BP Refinery (Kwinana) Pty Ltd v Tracey

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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:

  1. 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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Details
Case
[2020] FCAFC 89
Decision Date

CaseChat Overview and Summary

In the case of BP Refinery (Kwinana) Pty Ltd v Tracey, the matter was brought before the court as an application for judicial review, challenging a decision of the Full Bench of the Fair Work Commission. The applicant sought a writ of certiorari, arguing that the Full Bench had misconceived its appellate function and committed a jurisdictional error. The crux of the dispute involved the interpretation and application of the Fair Work Act 2009 (Cth), specifically in relation to the validity of a dismissal based on the creation and dissemination of a meme by the respondent, Tracey.

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

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Ground 3 does not arise as it assumes (contrary to the common position of the parties) that the question whether the video was offensive and inappropriate involves a question of law rather than a question of fact.Conclusion Neither of the two grounds pressed in the originating application for judicial review can be sustained, with the consequence that the application must be dismissed. Nothing in the circumstances suggests to us that s 570(2) of the FW Act may be engaged in relation to costs but the parties may have seven days in which to notify the Court of any application for costs they wish to make.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.