FEDERAL COURT OF AUSTRALIA
Menzies v Fair Work Commission [2020] FCA 36
File number: NSD 1780 of 2018 Judge: KATZMANN J Date of judgment: 4 February 2020 Catchwords: INDUSTRIAL LAW — judicial review of decision of Full Bench of Fair Work Commission to refuse permission to appeal — whether decision affected by jurisdictional error — alleged errors relating to weight to be attached to factors in s 366(2) of Fair Work Act 2009 (Cth), legal representation for employer in preparation of submissions; alleged failure of Commission to comply with Code of Conduct — apprehended bias — circumstances in which parties may be legally represented in matters before Fair Work Commission —whether employment backgrounds of members of Fair Work Commission before appointments to Commission gives rise to apprehended bias — whether alleged failure to comply with Code of Conduct constitutes jurisdictional error Legislation: Fair Work Act 2009 (Cth) ss 44(1), 125, 365, 366, 400, 562, 563, 569, 569A, 570, 577(a), 581B, 596, 604(1), 609, 613(1), 626(1), 627, 789, Pts 2-3, 2-6, 3-1, 5-1 div 5
Fair Work Commission Rules 2013 (Cth) r 12
Federal Court of Australia Act 1976 (Cth) ss 37N, 37M, 53A
Judiciary Act 1903 (Cth) s 39B
Migration Act 1958 (Cth) ss 420(1), 353(1)
Cases cited: Abebe v The Commonwealth of Australia (1999) 197 CLR 510
Attorney-General (NSW) v Quin (1990) 170 CLR 1
Australasian Meat Industry Employees’ Union v Fair Work Australia(No 2) (2012) 203 FCR 430
Australian Workers Union v Leighton Contractors Pty Limited (No 2) (2013) 232 FCR 428
Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v ALS IndustrialAustralia Pty Ltd (2015) 235 FCR 305
Baker v Patrick Projects Pty Ltd (2014) 226 FCR 302
Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Ex parte Hebburn Ltd; Re Kearsley Shire Council (1947) 47 SR (NSW) 416; 64 WN (NSW) 107
Fair Work Building Industry Inspectorate v Foxville Projects Group Pty Ltd [2015] FCA 492
Fitzgerald v Woolworths [2017] FWCFB 2797
George v Fletcher (a trustee) [2012] FCAFC 148
Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70
Livesey v New South Wales Bar Association (1983) 151 CLR 288
Menzies v Lindsay Australia Limited t/a Lindsay Brothers Management [2018] FWC 1850
Menzies v Lindsay Australia Limited t/a LindsayBrothers Management [2018] FWCFB 1037
Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24
Minister for Immigration and Border Protection v Li (2013) 249 CLR 332
Minister for Immigration v Jia Legeng (2001) 205 CLR 507
Mwango v Fair Work Commission [2019] FCA 1274
Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1
Re Commonwealth of Australia; Ex parte Marks (2000) 75 ALJR 470
Re Finance Sector Union of Australia; Ex parte Illaton Pty Ltd
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Details
- AGLC
- Menzies v Fair Work Commission [2020] FCA 36
- Case
- [2020] FCA 36
- Decision Date
CaseChat Overview and Summary
The applicant, Mr Menzies, sought judicial review of a decision by the Full Bench of the Fair Work Commission (FWC), which refused him permission to appeal an earlier decision. The dispute involved whether the Full Bench's decision was affected by jurisdictional error, specifically regarding the weight attached to factors in s 366(2) of the Fair Work Act 2009 (Cth), and whether the Commission erred by allowing the respondent to be legally represented. Additionally, Mr Menzies alleged that the Full Bench members had an apprehended bias due to their prior employment backgrounds and that the Commission failed to comply with its own Code of Conduct.
The primary legal issues before the court were whether the Full Bench's refusal to grant permission to appeal was a jurisdictional error, whether the Commission correctly allowed the respondent to be legally represented, and if the Full Bench's decision was tainted by apprehended bias or a failure to comply with the Code of Conduct. The court had to assess whether the Full Bench's decision was legally sound and whether any alleged errors were substantial enough to warrant a review.
The court found that the Full Bench's decision was not affected by jurisdictional error. It held that the Full Bench had considered all relevant factors in determining the appeal's merits and the public interest. The court concluded that Mr Menzies had not demonstrated any significant error in the Full Bench's approach to the statutory provisions or the Code of Conduct. Moreover, the court rejected the allegation of apprehended bias, finding no basis for it in the Full Bench members' prior employment backgrounds. Consequently, the court dismissed Mr Menzies' application for judicial review.
The final orders of the court were that the application be dismissed and that Mr Menzies pay the second respondent's costs.
The primary legal issues before the court were whether the Full Bench's refusal to grant permission to appeal was a jurisdictional error, whether the Commission correctly allowed the respondent to be legally represented, and if the Full Bench's decision was tainted by apprehended bias or a failure to comply with the Code of Conduct. The court had to assess whether the Full Bench's decision was legally sound and whether any alleged errors were substantial enough to warrant a review.
The court found that the Full Bench's decision was not affected by jurisdictional error. It held that the Full Bench had considered all relevant factors in determining the appeal's merits and the public interest. The court concluded that Mr Menzies had not demonstrated any significant error in the Full Bench's approach to the statutory provisions or the Code of Conduct. Moreover, the court rejected the allegation of apprehended bias, finding no basis for it in the Full Bench members' prior employment backgrounds. Consequently, the court dismissed Mr Menzies' application for judicial review.
The final orders of the court were that the application be dismissed and that Mr Menzies pay the second respondent's costs.
Orders
Orders of the court
1. The application be dismissed.
2. The applicant pay the second respondent’s costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
By an amended originating application filed on 16 July 2019, Mr Menzies challenges the decision of the Full Bench on a number of grounds.Background The application to the Commission was initially allocated to Commissioner Riordan and the parties were informed that the matter would be listed on 19 December 2017 for “an Extension of Time Conference/Hearing via telephone”. The parties were directed to file their outlines of argument by 13 December 2017. That day, Russ Baldwin of BBW Lawyers submitted Lindsay’s outline of argument and, in a covering email copied to Mr Menzies, sought leave to appear on its behalf. Mr Menzies, who had no legal representation, emailed the chambers of Commissioner Riordan the same day. He did not mention Mr Baldwin’s application, merely noting that Lindsay was “represented by special Counsel”. He asked to be able to present his case in person, saying that he was “completely opposed to telephone hearings unless contentions are resolved by prior consent which [was] not the case in this matter”. His request was conveyed to Mr Baldwin, who opposed it because Lindsay’s representative was based in Brisbane and it would be inconvenient for her to travel to Sydney for the hearing. On 15 December 2017 Commissioner Riordan informed the parties that the matter would proceed by telephone and that this was the standard method for conducting hearings on applications for extensions of time. On 18 December 2017 he notified the parties that he had granted permission for Lindsay to be legally represented at that hearing. At the same time he advised Mr Menzies that, if he wished to attend in person, he was free to do so. Mr Menzies asked to be allowed to appear in person at the hearing and, in the light of Mr Menzies’ request, the Commission vacated the hearing, scheduled to take place the following day. On 22 December 2017 Commissioner Riordan published his reasons for granting permission for Lindsay to be legally represented. In short, he formed the view, based on the contents of Mr Menzies’ email, that he did not oppose Lindsay’s application. On 18 December 2017, Mr Menzies filed a notice of appeal. Two grounds were given, which were later supplemented by a third. In substance they were that:(1)granting the request for legal representation was contrary to s 596 of the FW Act, apparently on the basis that the Commissioner had allegedly ignored the fact that Lindsay had been legally represented for two weeks beforehand;(2)Mr Menzies had not been allowed to appear in person; and(3)the Commissioner made his decision without giving Mr Menzies the opportunity to be heard on Lindsay’s application for leave to be represented by a lawyer (leave application). Mr Menzies claimed that it would be in the public interest for the Commission to grant permission to appeal for two reasons: first, that it would be unjust and unfair for a large corporation like Lindsay to be represented by a large law firm; and second, that it was his “unalienable right” to appear in person.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
The hearing concluded on 2 May 2018 and the Second Full Bench reserved its decision. Four days later, Mr Menzies filed further submissions alleging apprehended bias on the part of members of the Full Bench based on the positions they held before they were appointed to the Commission. But no application was made for the Full Bench to recuse itself.The decision of the Second Full Bench The Second Full Bench held that the matters raised by Mr Menzies in his supplementary submissions did not provide a basis for an apprehension of bias. It considered that it was not in the public interest to grant permission to appeal and refused permission to appeal because Mr Menzies had not established that there was an arguable case of error in relation to any aspect of the decision or that the Commissioner’s conclusion was attended by sufficient doubt to warrant its reconsideration. On the question of the public interest, the Full Bench said that it was not persuaded that the public interest was “enlivened”, explaining “more specifically”, that it was not satisfied that there was “a diversity” of first instance decisions requiring guidance from an appellate body; that the appeal raised issues of importance and/or of general application; that the Commissioner’s decision manifested an injustice or that the result was counter-intuitive; or that the legal principles applied by the Commissioner were disharmonious when compared with other decisions dealing with similar matters. On the question of the Commissioner’s decision, the Full Bench held that there was no error of approach. The Full Bench stated (at [27]) that Commissioner Johns had “due regard” to each of the requirements in subs 366(2), dealt with them “in an orthodox way”, had regard to the evidence about the reasons for delay, determined that there were no exceptional circumstances, and weighed up that finding against the various factors in para 366(2)(b)–(e). It also considered that no significant error of fact was disclosed.The proceeding in this Court By an amended originating application filed on 16 July 2019 Mr Menzies sought the following relief:(1)a declaration that the decision of the Full Bench was made in jurisdictional error;(2)an order quashing the decision;(3)an order remitting the decision to the Commission for determination according to law; and(4)an order for costs. The relief was sought on the following three grounds:(1)in considering his application for an extension of time, the Commission failed to give weight to subs 366(2) and its “intentions” and “misused s 366 to deny [his] claim for pedantic reasons”, that is, Mr Menzies’ “well founded continued criticism” of the Commission;(2)the Commission erroneously allowed Lindsay to be legally represented without permission; and(3)the Commission failed to abide by its own code of conduct. Mr Menzies filed a number of documents, each of which was entitled “affidavit/submissions”. To the extent that these documents contained evidence that was before the Commission, they were received as evidence. To the extent that they contained submissions, they were received as submissions. The submissions canvassed a variety of matters, many of which were irrelevant to the present application or raised errors of no consequence. The submissions strayed beyond the grounds of the application and took issue with the merits of the various decisions made in connection with his unfair dismissal application, including the decisions of Commissioner Riordan and the First Full Bench. They were also inflammatory and replete with political and personal invective against Lindsay’s lawyers, the Commission and its members, and the barrister who had agreed to accept a referral from the Court to represent him.The statutory scheme and the relevant legal principles
Ratio Decidendi
Legal Principle Established
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