Jovcic v Coopers Brewery Limited - [2023] FCA 423

FEDERAL COURT OF AUSTRALIA
Jovcic v Coopers Brewery Limited [2023] FCA 423

Review from: Jovan Jovcic and Filip Markovic v Coopers Brewery Limited [2022] FWC 1931

File number: SAD 140 of 2022

Judgment of: CHARLESWORTH J

Date of judgment: 5 April 2023

Date of publication of reasons: 5 May 2023

Catchwords: ADMINISTRATIVE LAW – application for judicial review of a decision of a single member of the Fair Work Commission – discretion to refuse relief on the basis that there exists an alternative procedure for the resolution of the applicants’ underlying claims – relief refused on the basis that there exists a right to seek permission to appeal to the Full Bench of the Fair Work Commission and no reason has been advanced for the applicants’ failure to exercise the right

Legislation:
Fair Work Act 2009 (Cth) ss 381,400, 570, 604, 607

Judiciary Act 1903 (Cth) s 39B

Cases cited:
Bragg v Secretary, Department of Employment, Education and Training (1995) 59 FCR 31

Construction, Forestry, Maritime, Mining and Energy Union v Mt Arthur Coal Pty Ltd (2021) 310 IR 399

Fox v Percy (2003) 214 CLR 118

Jovan Jovcic and Filip Markovic v Coopers Brewery Limited [2022] FWC 1931

Ulan Coal Mines Limited v Honeysett (2010) 199 IR 363

Warren v Coombes (1979) 142 CLR 531

Division: Fair Work Division

Registry: South Australia

National Practice Area: Employment and Industrial Relations

Number of paragraphs: 47

Date of hearing: 20 March 2023 and 5 April 2023

Counsel for the Applicants: Mr S Ower KC with Mr S Lindsey

Solicitor for the Applicants: Polson Legal

Counsel for the First Respondent: Mr S McDonald SC with Ms K Stewart

Solicitor for the First Respondent: Piper Alderman

Counsel for the Second Respondent: The Second Respondent filed a Submitting Notice

ORDERS

SAD 140 of 2022

BETWEEN:
JOVAN JOVCIC

First Applicant

FILIP MARKOVIC

Second Applicant

AND:
COOPERS BREWERY LIMITED

First Respondent

FAIR WORK COMMISSION

Second Respondent

ORDER MADE BY:

CHARLESWORTH J

DATE OF ORDER:

5 APRIL 2023

THE COURT ORDERS THAT:
1.The originating application is dismissed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
(Revised from the transcript)
CHARLESWORTH J
INTRODUCTION

This is an application for orders under s 39B of the Judiciary Act 1903 (Cth) quashing a decision of the Fair Work Commission made on 22 July 2022 and ancillary relief: Jovan Jovcic and Filip Markovic v Coopers Brewery Limited [2022] FWC 1931.
The Court conducted a hearing of the application on 20 March and 5 April 2023. At the conclusion of the hearing, I made an order dismissing the originating application and gave oral reasons for doing so.
The parties were informed that written reasons would follow and I now publish those reasons. The written reasons that follow should not be understood as containing any findings or conclusions inconsistent with those delivered orally. They have been re-ordered and revised from the transcript to remove repetition and improve expression. Some statutory provisions have…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] FCA 423
Decision Date: 5 April 2023

CaseChat Overview and Summary

In the case of Jovcic v Coopers Brewery Limited, the applicant sought judicial review of a decision made by a single member of the Fair Work Commission. The dispute involved employment-related claims brought by the applicant against the respondent company. The Federal Court was tasked with determining the legality of the Commission’s decision and whether it should be quashed or set aside.

The primary legal issue before the court was whether the existence of an alternative procedure for the resolution of the applicant's underlying claims warranted the refusal of judicial relief. Specifically, the court examined if the applicant had a right to seek permission to appeal to the Full Bench of the Fair Work Commission and whether the applicant had provided a sufficient reason for not exercising this right. The court considered the statutory framework governing appeals within the Fair Work Commission, including the provisions for permission to appeal and the role of the Full Bench in addressing significant errors of fact.

The court concluded that the applicant had a right to appeal to the Full Bench of the Fair Work Commission, as provided by the Fair Work Act. However, the applicant had not sought permission to appeal nor provided a valid reason for failing to do so. Given that the Full Bench has broader powers to correct significant errors of fact and make its own findings, the court found that there was an alternative procedure available to the applicant. Consequently, the court exercised its discretion to refuse the relief sought by the applicant.

The court dismissed the originating application, thereby refusing the applicant’s request for judicial review of the Commission’s decision. The dismissal was grounded on the availability of an alternative appellate process within the Fair Work Commission, which the applicant had not pursued.

Orders

Orders of the court

1. The originating application is dismissed.

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

Full text does not contain this section.

Decision

Reasons for decision

An appeal from a decision of a single member of the Commission lies to the Full Bench, in accordance with (and subject to) the following provisions of the FW Act:604 Appeal of decisions (1) A person who is aggrieved by a decision:(a)made by the FWC (other than a decision of a Full Bench or an Expert Panel); or (b)made under the Registered Organisations Act by the General Manager (including a delegate of the General Manager);may appeal the decision, with the permission of the FWC.(2)Without limiting when the FWC may grant permission, the FWC must grant permission if the FWC is satisfied that it is in the public interest to do so.Note:Subsection (2) does not apply in relation to an application for an unfair dismissal (see section 400).(3) A person may appeal the decision by applying to the FWC.…607 Process for appealing or reviewing decisions (1)An appeal from, or a review of, a decision of the FWC or the General Manager may be heard or conducted without holding a hearing only if:(a)it appears to the FWC that the appeal or review can be adequately determined without persons making oral submissions for consideration in the appeal or review; and (b)the persons who would otherwise, or who will, make submissions (whether oral or written) for consideration in the appeal or review consent to the appeal or review being heard or conducted without a hearing.(2) The FWC may:(a) admit further evidence; and (b) take into account any other information or evidence.(3) The FWC may do any of the following in relation to the appeal or review:(a) confirm, quash or vary the decision;(b)make a further decision in relation to the matter that is the subject of the appeal or review;(c)refer the matter that is the subject of the appeal or review to an FWC Member (other than an Expert Panel Member) and:(i)require the FWC Member to deal with the subject matter of the decision; or(ii)require the FWC Member to act in accordance with the directions of the FWC. Section 400 provides:(1)Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part unless the FWC considers that it is in the public interest to do so.(2)Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact. The nature of the jurisdiction under those provisions is discussed in cases such as Ulan Coal Mines Limited v Honeysett (2010) 199 IR 363 (at [22] – [24]) and the authorities referred to therein. The powers of the Full Bench on such an appeal are broader in important respects than those of this Court on an application for judicial review. In addition to there being no need to identify errors that may properly be regarded as jurisdictional, the Full Bench may identify and correct significant errors of fact and (if error be demonstrated) make its own findings so as resolve the underlying controversy.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Review from:	Jovan Jovcic and Filip Markovic v Coopers Brewery Limited [2022] FWC 1931
File number:	SAD 140 of 2022
Judgment of:	CHARLESWORTH J
Date of judgment:	5 April 2023
Date of publication of reasons:	5 May 2023
Catchwords:	ADMINISTRATIVE LAW – application for judicial review of a decision of a single member of the Fair Work Commission – discretion to refuse relief on the basis that there exists an alternative procedure for the resolution of the applicants’ underlying claims – relief refused on the basis that there exists a right to seek permission to appeal to the Full Bench of the Fair Work Commission and no reason has been advanced for the applicants’ failure to exercise the right
Legislation:	Fair Work Act 2009 (Cth) ss 381,400, 570, 604, 607 Judiciary Act 1903 (Cth) s 39B
Cases cited:	Bragg v Secretary, Department of Employment, Education and Training (1995) 59 FCR 31 Construction, Forestry, Maritime, Mining and Energy Union v Mt Arthur Coal Pty Ltd (2021) 310 IR 399 Fox v Percy (2003) 214 CLR 118 Jovan Jovcic and Filip Markovic v Coopers Brewery Limited [2022] FWC 1931 Ulan Coal Mines Limited v Honeysett (2010) 199 IR 363 Warren v Coombes (1979) 142 CLR 531
Division:	Fair Work Division
Registry:	South Australia
National Practice Area:	Employment and Industrial Relations
Number of paragraphs:	47
Date of hearing:	20 March 2023 and 5 April 2023
Counsel for the Applicants:	Mr S Ower KC with Mr S Lindsey
Solicitor for the Applicants:	Polson Legal
Counsel for the First Respondent:	Mr S McDonald SC with Ms K Stewart
Solicitor for the First Respondent:	Piper Alderman
Counsel for the Second Respondent:	The Second Respondent filed a Submitting Notice

ORDER MADE BY:	CHARLESWORTH J
DATE OF ORDER:	5 APRIL 2023