FEDERAL COURT OF AUSTRALIA

Warrell v Fair Work Australia [2012] FCA 267

THE COURT ORDERS THAT:

1.    Order absolute in the first instance for a writ of certiorari directed to Fair Work Australia to quash its orders of 8 November 2011.

2.    Order absolute in the first instance for a writ of mandamus directed to Fair Work Australia to determine Mr Warrell’s application under s 604 of the Fair Work Act 2009 (Cth) according to law.

3.    Fair Work Australia be differently constituted when obeying the writ issued under Order 2.

4.    The title of the first respondents in the proceedings be changed to ‘Fair Work Australia’.

5.    There be no order as to costs.

6.    The exhibit be returned to the applicant.

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

REASONS FOR JUDGMENT

1    Until 17 March last year Mr Warrell was employed as a gardener by the second respondent, Bacto Laboratories. On that day he was dismissed from his employment for allegedly swearing at Mr Carter, Bacto’s managing director. So long as an application is filed within 14 days, federal law permits an employee to complain of unfair dismissal to Fair Work Australia: Fair Work Act 2009 (Cth) s 394(2)(a). Mr Warrell lodged such a claim within five days of his dismissal but unfortunately he sent it to the Fair Work Ombudsman. Since Mr Warrell is functionally illiterate and brain damaged, this is not surprising. The fact that the present legislation insists on prefixing every federal industrial institution with the words ‘Fair Work’ is unlikely to have assisted either.

2    Following what were no doubt a number of bewildering encounters between the registry staff of Fair Work Australia and Mr Warrell, he was able eventually to secure the services, for a brief time, of a solicitor, Mr Ram. Mr Ram was good enough to file Mr Warrell’s unfair dismissal claim on 24 June 2011 which was well outside the 14 day time limit (though this was not in any way Mr Ram’s fault). Unfortunately, after the claim had been filed, Mr Ram was not able to continue in the matter because Mr Warrell could not afford his services.

3    Mr Warrell’s case was eventually heard by Senior Deputy President Drake on 7 September 2011 at which time he appeared for himself. Although his claim was out of time, it is nevertheless possible for the 14 day time limit to be extended if an application is made to do so: Fair Work Act s 394(3). Very sensibly, with respect, Drake SDP heard full argument on all issues in case an extension were granted.

4    At the hearing, both Mr Warrell and Mr Carter were called as witnesses. Mr Carter said that Mr Warrell had used some very strong and inappropriate language towards him. Mr Warrell said this was not true. Having heard the evidence, Drake SDP accepted Mr Carter’s testimony over Mr Warrell’s and concluded that his unfair dismissal claim lacked merit. That being so, she declined to enlarge the time within in which it could be brought. The result was that Mr Warrell’s claim was dismissed.

5    Drake SDP delivered her judgment on 12 September 2011. Provided he could demonstrate that it was in the public interest or involved a significant error of fact, Mr Warrell was entitled to ask a Full Bench of Fair Work Australia for permission to appeal: Fair Work Act s 400. This he did. This application was eventually listed for hearing on 27 October 2011 before a Full Bench comprising Senior Deputy President O’Callaghan, Deputy President Hamilton and Commissioner Roe.

6    One week before the hearing date, Mr Warrell had the good fortune to secure the services of a barrister, Mr Craig Bolger, to appear on his behalf at the appeal. Mr Bolger filed a notice with Fair Work Australia that he was now representing Mr Warrell. There was one difficulty, however: Mr Bolger was not available on the day of the hearing. Accordingly, he wrote a detailed letter to O’Callaghan SDP on 20 October 2011. He explained his unavailability on the day; the inability of Mr Warrell to conduct an appeal proceeding given his deficits; the necessity for Mr Warrell to seek to put on fresh evidence at the appeal; and the fact that the chances of Mr Warrell securing other representation for the hearing were ‘fairly remote’, although efforts in that regard would be made.

7    The Full Bench declined the adjournment and proceeded to hear Mr Warrell’s application on 27 October 2011. The application was dismissed. The Full Bench recorded that Mr Bolger had indicated that further efforts would be made to secure representation should the adjournment be refused. No reference was made to Mr Bolger’s observation that the chances of this occurring were ‘fairly remote’.

8    The power of the Full Bench to hear Mr Warrell’s application was conferred by s 604 of the Fair Work Act. The power in s 604 is subject to an obligation to afford all parties involved in the application natural justice: Coal and Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78 at 83 [25] per Buchanan J (Marshall and Cowdroy JJ agreeing). What did natural justice require? “The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject matter that is being dealt with, and so forth”: Russell v Duke of Norfolk [1949] 1 All ER 109 at 118 per Tucker LJ.

9    It may be that in few cases will the denial of an adjournment constitute a denial of natural justice, but the authorities show that it is possible: see, for example, Sullivan v Department of Transport (1978) 20 ALR 323 at 343 per Deane J. The basic question in such cases is whether the affected person has been denied a reasonable opportunity to put his or her side of the story.

10    What then of the circumstances of this case? These include the fact that Mr Warrell’s application for an adjournment was made well in advance of the hearing; his illiteracy and brain damage; the significance of his having secured a barrister to appear for him on the day; the ‘fairly remote’ chance of anyone else appearing at the hearing; and the barrister’s suggestion that fresh evidence would be led.

11    In the perhaps somewhat unusual circumstances of this case, to deny Mr Warrell his adjournment so that Mr Bolger could appear on his behalf was a denial of natural justice. Because the power of s 604 was conditional on its being exercised in a procedurally fair manner, the consequence is that the hearing conducted by the Full Bench was not the kind of hearing contemplated by s 604 and Fair Work Australia fell into jurisdictional error: Re Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82 at 91 [17] – 101 [41] per Gaudron and Gummow JJ, at 142 [166], 143 [169] – [170] per Hayne J; Plaintiff S157 of 2002 v The Commonwealth (2003) 211 CLR 476 at 489 – 490 [25] per Gleeson CJ. That being established, this Court is authorised to issue a writ of certiorari to quash the Full Bench’s orders and a writ of mandamus to order Fair Work Australia to deal with Mr Warrell’s claim according to law: as to the latter, s 39B(1) Judiciary Act 1903 (Cth); as to the former, this Court’s accrued jurisdiction and s 23 of the Federal Court of Australia Act 1976 (Cth).

12    It is true that the grant of these writs may be refused on discretionary grounds. In this case, I can see no reason, however, to refuse their issue. On the question of costs, both Fair Work Australia and Bacto Laboratories put on submitting appearances. There will, therefore, be no order as to costs. The orders of the Court will be that:

1.    Order absolute in the first instance for a writ of certiorari directed to Fair Work Australia to quash its orders of 8 November 2011.

2.    Order absolute in the first instance for a writ of mandamus directed to Fair Work Australia to determine Mr Warrell’s application under s 604 of the Fair Work Act 2009 (Cth) according to law.

3.    Fair Work Australia be differently constituted when obeying the writ issued under Order 2.

4.    The title of the first respondents in the proceedings be changed to ‘Fair Work Australia’.

5.    There be no order as to costs.

6.    The exhibit be returned to the applicant.

Associate:

Dated:    22 March 2012