Lee and Decision Maker - [2021] AATA 211

Lee and Decision Maker [2021] AATA 211 (4 February 2021)
Division:GENERAL DIVISION
File Number: 2020/5321
Re:Jeremy Lee
APPLICANT

AndDecision Maker
RESPONDENT

DECISION
Tribunal:Deputy President Dr P McDermott RFD
Date of decision: 4 February 2021
Date of written
reasons:12 February 2021
Place:Brisbane

The decisions are not reviewable by this Tribunal. Accordingly, I dismiss the application for review pursuant to subsection 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth).
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Deputy President Dr P McDermott RFD
CATCHWORDS
PRACTICE AND PROCEDURE – jurisdiction – whether Order as to manner of proceedings made by a Judge of the Federal Court of Australia reviewable by this Tribunal – no jurisdiction conferred upon Tribunal to review Orders of a Judge of the Federal Court of Australia – application dismissed under subsection 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth)
LEGISLATIVE MATERIALS
Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Decisions (Judicial Review) Act 1977 (Cth)
Australian Constitution
Fair Work Act 2009 (Cth)
Federal Court of Australia Act 1976 (Cth)
CASE
Bienstein and Commonwealth Ombudsman (2003) 38 AAR 270
Bird v Minister for Schools, Vocational Education and Training (1994) 35 ALD 552
Edwards v Santos (2011) 242 CLR 421
Kostov (Bankrupt) v Australian Financial Security Authority [2020] FCA 1105
Lee v Super Wood Pty Ltd T/A Superior Wood [2018] FWC 4762
Lee v Super Wood Pty Ltd [2019] FWCFB 2946
Lee v Fair Work Commission [2020] FCA 733
Lee v Fair Work Commission (No 2) [2020] FCA 1204
Nyoni v Murphy [2018] FCAFC 75
Parke and Repatriation Commission (1985) 2 RPD 404
REASONS FOR DECISION
Deputy President Dr P McDermott RFD
12 February 2021
INTRODUCTION

On 28 August 2020, Mr Jeremy Lee, the applicant, lodged an application with this Tribunal for the review of decisions by a judge of the Federal Court of Australia not to order that a case management hearing and substantive hearing in proceedings before the Federal Court of Australia be held in-person. An interlocutory hearing was held before this Tribunal on 4 February 2021. I have decided, pursuant to subsection 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth), to dismiss this application because I am satisfied that the decisions of which the applicant seeks review are not reviewable by this Tribunal. I give my reasons for my decision as the applicant indicated that he would require me to provide these reasons.
BACKGROUND
The applicant’s present application relates to his dismissal from his employment with a timber company due to his refusal to use a finger-print scanner in the workplace; the purpose of the scanner appears to have been to automate the recording of attendance of employees. The applicant made an application to the Fair Work Commission (FWC) for unfair dismissal. At first he was unsuccessful,[1] however, following a subsequent appeal to the Full Bench of the FWC (FWCFB),[2] his dismissal was determined to have been unfair in accordance with the Fair Work Act 2009 (Cth) and his application was remitted to a…

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 Lee and Decision Maker

Details

AGLC: Lee and Decision Maker [2021] AATA 211
Case: [2021] AATA 211
Decision Date: 4 February 2021

CaseChat Overview and Summary

This matter concerned an application by Mr Jeremy Lee to the Administrative Appeals Tribunal (AAT) for a review of decisions made by a judge of the Federal Court of Australia. The decisions in question related to orders made by the Federal Court concerning case management and the manner of conducting hearings in proceedings initiated by Mr Lee. Mr Lee sought to have these Federal Court orders reviewed by the AAT, arguing they were administrative in character and that a Federal Court judge, as an officer of the Commonwealth, made decisions reviewable under the Administrative Decisions (Judicial Review) Act 1977 (Cth).

The primary legal issue before the AAT was whether it possessed the jurisdiction to review orders made by a judge of the Federal Court of Australia concerning the conduct of proceedings before that court. Specifically, the Tribunal had to determine if the applicant's assertion that the Federal Court orders were "administrative" in nature conferred jurisdiction upon the AAT, or if the nature of the decision-maker and the subject matter of the decision fell outside the AAT's review powers.

Deputy President McDermott RFD dismissed the application, finding that the AAT lacked jurisdiction to review orders made by a judge of the Federal Court of Australia. The Tribunal reasoned that the Administrative Appeals Tribunal Act 1975 (Cth) does not confer jurisdiction to review such judicial decisions. While acknowledging that Federal Court judges are officers of the Commonwealth, the Tribunal held that this fact alone did not render their judicial orders reviewable by the AAT. The Tribunal concluded that the applicant's argument that the orders were administrative was insufficient to establish jurisdiction, as the orders pertained to the management of Federal Court proceedings, a matter exclusively within the purview of the Federal Court.

Consequently, the application was dismissed pursuant to subsection 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth) on the basis that the decisions of which the applicant sought review were not reviewable by the Tribunal.

Orders

Orders of the court

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Background

Background to the litigation

On 28 August 2020, Mr Jeremy Lee, the applicant, lodged an application with this Tribunal for the review of decisions by a judge of the Federal Court of Australia not to order that a case management hearing and substantive hearing in proceedings before the Federal Court of Australia be held in-person. An interlocutory hearing was held before this Tribunal on 4 February 2021. I have decided, pursuant to subsection 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth), to dismiss this application because I am satisfied that the decisions of which the applicant seeks review are not reviewable by this Tribunal. I give my reasons for my decision as the applicant indicated that he would require me to provide these reasons.BACKGROUND The applicant’s present application relates to his dismissal from his employment with a timber company due to his refusal to use a finger-print scanner in the workplace; the purpose of the scanner appears to have been to automate the recording of attendance of employees. The applicant made an application to the Fair Work Commission (FWC) for unfair dismissal. At first he was unsuccessful,[1] however, following a subsequent appeal to the Full Bench of the FWC (FWCFB),[2] his dismissal was determined to have been unfair in accordance with the Fair Work Act 2009 (Cth) and his application was remitted to a single Commissioner of the FWC for determination of the appropriate remedy.[1] Lee v Super Wood Pty Ltd T/A Superior Wood [2018] FWC 4762.[2] Lee v Super Wood Pty Ltd [2019] FWCFB 2946. His application was then the subject of a further decision by a single Commissioner of the FWC, following which the applicant was paid an amount of money by way of compensation. The applicant then appealed the subsequent decision of the FWC to the FWCFB. However, after the first decision of the FWCFB and before the remitted application was determined again by the FWC, the applicant made applications to the Federal Court of Australia (proceedings QUD356/2019 and QUD 385/2019) in respect of the first FWC and FWCFB decisions. These applications were the subject of a judgment of Reeves J on 6 February 2020 in which those applications were dismissed. His Honour remarked that it was not “in any interest of justice, or consistent with the overarching purpose of civil litigation in Part VB of the Federal Court of Australia Act 1976 (Cth), to allow [the] proceedings to continue”.[3] At the time of the judgment, the applicant’s second appeal before the FWCFB was not yet resolved.[3] Lee v Fair Work Commission [2020] FCA 733. On 11 March 2020, the applicant applied to the Federal Court of Australia for an extension of time and leave to appeal the judgment of Reeves J dated 6 February 2020 (proceedings QUD65/2020 and QUD66/2020). These proceedings were dismissed in the judgment of Collier J dated 21 August 2020.[4] It is certain events arising out of these proceedings which are relevant to the present application before this Tribunal.[4] Lee v Fair Work Commission (No 2) [2020] FCA 1204.THE APPLICATION

Evidence

Evidence Before The Court

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Decision

Reasons for decision

On 2 July 2020, following a case management hearing conducted by Microsoft Teams, Collier J ordered that:(a)Proceedings QUD65/2020 and QUD66/2020 be heard together;(b)All hearings in those proceedings be conducted using Microsoft Teams in accordance with the Information Note;(c)The applicant file and serve submissions; (d)The applications be listed for a hearing on 23 July 2020; and(e)There be liberty to apply.Judgment of Collier J in Lee v Fair Work Commission (No 2) [2020] FCA 1204 (proceedings QUD65/2020 and QUD66/2020) On 21 August 2020, Collier J dismissed the applications of the applicant. At paragraph 55 of the judgment of Her Honour, there is a reference to Orders which were made on 16 July 2020. The applicant did not file a copy of these Orders with his application.THE INTERLOCUTORY HEARING At the interlocutory hearing, the applicant appeared by telephone and was unrepresented. There was some confusion at the outset of the hearing as to precisely what decision the applicant was requesting this Tribunal to review. This is because in the form of application for review by this Tribunal the applicant included four documents. This uncertainty was clarified by the applicant at the hearing when he specified that it was the decision by Collier J not to allow him to attend the hearings in-person. This decision was conveyed to the applicant by the Orders of Collier J dated 2 July 2020, a copy of which was filed with his application. The applicant also referred during the hearing to the Orders of Collier J dated 16 July 2020. A copy of these Orders was not provided to the Tribunal by the applicant. In any event, the applicant did not object when I proposed that my Associate obtain a copy of those Orders during the hearing from the website of the Commonwealth Courts, which my Associate was fortunately able to find. The Orders dated 16 July 2020 provided that:1.Orders 2, 3 and 4 of the Orders of 2 July 2020 be vacated.2.The applications for extension of time and leave to appeal filed on 11 March 2020 in proceeding QUD 65 of 2020 and proceeding QUD 66 of 2020 be determined on the papers.3.The applicant file and serve submissions, not exceeding 20 pages and in accordance with Practice Note APP2, and any further material on which he seeks to rely, in both proceedings by 4.00 pm on 31 July 2020.4.Judgment be reserved at close of business on 31 July 2020. The applicant remarked that he objected to the Orders dated 2 July 2020 and the Orders dated 16 July 2020. The applicant also indicated his objection to the Special Measures issued by the Chief Justice on 16 June 2020. I asked the applicant to advise the Tribunal on what basis he believed this Tribunal had jurisdiction to review Orders made by a Judge of the Federal Court of Australia. The applicant did not contend that the decision of which he sought review was made pursuant to any particular statute which conferred jurisdiction upon this Tribunal for the review of such decisions. The applicant’s main submission was that the Orders were reviewable by this Tribunal because the Orders were “administrative” in character. The applicant also raised a contention that a Judge of the Federal Court of Australia is an officer of the Commonwealth and, as a consequence, their decisions are reviewable by this Tribunal. The applicant relied upon the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act).THE LAW

Ratio Decidendi

Legal Principle Established

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