Ashby v Commonwealth of Australia (No 2)

The plaintiff, Ashby, brought proceedings against the Commonwealth of Australia, seeking relief for an alleged adverse action under the Fair Work Act 2009 (Cth). The dispute arose from the Commonwealth's decision to refuse to grant an act of grace payment under the Public Governance, Performance and Accountability Act 2013 (Cth), which was partly based on the plaintiff's decision to exercise or not exercise a workplace right. The case was before the Federal Court, which was tasked with determining whether the Commonwealth's decision was authorised and if the plaintiff had reasonable prospects of successfully prosecuting the balance of his proceeding.

The court had to decide if the Commonwealth's decision to deny the act of grace payment was authorised under section 342(3)(a) of the Fair Work Act 2009 (Cth) and whether the plaintiff had reasonable prospects of successfully prosecuting the balance of his proceeding. The court's reasoning focused on the authorisation of the decision and the plaintiff's prospects of success. The court found that the decision was authorised and that the plaintiff had no reasonable prospects of successfully prosecuting the balance of his proceeding.

Consequently, the court ordered that the balance of the proceeding be summarily dismissed, subject to the hearing and determination of any application for costs by the respondents. The respondents were required to advise the applicant and the chambers of Justice Bromwich by email whether there would be any application for costs, and if so, to furnish proposed procedural orders for the making, hearing and determination of any such application. The plaintiff was then required to respond to any proposed procedural orders within 7 days of receiving communication from the respondents. The entry of orders was dealt with in Rule 39.32 of the Federal Court Rules 2011.