Federal Court of Australia

Jovcic v Coopers Brewery Limited [2023] FCA 423

ORDERS

THE COURT ORDERS THAT:

1.    The originating application is dismissed.

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

REASONS FOR JUDGMENT

(Revised from the transcript)

CHARLESWORTH J

Introduction

1    This is an application for orders under s 39B of the Judiciary Act 1903 (Cth) quashing a decision of the Fair Work Commission made on 22 July 2022 and ancillary relief:  Jovan Jovcic and Filip Markovic v Coopers Brewery Limited [2022] FWC 1931.

2    The Court conducted a hearing of the application on 20 March and 5 April 2023. At the conclusion of the hearing, I made an order dismissing the originating application and gave oral reasons for doing so.

3    The parties were informed that written reasons would follow and I now publish those reasons. The written reasons that follow should not be understood as containing any findings or conclusions inconsistent with those delivered orally. They have been re-ordered and revised from the transcript to remove repetition and improve expression. Some statutory provisions have been included, together with some uncontroversial background.

Written record of oral reasons

4    The applicants Mr Jovan Jovcic and Mr Filip Markovic are former employees of the first respondent, Coopers Brewery Limited. They were dismissed from their employment on 21 January 2022 on the basis that they had failed to comply with a policy requiring employees to be vaccinated against the COVID-19 virus.

5    The applicants commenced proceedings in the Commission under the Fair Work Act 2009 (Cth) (FW Act) alleging that their dismissal was an unfair dismissal as defined in that Act. Among other things, they relied on expert evidence concerning the transmission of the COVID-19 virus and the efficacy of COVD-19 vaccines.

6    The Commission concluded that the applicants’ dismissal was not unfair within the meaning of the FW Act because Coopers’ policy constituted a reasonable direction to them, with which they had failed to comply. It did not make findings of fact invited by the applicants by reference to the evidence of the applicants’ expert.

7    On an application for judicial review of a decision of the Commission, relief may only be granted if a decision is found to be affected by jurisdictional error. The Court does not have the power to correct errors of fact or to make findings of fact in substitution for those of the original decision-maker. Findings of fact may be judicially reviewed only if it is shown that the finding is affected by jurisdictional error. In that event, the proper remedy is an order remitting the matter to the original decision-maker for determination in accordance with the law.

8    This Court’s judicial review jurisdiction is to be contrasted with its appellate jurisdiction. On an appeal, errors of fact may be corrected in accordance with well-established principles discussed in cases such as Fox v Percy (2003) 214 CLR 118 and Warren v Coombes (1979) 142 CLR 531.

9    The two grounds for judicial review before this Court allege that the Commission:

(1)    failed to undertake an active intellectual process, specifically by failing to undertake a true and detailed analysis and evaluation of contrasting expert evidence before it, particularly concerning the efficacy of the COVID-19 vaccination;

(2)    committed jurisdictional error by proceeding on an incorrect understanding and application of the applicable law, particularly the law concerning the role of the Commission in determining whether a an employer’s direction is reasonable.

10    The applicants seek an order remitting their unfair dismissal application to the Commission to be conducted afresh, together with declaratory relief.

11    This Court’s power to grant remedies under s 39B of the Judiciary Act are equivalent to those conferred on the High Court under s 75(v) of the Constitution. The power is discretionary.

12    The parties’ written submissions refer to cases outlining the principles that guide the exercise of the discretion. The cases must be understood having regard to the factual and legal context in which they were decided. Specific passages in the cases are not to be applied as though they are words of a statute. Rather, they set out the principles guiding the exercise of the discretion.

13    The discretion must of course be exercised judicially. It is necessary to have regard to the interests of the proper administration of justice as well as the statutory framework under which the decision under review has been made.

14    Coopers’ submission is to the effect that relief in this Court should be declined because there exists an alternate and more effective means under the FW Act for resolving the underlying controversy between the parties, namely an appeal to the Full Bench of the Fair Work Commission, and the applicants have made no attempt to invoke that jurisdiction.

15    An appeal from a decision of a single member of the Commission lies to the Full Bench, in accordance with (and subject to) the following provisions of the FW Act:

604 Appeal of decisions

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

(a)    made by the FWC (other than a decision of a Full Bench or an Expert Panel); or

(b)    made under the Registered Organisations Act by the General Manager (including a delegate of the General Manager);

may appeal the decision, with the permission of the FWC.

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

Note:    Subsection (2) does not apply in relation to an application for an unfair dismissal (see section 400).

(3)    A person may appeal the decision by applying to the FWC.

…

607 Process for appealing or reviewing decisions

(1)    An appeal from, or a review of, a decision of the FWC or the General Manager may be heard or conducted without holding a hearing only if:

(a)    it appears to the FWC that the appeal or review can be adequately determined without persons making oral submissions for consideration in the appeal or review; and

(b)    the persons who would otherwise, or who will, make submissions (whether oral or written) for consideration in the appeal or review consent to the appeal or review being heard or conducted without a hearing.

(2)    The FWC may:

(a)    admit further evidence; and

(b)    take into account any other information or evidence.

(3)    The FWC may do any of the following in relation to the appeal or review:

(a)    confirm, quash or vary the decision;

(b)    make a further decision in relation to the matter that is the subject of the appeal or review;

(c)    refer the matter that is the subject of the appeal or review to an FWC Member (other than an Expert Panel Member) and:

(i)    require the FWC Member to deal with the subject matter of the decision; or

(ii)    require the FWC Member to act in accordance with the directions of the FWC.

16    Section 400 provides:

(1)    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.

(2)    Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.

17    The nature of the jurisdiction under those provisions is discussed in cases such as Ulan Coal Mines Limited v Honeysett (2010) 199 IR 363 (at [22] – [24]) and the authorities referred to therein.

18    The powers of the Full Bench on such an appeal are broader in important respects than those of this Court on an application for judicial review. In addition to there being no need to identify errors that may properly be regarded as jurisdictional, the Full Bench may identify and correct significant errors of fact and (if error be demonstrated) make its own findings so as resolve the underlying controversy.

19    As can be seen, an appeal to the Full Bench does not lie as of right. Permission to appeal must be sought, and an application for permission must be commenced within a statutory period unless that period is extended by an order of the Full Bench. There are conditions on the grant of permission set out in s 400 of the FW Act. Section 400(2) provides that leave may be granted with respect to an asserted error of fact only if the error is significant. In addition, the Full Bench must be satisfied that there is a public interest in the grant of leave:  FW Act, s 400(1).

20    In the present case the application for judicial review was filed in this Court after the time period for commencing an application for permission to appeal to the Full Bench had expired. There was no evidence before me explaining why an application for permission was not made to the Full Bench within time or at all. I make no positive findings with respect to the applicants’ reasons for not commencing an application for permission. The evidence does not demonstrate any obstacle to the making of any such application, and it is not suggested by the applicants that such an application would be bound to fail or otherwise futile. Indeed, it is the applicants’ position that the factual and legal issues arising in the proceeding are of critical significance to them.

21    In addition, they sought to make submissions concerning the appropriate test to be applied by the Commission in unfair dismissal matters involving an asserted failure to follow reasonable directions. That appears to me to be an issue of general importance. The applicants appear to be in a good position to satisfy the Full Bench that the grant of permission would be in the public interest and to rely on grounds asserting a significant error of fact concerning the evidence of the applicants’ expert witness.

22    Whilst the grant of permission to appeal to the Full Bench is not a certainty, it cannot also be said that the application would necessarily fail. Subject to the grant of leave by the Full Bench, I am satisfied that the provisions of the FW Act providing for there to be an appeal to the Full Bench establish a procedure that is equally, indeed, more convenient, beneficial and efficient than the originating application put before me.

23    I have had regard to the objects of Pt 3-2 of the FW Act, specifically s 381(b) and (c) which seeks:

(b)    to establish procedures for dealing with unfair dismissal that:

(i)    are quick, flexible and informal; and

(ii)    address the needs of employers and employees; and

(c)    to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement.

24    In my view, the provisions for there being a hearing before a single member followed by an appeal (with permission) to the Full Bench should be understood as part of a regime intended to advance those objectives.

25    It is significant that if the applicants were to succeed on this application, the relief that could be granted, aside from declaratory relief, would be an order in the nature of certiorari and mandamus, quashing the decision of the Commission and requiring a single member of the Commission to determine the unfair dismissal application according to law. From any decision on remittal there would then lie a right to apply for permission to appeal to the Full Bench.

26    That seems to me to give rise to an unsatisfactory likelihood of a multiplicity of proceedings that could be avoided if the statutory pathway of the appellate process were to be utilised. In a hearing before the Full Bench, significant errors of fact, as I have said, may be identified and corrected. This Court cannot do that on this application for judicial review.

27    The Full Bench may also resolve questions of law, including questions of statutory construction involving the limits and nature of its own jurisdiction. All of those matters weigh heavily in favour of the exercise of my discretion to refuse to grant relief without entertaining or resolving the grounds for judicial review on their substantive merits.

28    I have had regard to the circumstance that the parties’ submissions in support of the grounds appear on their face to involve some controversy as to the meaning of an earlier decision of the Full Bench in Construction, Forestry, Maritime, Mining and Energy Union v Mt Arthur Coal Pty Ltd (2021) 310 IR 399 (at [77] and [96]) concerning the test to be applied when an employer relies on an employee’s failure to comply with a reasonable direction as a basis of a decision to terminate that employment. It is not necessary for present purposes to make a finding about what that decision means or to express a view about the relative positions of the parties with respect to it. This Court, of course, is not bound by that decision when resolving the merits of the grounds for judicial review.

29    Insofar as there is any uncertainty about the applicable test, there would appear to be some benefit in this Court resolving the issue, and I have had regard to that in the exercise of my discretion. But it is not a sufficient reason to reject Coopers’ contentions with respect to the discretion to grant relief. The question is when and how any issue concerning the applicable test might be resolved.

30    The Full Bench may itself decide the question:  it may explain, reconsider, disapprove or depart from an earlier decision of another Full Bench. It is desirable that the Full Bench develop that jurisprudence in respect of a statute that it has a central role in administering.

31    In turn, this Court has powers in its appellate jurisdiction to hear appeals from the decisions of the Full Bench. It is by that mechanism that any questions of law concerning the appropriate questions to be asked and answered on an unfair dismissal dispute may be the subject of reasons for judgment in due course by this Court.

32    I have also had regard to the circumstance that the applicants have commenced proceedings in this Court possibly at some cost to them, and the prospect that they may perceive that costs and time have been wasted in this Court if the Court were not to engage with the grounds for review on their substantive merits.

33    However, I do not consider that circumstance to outweigh the matters to which I have referred.

34    This matter was commenced some seven months ago. The proceedings were first set down for a hearing in November 2022 to be expedited at the applicants’ request. However, that date was varied to 20 March 2023, again to accommodate the convenience of the applicants themselves. The delay in the outcome is a result of the applicants’ own delay in progressing the matter to hearing. Oral reasons were given to avoid further delay in the resolution of the argument.

35    In their written submissions in reply, the applicants said the approach urged by Coopers would effectively exclude the jurisdiction of this Court under s 39B of the Judiciary Act to judicially review a decision of a single member of the Commission. I do not accept that submission.

36    This Court’s jurisdiction under s 39B of the Judiciary Act is of course an alternative course available to an unsuccessful party in proceedings before the Commission.

37    It is the right of a litigant in the applicants’ position to invoke that jurisdiction. However, it is necessary to have regard to the nature of the jurisdiction that they have invoked. By their nature, the Court’s powers to grant relief are discretionary. It is in the very nature of the proceedings that a litigant invoking the Court’s jurisdiction under s 39B does so on the basis that it may be necessary to persuade the Court not only as to the merits of the grounds, but also as to whether the particular remedies sought on the originating application should be granted. That may include a need to overcome any reason that might be advanced by the respondent party to warrant the refusal of relief in the Court’s discretion.

38    None of that is to detract from the importance of s 75(v) of the Constitution, nor its analogue in s 39B of the Judiciary Act in the Australian system of constitutional government. To the contrary, as I have said, the discretionary nature of the power to issue the constitutional writs is a feature of the Constitution itself.

39    Accordingly, I consider that the commencement of this proceeding encompassed within it a risk that the Court may not grant the remedies sought because of the availability of an alternative pathway to the resolution of the underlying controversy and that risk was inherent in the proceeding from its commencement. In that respect I have taken into account that Coopers corresponded on 29 September 2022 with the applicants, putting them on notice that it would raise the arguments that they have raised today.

40    In Bragg v Secretary, Department of Employment, Education and Training (1995) 59 FCR 31 (at 34), Davies J had regard to the judicial and administrative resources of this Court on an application for judicial review. Her Honour said:

… it is generally desirable that the time of this Court should not be taken up with issues for the determination of which the legislature has established adequate administrative remedies.

… the general practice of the Court is not to consider, in the first instance, a dispute for the resolution of which a satisfactory administrative remedy has been provided.

…

This Court is too busy and its processes are too costly for it generally to be appropriate for an applicant to come to the Court when there is an informal and expeditious administrative tribunal established to resolve the dispute.

41    For my part, whilst I consider the limits on this Court’s resources may be relevant, its relevance can only be discerned by reference to Parliament’s intention. I do not consider it relevant to have regard to the particular idiosyncrasies of the presiding judge and the compression in his or her docket, or other matters affecting the workload of that judge and I have had no regard to such factors in refusing to grant the relief without determining the merits of the grounds.

42    The discretion is to be exercised in accordance with legal principle, and on the basis that the Court is properly resourced, to decide the grounds for review unless there is a proper basis to decline relief on discretionary grounds. Here there lies a proper basis to refuse relief given the availability of an alternative statutory procedure for the resolution of the underlying controversy between the parties and the absence of any reason as to why that procedure has not been followed.

43    Coopers ought not be subjected to an unnecessary multiplicity of proceedings where there are provisions in the FW Act that preclude it from claiming its costs in the ordinary course:  FW Act, s 570.

44    I consider that the work that had been undertaken in preparing the submissions in this proceeding is not entirely wasted. That work can be utilised on the application for permission to appeal to the Full Bench and (if permission be granted) on the appeal itself, albeit that references to the law with respect to jurisdictional error can be discarded.

45    I do not consider it necessary or appropriate to express a view about the merits of the grounds for judicial review before me, particularly because of the possibility that the matter may return to this Court on an application for judicial review against the same decision or a related decision. It is sufficient to observe only that the grounds are reasonably arguable.

46    In the course of argument the Court has inquired as to whether or not it might be appropriate to stay these proceedings pending the outcome of an application for permission to appeal to the Full Bench. However, in submissions in reply, the applicants’ Counsel did not assert that that would be an appropriate procedure or make any application for a stay.

47    In all of the circumstances I am satisfied that the appropriate order is that the originating application be dismissed.

Associate:

Dated:    5 April 2023