FEDERAL CIRCUIT COURT OF AUSTRALIA
| CAMERON v FAIR WORK COMMISSION & ANOR | [2020] FCCA 2300 |
| Catchwords: ADMINISTRATIVE LAW – Application for judicial review – application for review of a decision of the Fair Work Commission – no application for orders under the Fair Work Act 2009 (Cth) – no jurisdiction – application dismissed. |
| Legislation: Federal Court Rules 2001 (Cth), r.31.01 Administrative Decisions (Judicial Review) Act 1977 (Cth), s.3, Sch 1 Fair Work Act 2009 (Cth), s.562 Judiciary Act 1903 (Cth), s.38, 39B |
| Applicant: | TROY DANIEL CAMERON |
| First Respondent: | FAIR WORK COMMISSION |
| Second Respondent: | MURRIN MURRIN OPERATIONS PTY LTD (ACN 076 717 505) |
| File Number: | MLG 1897 of 2020 |
| Judgment of: | Judge O'Sullivan |
| Hearing date: | 14 August 2020 |
| Date of Last Submission: | 14 August 2020 |
| Delivered at: | Dandenong (via telephone link) |
| Delivered on: | 14 August 2020 |
REPRESENTATION
| Counsel for the Applicant: | Self-Represented |
| Solicitors for the Applicant: | Self-Represented |
| Counsel for the First Respondent: | Mr Rawson |
| Solicitors for the First Respondent: | Australian Government Solicitor |
| Counsel for the Second Respondent: | Mr Wade |
| Solicitors for the Second Respondent: | Ashurst |
ORDERS
The application filed on 5 June 2020 be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1897 of 2020
| TROY DANIEL CAMERON |
Applicant
And
| FAIR WORK COMMISSION |
First Respondent
| MURRIN MURRIN OPERATIONS PTY LTD (ACN 076 717 505) |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
Introduction
Before the Court today, 14 August 2020, are proceedings commenced by Troy Daniel Cameron ("the applicant"). The applicant is aggrieved by a concatenation of events that began in 2018 and ended in May 2020.
The applicant, who is 38 and gives his address as Bittern in Victoria, was employed with Murrin Murrin Operations Pty Ltd in late 2018 in Western Australia. After his employment came to an end, he brought proceedings in the Fair Work Commission.
Background
On 31 March 2020 and for the reasons published in Cameron v Murrin Murrin Operations Pty Ltd [2020] FWC 1566, Deputy President Beaumont refused to extend time for the applicant to bring unfair dismissal proceedings. The applicant then sought a stay of those orders, and for the reasons published as Cameron v Murrin Murrin Operations Pty Ltd [2020] FWC 2088, Deputy President Asbury refused that application. Finally, and for the reasons published as Cameron v Murrin Murrin Operations Pty Ltd [2020] FWCFB 2484, a Full Bench of the Fair Work Commission refused the applicant permission to appeal.
The applicant has then commenced proceedings for judicial review of a series of decisions of the Fair Work Commission ("the first respondent"), by…
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- Case
- [2020] FCCA 2300
- Decision Date
CaseChat Overview and Summary
The central legal issue before the Federal Circuit Court was whether it possessed the jurisdiction to entertain the applicant's application for judicial review of the Fair Work Commission's decisions. The applicant's originating application sought various orders, including that his unfair dismissal application be deemed in time, heard fairly, and that he be allowed to present evidence and witnesses, as well as costs and compensation. The applicant's supporting affidavit asserted that the Commission had not ruled correctly or fairly on his matter and had not allowed him to present further evidence at the appeal.
The Court considered the relevant provisions of the *Fair Work Act 2009* (Cth) and the *Judiciary Act 1903* (Cth). The second respondent argued that the Federal Circuit Court lacked the requisite jurisdiction for judicial review of Fair Work Commission decisions. It was submitted that while section 566 of the *Fair Work Act* confers jurisdiction on the Federal Circuit Court in relation to civil matters arising under the Act, this does not extend to judicial review. The Court noted that judicial review proceedings under the *Administrative Decisions (Judicial Review) Act 1977* (Cth) are not competent in relation to decisions of the Fair Work Commission. Furthermore, the Court observed that statutory provisions conferring original review jurisdiction in the Federal Court and the High Court do not provide for the concurrent jurisdiction of the Federal Circuit Court in this context.
The application was dismissed.
Orders
Orders of the court
1.
The application filed on 5 June 2020 be dismissed.
FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE
MLG 1897 of 2020
TROY DANIEL CAMERON
Applicant
And
FAIR WORK COMMISSION
First Respondent
MURRIN MURRIN OPERATIONS PTY LTD (ACN 076 717 505)
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
Introduction
1.
Before the Court today, 14 August 2020, are proceedings commenced by Troy Daniel Cameron ("the applicant"). The applicant is aggrieved by a concatenation of events that began in 2018 and ended in May 2020.
2.
The applicant, who is 38 and gives his address as Bittern in Victoria, was employed with Murrin Murrin Operations Pty Ltd in late 2018 in Western Australia. After his employment came to an end, he brought proceedings in the Fair Work Commission.
Background
3.
On 31 March 2020 and for the reasons published in Cameron v Murrin Murrin Operations Pty Ltd [2020] FWC 1566, Deputy President Beaumont refused to extend time for the applicant to bring unfair dismissal proceedings. The applicant then sought a stay of those orders, and for the reasons published as Cameron v Murrin Murrin Operations Pty Ltd [2020] FWC 2088, Deputy President Asbury refused that application. Finally, and for the reasons published as Cameron v Murrin Murrin Operations Pty Ltd [2020] FWCFB 2484, a Full Bench of the Fair Work Commission refused the applicant permission to appeal.
4.
The applicant has then commenced proceedings for judicial review of a series of decisions of the Fair Work Commission ("the first respondent"), by application filed in this Court on 5 June 2020. The application, which was accompanied by an affidavit of only four paragraphs, but included annexures totalling 133 pages, was given a first Court date of 31 July 2020.
5.
At the time the application was filed, the first respondent was the only other party to the proceedings. On 16 July 2020, the Australian Government Solicitor (“AGS”) filed a notice of address for service on behalf of the first respondent. There was then an application in a case filed on 29 July 2020 by the first respondent seeking orders joining Murrin Murrin Operations Pty Ltd, the applicant's former employer, as the second respondent to these proceedings. The application in a case was accompanied by an affidavit of Ms Caitlin Yazidjoglou, Solicitor from AGS, and then on the 30 July 2020 by an outline of submissions. Finally, and also on the 30 July 2020, Murrin Murrin Operations Pty Ltd filed a notice of address for service.
6.
At the directions hearing on 31 July 2020, the applicant appeared in person. The first respondent was represented by Mr Rawson, Solicitor, and Mr Wade, Solicitor, was given leave to appear on behalf of Murrin Murrin Operations Pty Ltd. Given the applicant did not object, the first respondent (with the consent of Murrin Murrin Operations Pty Ltd (“the second respondent”)), pressed for the orders in the application in a case to be made, joining them as the second respondent to ensure there was a proper contradictor before the Court. The orders made on 31 July 2020 also adjourned the matter to today for a jurisdictional hearing as follows:
“1. Pursuant to Rule 11.01 of the Federal Circuit Court Rules 2001, Murrin Murrin Operations Pty Ltd be joined as the second respondent to these proceedings.
2. On or before 6 August 2020, the first and second respondents file and serve any affidavit material and submissions in relation to competency or whether the Court has jurisdiction to deal with the application filed 5 June 2020; and
3. On or before 13 August 2020, the applicant file and serve anything in reply to the submissions in order 2
4. The matter be adjourned to 14 August 2020 commencing at 10:00 am for jurisdictional hearing via telephone.
5. The application in a case filed 29 July 2020 be otherwise dismissed.”
7.
The first respondent then filed a response on 4 August 2020, essentially, submitting to any order of the Court, save as to costs or compensation. The second respondent then filed an outline of submissions on 5 August 2020. However, despite having the opportunity to do so, the applicant abjured the opportunity to file submissions in reply, on or before, today's hearing. The parties were content for the Court to determine the question of jurisdiction on the papers.
The application
8.
The application filed 5 June 2020 sought orders as follows:
“1. An order that the application for Unfair Dismissal hearing was received in time by the Fair Work Commission.
2. An order that the matter for Unfair Dismissal be heard, fairly, and without prejudice against me, in the fair Work Commission
3. An order that the matter be decided in a fair hearing, and for that hearing to be held in public, as is so required.
4. An order that I be allowed to present evidence and witnesses as would be fit, legal, and fair.
5. An order that the FWC pay for costs associated with this legal action, and $20,000 in compensation to myself (the Applicant).”
9.
The affidavit filed in support was only four paragraphs (aside from annexures) as already noted and submitted that:
“1. That the Fair Work Commission did not rule on my matter of Unfair Dismissal, or the resulting appeal, correctly and fairly. [Appendix A page 112 – 123 & page 124 - 129]
2. That the Fair Work Commission did not allow me to present further evidence/witnesses at the appeal, but maintained that statements in the appeal were not supported by evidence. [Appendix A Page 130]
3. That the Fair Work Commission allowed a letter of suspension to be tabled in evidence, as a letter of termination/dismissal, or did not properly consider the employment contract in their decision.
4. The application for an Unfair Dismissal hearing was not filed out of time.”
Submissions
10.
As was contemplated in the orders made 31 July 2020, the second respondent filed submissions in respect of jurisdiction, which were:
“1. The Applicant commenced proceedings by way of an originating application for judicial review, supported by affidavit (Review Application).
2. The Review Application seeks the reversal of the decision of the Commission at first instance and, by implication, the decision of the Full Bench of the Second Respondent (FWC), which refused to grant leave to appeal against the Commission's decision dismissing the Applicant's unfair dismissal application (Dismissal Application).
3. At first instance, the Commission dismissed the Dismissal Application on the basis that it was filed out of time and that there were no exceptional circumstances warranting the grant of an extension of time.[1]
4. The Review Application does not specify the statutory basis upon which it is grounded. At the request of this Court, the question to be addressed is whether the Federal Circuit Court of Australia has the requisite jurisdiction to entertain the Review Application.
5. In submissions filed on behalf of the FWC on 30 July 2020, the contention is advanced that this Court's jurisdiction is conferred by virtue of section 566 of the Fair Work Act 2009 (Cth) (FW Act).[2] That submission is not supported with reference to case authority and the First Respondent is not in agreement that section 566 of the FW Act has that reach.[3]
6. The decisions of the Full Bench of the FWC either granting or refusing appeals are plainly not susceptible to further appeal.[4] Although the judgement in Linfox is confined to concluding that "[n]o further statutory right of appeal is conferring from a decision of the Full Bench of Fair Work Australia to…"the Federal Court", that statement of law applies with equal force to the Federal Circuit Court.
7. What remains then is the possibility of judicial review. In respect of decisions of the FWC, judicial review proceedings under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) are not competent.[5]
8. If commenced in the Federal Court, judicial review proceedings in respect of decisions of the FWC need to be grounded in either sections 562 and 563 of the FW Act or section 39B of the Judiciary Act 1903 (Cth) (Judiciary Act).[6]
9. It is also competent for a review to be sought from the High Court (of any decision made by the FWC). The High Court's capacity to review the decisions of the FWC derives from section 75(v) of the Constitution, which affords the High Court original jurisdiction in relation to all matters "in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth".[7]
10. In their terms, the statutory provisions investing original review jurisdiction in both the Federal Court and the High Court do not provide – even by way of extension – for the concurrent jurisdiction of the Federal Circuit Court.[8]
11. The FW Act provides separately (in sections 566 and 567) for the jurisdiction and powers of the Federal Circuit Court. Section 566 of the FW Act is a general provision and, save that it excludes from its ambit "criminal" matters, it is identical to section 562, which confers jurisdiction on the Federal Court.
12. Section 567 of the FW Act, for its part, details the circumstances or matters in respect of which the Federal Circuit Court's jurisdiction is to be exercised. Noticeably absent from those matters (or circumstances) is any reference to an equivalent provision to section 563(b) of the FW Act, where provision is made for the exercise of the Federal Court's jurisdiction in circumstances where "a writ of mandamus or prohibition or an injunction is sought in the Federal Court against a person holding office under this Act".
13. It is submitted that the fact that section 566 of the FW Act confers jurisdiction on the Federal Circuit Court "...in relation to any civil matter arising under this Act"[9] does not of itself imply that jurisdiction is conferred in respect of judicial review proceedings. If that were the case – and by way of analogy – there would have been no need (in section 563 of the FW Act) to specify the matters set forth in section 563(b) as section 562 would (on the FWC's submission) include judicial review within its ambit and reach.[10]
14. It is further submitted that the decision of Neville J in MPR Scaffolding is not authority for the proposition that the Federal Circuit Court has judicial review jurisdiction over the decisions of the FWC, whether in terms of section 39B of the Judiciary Act 1903 (Cth) or otherwise.[11]
…
17. It is accordingly submitted that this Court lacks the requisite jurisdiction to adjudicate the Review Application.
18. To the extent that this Court considers that the most appropriate course would be to exercise the Court's discretion to order a transfer under section 39(2)(b) of the
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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