FEDERAL COURT OF AUSTRALIA
BP Refinery (Kwinana) Pty Ltd v Tracey [2020] FCAFC 89
Review of: Scott Tracey v BP Refinery (Kwinana) Pty Ltd [2020] FWCFB 820 File number: NSD 259 of 2020 Judges: BESANKO, PERRAM AND JAGOT JJ Date of judgment: 22 May 2020 Catchwords: ADMINISTRATIVE LAW – application for judicial review – where writ of certiorari sought – jurisdictional error – Full Bench of the Fair Work Commission alleged to have misconceived its appellate function – could only set aside decision of Deputy President if satisfied there was an error as identified in House v The King – Deputy President’s conclusion that meme constituted valid basis for dismissal not reasonably open as conclusion was outside the legally permissible range of conclusions – no error by Full Bench of the Fair Work Commission – where alleged failure to consider question of fact – s 400(2) of the Fair Work Act 2009 (Cth) is a basal pre-condition to an exercise of power – no error by Full Bench of the Fair Work Commission – application dismissed Legislation: Fair Work Act 2009 (Cth) ss 385, 385(b), 387, 396, 400(2), 604, 607(3) Cases cited: Anton v Bokan (No 2) [2019] NSWCA 250
Buck v Bavone (1976) 135 CLR 110
Coal and Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54; (2011) 192 FCR 78
Craig-Bridges v NSW Trustee and Guardian [2017] NSWCA 197
House v The King (1936) 55 CLR 499
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 54
Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1997) 197 CLR 611
Miller v Australian Industrial Relations Court [2001] FCA 486; (2001) 108 FCR 192
Norbis v Norbis (1986) 161 CLR 513
Scott Tracey v BP Refinery (Kwinana) Pty Ltd [2019] FWC 4113
Singer v Berghouse (1994) 181 CLR 201
Toms v Harbour City Ferries [2015] FCAFC 35; (2015) 229 FCR 537
Date of hearing: 24 April 2020 Registry: New South Wales Division: Fair Work Division National Practice Area: Employment & Industrial Relations Category: Catchwords Number of paragraphs: 25 Counsel for the Applicant: I Neil SC with H Millar Solicitor for the Applicant: Corrs Chambers Westgarth Counsel for the Respondent: C Tran Solicitor for the Respondent: Maurice Blackburn Lawyers ORDERS
NSD 259 of 2020 BETWEEN: BP REFINERY (KWINANA) PTY LTD
Applicant
AND: SCOTT TRACEY
First Respondent
FAIR WORK COMMISSION
Second Respondent
JUDGES:
BESANKO, PERRAM AND JAGOT JJ
DATE OF ORDER:
22 MAY 2020
THE COURT ORDERS THAT:
1.The originating application for judicial review be dismissed.
2.Any party wishing to seek costs is to notify the Court and the other party of the order it seeks within seven days.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
THE COURT:
By its originating application the applicant (BP) sought an order that a writ of certiorari be issued, the effect of which would be to quash…
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- Case
- [2020] FCAFC 89
- Decision Date
CaseChat Overview and Summary
The primary legal issues the court had to address were whether the Full Bench of the Fair Work Commission erred in law by not setting aside the decision of the Deputy President and whether there was a failure to consider a question of fact. The applicant contended that the Full Bench should have found that the Deputy President's conclusion that the meme constituted a valid basis for dismissal was not reasonably open, as it was outside the legally permissible range of conclusions. Additionally, the applicant argued that the Full Bench failed to consider the question of fact regarding whether the meme was offensive and inappropriate.
The court found that the first ground of the application could not be sustained as it was based on an incorrect premise that the question of the meme's offensiveness involved a question of law rather than a question of fact. Regarding the second ground, the court determined that there was no error by the Full Bench in not considering the question of fact. The court held that section 400(2) of the Fair Work Act was a basal pre-condition to the exercise of power and did not apply in this instance. Therefore, neither ground of the application could be upheld, leading to the dismissal of the originating application for judicial review. The court also noted that there was no basis to engage section 570(2) of the FW Act in relation to costs but allowed a window of seven days for any party to notify the court of any application for costs they wish to make.
In summary, the court dismissed the application and ordered that the originating application for judicial review be dismissed. Any party wishing to seek costs was to notify the Court and the other party of the order they seek within seven days. The entry of orders was to be dealt with in accordance with Rule 39.32 of the Federal Court Rules 2011.
Orders
Orders of the court
1. The originating application for judicial review be dismissed.
2. Any party wishing to seek costs is to notify the Court and the other party of the order it seeks within seven days.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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