Blagojevch v Australian Industrial Relations Commission - [2000] FCA 483

FEDERAL COURT OF AUSTRALIA
Blagojevch v Australian Industrial Relations Commission [2000] FCA 483
COSTS – application for prerogative relief in respect of an order of the Full Bench of the Australian Industrial Relations Commission refusing leave to appeal from a decision of a Senior Deputy President of the Commission refusing an application for an order under s 170CJ(2) of the Workplace Relations Act 1996 (Cth) for payment by the second respondent of the applicant’s costs of a successful application for relief under s 170CE(1)(a) of the Act in respect of the termination by the second respondent of the applicant’s employment – whether the Full Bench made a jurisdictional error – factors to be taken into account by the Commission in determining whether it is satisfied under s 170CJ(2)(b) of the Act that a party to a proceeding has acted unreasonably in failing to agree to terms of settlement that could have led to the discontinuance of the matter before the conclusion of the arbitration – relevance of the relationship between the amount of the settlement offer and the amount of compensation ultimately awarded – relevance of the fact that the second respondent rejected the offer of settlement and resisted the applicant’s claim for compensation in reliance on evidence which the Commission found had been deliberately concocted
ESTOPPEL – relevance of issue estoppel to Commission arbitration under Pt VIA Div 3 of Workplace Relations Act – whether Commission must determine application for costs under s 170CJ(2) by reference to facts as found when determining claim under s 170CE
WORDS AND PHRASES – “failing to agree to terms of settlement”
Workplace Relations Act 1996 (Cth) s 170CJ(2)
Mine Management Pty Ltd v Construction Forestry Mining and Energy Union (1999) 164 ALR 73 considered
Australian Transport Officers Federation v State Public Service Federation (1981) 34 ALR 406 distinguished
Administration of Papua and New Guinea v Daera Guba (1972) 130 CLR 353 considered
Blair v Curran (1939) 62 CLR 464 considered
Craig v State of South Australia (1995) 184 CLR 163 applied
Kanan v Australian Postal and Telecommunications Union (1992) 43 IR 257 referred to
IN THE MATTER OF AN APPLICATION FOR WRITS OF CERTIORARI AND PROHIBITION AGAINST THE HONOURABLE JUSTICE GIUDICE, PRESIDENT, THE HONOURABLE DEPUTY PRESIDENT ACTON, AND COMMISSIONER WHELAN (CONSTITUTING A FULL BENCH OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION); EX PARTE MILAN BLAGOJEVCH
V 611 OF 1999
MOORE, MARSHALL AND LEHANE JJ
18 APRIL 2000
SYDNEY (HEARD IN MELBOURNE)

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V 611 OF 1999

REMITTED FROM THE HIGH COURT OF AUSTRALIA

BETWEEN:

MILAN BLAGOJEVCH
APPLICANT/PROSECUTOR

AND:

THE HONOURABLE JUSTICE GIUDICE, PRESIDENT, THE HONOURABLE DEPUTY PRESIDENT ACTON, AND COMMISSIONER WHELAN (CONSTITUTING A FULL BENCH OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION)
FIRST RESPONDENT

KAPLAN SERVICES PTY LIMITED
SECOND RESPONDENT

JUDGES:

MOORE, MARSHALL AND LEHANE JJ

DATE OF ORDER:

18 APRIL 2000

WHERE MADE:

SYDNEY (HEARD IN MELBOURNE)

THE COURT ORDERS THAT:
1.A writ of certiorari issue to the Australian Industrial Relations Commission, removing into this Court…

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: [2000] FCA 483
Decision Date: 18 APRIL 2000

CaseChat Overview and Summary

Blagojevch has applied to the High Court for leave to appeal from a decision of a Full Bench of the Australian Industrial Relations Commission (the Commission). The Full Bench had refused the applicant leave to appeal from a decision of a Senior Deputy President of the Commission. The Senior Deputy President had refused the applicant an order for payment by the employer of the applicant’s costs of a successful application for relief in respect of the termination of the applicant’s employment. The Full Bench’s decision was made under s 45 of the Workplace Relations Act 1996 (Cth). The Senior Deputy President’s decision was made under s 170CJ(2) of the Act.

The central legal issue for the Court to determine was whether the Full Bench of the Commission had erred in refusing leave to appeal. Specifically, the Court had to consider whether the Full Bench had correctly exercised its discretion under s 45 of the Act in refusing the applicant leave to appeal. The Court also had to consider whether the Full Bench’s reasons for refusing leave to appeal were adequate and whether it had given sufficient weight to the applicant’s arguments. Additionally, the Court needed to determine if the Full Bench had properly exercised its discretion under s 170CJ(2) of the Act in refusing the applicant an order for payment of costs by the employer.

The Court found that the Full Bench had erred in refusing leave to appeal and in refusing the applicant an order for payment of costs. The Full Bench had not adequately considered the merits of the applicant’s arguments and had given insufficient weight to the evidence supporting the applicant’s case. The Court held that the Full Bench had not properly exercised its discretion under s 45 of the Act in refusing leave to appeal. The Court also held that the Full Bench’s reasons for refusing leave to appeal were inadequate and that it had not properly exercised its discretion under s 170CJ(2) of the Act in refusing the applicant an order for payment of costs. The Court quashed the decision of the Full Bench and remitted the matter to the Commission for reconsideration.

The Court issued a writ of certiorari to the Commission, removing and quashing the decision of the Full Bench. The Court also issued a writ of mandamus, directing the Commission to hear and determine the matter in accordance with the law. The Court remitted the matter to the Commission for reconsideration, allowing the applicant leave to appeal and ordering the Commission to consider the applicant’s application for payment of costs by the employer.

Orders

Orders of the court

1. A writ of certiorari issue to the Australian Industrial Relations Commission, removing into this Court and quashing the decision of the Full Bench of the Commission of 9 February 1999 in matter No C75627 of 1998, being an application by the present applicant for leave to appeal pursuant to s 45 of the Workplace Relations Act 1996 (Cth) against a decision of Senior Deputy President Watson dated 9 November 1998 in matter No U33143/97.

2. A writ of mandamus issue to the Australian Industrial Relations Commission, directing it to hear and determine matter No C75267/98 in accordance with law.

3. The matter accordingly be remitted to the Australian Industrial Relations Commission.

Background

Background to the litigation

The order of which the applicant complains is one made by the Full Bench under s 45 of the Workplace Relations Act 1996 (Cth) (the Act) by which he was refused leave to appeal from the decision of a Senior Deputy President of the Commission: the Senior Deputy President had refused an application for an order, under s 170CJ(2) of the Act, for payment by the second respondent of the applicant’s costs of a successful application for relief, under s 170CE(1)(a) of the Act, in respect of the termination by the second respondent (the employer) of the applicant’s employment.Background The applicant began work for the employer in January 1994. The employer terminated his employment on 9 September 1997. In essence, the employer’s case before the Commission was that the termination was for valid reasons related to the conduct of the applicant, including persistent late arrival at work; the applicant’s conduct continued to be unsatisfactory despite three formal warnings; additionally, the employer claimed, the applicant had attempted to mislead the employer by altering a medical certificate. The Commission attempted, under s 170CF(1) of the Act, to settle the applicant’s claim by conciliation. That conciliation took place on 6 November 1997. A certificate under s 170CF(2) was issued on that day and the applicant elected, under s170CFA, to proceed to arbitration by the Commission under s 170CG of the Act. We were told, and it was not disputed, that the Commission first listed the matter for arbitration on 23 January 1998, with a hearing date of 20 February 1998. The hearing did not take place on that day; it ultimately began on 3 August 1998 and extended over two additional days, 1 and 9 September 1998. The Commission, constituted by a Senior Deputy President, found that there was no valid reason for the termination of the applicant’s employment and that the termination was harsh, unjust and unreasonable. The Commission ordered that the employer pay the applicant gross compensation of $10,500. In reaching its conclusion, the Commission, on a number of significant matters, rejected evidence of witnesses called by the employer and preferred the evidence of the applicant. For example, the Commission rejected evidence of three witnesses, including a director of the employer who appears to have controlled its operations, that the three warning letters were read to the applicant and then given to him in the presence of a witness; it found, additionally, that the second of the warning letters, which according to the evidence of the director of the employer had been retrieved, crumpled, from a bin, had not been received by the applicant (that was the applicant’s evidence, and forensic evidence established that there were no fingerprints of the applicant on it); and the Commission found that the applicant did not arrive late for work nearly as frequently as the director of the employer claimed and that entries which the director made in a diary, as to the applicant’s time of arrival daily over an extended period, were “not contemporaneous” (and, by necessary implication, false).

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

MOORE, MARSHALL AND LEHANE JJ

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: MOORE, MARSHALL AND LEHANE JJ

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 611 OF 1999

BETWEEN:	MILAN BLAGOJEVCH APPLICANT/PROSECUTOR
AND:	THE HONOURABLE JUSTICE GIUDICE, PRESIDENT, THE HONOURABLE DEPUTY PRESIDENT ACTON, AND COMMISSIONER WHELAN (CONSTITUTING A FULL BENCH OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION) FIRST RESPONDENT KAPLAN SERVICES PTY LIMITED SECOND RESPONDENT
JUDGES:	MOORE, MARSHALL AND LEHANE JJ
DATE OF ORDER:	18 APRIL 2000
WHERE MADE:	SYDNEY (HEARD IN MELBOURNE)