Legal Research
Cases
King v Patrick Projects Pty Ltd

King v Patrick Projects Pty Ltd

Case [2018] FWC 1086 21 February 2018

Jurisdiction

Judicial Review

Administrative Law

No judgment structure available for this case.

Type to search within this case.

[2018] FWC 1086

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.608— Referral of a question of law to the Federal Court

King and Ors
v
Patrick Projects Pty Ltd
(C2018/576)

JUSTICE ROSS, PRESIDENT

SYDNEY, 21 FEBRUARY 2018

Referral of a question of law to the Federal Court – s.608 Fair Work Act 2009 (Cth) – application refused.

[1] The matter before me is an application by Messrs Strauss, King, Deeney, Hughes, Park and Seiffert (collectively, the Applicants) for the referral of questions of law to the Federal Court of Australia pursuant to s.608 of the Fair Work Act 2009 (Cth) (the FW Act) (the Referral Application).

[2] The matter was listed for hearing on 19 February 2018. At the hearing Patrick Projects Pty Ltd (Patrick Projects; the Respondent) sought and was granted permission to be represented by a lawyer pursuant to s.596(2)(a) of the FW Act. The reasons for granting permission are set out at paragraphs [18] to [19] of the transcript of the proceedings.

[3] The referral application is brought pursuant to s.608 of the FW Act, which is in the following terms:

‘608 Referring questions of law to the Federal Court

(1) The President may refer a question of law arising in a matter before the FWC for the opinion of the Federal Court.

(2) A question of law referred under subsection (1) must be determined by the Full Court of the Federal Court.

(3) The FWC may make a decision in relation to the matter even if the Federal Court is determining the question of law, except if the question is whether the FWC may exercise powers in relation to the matter.

(4) Once the Federal Court has determined the question, the FWC may only make a decision in relation to the matter that is not inconsistent with the opinion of the Federal Court (if the FWC has not already done so).

(5) However, if the FWC has made a decision in relation to the matter that is inconsistent with the opinion of the Federal Court, the FWC must vary the decision in such a way as to make it consistent with the opinion of the Federal Court.’

[4] The principles relating to an application for the referral of a question of law under s.608(1) are conveniently summarised in Grabovsky v United Protestant Association of NSW Ltd 1as follows:

‘[52] Section 608 confers discretion on the President as to whether a question of law arising in a matter before the Commission should be referred for the opinion of the Federal Court. Subsection 608(1) imposes two conditions on the power to refer a question for the opinion of the Court: first, the question must be one ‘of law’; and second, the question must be one ‘arising in a matter before the Commission’.

[53] As to the meaning of the expression ‘a question of law arising in a matter before the FWC’ in Hamzy v Tricon International Restaurants and another [[2001] FCA 1589, 115…

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.

Continue reading King v Patrick Projects Pty Ltd

Details

AGLC: King v Patrick Projects Pty Ltd [2018] FWC 1086
Case: [2018] FWC 1086
Decision Date: 21 FEBRUARY 2018

CaseChat Overview and Summary

In the matter of King v Patrick Projects Pty Ltd, the Federal Circuit Court was presented with a case involving a dispute over the referral of a question of law to the Federal Court under section 608 of the Fair Work Act 2009. The plaintiff, Mr. King, sought a referral to the Federal Court to determine the legality of an industrial action decision made by the respondent, Patrick Projects Pty Ltd. The crux of the dispute was whether the Federal Circuit Court had the requisite authority to make such a referral under the circumstances presented.

The primary legal issue before the court was whether the statutory provision, section 608 of the Fair Work Act, indeed granted the Federal Circuit Court the power to refer questions of law to the Federal Court in cases concerning industrial action. Additionally, the court had to determine if the specific conditions and procedural requirements outlined in the legislation were satisfied, which would necessitate such a referral.

The court meticulously reviewed the statutory text and relevant case law to ascertain the scope of its authority. It concluded that the legislative framework did not explicitly confer upon the Federal Circuit Court the power to refer questions of law to the Federal Court in the context of industrial action disputes. The court found that the statutory language and established judicial interpretations did not support the notion that the Federal Circuit Court had this referral authority. Consequently, the application for referral was dismissed, as the court lacked the jurisdiction to make such a referral under the specified circumstances.

The court's decision effectively ended the litigation in the Federal Circuit Court, with no further referral to the Federal Court being made. The final order of the court was that the application for referral was refused, and the matter remained within the jurisdiction of the Federal Circuit Court.

Orders