Gao v Mack Towing Transport Pty Ltd & Anor

Gao (the applicant) sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) which affirmed a decision of the respondent, Mack Towing Transport Pty Ltd, to terminate his employment. The applicant contended that the AAT had erred in law by failing to consider certain evidence and by misinterpreting the scope of its review powers. The matter came before Gummow and Kiefel JJ of the High Court of Australia.

The primary legal issues before the High Court were whether the AAT had erred in law by: (1) failing to consider evidence relating to the applicant's alleged misconduct that occurred after the date of the employer's decision to terminate his employment; and (2) misinterpreting the nature and extent of its review powers under the relevant legislation, specifically whether it was confined to reviewing the employer's decision as it stood at the time it was made, or if it could consider events arising thereafter.

The High Court held that the AAT's review was not limited to the information before the employer at the time of the termination decision. Rather, the AAT was empowered to conduct a fresh hearing and make its own decision, considering all relevant evidence, including events that occurred after the employer's decision. Consequently, the AAT erred in law by failing to consider the post-termination evidence, which was relevant to the applicant's overall conduct and the appropriateness of the termination. The Court also clarified that the AAT's role was to determine the merits of the decision under review, not merely to review the legality of the employer's original decision.

The High Court ordered that the AAT's decision be set aside and remitted to the AAT for redetermination in accordance with the reasons of the Court.