Twomey v Que 5 Pty Ltd

The applicant, Mr Twomey, sought judicial review of decisions made by the Fair Work Commission (FWC) concerning an unfair dismissal claim. Mr Twomey was employed by Que 5 Pty Ltd, a small business with fewer than 15 employees, and was dismissed after less than a year of employment. The FWC dismissed Mr Twomey's claim on the basis that he had not completed the requisite 12-month minimum employment period to be protected from unfair dismissal. Mr Twomey then applied to the Full Bench of the FWC for permission to appeal this decision, which was refused. Dissatisfied with this outcome, Mr Twomey sought judicial review of the Full Bench's decision in the Federal Circuit and Family Court of Australia.

The central legal issue in this case was whether the Full Bench of the FWC erred in refusing Mr Twomey permission to appeal the original decision dismissing his unfair dismissal claim. Mr Twomey's grounds of appeal included allegations that the Deputy President gave permission for an incorrect appeal procedure, did not properly investigate the evidence, and failed to acknowledge or examine his complaints. The Federal Circuit and Family Court of Australia considered these grounds in light of the principles governing permission to appeal, which require a showing that the appeal is in the public interest and involves an arguable case of appealable error.

The Court found Mr Twomey's grounds of appeal to be without foundation. It determined that the Deputy President's approach at first instance was conventional and proper, and that the referral of the matter to the Deputy President for hearing after failed conciliation was not an appeal process. The Court also rejected Mr Twomey's contention that the Deputy President contradicted the conciliator's findings, noting that conciliation is confidential and does not result in established findings. The Full Bench's decision to refuse permission to appeal was found to be in the public interest and not based on an arguable error.

In light of the above, the Court dismissed Mr Twomey's application for judicial review. The Court noted that it would be futile to grant relief in respect of the original decision when the appellate decision stands and is conclusive. The Court also highlighted that it would not be in the interests of the administration of justice to reach conclusions contrary to the Full Bench's decision-making in its appellate jurisdiction. Consequently, the application was dismissed, and the matter was referred to the parties to address the issue of costs.

The Court ordered that the first respondent must file and serve any submissions on the costs of the proceeding by a specified date, followed by the applicant. The question of whether the first respondent is entitled to its costs of the proceeding will be determined on the papers, and there is liberty to apply in relation to the costs submissions.