JURISDICTION : WESTERN AUSTRALIAN INDUSTRIAL APPEAL COURT
CITATION: FAGAN -v- MINISTER FOR CORRECTIVE SERVICES [2024] WASCA 167
CORAM: BUSS J
SEAWARD J
SMITH AUJ
HEARD: 21 OCTOBER 2024
DELIVERED : 21 OCTOBER 2024
PUBLISHED : 7 JANUARY 2025
FILE NO/S: IAC 1 of 2024
BETWEEN: PENELOPE ANNE FAGAN
Appellant
AND
MINISTER FOR CORRECTIVE SERVICES
Respondent
ON APPEAL FROM:
Jurisdiction : WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
Coram: S J KENNER, CHIEF COMMISSIONER
C TSANG, COMMISSIONER
T KUCERA, COMMISSIONER
Citation: 2023 WAIRC 00984
File Number : FBA 3 OF 2023
Catchwords:
Industrial law - Industrial Appeal Court - Appeal from Full Bench of Western Australian Industrial Relations Commission - Full Bench varied a decision of a Commissioner that a prison officer was unfairly dismissed - Whether the Full Bench erroneously construed s 26(1)(a) or s 26(1)(b) of the Industrial Relations Act 1979 (WA) - No error evident - Jurisdiction of the Industrial Appeal Court not enlivened to entertain the appeal
Industrial law - Section 26(1)(a) and s 26(1)(b) of the Industrial Relations Act do not confer jurisdiction on the Commission - Meaning of the words 'according to equity, good conscience, and the substantial merits of the case' in s 26(1)(a) of the Industrial Relations Act considered
Industrial law - Application of substantive rules of law and the doctrine of precedent to the determination of applications referred under s 29(1)(b) of the Industrial Relations Act alleging that a dismissal was harsh, oppressive and unfair considered
Legislation:
Industrial Relations Act 1979 (WA), s 26(1)(a), s 26(1)(b), s 90(1)(b)
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | T J Hammond SC & D Stojanoski |
| Respondent | : | J M Misso & Z R Clifford |
Solicitors:
| Appellant | : | Slater & Gordon |
| Respondent | : | State Solicitor's Office (WA) |
Case(s) referred to in decision(s):
Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172
AWU v Poon Bros (WA) Pty Ltd (1983) 4 IR 394
BGC (Australia) Pty Ltd v Phippard [2002] WASCA 191; (2002) 115 IR 430
Burswood Resort (Management) Ltd v The Australian Liquor, Hospitality and Miscellaneous Workers Union, Western Australian Branch [2000] WASCA 386
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194
Coles Myer Ltd v Coppin (1993) 11 WAR 20
Director General, Department of Education v United Voice WA [2015] WASCA 195
Garbett v Midland Brick Co Pty Ltd [2003] WASCA 36
Griggs v Noris Group of Companies (Including SA Helicopters Pty Ltd and Captured Pty Ltd) [2006] SASC 23; (2006) 94 SASR 126
Hamersley Iron Pty Ltd v Association of Draughting, Supervisory and Technical Employees, Western Australian Branch (1984) 64 WAIG 852
Helm v Hansley Holdings Pty Ltd (in liq) [1999] WASCA 71
House v King (1936 ) 55 CLR 499
Hyde v Serco Australia Pty Ltd [2018] FWCFB 3989
Jetstar Airways Pty Ltd v Neeteson‑Lemkes [2013] FWCFB 9075
Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; (2010) 241 CLR 390
Landsheer v Morris Corporation (WA)…
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- AGLC
- Fagan v Minister for Corrective Services [2024] WASCA 167
- Case
- [2024] WASCA 167
- Decision Date
CaseChat Overview and Summary
The court examined the legislative provisions and their historical context, referencing cases such as Minister for Immigration and Multicultural Affairs v Eshetu and Sue v Hill, to understand the intended flexibility of such provisions. The court noted that while these sections were designed to allow tribunals to act according to substantial justice and the merits of the case, they did not absolve the tribunals from applying substantive rules of law or procedural fairness. The court also considered the meaning of the phrase "according to equity, good conscience, and the substantial merits of the case," concluding that it required adherence to relevant substantive laws and procedural fairness. Based on this analysis, the court found that no error had been made in the Full Bench's interpretation of the relevant sections, and thus the Industrial Appeal Court's jurisdiction was not enlivened to entertain the appeal.
Accordingly, the appeal was dismissed. The court upheld the Full Bench's decision that the prison officer's dismissal was unfair, and no error was evident in the interpretation of sections 26(1)(a) and 26(1)(b) of the Industrial Relations Act 1979 (WA). The final orders were that the appeal be dismissed with costs.
Orders
Orders of the court
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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
In Minister for Immigration and Multicultural Affairs v Eshetu,[9] the High Court considered s 420 of the Migration Act 1958 (Cth). Section 420(1) required the Refugee Review Tribunal, in carrying out its functions, 'to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick'. Section 420(2) provided that, in reviewing a decision, the Tribunal was not bound by technicalities, legal forms or rules of evidence (par (a)) and must act according to substantial justice and the merits of the case (par (b)).[9] Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611. Gleeson CJ and McHugh J noted that the history of legislative provisions similar to s 420 was examined in Qantas Airways. Their Honours said in relation to provisions of the kind embodied in s 420 [49]:They are intended to be facultative, not restrictive. Their purpose is to free tribunals, at least to some degree, from constraints otherwise applicable to courts of law, and regarded as inappropriate to tribunals. The extent to which they free tribunals from obligations applicable to the courts of law may give rise to dispute in particular cases, but that is another question. Gaudron and Kirby JJ observed in relation to s 420(2) [75]:It is important to note that s 420(2) of the Act is in two parts. Paragraph (a) provides that in reviewing a decision, the Tribunal 'is not bound by technicalities, legal forms or rules of evidence'. Paragraph (b), which provides that it 'must act according to substantial justice and the merits of the case', is its counterpart. Together, those paragraphs describe the general nature of review proceedings and require the Tribunal to operate as an administrative body with flexible procedures and not as a body with technical rules of the kind that have sometimes been adopted by quasi‑judicial tribunals. In Sue v Hill,[10] the High Court considered s 364 of the Commonwealth Electoral Act 1918 (Cth), which provided that the Court of Disputed Returns 'shall be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities, or whether the evidence before it is in accordance with the law of evidence or not'.[10] Sue v Hill [1999] HCA 30; (1999) 199 CLR 462. Gleeson CJ, Gummow and Hayne JJ held that provisions of this type 'do not exonerate the Court from the application of substantive rules of law and are consistent with, and indeed require the application of, the rules of procedural fairness' [42]. Gaudron J said [149]:[A] court would be acting neither in accordance with the substantial merits of the case nor in good conscience if it were to determine the issues raised otherwise than by application of the relevant law to the facts. Nor would it be acting in good conscience if it were to find facts other than on evidence probative of them, evidence which may or may not accord with the rules of evidence. In Griggs v Noris Group of Companies (Including SA Helicopters Pty Ltd and Captured Pty Ltd),[11] the Full Court of the Supreme Court of South Australia considered s 154 of the Industrial and Employee Relations Act 1994 (SA), which provided:(1)In exercising its jurisdiction, the Court or the Commission —(a)is governed in matters of procedure and substance by equity, good conscience, and the substantial merits of the case, without regard to technicalities, legal forms or the practice of courts; and(b)is not bound by evidentiary rules and practices but may, subject to subsection (2), inform itself as it thinks appropriate.(2)The Court and the Commission must observe the rules of natural justice.[11] Griggs v Noris Group of Companies (Including SA Helicopters Pty Ltd and Captured Pty Ltd) [2006] SASC 23; (2006) 94 SASR 126.