Federal Court of Australia

Liebenberg v IP Australia [2026] FCA 190

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    By 4.00pm on 17 March 2026, the first respondent file and serve submissions addressing the question of whether a costs order should be made against the applicant, in light of s 570(1) of the Fair Work Act 2009 (Cth).

3.    By 4.00pm on 31 March 2026, the applicant file and serve submissions as to costs in response.

4.    Unless otherwise ordered by the Court, the question of costs will be determined on the papers without a further hearing.

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

REASONS FOR JUDGMENT

STELLIOS J:

1    This proceeding concerns an application under s 39B of the Judiciary Act 1903 (Cth) for judicial review of decisions, respectively, by the Fair Work Commission on 22 October 2024 ([2024] FWC 2933) (Primary Decision) and a Full Bench of the Commission on 12 December 2024 ([2024] FWCFB 460) (Full Bench Decision). The applicant seeks writs of mandamus and certiorari directed towards the Full Bench to grant permission to appeal the Primary Decision, and towards the Commission to remake the Primary Decision in accordance with law.

2    Each of the Primary Decision and the Full Bench Decision arose from claims that the applicant had been unfairly dismissed by the first respondent by way of constructive dismissal. The applicant raises a number of grounds that the decisions were affected by jurisdictional error.

3    For the reasons that follow, I do not consider that the Full Bench Decision was affected by jurisdictional error and, in the absence the applicant having established a compelling reason, it is not in the interests of the administration of justice to consider whether the Primary Decision was affected by jurisdictional error. Accordingly, the application for relief should be dismissed.

Background and procedural history

The applicant’s resignation from employment with the first respondent

4    The following background facts are set out in the Primary Decision and the Full Bench Decision.

5    The applicant is a former employee of the first respondent, a Commonwealth government agency responsible for administering intellectual property laws, including patents. The applicant had been employed as a patent examiner from about October 2012.

6    Prior to his resignation, the applicant had raised concerns about the workplace practices and decision-making processes adopted by the first respondent, and indicated to the first respondent that he would not participate in the practices and processes that he perceived to be unlawful or unreasonable until those concerns were resolved. Various attempts were made by the first respondent to address his concerns.

7    Following a meeting with senior managers on 6 February 2024, during which the applicant’s concerns were again discussed, the applicant sought by email to resign from his employment with the first respondent. The first respondent did not progress the resignation at that time; instead, it sought to confirm the applicant’s intentions and reiterated various options available to the applicant as alternatives to resignation. Subsequently, the applicant elected to rescind the resignation and commenced a period of approved leave. The applicant did not return to work at the conclusion of the leave period and, instead, decided to resign by way of constructive dismissal on 28 June 2024. Following a Commission conciliation, the first respondent’s lawyers advised the applicant that the employment relationship was to be treated as having ended.

8    On 18 June 2024, the applicant lodged a claim for compensation on the basis that he was constructively dismissed pursuant to s 386(1)(b) of the Fair Work Act 2009 (Cth) (FW Act) because the first respondent engaged in conduct, or a course of conduct, that forced him to resign. Subsection 386(1) provides:

386 Meaning of dismissed

(1)    A person has been dismissed if:

(a)    the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b)    the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

9    Before the Commission, the applicant claimed that the first respondent had refused to address his concerns; and that he had an obligation to report, and a right to refrain from participating in, serious wrongdoing, including carrying out directions that he considered to be unlawful and unreasonable. The first respondent contended that the applicant consciously resigned from his employment; there were other options available to him; and there was no evidence to indicate that any action or omission of the first respondent caused him to resign. The first respondent further contended that the evidence showed that the applicant’s resignation was not immediately accepted by the first respondent and attempts were made to resolve his concerns.

Primary Decision

10    Deputy President Dean found that the applicant had “not discharged his onus to demonstrate that he had no real, effective or meaningful option but to resign in these circumstances. As a result, [the Commission was] not satisfied that [the applicant] was dismissed within the meaning of the [FW] Act”. Accordingly, the application was dismissed: Primary Decision at [38].

11    In reaching that conclusion, the Deputy President made the following findings:

[33]    Having considered the evidence and submissions, I find that the Applicant was not dismissed within the meaning set out in s386(1) of the Act, in that he was not dismissed at the initiative of the Respondent, nor was he forced to resign because of conduct engaged in by the Respondent.

[34]    The Applicant's dissatisfaction, in the form of the Administrative Law Concerns, had been responded to by the Respondent on multiple occasions. Clearly, the Applicant held the view that the response provided was insufficient to address his concerns, however this is not sufficient to support a finding that the Applicant had no choice but to resign.

[35]    I agree with the Respondent's submissions to the effect that the Applicant had other options available to pursue any grievances or complaints, and he was aware of those options having exercised them in the past.

[36]    The Respondent did not immediately accept the Applicant's resignation, and he was given the opportunity to re-consider his decision. He was then able to rescind his resignation and take an extended period of leave. He did not return to work following his period of leave and it was some 8 days later that he returned the Respondent's property. The background set out earlier, which I accept, clearly demonstrates that the Respondent did not engage in any conduct with the intention of bringing the employment to an end or with the probable result, such that the Applicant had no real or effective choice but to resign. In fact, the opposite is true. The Respondent provided multiple opportunities to the Applicant to continue in his employment.

[37]    While it is not strictly necessary to delve into the Applicant's assertions of unlawful conduct on the part of the Respondent, I do not consider there to be any basis for such assertions given the evidence before the Commission. The evidence also made clear that the Respondent had been externally audited in 2024 as part of its Quality Management Systems and had been certified in a range of areas including examination of patents, and conduct of hearings and issues of decisions relating to patents.

Full Bench Decision

12    On 11 November 2024, the applicant lodged an appeal against the Primary Decision. An appeal from a first instance decision to a Full Bench is provided by ss 400 and 604 of the FW Act:

400 Appeal rights

(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.

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); …

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) or for an unfair deactivation or an unfair termination (see section 536MA).

13    As recorded in its decision, the Full Bench characterised the grounds of appeal in the following way (Full Bench Decision at [3]):

(1)    The Deputy President did not adopt an inquisitorial approach to the decision-making process;

(2)    The Deputy President erred in determining that the applicant bore the onus of demonstrating he was forced to resign;

(3)    The Deputy President erred in concluding that the applicant was not forced to resign given a range of conduct that the first respondent engaged in; and

(4)    The Deputy President erred in concluding that the applicant had other options available to pursue his complaints and grievances and was not forced to resign.

14    The applicant contended that it was “in the public interest for permission to appeal to be granted given the gravity and seriousness of the issues raised by [the applicant] concerning the conduct of [the first respondent]” (Full Bench Decision at [4]).

15    In its approach to the appeal, the Full Bench considered that:

(1)    “[a]n appeal cannot succeed unless the appellant can show that the original decision-maker made an error” (Full Bench Decision at [8]). Applying observations of the High Court in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at 205; [2000] HCA 47 at [21], the Full Bench considered that “an appealable error is an error in the decision-making process” (Full Bench Decision at [8], emphasis in original).

(2)    “[t]he public interest test in s 400 requires more than just showing that an appealable error was made: permission can only be granted if the Full Bench is satisfied that it is in the public interest to do so” (Full Bench Decision at [9]). Relying on GlaxoSmithKline Australia Pty Ltd v Makin (2010) 197 IR 266; [2010] FWAFB 5343 at [27], the Full Bench outlined that “[i]t might be in the public interest to grant permission to appeal if the matter raises important issues that have general application, or if there is a diversity of decisions at first instance so that guidance from a Full Bench is required, or if the decision at first instance reveals an injustice, or if the result is counter intuitive, or if the legal principles applied appear disharmonious when compared with decisions dealing with similar matters” (Full Bench Decision at [9]).

(3)    “[t]he public interest test in s 400 is a stringent one and the Full Bench must apply a broad value judgment on whether it is in the public interest to grant permission to appeal” (Full Bench Decision at [9]), citing Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; [2011] FCAFC 54 at [43]–[44].

16    The Full Bench reached the following conclusions in relation to the applicant’s grounds of appeal.

17    First, it was not arguable that the Deputy President erred by not conducting an inquisitorial proceeding. The Full Bench referred to the decision of a Full Bench in Komeyui Management Pty Ltd v Goonewardena [2024] FWCFB 425 at [35]–[36] in support of the proposition that unfair dismissal proceedings are adversarial, not inquisitorial (Full Bench Decision at [10]).

18    Secondly, that, in referring to the “onus to demonstrate” certain matters, it was clear that the Deputy President “was referring to the evidentiary burden carried by [the applicant] to provide sufficient evidence upon which the Deputy President could have been ‘satisfied’ that he was dismissed” (Full Bench Decision at [13]). It was for the applicant to persuade the Deputy President that he did not resign voluntarily and that the first respondent forced his resignation (Full Bench Decision at [14]).

19    Thirdly, the Full Bench considered that the Deputy President had explained her findings that (a) the first respondent did not intend to end the employment relationship and (b) the applicant’s resignation was not the probable result of the first respondent’s conduct (Full Bench Decision at [14]).

20    Fourthly, “[t]he Deputy President’s finding that [the applicant] had other options available rather than resigning was clearly open on the evidence” (Full Bench Decision at [16]). The Full Bench continued (at [16]):

[The applicant’s] appeal submissions specifically refer to him pursuing complaints in two separate forums. Both types of complaint could have been pursued while [the applicant] remained employed. [The first respondent] took several steps to try and maintain the employment relationship after [the applicant] initially resigned in writing on 6 February 2024. [The first respondent] allowed [the applicant] to rescind his resignation and then to take an extended period of leave. It appears [the applicant] then subjectively formed the view that his employment relationship with [the first respondent] had to end. [The applicant’s] subjective view does not establish [the first respondent’s] objective intention was to end the employment relationship. [The applicant’s] subjective view also does not establish resignation was the probable result of [the first respondent’s] conduct based on an objective assessment.

21    Fifthly, “[t]he Deputy President correctly identified and applied the legal tests concerning constructive dismissal in the [Primary] Decision”. Further, the Full Bench considered that the applicant’s appeal was “essentially a request for a Full Bench to decide that he was forced to resign based on the same arguments he made before the [Deputy President]”. Accordingly, it was “not appropriate for permission to appeal to be granted for that purpose” (Full Bench Decision at [17]).

22    Sixthly, considerations going to public interest did not militate in favour of permission being granted (Full Bench Decision at [18]–[19]):

For the purposes of s 400(1) of the FW Act, we do not consider that:

(a)    there is a diversity of decisions at first instance so that guidance from an appellate body is required of this kind;

(b)    the appeal raises issues of importance and/or general application;

(c)    the decision at first instance manifests an injustice, or the result is counter intuitive; or

(d)    the legal principles applied by the [Deputy President] were disharmonious when compared with other decisions dealing with similar matters.

23    Ultimately, the Full Bench concluded that the applicant had “not identified an arguable case of error” in the Primary Decision, and did “not consider that it would be in the public interest to grant permission to appeal”. Therefore, s 400(1) required “that permission to appeal not be granted” (Full Bench Decision at [19]).

The concise statement

24    The applicant’s concise statement set out the alleged errors in the Primary Decision and Full Bench Decision. To summarise, the applicant alleged that:

(1)    The constructive dismissal tests in s 386(1)(b) of the FW Act were applied incorrectly by the Deputy President and the Full Bench.

(2)    The Deputy President made unjustified factual findings in applying those tests.

(3)    The impugned decisions were based on irrelevant information, including second hand hearsay and information from persons who are not accountable for the first respondent’s practices and processes or the conduct the subject of complaint.

(4)    The decisions deprived the applicant of procedural fairness by not adopting an unbiased impartial inquisitorial decision-making process.

(5)    The decisions failed to have regard to relevant information, provided by the applicant, that allegedly showed misconduct, systemic corruption and other defects in the practices and processes adopted by the first respondent for decision-making; the first respondent’s refusal to address those defects; their adverse effects; and what might be reasonably expected of an employee in response.

(6)    The Full Bench Decision was unlawful or unreasonable because the Full Bench took the view that the applicant had raised the same arguments before it as were raised before the Deputy President.

(7)    The public interest test in s 400(1) was satisfied because, amongst other wide-ranging claims, the Deputy President made errors in law and fact; the Deputy President’s application of the tests in s 386(1)(b) would allow the Commission to avoid its duty to take account of relevant information; and there were matters of serious misconduct which gave rise to issues of general application.

25    The concise statement was, at times, discursive. That is not intended to be a criticism of the applicant, who was a litigant-in-person. However, it presented challenges for identifying the grounds of review with precision. In his written submissions, the alleged errors were organised and described with greater clarity. I will return to those grounds below.

The court’s approach to the commission’s decisions

26    The applicant has sought to review both the decision of the Full Bench and that of the Deputy President. While the Court has jurisdiction to issue relief against the Deputy President, “relief by way of orders reflecting the constitutional writs and ancillary relief is discretionary”: Dafallah v Fair Work Commission (2014) 225 FCR 559; [2014] FCA 328 at [51] (Mortimer J, as her Honour then was, citing Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57 at [52]). Where relief is sought against both the Full Bench and the first instance decision, it has been accepted that (Dafallah at [56]):

as a matter of discretion …, orders made in exercise of the Court’s jurisdiction under s 39B of the Judiciary Act … should not issue against a first-instance decision of the Commission, where leave to appeal had been sought and refused after full argument, and the refusal of leave is not affected by jurisdictional error, unless there are compelling reasons to permit an applicant in effect to circumvent the statutory appeal provisions and the limits Parliament has imposed by them.

27    As is evident from the above passage, that approach is to be applied even though the decision of the Deputy President remains conclusive and operative in circumstances where leave to appeal by the Full Bench has been refused. That is the case because (Dafallah at [54]):

it is not in the interests of the administration of justice for this Court on judicial review to reach conclusions effectively contrary to the decision-making of the Full Bench in its appellate jurisdiction under the FW Act, by calling up and quashing the decision of a Commissioner, unless it has also formed the view that the decision of the Full Bench is itself affected by jurisdictional error.

28    Mortimer J’s observations were endorsed by a Full Court in D&D Traffic Management Pty Ltd v Australian Workers’ Union (2022) 178 ALD 164; [2022] FCAFC 113 at [75] (Katzmann, Thawley and Goodman JJ). (For the proposition that a Full Bench’s appeal decision is not “conclusive and operative” when it refuses leave to appeal from a first instance decision, see Broadspectrum (Australia) Pty Ltd v United Voice (2018) 265 FCR 134; [2018] FCAFC 139 at [41] (Bromberg, Mortimer and Lee JJ).)

29    In Hancock v DP World Pty Ltd [2024] FCA 116, Meagher J summarised the effect of the decision in Dafallah in the following way (at [45]):

It is clear that Dafallah does not operate so as to prevent the Court from issuing relief against a primary decision where the Full Bench refuses permission to appeal. Rather, it is concerned with the discretionary nature of providing relief, including preventing circumnavigation of the statutory appeals process. Dafallah does not impose a decision rule, but rather is about the exercise of the discretion to refuse relief in the circumstances of that case. … Her Honour’s point in Dafallah is that statutory appeal mechanisms ought not be ignored as doing so has a detrimental effect on the administration of justice.

30    As was the case in Dafallah, in Hancock a Full Bench of the Fair Work Commission had refused leave to appeal from the first instance decision. Meagher J considered that relief should not be issued under s 39B of the Judiciary Act in relation to the first instance decision unless the Full Bench’s decision was “affected by jurisdictional error, or there were compelling reasons to effectively ignore” the decision of the Full Bench (at [47]). That was despite the Court’s acceptance that the first instance decision was considered to be “conclusive and operative” (at [47]). In neither Dafallah (at [56]) nor Hancock (at [61]) did the Court consider that it was appropriate to overlook the Full Bench’s decision and separately consider whether the first instance decision was affected by jurisdictional error.

31    The initial submissions of the parties proceeded on the assumption that the Court would consider the application for relief against both the Deputy President and the Full Bench. At the hearing, I invited the parties to file further submissions on the application of Dafallah and Hancock.

32    The first respondent submitted that, in accordance with Dafallah:

(1)    relief sought by the applicant should not be granted in respect of the Primary Decision in circumstances where leave to appeal was not granted in the Full Bench Decision, a full argument of the matter was undertaken before the Full Bench, and the refusal of leave by the Full Bench was not affected by jurisdictional error; and

(2)    granting relief in respect of the Primary Decision, without identifying jurisdictional error in the Full Bench Decision, would be contrary to the interests of the administration of justice, on the basis that such a finding would be “contrary to the decision-making of the Full Bench in its appellate jurisdiction” under the FW Act.

33    In further written submissions, the applicant accepted the position that the Court should begin with an examination of the decision of the Full Bench and that relief should be granted only if the Court finds jurisdictional error in the Full Bench Decision. However, he further argued that jurisdictional error could arise by virtue of the Full Bench having failed to realise that the Primary Decision was affected by jurisdictional error. The applicant’s argument had the following features:

(1)    Whether there was jurisdictional error on the part of the Full Bench calls for a determination of whether there was a “breach of an express or implied condition of a statutory conferral of decision-making authority” (relying on LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12 at [2]).

(2)    “Jurisdictional error can result from breach by a third party of a condition of a statutory process preceding a decision”: LPDT at [3].

(3)    The Full Bench had a duty to consider whether or not the Primary Decision was affected by jurisdictional error as an implied condition under s 400(1).

(4)    “[I]t would seemingly be rare for there to be no finding of an appealable error but a finding that it is in the public interest to grant permission to appeal” (relying on Hancock at [57], citing GlaxoSmithKline at [27]).

(5)    “Consequently, the Court in its supervisory role has to check if the Full Bench had exercised their duty according to law, which would include, amongst other things, checking if the Full Bench realized that the primary decision is affected by jurisdictional error.”

34    As I understand the argument, the applicant contended that this Court should consider whether jurisdictional error arose on the part of the Deputy President, because it was an express or implied condition of the making of the Full Bench Decision under s 400(1) that the Deputy President did not fall into jurisdictional error. On that approach, this Court would be required to consider whether the Deputy President fell into jurisdictional error in making the Primary Decision.

35    This argument should not be accepted. It may be accepted, as the applicant submitted, that jurisdictional error might arise from a breach by a third party of a statutory condition preceding a decision. However, the statutory scheme in the FW Act authorises the Full Bench to review first instance decisions for legal error. While the first instance decision is the temporal precondition that enlivens the appellate jurisdiction of the Full Bench, the Full Bench exercises a review jurisdiction that is distinct and independent from the first instance decision-maker’s jurisdiction. The first instance decision-maker is not a third party, in the relevant sense, to the Full Bench’s decision. The Full Bench’s jurisdiction must be determined from the ambit of its distinct and independent statutory authority. There is no analogy to a case where an error by a third party vitiates the decision of the decision-maker.

36    The cases referred to in LPDT in the passage (at [3]) relied on by the applicant do not support his submission. In Wei v Minister for Immigration and Border Protection (2015) 257 CLR 22; [2015] HCA 51, a delegate of the Minister cancelled a student visa on the basis that the student had not been enrolled in a registered tertiary institution. However, in breach of a statutory requirement to do so, the student’s university had simply not uploaded the student’s enrolment into the relevant government database. In addressing the question of whether there was jurisdictional error on the part of the delegate, Gageler and Keane JJ (a majority of the Full Court), said that “[t]here is no reason in principle why jurisdictional error should be confined to error or fault on the part of the decision-maker” (at [23]). It was held that the statutory duty on a tertiary institution to upload information was “an imperative duty, in the sense that material non-compliance with the requirement will result in an invalid exercise of the power to cancel a visa” (at [32]). The state of mind of the delegate when making the decision had to “be untainted by a material breach of any other express or implied condition of the valid exercise of that decision-making power” (at [33]). Consequently, there was jurisdictional error.

37    Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 concerned legislation that regulated the provision of information by the Minister to the Administrative Appeals Tribunal for the purpose of the Tribunal’s review of a visa refusal or cancellation decision. Subsection 438(2) of the Migration Act 1958 (Cth) provided that, if the Minister gave information of a particular kind to the Tribunal (ie, information identified in s 438(1)), then the Minister was to give the Tribunal written notice to that effect and, further, could give the Tribunal written advice about the significance of the information. The Tribunal was given a discretion under s 438(3) to have regard to any of the information provided and, further, a discretion whether to disclose any information to the applicant. Bell, Gageler and Keane JJ considered that, if information did not fall within the kind identified in s 438(1), then the section had no application to the information. There was no authority for a notification to be given under s 438(2) and the Tribunal had no authority to exercise the discretions in s 438(3). Their Honours concluded that, subject to the requirement for materiality, the provision of an incorrect notification under s 438(2) “amount[ed], without more, to an unauthorised act in breach of a limitation within the statutory procedures which condition the performance of the overarching duty of the Tribunal to conduct a review” (at [44]).

38    Neither Wei nor SZMTA is an apt analogy to support the position taken by the applicant in this proceeding that, in reviewing the decision of the Full Bench, this Court should consider whether there has been jurisdictional error by the Deputy President or whether the Full Bench appreciated that the Primary Decision was affected by jurisdictional error. In Wei and SZMTA, the relevant statutory duty or power was characterised as a condition to the exercise of the decision-maker’s jurisdiction. For the reasons set out above at [35], that is not this case. Any alternative view that permits this Court, through a review of the Full Bench Decision, to review a first instance decision for jurisdictional error, would frustrate the legislative scheme for the review of the first instance decision. As Mortimer J said in Dafallah, “[i]t is not the case that an applicant, having unsuccessfully applied for permission to appeal, can proceed in this Court as if s 604 does not exist” (at [54]).

39    Accordingly, the approach to be applied in this review proceeding is to “begin with an examination of the decision of the Full Bench” (Dafallah at [54]). It is not appropriate to engage in “a fresh and detailed consideration” of the Primary Decision “unless and until it appears that [the Full Bench’s] decision is affected by jurisdictional error” (Dafallah at [54]), or unless a compelling reason otherwise exists.

Was the Full Bench’s decision affected by jurisdictional error?

Legal principles

40    In addressing the question of whether the Full Bench Decision was affected by jurisdictional error, it is important to appreciate seven points of principle about the Full Bench’s jurisdiction and the conditions upon its exercise.

41    First, s 400 of the FW Act operates to condition the power of the Full Bench to give leave under s 604(1): Dafallah at [28]; Gregory v Qantas (2016) 241 FCR 72; [2016] FCAFC 7 at [44]–[45] (Buchanan J, with Bromberg J (at [82]) and Rangiah J (at [88]) agreeing). Accordingly, the focus of the analysis of whether there is jurisdictional error must be on the condition to be established under s 400(1) for permission to appeal to be given. That is, the Full Bench must not grant permission unless it “considers that it is in the public interest to do so”.

42    Secondly, as Buchanan J said in Lawler at [34] and [43] (Marshall J (at [1]) and Cowdroy J (at [2]) agreeing), the public interest test is a “stringent” one.

43    Thirdly, the assessment of whether the “public interest” condition has been satisfied “involves a broad evaluative judgment”: Trustee for the MTGI Trust v Johnston [2016] FCAFC 140 at [78] (Siopis, Collier and Katzmann JJ); Lawler at [44]; Gregory at [53]. As Buchanan J said in Gregory (at [55]):

assessment of what is in the public interest, so far as it concerns matters coming before the FWC, and the assessment of when the public interest requires a grant of permission to appeal in an unfair dismissal case, is primarily a matter for the Full Bench, unless it pays regard to some matter extraneous to its task or to that evaluation, or fails to pay attention to relevant matters or misunderstands the nature of the examination required.

44    Fourthly, as the Full Court said in MTGI Trust, “an application for permission to appeal is not a de facto or preliminary hearing of the appeal. In determining whether permission to appeal should be granted, it is unnecessary and inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal” (at [82]) (see also Hancock at [52]; Waters v Commonwealth (Australian Taxation Office) [2015] FCAFC 46 at [9]–[10] (Flick J)).

45    Fifthly, in exercising its appellate jurisdiction, the Full Bench conducts its appeal by way of rehearing: Helensburgh Coal Pty Ltd v Bartley (2025) 99 ALJR 1185; [2025] HCA 29 at [53] (Gageler CJ, Gordon and Beech-Jones JJ); Coal and Allied Operations at [14], [17] (Gleeson CJ, Gaudron and Hayne JJ). It does not engage in a de novo review: Coal and Allied Operations at [75] (Kirby J); Dafallah J at [30]; Linfox Australia Pty Ltd v Fair Work Commission (2013) 240 IR 178; [2013] FCAFC 157 at [14] (Dowsett, Flick and Griffiths JJ). Its “function or ‘role’ on appeal [is] to determine whether there was an error on the part of” the primary decision-maker: Helensburgh Coal at [53]; see also Coal and Allied Operations at [14], [17].

46    In determining whether the Full Bench has fallen into jurisdictional error when exercising its power under s 400(1) to grant permission to appeal, the scope of the Full Bench’s review jurisdiction must be kept in mind.

47    Sixthly, as Gageler CJ, Gordon and Beech-Jones JJ said in Helensburgh Coal at [52], jurisdictional error would only arise if the Full Bench, when exercising its review jurisdiction, “had misconceived its role, misunderstood the nature of its jurisdiction, misconceived its duty, failed to apply itself to the question required of it, or misunderstood the nature of the opinion which it was required to form” (citing Coal and Allied Operations at [31]).

48    Identifying the wrong error, or an identification of error in the wrong way, would not be a jurisdictional error on the part of the Full Bench; it would be an error within jurisdiction: Helensburgh Coal at [55]. Furthermore, if a Full Bench is incorrect in its conclusion that there was or was not an error by the primary decision-maker, that is an error made within jurisdiction (Coal and Allied Operations (at [32]), at least in the absence of legal unreasonableness on the part of the Full Bench: see Helensburgh Coal v Bartley (2024) 302 FCR 589; [2024] FCAFC 45 at [73] (Katzmann and Snaden JJ).

49    Similar principles apply to the review of an exercise of power under s 400(1) to grant permission to appeal. As a Full Court said in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2016) 247 FCR 138; [2016] FCAFC 169 at [48]:

The question of the public interest is a broad consideration. Unless it can be shown that the Full Bench in the exercise of its power to grant permission to appeal misunderstood the nature of its jurisdiction, or somehow misconceived its duty, then, in accordance with the principles of jurisdictional error established in such cases as Coal and Allied Operations Pty Ltd … and [R v Marks; Ex parte Australian Building Construction Employees and Builders Labourers’ Federation (1981) 147 CLR 471], any error made in relation to a permission decision will be considered an error within jurisdiction. See also Teys Australia Beenleigh Pty Ltd v Australasian Meat Industry Employees’ Union (2015) 234 FCR 405 at [58]–[69].

50    Similarly, in Lawler, Buchanan J said (at [43]):

Provided the Full Bench did not misunderstand its powers and functions in some respect relevant to the present matter, the evaluation of the matters relevant to whether permission to appeal should be given was an issue committed to the Full Bench by the Act. It is not a matter for this Court, whose role in a case such as the present is limited to examining whether jurisdictional error was committed.

51    See also Mwango v Fair Work Commission [2019] FCA 1274 at [43] (Thawley J).

52    Seventhly, given that a Full Bench’s jurisdiction on appeal is to review for appealable error, whether there is an arguable case for appealable error is an important (if not essential) ingredient in considering the public interest test in s 400(1): see Hancock at [57].

Jurisdictional error by the Full Bench?

Applicant’s submissions prior to and at the hearing

53    The applicant’s grounds evolved over the course of his written submissions. In his initial written submissions, the applicant contended that the duty of the Full Bench under s 604 of the FW Act included deciding whether to grant or refuse permission to appeal based on preconditions which included:

(1)    Whether or not the Primary Decision was affected by jurisdictional error (described as precondition 1);

(2)    Whether or not s 400(1) was satisfied (described as precondition 2); and

(3)    “[W]hether or not s 400(2) preclude[d] permission” (described as precondition 3).

54    The applicant further submitted that:

(1)    In relation to precondition 1, the Primary Decision was affected by jurisdictional error.

(2)    In relation to precondition 2, s 400(1) was satisfied.

(3)    In relation to precondition 3, s 400(2) did not preclude permission.

55    The applicant then developed five grounds of review. Grounds 1–4 were directed to precondition 1 (ie, to the Primary Decision), with Ground 5 being the only ground directed to precondition 2 (ie, the Full Bench Decision).

56    The application of s 400(2) does not arise in this proceeding. As the applicant accepted in oral submissions, no decision was made by the Full Bench pursuant to that provision. Accordingly, it is not necessary to further consider s 400(2), or precondition 3.

57    In his reply submissions and at the hearing, the applicant sought to further develop the grounds in the following way:

(1)    Ground 0 [sic]: there was a realistic possibility that the s 604(1) decision could be affected by jurisdictional error involving a constructive failure to exercise jurisdiction by making the decision under s 604 in breach of the preconditions with which the decision-maker is to engage before purporting to exercise the power. In hearing notes handed up by the applicant at the hearing, the preconditions were described in different, but substantially the same, terms as those set out in the applicant’s written submissions (see [62] below). Ground 0 was later abandoned in further submissions (as to which see below at [76]).

(2)    Grounds 1 and 3: there was a realistic possibility that the s 386(1)(b) decision could be affected by jurisdictional error involving asking an incorrect question.

(3)    Ground 2.1: there was a realistic possibility that the s 386(1)(b) decision could be affected by jurisdictional error involving taking into account irrelevant information and ignoring relevant information.

(4)    Ground 2.2: there was a realistic possibility that the s 386(1)(b) decision could be affected by jurisdictional error involving legal unreasonableness in giving disproportionately more weight to remote hearsay evidence.

(5)    Ground 4: there was a realistic possibility that the s 386(1)(b) decision could be affected by jurisdictional error involving not affording natural justice to the applicant.

(6)    Ground 5: there was a realistic possibility that the s 400(1) decision could be affected by jurisdictional error.

(7)    Ground 6: there was a realistic possibility that the s 400(1) decision could be affected by jurisdictional error involving a breach of natural justice.

(8)    Ground 7: if Ground 2.2 were to apply, then s 400(2) might become relevant, in which case jurisdictional error of fact qualifies as a “significant error of fact”. (As indicated, the application of s 400(2) does not arise in this proceeding. Accordingly, Ground 7 does not arise for consideration.)

58    It was accepted by the applicant during the hearing that the references to “a realistic possibility” were an imprecise attempt to accommodate the materiality requirement for jurisdictional error arising from the High Court’s decision in LPDT. That imprecision is of no consequence to the way in which the issues will be resolved in these reasons. In oral submissions, the applicant also reversed the order of Grounds 2.1 and 2.2 but, again, that is of no consequence.

Grounds 1–4

59    It is reasonably clear that Grounds 1–4 were directed to the Primary Decision. In the absence of jurisdictional error in the Full Bench Decision or other compelling reason, it is not in the interests of the administration of justice to consider those grounds.

Ground 5

60    In initial written submissions, Ground 5 was framed by reference to preconditions 1 and 2 described at [53] above. The applicant described Ground 5 as having the following features:

(1)    the alleged jurisdictional error involved “a derivative jurisdictional error by relying on the jurisdictional errors effecting [sic] [p]recondition 1”;

(2)    had jurisdictional errors been identified in the Primary Decision on the application of s 386(1)(b) of the FW Act, “then it is in the public interest, under s 400(1) of the FW Act, to grant permission to appeal in light of the relevant materials”; and

(3)    “it is in the public interest to fix jurisdictional errors and unclear application of principles”.

61    In his written reply, the applicant described Ground 5 as involving constructive failure to exercise jurisdiction by making the decision under s 400(1) of the FW Act in breach of the preconditions.

62    In the hearing notes, preconditions 1 and 2 were reframed in the following way:

(1)    Precondition 1: there was a realistic possibility that the s 386(1)(b) decision could be affected by jurisdictional error.

(2)    Precondition 2: there was a realistic possibility that the s 400(1) decision could be affected by jurisdictional error.

63    While the argument became somewhat circular and obscure, the upshot appeared to be (ignoring the references to “a realistic possibility”) that Ground 5 alleged constructive failures in the exercise of the s 400(1) power by the Full Bench because of (a) its reliance on jurisdictional error by the Deputy President, on the basis of Grounds 1–4, in the application of s 386(1)(b), and/or (b) jurisdictional error in the first instance decision being necessary and sufficient to satisfy the public interest test in s 400(1).

64    To the extent that, through Ground 5, the applicant seeks, by sidewind, to review the Primary Decision, it is not in the interests of the administration of justice to permit that review in the absence of the applicant establishing jurisdictional error or other compelling reason. As explained earlier in these reasons, jurisdictional error by the Deputy President does not vitiate the distinct and independent decision by the Full Bench not to give permission under s 400(1).

65    To the extent that, by Ground 5, the applicant submits that the Full Bench fell into jurisdictional error in its application of the public interest test because it should have found that the Primary Decision was affected by jurisdictional error, that submission should be rejected. In exercising its power under s 400(1) (or, indeed, its review jurisdiction under s 604), a Full Bench does not have a roving commission to consider whether there is an appealable error in a first instance decision. Its role is to consider arguments by the applicant for why permission to appeal should be granted in the public interest. In doing so, it considers any grounds upon which an applicant contends for appealable error. Any error made by the Full Bench in determining whether there was an arguable case for appealable error is properly characterised as an error within jurisdiction.

66    Contrary to what the applicant suggested in oral submissions, it is not the case that the Full Bench can be treated as having committed jurisdictional error if it is found by this Court to have incorrectly rejected the applicant’s contentions for an arguable case. Such errors by the Full Bench are not jurisdictional errors.

67    In this case, in deciding to refuse permission to appeal under s 400(1), the Full Bench considered, and rejected, submissions that the applicant had arguable grounds of appeal. If the Full Bench erred in that determination, it was an error made within its jurisdiction.

68    Accordingly, the applicant has not, by Ground 5, established jurisdictional error.

Ground 6

69    Ground 6, newly introduced in the written reply, involved a claim that there was jurisdictional error by the Full Bench in not affording natural justice to the applicant. The first respondent opposed leave being granted to raise this new ground.

70    The foundation for this ground was not entirely clear. There appear to be three possible bases in the applicant’s submissions. First, in his reply submissions, the applicant argued that:

Similar as the primary decision maker, the full bench did not engage with the Applicant’s submissions about the employer’s conduct, and as such was biased (actual/apprehended) to the primary decision maker’s beliefs, states of mind, and opinion.

71    To the extent that proposed Ground 6 contends that the Full Bench erred in its conclusions on whether the applicant had an arguable case for error by the Deputy President, those are errors within the Full Court’s jurisdiction. Alternatively, to the extent that proposed Ground 6 contends that the Full Bench erred by failing to reconsider the application of s 386(1)(b), then the ground misunderstands the Full Bench’s function when considering an application under s 400(1). It is a rehearing to determine whether there is appealable error; it is not a de novo review.

72    Secondly, in his further written submissions addressing the question of whether the Court should consider a challenge to the Primary Decision, the applicant submitted that the Full Bench failed to sufficiently engage with the applicant’s submissions to make a determination about error in the Primary Decision. In support of that submission, it was contended that the Full Bench:

(1)    was silent about the decision in LPDT;

(2)    was expecting new arguments or information about points raised before the primary decision-maker, which is not needed, as determining jurisdictional error is wholly backward looking;

(3)    believed it was not strictly necessary to determine what was lawful, reasonable, fair, safe and efficient;

(4)    adopted blind beliefs supported by remote hearsay about uncorroborated opinions that the employer’s conduct was lawful, reasonable, fair, safe and efficient and the applicant’s failure to cross-examine the first respondent about the justification of its conduct; and

(5)    proceeded on an assumption that the Primary Decision was free from jurisdictional error, and accordingly on an invalid foundation, exceeding the power conferred by s 400(1).

73    There is no foundation for these claims:

(1)    The Full Bench correctly understood the question to be addressed and the role it would perform on appeal.

(2)    A reference to LPDT was not pertinent to its enquiry.

(3)    The task for the Full Bench in determining whether permission should be granted was different to that undertaken by the Deputy President. In undertaking that task, the Full Bench does not undertake a detailed consideration of the grounds of review.

(4)    While the Full Bench was entitled to consider whether there was an arguable case for error, any errors made by the Full Bench in making that assessment would be within jurisdiction.

(5)    The Full Bench did not undertake its task under s 400(1) on the assumption that the Primary Decision was free from jurisdictional error. Conversely, as part of that exercise, it considered whether the applicant had established an arguable case of error.

74    Thirdly, in his hearing notes, the applicant appeared to replicate the natural justice challenge advanced in relation to the Primary Decision; that is, that the Full Bench adopted the position of an adversarial neutral adjudicator. How that argument was intended to apply to the Full Bench’s decision-making is not developed and, accordingly, the applicant has failed to establish this argument.

75    In conclusion, even if I were to give leave for the applicant to rely on Ground 6, I would not accept that the Full Bench fell into jurisdictional error because of a breach of natural justice.

Further submissions

76    In his further submissions addressing the question of whether the Court should consider a challenge to the Primary Decision, the applicant submitted that:

(1)    Ground 0 was not strictly necessary;

(2)    Ground 5 was the “‘main ground’, conditioned upon Grounds 1 to 4, which could equally well be treated as particulars to Ground 5”;

(3)    Ground 6 was to be retained; and

(4)    Ground 7 was merely “anticipatory” (as indicated earlier in these reasons, Ground 7 does not arise and is not further considered).

77    The applicant further submitted that Ground 5 might be better worded as:

The s 400(1) decision is affected by jurisdictional error because in applying s 400(1) the Full Bench reached a mistaken conclusion that it is not in the public interest to grant permission based on making an erroneous finding that the primary decision was itself not affected by jurisdictional errors. Whether or not the primary decision is affected by jurisdictional error is an implied condition of s 400(1), and the Full Bench failed to realize that the s 386(1)(b) decision is affected by jurisdictional errors.

78    The applicant then sought to reconfigure Grounds 1–4 (which were directed to the Primary Decision), as grounds that can indirectly apply to the Full Bench Decision.

79    This reconfiguration of Ground 5 takes the applicant no further in establishing jurisdictional error by the Full Bench. First, as explained earlier in these reasons, a jurisdictional error in the first instance decision is not a condition of the Full Bench’s power in s 400(1) such that jurisdictional error by the primary decision-maker would vitiate a Full Bench’s decision under s 400(1) not to give permission to appeal. Secondly, the Full Bench’s determination, on an application for permission to appeal under s 400(1), that the applicant does not have arguable grounds of review, is a matter within its jurisdiction. If it were incorrect in making that determination, such an error would be one within jurisdiction.

80    Consequently, the applicant’s attempts to reconfigure Grounds 1–5 do not lead to a more favourable outcome.

No jurisdictional error has been established

81    The applicant has failed to establish jurisdictional error on the part of the Full Bench and, indeed, none is apparent from the Full Bench Decision.

(1)    The Full Bench correctly identified that an appeal cannot succeed unless the applicant establishes that the original decision-maker made an error (Full Bench Decision at [8]).

(2)    The Full Bench referred to Coal and Allied Operations in identifying the latitude permitted to the Deputy President as that applied to judicial discretions in House v The King (1936) 55 CLR 499 (Full Bench Decision at [8]). While the Court in Helensburgh Coal left open the question of whether the appropriate standard of review is the rule in House v King or the correctness standard, it is clear that the application of an incorrect standard of review is an error within jurisdiction: Helensburgh Coal at [51], [55], [91], [141].

(3)    The Full Bench addressed the correct question of whether permission should be given under s 400. In identifying matters of public interest at [9] and [18], and reaching its conclusion at [19] that the public interest condition was not satisfied, the Full Bench did not pay regard to matters extraneous to its task, or fail to pay attention to relevant matters or misunderstand the nature of the examination required: Gregory at [55]. It did not misconceive or misunderstand its role or jurisdiction; nor did it misunderstand the nature of the opinion it was to form: MTGI Trust at [121]–[122]; Helensburgh Coal at [52]. Its assessment was within the broad evaluative discretion that is conferred on it by s 400.

(4)    The Full Bench addressed what it characterised as grounds of review put before it by the applicant. It determined that the applicant had not established an arguable case for error in the ways identified above at [13]. There is no complaint by the applicant that the Full Bench misunderstood the proposed grounds of appeal or addressed the wrong grounds: see Hancock at [58]. As indicated earlier in these reasons, to the extent that the applicant claims that the Full Bench reached the wrong conclusions, any such errors would not have been jurisdictional in character: they would have been errors within jurisdiction.

(5)    The Full Bench considered that other discretionary factors going to the giving of permission under s 400(1) were not satisfied (Full Bench Decision at [18]) and concluded that, since the applicant had not identified an arguable case of error, it was not in the public interest to grant permission to appeal under s 400(1) (Full Bench Decision at [19]). It was within the Full Bench’s discretion to make that determination and, accordingly, no jurisdictional error arises.

(6)    In oral submissions, the applicant argued, in particular, that it was in the public interest to grant permission because the jurisdictional error made by the Deputy President manifested an injustice. That argument was put to the Full Bench but evidently rejected. I accept that the applicant genuinely considers that he has suffered injustice because of the circumstances leading to the cessation of his employment with the first respondent and the rejection of his claim by the Deputy President. Those feelings are no doubt very real and distressing. However, the premise of the manifested injustice argument fails. As the first respondent contended in oral submissions, the Full Bench did not accept that there was an arguable case for appealable error and, as already explained in these reasons, any error in that conclusion would have been an error within jurisdiction.

(7)    The applicant and the first respondent consented to the application being heard on the papers and the Full Bench was satisfied that it was appropriate to determine that question without holding a hearing (Full Bench Decision at [5]). Subsection 607(1) permits the Full Bench to conduct an appeal in such a way.

82    In conclusion, the Full Bench approached its task consistently with authority. The applicant has not established that, in exercising that function, the Full Bench fell into jurisdictional error. In those circumstances, I accept the first respondent’s submission that this Court has no authority “to second-guess the Full Bench’s state of satisfaction that it was not in the public interest to grant [the applicant] permission to appeal”: Barkhazen v Conair Australia Pty Ltd [2017] FCA 1585 at [30] (Bromwich J).

Is there a compelling reason to consider the Deputy President’s decision?

83    No additional considerations were identified by the applicant that might constitute a compelling reason to review the Primary Decision. Accordingly, I am not persuaded that I should do so.

Conclusions

84    I have concluded that the Full Bench’s decision was not affected by jurisdictional error. Consistently with authority, it is not in the interests of the administration of justice to address the question of whether the Primary Decision was affected by jurisdictional error. I have also concluded that there is no compelling reason to depart from that position.

85    Accordingly, the applicant’s application for relief must be dismissed.

86    The first respondent sought an order for costs. Section 570(1) of the FW Act limits the award of costs to certain circumstances. Orders will be made for the parties to address the question of whether a costs order should be made against the applicant.

Associate:

Dated:    3 March 2026