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 toIN 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/PROSECUTORAND:
THE HONOURABLE JUSTICE GIUDICE, PRESIDENT, THE HONOURABLE DEPUTY PRESIDENT ACTON, AND COMMISSIONER WHELAN (CONSTITUTING A FULL BENCH OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION)
FIRST RESPONDENTKAPLAN SERVICES PTY LIMITED
SECOND RESPONDENTJUDGES:
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…
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- Case
- [2000] FCA 483
- Decision Date
CaseChat Overview and Summary
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
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Established by: MOORE, MARSHALL AND LEHANE JJ
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