Fox v Australian Industrial Relations Commission [2007] FCAFC 150

FEDERAL COURT OF AUSTRALIA

Fox v Australian Industrial Relations Commission [2007] FCAFC 150

INDUSTRIAL LAW – Application for prerogative relief in relation to a decision of a Full Bench of the Industrial Relations Commission – Termination of employment – Where single Commissioner found termination to be valid – Where a Full Bench of the Industrial Relations Commission declined leave to appeal from the Commissioner's decision

ADMINISTRATIVE LAW – Procedural Fairness – Where lengthy delay between the hearing and delivery of the Commissioner's decision – Where case primarily based on issues of fact and concerns the credibility of a crucial witness – Where Commissioner provided no explanation for the delay having occurred or the means by which he refreshed his memory when making a determination on the credibility of the applicant's oral evidence – Where the Full Bench held that any denial of procedural fairness to the applicant could not have affected the outcome of the case – Where Full Bench did not rule on or consider the arguments advanced in support of the procedural fairness ground – Whether the approach of the Full Bench to the delay issue constitutes jurisdictional error

Held – The Full Bench committed jurisdictional error – This was not a case where a denial of procedural fairness could have made no difference to the outcome of the trial – The matter be remitted to the Full Bench for a hearing and determination according to law

Workplace Relations Act 1996 (Cth) ss 108, 145, 170, 170CE, 170CG, 170JF Judiciary Act 1903 (Cth) s 44 Administrative Appeals Tribunal Act 1975 (Cth) s 44

Cobham v Frett [2001] WLR 1775 referred to Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 considered Craig v South Australia (1995) 184 CLR 163 discussed Expectation Pty Ltd v PRD Realty Pty Ltd (2004) 140 FCR 17 referred to Linett v McIntyre (2002) 117 FCR 189 referred to Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 referred to Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 referred to Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 referred to NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 80 ALJR 367 considered Public Service Association (SA) v Federated Clerks' Union (1991) 173 CLR 132 referred to Re Australian Railways Union; ex parte Public Transport Corporation (1993) 117 ALR 17 referred to R v Ludeke; ex parte Customs Officers' Association of Australia (1985) 155 CLR 513 referred to SBAB v Minister for Immigration and Multicultural Affairs [2002] FCAFC 161 referred to Stead v State Government Insurance Commission (1986) 161 CLR 141 referred to