FEDERAL COURT OF AUSTRALIA

Australian Postal Corporation v D’Rozario [2014] FCAFC 89

FEDERAL COURT OF AUSTRALIA

Australian Postal Corporation v D’Rozario [2014] FCAFC 89

CORRIGENDA

1    In the reasons for judgment of Jessup J, make the following changes to the paragraphs indicated:

[29]:    first sentence, replace “form” with “from”.

[36]:    last sentence of the last paragraph of the extract, delete “the kind” where second appearing.

[47]:    replace the indented lettered passage with the following:

(a)    Where the correctness of the decision is a precondition to the assumption of jurisdiction, to the exercise of a discretion or to reaching a substantive conclusion, result or outcome in the matter before the decision-maker.

(b)    Where there was no evidence or probative material before the decision-maker upon which the decision could have been made.

(c)    Where there was such evidence or probative material, but the decision was illogical or irrational.

[53]:    second sentence, for “the then the” substitute “the then”.

2    In [120] of the reasons for judgment of Bromberg J, second sentence, for “respondent” substitute “respondents”.

Associate:

Dated:    30 October 2014

THE COURT ORDERS THAT:

1.    A writ of certiorari be issued directed to the fourth respondent (the Fair Work Commission) to quash the decision and orders of:

(a)    the Full Bench of the Fair Work Commission made on 28 August 2013 in matter number C2011/6623; and

(b)    Vice President Lawler of the Fair Work Commission made on 26 November 2013 in matter number C2011/6623,

insofar as and only insofar as those decisions and orders relate to matter number U2010/15319.

2.    The applicant’s Amended Originating Application For Relief under s 39B of the Judiciary Act 1903 (Cth) be otherwise dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

besanko J

1    I have had the advantage of reading the reasons for judgment of Jessup J. His Honour sets out the facts and issues which arise on the application before this Court. There is no need for me to repeat those matters.

2    I start with the application insofar as it was directed to the appeals to the Full Bench of the Fair Work Commission (“FWC”) by Mr D’Rozario and Mr Clarke. In the case of those appeals, the Full Bench decided to grant permission to appeal because it considered that it was in the public interest to do so. The issue raised by the applicant in this proceeding is whether the Full Bench committed a jurisdictional error in making that decision. The applicant submits that it did because there was no evidence to support the decision or, in the alternative, the decision was irrational, illogical, and not based on findings or inferences of fact supported by logical grounds.

3    It is necessary to examine the relevant legislative provisions in the Fair Work Act 2009 (Cth) and the relevant legal principles.

4    Appeals from a single member of the FWC to the Full Bench of the FWC are regulated by a number of sections in Divisions 3 and 4 of Part 5-1, Chapter 5 of the Fair Work Act. Section 604(1) confers a “right” of appeal on a person aggrieved by a decision of the FWC, but that right only arises, or may only be exercised, where permission to appeal is granted by the FWC. Section 604(2) provides that, without limiting the FWC’s discretion to grant permission to appeal, the FWC must grant permission “if the FWC is satisfied that it is in the public interest to do so”. There is a particular rule governing the grant of permission to appeal in cases where the application at first instance was for a remedy for unfair dismissal. In such cases, s 400(1) provides that, despite s 604(2), the FWC must not grant permission to appeal unless the FWC considers that it is in the public interest to do so. It may be noted, although it is not relevant in this case, that there is a further limit on an appeal from a decision dealing with an application for a remedy for unfair dismissal which is set out in s 400(2). That limit is to the effect that, to the extent that the appeal is an appeal on a question of fact, it can only be made on the ground that the decision involved a significant error of fact.

5    Section 613(1) provides for how the Full Bench is to proceed in hearing the question of permission to appeal and, if permission is granted, the appeal. It is subject to an exception in s 613(2), but that exception is not relevant for present purposes. Section 613(1) is in the following terms:

613    Appeal of Decisions

(1)    A Full Bench must (except as provided by subsection (2)):

(a)    decide under section 604 whether to grant permission to appeal a decision; and

(b)    if the Full Bench decides to grant the permission hear—the appeal in accordance with section 607.

6    Section 607 deals with the conduct of an appeal. Subsection (1) provides for circumstances in which an appeal may be heard without a hearing. Subsection (2) gives the FWC the power to admit further evidence and take into account any other information or evidence. Subsection (3) gives the FWC a range of powers in connection with the disposition of an appeal, including the power to confirm, quash, or vary the decision.

7    The effect of these sections is to make the grant of permission to appeal a precondition to the hearing of an appeal (ss 604(1), 613(1)). Self-evidently, the hearing of the appeal is a precondition to the exercise of the powers on the appeal including, for example, the power to confirm, quash or vary the decision (s 607(3)). It follows that the grant of permission to appeal is a precondition to the exercise of the appellate power by the FWC. In other words, it is a jurisdictional requirement. In this case, the jurisdictional requirement is that the FWC considers that it is in the public interest to grant permission to appeal.

8    In terms of legal analysis, a convenient starting point is the decision of the High Court in the Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 (“City of Enfield”). In that case, Gleeson CJ, Gummow, Kirby and Hayne JJ referred (at 149-150, [32]-[34]) to the difference between a jurisdictional fact and a criterion which turns on a decision-maker’s opinion or state of satisfaction as to whether a relevant fact or matter exists. In the former case, a party may call evidence on an application for judicial review and a court will decide for itself whether the relevant fact exists. If the court finds that the fact does not exist, then jurisdictional error has been established and, subject to any relevant discretionary considerations, relief will be granted (see Parisienne Basket Shoes Proprietary Limited and Others v Whyte (1938) 59 CLR 369, at 391 per Dixon J (as his Honour then was); Beyazkilinic v Manager, Baxter Immigration Reception and Processing Centre (2006) 155 FCR 465). In the latter case, different grounds of challenge arise. In this case, the Court is concerned with the latter type of case, that is to say, the criterion depends on whether the decision-maker has formed the view that a particular fact or matter has been established.

9    In The King v Connell; ex parte The Hetton Bellbird Collieries Ltd (1944) 69 CLR 407 (“Connell”), the High Court considered a power in an industrial authority to alter a rate of remuneration where it was satisfied that the rate of remuneration was anomalous. Chief Justice Latham said (at 430 and 432):

Thus, where the existence of a particular opinion is made a condition of the exercise of power, legislation conferring the power is treated as referring to an opinion which is such that it can be formed by a reasonable man who correctly understands the meaning of the law under which he acts. If it is shown that the opinion actually formed is not an opinion of this character, then the necessary opinion does not exist. A person acting under a statutory power cannot confer power upon himself by misconstruing the statute which is the source of his power.

...

It is therefore well settled that if a statute provides that a power may be exercised if a person is of a particular opinion, such a provision does not mean that the person may act upon such an opinion if it is shown that he has misunderstood the nature of the opinion which he is to form. Unless such a rule were applied legislation of this character would mean that the person concerned had an absolutely uncontrolled and unlimited discretion with respect to the extent of his jurisdiction and could make orders which had no relation to the matters with which he was authorized to deal. It should be emphasized that the application of the principle now under discussion does not mean that the court substitutes its opinion for the opinion of the person or authority in question. What the court does do is to inquire whether the opinion required by the relevant legislative provision has really been formed. If the opinion which was in fact formed was reached by taking into account irrelevant considerations or by otherwise misconstruing the terms of the relevant legislation, then it must be held that the opinion required has not been formed. In that event the basis for the exercise of power is absent, just as if it were shown that the opinion was arbitrary, capricious, irrational, or not bona fide.

10    In Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353, Dixon J (as his Honour then was) considered a decision of the Commissioner of Taxation as to the voting power of a company at the end of a year of income. His Honour said (at 360):

But it is for the commissioner, not for me, to be satisfied of the state of the voting power at the end of the year of income. His decision, it is true, is not unexaminable. If he does not address himself to the question which the sub-section formulates, if his conclusion is affected by some mistake of law, if he takes some extraneous reason into consideration or excludes from consideration some factor which should affect his determination, on any of these grounds his conclusion is liable to review. Moreover, the fact that he has not made known the reasons why he was not satisfied will not prevent the review of his decision. The conclusion he has reached may, on a full consideration of the material that was before him, be found to be capable of explanation only on the ground of some such misconception. If the result appears to be unreasonable on the supposition that he addressed himself to the right question, correctly applied the rules of law and took into account all the relevant considerations and no irrelevant considerations, then it may be a proper inference that it is a false supposition. It is not necessary that you should be sure of the precise particular in which he has gone wrong. It is enough that you can see that in some way he must have failed in the discharge of his exact function according to law.

11    To similar effect is the analysis of Gibbs J (as his Honour then was) in Buck v Bavone (1976) 135 CLR 110, where his Honour considered the relevant principles where a decision-maker has the power to take action if he or she is satisfied of the existence of certain matters specified in the statute. I set out one short passage from his Honour’s reasons (at 118-119) because it is particularly relevant where the criterion such as public interest is a very broad one:

However, where the matter of which the authority is required to be satisfied is a matter of opinion or policy or taste it may be very difficult to show that it has erred in one of these ways, or that its decision could not reasonably have been reached. In such cases the authority will be left with a very wide discretion which cannot be effectively reviewed by the courts. Hughes and Vale Pty. Ltd. v. New South Wales [No. 2] itself was a case of that kind. Where the authority is required to be satisfied on the existence of particular matters of objective fact, the position may be very different. It may then be possible to show clearly not only that the material facts existed but that an authority acting in accordance with its duty could have reached no other conclusion than that they existed.

12    I refer also to Foley v Padley (1984) 154 CLR 349, at 353 per Gibbs CJ, and 370 per Brennan J (as his Honour then was), and Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611, at 651-657 per Gummow J.

13    In Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12; (2004) 78 ALJR 992 (“SGLB”), the High Court considered the Minister’s power under s 65(1)(a) of the Migration Act 1958 (Cth) to grant a visa. That section required the Minister to be satisfied of certain matters before granting a visa. Gummow and Hayne JJ (with whom Gleeson CJ agreed on this point) said that the satisfaction of the Minister as to certain matters was a condition precedent to the discharge of the obligation to grant or refuse to grant a visa “and is a ‘jurisdictional fact’ or criterion upon which the exercise of that authority is conditioned” (at 20, [37]; see also Graham Barclay Oysters Pty Limited v Ryan (2002) 211 CLR 540, at 609, [183] per Gummow and Hayne JJ). That passage was cited with approval by Gummow A-CJ and Kiefel J in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 (“SZMDS”) (at 625, [40]).

14    In my opinion, the same analysis applies to ss 604(1) and 400(1) of the Fair Work Act so that the FWC’s opinion or state of satisfaction that it is in the public interest to grant permission to appeal is a jurisdictional fact or criterion to be satisfied before an appeal is heard and orders made on the appeal.    

15    I turn to the relevant principles in relation to the no evidence ground. If a decision-maker makes a finding of fact for which there is a complete absence of evidence, then that is an error of law: Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390, at 418, [91] per Hayne, Heydon, Crennan and Kiefel JJ.

16    The position is not as clear as to whether and when a finding of fact made in the complete absence of evidence is a jurisdictional error. In SGLB (at 21, [39]), Gummow and Hayne JJ seem to suggest that the no evidence ground of judicial review is only available where the relevant finding is a precondition to the exercise of jurisdiction. There is authority of this Court expressing the test differently and stating that the no evidence ground is available where the finding in respect of which it is said there is a complete absence of evidence is a critical step in the ultimate conclusion of the decision-maker. In SZNKV v Minister for Immigration and Citizenship [2010] FCA 56, at [38], Kenny J identified what her Honour called the two approaches and the authorities in relation to each approach. It is not necessary for me (as it was not necessary for Kenny J) to determine whether these two approaches co-exist and, if a choice is to be made, to identify the preferred approach. I say that because, in this case, the finding in respect of which it is said that there was no evidence was, in my opinion, a precondition to the exercise of the power to grant permission to appeal and hear the appeal. The decision of the High Court in The Queen v Australian Stevedoring Industry Board and Another; ex parte Melbourne Stevedoring Company Pty Ltd (1953) 88 CLR 100 seems to support the operation of the no evidence ground in such circumstances, although it might also be said that the real significance of the absence of evidence is that it leads without much difficulty to the conclusion that the wrong test has been applied.

17    I should say that the no evidence ground refers to no evidence before the decision-maker. Ordinarily that might be established by a record of the evidence put before the decision-maker or by reference to the decision-maker’s reasons. It would not ordinarily involve putting evidence of the “fact” before the court hearing the application for judicial review. That type of exercise is reserved for the type of jurisdictional fact case of which City of Enfield is the best modern example. The Court did receive evidence in this case and perhaps it was not strictly admissible. In any event, for reasons I will give, the fate of the applicant’s application is the same with or without the evidence.

18    I turn to the relevant principles in relation to the ground that the decision to grant permission to appeal was irrational, illogical, and not based on findings or inferences of fact supported by logical grounds. The High Court in SZMDS considered whether the classification of a decision as irrational, illogical, or not based on findings or inferences of fact supported by logical grounds meant that it was infected by jurisdictional error. Four members of the Court held that it was in certain circumstances, and the fifth member, Heydon J, analysed the facts on the assumption that that was the case. Again, the decision was a decision under s 65(1) of the Migration Act. Gummow A-CJ and Kiefel J held that a decision on a jurisdictional fact, albeit one which turned on the opinion or state of satisfaction of the decision-maker, could be quashed if it was irrational or illogical (at 621, [24], 625, [40]). Crennan and Bell JJ were clear that the decision needed to relate to a jurisdictional fact before it could be struck down on the ground that the decision was irrational or illogical (at 636, [94]-[95], 643-644, [119]). Their Honours also made the point that an allegation of irrationality or illogicality in relation to a decision was an allegation of a similar order to an allegation that the decision is arbitrary or capricious. In this connection, I refer to the observations of Latham CJ in Connell set out above.

19    Before leaving the general discussion of the two grounds of judicial review raised in this case, it is to be noted that the applicant did not argue that the decision of the FWC was unreasonable. Therefore, it is not necessary for this Court to consider the effect of the recent decision of the High Court in Minister for Immigration and Citizenship v Li and Another (2013) 249 CLR 332.

20    As I have previously mentioned, the relevant criterion in this case is the FWC’s opinion or state of satisfaction that a grant of permission to appeal is in the public interest. In O’Sullivan v Farrer (1989) 168 CLR 210 (at 216) Mason CJ, Brennan, Dawson and Gaudron JJ said of the expression “in the public interest”:

Indeed, the expression “in the public interest”, when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only “in so far as the subject matter and the scope and purpose of the statutory enactments may enable … given reasons to be [pronounced] definitely extraneous to any objects the legislature could have had in view”: Water Conservation and Irrigation Commission (N.S.W.) v. Browning, Per Dixon J.

(Footnote omitted.)

21    In Osland v Secretary, Department of Justice [No 2] (2010) 241 CLR 320, at 329-330, [14], French CJ, Gummow and Bell JJ referred to the concept of “public interest” as predicated on fact-value complexes, not on mere facts.

22    Jessup J has set out the passages in the FWC’s reasons where the Commission explains its reasons for granting permission to appeal. Fairly read, I think there is one reason the FWC decided that it was in the public interest to grant permission to appeal and not, as the respondents submitted, a number of reasons. That reason was to correct what was said to be an emerging trend in the cases of regarding the accessing, sending, or receiving and storing of pornography by an employee as a serious form of misconduct that invariably merited termination of employment, which the FWC considered was inconsistent with basic principle. It was not submitted by the applicant that that was not a genuinely held view and, in any event, I think the fact that it was is shown by the long discussion of the general principle which follows in the FWC’s reasons (at [5]-[70]). At the same time, there is no evidence that the Commissioner at first instance relied (expressly at least) on any of the decided cases which reveal the so-called emerging trend, or that he misconstrued the effect of Queensland Rail v Wake (2006) 156 IR 393, or that he applied a test that accessing, sending, or receiving and storing pornography by an employee was a form of serious misconduct that invariably merited termination of employment. Nor is there any suggestion that the applicant before this Court (i.e. the employer) had made a submission to the Commissioner at first instance to the effect that there was such a rule. There is force in the applicant’s submission that, although the Full Bench found error in the Commissioner’s reasons, the error which was said to engage the public interest was an error perceived by the FWC to be emerging in other cases. Although it was open to the Full Bench in this case to conclude that the case was a suitable vehicle to address the matter of public interest, it might be expected that that would not often be the case where the error said to engage the public interest does not appear clearly from the decision under challenge.

23    I have considered the material that the FWC might have relied on for the purposes of concluding that there was an emerging trend in the decided cases of the nature identified. That material includes the written submissions and the oral submissions of the parties, including the passages identified in the reasons of Jessup J. It seems to me that, fairly read, the overall thrust of the employees’ submissions as to the reasons in favour of permission to appeal did not include the ground actually relied on by the FWC. In my opinion, the proper interpretation of the exchange between the Vice-President and counsel for the employees (set out in Jessup J’s reasons at [36]) is that the suggestion as to the basis upon which permission to appeal was subsequently granted came as much from the FWC itself as it did from counsel for the employees.

24    It follows, I think, that this is a s 590(1) case, rather than a s 590(2) case. That is, the FWC, subject to the matter not otherwise being provided for by the Act, may inform itself in relation to the issue of public interest in such manner as it considers appropriate. Of course, the rules of procedural fairness must be complied with, but no breach of the rules was suggested. In fact, the matter was squarely raised during submissions. I think the FWC informed itself and concluded that there were decided cases revealing the emerging trend previously identified. Once it is accepted that the fact of an emerging trend could fulfil the public interest requirement, then the decision by the FWC is difficult to challenge. The “fact” is, in reality, part fact and part opinion, or part evaluation and part interpretation. It may be wrong, but it is difficult to say that it is made without evidence, or is irrational or illogical. Although I do not think Mr Avallone’s analysis of the cases is admissible, even if it was, it would not alter my view. The affidavit of Mr Victory in response suggested that there were in the order of six cases where employees sending or receiving and storing pornography were summarily dismissed or dismissed for misconduct and the employees failed to obtain relief for unfair dismissal.

25    The application insofar as it concerns the appeals by Mr D’Rozario and Mr Clarke should be dismissed.

26    Mr Brambleby’s appeal to the Full Bench related to the remedy the Commissioner at first instance considered was appropriate in his case. The Commissioner considered that reinstatement was inappropriate and that the appropriate remedy was the payment of compensation. Mr Brambleby needed permission to appeal from that decision. He was granted permission without the Full Bench considering whether, in the case of his appeal, it was in the public interest to do so. That was a jurisdictional error, and the orders made by the Full Bench on the appeal and by the Vice President subsequently on referral from the Full Bench, insofar as they relate to Mr Brambleby, must be quashed.

27    The applicant submitted that the FWC committed a second jurisdictional error in relation to Mr Brambleby’s appeal by interfering with the Commissioner’s decision about remedy without first identifying error on the part of the Commissioner. In support of its contention that there was a need to identify error, the applicant referred to the decision of the High Court in Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission (2000) 203 CLR 194, at 203-204, [14] and [17]. There is a good deal of force in that submission and I am not persuaded the Full Bench did find error in the passages referred to by counsel for Mr Brambleby. It is not necessary to decide the point because the Full Bench’s orders in the case of Mr Brambleby must be set aside on the first ground which I have identified.

Associate:    

Dated:     23 July 2014

REASONS FOR JUDGMENT

jessup J

28    In this proceeding, the applicant, Australian Postal Corporation, seeks a writ of prohibition, pursuant to s 39B(1) of the Judiciary Act 1903 (Cth), directed to the Fair Work Commission (“the Commission”) constituted under the Fair Work Act 2009 (Cth) (“the FW Act”), which would prohibit it from proceeding further in a matter identified as C2011/6623. In that matter, a Full Bench of the Commission, by a majority, upheld an appeal from an earlier decision of a single member of the Commission (then called “Fair Work Australia”) and ordered the reinstatement of three employees whom the applicant had dismissed, the first, second and third respondents Shane D’Rozario, Kris Clarke and Michael Brambleby (“the employees”) respectively. The applicant also seeks a writ of certiorari to quash the decision of the Full Bench.

29    The employees were dismissed form their employment by the applicant on 13 December 2010. Each subsequently made an application pursuant to s 394 of the FW Act for a remedy in respect of his dismissal under Div 4 of Pt 3-2 of that Act. On that application, the central question which arose was whether the employees had been “unfairly dismissed” (s 390(1)(b)). That question, in turn, involved a second question, namely, whether the dismissal had been “harsh, unjust or unreasonable” (s 385(b)). In that context, s 387 of the FW Act set out what the Commission was required to take into account in considering whether a dismissal was harsh, unjust or unreasonable. By para (a) of that section, the Commission was to take into account –

… whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees)….

30    In his decision at first instance on 4 November 2011, Commissioner Lewin held that there was a valid reason for the dismissal of each of the employees –

… being the use of the Australia Post email system to send, forward or distribute highly inappropriate material contrary to the proper use of the email system and in the knowledge that doing so was a prohibited use of the email system.

The Commissioner then considered other circumstances bearing on the question whether each dismissal was harsh, unjust or unreasonable and, in the case of Messrs D’Rozario and Clarke, held that the dismissals had not been. Their applications under s 394 of the FW Act were, therefore, dismissed. In the case of Mr Brambleby, the Commissioner held that his dismissal had been harsh and unreasonable, but held also that Mr Brambleby’s reinstatement would be inappropriate within the meaning of s 390(3)(a) of the FW Act. The Commissioner stated his intention to list Mr Brambleby’s application for the purpose of receiving such further evidence as would be relevant to an award of compensation under s 390(2).

31    On 25 November 2011, the employees appealed against the decision of Commissioner Lewin. In the case of Messrs D’Rozario and Clarke, those appeals were against the decision that their dismissals had not been harsh, unjust or unreasonable. In the case of Mr Brambleby, the appeal was against the decision not to reinstate him to his former employment. On 22 December 2011, the applicant appealed against so much of the decision of Commissioner Lewin as had held that the dismissal of Mr Brambleby had been harsh and unreasonable.

32    Those appeals were lodged under s 604 of the FW Act which, to the extent presently relevant, provided as follows:

(1)    A person who is aggrieved by a decision:

(a)    made by FWA (other than a decision of a Full Bench or the Minimum Wage Panel);

….

may appeal the decision, with the permission of FWA.

(2)    Without limiting when FWA may grant permission, FWA must grant permission if FWA is satisfied that it is in the public interest to do so.

At the time, the Commission was called “Fair Work Australia”, abbreviated in the above provisions, and elsewhere in the FW Act, to “FWA”.

33    In the context of Pt 3-2 of the FW Act, the qualified right of appeal given by s 604 was restricted by the terms of s 400(1), as follows (and here I use the form of the section which existed at the time the Full Bench granted permission to appeal, 28 August 2013, when the Commission had its new name, abbreviated as “FWC”):

Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part unless the FWC considers that it is in the public interest to do so.

That is to say, although, under the general provisions of s 604, the Commission’s satisfaction as to the public interest criterion was a non-limiting circumstance that would mandate the granting of permission to appeal, under Pt 3-2 the Commission’s satisfaction with respect to that criterion was an essential requirement for the granting of such permission.

34    With respect to the procedure required by the FW Act for the consideration of the public interest requirement, the provisions of s 613(1) should also be noted:

A Full Bench must (except as provided by subsection (2)):

(a)    decide under section 604 whether to grant permission to appeal a decision; and

(b)    if the Full Bench decides to grant the permission—hear the appeal in accordance with section 607.

Section 613(2) is of no present concern.

35    In the hearing before the Full Bench, the employees relied on a written outline of submissions which dealt, briefly but specifically, with the public interest requirement. That outline included the following paragraph:

There is a public interest in the Full Bench providing guidance about the proper approach of the Tribunal in unfair dismissal cases concerning inappropriate use of an employer’s computer system.

Making oral submissions in support of the public interest cases of Messrs D’Rozario and Clarke, counsel for the employees, Mr Victory said that they were not given a “fair go all round” by Commissioner Lewin’s failure to consider properly “the workplace culture and differential treatment in relation to other employees”.

36    At this point, there was an exchange between the presiding member of the Full Bench and counsel for the employees as follows:

VICE PRESIDENT LAWLER: There’s a problem here, Mr Victory, at this point and the problem has to do with the way a decision that’s responsive to those submissions gets used or misused as the case may be. Because if – well, it’s really not your problem. It’s our problem. It’s perhaps a matter better raised with Mr McKenney.

MR VICTORY: Thank you, your Honour.

VICE PRESIDENT LAWLER: But you take my point? The last thing that should occur is to say, “Well, if you don’t have a cultural problem like that, and you don’t have managers involved well then of course it’s always going to be okay to sack someone, and it will never be harsh, unjust or unreasonable”, which was the way in which the argument you’ve just put would be used/misused potentially.

MR VICTORY: I accept that.

VICE PRESIDENT LAWLER: You see, in every case the authorities command the member hearing at first instance to decide the case by reference to the facts and circumstances of that case measured against the statutory criteria.

MR VICTORY: Yes, I accept that but the Commission does take into account previous authority and - - -

VICE PRESIDENT LAWLER: No, that’s precisely the point.

MR VICTORY: I suppose at the moment there may even be a temptation to misuse the decision in Queensland Rail v Wake. I think it’s misinterpreted as saying even if someone is sent - - -

VICE PRESIDENT LAWLER: Yes, the circumstances in Wake were really quite extraordinary.

MR VICTORY: I agree.

VICE PRESIDENT LAWLER: Queensland Rail went on a jihad against this stuff. They had toolbox meetings, every time somebody logged on to the network they had to click an acknowledgement about this specific issue. There were specific warnings given to people, there was a moratorium that was introduced for a period. Mr Wake only got the sack after all of that.

MR VICTORY: Yes.

VICE PRESIDENT LAWLER: That’s a very rare set of circumstances.

MR VICTORY: And, your Honour, the point I’m trying to make is in terms of a precedent, Wake is sometimes used as a precedent to support the contention that where an employee is sent pornographic emails it doesn’t matter what their length of service is, or the fact that they’ve got a prior unblemished service history, it’s okay for an employer to terminate them.

VICE PRESIDENT LAWLER: Yes.

MR VICTORY: I’m not sure that that is the proper position. That goes to my next point that I think there’s a public interest in this Full Bench providing guidance about the approach for employers to take in these matters, so that the parties can be provided with certainty in relation to their actions, and how to deal with these situations. I think there’s a public interest in providing guidance on that point, and also if your Honours do find that there is the requisite appellable error ie. of the kind the kind described in House v King we would say that there is a public interest in correcting appellable error.

This passage was, in a submission made on behalf of the employees in the Full Court, significant in the context of the applicant’s grounds in the present case. I shall return to that submission in due course.

37    The Full Bench published its decision on 28 August 2013.

38    In the result, two of the three members of the Full Bench, Vice President Lawler and Commissioner Cribb (“the majority”), held that the employees’ appeals should be allowed and the applicant’s appeal should be dismissed. The third member, Senior Deputy President Hamberger, would not have granted permission to appeal in any of the appeals.

39    Conformably with ss 400(1) and 613(1)(a) of the FW Act, the first matter which was considered by the majority in their reasons of 28 August 2013 was whether it was in the public interest for permission to appeal to be granted. Having referred to the terms of ss 400 and 604, the majority continued:

[2]    This is not a case where there is any serious challenge to the Commissioner’s primary findings of fact.

[3]    There is an emerging trend in the decided cases towards regarding the accessing, sending or receiving and storing pornography by an employee as a form of serious misconduct that invariably merits termination of employment. Such a proposition is inconsistent with basic principle. Accessing, sending or receiving and storing pornography is not a separate species of misconduct to which special rules apply. In the context of an application for an unfair dismissal remedy, it is a form of misconduct to which the same general principles apply as apply in all unfair dismissal matters involving reliance on misconduct.

[4]    We are satisfied that the emerging prominence of dismissals based on pornography related breaches of employer policy, and a concern that the decision of the Full Bench in Queensland Rail v Wake (2006) 156 IR 393 (Queensland Rail) is being misinterpreted, supplies the public interest required for grant leave to appeal in this case. This case proves to be a suitable vehicle to address that matter of public interest. We grant permission to appeal. Having granted permission to appeal, the appeal proceeds as a rehearing albeit that the Full Bench cannot exercise any of the powers conferred by s 607(3) unless error is established: Coal and Allied Operations Pty Ltd v AIRC (2001) 203 CLR 194 at [17] and [32].

40    The succeeding 66 paragraphs of the reasons of the majority were concerned with the issues of principle by reference to which permission to appeal had been granted.

41    Turning to the facts of the case before them, the majority upheld Commissioner Lewin’s conclusion that there had been a valid reason for the dismissal of the employees, and also adopted the Commissioner’s “treatment” of the matters specified in paras (b) – (g) of s 387 of the FW Act. By reference to a number of other “matters” that the majority considered relevant under para (h) of that section, however, they upheld the appeal and found that the dismissal of Messrs D’Rozario and Clarke had been harsh. They dismissed the applicant’s appeal insofar as it related to Commissioner Lewin’s finding that the dismissal of Mr Brambleby had been harsh. The majority went on to hold that reinstatement was appropriate, thereby upholding his appeal too. Orders giving effect to those conclusions were made on 26 November 2013.

42    On 10 October 2013, the present proceeding was commenced under s 39B of the Judiciary Act 1903 (Cth). At the centre of the applicant’s case for prohibition and certiorari is the proposition that there was no evidence to sustain the finding by the majority that there was “an emerging trend in the decided cases towards regarding the accessing, sending or receiving and storing pornography by an employee as a form of serious misconduct that invariably merits termination of employment”; or the finding that there was, implicitly in the decided cases, an “emerging prominence of dismissals based on pornography related breaches of employer policy”; or the conclusion that the decision of the Full Bench in Queensland Rail v Wake (2006) 156 IR 393 was being misinterpreted. The applicant points out, correctly, that no “decided cases” of the kind referred to by the majority were mentioned in its reasons of 28 August 2013, and none were mentioned in the parties’ submissions, either written or oral, before the Full Bench.

43    The applicant has gone further and caused an electronic search to be made of all published decisions of the Australian Industrial Relations Commission and of the Commission (save those in relation to which confidentiality orders were made) dating back at least to 2000. The applicant’s solicitor, Brendan James Avallone, who conducted this research, swore as follows in his affidavit of 10 October 2013:

I have read each of the decisions listed in the previous paragraph. Not one of those decisions is authority for the proposition, or otherwise supports the proposition, that the accessing, sending or receiving and storing of pornography by an employee is a form of serious misconduct that invariably merits termination of employment. Nor do any of those decisions treat Queensland Rail as authority for that proposition.

Based on my review of the above decisions, I can say that in some cases it was found that the termination of an applicant who had accessed, sent, received or stored pornography was harsh, unjust or unreasonable. In others, the applicant was unsuccessful. There are no decisions, let alone a trend of decisions, of the kind that the majority of the Full Bench relied upon in finding that it was in the public interest to grant permission to appeal in this case.

44    Mr Avallone’s research also extended, to some extent, into the arena of State industrial tribunals, and the effect of his affidavit was that the generalisation set out above would require no qualification from those additional sources.

45    In an affidavit affirmed on 6 November 2013, the employees’ solicitor, Daniel James Victory, analysed a number of the industrial decisions to which Mr Avallone had referred. After removing cases which he did not consider to be “comparable”, Mr Victory pointed out that there were two decisions in which it had been held that the dismissal in question was unfair, and six decisions which had upheld the employer’s decision to dismiss. On the hearing of the present application, however, it was not suggested on behalf of the employees that any of these decisions was other than an outcome on the particular facts, or were examples of any emerging trend in the decided cases of the kind relied upon by the majority in para 3 of their reasons set out in para 39 above.

46    A secondary ground for prohibition and certiorari relied upon by the applicant is that the Full Bench’s decision on public interest was illogical, irrational or lacking a basis in findings or inferences of fact supported on logical grounds. This was said to be “related” to the no evidence ground and invoked, as I would understand it, effectively a slightly different legal rubric in which to accommodate the same basic complaint as made under the applicant’s primary ground.

47    The relationship between alleged errors in a factual decision and excess or want of jurisdiction has the potential to present in the following contexts:

Where the correctness of the decision is a precondition to the assumption of jurisdiction, to the exercise of a discretion or to reaching a substantive conclusion, result or outcome in the matter before the decision-maker.

 Where there was no evidence or probative material before the decision-maker upon which the decision could have been made.

Where there was such evidence or probative material, but the decision was illogical or irrational.

Category (a) involves the situation of the so-called jurisdictional fact: see Corporation of the City of Enfield v Development Assessment Commission (1999) 199 CLR 135, 148 [28] per Gleeson CJ, Gummow, Kirby and Hayne JJ. In the present case, there is a sense in which s 400(1) of the FW Act made it a jurisdictional fact apropos the grant of permission to appeal that the Full Bench considered that it was in the public interest that such permission be granted. Save for the circumstance that a valid appeal had been lodged under s 604(1), however, there was no fact which was jurisdictional apropos the Full Bench embarking on the process of considering whether permission to appeal should be granted in the public interest. And there was no fact, additional to the public interest as such, which stood as a precondition to the Full Bench reaching the state of mind referred to in s 400(1). It is categories (b) and (c) above that the applicant invokes in its submissions in the present case.

48    In the facts of the case which came to the High Court as Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390, an appeal lay from a decision of a tribunal “with respect to a matter of law”. Hayne, Heydon, Crennan and Kiefel JJ said (241 CLR at 418 [91]):

A tribunal that decides a question of fact when there is “no evidence” in support of the finding makes an error of law…. [footnote omitted]

The first of the two authorities upon which their Honours relied for that conclusion was the judgment of Bowen CJ in Lombardo v Federal Commissioner of Taxation (1979) 28 ALR 574, 578. That was a tax appeal, which lay only if the decision of the Board of Review had “involve[d] a question of law”. The Full Court held that it had not. The second such authority, TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 was an appeal to this court from the Administrative Appeals Tribunal, which lay only “on a question of law”. It was not a “no evidence” case as such, but, in the course of his reasons, Gummow J adverted to what had been said by Bowen CJ in Lombardo: 82 ALR at 187.

49    It is of some interest that their Honours in Kostas did not rely on, or refer to, what is often treated as the modern starting point for any consideration of the jurisprudence which governs the question whether an administrative decision which is based on no evidence necessarily involves an error of law, the passage from the judgment of Mason CJ in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321. His Honour said (170 CLR at 355-356):

The question whether there is any evidence of a particular fact is a question of law: McPhee v. S. Bennett Ltd. (1934) 52 W.N. (N.S.W.) 8, at p. 9; Australian Gas Light Co. v. Valuer-General (1940) 40 S.R. (N.S.W.) 126, at pp. 137-138. Likewise, the question whether a particular inference can be drawn from facts found or agreed is a question of law: Australian Gas Light …. ; Hope v. Bathurst City Council (1980) 144 C.L.R. 1, at pp. 8-9. This is because, before the inference is drawn, there is the preliminary question whether the evidence reasonably admits of different conclusions: Federal Commissioner of Taxation v. Broken Hill South Ltd. (1941) 65 C.L.R. 150, at pp. 155, 157, 160. So, in the context of judicial review, it has been accepted that the making of findings and the drawing of inferences in the absence of evidence is an error of law: Sinclair v. Maryborough Mining Warden (1975) 132 C.L.R. 473, at pp. 481, 483.

Although the particular question in Bond arose under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the ADJR Act”), in the above passage Mason CJ was discussing, by way of background, the common law. With respect to his Honour, I would not regard Sinclair as an example of a “no evidence” case: it was, in my view, a case in which the decision-maker misapprehended the nature of his statutory duty, the result being a writ of mandamus.

50    In the present case, it is not sufficient for the applicant that the court conclude that the Full Bench’s treatment of the public interest question involved an error of law, it is necessary for any such error to be jurisdictional: see Re Keely; ex parte Kingham (1995) 129 ALR 255, 273-278; Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission (1999) 93 FCR 317, 339-341; Linett v McIntyre (2002) 117 FCR 189, 191, 197-198. Here Kostas, and the cases upon which it relied, do not go the distance for the applicant. Neither does Bond. There have, however, been a number of cases in the Full Court in which the proposition that an administrative decision made in the absence of relevant evidence necessarily involves jurisdictional error has found expression. I shall turn to those cases next. In that context, and hereafter in these reasons, although for the sake of convenience I shall use the term “evidence”, I intend also a reference to any “material which could rationally affect the decision-maker’s assessment of the probability of the facts in issue”: D’Amore v Independent Commission Against Corruption (2013) 303 ALR 242.

51    I would also note, by way of preliminary, that any consideration of the jurisdictional dimension of the “no evidence” ground must, for present purposes at least, focus on the common law. Unlike Bond, the present case does not arise under s 5(1)(h) of the ADJR Act. Between 1 September 1994 and 30 September 2001, s 476(1)(g) of the Migration Act 1958 (Cth) contained a similar statutory ground of review, and, from what I can observe – and by reason of the predominance of migration cases in the administrative law jurisprudence of the court – this had some impact on judicial thinking with respect to the “no evidence” ground which may, to an extent at least, have overrun the repeal of the provision in question.

52    So far as my researches have disclosed, the first occasion on which a Full Court said anything, in a non-statutory context, that would provide sustenance to the proposition that for a tribunal to make a decision without relevant evidence would involve jurisdictional error was in SFGB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALD 402. There, the argument was that “there was no information before the [Refugee Review Tribunal] from which it could realistically draw the conclusion that there was a government in control of the place from which the appellant came that could or would protect the appellant from persecution for a Convention reason” (77 ALD at 407). Of that argument, the court said (77 ALD at 407):

This argument, if it were made out, would be sufficient to establish that the tribunal had made a “jurisdictional error” so as to found jurisdiction in this court to intervene. If the tribunal makes a finding and that finding is a critical step in its ultimate conclusion and there is no evidence to support that finding then this may well constitute a  jurisdictional error: see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355-357.

53    In SFGB itself, the tribunal had held as follows (77 ALD at 409):

I accept the independent information set out above that the Taliban is no longer a force in Afghanistan … There is no evidence before me to support the applicant’s claim that elements of the Taliban remain viable in Afghanistan, and especially not that any such elements are in positions of power or influence, or that they still function but in other forms.

The Full Court held that there was no evidence before the tribunal to support this conclusion in relation to that part of Afghanistan which was relevant to the then the applicant’s situation. It held (77 ALD at 410) that the tribunal –

… reached its conclusion that the appellant did not have a well-founded fear of persecution because it had found that the Taliban was not viable. On the material before the tribunal that conclusion was not open in relation to the northern Oruzgan province at that time. It involved a jurisdictional error. [emphasis added]

54    In SFGB, the court was exercising jurisdiction under s 39B of the Judiciary Act 1903 (Cth), the appellant having sought certiorari, prohibition and mandamus. The Full Court ordered that “the decision of the … Tribunal … be set aside and the matter be remitted to the … Tribunal for further consideration in accordance with the law”, thereby invoking notions relevant both to certiorari and to mandamus. Their Honours did not have the former s 476(1)(g) of the Migration Act available to them. The question was, therefore, not simply whether “there was no evidence or other material to justify the making of the decision”, but whether the making of the decision by the tribunal in the absence of evidence amounted to jurisdictional error. Their Honours clearly recognised this distinction, and held that it did. I am bound to observe with respect, however, that their Honours’ reasons seem to involve a subtle but important – and unexplained – extension of the dictum of Mason CJ in Bond upon which they relied.

55    I would next refer to Minister for Immigration and Multicultural and Indigenous Affairs v VOAO [2005] FCAFC 50. In that case the Full Court said ([2005] FCAFC 50 at [5]):

Counsel for the [Minister] accept that an error of law will be established if it appears that the Tribunal has made a finding of fact, or has drawn an inference, without any supporting probative evidence. They also accept that this error will amount to jurisdictional error if the Tribunal’s decision is based on such a finding. In our opinion this is such a case, although the application of the principle is here complicated by the circumstance that the relevant finding was of a negative, rather than positive, character.

What their Honours meant when they described the tribunal’s finding as having been “of a negative, rather than positive, character” was that the tribunal had held that there was no evidence of an important factual circumstance when there had, in fact, been such evidence. Their Honours said ([2005] FCAFC 50 at [12]) that it was “incorrect for the Tribunal to make the statement that it did” as to the absence of evidence. Their Honours concluded on this point ([2005] FCAFC 50 at [13]):

The situation that arose in this case might preferably be described as a failure to take account of relevant material, rather than ‘no evidence’. However, the label does not matter. On any view of the matter, the Tribunal fell into jurisdictional error.

56    It was in this state of things that Greenwood J decided SZDTZ v Minister for Immigration and Citizenship [2007] FCA 1824. Although not a Full Court judgment, his Honour’s reasons were later referred to with apparent approval in a case to which I shall come in its proper order. In the case itself, his Honour was more concerned with illogicality, irrationality, and the like, as grounds of jurisdictional review than with the “no evidence” ground as such, but, after an examination of the authorities, Greenwood J said ([2007] FCA 1824 at [32]):

A determination of the Tribunal as to a state of satisfaction or otherwise, of the relevant criteria or criterion in question, that is based upon a finding of fact or inferences drawn from facts, not based on logical or rational grounds, will give rise to an error of jurisdiction if there is no evidence to support the finding or no proper basis for drawing the inference; or, if there be some evidence, although inadequate, reliance by the Tribunal upon that inadequate evidence gives rise to an inference that the Tribunal has misconceived the test or is not, in reality, satisfied of the requisite matters, as a result of which there has been only a purported, rather than a real, exercise of the power conferred upon the Tribunal. 

A careful examination of his Honour’s words here shows that he limited the first proposition in the quoted passage above to a situation in which the state of satisfaction was ostensibly reached with respect to “the relevant criteria or criterion in question” and was based neither on inferences drawn without the necessary supporting facts nor on “logical or rational grounds”. In so doing, his Honour was, on my reading of his reasons, recognising that there may be situations in which the existence of logical or rational grounds may of themselves satisfy the statutory criterion in question, without the need to drill down into the evidentiary foundation for such factual conclusions as may have been reached.

57    One of the grounds of review relied on in SZMWQ v Minister for Immigration and Citizenship (2010) 187 FCR 109 was the “no evidence” ground. In a judgment with which Besanko J agreed, Flick J surveyed the authorities, including SFGB and VOAO, and accepted (187 FCR at 144 [125]) that “the making of a finding of fact which is a critical step in the ultimate conclusion reached and for which there is no evidential support may constitute jurisdictional error.” It was sufficient for his Honour’s purposes to say “may constitute” since he went on to hold that the ground had not been made good.

58    SZOOR v Minister for Immigration and Citizenship (2012) 202 FCR 1 was the Full Court judgment to which I referred above in which the passage from the judgment of Greenwood J in SZDTZ was cited by McKerracher J (202 FCR at 25-26 [101]); Reeves J agreeing at 27 [112]). SZOOR was itself, however, an “illogicality/irrationality”, rather than a “no evidence”, case and, save for the reference to Greenwood J, there is nothing which their Honours said which usefully adds to our understanding of the specific questions arising in the present case.

59    In Australasian Meat Industry Employees’ Union v Fair Work Australia (2012) 203 FCR 389, a number of administrative law challenges were made to the decision then under review. The “no evidence” ground was one of them, with which the Full Court dealt, adversely to the then applicant, without the need to decide whether, had the ground been made good, jurisdictional error would have been established. However, Flick J, with the concurrence of Tracey J, summarised the authorities in the following terms (203 FCR at 413 [92]):

Considerable caution needs to be exercised before concluding that an absence of evidence to support a particular factual finding necessarily constitutes jurisdictional error. The starting point is to acknowledge that a mere factual error will ordinarily fall short of jurisdictional error: Re Minister for Immigration and Multicultural Affairs; Ex parte Cohen (2001) 75 ALJR 542; 177 ALR 473 at [36] per McHugh J. But where a fact is a critical step in a conclusion which has been reached – and where there is no evidence to support that finding – there may be jurisdictional error: SFGB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALD 402 at [19] per Mansfield, Selway and Bennet JJ. See also: Minister for Immigration and Multicultural and Indigenous Affairs v VOAO [2005] FCAFC 50 at [5] and [13] per Wilcox, French and Finkelstein JJ; SZMWQ v Minister for Immigration and Citizenship (2010) 187 FCR 109 at [121]-[123] per Flick J (Besanko J agreeing); Minister for Immigration and Citizenship v SZOCT (2010) 189 FCR 577 at [22]-[26] per Jacobson J and [80]-[82] per Nicholas J. In Sagar v O’Sullivan (2011) 193 FCR 311 at [60] Tracey J observed that it “is well-established that a statutory decision-maker may make a jurisdictional error by failing to base a decision on probative evidence”.

60    What Soliman v University of Technology, Sydney (2012) 207 FCR 277 had in common with the Meat Industry case, and with the present case, was that it involved an application for constitutional writs directed to the Full Bench of the Commission. One of the grounds relied on was the “no evidence” ground. The Full Court said (207 FCR at 284-285 [23]):

It may be accepted that a critical finding of fact based upon no evidence may constitute jurisdictional error sufficient to found an order quashing the decision of the Vice President: Minister for Immigration and Multicultural and Indigenous Affairs v VOAO [2005] FCAFC 50 at [5] and [13] per Wilcox, French and Finkelstein JJ; SFGB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALD 402 at [19] per Mansfield, Selway and Bennett JJ; SZMWQ v Minister for Immigration and Citizenship (2010) 187 FCR 109 at [121] per Flick J (Besanko J agreeing). “A decision based on no information at all, or based on findings of fact which are not open on information before the Tribunal, is not compatible with a rational process”: Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390 at [16] per French CJ.

In that case as such, it was held, however, that there was evidence which, if accepted by the decision-maker (which it had been) would be sufficient to sustain the decision made.

61    So far as I can make out, the High Court has not, with respect to the no evidence ground, expressed itself as categorically as has the Full Court in some of the instances referred to above, particularly SFGB and VOAO. A judgment which has on occasion been referred to, for example by Flick J in SZMWQ, is The Queen v Australian Stevedoring Industry Board; ex parte Melbourne Stevedoring Company Pty Ltd (1953) 88 CLR 100. There the prosecutor was registered as an employer under the Stevedoring Industry Act 1949 (Cth), which empowered the Board, after inquiry, to cancel or suspend that registration if it should be satisfied that the prosecutor was “unfit to be registered as an employer”. Dixon CJ, Williams, Webb and Fullagar JJ said (88 CLR at 117):

If the board or its delegate is subjectively “satisfied” that the prosecutor company is either unfit to continue to be registered or has acted in a manner whereby the performance of stevedoring operations has been interfered with, then the power exists (assuming always the validity of the provisions) to cancel or suspend the company's registration no matter how erroneous in point of fact the opinion of the board or its delegate may be.

However, their Honours also said (88 CLR at 119-120):

But the chief point of difficulty in the case lies in the distinction between on the one hand a mere insufficiency of evidence or other material to support a conclusion of fact when the function of finding the fact has been committed to the tribunal and on the other hand the absence of any foundation in fact for the fulfilment of the conditions upon which in point of law the existence of the power depends. It is not enough if the board or the delegate of the board, properly interpreting pars. (a) and (b) of s. 23 (1) and applying the correct test, nevertheless satisfies itself or himself on inadequate material that facts exist which in truth would fulfil the conditions which one or other or both of those paragraphs prescribe. The inadequacy of the material is not in itself a ground for prohibition. But it is a circumstance which may support the inference that the tribunal is applying the wrong test or is not in reality satisfied of the requisite matters. If there are other indications that this is so or that the purpose of the function committed to the tribunal is misconceived it is but a short step to the conclusion that in truth the power has not arisen because the conditions for its exercise do not exist in law and in fact.

62    Australian Stevedoring was not a “no evidence” case in the same sense as the present case is said to be. There had been ample factual material upon which the delegate of the Stevedoring Industry Board proposed to act. The question was whether that material was, as a matter of law, capable of answering affirmatively the statutory questions whether the prosecutor was “unfit to continue to be registered as an employer”, or had “acted in a manner whereby the proper performance of stevedoring operations [had] been interfered with”. Their Honours said (88 CLR at 120):

What appears in evidence before us discloses no affirmative ground for thinking that the prosecutor company is in truth “unfit to continue to be registered as an employer” within the meaning of that phrase as used in s. 23 (1) (a) and none for a finding that it has acted in a manner whereby the proper performance of stevedoring operations has been interfered with.

Their Honours set out a passage from a statement made by the delegate in the course of his inquiry (88 CLR at 121-122):

The Board’s attitude is, that the registration of an Employer under the Act carries with it certain obligations. One of the important obligations, and the one with which we are concerned at the moment is, that the Employer shall supply adequate supervision and that the Employer shall maintain a proper and satisfactory standard of supervision of the registered labour allocated to that Employer by the Board. I am now giving the Melbourne Stevedoring Company an opportunity to show that they did in fact supply adequate supervision and that it was properly and satisfactorily exercised. The Board does not require any Employer “to put a ball and chain on the men”, to use your term, to hold them on the job, but the Board does require the Employer to so conduct his business as to be aware when men who have been allocated to him by the Board are not working as required and to be aware when men are unlawfully away from their job. There is a clear obligation on the Employer to take the proper and necessary action when any breaches are committed by registered waterside workers.

Of that statement, their Honours in the High Court said (88 CLR at 122):

But however proper the board’s “attitude” or policy may be, it is a misconception to invoke s. 23 (1) (a) as providing for the enforcement of the policy. Yet the foregoing passage means that pars. (a) and (b) of s. 23 (1) are to be used for that purpose.

The prosecutor company carries on an extensive stevedoring business in which ships are loaded and discharged day after day. When the few instances cited in the inquiry of failure to detect and report the absence of men are considered in this aspect and in relation to the facts, the proceedings before the [delegate] can mean only one thing, and that is that the scope of s. 23 (1) (a) has been misconceived and suspension or cancellation of registration is in contemplation not by reason of unfitness but as a sanction to enforce the obligation laid upon stevedores registered as employers, the obligation of closely supervising and disciplining the members of the gangs.

That is to say, the case was one of misconception of function. To the extent that it might be relied upon in support of a proposition that for an administrator to make a decision without evidence to support it necessarily involves jurisdictional error, such reliance would be, in my view, misplaced.

63    It could not be, and it was not, suggested in the present case that the majority misconceived the function of the Full Bench. A misinterpretation of the Queensland Rail decision by industrial tribunals would have provided an ample foundation for a conclusion that permission to appeal in the present case was warranted in the public interest.

64    The subject whether the making of a factual finding when there was no evidence to support it would inevitably involve jurisdictional error was touched upon tangentially in the judgment of Gummow and Hayne JJ in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992. There, one of the grounds of review of a migration decision which had attracted itself to Selway J exercising appellate jurisdiction in the Federal Court had been that there was no evidence that the applicant had been suffering from post-traumatic stress disorder on an occasion when he failed to attend a hearing before the Refugee Review Tribunal. Gummow and Hayne JJ said (78 ALJR at 998-999 [39]):

To return to the first ground identified in the Federal Court, the ‘no evidence’ ground, nothing in the Act made the question of whether or not the respondent suffered from PTSD a precondition to the exercise of jurisdiction. No question of a ‘no evidence’ ground of jurisdictional error arises.

To the extent that these words may be applied at the general level, they suggest that there would be jurisdictional error based on the no evidence ground only where the existence of the fact of which there was presumptively no evidence was “a precondition to the exercise of jurisdiction”. That, or something like it, appears to have been the view of Basten JA (Allsop P concurring) in NRMA Insurance Limited v Ainsworth [2011] NSWCA 292 at [13]: “There is … an indication there that there is a distinction between some cases of ‘no evidence’ which constitute jurisdictional error and some which do not.”

65    Basten JA again mentioned the no evidence ground, and the contention which attends its exact limits in the context of jurisdictional error, in L & B Linings Pty Ltd v WorkCover Authority of New South Wales [2012] NSWCA 15 at [34]. The setting for what follows was a party’s reliance upon the judgment of Mason CJ in Bond. Basten JA said:

Four points of caution should be made. First, this passage indicates that the “no evidence” ground of judicial review depends not on the reasoning of the decision-maker, but on a comparison between the material available to the decision-maker and the conclusion reached. Secondly, care must be taken with the term “no evidence”, as an administrative decision-maker is usually entitled to take into account material which would not count as “evidence in a judicial context. In what is essentially an inquisitorial inquiry, that material is not necessarily limited to the material placed before the decision-maker by the applicant for review. Thirdly, it is important to bear in mind that the decision-maker may be entitled to seek support for a particular inference from the absence of material supportive of a contrary view. Fourthly, where an evaluative judgment is to be formed on the basis of conflicting indicators, it will be difficult if not impossible to establish a “no evidence” ground of review.

66    The authorities to which I have referred demonstrate that there is some uncertainty as to the circumstances in which an absence of evidence before an administrative decision-maker will give rise to jurisdictional error. In each of the most recent Full Court judgments on the subject – SZMWQ, Meat Industry and Soliman – it has been held that to make a “critical” finding in the absence of evidence to support it “may” amount to jurisdictional error. The features which a particular case would need to display to convert the “may” into a “will” have not, however, been elucidated. Neither, so far as I can see, has there been any elaboration on what constitutes a “critical” finding. If this is no more than another way of referring to a jurisdictional fact, there is, of course, no controversy. However, I do not think that these Full Court judgments should be so understood: their Honours were, in each case, referring to findings which were critical in the reasoning process by which the decision-maker reached a particular conclusion, but were not concerned with facts the objective existence of which was a necessary precondition to the assumption or exercise of jurisdiction.

67    It will be apparent from what I have written above that I entertain some reservations about both the reasoning and the outcomes in SFGB and VOAO. However, these cases were referred to as elements in the orthodox jurisprudence of the court in the three recent Full Court judgments which I have mentioned. The “may” aspect of the Full Court’s observations must at least be taken as indicating support for the reasoning and outcomes in SFGB and VOAO. We were not invited to consider the correctness of these judgments. In my opinion, unless they can be distinguished, we are obliged to decide the present case consistently with them.

68    That brings me to the bases upon which counsel for the employees submitted that the no evidence ground was not made good in the circumstances of the present case. It is convenient to commence with a submission that the Commission was a specialist tribunal the members of which were permitted to bring to the task before them a broad appreciation of the trend of tribunal decisions, and of relevant developments generally, than was necessarily founded in the evidence led before them as such. Here it is necessary to start with the legislation.

69    Section 590 of the FW Act provides as follows:

(1)    The FWC may, except as provided by this Act, inform itself in relation to any matter before it in such manner as it considers appropriate.

(2)    Without limiting subsection (1), the FWC may inform itself in the following ways:

(a)    by requiring a person to attend before the FWC;

(b)    by inviting, subject to any terms and conditions determined by the FWC, oral or written submissions;

(c)    by requiring a person to provide copies of documents or records, or to provide any other information to the FWC;

(d)    by taking evidence under oath or affirmation in accordance with the regulations (if any);

(e)    by requiring an FWC Member, a Full Bench or the Minimum Wage Panel to prepare a report;

(f)    by conducting inquiries;

(g)    by undertaking or commissioning research;

(h)    by conducting a conference (see section 592);

(i)    by holding a hearing (see section 593).

Section 593, referred to in s 590(2)(i), has no bearing on the matters presently in contention. Complementing s 590, s 591 provides that the Commission is not bound by the rules of evidence and procedure.

70    It is subs (1) of s 590 that bears, to an extent, upon the matter to be decided in the present case. I would regard subs (2) as substantially concerned with the procedure by which the Commission might receive evidence and other material. On any view, it was competent for the Full Bench to bring to the disposition of the case before it such knowledge as it had of the trend of decided cases in analogous situations. It was not necessary that there be “evidence” of such matters, in either the strict or the broader sense of the word. Subject to complying with the requirements of procedural fairness, the Full Bench was entitled to decide the public interest point by reference to its own knowledge of those cases. It would, in my view, have been insufficient for the applicant’s case here if it could say no more than that no such cases were referred to the Full Bench in the course of the hearing before it.

71    But the applicant has, as noted above, gone beyond that: it has established in point of fact in this court that there were no decided cases of the kind referred to by the majority in its decision on public interest. Had there been any cases which, arguably, were of such a kind, this court would, of course, have been slow to go behind an opinion expressed by the majority that they were of such a kind, and I am sure that we would have heard about it in the submissions made on behalf of the employees. But, although there appears to have been a number of cases in which accessing (etc) pornography on computers at work has been upheld as a basis for a dismissal, it seems that there has been no decided case in which it was held that conduct of that kind invariably merited termination of employment – much less a trend in the cases to that conclusion.

72    In the way the no evidence ground has been advanced in this court, it is no answer to say that the Commission is a specialised tribunal. It is not the Full Bench’s general understanding and expertise which is here at stake: it is a specific finding which the majority made about previous decisions, themselves a matter of public record.

73    An associated submission made on behalf of the employees was that the “emerging trend in the decided cases” was not a matter of evidence (even in a broader sense) at all. Rather, the majority’s observation was in the nature of an opinion, much as a court would express a view about the trend of decided cases. If they had that opinion, it may have been misguided or even wrong, but that would not be sufficient to support a finding of jurisdictional error on the no evidence ground. For a time, I was attracted to this way of regarding the matter. Ultimately, however, I have come to the view that the submission seeks to apply to the facts of the case a conceptual framework into which those facts do not fit. Had the majority said nothing about the decided cases, or identified the trend in less categorical terms, or simply have opined that it was timely for a Full Bench to revisit the kind of questions which arose in the Queensland Rail case, it is doubtful that the applicant’s ground would have been available. But the majority referred to the decided cases, and did so with reference to a specific, categorical, proposition. That made it possible for the applicant to examine the factual basis of the statement and, when that factual basis was found to be lacking, to make the submission which is now before the court.

74    It was also submitted that the first sentence in para 4 of the reasons of the majority was to be understood as a free-standing assessment of dismissals in the broad, and not tied to the trend in the decided cases referred to in para 3. I would reject that submission as a matter of construction. I do not consider that the opening sentence in para 4 retrieves the employees’ case from such difficulties as it may encounter under para 3.

75    The employees’ next submission was that the applicant’s focus upon three specific paragraphs out of what was a very lengthy decision on the part of the majority was artificial, and involved the frequently criticised “tooth comb” approach to the discernment of error in the reasons of a statutory tribunal. It was said that the burden of the majority’s thinking on public interest was to be observed throughout the approximately 70 paragraphs in which they dealt with questions of principle as distinct from the facts of the particular case. I would not accept that submission. In proceeding the way they did, the majority was complying with s 613(1) of the FW Act, which required the Full Bench to decide the public interest question as a preliminary to considering other questions arising in the appeal from Commissioner Lewin. Indeed, it may be that s 613(1) required the Full Bench to decide the public interest question before even hearing the appeal, which appears not to have been the course adopted in the present case. But that is a debate for another day. It is sufficient to say that neither in the statutory framework pursuant to which the Full Bench was operating nor in the structure of the reasons of the majority is there any support for this submission made on behalf of the employees.

76    The final submission made on behalf of the employees is one of more substance. They referred to the interchange between Vice President Lawler and Mr Victory set out at para 36 above, and submitted that, given the broad terms in which the Full Bench was entitled to inform itself and the non-application of the rules of evidence, it was sufficient that Mr Victory had informed the Full Bench that the Queensland Rail decision (referred to as “Wake”) was “sometimes used as a precedent to support the contention that where an employee is sent pornographic emails it doesn’t matter what their length of service is, or the fact that they’ve got a prior unblemished service history, it’s ok for an employer to terminate them”. Vice President Lawler’s response made it clear that he understood the nature of the submission being made.

77    In the applicant’s written outline in this proceeding, it was proposed that an “unquestioning acceptance” of the submission referred to above may have explained “the Full Bench’s error”, but it did not “excuse” the error. It will be seen that, in these submissions made on behalf of the applicant, there is a slide into notions of error of the kind that should be corrected on appeal. However, once it is accepted that the Full Bench was entitled to act on Mr Victory’s say-so, whether doing so led the majority into error in point of fact would be irrelevant to the applicant’s jurisdictional objection. So long as there was some evidence – understood in the Commission as including factual material asserted in oral submissions – the majority was entitled to rely on it, even if doing so was factually erroneous. Such an error would have been made within jurisdiction. As is occasionally said, an administrative decision-maker to whom the determination of facts has been assigned is within his or her jurisdiction to decide the facts rightly or wrongly.

78    The finding made by the majority was, of course, not in the very same terms as the way Mr Victory expressed his submission, but any perceived difference between them would be purely semantic. In my view, Mr Victory’s submission provided a sufficient factual basis, slender though it was, for that finding in a setting in which the question is not whether the finding was wrong or against the weight of evidence but whether there was no evidence at all that could on any view have sustained the finding.

79    I would, therefore, reject the applicant’s “no evidence” ground.

80    The applicant’s next point was that the majority’s finding with respect to the trend of recent decided cases was illogical or irrational. In recent years, a deal has been written on this supposed basis for a conclusion that an administrative decision-maker made an error going to his or her jurisdiction, but the present controversy may be resolved without recourse to authority. That is because, as noted above, this point on behalf of the applicant is essentially another way of expressing the legal consequences of the majority having decided the matter of public interest without, it was said, any evidence. However, if there were evidence, it could not be said that the majority’s decision, proceeding from that evidence, was illogical or irrational. Once it be held that the majority was entitled to rely on Mr Victory’s statement as providing an evidentiary foundation for the decision which they made, the force of this second ground falls away.

81    In relation to Mr Brambleby’s appeal, the applicant’s challenge to the majority’s public interest determination has an additional dimension. It will be recalled that Commissioner Lewin had held that Mr Brambleby’s dismissal had been harsh and unreasonable. The appeal was against the Commissioner’s refusal to order the reinstatement of Mr Brambleby to his former employment. The applicant submits that the majority’s decision on public interest was quite unrelated to this appeal, and that, in this respect, the majority either wholly failed to turn their minds to the statutory question or misconceived the task which was assigned to them. The question of whether Mr Brambleby’s misconduct merited termination of employment – “inevitably” or otherwise – had been resolved favourably to him by Commissioner Lewin and was not the subject of his appeal. The applicant submitted that the majority simply ignored the question whether the public interest was attracted by an appeal against a refusal to order to reinstatement.

82    I would commence by dealing with what may be thought to be a complication introduced by the existence of the applicant’s appeal against Commissioner Lewin’s findings made in the case of Mr Brambleby. That appeal did raise the question whether his dismissal had been harsh or unreasonable. Whether the resolution of that question fell within the scope of the majority’s public interest decision, while important in itself, is now moot because, even if it did so fall, the appeal was dismissed. The existence of this appeal did not, in my view, provide jurisdiction for the Full Bench to overturn Commissioner Lewin’s decision not to order the reinstatement of Mr Brambleby. To the extent that the Full Bench did so order, its jurisdiction to do so must be found under Mr Brambleby’s own appeal.

83    Mr Brambleby had two responses to this submission on behalf of the applicant. The first was that, once the public interest threshold was crossed in relation to the matter of dismissal as such – and that matter was directly raised in the applicant’s appeal – the Full Bench was then in an arena in which it had jurisdiction to decide the whole case, as it were, on the merits, including such issues as may have related to reinstatement. I would not accept that submission. There had been three appeals lodged against the decision made by Commissioner Lewin. Mr Brambleby’s appeal had to be considered as a separate procedural entity under s 400(1) of the FW Act. That is to say, unless the Full Bench considered that it was in the public interest to grant permission for Mr Brambleby to appeal, it did not have jurisdiction to proceed to hear that appeal.

84    I have not overlooked the fact that there was a single notice of appeal filed with respect to the decision of Commissioner Lewin. There may be cases in which it would be proper to treat an appeal against a decision which dealt with the dismissals of some or many employees as a single appeal in point of substance, such that the Full Bench might be justified in addressing the issue of public interest globally, as it were. I have in mind, for example, a situation in which many employees were dismissed for engaging in concerted conduct by way of collective industrial action. But the present was not such a case. Each of the employees was dealt with separately, on his own merits, by Commissioner Lewin. Although each application was dismissed at that level, the reasons given by the Commissioner for doing so made important discriminations between them. The appeals, although on a single notice, were in the names of each of the individuals, and the grounds in support dealt with them separately. There were, in my view, three appeals both in point of form and in point of substance.

85    The employees’ second response was to point to a number of passages in the reasons of the majority in which it was said to be apparent that they were well aware that they were dealing with Mr Brambleby’s case as well as with that of Messrs D’Rozario and Clarke, and which canvassed issues of principle, in some detail, with respect to the question of reinstatement as such. A difficulty with this response – and it will be sufficient for present purposes – is that it is not responsive to the terms of s 613(1) of the FW Act. That provision, and the majority’s unambiguous compliance with it in the present case, means that we can look only at so much of their reasons as dealt with the public interest as such – and did so quite properly in my view – by way of preliminary to a consideration of the merits of the appeals.

86    Counsel for the applicant submitted that consideration of the public interest arising on Mr Brambleby’s appeal seemed to have “[fallen] through the cracks”. That was, in my view, an appropriate metaphor. In the short public interest reasons for the majority, I cannot find anything which makes sense in the setting of an otherwise successful employee who appeals against a refusal to order reinstatement. The majority simply did not deal with the public interest requirement in Mr Brambleby’s appeal. It follows that the Full Bench did not have jurisdiction to hear that appeal on its merits.

87    I would grant certiorari in relation to the decision and orders of the Full Bench – both public interest and substantive – and of Vice President Lawler, to the extent that they relate to Mr Brambleby. Although the question does not directly arise, I would add that the position would then appear to be that Mr Brambleby’s appeal from the decision of Commissioner Lewin remains to be dealt with.

88    Otherwise, I would dismiss the application.

Associate:

Dated:    23 July 2014

REASONS FOR JUDGMENT

BROMBERG J

89    The relevant factual background and procedural history is set out in the reasons for judgment of Jessup J. For the reasons that follow, I agree with the orders proposed by Jessup J.

90    The applicant contended that s 400(1) of the Fair Work Act 2009 (Cth) (FW Act) requires a state of satisfaction which is a jurisdictional fact upon which the further exercise of the Fair Work Commission’s (FWC) appellate power (conferred by s 604 of the FW Act) depends. On that foundation, the applicant contended that a “jurisdictional fact” was erroneously determined with the result that the majority of the Full Bench of the Fair Work Commission (the majority) made a jurisdictional error.

91    Section 400(1) of the FW Act provides:

(1)    Despite subsection 604(2), FWA must not grant permission to appeal from a decision made by FWA under this Part unless FWA considers that it is in the public interest to do so.

92    In relation to the issue raised by s 400(1), the Full Bench relevantly said:

[3]    There is an emerging trend in the decided cases towards regarding the accessing, sending or receiving and storing pornography by an employee as a form of serious misconduct that invariably merits termination of employment. Such a proposition is inconsistent with basic principle. Accessing, sending or receiving and storing pornography is not a separate species of misconduct to which special rules apply. In the context of an application for an unfair dismissal remedy, it is a form of misconduct to which the same general principles apply as apply in all unfair dismissal matters involving reliance on misconduct.

[4]    We are satisfied that the emerging prominence of dismissals based on pornography related breaches of employer policy, and a concern that the decision of the Full Bench in Queensland Rail v Wake (2006) 156 IR 393 (Queensland Rail) is being misinterpreted, supplies the public interest required for grant leave to appeal in this case. This case proves to be a suitable vehicle to address that matter of public interest. We grant permission to appeal. Having granted permission to appeal, the appeal proceeds as a rehearing albeit that the Full Bench cannot exercise any of the powers conferred by s.607(3) unless error is established: Coal and Allied Operations Pty Ltd v AIRC (2001) 203 CLR 194 at [17] and [32].

93    The applicant contended that there was no evidence of “an emerging trend in the decided cases” of the kind the majority relied upon at [3] of its reasons for decision to found its satisfaction that it was in the public interest to grant permission to appeal. That contention and the consequential conclusion of jurisdictional error was put in two ways. First, that there was no evidence before the Full Bench of any such trend and secondly, that as a matter of fact, no such trend existed.

94    I will deal first with the second way in which the applicant put what it called its “no evidence” case. To make good that contention, the applicant sought to rely upon evidence before this Court which was not before the Full Bench, to establish that there were no decided cases capable of supporting the Full Bench’s conclusion as to the existence of an “emerging trend”. In that respect the applicant sought to establish that the “emerging trend” never existed as a matter of fact.

95    Where the exercise of jurisdiction conferred on an administrative decision-maker is only enlivened by the existence of a particular fact, the existence (or non-existence) of that fact is not a matter left to be authoritatively determined by the decision-maker but, on judicial review, the reviewing court may enquire as to the existence (or non-existence) of that fact and do so on the basis of evidence which was not before the decision-maker. The relevant authorities, including Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 and Timbarra Protection Coalition Inc v Ross Mining (1999) 46 NSWLR 55, are conveniently discussed by Weinberg J in Cabal v Attorney-General (2001) 113 FCR 154 at [49]-[70].

96    That doctrine (the doctrine of jurisdictional fact) can only have application where the statute in question requires the existence of a particular fact or facts as a condition of the exercise of jurisdiction. It is only where, in the words of Spigelman CJ in Timbarra at [39], “the statutory formulation…contains a factual reference” that the possibility arises that the factual reference in question may be a jurisdictional fact.

97    No question of a no evidence ground of jurisdictional error arises on a jurisdictional fact analysis where nothing in the relevant statutory criterion makes the question of whether or not a particular fact existed a precondition to the exercise of jurisdiction: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [39] (Gummow, Hayne JJ with whom Gleeson CJ agreed at [1]) and see the observations of Wilcox J in Television Capricornia v Australian Broadcasting Tribunal (1986) 70 ALR 147 at 150-151, followed in WAJS v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 139 at [12] (Wilcox, Marshall and Jacobson JJ).

98    The applicant characterised s 400(1) of the FW Act as a “jurisdictional fact”. Whilst that characterisation is not wrong, s 400(1) of the FW is only a jurisdictional fact in the broad sense in which that term is sometimes used and not in the conventional sense in which it is used in the application of the doctrine of jurisdictional fact. The narrow and broad use of the term is discussed by Aronson and Grover, Judicial Review of Administrative Action (Thomson Reuters, 5th ed, 2013) at [4.490], where the learned authors distinguish between a fact being jurisdictional only if it is a factual requirement upon which the assumption of power depends and the broader use of the term “jurisdictional fact” to refer to a decision-maker’s opinion, satisfaction or belief as to a ‘fact’ which preconditions the exercise of the power conferred.

99    Speaking of the broad use of the term, Gummow J said in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [130]:

The “jurisdictional fact”, upon the presence of which jurisdiction is conditioned, need not be a “fact” in the ordinary meaning of that term. The precondition or criterion may consist of various elements and whilst the phrase “jurisdictional fact” is an awkward one in such circumstances it will, for convenience, be retained in what follows.

100    The distinction between a jurisdictional fact in the narrow or conventional sense and what is better described as a precondition to the exercise of power, was recognised by Basten JA in D’Amore v Independent Commission Against Corruption (2013) 303 ALR 242 in the following passage at [241]:

First, a “jurisdictional fact” in the conventional sense of the term is a limit on power to be established to the satisfaction of the reviewing court, not the administrative decision-maker. Second, where the exercise of a power, or discharge of an obligation, is dependent upon the state of satisfaction of the decision-maker as to certain matters, the state of satisfaction is a jurisdictional fact of a peculiar kind. The reviewing court is not required to be satisfied of the existence of the underlying subject matter of the opinion. The language of “satisfaction” or “opinion” is a statutory device to ensure that the matters identified as preconditions to the exercise of power are indeed not jurisdictional facts, but facts which need only be established to the satisfaction of the decision-maker. Nor do they become jurisdictional facts by describing the state of satisfaction as a jurisdictional fact. (It might be better to describe the properly formed state of satisfaction as a precondition to a valid exercise of the power.)

101    As is apparent from those observations, different considerations apply where the decision involves the formation of an opinion or state of satisfaction as a precondition to the exercise of a power, than in relation to the legality of a decision which depends upon the objective existence of a particular fact or particular factual situation. It is only to the latter case that the doctrine of jurisdictional fact applies and that on judicial review the reviewing court may enquire as to existence (or non-existence) of the fact upon which the legality of the decision depends.

102    There is no factual reference included in s 400(1) of the FW Act. What is required by s 400(1), as the applicant acknowledged, is the formation of a broad value judgment or opinion as to whether the public interest favours the grant of permission to appeal.

103    In Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54 (19 April 2011) Buchanan J (with whom Marshall J and Cowdroy J agreed) described (at [44]-[45]), the public interest test in s 400(1) of the FW Act as follows:

The nature of the task committed to the Full Bench at this stage of the appeal process (i.e. assessing whether a “public interest” test was met) was a discretionary one involving a broad value judgment, as has recently again been emphasised. In Hogan v Hinch [2011] HCA 4; (2011) 85 ALJR 398, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ said (at [69]):

The expression “that it is in the public interest” imports a judgment to be made by reference to the subject, scope and purpose of the Act.

Their Honours referred to O’Sullivan v Farrer (1989) 168 CLR 210 where (at 216) Mason CJ, Brennan, Dawson and Gaudron JJ said:

…the expression “in the public interest”, when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only “in so far as the subject matter and the scope and purpose of the statutory enactments may enable…given reasons to be [pronounced] definitely extraneous to any objects the legislature could have had in view”…

104    Whilst the descriptor “jurisdictional fact” may be used in relation to a statutory criterion like that contained in s 400(1), the doctrine of jurisdictional fact can have no application to s 400(1) because the criterion there set out lacks any factual reference.

105    For those reasons, there is no warrant for the Court to examine for itself the existence or non-existence of the “emerging trend” to which the Full Bench referred. Adopting the words of Gummow and Hayne JJ in SGLB, nothing in the FW Act made the question of whether the “emerging trend” existed a precondition to the exercise of the appellate jurisdiction of the FWC. The evidence put before the Court in relation to the existence or non-existence of that trend is of no relevance. The applicant’s attempt to demonstrate jurisdictional error by reference to the non-existence of the “emerging trend” as a matter of fact must be rejected.

106    I turn then to consider the first basis upon which the applicant sought to establish jurisdictional error. That basis was what is conventionally regarded as a “no evidence” ground of challenge. The applicant contended that there was no evidence before the Full Bench to support the majority’s conclusion that it was in the public interest to grant permission to appeal on the basis of the “emerging trend”.

107    It is uncontroversial that a finding of fact made by a Tribunal when there is “no evidence” constitutes an error of law: Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390 at [91] (Hayne, Heydon, Crennnan and Kiefel JJ). Whether an absence of evidence in support of the formation of an opinion required as a precondition to the exercise of power by a Tribunal necessarily leads to jurisdictional error is a different question.

108    For the reasons given by Jessup J at [50]-[67], I also hold some reservation as to the correctness of SFGB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALD 402 and the line of authority which has followed it, insofar as those authorities suggest that jurisdictional error will necessarily be established where an administrative decision-maker makes a finding unsupported by evidence and that finding is a critical step in the decision-maker’s conclusion.

109    The making of an “erroneous finding” by an administrative decision-maker or for a decision-maker “to reach a mistaken conclusion” will only give rise to jurisdictional error where the decision-maker’s “exercise or purported exercise of power is thereby affected”: Craig v South Australia (1995) 184 CLR 163 at 179 (Brennan, Deane, Toohey, Gaudron and McHugh JJ); and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [82] (McHugh, Gummow and Hayne JJ, with whom Gleeson CJ agreed).

110    It seems to me that an absence of evidence, even in relation to a critical finding, will only found jurisdictional error where the decision-maker’s reliance upon that finding has affected the exercise of the power conferred so as to result in the decision-maker “exceeding the authority or powers given by the relevant statute”: Yusuf at [82].

111    The reliance by a decision-maker upon a finding unsupported by evidence may be shown to have affected the exercise of the power conferred because it is demonstrative of a misconception by the decision-maker of the function required by the statute.

112    As Dixon CJ, Williams, Webb and Fullagar JJ said in The Queen v Australian Stevedoring Industry Board; ex parte Melbourne Stevedoring Company Pty Ltd (1953) 88 CLR 100 at 120:

The inadequacy of the material is not in itself a ground for prohibition. But it is a circumstance which may support the inference that the tribunal is applying the wrong test or is not in reality satisfied of the requisite matters. If there are other indications that this is so or that the purpose of the function committed to the tribunal is misconceived it is but a short step to the conclusion that in truth the power has not arisen because the conditions for its exercise do not exist in law and in fact.

113    The close connection between an absence of evidence and the misconception by the decision-maker of his or her function is also apparent from the observations made about illogicality or irrationality as a basis for jurisdictional error by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611. At [124] their Honours observed that rationality as a standard of good administrative decision-making is allied to “the principle that fact finding must be based on probative material, one correlative of which is that a decision based on no evidence displays jurisdictional error”. At [135], their Honours said:

[A] decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision-maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision-maker does not come to that conclusion or if a decision to which the decision-maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.

[Emphasis added.]

114    The link between the “no evidence” ground and the ground of illogicality or irrationality is further apparent from observations made by Basten JA (with whom Beazley and Giles JA agreed) in Amaba Pty Ltd (under NSW Administered Winding Up) v Booth (2010) NSWCA 344 at [23]-[24]; Brennan v New South Wales Land and Housing Corporation [2011] NSWCA 298 at [93]; and D’Amore v Independent Commission Against Corruption (2013) 303 ALR 242 at [235].

115    The close connection was also identified by French CJ in Kostas at [16] where his Honour said:

A decision based on no information at all, or based on findings of fact which are not open on information before the Tribunal, is not compatible with a rationale process.

116    Whilst the applicant’s submissions acknowledged illogicality as a related ground to the “no evidence” ground, its submission relied upon the “no evidence” ground as a stand alone ground for jurisdictional error. In that respect, the applicant relied upon SFGB and specifically the following statement of Mansfield, Selway and Bennett JJ at [19]:

If the tribunal makes a finding and that finding is a critical step in its ultimate conclusion and there is no evidence to support that finding then this may well constitute a jurisdictional error.

117    Despite the fact that I share the reservation previously expressed, I agree with Jessup J for the reasons his Honour has given at [67], that this application ought to be decided on the basis that SFGB is correct.

118    An insufficiency of evidence or other material does not sustain a “no evidence” finding. The ground will not be made out unless it is established that there was no evidence or other material to justify the finding made: VAAW of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 202 at [33]-[37] (Spender, Tamberlin and Kenny JJ); Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446 at [575] (Weinberg J); and SZFWB v Minister for Immigration and Citizenship [2007] FCA 167 at [31] (Kenny J). The necessary evidence could be either direct or found in material which permitted the decision-maker reasonably to infer that the condition existed: SGLB at [41] (Gummow and Hayne JJ, with whom Gleeson CJ agreed at [1]); Shop, Distributive and Allied Employees Association v National Retail Association (No 2) (2012) 205 FCR 227 at [31] (Tracey J).

119    It seems to me that there was at least some material before the Full Bench which supported the opinion reached by the majority that it was in the public interest to grant permission to appeal. As Basten JA said in L & B Linings Pty Ltd v WorkCover Authority of New South Wales [2012] NSWCA 15 at [34], an administrative decision-maker is entitled to take into account material which would not count as evidence in a judicial hearing.

120    The respondents made an uncontested assertion that Queensland Rail v Wake (2006) 156 IR 393 (Queensland Rail) is sometimes misinterpreted and used “as a precedent to support the contention that where an employee is sent pornographic emails it doesn’t matter what their length of service is, or the fact that they’ve got a prior unblemished service history, its okay for an employer to terminate them”. On that basis (at least in part) the respondent contended that “there [is] a public interest in this Full Bench providing guidance about the approach for employers to take in these matters, so that the parties can be provided with certainty in relation to their actions and how to deal with these situations”.

121    It is not clear from the submission made by the respondents whether the use of the decision in Queensland Rail as “a precedent” was an intended reference to its use in the decided cases, its use more generally by employers, or both. The assertion was at least open to be understood as a reference to Queensland Rail being used by industrial tribunals as a precedent for the stated proposition. In that respect, the uncontested assertion made by the respondents was open to be used by the majority to support its finding of “an emerging trend” and to found its ultimate conclusion that the public interest required for the grant of leave to appeal was supplied by “a concern that the decision of the Full Bench in Queensland Rail v Wake (2006) 156 IR 393 (Queensland Rail) is being misinterpreted” and “the emerging prominence of dismissals based on pornography related breaches of employer policy” (at [4]).

122    The respondents’ uncontested assertion may well have been erroneous and that may well have led the majority into making an erroneous finding. However such an error, if made, was an error made within jurisdiction. Whether or not the “emerging trend” existed was not a jurisdictional fact for the reasons already stated. It is not for this Court, on judicial review, to test the factual foundation that was open for the majority to rely upon and which, it seems, it did rely upon to reach its view that permission should be granted.

123    The same conclusion is arrived at when consideration is given to the related basis upon which the applicant relied. The applicant contended that the majority’s decision was unsupported by findings made on logical grounds. In that respect the applicant principally relied on the observations of Crennan and Bell JJ in SZMDS set out at [113] above.

124    The applicant contended that once it was accepted that there was no evidence of the “emerging trend” of cases on which the majority relied, and given that Commissioner Lewin’s decision was not itself an example of the suggested erroneous reasoning, the entire basis for the majority’s conclusion that it was in the “public interest” to grant permission to appeal fell away. On that foundation, the applicant contended that no rational decision-maker could have considered it to be in the public interest to grant permission to appeal on that basis, given the material that was before the Full Bench.

125    The applicant’s contention proceeded on the basis that there was no evidence at all before the Full Bench to support the conclusion that the majority came to as to where the public interest lay. For the reasons already explained, that premise is not correct. The uncontested assertion made by the respondents provided a rational connection between the material before the Full Bench and the conclusion that the majority drew. It was open to the majority to come to the view that it did on that material and it cannot be said that it was illogical or irrational for it to have done so. Whether or not the uncontested assertion made by the respondents was in truth correct is not, as I have already said, relevant to the question of jurisdictional error. It was material before the majority. It was uncontested. It was logically probative of the public interest. The majority was entitled to rely upon it and the conclusion it made was open by reference to that material.

126    For those reasons, so far as this application concerns the permission granted for Mr D’Rozario and Mr Clarke to appeal, the application should be dismissed.

127    In relation to the permission granted for Mr Brambleby’s appeal, I agree with Jessup J for the reasons his Honour has given, that certiorari should be granted.

Associate:

Dated:    23 July 2014