BP Refinery (Kwinana) Pty Ltd v Tracey [2020] FCAFC 89

FEDERAL COURT OF AUSTRALIA

BP Refinery (Kwinana) Pty Ltd v Tracey [2020] FCAFC 89 Review of: Scott Tracey v BP Refinery (Kwinana) Pty Ltd [2020] FWCFB 820

File number: NSD 259 of 2020

Judges: BESANKO, PERRAM AND JAGOT JJ

Date of judgment: 22 May 2020

Catchwords: ADMINISTRATIVE LAW – application for judicial review – where writ of certiorari sought – jurisdictional error – Full Bench of the Fair Work Commission alleged to have misconceived its appellate function – could only set aside decision of Deputy President if satisfied there was an error as identified in House v The King – Deputy President's conclusion that meme constituted valid basis for dismissal not reasonably open as conclusion was outside the legally permissible range of conclusions – no error by Full Bench of the Fair Work Commission – where alleged failure to consider question of fact – s 400(2) of the Fair Work Act 2009 (Cth) is a basal pre-condition to an exercise of power – no error by Full Bench of the Fair Work Commission – application dismissed

Legislation: Fair Work Act 2009 (Cth) ss 385, 385(b), 387, 396, 400(2), 604, 607(3)

Cases cited: Anton v Bokan (No 2) [2019] NSWCA 250 Buck v Bavone (1976) 135 CLR 110 Coal and Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54; (2011) 192 FCR 78 Craig-Bridges v NSW Trustee and Guardian [2017] NSWCA 197 House v The King (1936) 55 CLR 499 Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 54 Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1997) 197 CLR 611 Miller v Australian Industrial Relations Court [2001] FCA 486; (2001) 108 FCR 192 Norbis v Norbis (1986) 161 CLR 513 Scott Tracey v BP Refinery (Kwinana) Pty Ltd [2019] FWC 4113 Singer v Berghouse (1994) 181 CLR 201 Toms v Harbour City Ferries [2015] FCAFC 35; (2015) 229 FCR 537