FEDERAL COURT OF AUSTRALIA

Shanahan v Australian Industrial Relations Commission [2006] FCAFC 172

Workplace Relations - application for constitutional writ relief remitted by the High Court of Australia to the Federal Court of Australia - application at the hearing to amend grounds - application refused

Workplace Relations Act 1996 (Cth) ss 45, 170CE, 170CH.

Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194, cited.

IAN SHANAHAN v AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION AND UNIVERSITY OF WESTERN SYDNEY

NSD 693 OF 2006

MARSHALL, GRAHAM AND JESSUP JJ

21 NOVEMBER 2006

SYDNEY

THE COURT ORDERS THAT:

1.                  The application for leave to amend the application for an order to show cause is refused.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

Marshall and Jessup JJ

1                     We do not consider that the proposed additional grounds of review raise any arguable basis for disclosing any jurisdictional error by the Full Bench of the Australian Industrial Relations Commission such that any application for an order to show cause should include them.  Each proposed ground seeks to agitate matters of merit which were questions or issues for the Full Bench of the Commission to deal with in the context of dealing with and/or deciding the application by the applicant for leave to appeal.

Associate:

Dated:         30 November 2006

REASONS FOR JUDGMENT

Graham J

2                     On 24 July 2003 the employment of the applicant by the second respondent was terminated.  In accordance with s 170CE of the Workplace Relations Act 1996 (Cth) (‘the Act’) the applicant applied to the Australian Industrial Relations Commission (‘the Commission’) for relief in respect of the termination of his employment on the ground that the termination was harsh, unjust or unreasonable. 

3                     That Application came before the Commission constituted by Senior Deputy President Cartwright, who on 5 July 2004 ordered that the Application be dismissed. The applicant appealed against the decision of Deputy President Cartwright not to make an order under s 170CH of the Act on his Application under s 170CE(1)(a). The Full Bench of the Commission granted leave under s 45 of the Act for the appeal to be brought, but by majority the appeal was dismissed. 

4                     The applicant filed an Application for an Order to Show Cause in the High Court of Australia on 25 November 2005 in which constitutional writ relief was sought in respect of the decision of the Full Bench of the Commission.  The grounds on which the relief was sought were specified in the Application for an Order to Show Cause as:

‘1.        That the First Defendant [first respondent] failed to exercise its jurisdiction in failing to consider and determine according to law whether a person suffering from a disease of the kind such as to cause the person to engage in disinhibited conduct is or may be capable of misconduct in engaging in such disinhibited conduct.

2.         That the First Defendant [first respondent] failed to exercise its jurisdiction in failing to consider and determine according to law whether, in circumstances where the Plaintiff's [applicant's] employment with the Second Defendant [second respondent] was terminated by the Second Defendant [second respondent] for reason of misconduct, such termination for misconduct was or could be, in proceedings brought pursuant to the provisions of section 170CE of the Workplace Relations Act 1996, for a valid reason within the meaning of the said Act where the actions said to constitute misconduct occurred by reason of a disease of the mind of the Plaintiff [applicant].’

5                     By an order made on 1 April 2006 by Kirby J, the High Court remitted the Application to this Court for consideration. 

6                     The Application for an Order to Show Cause came before the Court as presently constituted earlier today.  During the course of the hearing the applicant advanced a number of issues which were not raised as grounds in the Application for an Order to Show Cause.  At 2.15 pm today the applicant handed up a document recording a number of additional grounds upon which the applicant sought to rely as constituting jurisdictional error on the part of the Full Bench of the Commission.

7                     There were seven grounds recorded, the second of which has now been abandoned. The fifth does not raise fresh issues from those recorded in the application filed in the High Court.  The other five grounds now sought to be advanced are:

‘1.        The Full Bench failed to refer at all to the way in which the investigation process etc miscarried, and thereby failed to comply (sic) the requirements of section 170CG(3) of the Workplace Relations Act (“the Act”).  [see plaintiff's submissions, paragraph 6.4; also paragraph 5.2]

3.         The Full Bench failed to consider the significance of the plaintiff's having been granted tenure as an academic; and the need for the defendant to have established actual misconduct, not potential misconduct.  [see plaintiff's submissions, paragraphs 7.3 and 7.4]

4.         The Full Bench erred in implicitly holding that the plaintiff bore the burden of proof on the question of supervision.

6.         The Full Bench failed to take into account that the defendant had declined to cross-examine the plaintiff on the question of likelihood of repetition, taking of medication, etc.

7.         The Full Bench in any event, failed to bear in mind that the defendant itself did not contend that supervision of the plaintiff was inconvenient.’

8                     The function of the Court on an application such as is presently before the Court is to determine whether or not the decision of the Full Bench of the Commission was affected by jurisdictional error.  In Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at [31] Gleeson CJ, Gaudron and Hayne JJ said:

‘There would only have been jurisdictional error on the part of the Full Bench if it had misconceived its role or if, in terms used by Jordan CJ in Ex parte Hebburn Ltd; Re Kearsley Shire Council … it “misunder[stood] the nature of [its] jurisdiction .... or ‘misconceive[d] its duty’ … or ‘[failed] to apply itself to the question which [s45 of the Act] proscribes’ ... or [misunderstood] the nature of the opinion which it [was] to form …”.’ (footnotes omitted)

9                     In my opinion none of the proposed additional grounds are ones which could enjoy any reasonable prospect of success in the current proceedings as justifying a finding of jurisdictional error.  I would decline the application by the applicant for leave to amend to add the new proposed grounds 1, 3, 4, 6 and 7.

Associate:

Dated:         30 November 2006