Keane v Woolworths Group Ltd

Case [2023] FCA 379

FEDERAL COURT OF AUSTRALIA

Keane v Woolworths Group Ltd [2023] FCA 379

File number(s): SAD 113 of 2022
Judgment of: O'SULLIVAN J
Date of judgment: 2 May 2023
Catchwords: EMPLOYMENT LAW – appeal from decision of Commissioner of the Fair Work Commission – where Commissioner of the Fair Work Commission found that parties reached binding settlement – whether Commissioner demonstrated actual or apprehended bias – whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question – where no basis to support allegations of actual or apprehended bias found – application dismissed
Legislation:

Administrative Decisions (Judicial Review) Act 1977 (Cth), s 11(1)

Fair Work Act 2009 (Cth), s 587

Federal Court Rules 2011 (Cth), r 31.01(1)

Judiciary Act 1903 (Cth), s 39B

Cases cited:

Charisteas v Charisteas [2021] HCA 29; (2021) 273 CLR 289

Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194

Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163

Ebner v Official Trustee in Bankruptcy [2000] HCA 63, (2000) 205 CLR 337

Hossain v Minister for Immigration [2018] HCA 34; (2018) 264 CLR 123

Minister for Immigration and Border Protection v SZMTA & Anor [2019] HCA 3; (2019) 264 CLR 421

Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17, (2001) 205 CLR 507

R v Australian Stevedoring Industry Board; Ex Parte Melbourne Stevedoring Co-Pty Ltd [1953] HCA 22, (1953) 88 CLR 100

R v Rich (Ruling No. 21) [2009] VSC 32

Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71
Division: Fair Work Division
Registry: South Australia
National Practice Area: Employment and Industrial Relations
Number of paragraphs: 45
Date of hearing: 8 November 2022
Counsel for the Applicant: The Applicant appeared in person
Solicitor for the First Respondent: Mr A Short for Minter Ellison
Solicitor for the Second Respondent: Mr S Reeves for the Australian Government Solicitor

ORDERS

SAD 113 of 2022
BETWEEN:

THOMAS COURTNEY KEANE

Applicant
AND:

WOOLWORTHS GROUP LTD

First Respondent

FAIR WORK COMMISSION

Second Respondent

ORDER MADE BY:

O'SULLIVAN J

DATE OF ORDER:

2 MAY 2023

THE COURT ORDERS THAT:

1.The application is dismissed.

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


REASONS FOR JUDGMENT

O’SULLIVAN J:

  1. Until 21 December 2020, the applicant was employed by the first respondent, Woolworths Group Limited at which time his employment was terminated.  He filed an unfair dismissal application with the Fair Work Commission seeking reinstatement of his employment and compensation for lost wages.

  2. On 18 March 2021, the parties participated in a Conciliation conducted by Commissioner Hampton of the Commission.  Woolworths contend that at that Conciliation, the parties reached a binding settlement.

  3. Subsequently, there was a dispute between the parties as to whether in fact a binding settlement had been reached.

  4. Woolworths issued an application pursuant to…

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Details
AGLC
Keane v Woolworths Group Ltd [2023] FCA 379
Case
[2023] FCA 379
Decision Date

CaseChat Overview and Summary

The case of Keane v Woolworths Group Ltd involved an appeal against a decision of the Commissioner of the Fair Work Commission, which found that the parties had reached a binding settlement. The applicant, Keane, sought judicial review of this decision, arguing that the Commissioner demonstrated actual or apprehended bias. The Federal Court was required to determine whether the Commissioner's decision was affected by jurisdictional error.

The central legal issues before the court were whether the Commissioner exhibited actual or apprehended bias, and if the Commissioner's actions could be seen as prejudicial or partial. The court considered the principles of bias and apprehended bias, noting that actual bias requires cogent evidence of prejudgment or partisanship by the decision-maker. The court also examined whether a fair-minded lay observer might reasonably apprehend that the Commissioner might not bring an impartial mind to the resolution of the question.

The court found that there was no basis to support the allegations of actual or apprehended bias. The evidence provided by Woolworths' solicitor, Ms O’Keeffe, was accepted as credible, and the court determined that there was no misconduct on the part of Commissioner Hampton or Platt. The court concluded that the Commissioner's decision to implement the agreed terms as recorded in the transcript was lawful and free from jurisdictional error.

The court dismissed the application, finding no grounds for the alleged bias. The decision of the Commissioner was upheld, and the applicant's application for judicial review was dismissed. The court did not find any jurisdictional error in the Commissioner's decision, and therefore, no further orders were necessary.

Orders

Orders of the court

1. The 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

In SZMTA at [45]-[47], Bell, Gageler and Keane JJ said:45. Materiality, whether of a breach of procedural fairness in the case of an undisclosed notification or of a breach of an inviolable limitation governing the conduct of the review in the case of an incorrect and invalid notification, is thus in each case essential to the existence of jurisdictional error. A breach is material to a decision only if compliance could realistically have resulted in a different decision.46. Where materiality is in issue in an application for judicial review, and except in a case where the decision made was the only decision legally available to be made, the question of the materiality of the breach is an ordinary question of fact in respect of which the applicant bears the onus of proof. Like any ordinary question of fact, it is to be determined by inferences drawn from evidence adduced on the application.Background Prior to the hearing on 9 April 2021, Commissioner Platt ordered a portion of the transcript of what occurred at the Conciliation Conference before Commissioner Hampton be provided to the parties. At the hearing before Commissioner Platt, evidence was received from Woolworth’s solicitor, Ms O’Keeffe, as to what occurred at the Conciliation Conference. She was cross-examined by the applicant. In the Commissioner’s reasons, her evidence was described as being that the parties had reached a binding settlement had been recorded by Commissioner Hampton and that the agreement was reduced to writing by Ms O’Keeffe. However, the applicant refused to sign it. Commissioner Platt referred to part of the transcript before Commissioner Hampton and reproduced part of the transcript in the Decision. Commissioner Platt determined: at [27] of the Decision that: “… the terms of the binding settlement are clearly contained in the transcript and no further document need be prepared and as such, the parties should implement the agreed terms without delay.”The parties’ submissions and consideration The applicant reads his affidavit sworn 20 October 2022 and the annexures thereto. Much of the material in the applicant’s affidavit is inadmissible, however neither respondents took issue with me reading the affidavit on the application. Woolworths reads the affidavits of Elizabeth Anne O’Keeffe affirmed 2 November 2022 and 8 April 2021 and the annexures thereto. The originating application identifies six matters by which the applicant says he is aggrieved by what is described as the Decision and “conduct”. Upon reading those six matters it is apparent that the majority of the “conduct” about which complaint is made relates to the acts or omissions of Commissioner Hampton and not Commissioner Platt. Woolworths submit that of the seven grounds upon which the applicant relies, the only matters which have the potential to amount to jurisdictional error are grounds one and seven. I accept that submission and will deal only with grounds one and seven. The applicant made oral submissions in addition to the material contained in his affidavit and its annexures. Although explained to him that this hearing was not a review of the merits of his unfair dismissal application, nonetheless his submissions focused on the merits of that application. In particular, much of the applicant’s submissions were directed to what he considered was a conspiracy against him by amongst others, Woolworths, the South Australian Police Force, the Australian Defence Force and Adelaide University.Ground one

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The applicant applies for judicial review of that Decision. The issue before the Court is whether the Commission’s Decision is affected by jurisdictional error.The originating application for judicial review The originating application does not identify the Act under which the application is brought. On its face the document is described as an “Originating Application for Judicial Review - Form 66 - Rule 31.01(1)”. Rule 31.01(1) of the Federal Court Rules 2011 (Cth) (FCR) is the rule relating to applications for orders under s 11(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act): FCR Dictionary in Schedule 1 to the FCR. The second respondent, filed a submitting notice but wished to be heard in relation to relief sought other than that available on judicial review and also allegations of fraud on the part of the Commissioner. I allowed the second respondent to make submissions on those points. The second respondent submitted that the application was in the nature of an application for judicial review under s 39B of the Judiciary Act 1903 (Cth) against the Decision. That is clearly correct. An application under s 39B of the Judiciary Act requires an application in a different form: FCR 31.11, Form 69. Nonetheless, it seems to me that in substance, the applicant wishes to engage the jurisdiction of the Court so as to be treated as an application for judicial review under s 39B of the Judiciary Act. I proceed on that basis. The originating application identifies the decision which is sought to be reviewed as the decision of the Commission that the applicant had entered into an “unspecified binding verbal agreement”. The originating application sets out six matters by which the applicant alleges he is aggrieved by the Decision and seven grounds. Principles An application for judicial review concerns whether there has been jurisdictional error. In a well-known passage in Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163, 179, the High Court said if an Administrative Tribunal falls into an error of law:… which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it. In Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194, at [31] (Gleeson CJ, Gaudron and Hayne JJ) the High Court observed on the question of whether there was jurisdictional error on the part of the Full Bench of the Australian Industrial Relations Commission that:There would only have been jurisdictional error on the part of the Full Bench if it had misconceived its role or if, in terms used by Jordan CJ in Ex parte Hebburn Ltd; Re Kearsley Shire Council, it "misunder[stood] the nature of [its] jurisdiction ... or 'misconceive[d] its duty' or '[failed] to apply itself to the question which [s 45 of the Act] prescribes'. . . or ' [misunderstood] the nature of the opinion which it [was] to form'(Citations omitted).

Ratio Decidendi

Legal Principle Established

Commissioner Platt determined: at [27] of the Decision that: “… the terms of the binding settlement are clearly contained in the transcript and no further document need be prepared and as such, the parties should implement the agreed terms without delay.”The parties’ submissions and consideration The applicant reads his affidavit sworn 20 October 2022 and the annexures thereto. Much of the material in the applicant’s affidavit is inadmissible, however neither respondents took issue with me reading the affidavit on the application. Woolworths reads the affidavits of Elizabeth Anne O’Keeffe affirmed 2 November 2022 and 8 April 2021 and the annexures thereto. The originating application identifies six matters by which the applicant says he is aggrieved by what is described as the Decision and “conduct”. Upon reading those six matters it is apparent that the majority of the “conduct” about which complaint is made relates to the acts or omissions of Commissioner Hampton and not Commissioner Platt. Woolworths submit that of the seven grounds upon which the applicant relies, the only matters which have the potential to amount to jurisdictional error are grounds one and seven. I accept that submission and will deal only with grounds one and seven. The applicant made oral submissions in addition to the material contained in his affidavit and its annexures. Although explained to him that this hearing was not a review of the merits of his unfair dismissal application, nonetheless his submissions focused on the merits of that application. In particular, much of the applicant’s submissions were directed to what he considered was a conspiracy against him by amongst others, Woolworths, the South Australian Police Force, the Australian Defence Force and Adelaide University.Ground one Ground one alleges that the actions of the Commission were clearly prejudicial, biased and partial. In the context of this application, that can only be directed to the actions of Commissioner Platt. Nonetheless, Woolworths submit that when the matters to which Ms O’Keeffe deposes in her affidavits are considered, there can be no suggestion of Commissioner Hampton acting in a manner which was prejudicial, bias or partial. The principles relating to bias and apprehended bias are well-settled.Actual Bias A claim of actual bias requires cogent evidence: R v Australian Stevedoring Industry Board; Ex Parte Melbourne Stevedoring Co-Pty Ltd [1953] HCA 22, (1953) 88 CLR 100, 116 (Dixon CJ, Williams, Webb and Fullagar JJ). In Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (1990) 81 FCR 71 (Wilcox, Burchett and North JJ), North J described actual bias in these terms: at p 134.Actual bias exists where the decision-maker has prejudged the case against the applicant, or acted with such partisanship or hostility as to show that the decision-maker had a mind made up against the applicant and was not open to persuasion in favour of the applicant. (Citations omitted)