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Australian Postal Corporation v Gorman

Australian Postal Corporation v Gorman

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FEDERAL COURT OF AUSTRALIA
Australian Postal Corporation v Gorman [2011] FCA 975

Citation: Australian Postal Corporation v Gorman [2011] FCA 975

Appeal from: Gorman v Australia Post [2010] FWAFB 9413

Parties: AUSTRALIAN POSTAL CORPORATION v BRENT GORMAN and FAIR WORK AUSTRALIA

File number: SAD 13 of 2011

Judge: BESANKO J

Date of judgment: 25 August 2011

Catchwords:
ADMINISTRATIVE LAW — application by employer for constitutional writs directed to Fair Work Australia —first respondent’s employment was terminated by applicant and respondent filed application with Fair Work Australia seeking remedy for unfair dismissal — at arbitration parties informed Fair Work Australia they had reached settlement agreement — first respondent did not sign deed of settlement and sought to continue with application — where applicant sought dismissal of application on basis that its continued pursuit was frivolous and vexatious within s 587 of the Fair Work Act 2009 (Cth) (‘the Act’) — Senior Deputy President found parties had reached agreement and dismissed respondent’s application pursuant to s 587 — appeal to Full Bench of Fair Work Australia upheld — whether Full Bench had made jurisdictional error

INDUSTRIAL LAW — construction of s 587 of the Act — whether Full Bench erred in finding that fact of an accord and satisfaction could not be raised at interlocutory stage — application of test for leave to appeal under s 400 of the Act including ‘significant error of fact’ — whether decision pursuant to s 587 in unfair dismissal application is a decision under Chapter 3 Part 3-2 of the Act to which s 400 test applies

HELD: The Full Bench made jurisdictional errors in its construction of s 587 and its failure to apply the test in s 400 of the Act and writs of certiorari and mandamus should issue to Fair Work Australia. Application for a declaration that the decision of the Senior Deputy President was correct refused.

Legislation: Fair Work Act 2009 (Cth) ss 381, 390, 400, 575, 576 , 577, 578, 587, 604, 607, 612, Ch 3, Pt 3-2, Div 3, Ch 5, Pt 5-1, Div 4
Federal Court of Australia Act 1976 (Cth) s 21
Judiciary Act 1903 (Cth) s 39B
Workplace Relations Act 1996 (Cth) s 111(1)(t)

Cases cited:
Baulkham Hills Private Hospital Pty Ltd v G R Securities Pty Ltd (1986) 40 NSWLR 622, cited
Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission (2000) 203 CLR 194, cited
Coal and Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78, cited
Craigv South Australia (1995) 184 CLR 163, cited
Gorman v Australia Post [2010] FWA 7423, cited
Gorman v Australia Post [2010] FWAFB 9413, cited
Kirk v Industrial Court of New South Wales (2010) 239 CLR 531, cited
McDermott v Black (1940) 63 CLR 161, cited
Masters v Cameron (1954) 91 CLR 353, cited
Zoiti-Licastro v Australian Taxation Office (2006) 154 IR 1, cited

Seddon N and Ellinghaus M, Cheshire and Fifoot’s Law of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] FCA 975
Decision Date: 25 August 2011

CaseChat Overview and Summary

In the case of Australian Postal Corporation v Gorman, the plaintiff, Australian Postal Corporation, sought constitutional writs directed to Fair Work Australia regarding a dispute involving the unfair dismissal of an employee, Gorman. The employee had filed an application with Fair Work Australia seeking a remedy for his dismissal. Despite the parties informing Fair Work Australia that they had reached a settlement agreement, Gorman did not sign the deed of settlement and sought to continue with his application. The employer argued that the continued pursuit of the application was frivolous and vexatious, invoking section 587 of the Fair Work Act 2009 (Cth). The Senior Deputy President of Fair Work Australia found that an agreement had been reached and dismissed the employee's application under section 587. The decision was appealed to the Full Bench of Fair Work Australia, which upheld the appeal.

The legal issues that arose in this case centred around the interpretation of section 587 of the Fair Work Act 2009 and whether the Full Bench had erred in finding that the fact of an accord and satisfaction could not be raised at the interlocutory stage. The case also examined whether the decision under section 587 in an unfair dismissal application is a decision under Chapter 3 Part 3-2 of the Act, to which the test for leave to appeal under section 400 of the Act applies. The court had to determine whether the Full Bench made a jurisdictional error in its construction of section 587 and in its failure to apply the test in section 400 of the Act.

The court held that the Full Bench made jurisdictional errors in its construction of section 587 and its failure to apply the test in section 400 of the Act. The Full Bench's decision was therefore quashed, and the matter was remitted back to Fair Work Australia. The court found that the Full Bench should have considered whether the accord and satisfaction argument could be raised at the interlocutory stage and applied the test for leave to appeal under section 400 of the Act. The court concluded that writs of certiorari and mandamus should issue to Fair Work Australia, directing it to hear and determine the employee's application for permission to appeal and, if appropriate, the appeal itself.

The court refused to make a declaration under section 21 of the Federal Court of Australia Act 1976 (Cth) that the decision of the Senior Deputy President was correct, stating that this was a matter to be determined in the manner provided for in the Act. The court made orders that a writ of certiorari issue quashing the decision made by Fair Work Australia on 16 December 2010 and that a writ of mandamus issue directing Fair Work Australia to hear and determine according to law the employee's application for permission to appeal, and, if appropriate, appeal. The court will hear the parties as to costs and any other orders.

Orders

Orders of the court

1. A writ of certiorari issue quashing the decision made by Fair Work Australia on 16 December 2010.

2. A writ of mandamus issue directing Fair Work Australia to hear and determine according to law the first respondent’s application for permission to appeal, and, if appropriate, appeal.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The applicant sought a declaration under s 21 of the Federal Court of Australia Act 1976 (Cth) that the decision of the Senior Deputy President is correct. That is not an order which I can make. That is a matter to be determined in the manner provided for in the Act.CONCLUSIONS For the reasons I have given I will make orders that a writ of certiorari issue quashing the decision of Fair Work Australia made on 16 December 2010 and that a writ of mandamus issue directing Fair Work Australia to hear and determine according to law the first respondent’s application for permission to appeal and, if appropriate, appeal. I will hear the parties as to costs and any other orders.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citation:		Australian Postal Corporation v Gorman [2011] FCA 975
Appeal from:		Gorman v Australia Post [2010] FWAFB 9413
Parties:		AUSTRALIAN POSTAL CORPORATION v BRENT GORMAN and FAIR WORK AUSTRALIA
File number:		SAD 13 of 2011
Judge:		BESANKO J
Date of judgment:		25 August 2011
Catchwords:		ADMINISTRATIVE LAW — application by employer for constitutional writs directed to Fair Work Australia —first respondent’s employment was terminated by applicant and respondent filed application with Fair Work Australia seeking remedy for unfair dismissal — at arbitration parties informed Fair Work Australia they had reached settlement agreement — first respondent did not sign deed of settlement and sought to continue with application — where applicant sought dismissal of application on basis that its continued pursuit was frivolous and vexatious within s 587 of the Fair Work Act 2009 (Cth) (‘the Act’) — Senior Deputy President found parties had reached agreement and dismissed respondent’s application pursuant to s 587 — appeal to Full Bench of Fair Work Australia upheld — whether Full Bench had made jurisdictional error INDUSTRIAL LAW — construction of s 587 of the Act — whether Full Bench erred in finding that fact of an accord and satisfaction could not be raised at interlocutory stage — application of test for leave to appeal under s 400 of the Act including ‘significant error of fact’ — whether decision pursuant to s 587 in unfair dismissal application is a decision under Chapter 3 Part 3-2 of the Act to which s 400 test applies HELD: The Full Bench made jurisdictional errors in its construction of s 587 and its failure to apply the test in s 400 of the Act and writs of certiorari and mandamus should issue to Fair Work Australia. Application for a declaration that the decision of the Senior Deputy President was correct refused.
Legislation:		Fair Work Act 2009 (Cth) ss 381, 390, 400, 575, 576 , 577, 578, 587, 604, 607, 612, Ch 3, Pt 3-2, Div 3, Ch 5, Pt 5-1, Div 4 Federal Court of Australia Act 1976 (Cth) s 21 Judiciary Act 1903 (Cth) s 39B Workplace Relations Act 1996 (Cth) s 111(1)(t)
Cases cited:		Baulkham Hills Private Hospital Pty Ltd v G R Securities Pty Ltd (1986) 40 NSWLR 622, cited Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission (2000) 203 CLR 194, cited Coal and Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78, cited Craigv South Australia (1995) 184 CLR 163, cited Gorman v Australia Post [2010] FWA 7423, cited Gorman v Australia Post [2010] FWAFB 9413, cited Kirk v Industrial Court of New South Wales (2010) 239 CLR 531, cited McDermott v Black (1940) 63 CLR 161, cited Masters v Cameron (1954) 91 CLR 353, cited Zoiti-Licastro v Australian Taxation Office (2006) 154 IR 1, cited Seddon N and Ellinghaus M, Cheshire and Fifoot’s Law of…