Martires v Endura Paint Pty Ltd (No 2)

[2021] FCA 179

FEDERAL COURT OF AUSTRALIA

Martires v Endura Paint Pty Ltd (No 2) [2021] FCA 179

Review of:

Martires v Endura Paints Pty Ltd (No 2) [2020] FCCA 717

File number:

WAD 224 of 2020

Judgment of:

JACKSON J

Date of judgment:

9 March 2021

Catchwords:

ADMINISTRATIVE LAW - application for judicial review of decision of the Federal Circuit Court of Australia - appeal from same decision already on foot - impermissible use of judicial review as an alternative to appeal - appeal having been granted, no decision to which certiorari may apply - application dismissed

Legislation:

Fair Work Act 2009 (Cth) s 570

Federal Court of Australia Act 1976 (Cth) s 24

Cases cited:

ADF15 v Minister for Immigration and Border Protection [2018] FCA 1099

Martires v Endura Paint Pty Ltd (Appeal) [2021] FCA 178

Minister for Immigration and Border Protection v SZVFW [2017] FCAFC 33, (2017) 248 FCR 1

Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476

Police v Lymberopoulos [2007] SASC 247; (2007) 98 SASR 433

R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389

Division:

General Division

Registry:

Western Australia

National Practice Area:

Employment and Industrial Relations

Number of paragraphs:

11

Date of hearing:

28 January 2021

Counsel for the Applicant:

The applicant appeared in person

Counsel for the First Respondent:

Ms KS Michael

Solicitor for the First Respondent:

Aherns Lawyers

Counsel for the Second Respondent:

The second respondent filed a submitting notice save as to costs

ORDERS

WAD 224 of 2020

BETWEEN:

EDMUND RICARDO MARTIRES

Applicant

AND:

ENDURA PAINT PTY LTD

First Respondent

FEDERAL CIRCUIT COURT OF AUSTRALIA

Second Respondent

ORDER MADE BY:	JACKSON J
DATE OF ORDER:	9 MARCH 2021

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The first respondent must file and serve any written submission on the costs of the application on or before 16 March 2021, such submission not to exceed three pages in length.

3.The applicant must file and serve any written submission on the costs of the application on or before 23 March 2021, such submission not to exceed three pages in length.

4.Any question of costs arising on such submissions will be dealt with on the papers.

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

REASONS FOR JUDGMENT

JACKSON J:

1. On 20 April 2020 the Federal Circuit Court of Australia dismissed an application which the present applicant, Mr Martires, brought under the Fair Work Act 2009 (Cth).

2. Mr Martires appealed to this court from that decision.  In a judgment delivered immediately before this one, I allowed the appeal, set aside the judgment of the Federal Circuit Court, and remitted the matter to that court for a new trial:  Martires v Endura Paint Pty Ltd(Appeal) [2021] FCA 178.

3. As well as the appeal, Mr Martires, who is self‑represented, brought an application for judicial review of the Federal Circuit Court's decision.  He sought a writ of certiorari and a writ of mandamus pertaining to this case.  That application is the subject of these reasons.

4. The court may refuse to grant constitutional writs in the exercise of its discretion on grounds which include that a more convenient and satisfactory remedy exists, and that no useful result could ensue:  R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389 at 400.

5. I dismiss this application on both of those discretionary grounds.

6. First, Mr Martires should not have commenced an application for judicial review of the Federal Circuit Court, when he had a full right of appeal entitling him to a rehearing, in the sense in which that term is used in the context of appellate jurisdiction:  Federal Court of Australia Act 1976 (Cth) s 24(1)(d); see e.g. ADF15 v Minister for Immigration and Border Protection [2018] FCA 1099 at [11] (Flick J). The appeal he brought gave this court, constituted by myself, the power to correct any errors of which Mr Martires complained which he was able to establish were appealable errors: see Minister for Immigration and Border Protection v SZVFW [2017] FCAFC 33, (2017) 248 FCR 1 at [41].

7. In contrast, to succeed in this application Mr Martires needed to establish a narrower category of error, namely jurisdictional error:  see Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476 at 508. The errors he alleged in this proceeding were the same as those alleged in the appeal (and both were heard together).

8. In short, this application was pointless.  An unnecessary multiplication of proceedings is to be discouraged:  see e.g. Police v Lymberopoulos [2007] SASC 247; (2007) 98 SASR 433 at [71] (Doyle CJ). I dismiss the application for certiorari and mandamus on that ground.

9. I also dismiss the application for certiorari for the further reason that there is nothing for it to operate on, the appeal having succeeded and the Federal Circuit Court decision having been set aside.  The matter having been remitted to that court, there is no need to issue mandamus (if there ever would have been anyway).

10. Mr Martires also applied for an order reversing the Federal Circuit Court decision and substituting this court's decision on the merits for that of the primary judge.  Such merits review can never be appropriate in an application of this kind.

11. The application must be dismissed. The first respondent having indicated a possible desire to seek costs under s 570 of the Fair Work Act, I will make a direction entitling it to do so by brief written submission within seven days.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jackson.

Associate:

Dated:       9 March 2021