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Federal Court judgments

Federal Court judgments

By Dan Star QC

Courts Judgment Native Title Practice & Procedure 

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Constitutional law/Defamation/Practice and Procedure

Trial by jury in the Federal Court?

Section 39 of the Federal Court of Australia Act 1976 (Cth) (Federal Court Act) provides that civil trials are to be without a jury “unless the Court or a judge otherwise orders”. Section 40 of the Federal Court Act is a broad discretionary power of the Court in civil proceedings to direct trial of issues with a jury.

In Wing v Fairfax Media Publications Pty Ltd [2017] FCAFC 191 (27 Novembr 2017), the Full Court determined an interlocutory application seeking an order pursuant to s40 of the Federal Court Act that, to the extent permitted by law, the proceeding be heard by a jury. This was in relation to the applicant’s claim for damages for defamation under the Defamation Act 2005 (NSW) (the NSW Defamation Act). The Court had jurisdiction because the applicant alleges that the matter complained of was published in (among other places) the Australian Capital Territory: Crosby and Another v Kelly (2012) 203 FCR 451.

There was a constitutional law issue before the Full Court by reason of an alleged inconsistency between ss21 and 22 of the NSW Defamation Act and ss39 and 40 of the Federal Court Act for the purposes of s109 of the Constitution (Cth). The parties agreed (as did the Court) that ss21 and 22 of the NSW Defamation Act were inconsistent with ss39 and 40 of the Federal Court Act within s109 of the Constitution (at [21] and [23], Allsop CJ and Besanko J). The point on which the parties disagreed was whether the Court in exercising the discretion under s40 of the Federal Court Act may have regard to ss21 and 22 of the NSW Defamation Act. The Full Court held ss21 and 22 of the NSW Defamation Act did not apply to the proceeding and the sections were not relevant to the exercise of the discretion in s40 of the Federal Court Act (at [30]-[34], Allsop CJ and Besanko J, and [49], Rares J).

The Full Court also dismissed the respondents’ interlocutory application under s40 of the Federal Court Act seeking an order that the proceeding be heard by a jury (at [46], Allsop CJ and Besanko J, and [66], Rares J). In doing so, the Full Court considered the authorities and principles relevant to exercising the discretion to order a trial by jury in the Federal Court (at [36]-[44], Allsop CJ and Besanko J, and [51]-[60], Rares J).

Justice Rares noted at [59] that “in the 40 years of the existence of ss39 and 40 in the Federal Court Act, Ra 183 FCR 148 is the only occasion on which a judge has ordered a jury trial”:. Ra v Nationwide News Pty Ltd (2009) 182 FCR 148 was in fact an decision of Rares J. In Wing, Rares J agreed Allsop CJ and Besanko J with that his view of the certain factors in Ra was erroneous (at [40]-[42], Allsop CJ and Besanko J, and [49]-[50] Rares J).

Equity/Native Title

Fiduciary duties of persons constituting an applicant for bringing a native title determination application

In Gebadi v Woosup (No 2) [2017] FCA 1467 (7 December 2017) the Court considered fiduciary obligations that arise in equity in the context of statutory arrangements under the Native Title Act 1993 (Cth) (the Act).

The applicants were persons who brought proceedings in a representative capacity on behalf of the Ankamuthi people. The respondents (Mr Woosup and Ms Tamwoy) were formerly two of 13 persons authorised by the Ankamuthi native title claim group to prosecute the native title determination application under s61 of the Act.

The main issues in the case were summarised by Greenwood J at [52]: “. .. the central contention in these proceedings is that Mr Woosup and Ms Tamwoy owed fiduciary obligations to the Ankamuthi native title claim group when acting as applicant and that they failed to discharge those obligations. In the case of Mr Woosup, it is said that he has taken for his own benefit, benefits payable under the Gulf agreement for and on behalf of the Ankamuthi native title claim group. The first question is whether Mr Woosup and/or Ms Tamwoy owe fiduciary obligations to the Ankamuthi native title claim group, that is to say, are they in a fiduciary relationship with that group? The second question is, if fiduciary obligations are owed by either of them to the claim group, what are the obligations so owed? The third question is, have either of them failed to discharge those obligations? . . .”

As to whether and how fiduciary obligations arose, Greenwood J held at [96] that the applicable principles “. . . are the essential principles which determine whether a person has accepted or assumed fiduciary obligations to another. The context in the case of Mr Woosup and Ms Tamwoy, in accepting and undertaking to act as persons constituting the applicant, is the relevant context but the principles to be applied in determining whether they owed fiduciary obligations to the native title claim group are the same principles determined in our jurisprudence for deciding whether a person has, in all the circumstances, assumed particular fiduciary obligations to another”. At [97]-[98], Greenwood J relied on the extensive discussion of principles on whether particular parties owed fiduciary obligations to another from his judgment in the Full Court (with whom White J agreed) in Oliver Hume South East Queensland Pty Ltd v Investa Residential Group Pty Ltd [2017] FCAFC 141 at [236]-[269].

The Court held that Mr Woosup and Ms Tamwoy owed fiduciary obligations to members of the Ankamuthi native title claim group (at [101]-[104]) and that they had breached those obligations (at [154]). The Court granted declaratory relief and also made orders for the respondents to pay monies into court of the financial benefits they derived in breach of their fiduciary obligations (at [163]-[169]).

Industrial law

Freedom of association - contraventions of ss346, 348 and 349 of the Fair Work Act 2009 (Cth)

In Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Quest Apartments Case) [2017] FCA 1398 (30 Novembr 2017) the Court found contraventions of ss349, 346 and 348 of the Fair Work Act 2009 (Cth) (FW Act) by the respondent union and Mr Farrugia, the union’s representative and a shop steward. The contraventions arose from threats made and action taken by Mr Farrugia to prevent a worker from working on a construction site because he did not pay membership fees to the CFMEU.

Following a contested trial, the Court found that the contraventions on 17 March 2014 by the shop steward were:

(a) a contravention of s349 of the FW Act by knowingly making a false representation to two workers that each was obliged to engage in industrial activity by paying fees to the CFMEU in order to work on the site (at [53] and [58])

(b) a contravention of s348 of the FW Act by threatening to take action against a worker, by threatening to prevent him from working on the site if he did not pay fees to the CFMEU, with intent to coerce him to engage in industrial activity by paying the fees to the CFMEU (at [72])

(c) a contravention of s346(b) of the FW Act by taking adverse action against a worker, that is, prejudicing him in his employment or in relation to his performance of a contract or services, by threatening to prevent him from working on the site, because he had engaged in industrial activity by not paying the fees to the CFMEU (at [87] and [89]-[90]).

There were also contraventions of s348 (at [74]-[75]) and s346(b) (at [87]-[90]) of the FW Act by the shop steward on 31 March 2014. The contravening conduct on 31 March 2014 was constituted by the shop steward taking action against the worker. The union was found to be liable for each of the contraventions by the shop steward pursuant to ss363 and 793 of the FW Act (at [92]-[93]). The Court will have a further hearing on 5 February 2018 on final relief (specifically declarations and penalties).

 

Dan Star QC is a barrister at the Victorian Bar, ph 9225 8757 or email danstar@vicbar.com.au. The full version of these judgments can be found at www.austlii.edu.au. Numbers in square brackets refer to a paragraph number in the judgment.


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