[2021] FWCFB 875
The attached document replaces the document previously issued with the above code on 18 February 2021.
The amendment is a correction to a case reference in footnote 11.
Jessica Gelsumini
Associate to Justice Ross, President
Dated 19 February 2021
| [2021] FWCFB 875 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Iain Kenneth Lockyear
v
Graeme Cox
(C2020/9263)
JUSTICE ROSS, PRESIDENT |
MELBOURNE, 18 FEBRUARY 2021 |
Appeal against decision [2020] FWC 6726 of Deputy President Lake at Brisbane on 14 December 2020 in matter number U2020/11234 – section 399A of the Fair Work Act – no application by the employer – denial of procedural fairness – appeal upheld – decision quashed – matter remitted
[1] Mr Iain Lockyear (the Appellant) has filed a notice of appeal in which he seeks permission to appeal and appeals a decision1 of Deputy President Lake issued on 14 December 2020 (Decision). In the Decision, the Deputy President dismissed the Appellant’s application for an unfair dismissal remedy pursuant to s.399A of the Fair Work Act 2009 (Cth) (FW Act). The matter was listed for hearing in respect of both permission to appeal and the merits of the appeal.
[2] Before considering the question of whether permission to appeal should be granted, it is necessary to say something about the procedural history of the Appellant’s unfair dismissal application.
[3] On 19 August 2020, the Appellant filed an application for an unfair dismissal remedy pursuant to s.394 of the FW Act in which he claimed he was unfairly dismissed by Mr Graeme Cox, through Freight and Logistics Queensland Pty Ltd T/A CNQ Freight Services (the Respondent).
[4] On 11 September 2020, the application was allocated to Deputy President Lake. Directions were issued by the Deputy President on 15 September 2020 listing the application for a conference on 17 September 2020 and an arbitration hearing on 8 and 9 December 2020. The Appellant was directed to file and serve an outline of submissions, witness statements and other documentary material in support of the application by 8 October 2020.
[5] On 18 and 21 September 2020, the Appellant filed handwritten notes and a statutory declaration, which were later confirmed to constitute his submissions.
[6] The Respondent requested that the hearing be adjourned until 14 and 15 January 2021. The request was granted and the initial hearing date of 8 December 2020 was maintained as an opportunity for the parties to engage in a further conciliation attempt. An email from the Deputy President’s Chambers on 2 November 2020 attached the amended Notice of Listing and provided as follows:
‘Dear Parties
The Deputy President is amenable to the request of the Respondent. The Hearing is now listed for 14 and 15 January 2021.
The parties must attend the Commission, in person, at 10am AEST on Thursday 8 December for an attempted conciliation conference. Find attached the revised Notice of Listing.’
(emphasis in original)
[7] Prior to the 8 December 2020 listing, the application was allocated to Commissioner Booth to conduct a conciliation conference on 1 December 2020. During the conciliation, the Appellant terminated the telephone call and attempts by the Commission to reconnect him were unsuccessful.
[8] On 1 December 2020, the Appellant sent an email to the Commission requesting that the hearing date be changed to accommodate his work commitments. The Deputy President’s Chambers responded as follows:
‘Dear Mr Lockyear
The Hearing dates were changed to 14 and 15 January 2021. Please see attached the Notice of Listing. The parties are also directed to attend a further conference, in person, on 8 December 2020. All parties must attend the Commission office in Brisbane. A failure to attend can result in the matter being dismissed.’
(emphasis added)
[9] On 8 December 2020, the Respondent attended the scheduled conciliation conference but there was no attendance by the Appellant. That day, the Deputy President’s Chambers sent the following email to the parties:
‘Dear parties,
Reference is made to the above matter and the in-person conference as listed before Deputy President Lake at Brisbane this morning at 10am. The notice of listing for this in person conference was issued on 2 November 2020, including to the Applicant’s email address...
The Respondent and its representative appeared at the Commission for this in-person conference, however at 10:05am the Applicant had not attended and accordingly a call was made to his mobile number. The first attempted call cut off after a couple of rings, however on a second dial the Applicant’s line was answered. During this call the Applicant advised he is unavailable to attend at the Commission today as he is moving, however seeks to progress his application to hearing. This was confirmed via email shortly after the call (correspondence attached here).
The Deputy President confirms receipt of the letter from the Applicant, however in light of the Applicant’s failure to follow a direction to attend at the Commission today, without notice of his inability to attend or any contact seeking an adjournment, the Deputy President must now turn his mind to whether the application should be dismissed for any failure of the Applicant to prosecute the matter.
Directions to the Applicant
The Applicant is directed to provide a written explanation as to the circumstances around his failure to attend at today’s conference, and submissions as to why the matter should not be dismissed in writing to Chambers and copied to the Respondent, by Friday, 11 December 2020.
Directions to the Respondent
The Respondent is invited to provide any response to the Applicant’s request for the matter to proceed by hearing, in writing to Chambers and copied to the Applicant, by Tuesday, 15 December 2020.
The Deputy President will then determine the matter of whether the application should be dismissed, or proceed to hearing as listed.
If the Applicant fails to file these submissions as directed, the application may be dismissed and it will be a matter for the Respondent whether it seeks an order for costs against the Applicant.’
(emphasis in original)
[10] The Appellant failed to file any submissions within the time prescribed by the Directions.
[11] On 14 December 2020, the Respondent sent the following email to the Deputy President’s Chambers, copied to the Appellant:
‘Dear Associate
We note that the Applicant was to provide a written explanation as to the circumstances around his failure to attend at the conference scheduled last Tuesday 8 December 2020 and provide submissions as to why the matter should not be dismissed in writing to Chambers and copied to the Respondent, by Friday, 11 December 2020 which the Applicant has failed to do.
The Applicant has failed now on 3 separate occasions to comply with Orders made by the Commission:
1. The Applicant on 1 December 2020 in the member assisted conference before Commissioner Booth failed to participate in the conference as he hung up on Commissioner Booth and would not accept the Commissions call when they tried to contact him back so the conference could proceed. No reason was provided for his failure to participate. The Respondent was in attendance and was ready, willing and able to try and resolve the matter at that point in time.
2. The Applicant despite numerous emails and a specific Order requesting him to attend the Commission in person on Tuesday 8 December 2020 for an in person conference once again failed to attend. The Respondent was in attendance and was ready, willing and able to try and resolve the matter at that point in time.
3. The Applicant failed to provide reasons for his non-attendance nor any submissions as to why his claim should not be dismissed despite Orders requiring him to do so by no later than Friday 11 December 2020.
Furthermore, we submit that the based on the evidence filed by the Applicant in support of his case, the Applicant’s conduct in the proceedings so far and his failure to prosecute his case and the fact that the Applicant has suffered no loss his claim is vexatious and frivolous and has no reasonable prospects of success. The Applicant’s conduct has put the Respondent to significant cost in defending the claim.
It is submitted that the Applicant’s conduct leaves the Deputy President with no option but to dismiss the Applicant’s application either pursuant to s399A(1) and (2) or s587 (b) and (c) of the Fair Work Act 2009 (‘the Act”).’
[12] Later the same day, the Deputy President issued the Decision in which he dismissed the Appellant’s unfair dismissal application. The matter before us is an appeal of the Decision.
[13] The Deputy President set out the relevant background at [1] – [9] of the Decision and concluded:
‘[10] Following 8 December 2020, no correspondence or communication has been received explaining the Applicant’s failure to respond. The Applicant has been given sufficient time and numerous opportunities to make contact.
[11] I have concluded that in the circumstances, the Applicant failed to comply with my reasonable direction and therefore, has failed to prosecute their claim. I find it is appropriate that I exercise my discretion, in this instance, to dismiss the Applicant’s unfair dismissal application pursuant to s 399A(1).’ 2
[14] On 15 December 2020, the Appellant sent an email to the Deputy President’s Chambers attaching handwritten correspondence in the following terms:
‘Dear Sir or Madam
My name is Iain Lockyear and I am writing to you about why I wasant there the other I through it was a phone comprance and as well packing as we had to move out off the house we were living in and live in our cars due to no rental propertys and yes we will be keeping the unfair dissmisal going and I will be there on the 14/15 January’
[15] On the same day, the Appellant made multiple telephone calls to the Deputy President’s Chambers. The Appellant was informed of the appeal process and an email confirming the same was sent to the Appellant.
[16] On 30 December 2020, the Appellant filed a Notice of Appeal and the matter was listed for hearing on 12 February 2021. Directions were issued to the parties requiring the Appellant to file submissions concerning permission to appeal and the merits of the appeal by 22 January 2021.
[17] On 1 January 2021, the Appellant sent to the presiding member a copy of handwritten correspondence which read:
‘Dear Sir
I Iain Lockyear did replie to the phone call 8/12/20 I throught it was a phone comferance and I didn’t no we had to appere in court other wise I wood have been there I email a letter saying the above and I was packing to move in to storeage and live im my car as no accomodation is avalbe. As you can see I am trying to do this on my and get what fairly is owed to me. this animal Gareame Cox owes my money still and compensation for unfairly dissmising me as he said he was going to bash & belt me when in got back to the yard so all I wont is a fair go from the court system. I have applied to everything to the best of my abillity. I was driving at truck I stopped for the comference on the side of the road and then had to travel on down the road as signal was not great so I have done my best and want a fair go please. *so this is a unfair dissial case Geame Cox did not give me the apporent waring at all he opened his mouth before inguaging his mouth and foot.’
[18] On 20 January 2021, the Appellant sent a further email which provided:
‘Dear Chamblen Ross
My name is Iain Lockyear and I am writing to you about my unfair dissmial claim. The solitator said to me I have a case for unfair dissmial so I want a fair go to restart the claim or are you going to let the employer Greame Cox get away with it. So I will wait to here from you as per dates for court and I will win the case.’
[19] On 26 January 2021, the Appellant sent the following email:
‘Hi Sir I am looking at legal aid to deal with this case as the court & justice sitem is here to let the employer Mr Graeame Cock get away with it and the employee get the kick out the door I under stand we don’t have a leg to stand on. But its ok 60 minetes will fix the problem for me and the court system and Mr Greame Cock or CNQ freight on tv thanks for you help.’
[20] The Respondent filed and served its responsive submissions in compliance with amended Directions of the Commission on 8 February 2021.
[21] We now turn to the appeal.
[22] An appeal under s.604 of the FW Act is an appeal by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker. 3 There is no right to appeal and an appeal may only be made with the permission of the Commission.
[23] This appeal is one to which s.400 of the FW Act applies. It provides:
(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part unless the FWC considers that it is in the public interest to do so.
(2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.
[24] In Coal & Allied Mining Services Pty Ltd v Lawler and others, 4 Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 as “a stringent one”.
[25] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.5 A Full Bench of the Commission, in GlaxoSmithKline Australia Pty Ltd v Makin, identified some of the considerations that may attract the public interest:
“… the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.” 6
[26] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error.7 However, the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.8
[27] The Appellant’s Notice of Appeal provides the following appeal grounds:
• I didn’t get to have my say
• I get a fair go
• I to go back to court
• I just want a fair go’
[28] In proceedings involving self-represented litigants, the Commission should endeavour to ascertain the true legal character of the argument made. As the High Court observed in Neil v Nott and Anor:
‘A frequent consequent of self-representation is that the court must assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy.’ 9
[29] It appears that the essence of the Appellant’s appeal grounds – framed in legal terms – is that he was denied procedural fairness. This was confirmed by the Appellant during the Appeal hearing. We proceed on that basis and now turn to consider whether the Decision is vitiated by a denial of procedural fairness.
[30] We observe at the outset that the power to dismiss an application is to be exercised cautiously. As the Full Bench observed in John Cole v Roy Hill Station Pty Ltd T/A Roy Hill Station: 10
‘The Courts have long held that the power to dismiss a substantive application should only be exercised cautiously and sparingly; a fortiori where, as here, the appellant has sought orders for relief for his alleged unfair dismissal. This is so because it results in the complete extinguishment of an applicant’s right to have his/her application for relief orders under beneficial legislation, heard and determined according to law. In short, the application is dismissed before an applicant has had his/her ‘day in court’, or as the appellant pleaded, he just wanted his case heard.’ 11
[31] As is clear from the Decision, the Deputy President dismissed the Appellant’s unfair dismissal application pursuant to s.399A of the FW Act.
[32] Section 399A provides:
‘399A Dismissing applications
(1) The FWC may, subject to subsection (2), dismiss an application for an order under Division 4 if the FWC is satisfied that the applicant has unreasonably:
(a) failed to attend a conference conducted by the FWC, or a hearing held by the FWC, in relation to the application; or
(b) failed to comply with a direction or order of the FWC relating to the application; or
(c) failed to discontinue the application after a settlement agreement has been concluded.
Note 1: For another power of the FWC to dismiss applications for orders under Division 4, see section 587.
Note 2: The FWC may make an order for costs if the applicant’s failure causes the other party to the matter to incur costs (see section 400A).
(2) The FWC may exercise its power under subsection (1) on application by the employer.
(3) This section does not limit when the FWC may dismiss an application.’
[33] It is apparent from s.399A(2) that the power to dismiss an application under s.399A(1) may only be exercised ‘on application by the employer’. 12 There is no record of such an application being made, in terms, in the proceedings before the Deputy President. Accordingly, on 9 February 2021 the Commission sent an email to both parties as follows:
‘Good morning
I write in relation to the above matter, listed for hearing before a Full Bench at 1:00 pm (AEDT)/ 12:00 noon (AEST) on Friday 12 February 2021.
The decision issued by Deputy President Lake on 14 December 2020 dismissed Mr Lockyear’s unfair dismissal application pursuant to s 399A(1) of the Fair Work Act 2009 (Cth).
The Commission may exercise its power under s 399A(1) to dismiss Mr Lockyear’s claim only on application by the respondent employer (s 399A(2)). At the appeal hearing, the respondent will be required to provide clarification as to whether an application under s 399A(1) was made before the Deputy President, and if so, whether Mr Lockyear was given an opportunity to respond to such application.’
[34] On the morning of the appeal hearing, the Respondent filed a supplementary submission addressing the issues raised in the email set out above.
[35] As to the question of whether a s.399A application was made, the Respondent submits that by email on 20 October 2020 it made an application to dismiss the Appellant’s application for an unfair dismissal remedy. The Respondent refers to the 20 October 2020 email as the ‘first application.’ It contends that the underlined text of the following email constitutes an application under s.399A:
‘Dear Associate
We advise the Commission that the Applicant has failed to comply with the first Direction made by Deputy President Lake on 15 September 2020 in that the Applicant has failed to file with the Fair Work Commission, and serve on the our client an outline of submissions, witness statements and other
documentary material the Applicant intends to rely on in support of their application by 4:00 pm AEST on Thursday 8 October 2020.
We have not been made aware of any extensions sought or granted and our client is not in a position to comply with the Directions until such time as the Applicant files his material. The onus of proof is on the Applicant to prove his claim and as he has failed to comply with the Orders made, we make application to the Court for the dispensing of the Directions and Orders made to have the Applicant’s claim struck out for want of prosecution and failure to comply with the Commissions directions.
We look forward to hearing from the Commission in relation to the future conduct of this matter.
Yours faithfully’
(emphasis added)
[36] The Respondent accepts that the application was not made by way of filing a Form 1 in accordance with Rule 8 of the Fair Work Commission Rules 2013 (Rules), and therefore was not made in accordance with s.585 of the FW Act. However, the Respondent submits that the Deputy President had the power pursuant to s.586 to waive the irregularity in its application made under s.399A.
[37] There are three difficulties with the Respondent’s position.
[38] First, the email of 20 October 2020 refers to the Appellant’s non-compliance with the Deputy President’s Directions of 15 September 2020. The Appellant was required to file and serve an outline of submissions and other material upon which he intended to rely in support of his unfair dismissal application. However, it appears that such non-compliance was later ‘cured’ by the Deputy President’s acceptance of a statement provided by the Appellant on 18 September 2020 as constituting his submissions in the substantive proceedings.
[39] Second, the email of 20 October 2020 makes no reference to s.399A and nor did the Deputy President characterise the email as an application under s.399A.
[40] Third, as conceded by Counsel for the Respondent during the Appeal hearing, to the extent that its email of 20 October 2020 is to be regarded as an application to dismiss the Appellant’s unfair dismissal application, it is clear that the Respondent did not press its application at such time.
[41] For these reasons, we are not persuaded that the Respondent’s email of 20 October 2020 constituted an application pursuant to s.399A; but even if the email could be so characterised, any such application was not pressed by the Respondent.
[42] In the alternative, the Respondent submits that it made a further application by email on 14 December 2020 to dismiss the Appellant’s unfair dismissal application pursuant to s.399A (the ‘second application’). The 14 December 2020 email is set out at [11] above. The pertinent part of that email provides as follows:
‘Furthermore, we submit that the based on the evidence filed by the Applicant in support of his case, the Applicant’s conduct in the proceedings so far and his failure to prosecute his case and the fact that the Applicant has suffered no loss his claim is vexatious and frivolous and has no reasonable prospects of success. The Applicant’s conduct has put the Respondent to significant cost in defending the claim.
It is submitted that the Applicant’s conduct leaves the Deputy President with no option but to dismiss the Applicant’s application either pursuant to s399A(1) and (2) or s587 (b) and (c) of the Fair Work Act 2009 (‘the Act”).
Should the Deputy President require more detailed submissions same will be provided upon request.’
[43] We note that the email is expressed as a submission. So much is clear from the words ‘we submit’, ‘it is submitted’ and the reference to ‘more detailed submissions’. At no stage is there any reference to an application. The contrast between the emails of 20 October 2020 and 14 December 2020 is stark. In the email of 20 October 2020, the Respondent clearly says, ‘we make application… to have the Applicant’s claim struck out’. In contrast, the email of 14 December 2020 makes no reference to an application being made. It is relevant to note that at all material times the Respondent was legally represented and hence had the resources and knowledge to file an application in the prescribed form.
[44] In these circumstances, we are not persuaded that the Respondent’s email of 14 December 2020 was an application pursuant to s.399A of the FW Act.
[45] If we are wrong and the Respondent’s email of 14 December 2020 should be accepted as constituting an application pursuant to s.399A, a question remains as to whether the Appellant was afforded a reasonable opportunity to respond to that application. For the reasons that follow, we are not satisfied that the Appellant was afforded such an opportunity. He was therefore denied a fair hearing.
[46] The Respondent submits that the Appellant was on notice from the ‘first application’ that it sought the dismissal of the unfair dismissal application on account of the Appellant’s failure to comply with the Orders and Directions of the Commission.
[47] Further, it is submitted that from at least 1 December 2020 the Deputy President put the Appellant on notice that a failure to attend the 8 December 2020 conciliation conference could result in his application being dismissed.
[48] Subsequent to the Appellant’s non-attendance at the 8 December 2020 conciliation conference, the Deputy President issued Directions to the Appellant in the following terms:
“…to provide a written explanation as to the circumstances around his failure to attend at today’s conference, and submissions as to why the matter should not be dismissed in writing to Chambers and copied to the Respondent, by Friday, 11 December 2020.”
(emphasis in original)
[49] The Respondent submits that the Appellant failed to comply with this Direction which resulted in the Respondent making the ‘second application’ on 14 December 2020.
[50] It is convenient to observe here that the Deputy President’s 8 December 2020 Directions cannot be said to have afforded the Appellant an opportunity to be heard in relation to the second purported application, because that application was not made until 14 December 2020.
[51] The Respondent further submits that:
• the Appellant was on notice since the Respondent’s first application on 20 October 2020 of the Respondent’s position regarding the Appellant’s non-compliance;
• the Appellant was advised by the Deputy President on 1 December 2020 that he was required to attend a conciliation conference in person on 8 December 2020, and that a failure to attend could result in his application for an unfair dismissal remedy being dismissed; and
• on 8 December 2020, the Appellant was directed to provide a written explanation as to the circumstances concerning his failure to attend the conciliation conference that day, and submissions as to why his application should not be dismissed. The Appellant was required to provide a written response to these matters by 11 December 2020, however failed to do so.
[52] By reason of the above, the Respondent submits that the Appellant was not denied procedural fairness and he was given an opportunity to advance a position as to why his unfair dismissal application should not be dismissed.
[53] We accept the Respondent’s chronology, but not the proposition advanced on the basis of it. While it should have been apparent to the Appellant that there was a concern in respect of his non-compliance with the Orders and Directions of the Commission, the steps taken fall short of providing the Appellant with a fair hearing.
[54] As we have mentioned, the Respondent’s first application was not pressed and was ultimately superseded by further steps in the proceedings. The ‘second application’ is said to have been made in an email dated 14 December 2020. On the same day, the Deputy President dismissed the Appellant’s unfair dismissal application pursuant to s.399A. Even if the 14 December 2020 email was accepted as a s.399A application, the Appellant was not afforded an opportunity to respond to it before the Decision issued.
[55] For the reasons earlier stated, we are not persuaded that the Respondent made an application pursuant to s.399A on 14 December 2020. On that basis, the Deputy President had no jurisdiction to dismiss the Appellant’s unfair dismissal application pursuant to s.399A of the FW Act.
[56] To the extent that it can be said that the Respondent did make a s.399A application (a proposition which, to say the least, is attended with significant doubt), we consider that in the circumstances, the Appellant was denied procedural fairness. The Appellant was not given a fair opportunity to be heard in relation to the Respondent’s second application. Whether, if he had been heard, the Appellant would have been successful in persuading the Deputy President not to dismiss his unfair dismissal application is beside the point; the critical issue is that the Appellant was denied the possibility of a successful outcome. 13
[57] In respect of the process that should be observed before the Commission considers dismissing an application under s.399A(1), we note the following:
1. An application under s.399A must be made by a party in accordance with the Rules by filing and serving a Form F1. 14 Where an application is made other than by a Form F1 (including in writing or orally), the Commission may waive compliance with the Rules pursuant to s.586 of the FW Act and accept the application.
2. The responding party must be served with a copy of the s.399A application and be given an opportunity to respond to it. The question of whether further material is required before such an opportunity is provided will depend upon the content of the s.399A application.
3. The Commission should advise the parties that should the responding party fail to address the s.399A application, the Commission may proceed to deal with the application on the material before it and that this may result in the dismissal of the claim for unfair dismissal remedy.
4. In circumstances where the responding party files material opposing the s.399A application, the applicant must be given an opportunity to advance any further material in support of its s.399A application, including by addressing the matters raised by the responding party.
5. A conference or hearing may be required where there are facts in dispute 15 and in many cases a short oral hearing will be the most expeditious way of dealing with a s.399A application.
[58] In most cases, it is not until these steps have been observed that the Commission is in a position to determine the s.399A application before it. It is worth reiterating that a cautious approach should be taken to dismissing a substantive application for relief.
[59] The errors we have identified are jurisdictional in nature. They have caused an injustice to the Appellant. We are satisfied that it would be in the public interest to grant permission to appeal. We will therefore grant permission to appeal, uphold the appeal and quash the Deputy President’s Decision. We consider that the appropriate course is to remit the matter to the Deputy President.
PRESIDENT
Appearances:
I. Lockyear, Appellant
T Spencer of counsel for the Respondent
Hearing details:
Melbourne (by video)
12 February 2021
Printed by authority of the Commonwealth Government Printer
<PR727095>
2 [2020] FWC 6726 at [10]- [11].
3 This is so because on appeal FWC has power to receive further evidence, pursuant to s.607(2); see Coal and Allied v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.
4 (2011) 192 FCR 78 at [43].
5 O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44]-[46].
6 [2010] FWAFB 5343, 197 IR 266 at [24] – [27].
7 Wan v AIRC (2001) 116 FCR 481 at [30].
8 Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089 at [28], 202 IR 288, affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, 241 IR 177 at [28].
9 (1995) 121 ALR 148 at [150]; see generally Minogue v Human Rights and Equal Opportunity Commission (1998) 84 FCR 438 and Seachange Management Pty Ltd v Bevnol Constructions & Developments Pty Ltd and others [2008] VCAT 1479 at [35] – [37] and [52] – [70].
10 [2019] FWCFB 2925 at [31].
11 Also see General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125; Micheletto v Korowa Anglican Girls’ School [2003] AIRC 1391 [PR940392].
12 Gary Granas v Berkeley Challenge Proprietary Ltd T/A Spotless [2015] FWCFB 1795 at [9]; see also Anita Shankar v Fairmont Resort & Spa [2020] FWCFB 7044 at [31].
13 See Stead v State Government Insurance Commission (1986) 161 CLR 141 at 147.
14 Rule 8(3) Fair Work Commission Rules 2013
15 Section 397 of the FW Act