Stephen v Seahill Enterprises Pty Ltd - [2022] FCAFC 85

FEDERAL COURT OF AUSTRALIA
Stephen v Seahill Enterprises Pty Ltd [2022] FCAFC 85

Appeal from: Application for leave to appeal: Stephen v Seahill Enterprises Pty Ltd [2021] FWCFB 2623

File number: QUD 172 of 2021

Judgment of: LOGAN, ANDERSON AND DOWNES JJ

Date of judgment: 14 February 2022

Catchwords:
INDUSTRIAL LAW – application under s 39B of the Judiciary Act 1903 (Cth) for writs in the nature of certiorari and mandamus to the Full Bench of the Fair Work Commission – where Full Bench upheld appeal against decision of Commissioner of the Fair Work Commission determining certain documents were subject to legal professional privilege – where applicant contended that finding of legal professional privilege and that there had been no waiver of privilege was irrational, illogical or unreasonable – where any error by Full Bench was an error within jurisdiction – application dismissed

COSTS – costs in proceedings relating to a matter arising under the Fair Work Act 2009 (Cth) – unreasonable acts or omissions causing the other party to incur costs – where lapse by applicant in complying with timetable for filing and service of appeal book – where case management hearing convened to ascertain date for filing of overdue application book – where applicant abandoned grounds of application during course of hearing – application for costs granted

Legislation:
Judiciary Act 1903 (Cth) s 39B

Fair Work Act 2009 (Cth) ss 570, 590, 607, 789FC

Federal Court of Australia Act 1976 (Cth) ss 37M, 37N

Cases cited:
AWB Ltd v Cole (2006) 152 FCR 382

Bianco Walling Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union (2020) 275 FCR 385

Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78

Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission (2000) 203 CLR 194

Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (No 2) (2015) 230 FCR 337

Craig v South Australia (1995) 184 CLR 163

Ex parte Hebburn Ltd; Re Kearsley Shire Council (1947) 47 SR (NSW) 416

Re Commonwealth of Australia; Ex parte Marks (2000) 75 ALJR 470

Division: Fair Work Division

Registry: Queensland

National Practice Area: Employment and Industrial Relations

Number of paragraphs: 51

Date of hearing: 14 February 2022

Counsel for the Applicant: Mr C Jennings QC with Mr G Rebetzke

Solicitor for the Applicant: Archibald & Brown Lawyers

Counsel for the First and Second Respondents: Mr TA Spence

Solicitor for the First and Second Respondents: Carter Newell Lawyers

Counsel for the Third Respondent: The Third Respondent filed a submitting notice, save as to costs

ORDERS

QUD 172 of 2021

BETWEEN:
DAMIEN STEPHEN

Applicant

AND:
SEAHILL ENTERPRISES PTY LTD

First Respondent

DENISE FITZGIBBONS

Second Respondent

FAIR WORK COMMISSION

Third Respondent

ORDER MADE BY:

LOGAN, ANDERSON AND DOWNES JJ

DATE OF ORDER:

14 FEBRUARY 2022

THE COURT ORDERS THAT:
1.The application be dismissed.
2.The applicant pay the following costs of the first and second respondents:
(a)the costs of and incidental to the directions hearing conducted on 9 February…

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.

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Details

Case: [2022] FCAFC 85
Decision Date: 14 February 2022

CaseChat Overview and Summary

The applicant, Stephen, sought judicial review of a decision by the Full Bench of the Fair Work Commission that upheld an appeal against a Commissioner's decision that certain documents were subject to legal professional privilege. The applicant argued that the Full Bench erred in finding that the documents were subject to legal professional privilege and that there had been no waiver of privilege. The Full Bench's decision was within its jurisdiction, and therefore, the application for writs in the nature of certiorari and mandamus was dismissed.

The primary legal issue before the court was whether the Full Bench's decision was irrational, illogical, or unreasonable. The applicant contended that the Full Bench erred in finding that the documents were subject to legal professional privilege and that there had been no waiver of privilege. However, the court found that the Full Bench's decision was not irrational, illogical, or unreasonable, and therefore, the application for judicial review was dismissed.

The court held that any error by the Full Bench was an error within jurisdiction, and therefore, the application for writs in the nature of certiorari and mandamus was dismissed. The court also granted an application for costs against the applicant, finding that the applicant's lapse in complying with the timetable for filing and serving the appeal book and abandoning grounds of the application during the course of the hearing constituted unreasonable acts or omissions that caused the respondents to incur costs.

The court ordered that the application be dismissed and that the applicant pay the respondents' costs, including the costs of and incidental to the directions hearing conducted on 9 February 2022 and 40% of the respondents' costs incurred following the service on the applicant of the respondents' outline of submissions. The costs were to be fixed by a Registrar in the absence of agreement.

Orders

Orders of the court

1. The application be dismissed.

2. The applicant pay the following costs of the first and second respondents:

(a) the costs of and incidental to the directions hearing conducted on 9 February 2022; and

(b) 40% of the first and second respondents’ costs incurred following the service on the applicant of the respondents’ outline of submissions, in each instance, the costs to be fixed by a Registrar in the absence of agreement.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Appeal from:	Application for leave to appeal: Stephen v Seahill Enterprises Pty Ltd [2021] FWCFB 2623
File number:	QUD 172 of 2021
Judgment of:	LOGAN, ANDERSON AND DOWNES JJ
Date of judgment:	14 February 2022
Catchwords:	INDUSTRIAL LAW – application under s 39B of the Judiciary Act 1903 (Cth) for writs in the nature of certiorari and mandamus to the Full Bench of the Fair Work Commission – where Full Bench upheld appeal against decision of Commissioner of the Fair Work Commission determining certain documents were subject to legal professional privilege – where applicant contended that finding of legal professional privilege and that there had been no waiver of privilege was irrational, illogical or unreasonable – where any error by Full Bench was an error within jurisdiction – application dismissed COSTS – costs in proceedings relating to a matter arising under the Fair Work Act 2009 (Cth) – unreasonable acts or omissions causing the other party to incur costs – where lapse by applicant in complying with timetable for filing and service of appeal book – where case management hearing convened to ascertain date for filing of overdue application book – where applicant abandoned grounds of application during course of hearing – application for costs granted
Legislation:	Judiciary Act 1903 (Cth) s 39B Fair Work Act 2009 (Cth) ss 570, 590, 607, 789FC Federal Court of Australia Act 1976 (Cth) ss 37M, 37N
Cases cited:	AWB Ltd v Cole (2006) 152 FCR 382 Bianco Walling Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union (2020) 275 FCR 385 Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78 Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission (2000) 203 CLR 194 Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (No 2) (2015) 230 FCR 337 Craig v South Australia (1995) 184 CLR 163 Ex parte Hebburn Ltd; Re Kearsley Shire Council (1947) 47 SR (NSW) 416 Re Commonwealth of Australia; Ex parte Marks (2000) 75 ALJR 470
Division:	Fair Work Division
Registry:	Queensland
National Practice Area:	Employment and Industrial Relations
Number of paragraphs:	51
Date of hearing:	14 February 2022
Counsel for the Applicant:	Mr C Jennings QC with Mr G Rebetzke
Solicitor for the Applicant:	Archibald & Brown Lawyers
Counsel for the First and Second Respondents:	Mr TA Spence
Solicitor for the First and Second Respondents:	Carter Newell Lawyers
Counsel for the Third Respondent:	The Third Respondent filed a submitting notice, save as to costs

ORDER MADE BY:	LOGAN, ANDERSON AND DOWNES JJ
DATE OF ORDER:	14 FEBRUARY 2022