Avard v Australian Capital Territory

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.