Australian Postal Corporation v Gorman [2011] FCA 975

FEDERAL COURT OF AUSTRALIA

Australian Postal Corporation v Gorman [2011] FCA 975 Citation: Australian Postal Corporation v Gorman [2011] FCA 975

Appeal from: Gorman v Australia Post [2010] FWAFB 9413

Parties: AUSTRALIAN POSTAL CORPORATION v BRENT GORMAN and FAIR WORK AUSTRALIA

File number: SAD 13 of 2011

Judge: BESANKO J

Date of judgment: 25 August 2011

Catchwords: ADMINISTRATIVE LAW — application by employer for constitutional writs directed to Fair Work Australia —first respondent's employment was terminated by applicant and respondent filed application with Fair Work Australia seeking remedy for unfair dismissal — at arbitration parties informed Fair Work Australia they had reached settlement agreement — first respondent did not sign deed of settlement and sought to continue with application — where applicant sought dismissal of application on basis that its continued pursuit was frivolous and vexatious within s 587 of the Fair Work Act 2009 (Cth) ('the Act') — Senior Deputy President found parties had reached agreement and dismissed respondent's application pursuant to s 587 — appeal to Full Bench of Fair Work Australia upheld — whether Full Bench had made jurisdictional error INDUSTRIAL LAW — construction of s 587 of the Act — whether Full Bench erred in finding that fact of an accord and satisfaction could not be raised at interlocutory stage — application of test for leave to appeal under s 400 of the Act including 'significant error of fact' — whether decision pursuant to s 587 in unfair dismissal application is a decision under Chapter 3 Part 3-2 of the Act to which s 400 test applies HELD: The Full Bench made jurisdictional errors in its construction of s 587 and its failure to apply the test in s 400 of the Act and writs of certiorari and mandamus should issue to Fair Work Australia. Application for a declaration that the decision of the Senior Deputy President was correct refused.