Wan v AIRC & Anor

The applicants, Mr. and Mrs. Wan, sought judicial review of a decision of the Australian Industrial Relations Commission (AIRC) and the second respondent, Mr. S. The dispute concerned the AIRC's refusal to grant leave to the applicants to appeal against a decision of a Senior Deputy President of the AIRC. The Senior Deputy President had dismissed the applicants' application for relief under s 170LW of the *Industrial Relations Act 1988* (Cth) (the Act), which related to unfair dismissal.

The primary legal issue before the Full Federal Court was whether the AIRC had erred in law by refusing to grant leave to appeal. Specifically, the court had to consider whether the AIRC had applied the correct test when determining whether to grant leave to appeal under s 170LW(3) of the Act, and whether the refusal to grant leave was demonstrably unjust or unreasonable.

Gaudron and Gummow JJ held that the AIRC had erred in law. Their Honours explained that the AIRC's approach to the application for leave to appeal had been based on a misunderstanding of the principles governing such applications. The court reiterated that leave to appeal should be granted where there is a reasonably arguable case of error on the part of the primary decision-maker, and that the refusal of leave in this instance was demonstrably unjust or unreasonable. The court found that the Senior Deputy President's decision contained errors of law, and that the AIRC had failed to properly consider these errors when assessing the application for leave to appeal.

The Full Federal Court ordered that the AIRC's decision refusing leave to appeal be quashed, and that the matter be remitted to the AIRC for reconsideration of the application for leave to appeal according to law.