Kennedy v Secretary, Department of Industry

BUCHANAN J: 1 This application relies upon s 39B of the Judiciary Act 1903 (Cth) to seek orders for constitutional writs (certiorari and mandamus) against officers of the Commonwealth. The officers of the Commonwealth are members of the Fair Work Commission ("FWC") established under the Fair Work Act 2009 (Cth) ("the FW Act"). 2 The constitutional writs were sought nominally against a decision by Commissioner Deegan identified as dated 14 November 2013 and a decision of a Full Bench of the FWC as dated 19 March 2014. For the reasons which appear hereunder, those dates appear to have been wrongly assigned. The relevant decisions appear to be a decision of Commissioner Deegan dated 19 December 2013 ([2013] FWC 9932) and a decision of a Full Bench dated 10 June 2014 ([2014] FWCFB 3530). 3 In an amended application filed on 12 December 2014, upon which the present matter proceeds, the operative grounds of the application are stated thus: 1. The jurisdiction of the Second Respondent pursuant to ss.400(1), 604 and 607 of the Fair Work Act 2009 (Cth) to grant permission to the Applicant to appeal but dismiss the appeal was conditional upon the Full Bench's determination that Commissioner Deegan had engaged in no appealable error. 2. Appealable error in the decision and orders of Commissioner Deegan existed as a matter of jurisdictional fact and accordingly, the Second Respondent misconstrued and/or did not exercise its jurisdiction according to law insofar at [sic] it dismissed the Applicant's appeal. … 4 I am satisfied that the grounds stated in the application were misconceived and do not identify any jurisdictional error which could lead to the grant of the relief sought. Properly understood, those grounds do no more than register disagreement with the way the Full Bench assessed the grounds and substance of the appeal before it. Moreover, the grounds stated in the application do not state the same case which the applicant argued in his written submissions. Those submissions attack the procedures employed by the Full Bench, but, again, they do not identify any jurisdictional error, as I shall discuss. 5 According to an assertion made in the amended statement of claim filed on 12 December 2014, the applicant commenced employment in the Commonwealth Department of Industry on 31 January 2011. The course of his employment was marred by disagreement with his supervisors from an early time. Following a series of performance assessments, the applicant was assessed as "unsatisfactory". 6 On the version of events pleaded by the applicant, he offered his resignation by email on 24 July 2012 and it was accepted on that day. He left his employment on 26 July 2012. 7 Notwithstanding that circumstance, it would appear that towards the end of 2012 the applicant sought some form of consideration of his reinstatement. Again, according to the version of events pleaded in the amended statement of claim filed on 12 December 2014, the applicant lodged an "out of time unfair dismissal claim" with the FWC on 24 December 2012. A conciliation conference was convened. Conciliation was not successful. On 24 February 2013, the applicant sought to "close" the proceedings commenced by him on 24 December 2012, and on 5 March 2013 he submitted a document "closing the matter". However, on 10 July 2013 the applicant sought to re-open the proceedings. 8 The essence of the application filed on 10 July 2013 was that the notice of discontinuance filed by the applicant on 5 March 2013 should be set aside because it was filed under duress. That application and the contentions which supported it were considered by Commissioner Deegan and rejected on 22 August 2013 ([2013] FWC 6014). Commissioner Deegan recorded (at [17]): [17] On the applicant's own evidence, at the time he decided to discontinue his unfair dismissal application he continued to pursue his workers' compensation claim and also managed to find and commence new employment. I accept that the applicant had pressing personal problems at the time he decided to discontinue his application but note that he was capable of making decisions and conducting his affairs. The personal, financial and psychological problems the applicant was experiencing will have played a role in his decision to discontinue the application, but I am unable to find that these problems amounted to pressure placed upon him by the employer by unlawful, unconscionable or illegitimate means. 9 The applicant then lodged a further application for an unfair dismissal remedy under s 394 of the FW Act. The application was lodged on 6 September 2013, well outside the prescribed statutory time frame by more than a year. A hearing took place on 14 November 2013 to determine whether the FWC would allow further time for the application to be made (s 394(3) of the FW Act). Under s 394(3) of the FW Act, the FWC (then Fair Work Australia - "FWA") was required to consider whether there were exceptional circumstances which justified an extension of time taking into account stated matters. Section 394(3) at the relevant time provided: 394 Application for unfair dismissal remedy … (3) FWA may allow a further period for the application to be made by a person under subsection (1) if FWA is satisfied that there are exceptional circumstances, taking into account: (a) the reason for the delay; and (b) whether the person first became aware of the dismissal after it had taken effect; and (c) any action taken by the person to dispute the dismissal; and (d) prejudice to the employer (including prejudice caused by the delay); and (e) the merits of the application; and (f) fairness as between the person and other persons in a similar position. 10 Commissioner Deegan's consideration of those matters led to the following conclusions in her decision given on 19 December 2013 ([2013] FWC 9932): Consideration [26] I have considered whether a further period should be allowed for the lodgement of this application taking into account those matters set out in s.394(3) of the Act. [27] The applicant has put forward a number of reasons for the delay in filing his application. Generally these were connected with his mental state at the time. It is apparent, however, that he was in a position to file the application by 24 December 2012. Even if I were to accept that his reasons for not filing before that date constituted exceptional circumstances, I am unable to accept that the further delay which is attributable to the discontinuance of the 2012 application and the events that followed leading to the lodgement of the current application, amount to exceptional circumstances. [28] The 2012 application was made and then discontinued prior to any decision being made as to whether that application should be accepted despite being lodged some 136 days after the statutory time for filing had passed. The fact that the applicant chose to discontinue the 2012 application and then, some 4 months later, attempted to have the discontinuance set aside does not, in my view, amount to exceptional circumstances. The applicant freely made the decision to discontinue his application. Nothing in the evidence put forward indicates any exceptional circumstance attaching to that decision or which explains the further delay until 6 September 2013. The delay was attributable to decisions made by the applicant about the manner and timing of the applications he wished to make to the Commission. There is nothing exceptional about the circumstances of those decisions or the context in which they were taken by the applicant. [29] Given my finding about the later period it is unnecessary for me to determine whether or not the situation of the applicant in the period 26 July 2012 until 24 December 2012 amounted to exceptional circumstances. I note, however, that during that period the applicant had access to the internet, pursued his worker's compensation claims and appears to have made a conscious decision not to lodge an unfair dismissal application. [30] The applicant resigned his employment and was aware of the date of effect. He took no action to dispute the dismissal until 24 December 2012. [31] I accept that there may be some prejudice caused to the respondent if further time was allowed for lodgement as the delay is significant and witnesses may no longer be employed. I do not consider such prejudice would be sufficient, of itself, to refuse the application for a further period to lodge. [32] I am unable to conclude that the application is totally without merit but make no further finding on this matter. [33] The matter of fairness as between the applicant and other persons in a similar position is of little relevance to my decision in the circumstances of this case. [34] Taking all the matters set out in s.394(3) of the Act into account, I am not satisfied that there are exceptional circumstances in this matter such that I should allow a further period for the filing of the application. [35] The application is dismissed. An order [PR545846] to that effect will be published separately. 11 The applicant appealed. There were 38 grounds of appeal in an amended notice of appeal. On 10 June 2014, a Full Bench of the FWC declined to give permission to appeal and dismissed the appeal ([2014] FWCFB 3530). 12 The Full Bench referred first to an application by the applicant that the presiding member should not sit on the appeal "on the basis of her gender". That contention was rejected prior to the hearing of the appeal. Then, the Full Bench referred to an amendment to the grounds of appeal, which was allowed. The Full Bench drew attention to the requirement that permission be granted to appeal in unfair dismissal applications only if it considered that the public interest justified that course (s 400). The Full Bench referred to the requirements of s 394(3) including the meaning of the term "exceptional circumstances". 13 The Full Bench saw no error in the conclusion by Commissioner Deegan that the matters referred to and relied upon by the applicant did not constitute exceptional circumstances for the purpose of the operation of s 394(3) of the FW Act, or in other findings, and decided that there was an insufficient public interest to grant permission to appeal. 14 A finding of sufficient public interest was a statutory precondition to a grant of permission to appeal. Unless, therefore, the Full Bench was satisfied about the public interest test it was directed by statute not to grant permission to appeal. 15 The Full Bench dealt with each of the amended grounds of appeal but was not satisfied that they raised a case, individually or collectively, warranting a grant of permission to appeal. 16 The Full Bench concluded: [47] We are not satisfied there is any substance in the Grounds of Appeal. We can identify no significant error in Commissioner Deegan's consideration of Mr Kennedy's application. Had we been persuaded by Mr Kennedy's submissions that any of the matters identified by him were in fact errors, we would still not have been persuaded that any of those errors were, either individually or cumulatively, significant. We are not satisfied that any of them, either individually or cumulatively, could have, if Commissioner Deegan had relied upon them, contributed to her reaching a conclusion supportive of Mr Kennedy's application from her consideration of the facts. No single ground of appeal, or all of them cumulatively, are sufficient to attract the public interest. The appeal is dismissed. 17 Had Commissioner Deegan, or the Full Bench, been satisfied that there were exceptional circumstances justifying an extension of time in which to bring an application alleging unfair dismissal, then it would have been open to the FWC to permit the applicant to bring an application for reinstatement notwithstanding the very lengthy delay in prosecuting that position. No doubt the application would have faced a number of subsequent hurdles, including by reference to the fact that on the applicant's version of events he resigned his employment, but that is not a matter for present attention. Because the question of exceptional circumstances was a matter to be established to the satisfaction of the FWC, any contention of error in the performance by the FWC of its statutory role would need to establish a misunderstanding of the matters to be taken into account or a failure to perform the role assigned to the FWC by the FW Act. In my view, the contentions of the applicant do not raise any respectable case to that effect. 18 Further, in order to succeed in the application to this Court for relief in the nature of constitutional writs against the Full Bench, it would be necessary for the applicant to show that the Full Bench had made an error in the exercise of its own role on appeal (see Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194). 19 The jurisdictional errors alleged in the amended statement of claim filed on 12 December 2014 commence with a complaint of lack of procedural fairness and natural justice owing to the composition of the Full Bench. Those complaints relate to the "gender equity" of the composition of the Full Bench and alleged failures of prompt response to correspondence from the applicant. A series of complaints follow which allege a failure to deal with claims of presumed bias, a failure to notify the identity of all the members of the Full Bench in advance, failure to grant adjournments or allow adequate time for the hearing, that members of the Full Bench asked wrong and irrelevant questions and that the Full Bench "failed to reasonably review the exercise of power" by Commissioner Deegan. Then a series of complaints are recorded about the way in which the Full Bench dealt, or failed to deal, with particular findings of Commissioner Deegan. 20 The following is not a complete catalogue, but it will serve to indicate the nature and character of the complaints made by the applicant in his written submissions and statement of claim. 21 Because Commissioner Deegan is a woman, and two women sat on the appeal with a single man, the applicant complained that the Full Bench was inappropriately and invalidly constituted because the composition of the Full Bench lacked "gender equity". The applicant's contention was that at least two men should have sat on the appeal. The applicant also urged upon the FWC before the hearing that the presiding member should be a man, rather than a woman, as he had been advised. The constitution of a Full Bench is a matter for the President of the FWC pursuant to s 618(2) of the FW Act. The only restriction is that at least one presidential member (President, a Vice President or a Deputy President) must be on the Full Bench. The President's discretion is not subject to considerations of the kind the applicant alleged. 22 A related complaint was that the applicant had not been told in advance who the other members of the Full Bench might be despite his specific request for that information. In his submissions he contended that the failure to provide that advice to him was a contravention of the FW Act. That contention has no substance. It betrays a mistaken belief by the applicant, in this and other respects, that the discretions and procedures of the FWC under the FW Act would only be exercised "justly" or "fairly" (and hence validly) if he had no occasion to object to them. 23 The applicant alleged that he should have been granted an adjournment pursuant to requests by him four days and one day before the hearing of the appeal. The appeal had been listed for hearing on 19 March 2014 over two months earlier. No jurisdictional issue is presented by the discretionary refusal of an adjournment, or by the fact that the hearing of the appeal went ahead as listed. The present is not a case like Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 where refusal of an adjournment signified failure to carry out a statutory task. 24 The applicant complained that insufficient time had been allowed to hear the appeal, but he was told more time would be made available if necessary and, in fact, the hearing continued beyond the time allocated so that he could put all his oral submissions. 25 The applicant alleged that he was disadvantaged by having to address whether granting permission to appeal would be in the public interest and that he was not informed by the FWC that such an issue would be considered by the Full Bench. The public interest consideration is a statutory pre-condition (FW Act, s 400). Before the Full Bench the applicant did in fact address both the merits of the appeal and the question of public interest. No jurisdictional issue arises from this complaint. However, another argument was that he wished to advance the issue and was prevented from doing so. The passages in the transcript relied upon to support that contention do not support it. They reveal that the presiding member was sympathetic to the fact that the applicant is not legally trained, but there was no restriction imposed on his ability to address the public interest issue. 26 The applicant complained that allegations of bias he made against the presiding member of the Full Bench were not formally dealt with before the hearing. I say "formally' because no doubt if the presiding member thought she should not sit she would not have done so. It is not now relevant that such an allegation was made unless there are grounds to think the allegation was well-founded as to actual or apparent bias. I see no support at all for any such suggestion. In fact, the Full Bench did refer to this complaint and explained why it had not been accepted. 27 The applicant complained that he was required to seek leave to amend his grounds of appeal. The complaint has no merit. He was granted the leave which he sought. 28 He complained about various procedural directions, and steps, and alleged shortcomings (including the content of one or two innocuous questions he was asked during the appeal), but none of those matters touch upon the jurisdiction of the FWC. 29 The applicant's complaints included a challenge to the "weight" that the Full Bench gave to certain factors, an allegation that the Full Bench did not establish that Commissioner Deegan was qualified to exercise the jurisdiction of the FWC and that the FWC exhibited bias against the applicant in certain communications it had with the first respondent. There is no substance to any of these complaints. There is no basis to support a finding of jurisdictional error. 30 There were further procedural complaints which seem to me, with respect, to proceed from the same misunderstanding by the applicant that the jurisdiction of the FWC (and the Full Bench in particular) depended upon a maintenance of "confidence and trust" by him in the processes he had initiated, such as the appeal itself. Similar problems in due course attended his contribution to the hearing of the application in this Court. 31 The complaints made about how the Full Bench reviewed Commissioner Deegan's specific findings amounted to disagreement with those findings and a complaint that the Full Bench had accepted them. There is no substance in any of those complaints in the context of the present proceedings which are concerned with questions of jurisdictional error. 32 In my respectful view, there is no substance either (if this is what the applicant intended to submit) in any suggestion that the Full Bench appeared to misunderstand or failed to apply itself to its correct role on the appeal or that it appeared to misunderstand or failed to apply the relevant statutory provisions. 33 None of the grounds of the application, or the submissions in support of them, raise any substantive legal issue, much less a jurisdictional one. Rather, they represent a series of procedural complaints and assertions. None of those complaints should be accepted. None of them appear to me to make out any coherent case of jurisdictional error. 34 The first respondent filed an early objection to the competency of the application, seeking that it be dismissed on an interlocutory basis. That interlocutory application was eventually listed for hearing with the application itself, after the applicant had made a number of amendments to his application and statement of claim. As I have dealt with the merits of the application in a substantive and final way, it is more appropriate that any order be a final, rather than interlocutory, one (see also Haritos v Commissioner of Taxation [2015] FCAFC 92 at [60]). 35 There are two further procedural matters to mention. The applicant filed extensive written submissions which in fact exceeded a 40 page limit directed by Jagot J (the applicant's suggestion that "annexures" fell outside the limitation has no substance). He also filed quite lengthy submissions in reply. During the course of the applicant's oral submissions he complained he was not receiving a fair hearing and did not wish to continue. He was invited a number of times to continue with his submissions and put such further submissions as he wished to rely upon, relevant to the question of jurisdictional error. After a short adjournment, the applicant asked me to disqualify myself so that his application for judicial review could be heard by another judge. I declined to do so, whereupon the applicant withdrew from the proceedings and left the Court. I then took the submissions for the first respondent as I had indicated I would. The transcript of the proceedings will no doubt provide a sufficient record of the exchanges should review of the matter be necessary. 36 To the point where the applicant left the proceedings, the applicant had not added in any substantive way to contentions found in the various written submissions and the statement of claim. Indeed, he had dedicated his time to reading at length from them. I see no reason to doubt that the written submissions represented a sufficient foundation upon which to consider the applicant's arguments about jurisdictional error to which they were expressly directed. 37 The application to this Court should be dismissed. The first respondent proposes to seek its costs but accepts that s 570 of the FW Act (read with s 562) may restrict the ordinary rule that costs follow the result and seeks to be heard on that question. Directions will be made for that issue to be dealt with on the papers. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan.