Stannard, in the matter of an application for a Writ of Mandamus and a Writ of Certiorari against Honourable Vice President McIntyre [2004] FCAFC 310

Stannard, in the matter of an application for a Writ of Mandamus and a Writ of Certiorari against Honourable Vice President McIntyre [2004] FCAFC 310

The majority (Madgwick and Finkelstein JJ) held that the applicant's prior application for judicial review under the ADJR Act was not a proceeding for a 'remedy in respect of that termination' for the purposes of s 170HB, as it challenged the administrative lawfulness of the dismissal rather than seeking a statutory unfair dismissal remedy; thus, s 170HB did not bar the applicant's subsequent unfair dismissal claim before the Commission. Dowsett J dissented, holding that any proceeding challenging the validity of the termination was 'in respect of' that termination and that s 170HB barred the later claim.

Parties
Prosecutor/applicant: Jeffrey Raymond Keith Stannard; First Respondent: The Honourable Vice President McIntyre, The Honourable Senior Deputy President Harrison, and Commissioner Lawson, Members of the Australian Industrial Relations Commission; Second Respondent: Commonwealth of Australia
Jurisdiction
Australia
Judgment Date
25 November 2004
Procedural Posture
Application for a Writ of Mandamus and Certiorari (judicial Review / Statutory Order) / On Remittal From the High Court to the Federal Court of Australia; Final Judgment
Outcome
Majority (Madgwick and Finkelstein JJ): Application granted; Dowsett J dissenting: Application dismissed.
Legal Topics
Jurisdiction of the Australian Industrial Relations Commission, Unfair Dismissal Claims, Judicial Review of Administrative Action, Doctrine of Void/voidable Administrative Action, Statutory Construction—workplace Relations Act 1996 (cth) S 170 HB, Res Judicata and Overlapping Remedies in Employment Termination
Industrial Law Administrative Law Employment Law Jurisdiction of the Australian Industrial Relations Commission Unfair Dismissal Claims Judicial Review of Administrative Action Doctrine of Void/voidable Administrative Action Statutory Construction—workplace Relations Act 1996 (cth) S 170 HB +1 more

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Parties

Jeffrey Raymond Keith Stannard

Prosecutor/applicant

The Honourable Vice President McIntyre, The Honourable Senior Deputy President Harrison, and Commissioner Lawson, Members of the Australian Industrial Relations Commission

First Respondent

Commonwealth of Australia

Second Respondent

Procedural Posture

Application for a Writ of Mandamus and Certiorari (judicial Review / Statutory Order) / On Remittal From the High Court to the Federal Court of Australia; Final Judgment

Legal Issues

  1. 1 Whether the applicant's earlier unsuccessful judicial review application barred a subsequent application to the Industrial Relations Commission for relief against termination on grounds of harshness etc under s 170CE, by operation of s 170HB of the Workplace Relations Act 1996 (Cth).
  2. 2 Whether the initial application under the Administrative Decisions (Judicial Review) Act 1977 (Cth) was a proceeding 'for a remedy in respect of that termination' for the purposes of s 170HB.
  3. 3 Construction of the scope and bar imposed by s 170HB on subsequent unfair dismissal applications.

Ratio Decidendi

The majority (Madgwick and Finkelstein JJ) held that the applicant's prior application for judicial review under the ADJR Act was not a proceeding for a 'remedy in respect of that termination' for the purposes of s 170HB, as it challenged the administrative lawfulness of the dismissal rather than seeking a statutory unfair dismissal remedy; thus, s 170HB did not bar the applicant's subsequent unfair dismissal claim before the Commission. Dowsett J dissented, holding that any proceeding challenging the validity of the termination was 'in respect of' that termination and that s 170HB barred the later claim.

Court Disposition

Majority (Madgwick and Finkelstein JJ): Application granted; Dowsett J dissenting: Application dismissed.

Orders

  • Order absolute for a writ of certiorari to the Australian Industrial Relations Commission, quashing its decision of 22 November 2001.
  • Order absolute for a writ of mandamus directing the Commission to determine the applicant's claim according to law.