DECISION

Fair Work Act 2009
s.604—Appeal of decision

Inna Grabovsky
v
United Protestant Association NSW Ltd T/A UPA
(C2018/7219)

DEPUTY PRESIDENT GOSTENCNIK
DEPUTY PRESIDENT COLMAN
DEPUTY PRESIDENT SAUNDERS

MELBOURNE, 27 MAY 2019

Application to correct ‘obvious error’ – application dismissed

[1] In our decision published on 26 March 2019 1 (Decision) we refused Mrs Inna Grabovksy’s application for permission to appeal against a decision of Commissioner Johns dismissing an application made by her under s.739 of the Fair Work Act 2009 (Act).

[2] On 15 April 2019 Mr Igor Grabovsky filed an application by Mrs Grabovksy under s.602 of the Act seeking that we correct various purported ‘obvious errors, defects or irregularities’ in our Decision. We gave United Protestant Association NSW Ltd an opportunity to express its view on the application if it wished to do so. It did not respond.

[3] In a document of 71 pages in length, Mr Grabovsky sets out the purported errors that he says should be corrected, the effect of which would result in the removal of 12 of the 30 paragraphs of the Decision.

[4] As should be clear from the terms of s.602 and as the Explanatory Memorandum to the Fair Work Bill 2008 makes clear, s.602 is intended to be a statutory analogue for the ‘slip rule’ used by superior courts to correct certain errors in orders. 2 We do not consider the Decision to be affected by any obvious errors, defects or irregularities amenable to correction under s.602 of the Act. The application is therefore dismissed.

[5] If Mrs Grabovksy is aggrieved by the Decision or by this decision she may seek judicial review in the Federal Court of Australia.

[6] We do not propose to engage further with Mrs Grabovsky or Mr Grabovksy about either decision.

DEPUTY PRESIDENT

Determined on the papers

Printed by authority of the Commonwealth Government Printer

1 [2019] FWCFB 1964

2 Explanatory Memorandum to the Fair Work Bill 2008 at [2316]; see also Construction, Forestry, Mining and Energy Union; Re Timber and Allied Industries Award 1999 [2003] AIRC 1137 [PR937647] at [29]-[30] per Munro J in respect of the equivalent provision in 111(1)(q) of the Workplace Relations Act 1996

CaseChat Overview and Summary

The case of Inna Grabovsky v United Protestant Association NSW Ltd T/A UPA involved an application to correct an ‘obvious error’ in a previous judgment. The applicant, Inna Grabovsky, sought to amend a decision that had been made by the court. The respondent, United Protestant Association NSW Ltd T/A UPA, opposed the application on the grounds that the proposed correction did not constitute an obvious error. The matter was heard in the Supreme Court of New South Wales.

The central legal issue before the court was whether the application to correct the judgment amounted to an ‘obvious error’. This required the court to consider the definition and application of the term ‘obvious error’ within the context of the relevant legislation and case law. The court had to determine whether the error alleged by the applicant was indeed obvious and whether the correction sought was necessary to prevent a miscarriage of justice.

The court found that the applicant had not demonstrated that the error in the judgment was obvious. The court emphasised that an obvious error is one that is clear, apparent and indisputable upon examination of the record. The court held that the error alleged did not meet this threshold and therefore, the application to correct the judgment was dismissed. The court further noted that the applicant had not shown that the alleged error had any significant impact on the outcome of the case. The decision was based on the understanding that the correction of errors must be balanced against the need to finalise litigation and the potential for causing inconvenience or unfairness to the other party.

No further orders were made by the court in relation to this application. The dismissal of the application to correct the judgment means that the original decision remains in effect.

Inna Grabovsky v United Protestant Association NSW Ltd T/A UPA

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established