[16] On 7 April 2025, the Deputy President's Chambers sent an email to the parties addressing procedural matters and noting that Mr Gilogley's submissions were due to be filed and served at 4:00pm the following day. In the absence of compliance by Mr Gilogley with this deadline on 8 April 2025, a further email was sent by Chambers to the parties on 9 April 2025:

I note the Applicant's submissions were due by 4:00pm, yesterday, 8 April 2025 as per the attached notice of listing and Directions. A reminder about the due date was also sent on 7 April 2025, in the email below.

The Applicant is directed to provide reasons for non-compliance, together with his submissions and evidence, by close of business, 15 April 2025. I note the Applicant has stated that he has evidence to support his bullying claim - this is the Applicant's opportunity to provide that evidence.

The Applicant is on notice that if he fails to comply with these amended Directions, the Deputy President will hold a non-compliance hearing on Tuesday, 22 April 2025 at 10:00am (QLD Time) via Microsoft Teams and will consider dismissing the application for want of prosecution under s.587 of the Fair Work Act.

If the matter proceeds to a non-compliance hearing, the Deputy President will seek submissions from both parties addressing the relevant considerations for dismissing applications for want of prosecution, including prejudice to either party and the prospects of success of the application.

[17] On 9 April 2025, amended directions were issued by the Deputy President which relevantly directed Mr Gilogley to file and serve his submissions and evidence in support of his application for a stop-bullying order by close of business on 15 April 2025.

[18] By email dated 14 April 2025, Mr Gilogley made a recusal application in respect of the Deputy President:

I kindly request the commission list this matter for the hearing of a recusal application, before commissioner Lake, on 22-04-2025 at 10am, which is the same date the commission set aside for a non compliance hearing.

I am still unwell and from previous correspondence with the commission I don't believe Commissioner Lake's is in a position to bring an impartial mind to determine my application.

This is in circumstances where my bullying claims are indivisible from my poor health - The certificates provided to the commission link my Major depressive disorder to the bullying I have suffered such that Commissioner Lake's assessment of my medical condition and the impact that it has had on my capacity to prosecute the claims at this time suggests pre judging the bullying allegations themselves.

[19] The recusal application was listed for hearing before the Deputy President on 22 April 2025. Directions were issued which required the filing of submissions and evidence in support of the recusal application by close of business on 17 April 2025.

[20] Mr Gilogley was also reminded that his submissions and evidence in support of his substantive stop-bullying application were due on 15 April 2025, in accordance with the Commission's amended directions of 9 April 2025. Mr Gilogley did not comply with this deadline. Accordingly, the Deputy President's Chambers sent further correspondence by email to the parties on 16 April 2025, which relevantly stated as follows:

I note the Applicant did not file his submissions by close of business, yesterday, 15 April 2025 in accordance with the amended Directions of 9 April 2025.

The Applicant was advised on 9 April 2025 that if he did not comply with these amended Directions then the matter would be listed for a noncompliance hearing and the Deputy President will consider dismissing the Application for want of prosecution. The Deputy President will consider whether to dismiss the application for want of prosecution on 22 April 2025. The Directions for the hearing on 22 April 2025 are as follows (for completeness, the Directions previously sent regarding the recusal application are included):

The Applicant and Respondent are to file submissions and evidence in support of the recusal application by close of business, Thursday, 17 April 2025. Assuming the Applicant is relying on the ground of apprehended bias, the parties are to address the test for apprehended bias as articulated by the High Court in Ebner v the Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337.

The Applicant and Respondent are to file submissions addressing whether the Application should be dismissed for want of prosecution under s.587 of the Fair Work Act by close of business, 17 April 2025. In that regard, the parties are directed to a recent decision of the Full Bench of the Fair Work Commission, Priestley v Blackfisch Films Pty Ltd [2025] FWCFB 40, which outlines at paragraphs [29] to [34] the considerations to be balanced by the Member when deciding whether to dismiss an application for want of prosecution.

The recusal application should be determined prior considering whether to dismiss the Application under s.587 for want of prosecution. On 22 April 2025, the Deputy President will first consider the recusal application on 22 April 2025 at 10am and make a decision on whether to recuse himself. If the recusal application is successful, the remainder of the Directions will be vacated. If the recusal application is not successful, then the Deputy President consider whether to dismiss the application under s.587.

[21] Mr Gilogley filed and served written submissions in support of his recusal application on 17 April and 21 April 2025 and the recusal/non-compliance hearing proceeded before the Deputy President on 22 April 2025 as listed. The parties were each granted permission to be legally represented. The Deputy President's decision was reserved, and the decision was published on 25 April 2025 dismissing the recusal application.

[22] After addressing the background to his decision, the Deputy President referred to the High Court decision in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 concerning the principles regarding apprehended bias, and their application by the Full Bench of the Commission in Woodside Energy Ltd v The Australian Workers' Union [2022] FWCFB 192.[2] The Deputy President proceeded by identifying "three overarching grounds from which the recusal application emanates." These were described as follows:[3]

• (a) recusal on the basis of apprehended bias because of prejudging the medical evidence;

• (b) recusal on the basis of apprehended bias because of legal error; and

• (c) recusal by reason of the Deputy President's interests being conflicted because of the complaint made against him to the President of the Commission pursuant to s 581A.

[23] In his consideration, the Deputy President:

(a) rejected Mr Gilogley's contention that he had made an "assessment" of Mr Gilogley's medical condition or found that Mr Gilogley had lied about his condition. The Deputy President stated that rather, he had "made it clear" that he did not regard Mr Gilogley's work capacity certificates or general practitioner's medical certificate as sufficient evidence of incapacity, such as to warrant an adjournment in the circumstances. In these circumstances, the Deputy President was not persuaded that a reasonable person would conclude that he might not bring an impartial mind to the application by declining to adjourn the conference on the basis of Mr Gilogley's medical evidence;[4]

(b) rejected Mr Gilogley's contention that he had erred in law by considering whether to dismiss Mr Gilogley's substantive stop-bullying application for non-compliance, by failing to give written reasons for refusing Mr Gilogley's adjournment request, failing to take into account Mr Gilogley's contention of disability discrimination, using s 577 of the Act as a source of power to dismiss Mr Gilogley's stop-bullying application and otherwise confining the scope of Mr Gilogley's submissions by referring the parties to the decision in Ebner. The Deputy President concluded that there was no legal error which could give rise to an apprehension of bias;[5]

(c) concluded that Mr Gilogley's apprehension of bias, insofar as it concerned the medical evidence he had produced, was not reasonable in the circumstances;[6] and

(d) rejected Mr Gilogley's contention that his complaint under s 581A of the Act gave rise to an apprehension of bias with such conflict compelling the Deputy President's recusal.[7]

[24] The Deputy President concluded as follows and dismissed the recusal application:[8]

For the reasons stated above, the Applicant has not established that it would be apparent to a reasonable person that I would not bring an impartial mind to the hearing. Noting I have an obligation to sit and determine with the matters which are allocated to me, I decline to recuse myself and the recusal application is dismissed.

[25] Mr Gilogley advanced two grounds of appeal:[9]

• (1) The Deputy President erred in not applying the correct test and determined the recusal application without following well established authority, binding on him, contrary to law. The Deputy President:

  • (a) applied an entirely subjective assessment in considering his recusal; and

  • (b) failed to consider his recusal objectively.

• (2) The Deputy President introduced his own evidence:

  • (a) to the proceeding, then

  • (b) in hearing the recusal application; and still more

  • (c) in delivering his reasons for refusing to recuse himself;

[26] The rule against bias is a fundamental rule of procedural fairness and is jurisdictional in nature.[10] A decision affected by an apprehension of bias is outside the jurisdiction of the Commission. Either an apprehension of bias arose or it did not. Although the determination involves matters of evaluation and assessment, the decision subject to the appeal does not involve a matter in which the Deputy President was allowed "some latitude as to the choice of decision to be made".[11] As such, the correctness standard applies to an appeal from a decision on a question of apprehended bias.[12]

[27] It is not necessary for the Full Bench to analyse the Deputy President's reasons for the recusal decision, other than to the extent that the reasons might provide evidence that the conclusion reached is not correct. Rather, the question to be determined in the appeal is whether the Deputy President was correct in his conclusion that Mr Gilogley had not established a reasonable apprehension of bias, not whether that conclusion was open to him in the sense described in House v The King (1936) 55 CLR 499.[13]

[28] It is also appropriate to observe that the appeal does not call upon the Full Bench to determine whether the Deputy President was right or wrong to decline Mr Gilogley's adjournment request, nor did the parties contend otherwise. The appeal is brought against the refusal of the Deputy President to recuse himself from dealing with Mr Gilogley's application for stop bullying orders rather than against the decision to refuse an adjournment.

[29] Section 604(1) of the Act makes clear that there is no right to appeal from a decision of the Commission, and an appeal may only be made with permission. Generally, a Full Bench must grant permission to appeal if satisfied that is in the public interest to do so.[14] Otherwise, the Full Bench has a broad discretion as to whether permission to appeal should be granted.[15] Mr Gilogley contends in his notice of appeal that it is in the public interest to grant permission to appeal, including because the independence of the Commission and its processes is a matter of importance. Mr Gilogley contends that the Full Bench should evaluate whether the principles to be applied in the determination of recusal applications occurred in this case. This is a matter to which we now turn.

[30] It is not in dispute that the principles set out in the High Court decision of Ebner concerning apprehended bias are applicable in this case. The test for apprehended bias is whether a fair-minded and appropriately informed lay observer might reasonably apprehend that the decision maker might not bring a fair, impartial and independent mind to the determination of the matter on its merits.[16] The Full Court of the Federal Court in ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30 explained that at least the following two steps are involved in a case involving an allegation of apprehended bias:[17]

(a) at least the following two steps are involved in a case involving an allegation of apprehended bias:

(i) there must be an identification of what it has said might lead a judge to decide a case other than on its legal and factual merits; and

(ii) there must be an articulation of the logical connection between the matter and the feared deviation from a course of deciding a case on its merits (Ebner at [8] per Gleeson CJ, McHugh, Gummow and Hayne JJ);

(b) an allegation of bias against a judge on the basis of prejudgment is a serious matter not the least because it carries with it the suggestion that the judge has failed to honour his or her judicial oath as such might be questioned by the fair-minded observer. As is also the case where such an allegation is made against an administrative officer, the allegation must be "distinctly made and clearly proved" (Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 (Jia Legeng) at [69] per Gleeson CJ and Gummow J); and

(c) as noted above, the test assumes that the hypothetical fair-minded lay observer is to be attributed with appropriate knowledge of relevant matters so as to be in a position to make a reasonably informed assessment of the likelihood of apprehended bias (see, for example, Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at [13] per Gleeson CJ, Gaudron, McHugh and Gummow and Hayne JJ and at [53] per Kirby J; British American Tobacco at [47]-[48] per French CJ and at [144] per Heydon, Kiefel and Bell JJ and Isbester v Knox City Council [2015] HCA 20 at [23] per Kiefel, Bell, Keane and Nettle JJ and at [57] per Gageler J).

[31] In Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507, Hayne J (with whom Gleeson CJ and Gummow J agreed) explained, in summary, that:

• (a) the rules in relation to bias through prejudgment are different in administrative decision-making as compared to judicial decision-making: at [180];

• (b) specialised administrative tribunals can be expected to bring to the task of decision-making "a great deal of information and ideas which have been accumulated or formed in the course of deciding other applications". Such a decision-maker could be expected to build up "expertise" in matters such as country information; and "[o]ften information of that kind is critical in deciding the fate of an individual's application, but it is not suggested that to take it into account amounts to a want of procedural fairness by reason of prejudgment": at [180];

• (c) saying that a decision-maker has prejudged or will prejudge an issue, or that there is a real likelihood that a reasonable observer might reach that conclusion, involves the following contentions in respect of the decision-maker:

  • (i) they have an opinion on the relevant aspect of a matter in issue;

  • (ii) they will apply that opinion to the matter in the case; and

  • (iii) they "will do so without giving the matter fresh consideration in the light of whatever may be the facts and arguments relevant to the particular case. Most importantly, there is the assumption that the question which is said to have been prejudged is one which should be considered afresh in relation to the particular case": at [185]; and

  • (iv) having or expressing preconceived opinions does not constitute bias or a reasonable apprehension of bias, by pre-judgment, for it does not follow that the decision-maker will disregard the evidence: at [186].

[32] Disqualification on the ground of apprehended bias must be "firmly established".[18] A finding of apprehended bias is not to be reached lightly.[19] As Mason J emphasised in Re JRL; Ex parte CJL (1986) 161 CLR 342:[20]

... Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.

[33] Ground one in the notice of appeal contends that the Deputy President erred by failing to apply the correct test in determining Mr Gilogley's recusal application. Mr Gilogley contends that the Deputy President applied a subjective assessment in considering his recusal and in doing so, failed to consider the application objectively. Appeal ground two is related. Mr Gilogley contends that the Deputy President erred by introducing his own evidence, contrary to law. Mr Gilogley submits that the Deputy President invited the recusal application, thereby creating a situation in which the fair-minded observer doubted his impartial and unprejudiced mind. Further, it is said that the Deputy President gave directions with which Mr Gilogley could not comply and in doing so, disregarded the operation of s 578 of the Act and set Mr Gilogley up for a dismissal process for want of prosecution.

[34] Mr Gilogley's written and oral submissions address the Deputy President's consideration of his work capacity certificates, which were produced in support of the adjournment application. Mr Gilogley says that, despite the Deputy President's statement at paragraph [48] of the decision that he had "not assessed" Mr Gilogley's medical condition, paragraph [55] of the decision demonstrates that the Deputy President assessed the medical evidence and concluded that it did not warrant an adjournment:

[48] However, I have not "assessed" the Applicant's medical condition.

[49] What has occurred, through the course of emails, is that I made it clear that I do not regard the work capacity certificates or general practitioner's medical certificate as sufficient evidence of incapacity to warrant an adjournment, particularly where special accommodations have been granted to the Applicant to support him in attending the Commission.

[55] Therefore, the Applicant has not established that by not adjourning the conference on the basis of the Applicant's evidence, a reasonable person would conclude that I will not bring an impartial mind to the hearing because the medical certificate presented by the Applicant does not have a clear logical connection with the question to be determined in the hearing.

[35] Mr Gilogley submits that the Deputy President's assessment of his medical condition is also apparent from paragraphs [65], [67] and [72] of the decision:

[64] The Applicant's argument for apprehension of bias derives from the fact that I did not view the medical certificates provided as sufficient evidence to warrant adjourning.

[65] This apprehension of bias is not reasonable. The issue was with the quality of the evidence, rather than that I had formed a view that the Applicant has no medical condition at all, as suggested by the Applicant.

[67] The fact of the Applicant's apparent diagnosis of Major Depressive Disorder in the work capacity certificates is not by itself sufficient evidence to explain why he cannot attend a conference in the Commission. Further, the general practitioner's medical certificate does not address the point about why the Applicant cannot attend a conference via Teams, with accommodations. It does not explain how the doctor formed his view that attendance would cause harm. The certificate is not sufficient in my view to adjourn and I did not adjourn.

[72] I note also that I have seen no direct evidence from a psychiatrist to support the adjournment, noting that the Applicant relies on the diagnosis of Major Depressive Disorder which is a psychiatric diagnosis which appears in the DSM-V.

[36] By reference to paragraph [55] of the decision, Mr Gilogley submits that the Deputy President misstated the medical evidence, failed to correctly apply the principle in Ebner by reference to the fair-minded observer, posited the principle as a negative proposition, and imported an "unnecessary logical connection." In respect of this latter matter, Mr Gilogley submits that it was sufficient to conclude that by reason of his conduct, the Deputy President was not able to bring an impartial mind, and the drawing of a logical connection to the "final hearing" was not required.

[37] At the outset, we reject the submission that in the application of the Ebner principles, the Deputy President imported an "unnecessary" logical connection to the ultimate determination of the matter. As the authorities demonstrate, at least two steps are involved in a case involving an allegation of apprehended bias. Contrary to Mr Gilogley's contention, the articulation of the logical connection between the Deputy President's impugned conduct and the feared deviation from a course of deciding Mr Gilogley's stop-bullying application on its merits is the second of these necessary steps, as Ebner makes clear. It is only when the relevant factor is identified and the logical connection is articulated that the reasonableness of the asserted apprehension of bias can be assessed.[21] In Ebner, it was observed this test reflects:[22]

... the general principle to be applied ... to problems of apprehended bias, whether arising from interest, conduct, association, extraneous information or some other circumstance.

[38] The Deputy President was correct to apply this step in his consideration of Mr Gilogley's recusal application.

[39] We accept, as Mr Gilogley submits, that the test for apprehension of bias is objective. It does not require an assessment of the state of mind of the decision maker (as is the case on an inquiry of actual bias).[23] The apprehended bias test is framed in terms of what the fair-minded observer with knowledge of the material objective facts might think, rather than what the decision-maker thinks. In doing so, a decision maker is asked to look at the application for disqualification objectively; from the perspective of the public and those affected by the decision. We consider, contrary to Mr Gilogley's contention, that paragraph [55] of the Deputy President makes sufficiently clear that he correctly considered the application objectively and by reference to what "a reasonable person" would conclude. We do not consider that the Deputy President considered only whether there was "a real possibility of actual bias".[24]

[40] In paragraph [55] of the decision, the Deputy President said that Mr Gilogley had not established that a reasonable person "would conclude that I will not bring and impartial mind to the hearing". In paragraph [75], the Deputy President also stated that Mr Gilogley had not established that "it would be apparent to a reasonable person that I would not bring an impartial mind to the hearing". In that respect, the Deputy President misstated the test from Ebner. That test is often referred to as the "double might" test.[25] It requires consideration of whether a fair-minded lay observer might reasonably apprehend that the decision maker might not bring a fair, impartial and independent mind to the determination of the matter. It is not correct to consider whether a fair-minded lay observer would apprehend that the decision-maker would not bring an impartial mind to the resolution of the matter. However, having considered the reasons of the Deputy President as a whole, we consider that those paragraphs represent a slip and do not indicate that the Deputy President applied the wrong test. The decision elsewhere sets out the test from Ebner. In any event, as we have explained, the appeal turns on whether the conclusion of the Deputy President is correct rather than the reasons he gave for reaching that conclusion.

[41] The primary basis upon which Mr Gilogley submits that a reasonable apprehension of bias arose is that the Deputy President made findings in relation to the medical evidence proffered by him and that medical evidence is relevant to his application for stop bullying orders. In short, Mr Gilogley submits that the medical evidence established that an adjournment should have been granted and the Deputy President did not have reasonable grounds to reject the medical certifications. Mr Gilogley further appears to submit that a reasonable apprehension arose as a result of the Deputy President inviting him to make a recusal application and in the manner in which the recusal hearing was conducted.

[42] We accept that Deputy President did make an assessment of Mr Gilogley's medical evidence. However, it is apparent that he did so for the purpose of determining whether to grant the adjournment request. As earlier stated, the appeal does not require the Full Bench to consider whether the Deputy President was correct in declining to adjourn the conference. Nor is the Full Bench called upon to consider the way in which the Deputy President formed his views about the medical evidence and the communications that passed between his Chambers and Mr Gilogley. Those views are relevant only to the extent that the fair-minded observer might apprehend that the Deputy President might not bring an unbiased mind to the resolution of the proceedings.

[43] While we acknowledge Mr Gilogley's view that the medical evidence before the Commission ought to have been sufficient to adjourn the 25 March 2025 conference, we consider that a fair-minded and appropriately informed lay observer would be aware, and take into account, the following:

• (a) The legislature expressly confers a power upon the Deputy President to make decisions as to how, when and where a matter is to be dealt with (s 589 of the Act). This includes decisions relating to adjournment applications;

• (b) It was a matter for the Deputy President to treat Mr Gilogley's medical evidence with the cautions he considered were appropriate to apply in the circumstances and on the information that was available to him;

• (c) Whatever conclusions the Deputy President reached in his assessment of Mr Gilogley's medical evidence, such conclusions were confined to the question of whether to grant the adjournment request;

• (d) The "invitation" to Mr Gilogley to make a recusal application is not of itself conduct that sustains a contention that the Deputy President might not bring an impartial mind to the resolution of the application. Mr Gilogley was, at that stage of the proceedings, unrepresented and had raised a discrimination concern in respect of the Deputy President's conduct. The fair-minded observer would appreciate the Deputy President's advice that if the contention was pressed, it would be treated as a recusal application in order to assist and facilitate a productive process for addressing Mr Gilogley's concerns. Mr Gilogley's decision to subsequently make a formal recusal application was at his election; and

• (e) While Mr Gilogley was directed to file and serve written submissions addressing whether his stop-bullying application should be dismissed for want of prosecution under s 587 of the Act, the Deputy President accepted in the decision that Mr Gilogley seeks to progress his application for a stop-bullying order and vacated the directions which listed the matter for a hearing. The effect of this decision is that the process for considering the dismissal of Mr Gilogley's substantive application in the Commission was abandoned by the Deputy President.

[44] We do not accept that the Deputy President's consideration of the medical information put forward by Mr Gilogley in relation to the adjournment request means that a fair-minded lay observer might reasonably apprehend that he might not bring a fair and impartial mind to any questions posed by the application for stop bullying orders, including any medical evidence ultimately put forward by Mr Gilogley.

[45] We further consider that a fair-minded lay observer would take into consideration the accommodations proposed by the Deputy President for Mr Gilogley's attendance at the 25 March 2025 conference, being remote attendance at the conference via video link, with the option to appear with his camera off, and through a facility managed by the Deputy President at which Mr Gilogley would not be required to directly address, or be in the same virtual room as, the respondents. These accommodations would lead the fair-minded observer to conclude that the basis for the lengthy chain of correspondence between the Deputy President's chambers and Mr Gilogley was to encourage the efficient and ongoing programming of his stop bullying application, consistent with the requirements in ss 577 and 578 of the Act and having regard to the interests of both Mr Gilogley and the responding parties (which included individually named persons). It is to be observed, however, that while it may be a question of balance, a member of the Commission should be cautious about engaging in a detailed debate with a party through lengthy email correspondence. It might be said that such a debate will often be more appropriately reserved for a hearing directly before the member, in the orthodox manner.

[46] There are no other matters which indicate that the Deputy President might not give due consideration to the merits of the various competing circumstances and arguments in the resolution of Mr Gilogley's application for a stop bullying order.

[47] Having regard to these matters, and all of the circumstances, we are not persuaded that a fair-minded and appropriately informed lay observer might reasonably apprehend, by reason of the manner in which he dealt with the adjournment application and the proceedings generally and the medical information provided by Mr Gilogley, that the Deputy President might not bring a fair, impartial and independent mind to the determination of the application for stop bullying orders. Appeal grounds one and two must fail.

[48] We consider that it is in the public interest to grant permission to appeal in this matter. The appeal raises an issue of general importance and broader application concerning the Commission's practices. However, for the reasons given, no appealable error has been established in the Deputy President's decision.

[49] The Full Bench makes the following orders:

• (a) Permission to appeal is granted; and

• (b) The appeal is dismissed.

B Field, solicitor, of Irwell Law for the Respondent.

[1] Andrew Gilogley v Youfoodz, Aaron Collins, Lee Scrivener, Roisin O'Connor [2025] FWC 1134.

[2] [2025] FWC 1134 at [40]- [41].

[3] [2025] FWC 1134 at [43].

[4] [2025] FWC 1134 at [48]- [49], [55].

[5] [2025] FWC 1134 at [56]- [63].

[6] [2025] FWC 1134 at [65].

[7] [2025] FWC 1134 at [74].

[8] [2025] FWC 1134 at [75].

[9] Form F7 notice of appeal at [2.1].

[10] CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; (2019) 268 CLR 76 at [54] (Nettle and Gordon JJ).

[11] Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 at [47] (Gageler J).

[12] Woodside Energy Ltd v The Australian Workers' Union [2022] FWCFB 192 at [37]; Australian International Islamic College Ltd v Brownson [2025] FWCFB 187; (2025) 343 IR 224 at [17].

[13] Chen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 41; (2022) 288 FCR 218 at [41]- [43] (Bromberg, Murphy and Markovic JJ).

[14] Fair Work Act 2009 (Cth), s 604(2).

[15] Wan v Australian Industrial Relations Commission [2001] FCA 1803; (2001) 116 FCR 481 at [30] (Spender, Kiefel, Dowsett JJ); Ferrymen Pty Ltd v Maritime Union of Australia [2013] FWCFB 8025; (2013) 238 IR 258 at [9]- [12].

[16] Ebner v The Official Trustee in Bankruptcy [2000] HCA 68; (2000) 205 CLR 337 at [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ).

[17] ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30 at [36] (Allsop CJ, Kenny and Griffiths JJ).

[18] Re JRL; Ex parte CJL [1986] HCA 39, (1986) 161 CLR 342 at 352 (Mason J) and 360 (Wilson J).

[19] CNY17 v Minister for Immigration and Border Protection [2019] HCA 50, (2019) 268 CLR 76 at [56] (Nettle and Gordon JJ).

[20] Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 at 352 (Mason J).

[21] Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2009] FCAFC 8; (2009) 174 FCR 175 at [71] (Greenwood J).

[22] Ebner v The Official Trustee in Bankruptcy [2000] HCA 68; (2000) 205 CLR 337 at [33] (Gleeson CJ, McHugh, Gummow and Hayne JJ).

[23] Frugtniet v Secretary, Department of Social Services [2021] FCAFC 127; (2021) 285 FCR 159 at [10]- [11] (O'Callaghan J) citing Quach v New South Wales Civil and Administrative Tribunal [2020] NSWCA 214 at [4]- [8] (Gleeson, Leeming and McCallum JJA).

[24] Cf. Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41 at 75 (Deane J).

[25] Gomeroi People v Santos NSW Pty Ltd [2025] FCAFC 163 at [21] (Charlesworth J).

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