Warrell v Fair Work Australia

[2012] FCA 267

FEDERAL COURT OF AUSTRALIA

Warrell v Fair Work Australia [2012] FCA 267

Citation:		Warrell v Fair Work Australia [2012] FCA 267
Appeal from:		Warrell v Bacto Laboratories Pty Ltd [2011] FWAFB 7548
Parties:		EDWARD GEORGE WARRELL v FAIR WORK AUSTRALIA and BACTO LABORATORIES PTY LTD
File number:		NSD 2200 of 2011
Judge:		PERRAM J
Date of judgment:		22 March 2012
Catchwords:		PRACTICE AND PROCEDURE – Fair Work Australia – natural justice and procedural fairness – whether Fair Work Australia breached rules of natural justice in refusing adjournment – whether jurisdictional error – whether writs of certiorari and mandamus available and appropriate
Legislation:		Fair Work Act 2009 (Cth) ss 394, 400, 604 Federal Court of Australia Act 1976 (Cth) s 23 Judiciary Act 1903 (Cth) s 39B(1)
Cases cited:		Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78 followed Plaintiff S157 of 2002 v The Commonwealth (2003) 211 CLR 476 followed Re Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82 followed Russell v Duke of Norfolk [1949] 1 All ER 109 considered Sullivan v Department of Transport (1978) 20 ALR 323 considered
Date of hearing:	15 March 2012
Place:	Sydney
Division:	FAIR WORK DIVISION
Category:	Catchwords
Number of paragraphs:	12
Counsel for the Applicant:	The applicant appeared in person
Counsel for the First and Second Respondents:	The first and second respondents did not appear

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
FAIR WORK DIVISION	NSD 2200 of 2011

BETWEEN: EDWARD GEORGE WARRELL
Applicant

AND:

FAIR WORK AUSTRALIA
First Respondent

BACTO LABORATORIES PTY LTD
Second Respondent

JUDGE:	PERRAM J
DATE OF ORDER:	22 MARCH 2012
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.Order absolute in the first instance for a writ of certiorari directed to Fair Work Australia to quash its orders of 8 November 2011.

2.Order absolute in the first instance for a writ of mandamus directed to Fair Work Australia to determine Mr Warrell’s application under s 604 of the Fair Work Act 2009 (Cth) according to law.

3.Fair Work Australia be differently constituted when obeying the writ issued under Order 2.

4.The title of the first respondents in the proceedings be changed to ‘Fair Work Australia’.

5.There be no order as to costs.

6.The exhibit be returned to the applicant.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
FAIR WORK DIVISION	NSD 2200 of 2011

BETWEEN: EDWARD GEORGE WARRELL
Applicant

AND:

FAIR WORK AUSTRALIA
First Respondent

BACTO LABORATORIES PTY LTD
Second Respondent

JUDGE:	PERRAM J
DATE:	22 MARCH 2012
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. Until 17 March last year Mr Warrell was employed as a gardener by the second respondent, Bacto Laboratories.  On that day he was dismissed from his employment for allegedly swearing at Mr Carter, Bacto’s managing director.  So long as an application is filed within 14 days, federal law permits an employee to complain of unfair dismissal…