Avard v Australian Capital Territory

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FEDERAL COURT OF AUSTRALIA

Avard v Australian Capital Territory [2025] FCAFC 72

Appeal from: Avard v Australian Capital Territory [2024] FCA 690
File number: ACD 50 of 2024
Judgment of: CHARLESWORTH, STELLIOS AND LONGBOTTOM JJ
Date of judgment: 23 May 2025 
Catchwords:

INDUSTRIAL LAW – appeal from single judge – interpretation of enterprise agreements – whether “preliminary assessment” requires procedural fairness – where enterprise agreements prescribe procedural fairness regime – where formal investigations subject to procedural fairness regime – where “preliminary assessment” not a formal investigation – where appellant investigated for alleged misconduct following “preliminary assessment” – where appellant not provided opportunity to respond to allegations during or before “preliminary assessment” – where appellant alleged to suffer harm from commencement of investigations

PRACTICE AND PROCEDURE – whether appellant raised new arguments on appeal – characterisation of argument at first instance – whether argument at first instance was limited to breaches of clauses 111.4 and 117.4 of the enterprise agreements – whether leave should be granted to raise new argument on appeal – where no reason for failure to advance argument at first instance provided – whether respondent prejudiced by new argument – where respondent may have conducted trial differently   
Legislation: Fair Work Act 2009 (Cth) s 50
Cases cited:

Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; [1992] HCA 10

Banque Commercial SA (In liq) v Akhil Holdings Ltd (1990) 169 CLR 279; [1990] HCA 11

Branir Pty Ltd v Owston Nominees (No. 2) Pty Ltd (2001) 117 FCR 424; [2001] FCA 1833

Byrne v Australian Airlines Ltd (1995) 185 CLR 410; [1995] HCA 24

Byrne v Marles (2008) 19 VR 612

C v Independent Commissioner Against Corruption (2020) 136 SASR 215; [2020] SASCFC 57

Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576; [1994] FCA 293

Cornall v AB (a solicitor) [1995] 1 VR 372

Corporate Air Charter Pty Ltd v Australian Federation of Air Pilots [2025] FCAFC 45

H v Minister for Immigration and Multicultural Affairs (2000) 63 ALD 43; [2000] FCA 1348

James Cook University v Ridd (2020) 278 FCR 566; [2020] FCAFC 123

Kioa v West (1985) 159 CLR 550; [1985] HCA 81

Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180; [2016] HCA 29

O’Brien v Komesaroff (1982) 150 CLR 310; [1982] HCA 33

Re Minister for Immigration and Multicultural Affairs; ex parte Lam (2003) 214 CLR 1; [2003] HCA 6

Russell v Duke of Norfolk [1949] 1 All ER 109

Toyota Motor Corporation Australia Ltd v Marmara (2014) 222 FCR 152; [2014] FCAFC 84

VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588; [2004] FCAFC 158
Division: Fair Work Division
Registry: Australian Capital Territory
National Practice Area: Employment and Industrial Relations
Number of paragraphs: 58
Date of last submissions: 18 March 2025 (Respondent)
25 March 2025 (Appellant)
1 April 2025 (Reply Submissions by Appellant and Respondent)
Date…
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Details
Case
[2025] FCAFC 72
Decision Date

CaseChat Overview and Summary

In the matter of Avard v Australian Capital Territory, the appellant, Avard, challenged the respondent's decision to commence investigations into allegations of misconduct. Avard argued that the respondent's failure to provide procedural fairness during a preliminary assessment process violated the terms of the enterprise agreements. The case was heard by the court of appeal, which was required to determine whether the preliminary assessment process mandated procedural fairness and whether Avard was entitled to raise new arguments on appeal.

The legal issues before the court encompassed the interpretation of the enterprise agreements, specifically clauses 111.4 and 117.4, to ascertain if they mandated procedural fairness during the preliminary assessment stage. Additionally, the court needed to examine whether Avard's attempt to introduce new arguments on appeal was permissible, considering the respondent's potential prejudice and the absence of a justification for not raising the arguments at the initial hearing.

The court held that the preliminary assessment procedure did not inherently require procedural fairness as the appellant contended. The court reasoned that the limited scope of the preliminary assessment, along with the broader context of the enterprise agreements, indicated that procedural fairness was not mandated by clauses 111.4 or 117.4. Furthermore, the court determined that Avard had indeed introduced new arguments on appeal, but these were not admissible as there was no valid reason for not raising them at the initial hearing, and the respondent could potentially have conducted the trial differently had the arguments been presented earlier.

Consequently, the appeal was dismissed, and the interlocutory application filed on 2 April 2025 was also dismissed. If either party wished to seek an order regarding costs, they were to file written submissions by specified dates, and the question of costs would be addressed based on the submissions unless an oral hearing was necessary. If no submissions were filed, there would be no order as to costs.

Orders

Orders of the court

1. The interlocutory application filed 2 April 2025 is dismissed.

2. The appeal is dismissed.

3. If any party wishes to seek an order as to costs:

(a) That party is to file written submissions of not more than three pages in support of the order that it seeks, together with any evidence on which it wishes to rely, by 5 June 2025; and

(b) The other party is to file written submissions in response of no more than three pages, together with any evidence on which it wishes to rely, by 19 June 2025; and

(c) The question of costs will be dealt with on the papers unless it appears that an oral hearing is necessary

4. If no submission is filed in accordance with Order 3, there will be no order as to costs.

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

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Decision

Reasons for decision

The limited purpose of the preliminary assessment procedure, coupled with its broader context, supports a construction that there is no enshrined obligation of procedural fairness in cl 111.4 or cl 117.4 as contended by the appellant.CONCLUSION For these reasons, the appeal should be dismissed.

Ratio Decidendi

Legal Principle Established

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