FEDERAL COURT OF AUSTRALIA

Barkhazen v Conair Australia Pty Ltd [2017] FCA 1585

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s originating application and statement of claim be summarily dismissed under s 31A of the Federal Court of Australia Act 1976 (Cth).

2.    The first respondent be given leave to make an application for costs within 28 days, or such further time as may be allowed, by way of written submissions of no more than five pages in length and any supporting affidavit.

3.    The applicant respond to any application for costs within 21 days of service of the first respondent’s written submissions for costs and any supporting affidavit, or such further time as may be allowed, by way of written submissions of no more than five pages in length and any supporting affidavit.

4.    Any application for costs be determined on the papers, unless it is decided that an oral hearing is required.

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

REASONS FOR JUDGMENT

BROMWICH J:

1    This is an application for summary dismissal or, alternatively, for strike-out of pleadings or, further and in the alternative, for security for costs. That application is brought by an amended interlocutory application by the first respondent to the substantive proceedings, Conair Pty Ltd. The second respondent, the Fair Work Commission, has filed a submitting appearance save as to costs.

2    The applicant in the substantive proceedings, Ms Inessa Barkhazen, applied to this Court for judicial review under s 39B of the Judiciary Act 1903 (Cth) of a decision of the Full Bench of the Fair Work Commission by which permission to appeal was refused and her appeal was dismissed. Ms Barkhazen had sought permission from the Full Bench to appeal from a decision of a Commissioner of the Fair Work Commission that dismissed an application she had brought against Conair as her former employer as a result of the summary termination of her employment for wilful misconduct.

3    Ms Barkhazen’s application for judicial review in this Court, brought by an originating application and statement of claim, sought constitutional writs to quash the Full Bench’s orders that refused permission to appeal and dismissed the appeal, and to compel the re-hearing of her application for permission to appeal, according to law, by a differently constituted Full Bench. No direct relief was sought against the antecedent decision of the Commissioner, although reliance was placed on that decision to demonstrate either jurisdictional error, or error of law on the face of the record, on the part of the Full Bench.

Overview

4    On 4 January 2015, Ms Barkhazen was summarily dismissed from her job as an accounting, tax and payroll manager with Conair on the stated basis of wilful misconduct. The misconduct relied upon was her removal of her personnel file from Conair’s premises. It was not in dispute that the file was the property of Conair. Ms Barkhazen had been an employee of Conair for over four years.

5    On 13 January 2015, Ms Barkhazen applied for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (Cth) (FW Act). Conciliation failed. The matter proceeded to an arbitration hearing before the Commissioner that took place over three days in May and June 2016, with both sides represented by solicitors and experienced counsel. Ms Barkhazen and two other witnesses were called in her case. Two witnesses were called in Conair’s case.

6    On 16 September 2016, Ms Barkhazen’s application was dismissed by the Commissioner, who held that the misconduct in question had occurred, the dismissal was for a valid reason, and the dismissal was not harsh, unjust or unreasonable.

7    On 10 October 2016, Ms Barkhazen filed a notice of appeal to the Full Bench and applied for permission to appeal from the Commissioner’s decision under s 604 of the FW Act. The appeal was instituted three days out of time. The Full Bench was satisfied that the interests of justice favoured the grant of an extension of time and therefore exercised the discretion to extend the time to 10 October 2016.

8    On 1 December 2016, the Full Bench decided that it was not satisfied, for the purposes of s 400(1) of the FW Act, that it would be in the public interest to grant permission to appeal. The Full Bench must not grant permission to appeal with that state of satisfaction. Accordingly, permission to appeal was not granted and the appeal was dismissed.

9    On 19 December 2016, Ms Barkhazen lodged for filing an originating application in this Court dated 16 December 2016, supported by an affidavit by her solicitor. Those documents were accepted for filing on 20 December 2016. On 22 March 2017, she lodged for filing a statement of claim dated 21 March 2017, which was accepted for filing on 23 March 2017. That statement of claim is somewhat confused and convoluted in the pleading of the judicial review grounds, as detailed further below. However, it is clear in both the originating application and in the statement of claim that relief is sought only against the decision of the Full Bench. The relief sought is for:

(1)    a writ of certiorari to quash the Full Bench’s orders made on 1 December 2016; and

(2)    a writ of mandamus compelling a differently constituted Full Bench to determine, according to law, the application under s 604 of the FW Act for permission to appeal.

The grounds of judicial review advanced

10    The relief sought by way of constitutional writs in the originating application was as follows:

Details of claim

On the grounds stated in the statement of claim, accompanying affidavit or other document prescribed by the Rules, the Applicant applies for the following relief under section 39B of the Judiciary Act 1903:

1.    Order absolute in the first instance for a writ of certiorari directed to Fair Work Australia to quash its orders of 1 December 2016.

2.    Order absolute in the first instance for a writ of mandamus directed to Fair Work Australia to determine Ms Barkhazen’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.

5.     Costs.

11    The statement of claim replicated the relief sought in the originating application in the first paragraph, and then pleaded the following grounds of judicial review relied upon for obtaining that relief (verbatim, including the text in square brackets):

2.    A breach of the rules of natural justice occurred in connection with the making of the decision of the primary decision-maker in the Commission, which the Full Bench [Appeals Panel] erred in not correcting.

Particulars

a.    In the course of the administration of the matter by Commissioner Cambridge there occurred a breach of the nemo iudex rule of natural justice namely the appearance of a possibility of an absence of an impartial mind on the part of the Commissioner, which upon objection being taken was rejected by the Commissioner firstly upon conditions and then completely, leading to his proper disqualification.

b.    That possibility arose before evidence was adduced from the Applicant, who was subsequently cross-examined, when the Commissioner made a clear and adverse observation as to the credit of the Applicant namely and amongst other things that she was dishonest and did not come to his court with clean hands, and had stolen company property all of which was false, but relevant to the facts of the case.

c.    The same possibility also arose again when an application for recusal having been made to the Commissioner at which point he impliedly threatened the Applicant by directing that unless she agree to pay the costs of the Respondent company of an adjournment to find another Commissioner to replace him as the application for recusal required he would not uphold that application.

d.    The matters in sub-paragraph [c] comprised a further breach of the rules of procedural fairness and also comprised an abuse of the Fair Work Commission's process, in that the Commissioner was apparently seeking to manipulate the Applicant into withdrawing her just application for recusal and to take advantage for its and his benefit of her recent and wrongful dismissal by the Respondent company who as a result of the wrongful repudiation of her workplace contract had limited funds to pay a proposed costs order.

e.    In law a decision made in breach of the rules of natural justice is void, and a jurisdictional error by an officer of the Commonwealth within the meaning of Constitution section 75: see Re Refugee Tribunal; ex parte Aa/a [2000] 2004 CLR 118; Commissioner Cambridge like the members of the Appeals Panel are officers of the Commonwealth.

f.    In that the Fair Work Commission is not a superior court the invalidity if properly addressed according to law might have been cured by the Appeals Panel, but it was such that this Honourable Court should quash the decision: see Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] 209 CLR 597; [2002] HCA 11.

g.    The Full Bench Appeals Panel ['the Appeals Panel'] erred in characterising the conduct of the Commissioner as tentative and feed-back and not a breach of the rules of natural justice and in not apprehending that the Commissioner's statements extended to issues of credit in a matter being heard before him and in holding there was no arguable case of breach of the rules of natural justice.

3.    Further, procedures that were required by law to be observed in connection with the making of the decision were not observed.

Particulars

The procedural fairness rules were disregarded as to which the Applicant repeats the particulars to paragraph 2.

4.    Further, Commissioner Cambridge who purported to make the decision did not have jurisdiction to make the decision and was not authorized by the enactment in pursuance of which it was purported to be made under Fair Work Act 2009.

Particulars

a.    The Commissioner had in the circumstances no jurisdiction to hear the complaint as to which the Applicant repeats the particulars in paragraph 2.

b.    Alternatively. the Commissioner failed to exercise his jurisdiction with respect to the contracts case of the Applicant [see paragraphs 5,6 and 7 below]

5.    Further, the decision of Commissioner Cambridge involved an error of law, whether or not the error appears on the record of the decision and was otherwise contrary to law.

Particulars

a.    The decision failed to address principles of the law of contract with respect to wrongful termination and rescission of the Applicant's contract with the Respondent company in December 2014 and January 2015.

b.    The Respondent repudiated the Applicant's contract by its conduct, contrary to the finding of Commissioner Cambridge and the Appeals Panel.

c.    The Respondent breached the whistleblower provisions of the Corporations Act 2001 drawn to Commissioner Cambridge's attention but this breach of contract was disregarded by the Commissioner and the Appeals Panel;

d.    The Appeals Panel erred in holding that no arguable case of breach of contract or duty by the Respondent company and that such issue was neither relevant nor determinative.

6.    Further, there was no evidence or other material to justify the making of the decision by Commissioner Cambridge.

Particulars

a.     The Commissioner found that the Applicant had breached her contract when there was no evidence to that effect.

7.     Further, the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made in that he took into account an irrelevant consideration in the exercise of his power and failed to take a relevant consideration into account in the exercise of his power.

Particulars

a.    The Commissioner had regard to his view of the credit of the Applicant throughout his consideration of the facts in issue and the legal issues;

b.    The Commissioner did not examine the facts to determine whether or not the Respondent company had breached its duties in contract and under the general law to the Applicant;

c.    The Appeals Panel applied in error the test of permission to appeal.

8.    Further, the Commissioner exercised power in a manner that is so unreasonable that no reasonable person could have so exercised the power.

Particulars

The Applicant repeats the matters in paragraphs 1 to 7.

9.    Further, the Commissioner exercised a power in a way that constituted abuse of the power.

Particulars

a.    The Commissioner exercised his decision-making power in a manner which abused that power as particularised in paragraph 2(c).

10.    In the premises the decision of Commissioner Cambridge was void and of no effect.

11.    The Appeals Panel also erred in the respects alleged in paragraphs 1 to 11 herein in not granting permission to appeal and in not setting aside the decision.

12    The grounds of review set out above are convoluted, repetitive and confused. They mostly attack the decision of the Commissioner, without making it clear how that decision infected the decision of the Full Bench against which relief was being sought, and without alleging the necessary jurisdictional error for judicial review by this Court, as discussed below. They represent a scattergun approach of trying to find a basis – indeed, almost any basis – upon which to overcome Ms Barkhazen’s lack of success before the Commissioner and before the Full Bench. In taking that approach, no proper attempt was made to identify any viable ground of judicial review in aid of obtaining the relief sought.

13    The position did not improve in written submissions filed on behalf of Ms Barkhazen. Nor did it become any clearer in a written outline of oral argument that was provided to the Court and to Conair’s legal representatives after it was apparently relied upon to make oral submissions on behalf of Ms Barkhazen, an approach that was both unhelpful and discourteous, requiring counsel for the respondents to respond without prior notice. The oral submissions made on behalf of Ms Barkhazen did not advance her case. Repeated efforts during the course of the hearing to have counsel for Ms Barkhazen identify, with any measure of clarity and precision, precisely what his client’s case was, and how he was able to identify and establish the required jurisdictional error, or error of law on the face of the record, were largely to no avail.

The nature of the application for judicial review in this Court

14    The specific relief sought by Ms Barkhazen is of fundamental importance when it comes to understanding:

(1)    the grounds advanced in her statement of claim; and

(2)    the competing submissions of the parties as to whether the decision of the Full Bench is vitiated by jurisdictional error or error of law on the face of the record.

15    Two different decisions of the Full Court serve to illustrate the importance of the relief sought to properly identify the specific judicial review exercise that is required, and thereby the limitations on this Court’s jurisdiction and power to intervene.

16    In Linfox Australia Pty Ltd v Fair Work Commission [2013] FCAFC 157; 240 IR 178, an employer sought judicial review of a decision of the Full Bench (of Fair Work Australia, as the Fair Work Commission was named at the time of the Full Bench’s decision). It was determined that the application should be heard by a Full Court of this Court exercising original jurisdiction. The Full Bench (of Fair Work Australia) had granted permission to appeal from a decision of the Commissioner to order the reinstatement of an employee who was found to have been unfairly dismissed. The Full Bench then dismissed the appeal. The Full Court decision contains details of the Commissioner’s original decision that had been unsuccessfully appealed, but only for the limited purpose of giving content and meaning to the Full Bench decision. The Full Court observed:

40    The Court has great difficulty in seeing the relevance of the concept of “jurisdictional fact” in this context. Its use by Linfox should not be permitted to obscure the fact that the correct legal position is that:

(a)    the appellate jurisdiction of the Full Bench of Fair Work Australia required the identification of some error of law or fact on the part of the Commissioner before the Full Bench could intervene (noting that the effect of s 400(2) is that an appeal on a question of fact must involve a significant error of fact); and

(b)    the Court’s jurisdiction to review the Full Bench of Fair Work Australia’s decision requires the identification of a jurisdictional error (or an error of law on the face of the record, which was not raised in the proceeding).

41    There is considered to be an element of confused thought (see the comments of Gummow ACJ and Kiefel J in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [39]) in Linfox’s invocation of the concept of “jurisdictional fact” in this context. That confusion is evident in the following passage from its written Outline of Submissions in Reply:

1.3 … Whether or not a dismissal is unfair within the meaning of section 387 of the Fair Work Act 2009 is a finding of jurisdictional fact, as the enlivening of the Commission’s power is contingent on that fact. In the absence of a finding that the dismissal is unfair, the Commission has no power to make any order as to the reinstatement, re-employment and/or compensation. On review for jurisdictional error, the reviewing court must determine for itself whether a jurisdictional fact exists. For this Court to determine whether the Full Bench has fallen into jurisdictional error, it is necessary for it to determine whether the opinion of the Full Bench that there was not error on the part of Commissioner Roberts was properly formed …

42    That submission should not be accepted. It fails fully to reflect the different jurisdictions being exercised by the Full Bench in conducting an appeal under s 604 of the Fair Work Act and the jurisdiction of the Court in conducting a judicial review. The task of this Court is to review the decision of the Full Bench for jurisdictional error. The Court’s task is not to review the Commissioner’s decision with a view to determining for itself whether a jurisdictional fact exists. Nor was that the task of the Full Bench. As the High Court emphasised in Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; 99 IR 309 at [31] and [32], the Full Bench would fall into jurisdictional error if, for example, it misconceived its role, misunderstood the nature of its jurisdiction, or failed to apply itself to the relevant question; but the limited nature of that review jurisdiction is important as is reflected in the passages from the joint judgment of Gleeson CJ, Gaudron and Hayne JJ in that decision which are set out in [12].

17    In Gregory v Qantas Airways Limited [2016] FCAFC 7; 241 FCR 72, proceedings were brought by a former employee for judicial review of two decisions of the Fair Work Commission, those being decisions of the Commissioner and the Full Bench respectively. The challenge to the Commissioner’s decision failed because an assertion of jurisdictional error was not accepted. The challenge to the Full Bench’s decision succeeded as jurisdictional error was found. In outlining the case before the Full Court, Buchanan J (with whom Bromberg J agreed with additional comments, and with Rangiah J agreeing with both Buchanan and Bromberg JJ) observed:

1.    These are proceedings for judicial review of two decisions of the Fair Work Commission (“FWC”) established under the Fair Work Act 2009 (Cth) (“FW Act”) (Gregory v Qantas Airways Ltd [2015] FWC 1154 and Gregory v Qantas Airways Ltd [2015] FWCFB 2599). They are, respectively, a decision by Commissioner Cambridge on 27 February 2015 which dismissed an application by the present applicant that he be reinstated to his employment with the first respondent and a decision by a Full Bench of the FWC on 24 April 2015 which dealt with an appeal filed against the decision of Commissioner Cambridge. The Full Bench refused permission to appeal and dismissed the appeal. I will refer to the powers exercised by each of Commissioner Cambridge and the Full Bench in due course.

2.    The proceedings in this Court were commenced on 18 May 2015. They rely on s 39B of the Judiciary Act 1903 (Cth), seeking that a writ of mandamus be issued to the FWC requiring that the application for reinstatement be heard again, supported by claims that writs of certiorari be issued to quash both decisions. Relief of this kind is only available to the applicant to address jurisdictional error. The merits of the application for reinstatement do not arise for consideration in this Court.

18    Later in Buchanan J’s reasons in Gregory at [35], his Honour cited Linfox at [47] in relation to the issue under consideration of an alleged failure on the part of the Commissioner in that case (who, as it happens, was the same Commissioner as in this case). While Linfox at [42] was not expressly referred to, there is no reason to doubt that his Honour, and, indeed, the other members of the Full Court, were well aware of the limitation referred to in that paragraph. The reason why such a limitation was not imposed in Gregory was that the scope of the challenge was not confined to the decision of the Full Bench. Thus Linfox is not to be read as authority for any broader proposition that this Court cannot entertain an application for judicial review of a decision of the Fair Work Commission antecedent to a decision of the Full Bench in the same case. Given the scope of s 39B of the Judiciary Act and the status of the Fair Work Commission as an executive body, such a limitation would be surprising.

19    For completeness, it should, however, be noted that, as discussed below, there will often be compelling discretionary reasons for this Court not to entertain an application for judicial review of a decision of the Fair Work Commission antecedent to a decision of the Full Bench in the same case, including when an application for permission to appeal is pending before the Full Bench. This Court will usually require a compelling reason to intervene as an alternative to the appeal processes provided for by the FW Act.

20    Conair relied on Linfox at [42] to limit the use that Ms Barkhazen could make of the reasons given by the Commissioner for dismissing her application. Counsel for Ms Barkhazen contended that the limitation identified in Linfox at [42] did not apply to the present case, and sought to have this Court also engage in judicial review of the decision of the Commissioner as part of Ms Barkhazen’s challenge to the Full Bench decision. That contention on behalf of Ms Barkhazen must be rejected, because this is a case like Linfox and unlike Gregory. That is because, as already observed, Ms Barkhazen’s application for judicial review in this Court is confined to seeking relief against the decision of the Full Bench, not against the decision of the Commissioner. Confining the relief sought in that way must have been a deliberate decision, because that limited scope of relief sought is not just set out in the originating application, but is repeated, letter and verse, in the first paragraph of the statement of claim.

21    The limitation identified in Linfox at [42] therefore applies to Ms Barkhazen’s proceedings in this Court. Accordingly, Ms Barkhazen’s reliance on the Commissioner’s reasons must be confined to the metes and bounds of the relief that she seeks in relation to the Full Bench decision to refuse permission to appeal and dismiss her appeal. In those circumstances, there is no scope for this Court to entertain any issue of jurisdictional error or error of law on the face of the record on the part of the Commissioner.

22    It should be pointed out that Ms Barkhazen suffered no real detriment in not directly challenging the Commissioner’s decision or orders. It was proper that she first seek redress from that decision from the Full Bench, and it would have been equally proper for her to confine any viable judicial review application to the decision of the Full Bench. As noted by Flick J in Rahman v Commissioner of Taxation [2015] FCA 988 at [17]:

Relief in an application pursuant to s 39B of the Judiciary Act seeking judicial review of a decision may be refused in the exercise of the Court’s discretion where there is a more convenient and beneficial means of review available. Relief in the form of a prerogative writ of mandamus, for example, may be refused in such circumstances: e.g., R v Commissioner of Taxation; Ex parte Just Jeans Pty Ltd (1986) 10 FCR 69 at 75 per Northrop J. And where there is a right of appeal from an administrative decision to the Administrative Appeals Tribunal, it has similarly been held that a party should normally invoke that right rather than the jurisdiction conferred on this Court by the Administrative Decisions (Judicial Review) Act 1977 (Cth): Tuite v Administrative Appeals Tribunal (1993) 40 FCR 483 at 484 per Davies J; cf. Peczalski v Comcare [1999] FCA 366 at [12] to [13], (1999) 58 ALD 697 at 699; Duncan v Fayle [2004] FCA 723 at [25], (2004) 138 FCR 510 at 518 to 519.

23    Gregory must be seen as an exception to the general approach of challenging only Full Bench decisions in this Court, arising from the unusual facts and circumstances of that case. Gregory should not be taken to encourage any application for judicial review of decisions antecedent to a Full Bench decision.

24    With the limited scope of the challenge brought by Ms Barkhazen clearly in mind, it is now necessary to consider this Court’s capacity to intervene. In Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission [2000] HCA 47; 203 CLR 194, the High Court at [30] made it clear that there will only be jurisdictional error by the Full Bench (then of the Australian Industrial Relations Commission, now of its successor, the Fair Work Commission) amenable to judicial review by this Court if the Full Bench misconceived its role or duty, misunderstood the nature of its jurisdiction or the nature of the opinion which it was to form, or failed to apply itself to the question that the relevant legislative provision prescribes.

25    In this case, any suggestion of reliance by Ms Barkhazen on an error of law on the face of the record does not widen the capacity of this Court to intervene beyond any identified jurisdictional error, as it has not been pleaded in that way. In any event, there is nothing to indicate that the Full Bench deliberately incorporated its reasons into the decision itself so as to make it a part of the record amenable to judicial review of this kind for non-jurisdictional error: see Public Service Board of New South Wales v Osmond (1986) 159 CLR 656 at 667.5; Craig v South Australia (1995) 184 CLR 163 at 180-1. The “record” for this purpose is limited to the documents initiating and defining the matter and the impugned order or determination, and nothing more: Craig at 180. No error of law on the face of the “record” in that sense is asserted on behalf of Ms Barkhazen so as to broaden her challenge beyond jurisdictional error as the basis for setting aside the order of the Full Bench by which permission to appeal was refused. In any event, error of law on the face of the record is likely only to be an ancillary basis for relief obtained as a result of establishing jurisdictional error: see Re McBain; Ex parte Australian Catholic Bishops Conference [2002] HCA 16; 209 CLR 372 at [19], [176]. It follows that there is no path of reasoning available to Ms Barkhazen that avoids the constraints on the authority of this Court to review the impugned decision of the Full Bench to refuse her permission to appeal. Those constraints are discussed in the following section.

Scope of judicial review in this case

26    The scope of the available judicial review in this case is dictated by the decision that is under challenge. Section 604 of the FW Act governs consideration of applications for permission to appeal to the Full Bench. That section provides, without limiting when permission may be granted, that permission to appeal must be granted if the Full Bench is satisfied that it is in the public interest to do so. However, s 400 further provides that, in the case of an application relating to an unfair dismissal remedy such as that brought by Ms Barkhazen, the Full Bench must not grant permission to appeal unless it considers that it is in the public interest to do so. The primary relief sought by Ms Barkhazen is that the order made by the Full Bench on 1 December 2016, which refused her permission to appeal from the Commissioner’s decision, be set aside.

27    The question of whether a decision of the Full Bench under s 400(1) could be reviewed by this Court under s 39B of the Judiciary Act 1903 (Cth) was considered by the Full Court in Baker v Patrick Projects Pty Ltd [2014] FCAFC 165; 226 FCR 302. Katzmann J (with whom Dowsett and Tracey JJ agreed) observed:

31    The Full Bench was precluded from entertaining the appeal unless it granted permission to appeal and to do that it had to be satisfied that it was in the public interest to do so. …

…

33    As Buchanan J said in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78 at [44] the decision as to whether it is in the public interest to grant permission to appeal plainly involves assessment and value judgments on the part of the Full Bench. In O’Sullivan v Farrer (1989) 168 CLR 210 at 216 Mason CJ, Brennan, Dawson and Gaudron JJ said that:

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 [statute] may enable … given reasons to be [pronounced] definitely extraneous to any objects the legislature could have had in view”.

34    That is the position here. The existence of the public interest in granting permission to appeal is not a jurisdictional fact to be determined to the satisfaction of this Court. So much was found by the Full Court in Australian Postal Corporation v D’Rozario (2014) 222 FCR 303 at [8] (Besanko J); [47] (Jessup J) and at [95]-[104] (Bromberg J). As Perram J noted in Australian and International Pilots Association v Fair Work Australia (2012) 202 FCR 200 at [147], citing Australian Heritage Commission v Mount Isa Mines Ltd (1995) 60 FCR 456, where the task reposed in a decision-maker:

… is a difficult and complicated one involving the careful assessment of complex facts and the formation of opinions and value judgments on a potentially wide range of matters, this will suggest that Parliament intended that the decision-maker would have power to make its own determination of that matter.

35    His Honour also noted at [147] that:

[T]he specialist qualifications of the members of an administrative tribunal may well be an indicator that it is this body, with its expertise, that is to resolve the issue at hand.

36    Applying those principles in this case, it is highly unlikely that Parliament would have intended that a court engaged in judicial review should decide whether it is, in fact, in the public interest to grant permission for leave to appeal to the Commission. Neither is there any other basis upon which the Court can interfere. The FW Act does not prescribe the considerations that are to inform the satisfaction of the Full Bench. The discretion conferred by s 400(1) is extremely broad. …

Conair’s case for summary dismissal

28    Conair submits, relying particularly upon Coal and Allied and Baker, that it is manifestly apparent that Ms Barkhazen’s statement of claim discloses no reasonable cause of action, and therefore that she has no reasonable prospect of success. Conair further submits that the defects in Ms Barkhazen’s case are such that no amendments to the pleadings could cure that deficiency, noting that ample opportunity had already been given by the Court for that to take place. That submission was developed in detail by reference to paragraphs of the statement of claim reproduced above. It is not necessary to reproduce or even summarise the submissions made, as it is clear that not a single aspect of the statement of claim does other than attempt to engage this Court in the very process precluded by Baker, that of seeking to go behind the formation of the satisfaction of the Full Bench that it was not in the public interest to grant permission to appeal, including by way of attempted collateral challenge to the decision of the Commissioner.

29    The written and oral submissions for Ms Barkhazen did not engage with the arguments advanced on behalf of Conair, nor with the authority upon which they were based. They certainly did not meet Conair’s compelling case for summary dismissal. In particular, counsel for Ms Barkhazen failed to address the incapacity of this Court to engage in judicial review of the decision of the Full Bench to refuse permission to appeal upon the basis of not being satisfied it was in the public interest to grant that permission, at least in the absence of bringing a case that demonstrates how that decision was capable of constituting a jurisdictional error so as to avoid the constraints so clearly identified in Baker. Not even the barest attempt was made to do this, notwithstanding Conair’s submissions being available to counsel for Ms Barkhazen for over five months before the hearing of the interlocutory application for summary dismissal.

30    In all the circumstances, Conair’s case for summary dismissal is unassailable. This Court has no business – as well as no authority – to second-guess the Full Bench’s state of satisfaction that it was not in the public interest to grant Ms Barkhazen permission to appeal, at least in the absence of alleging and being in a position to mount a case of jurisdictional error in reaching that conclusion. The case sought to be brought for judicial review in this Court is devoid of merit and has no prospect of success. In those circumstances, summary dismissal is inevitable, with the tests for summary dismissal authoritatively stated by the High Court in Spencer v Commonwealth of Australia [2010] HCA 28; 241 CLR 118, especially at [24]-[25], being easily met.

Conclusion

31    Summary judgment must be entered in favour of Conair.

Costs

32    The written submissions for Conair sought that it be heard on the question of costs. Orders will be made to facilitate that taking place, preferably on the papers, but by way of a further oral hearing if truly necessary.

Associate:

Dated:    21 December 2017