that, insofar as the registrar has any discretion in that regard, there ought to be but one filing fee. Indeed, it may be that only one fee will be applicable in any event. That though is a matter for the registrar in the first instance. 19 The position is then that there has not been filed, as there ought to have been, by 5 April 2011 (the last date for filing) a notice of appeal in respect of the orders made on 15 March 2011. Nor did the notice which was sought to be filed have with it a grant of leave insofar as the earlier order of 4 February 2010 was concerned. All of this needs regularising. 20 The principles to be canvassed in relation to that are to be found in Jess v Scott (1986) 12 FCR 187. 21 When I say, "needs regularising", here it seems to me that the present applicants have not rested on their rights and have used their best endeavours to challenge the judgments below. That the notice of appeal was not accepted for filing is in part the fault of them and their advisors and also in part, it must be said, the result of a misunderstanding in the registry in relation to so much of the grounds as sought to challenge the jurisdictional conclusions of the court below. It was perfectly proper to incorporate in the grounds of appeal a jurisdictional challenge. No grant of leave was necessary, they were able to be included in an appeal against the orders made on 15 March 2011 if the notice were filed in time. 22 There is a question of prejudice which attends the case, in that orders were made below for the payment of money to the workers concerned. As against that, those orders also provide for the accruing of interest and that interest will continue to accrue. 23 This is not a case where there is mere inadvertence on the part of a solicitor in relation to an appeal period: compare Perry v Comcare [2006] FCA 481. Rather, it is plain that the solicitor concerned, for the respondents below, expressly turned his attention to the appeal period and did seek to file within time and for that matter caused a notice of appeal to be lodged within time. It is just that a combination of errors, both within the registry and on the part of the solicitor intruded in relation to the form in which that notice was lodged. It would not, in my opinion, do justice as between the parties below and for that matter those that have the benefit of the payment orders, for there not to be an extension. 24 There then remains a question of costs. In the ordinary course of events, proceedings under the Fair Work Act 2009 (Cth) in the Fair Work Division of the Court do not entail an order for costs being made against a party. That was also so under the Workplace Relations Act, in an earlier time. The proviso to that is not materially different as between the two eras. One basis upon which the proviso operates is where there has been an unreasonable visiting of costs on another party. 25 Here, even though there is an evident error in part in the registry, it was always the case, particularly having regard to the agreement that existed, that there was strictly a need for an extension of time to challenge anything of the orders made on 4 February 2010. The notice of appeal was always deficient in that regard. Further there was, as I have already indicated, something of a wrong headed endeavour to circumvent an apprehended incidence of filing fees by the lodgement of the notice of appeal in the form in which it originally took. The costs of today have, in my view, in the main been visited on the Fair Work Ombudsman by the conduct of each of the applicants. The further order that I make then in respect of costs is that the costs of and incidental to the application for an extension of time within which to appeal by each of the applicants be the respondent's, ie, the Fair Work Ombudsman's, costs in the appeal. 26 There was also made orally today an application for a stay of the operation of the orders made on 15 March 2011. In terms of sequence, seeking a stay anticipates a grant of an extension of time within which to appeal. Nonetheless, it ought, in my opinion, to have been sought at the same time and on the basis that if an extension were granted that there be a stay. As it transpired, that was not done formally but rather, informally, today. In the course of that subject being explored, there was an oral application made in the end on behalf of each of the applicants for a stay of the operation of the judgments of 15 March 2011. There was no material filed in support of that. In the absence of consent, and there was none, the application is one which ought to be determined on material. 27 The orders that I make in relation to the stay aspect of the case are that I dispense with the filing and service of a notice of motion seeking a stay of the orders of the Federal Magistrate's Court of 15 March 2011. In lieu thereof, I deem the oral application made today by the applicants by their counsel as sufficient and sufficient service of such an application. I adjourn the application for a stay to a date to be fixed. I grant liberty to apply in respect of that application. 28 There will be orders in the terms that I have indicated. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate: Dated: 28 July 2011