Asmar v Fair Work Commission [2014] FCA 1156

Asmar v Fair Work Commission [2014] FCA 1156

Because the applicants had raised reasonably arguable grounds challenging the Commission's jurisdiction, the Commission ought to have ruled on that jurisdictional objection before proceeding to hear evidence on the inquiry. Its proposed course of proceeding without first determining jurisdiction established a prima facie case, and the balance of convenience favoured restraining the Commission until it ruled on jurisdiction.

Jurisdiction
Australia
Judgment Date
28 October 2014
Procedural Posture
Application Under S 39 B of the Judiciary Act 1903 (cth) Seeking Prohibition and Interim Relief Against the Fair Work Commission / Interlocutory Application for Injunction
Outcome
Interlocutory injunction granted restraining the Fair Work Commission from proceeding with specified aspects of the inquiry until it ruled on its jurisdiction, with leave to amend the originating application and the matter adjourned for directions.
Legal Topics
['fair Work Commission Inquiry' 'right of Entry Permits' 'jurisdictional Objection' 'interlocutory Injunction' 'procedural Fairness']
['practice and Procedure' 'fair Work' 'administrative Law'] ['fair Work Commission Inquiry' 'right of Entry Permits' 'jurisdictional Objection' 'interlocutory Injunction' 'procedural Fairness']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Application Under S 39 B of the Judiciary Act 1903 (cth) Seeking Prohibition and Interim Relief Against the Fair Work Commission / Interlocutory Application for Injunction

Legal Issues

  1. 1 ['Whether the Fair Work Commission had jurisdiction to proceed with the inquiry into potential revocation of right of entry permits under paragraphs 1-16 of the Terms of Inquiry.' "Whether the Commission was required to determine the applicants' jurisdictional objection before proceeding to hear evidence in the inquiry." 'Whether the applicants established a prima facie case and balance of convenience for an interlocutory injunction.']

Ratio Decidendi

Because the applicants had raised reasonably arguable grounds challenging the Commission's jurisdiction, the Commission ought to have ruled on that jurisdictional objection before proceeding to hear evidence on the inquiry. Its proposed course of proceeding without first determining jurisdiction established a prima facie case, and the balance of convenience favoured restraining the Commission until it ruled on jurisdiction.

Court Disposition

Interlocutory injunction granted restraining the Fair Work Commission from proceeding with specified aspects of the inquiry until it ruled on its jurisdiction, with leave to amend the originating application and the matter adjourned for directions.

Orders

  • ['The Applicants have leave to file and serve an amended originating application in the form of the proposed amended originating application filed today.' 'Subject to paragraph 3 hereof, until the hearing and determination of this proceeding or until further order, the Fair Work Commission be restrained from taking...