Warrell v Fair Work Australia (No 2)

Case [2013] FCA 402


FEDERAL COURT OF AUSTRALIA

Warrell v Fair Work Australia (No 2) [2013] FCA 402

Citation: Warrell v Fair Work Australia (No 2) [2013] FCA 402
Parties: EDWARD GEORGE WARRELL v FAIR WORK AUSTRALIA and BACTO LABORATORIES PTY LTD
File number: NSD 1820 of 2012
Judge: FLICK J
Date of judgment: 3 May 2013
Catchwords: PRACTICE AND PROCEDURE – identification of decision-maker – statutory authority – order for substitution
Legislation cited: Federal Court Rules 2011 rr 9.05, 9.07, 9.08
Cases cited: Construction, Forestry, Mining and Energy Union v Hamberger [2011] FCA 719
Deva v University of Western Sydney [2011] FCA 199
NAZY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 744
SAAPv Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294
Sneddon v Minister for Immigration & Multicultural and Indigenous Affairs [2005] FCAFC 170, 88 ALD 84
SZAQL v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 759
VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117
Warrell v Walton [2013] FCA 291
Date of hearing: Heard on the papers
Place: Sydney
Division: FAIR WORK DIVISION
Category: Catchwords
Number of paragraphs: 5
Counsel for the Applicant: Mr Ian Neil SC with Mr C Bolger
Solicitor for the Applicant: Clayton Utz
Counsel for the First Respondent: The First Respondent submitted save as to costs
Counsel for the Second Respondent: The Second Respondent submitted to any order of the Court

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

FAIR WORK DIVISION

NSD 1820 of 2012

BETWEEN:

EDWARD GEORGE WARRELL
Applicant

AND:

FAIR WORK AUSTRALIA
First Respondent

BACTO LABORATORIES PTY LTD
Second Respondent

JUDGE:

FLICK J

DATE OF ORDER:

3 MAY 2013

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The name of the First Respondent be amended to “Fair Work Australia”.

2.An order in the nature of certiorari be granted quashing the orders and decision of the First Respondent made on 5 June 2012 in matter C2011/5891 (the “Decision”).

3.A declaration be made that the Decision was not a valid exercise of the powers of the First Respondent and the Decision is a nullity.

4.An order in the nature of mandamus be granted directing the Full Bench of the First Respondent to:

(i)grant the Applicant leave to appeal in proceedings C2011/5891 being the Appeal to the Full Bench of Fair Work Australia in Edward Warrell v Bacto Laboratories Pty Ltd;

(ii)uphold the appeal in proceedings C2011/5891 being the appeal to the Full Bench of Fair Work Australia in Edward Warrell v Bacto Laboratories Pty Ltd;

(iii)remit the proceedings U2011/9217, being the application by Edward Warrell to Fair Work Australia for an unfair dismissal remedy against Bacto Laboratories Pty Ltd, for rehearing by a different member of Fair Work Australia (now the Fair Work Commission).

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 1820…

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Warrell v Fair Work Australia (No 2) [2013] FCA 402
Case
[2013] FCA 402
Decision Date

CaseChat Overview and Summary

In the matter of Warrell v Fair Work Australia (No 2), the applicant, Edward George Warrell, sought relief against Fair Work Australia and Bacto Laboratories Pty Ltd. The case revolved around the applicant's appeal against an unfair dismissal decision made by Fair Work Australia, and his subsequent application for mandamus and certiorari to challenge the decision. The primary legal issue was whether the correct party had been identified as the respondent in the proceedings, particularly whether Fair Work Australia, as a statutory authority, should have been named instead of the individual members who made the decision.

The court held that the proper respondent in cases involving statutory authorities is the authority itself, rather than the individual members who exercise its powers. This principle was supported by previous cases such as Deva v University of Western Sydney and Construction, Forestry, Mining and Energy Union v Hamberger, which emphasised that the statutory authority, not its members, is the appropriate party to be named in legal proceedings. The court found that Fair Work Australia should have been the respondent in this case. The court granted the application to substitute Fair Work Australia as the first respondent and quashed the original decision made by the individual members of Fair Work Australia. The court further directed the Full Bench of Fair Work Australia to grant leave to appeal, uphold the appeal, and remit the unfair dismissal proceedings for rehearing by a different member of Fair Work Australia.

The final orders of the court were that the name of the first respondent be amended to "Fair Work Australia", the orders and decision made by Fair Work Australia on 5 June 2012 be quashed, a declaration be made that the decision was not a valid exercise of the powers of Fair Work Australia and is a nullity, and an order in the nature of mandamus be granted directing the Full Bench of Fair Work Australia to grant leave to appeal, uphold the appeal, and remit the unfair dismissal proceedings for rehearing by a different member of Fair Work Australia.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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