FEDERAL COURT OF AUSTRALIA McCullough v Allan [2015] FCA 1101 Citation: McCullough v Allan [2015] FCA 1101 Appeal from: Application for extension of time and leave to appeal: Allan v Condamine Catchment Natural Resource Management Corporation Limited t/as Condamine Alliance [2015] FCCA 2632 Parties: PHILLIP JAMES MCCULLOUGH and KENNETH JOHN MURPHY v LOIS EVELYN ALLAN File number: QUD 834 of 2015 Judge: LOGAN J Date of judgment: 6 October 2015 Catchwords: INDUSTRIAL LAW – application for extension of time and related leave to appeal – where applicants named as respondents on accessorial basis in adverse action claim under the Fair Work Act (2009) (Cth) (Fair Work Act) – where applicants sought dismissal of proceeding against them on the basis they were not identified as parties to dispute in certificate issued by Fair Work Commission under s 368(3)(a) of the Fair Work Act – application refused by Federal Circuit Court – finding that accessorial liability arose through s 550(1) of the Fair Work Act – construction of Fair Work Act – proposed issue on appeal whether naming of applicants in s 368(3)(b) certificate a necessary pre-condition to jurisdiction of Federal Circuit Court to hear claim against them – where application for leave to appeal filed outside prescribed time because of error on the part of applicants' solicitors – uncompelling explanation for delay but proposed ground appeal arguable and raised issue going to jurisdiction and of pervasive general importance Held: extension of time within which to apply for leave to appeal and leave to appeal granted. Legislation: Fair Work Act 2009 (Cth) ss 365, 368, 369, 370, 371, 550 (1), (2) Fair Work Amendment Act 2013 (Cth) s 3, Sch 4A Federal Court of Australia Act (Cth) ss 24(1AA), 24(1AA)(b), 24(1)(d) Justice (Civil Litigation Reforms) Amendment Act 2009 (Cth) Cases cited: Cement Australia Pty Ltd v Australian Competition and Consumer Commission (2010) 187 FCR 261 cited Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Active Tree Services Pty Ltd (2011) 211 IR 250 cited Dain v Mark Group Australia Pty Ltd (2012) 224 IR 94 considered Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 applied Shea v TruEnergy Services Pty Ltd (No 1) (2012) 204 FCR 456 cited Date of hearing: 6 October 2015 Place: Brisbane Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 27 Counsel for the Applicants: Mr K Watson Solicitor for the Applicants: Clifford Gouldson Lawyers Counsel for the Respondent: Mr G Allan Mr M Healy IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION QUD 834 of 2015 BETWEEN: PHILLIP JAMES MCCULLOUGH First Applicant KENNETH JOHN MURPHY Second Applicant AND: LOIS EVELYN ALLAN Respondent JUDGE: LOGAN J DATE OF ORDER: 6 OCTOBER 2015 WHERE MADE: BRISBANE THE COURT ORDERS THAT: 1. The first and second applicants be granted an extension of time from 3 September 2015 to 8 September 2015 to file an application for leave to appeal from the judgment of the Federal Circuit Court of Australia, delivered in Brisbane on 20 August 2015 in proceeding number BRG 491 of 2015. 2. The first and second applicants be granted leave to appeal the judgment of the Federal Circuit Court delivered in Brisbane on 20 August 2015 in proceeding number BRG 491 of 2015. 3. The costs of the application for an extension of time for leave to appeal be reserved. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION QUD 834 of 2015 BETWEEN: PHILLIP JAMES MCCULLOUGH First Applicant KENNETH JOHN MURPHY Second Applicant AND: LOIS EVELYN ALLAN Respondent JUDGE: LOGAN J DATE: 6 OCTOBER 2015 PLACE: BRISBANE REASONS FOR JUDGMENT (REVISED FROM TRANSCRIPT) 1 On 20 August 2015, for reasons delivered ex tempore that day by the court (his Honour Judge Jarrett), the Federal Circuit Court ordered that: (1) Paragraphs 55B of the particulars, paragraph D of the particulars and (e) of the particulars be struck out. (2) The applicant have liberty to apply to file and serve an amended statement of claim not later than 4 pm on 3 September. 2 Those orders were made in a proceeding instituted by the present respondent, Ms Lois Evelyn Allan in the Federal Circuit Court against five named respondents: Condamine Catchment Natural Resource Management Corporation Limited trading as Condamine Alliance (Condamine Catchment), the first respondent below and Phillip James McCullough, Kenneth John Murphy, John Gordon Herbert and Rebecca Joy Pope, respectively, the second, third, fourth and fifth respondents in the court below. 3 In those proceedings, Ms Allan alleged that her employer, Condamine Catchment, had taken adverse action against her earlier this year in contravention of the Fair Work Act 2009 (Cth) (Fair Work Act) in one or the other or each of two ways; firstly, by the suspension of her employment and, secondly, by the termination, shortly thereafter, of that employment. 4 There were antecedent proceedings in the conciliation and arbitration commission, presently known as the Fair Work Commission (Industrial Commission). The only respondent named by Ms Allan in the Industrial Commission proceedings was her employer, Condamine Catchment. The proceedings in the Industrial Commission progressed to a stage where the Commission determined, pursuant to s 368 of the Fair Work Act, that it was satisfied that all reasonable attempts to resolve the dispute, other than by arbitration, had been or were likely to be unsuccessful. The Industrial Commission, as a consequence, issued to Ms Allan a certificate pursuant to s 368(3)(a) of the Fair Work Act. 5 None of the natural persons subsequently named as a respondent in the proceedings in the Federal Circuit Court is named in that certificate. Indeed, as mentioned, none of them was made a party at all at any stage in the proceedings in the Industrial Commission. 6 Those natural person respondents applied to the Federal Circuit Court for orders which sought the dismissal of the proceedings, either on the basis of an absence of jurisdiction or on the basis that no reasonable cause of action was pleaded and that they were so lacking in foundation that the proceedings as against them were, in effect, vexatious. 7 It is the former of these grounds of challenge below that forms the basis of an application for an extension of time within which to make an application for leave to appeal and a related application for leave to appeal which is before me today. The applicants on that application are two of the natural person respondents below, namely, Mr McCullough and Mr Murphy. 8 The conclusion reached by the learned primary judge, at paragraph [8] of his Honour's reasons, was that Ms Allan's claim as against, materially, Mr McCullough and Mr Murphy arose from the operation of s 550(1) of the Fair Work Act, a provision: … which is not found in Part 3-1 of Chapter 3 of the Fair Work Act or in Chapter 3 at all but is found in Chapter 5 of the Act. A dispute that is referred to in ss 371, 365 and 369 of the Fair Work Act is a dispute which arises under Chapter 3 of the Fair Work Act. It is not a reference to a dispute which might arise under any other provision of the Act. 9 The reference by his Honour to s 371 of the Fair Work Act is erroneous in that s 371 of the Fair Work Act had been repealed and not replaced by the Fair Work Amendment Act 2013 (Cth) (Act No 73 of 2013), s 3 and Sch 4A. Even so, the point sought to be agitated by Messrs McCullough and Murphy does not arise from this error of reference but is a more fundamental one. That point is that it is a pre-condition going to jurisdiction that an applicant bringing a proceeding in respect of an alleged contravention of a workplace right in the Federal Circuit Court (or this Court for that matter) must be in possession of a certificate in which each of the respondents in the judicial proceeding is named. 10 The submission which supports this particular construction of the Fair Work Act is that, read as a whole, the scheme of the Act is that a "dispute" is intended by Parliament first to be the subject of conciliation in the Industrial Commission, if possible to finality, with judicial proceedings against the parties to the dispute only being possible as a sequel, once the Commission has reached the satisfaction referred to in s 368(3) and issued a certificate accordingly. It would, so the submission goes, be antithetical to the scheme of the Fair Work Act in this regard if, notwithstanding a conciliation to finality against the named parties to the dispute in the Industrial Commission, it were possible for an aggrieved person nonetheless to invoke an exercise of judicial power against persons with claimed accessorial liability but who were never parties to the ordained conciliation process. 11 The accessorial provision concerned is that mentioned earlier, namely s 550(1) as further explained, in terms of who is a "person involved", by s 550(2). Section 550(1) provides that a person who is involved in a contravention of a civil remedy provision, and it is common ground that such provision underpins the cause of action in the Federal Circuit Court, is taken to have contravened that provision. The point for Messrs McCullough and Murphy is that the very operation of s 550(1) means that persons involved in a contravention are brought within the statutory scheme, because they are taken to have contravened the scheme of which s 368 forms an integral part. 12 The point is not one free from authority. In Dain v Mark Group Australia Pty Ltd (2012) 224 IR 94, Federal Magistrate Raphael (as his Honour then was) concluded that a proceeding of a like kind to the present, instituted against respondents not named in a certificate under the then s 369, was incompetent, because the position of that certificate was a precondition for jurisdiction. The present equivalent of the then s 369 is s 368 of the Fair Work Act. 13 In reaching his conclusion, Federal Magistrate Raphael adopted and applied reasoning in an earlier Federal Magistrates Court case, Communications Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Active Tree Services Pty Ltd (2011) 211 IR 250 (CEPU v Active Tree Services) (Federal Magistrate Coker), along with other later authorities in the Federal Magistrates Court, to which Federal Magistrate Raphael referred. 14 CEPU v Active Tree Services concerned a different point to the present namely, whether the court could entertain, in the exercise of judicial power, matters which were not matters dealt with in the conciliation proceeding in the Industrial Commission. It was on that point that Dodds-Streeton J, in Shea v TruEnergy Services Pty Ltd (No 1) (2012) 204 FCR 456, chose not to follow the reasoning in CEPU v Active Tree Services. 15 In resisting an extension of time and grant of leave to appeal, Ms Allan made a number of points in relation to the construction and effect of the Fair Work Act for which Messrs McCullough and Murphy contended. It was acknowledged that the reference by the learned Federal Circuit Court judge in the proceeding below to s 371 was erroneous. The submission was that the substance of the reasoning as to the operation and effect of s 550 of the Fair Work Act was nonetheless correct. Further and in any event, it was submitted that the requisite condition precedent now found in s 370 of the Fair Work Act was met, in that there was a certificate, albeit one not naming materially Messrs McCullough or Murphy, but that the proceeding was one "in relation to" the dispute nonetheless. That would afford a meaning to "in relation to" which preserved, notwithstanding the absence of particular persons in the conciliation process, an ability nonetheless to pursue them in judicial proceedings. 16 It is not necessary in this type of proceeding for me to reach any concluded view whatsoever in relation to the point sought to be agitated, unless that point is so bereft of merit as not reasonably to be arguable. I am not persuaded that the point has such an absence of merit as not reasonably to be arguable. In other words, I am, in terms of the root authority in relation to the granting of leave to appeal, Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 (Décor v Dart), satisfied that the decision below is attended by sufficient doubt to warrant its being reconsidered on appeal. 17 There is though a further basis upon which it is put that, even if the point is arguable, this particular limb of the considerations mentioned in Décor v Dart is nonetheless not met. That is because it is put that the effect of s 24(1AA) of the Federal Court of Australia Act 1976 (Cth) (Federal Court Act) is such that there is no apparent jurisdiction conferred in any event in respect of the orders made. Section 24(1AA)(b) provides materially: An appeal must not be brought from a judgment referred to in paragraph 1(d) if the judgment is … (b) a decision to do, or not to do, any of the following: … (i) join or remove a party. 18 The orders made below were, in terms of s 24(1)(d) of the Federal Court Act, a judgment of the Federal Circuit Court exercising original jurisdiction under the Fair Work Act. They were not, in terms, orders which declined to remove a party. Ms Allan's submission, and, for that matter, the basis of the application brought by Messrs McCullough and Murphy was that it was implicit in the orders which the Federal Circuit Court did make that the Court had dismissed the interlocutory application brought by Messrs McCullough and Murphy, insofar as they sought the dismissal of the proceedings against them. 19 It is, as became apparent in the course of submissions today, an order of dismissal of the proceedings against them for which Messrs McCullough and Murphy ultimately contend. In other words, their point is that the orders which his Honour made should not have been made but, rather, his Honour should have dismissed the proceedings against them. That would not be an order to remove them as parties as opposed to their remaining parties to the proceedings but parties in respect of whom the proceedings were struck out. 20 In Cement Australia Pty Ltd v Australian Competition and Consumer Commission (2010) 187 FCR 261 at [18], the Full Court set out a material extract from the explanatory memorandum in respect of the bill which became the Justice (Civil Litigation Reforms) Amendment Act 2009 (Cth), the Act which amended the Federal Court Act so as to insert s 24(1AA) in its original form. I regard this as a reference with approval to the statement of the effect of the provision. In short, the subject of s 24(1AA)(b) is in respect of the enumerated matters to remove from an exercise of appellate jurisdiction what is aptly described as "minor procedural decisions". An order which in effect by its provision for amendment of pleadings implicitly dismisses an application that proceedings as against named respondents be struck out for want of jurisdiction is not in my view within the withdrawal appellate jurisdiction, set out in s 24(1AA) of the Federal Court Act. 21 Here again, too, is it not necessary to reach a concluded view on that subject, only that it is not so compellingly clear that the effect of s 24(1AA) is to deny appellate jurisdiction such that the application by Messrs McCullough and Murphy is foredoomed to failure. In other words, though I have expressed a view as to the operation of s 24(1AA), that is not a concluded view, and it would remain open to Ms Allan if so advised to press the point before the Court upon a consequential appeal. 22 I add that, if the effect of s 24(1AA) is as Ms Allan contends, that would leave to Messrs McCullough and Murphy only the option of seeking the directing of a constitutional writ of prohibition against the Federal Circuit Court, with Ms Allan as an additional respondent. It seems an unlikely construction of a provision directed to removing appellate jurisdiction in respect of minor procedural decisions to put a person such as Messrs McCullough and Murphy in such a position. Here, again, though, I emphasise that I do not have a concluded view. 23 It must be said that the application for leave was not brought within the required 14 day period. This was because of a misunderstanding on the part of the solicitors for Messrs McCullough and Murphy as to the relevant period prescribed by the Federal Court Rules 2011 (Cth). It was thought that that period was 21 days. 24 An explanation of that kind is not the most compelling of explanations, but that absence of compellingness is tempered by a point which, if good, would not go away. In other words, if the Federal Circuit Court has no jurisdiction a refusal of an extension of time and leave would not mean that it has jurisdiction. This answers a question which can often arise in respect of extension of time applications, which is prejudice to a respondent to an extension application. 25 Parties to proceedings are entitled to expect that time limits prima facie prescribed will be observed and to order their affairs accordingly. Here though, the lapse of time in instituting a proceeding for an extension of time and related grant of leave is short and the point is a fundamental one. Further, the point concerned is one of pervasive general importance in respect of an important and lively area of the jurisdiction of the Federal Circuit Court in particular. 26 The considerations mentioned in Décor v Dart are not to be viewed in isolation. They interplay sometimes, and the present may well be an example. An explanation in respect of delay, even if not terribly compelling, can nonetheless provide a basis for a grant of leave where the point concerned has the qualities which I have mentioned. 27 The ground of appeal which Messrs McCullough and Murphy seek to raise is that: His Honour erred in law in construing the relevant provisions of the Fair Work Act 2009 such that they did not require the naming of the first and second appellants in the certificate issued by the Fair Work Commission pursuant to s. 368 of that Act and which certificate was attached to the application filed by the respondent in matter number BRG 491/2015 instituted by her in the Federal Circuit Court of Australia. That ground does not, with respect, and as has become apparent in the course of submissions, completely expose the point which Messrs McCullough and Murphy seek to agitate. To do that would require an explicit reference to a consequential error in concluding that the Federal Circuit Court had jurisdiction, such that the orders under appeal ought to be made. Subject to that particular qualification, there will be an extension of time within which to bring the application for leave and a related grant of leave to appeal. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate: Dated: 15 October 2015