Barkhazen v Conair Australia Pty Ltd

Link copied
Case Copied 26 min read

FEDERAL COURT OF AUSTRALIA

Barkhazen v Conair Australia Pty Ltd [2017] FCA 1585

File number: NSD 2190 of 2016
Judge: BROMWICH J
Date of judgment: 21 December 2017
Catchwords: INDUSTRIAL LAW – application for summary dismissal of application for judicial review or strike-out of pleadings or security for costs – alleged lack of reasonable cause of action or reasonable prospect of success – held: no capacity of Federal Court to engage in judicial review of decision of Full Bench of Fair Work Australia (now Fair Work Commission) to refuse permission to appeal without demonstrating jurisdictional error – constraint principles in Baker v Patrick Projects Pty Ltd [2014] FCAFC 165; 226 FCR 302 – held: application for judicial review devoid of merit and lacking reasonable prospect of success – application for summary dismissal granted
Legislation:

Fair Work Act 2009 (Cth) ss 394, 400(1), 604

Federal Court of Australia Act 1976 (Cth) s 31A

Judiciary Act 1903 (Cth) s 39B

Cases cited:

Baker v Patrick Projects Pty Ltd [2014] FCAFC 165; 226 FCR 302

Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission [2000] HCA 47; 203 CLR 194

Craig v South Australia (1995) 184 CLR 163

Gregory v Qantas Airways Limited [2016] FCAFC 7; 241 FCR 72

Linfox Australia Pty Ltd v Fair Work Commission [2013] FCAFC 157; 240 IR 178

Public Service Board of New South Wales v Osmond (1986) 159 CLR 656

Rahman v Commissioner of Taxation [2015] FCA 988

Re McBain; Ex parte Australian Catholic Bishops Conference [2002] HCA 16; 209 CLR 372

Spencerv Commonwealth of Australia [2010] HCA 28; 241 CLR 118

Dates of hearing: 21 September 2017
Registry: New South Wales
National Practice Area: Fair Work
Division: Employment and Industrial Relations
Category: Catchwords
Number of paragraphs: 32
Counsel for the Applicant: Mr P King
Solicitor for the Applicant: GP Legal
Counsel for the First Respondent: Ms C Ronalds SC with Ms K Jones
Solicitor for the First Respondent: PCC Lawyers

ORDERS

NSD 2190 of 2016
BETWEEN:

INESSA BARKHAZEN
Applicant
AND:

CONAIR AUSTRALIA PTY LTD
First Respondent

FAIR WORK COMMISSION
Second Respondent

JUDGE:

BROMWICH J

DATE OF ORDER:

21 DECEMBER 2017

THE COURT ORDERS THAT:

1.The applicant’s originating application and statement of claim be summarily dismissed under s 31A of the Federal Court of Australia Act 1976 (Cth).

2.The first respondent be given leave to make an application for costs within 28 days, or such further time as may be allowed, by way of written submissions of no more than five pages in length and any supporting affidavit.

3.The applicant respond to any application for costs within 21 days of service of the first respondent’s written submissions for costs and any supporting affidavit, or such further time as may be allowed, by way of written submissions of no more than five pages in length and any supporting affidavit.

4.Any application for costs be determined on the papers, unless it is decided that an oral hearing is required.

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Barkhazen v Conair Australia Pty Ltd and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2017] FCA 1585
Decision Date

CaseChat Overview and Summary

The case of Barkhazen v Conair Australia Pty Ltd involved the applicant, Barkhazen, seeking judicial review of a decision made by the Full Bench of Fair Work Australia (now the Fair Work Commission). Barkhazen argued that the Full Bench’s decision to refuse permission to appeal was unjust and should be reviewed by the Federal Court. Conair Australia Pty Ltd, the respondent, filed an application for summary dismissal of Barkhazen’s application for judicial review, arguing that it was devoid of merit and had no reasonable prospect of success. The central legal issue before the court was whether the Federal Court had the capacity to review the Full Bench’s decision in the absence of a demonstrated jurisdictional error.

The Federal Court found that it lacked the authority to engage in judicial review of the Full Bench’s decision without a showing of jurisdictional error. The principles outlined in Baker v Patrick Projects Pty Ltd [2014] FCAFC 165; 226 FCR 302, which emphasised the constraints on judicial review in such contexts, were deemed applicable. The court concluded that Barkhazen’s application for judicial review was devoid of merit and had no reasonable prospect of success. The tests for summary dismissal, as set out by the High Court in Spencer v Commonwealth of Australia [2010] HCA 28; 241 CLR 118, were met, leading to the inevitable conclusion that the application should be summarily dismissed.

Given the findings, the court granted the application for summary dismissal and ordered that Barkhazen’s originating application and statement of claim be dismissed under section 31A of the Federal Court of Australia Act 1976. The court also allowed Conair to apply for costs within 28 days, with the possibility of extending this period if necessary. The applicant was required to respond to any cost application within 21 days of service of the written submissions for costs and any supporting affidavit. Any application for costs was to be determined on the papers unless an oral hearing was deemed necessary.

Orders

Orders of the court

1. The applicant’s originating application and statement of claim be summarily dismissed under s 31A of the Federal Court of Australia Act 1976 (Cth).

2. The first respondent be given leave to make an application for costs within 28 days, or such further time as may be allowed, by way of written submissions of no more than five pages in length and any supporting affidavit.

3. The applicant respond to any application for costs within 21 days of service of the first respondent’s written submissions for costs and any supporting affidavit, or such further time as may be allowed, by way of written submissions of no more than five pages in length and any supporting affidavit.

4. Any application for costs be determined on the papers, unless it is decided that an oral hearing is required.

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

In all the circumstances, Conair’s case for summary dismissal is unassailable. This Court has no business – as well as no authority – to second-guess the Full Bench’s state of satisfaction that it was not in the public interest to grant Ms Barkhazen permission to appeal, at least in the absence of alleging and being in a position to mount a case of jurisdictional error in reaching that conclusion. The case sought to be brought for judicial review in this Court is devoid of merit and has no prospect of success. In those circumstances, summary dismissal is inevitable, with the tests for summary dismissal authoritatively stated by the High Court in Spencerv Commonwealth of Australia [2010] HCA 28; 241 CLR 118, especially at [24]-[25], being easily met.Conclusion Summary judgment must be entered in favour of Conair.Costs The written submissions for Conair sought that it be heard on the question of costs. Orders will be made to facilitate that taking place, preferably on the papers, but by way of a further oral hearing if truly necessary.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.