Edwards v Justice Giudice [1999] FCA 1836

FEDERAL COURT OF AUSTRALIA Edwards v Justice Giudice [1999] FCA 1836 ADMINISTRATIVE LAW – certiorari law – administrative tribunal – jurisdictional error – bias – statements critical of evidence of witnesses – waiver – further critical statements in reserved judgment

INDUSTRIAL LAW – application for an order nisi for writs of mandamus and certiorari directed to a Full Bench of the Australian Industrial Relations Commission ("the Commission") – proceedings before the Full Bench involved an appeal from a decision of a single Commissioner in the exercise of the power to arbitrate conferred by s 170CG of the Workplace Relations Act 1996 (Cth) ("the Act") – issue before the Commissioner related to whether there was a valid reason for the termination of the appellant's employment on the grounds of conduct - whether the Commissioner's failure to make findings about the conduct of the appellant manifested a failure to comply with s 170CG(3)(a) of the Act – whether the Commission is obliged to give reasons for decisions which deal with material legal and factual issues presented for determination. Workplace Relations Act 1996 (Cth), ss 45, 45(1)(b), 45(7)(c), 170CE, 170CG(3)(a), 170JF, 170JF(2)

Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147, discussed Annetts v McCann (1990) 170 CLR 596, referred to Attorney-General of New South Wales v Kennedy Miller Television Pty Ltd (1998) 43NSWLR 729, applied Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, cited Boddington v British Transport Police [1999] 2 AC 143, cited Confectionery Workers Union of Australia v Australian Chamber of Manufactures (1991) 38 IR 49, cited Construction, Forestry, Mining & Energy Union v Australian Industrial Relations Commission (1999) 164 ALR 73, approved Construction, Forestry, Mining and Energy Union v Guidice (1998) 159 ALR 1, approved Craig v State of South Australia (1995) 184 CLR 163, discussed Dimes v Proprietors of Grand Junction Canal Pty (1852) 3 HLCas 759, referred to Dornan v Riordan (1990) 24 FCR 564, cited Elizabeth Dowager Baroness Wenlock v The River Dee Co (1885) 10 AppCas 354 referred to Escobar v Spindaleri (1986) 7 NSWLR 51, discussed Hazell v Hammersmith & Fulham London Borough Council [1992] 2 AC 1, referred to Jones v National Coal Board [1957] 2 QB 55, cited Public Service Board (NSW) v Osmond (1986) 159 CLR 656, cited R v Civil Service Appeal Board, Ex parte Cunningham [1992] ICR 816; [1991] 4 AllER 310, cited R v Cook; Ex parte Twigg (1980) 147 CLR 15, referred to Re Astec Pty Ltd (1992) 45 IR 261, cited Re Australian Industrial Relations Commission; Ex parte Construction Forestry Mining and Re Australian Railways Union; Ex p Public Transport Corporation (1993) 117 ALR 17, cited Re Media, Entertainment and Arts Alliance v Ex p Arnel (1994) 179 CLR 84, cited Reg v Bedwellty Justices; Ex parte Williams [1997] AC 225, cited Reg v Lord President of the Privy Council; Ex parte Page [1993] AC 682, cited Returned & Services League of Australia (Vic Branch) Inc (Pascoe Vale Sub Branch) v Liquor Licensing Commission [1999] VSCA 37, cited Sammartino v Commissioner Foggo [1999] FCA 1231, referred to Smith v Allan, Secretary, Treasury of New South Wales (1993) 31 NSWLR 52, referred to T Flexman Ltd v Franklin County Council [1979] 2 NZLR 690, referred to Transurban City Link Limited v Peter Allan [1999] FCA 1723, cited Yuill v Yuill [1945] P 15, referred to Vakauta v Kelly (1989) 167 CLR 568 discussed TANNYA EDWARDS v JUSTICE GIUDICE, PRESIDENT, SENIOR DEPUTY PRESIDENT POLITES AND COMMISSIONER CRIBB OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION and TELSTRA CORPORATION LIMITED V 218 of 1999 MOORE, MARSHALL and FINKELSTEIN JJ 23 DECEMBER 1999 MELBOURNE