FEDERAL COURT OF AUSTRALIA

Deva v University of Western Sydney [2011] FCAFC 115

THE COURT ORDERS THAT:

1.    Order 2 of the orders of the primary judge of 9 March 2011 is set aside.

2.    The appeal is otherwise dismissed.

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

REASONS FOR JUDGMENT

The Court

1    The appellant, Mr Deva, appeals from a judgment of the primary judge in which his Honour dismissed a proceeding purportedly commenced in the original jurisdiction of the Court. Mr Deva purported to appeal from a decision of the Full Bench of Fair Work Australia (“the Tribunal”) to this Court. The Full Bench of the Tribunal held that it had no power to entertain an application by Mr Deva for leave to appeal out of time, from a decision of Lawson C, sitting as a member of the Australian Industrial Relations Commission (“the Commission”). Commissioner Lawson had arbitrated Mr Deva’s claim that the respondent’s termination of his employment was harsh, unjust or unreasonable under s 170CE of the Workplace Relations Act 1996 (Cth) (“the WR Act”). Mr Deva had a right of appeal within 21 days (and no later) from the decision of Lawson C. He failed to exercise that right. As the primary judge observed, this Court has no jurisdiction to hear appeals from the Tribunal. No such jurisdiction was conferred by the WR Act. No such jurisdiction is now conferred by the Fair Work Act 2009 (Cth) (“the Act”). There is no provision in any federal industrial relations legislation akin to that contained in s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) which allows appeals to be made from the Administrative Appeal Tribunal to this Court on questions of law.

2    Under s 39B of the Judiciary Act 1993 (Cth), the Court has original jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. The only respondent to the proceeding below was Mr Deva’s former employer. Neither the Tribunal nor the members of the Full Bench, which constituted it and made the decision sought to be challenged by Mr Deva, were party to the proceeding below. As the primary judge observed at [22] even if it were assumed in Mr Deva’s favour that s 39B can apply, no relief could have been granted in the absence of the Full Bench or the Tribunal as parties.

3    In any event, we agree with the primary judge for the reasons given by him at [5] to [21] of his judgment that the Full Bench of the Tribunal correctly concluded that it had no power to consider an application for leave to appeal out of time from a decision of the Commission concerning termination of employment.

4    In summary, his Honour decided that:

    Mr Deva was not aggrieved by any decision of the Tribunal;

    Even if the WR Act governed Mr Deva’s appeal rights, the Commission had ceased to exist and its role would be required to be filled by the Tribunal; and

    The Tribunal was not entitled to grant an extension of time for the institution of Mr Deva’s appeal.

5    We also agree with his Honour for the reasons given by him at [25] to [34] that this Court has no jurisdiction to entertain a claim by Mr Deva that his employment was terminated unlawfully. Under the Act, as was the case with the WR Act, such applications are commenced in the Tribunal (and formerly the Commission) and applications may be made to this Court only after certain statutory pre-conditions have been fulfilled and certain elections made. His Honour has set out those matters thoroughly at [26] to [33]. There is no need to repeat that analysis.

6    The primary judge also dismissed what Mr Deva described as a claim alleging termination of his employment “in contravention of a general protection”. At [35] his Honour explained that this claim was made as an adjunct to Mr Deva’s other claims and thus fell with the failure of those other claims. There is no error in the way the primary judge disposed of that claim.

7    Whilst we have considered each of Mr Deva’s twenty five grounds of appeal, we have not specifically referred to them. Most of the grounds are misconceived challenges to the conduct of the Commission or the Tribunal, which seek to have the Court conduct an impermissible merits review of Mr Deva’s dismissal. None of the grounds identify any error on the part of the primary judge. For the reasons we have explained, we can discern no error in the judgment of the primary judge.

DISPOSITION

8    The respondent does not seek its costs of the appeal. It has also contended that, as it did not seek the costs of the proceedings below, it does not seek to uphold the order made in its favour. The orders that should be made are that the costs order made by the primary judge be set aside and the appeal be otherwise dismissed.

Associate:

Dated:    31 August 2011