Which decision is amendable to judicial review?
34 In this proceeding, there are two decisions, being the primary decision made by the Commissioner, and the interlocutory decision made by the Full Bench refusing permission to appeal. The Full Bench, in refusing permission to appeal, did not conduct a substantive appeal and did not affirm or replace the decision made by the Commissioner.
35 The parties' written submissions dealt extensively with the question of whether the "conclusive and operable decision" subject to judicial review, was that of the Commissioner or of the Full Bench. At the hearing, the applicant initially argued that the conclusive and operable decision must be that of the Commissioner as permission to appeal was not granted by the Full Bench.
36 The applicant relied on Australian Building and Construction Cmr v Construction, Forestry, Mining and Energy Union [2016] FCAFC 169; 247 FCR 138 (Barker, Rangiah and Wigney JJ) (ABCC v CFMEU) as authority for there being no need to establish jurisdictional error in relation to the Full Bench's refusal of permission to appeal before this Court can grant a constitutional writ with respect to the Commissioner's decision. In that case, the Full Court acknowledged at [37] that it is theoretically possible that there could be two decisions, both of which have continuing legal effect, and both amenable to being quashed. These decisions include first, a primary decision of the Commission, and secondly a decision made by the Full Bench refusing permission to appeal from the primary decision. At [39], the Full Court compared that scenario to the situation where the Full Bench grants permission to appeal and makes a decision either affirming the primary decision or replacing the primary decision in some way, in which case the appealed decision would be the conclusive and operative decision, and constitutional writs could not be issued for the primary decision. At [45], the Full Court noted that in the application before it, where the Full Bench did not grant permission to appeal, the appeal decision is not conclusive and operative and therefore both the primary decision and the decision of the Full Bench may be amenable to constitutional writs.
37 Therefore, the applicant submitted, in the present case, the Appeal Decision is not conclusive and operative, and both decisions may be open to constitutional writs.
38 The reasoning in ABCC v CFMEU is consistent with subsequent decisions, including Broadspectrum (Australia) Pty Ltd v United Voice [2018] FCAFC 139; (2018) 265 FCR 134 (Bromberg, Mortimer (as her Honour then was) and Lee JJ) in which the Full Court at [41] noted that in circumstances where the Full Bench refuses permission to appeal, the appellate decision is not conclusive and operative, and therefore there is no jurisdictional impediment to an application for judicial review of the primary decision of the Commission. Furthermore, in Australian Mines and Metals Association Inc v Construction, Forestry, Maritime, Mining and Energy Union [2018] FCAFC 223; (2018) 268 FCR 128 (Allsop CJ, Griffiths and O'Callaghan JJ) the Full Court, in applying ABCC v CFMEU, determined that as the Full Bench in that matter granted permission to appeal and dismissed the appeal, which operated as a conclusive and operative decision, the primary decision of the Commission was not amenable to judicial review unless the Full Bench's decision was infected with jurisdictional error.
39 As the High Court confirmed in Re Refugee Review Tribunal; Ex Parte Aala (2000) 204 CLR 82; [2000] HCA 57 at [51] - [52], citing R v Ross-Jones, where jurisdictional error has occurred, a party is entitled to a writ almost as a right. However, the Court does retain discretion to refuse relief if that is the proper course of action to take in the circumstances. At [53], the High Court elaborated on the discretion to refuse relief:
The recognition of an element of discretion attending the exercise of the jurisdiction conferred by s 75(v) with respect to prohibition involves "two separate questions". The first is whether the officers of the Commonwealth in question acted in want of or in excess of jurisdiction. The second is whether prohibition should not issue, having regard to the delay, waiver, acquiescence or other conduct of the prosecutor, in the course of the administrative proceeding or in other relevant circumstances. The denial of prohibition by reason of an adverse answer to the second question does not necessarily deny to the prosecutor the opportunity to vindicate any private law rights in appropriate proceedings. For example, damages or equitable relief may be sought for tortious injury to private or individual rights. In such actions, the parties are likely to be different and, in any event, the doctrine of res judicata may not be applicable.
(footnotes omitted)
40 The first respondent submitted that the Court should not exercise discretionary relief pursuant to s 39B of the Judiciary Act against the Commissioner's Decision unless it can be established that an error occurred in the Full Bench Decision, relying on Dafallah v Fair Work Commission (2014) 225 FCR 559; [2014] FCA 328 (Mortimer J, as her Honour then was). In Dafallah, as in this matter, the Commission determined that the applicant had not been unfairly dismissed from her employment, and the Full Bench refused permission to appeal. At [54] and [56], her Honour said:
Notwithstanding the differences in opinion about the curing or otherwise of a denial of procedural fairness, Katzmann and Rangiah JJ made it clear they would not grant the relief sought under s 39B of the Judiciary Act unless they were satisfied the decision of the Full Bench was affected by jurisdictional error. Unless it was, their Honours reasoned, "it would be futile to grant relief in respect of a decision at first instance when the appellate decision stands and is conclusive and operative" (at [176]). One might add to that the proposition that it is not in the interests of the administration of justice for this court on judicial review to reach conclusions effectively contrary to the decision-making of the Full Bench in its appellate jurisdiction under the FW Act, by calling up and quashing the decision of a Commissioner, unless it has also formed the view that the decision of the Full Bench is itself affected by jurisdictional error. In my respectful opinion, this means this court should not begin with a fresh and unfettered examination of the decision of a Commissioner for legal error, and then move to see if any error thus identified had been properly addressed by the Full Bench. That is essentially what Ms Dafallah invited the court to do in this proceeding. Rather, this court should begin with an examination of the decision of the Full Bench and, unless and until it appears that decision is affected by jurisdictional error, in my respectful opinion it is not appropriate to embark on a fresh and detailed consideration of the decision of the Commissioner. There were many points in both the written and oral submissions on behalf of Ms Dafallah where it appeared that her legal representative approached this court's supervisory jurisdiction over the Commissioner's decision as if the decision of the Full Bench did not exist, and the appellate jurisdiction in s 604 of the FW Act, conditioned as it is by s 400(1), did not exist. It is not the case that an applicant, having unsuccessfully applied for permission to appeal, can proceed in this court as if s 604 does not exist.
…
In my opinion, as a matter of discretion and applying the approach set out in Abigroup [2013] FCAFC 148 and R v Marks 147 CLR 471, orders made in exercise of the court's jurisdiction under s 39B of the Judiciary Act (or ss 562 and 563 of the FW Act read with s 545) should not issue against a first-instance decision of the Commission, where leave to appeal had been sought and refused after full argument, and the refusal of leave is not affected by jurisdictional error, unless there are compelling reasons to permit an applicant in effect to circumvent the statutory appeal provisions and the limits Parliament has imposed by them. There are no such compelling reasons in the present case. Accordingly, there is no occasion to consider separately whether the Commissioner's decision is affected by jurisdictional error.
41 Dafallah was applied in D&D Traffic Management Pty Ltd v Australian Workers' Union [2022] FCAFC 113 (Katzmann, Thawley and Goodman JJ), where permission to appeal was also refused. The Full Court said at [75] (in obiter):
Secondly, D&D did not seek judicial review of the decision of the Full Bench. It is not in the interests of the administration of justice for this Court on judicial review to call up and quash the decision of a Commissioner and in doing so reach conclusions which are in substance contrary to the decision-making of the Full Bench in its appellate jurisdiction under the FW Act, unless this Court has also formed the view that the decision of the Full Bench is itself affected by error or there is some other compelling reason to do so: Dafallah v Fair Work Commission [2014] FCA 328; 225 FCR 559 at [54] to [56] (Mortimer J); Cook v Australian Postal Corporation [2017] FCA 509 at [67] (Katzmann J); Toma v Workforce Recruitment and Labour Services Pty Ltd [2020] FCA 1102 at [67] (Wigney J); Pal v Commonwealth [2020] FCA 1483 at [52] (Anderson J). As Mortimer J noted in Dafallah at [56] permitting an applicant to challenge decisions of a Commissioner on a basis which ignores a decision of the Full Bench would be to "permit an applicant in effect to circumvent the statutory appeal provisions and the limits Parliament has imposed by them".
42 The applicant submitted that the conclusion reached in Dafallah, that one ought not scrutinise the first instance decision where permission to appeal has been refused by the Full Bench, is not consistent with Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union v Abigroup Contractors Pty Ltd [2013] FCAFC 148 or R v Marks; Ex parte Australian Building Construction Employees and Builders Labourers' Federation (1981) 147 CLR 471; [1981] HCA 33.
43 In Abigroup, a denial of procedural fairness occurred at first instance, and the Full Bench granted permission to appeal. The Full Court considered whether it ought to refuse relief on the discretionary ground that the denial of procedural fairness was cured on appeal. The Full Court ultimately concluded that the decision of the Full Bench was infected with jurisdictional error and therefore the procedural fairness defect at first instance was not cured. Katzmann and Rangiah JJ (with Buchanan J dissenting) considered that it would be prudent to refuse relief against a decision at first instance unless the Full Bench's decision involved jurisdictional error, in circumstances where the Full Bench's decision is conclusive and operative. The applicant's submission was that the analysis undertaken by their Honours therein was directed to a circumstance where permission to appeal had been granted and that it stands for the proposition that where permission to appeal is not granted, the Full Bench decision is not conclusive and operative.
44 R v Marks involved an application for a writ of prohibition directed to a member of the Australian Conciliation and Arbitration Commission in respect of a demarcation dispute. In that matter, it was argued that a denial of procedural fairness occurred at first instance, but it was held that the denial of procedural fairness was ultimately cured on appeal, where a full and fair hearing took place. In the applicant's submission therefore, R v Marks does not support Dafallah as in R v Marks, the Full bench decision was conclusive and operable.
45 It is clear that Dafallah does not operate so as to prevent the Court from issuing relief against a primary decision where the Full Bench refuses permission to appeal. Rather, it is concerned with the discretionary nature of providing relief, including preventing circumnavigation of the statutory appeals process. Dafallah does not impose a decision rule, but rather is about the exercise of the discretion to refuse relief in the circumstances of that case. Nor does Dafallah attempt to apply Abigroup or R v Marks in the manner contended for by the applicant. Instead, Mortimer J (as her Honour then was) applied both Abigroup and R v Marks as cases which also dealt with discretionary questions of relief. Her Honour's point in Dafallah is that statutory appeal mechanisms ought not be ignored as doing so has a detrimental effect on the administration of justice.
46 In respect of Dafallah, the applicant referred to Construction, Forestry, Maritime, Mining and Energy Union v Mechanical Maintenance Solutions Pty Ltd (2022) 289 FCR 508 (CFMMEU v MSS) wherein Rangiah J considered Dafallah and noted its reliance on Abigroup. His Honour then referred to, and applied, the Full Court's findings in ABCC v CFMEU, which notably distinguished Abigroup. While Rangiah J was delivering a dissenting judgment in that case, O'Callaghan and Wheelahan JJ did not consider his Honour's findings in respect of Dafallah as it was found that the applicants had not established a claim for relief and, therefore, it was unnecessary to deal with the first respondent's reliance on Dafallah. In any event, as set out above, I do not consider that Dafallah was relying on Abigroup in the contended manner and, as such, imposing a decision rule.
47 While I accept that the Commissioner's Decision is conclusive and operative, I am not of the view that the Full Bench Decision should be effectively ignored. As identified, this is a matter of discretion to be informed by the circumstances of the case. In this instance, I am not satisfied that it is in the interests of the administration of justice to circumvent the appeal process without first considering the Full Bench Decision. Accordingly, I do not consider that relief should be issued pursuant to s 39B of the Judiciary Act in relation to the Commissioner's Decision unless the Full Bench Decision is affected by jurisdictional error, or there are compelling reasons to effectively ignore the Full Bench Decision.