Barkhazen v Conair Australia Pty Ltd

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.