Ashby v Commonwealth of Australia [2022] FCAFC 77

Ashby v Commonwealth of Australia [2022] FCAFC 77

The appeals failed because the delegate had authority to consider and refuse Mr Ashby's act of grace payment application: s 65(1) of the PGPA Act contemplated an evaluative step separate from the authorisation of payment, and the relevant delegation validly permitted that evaluative refusal even where the delegate could not authorise a payment over $50,000. The Fair Work Act claim was also correctly summarily dismissed because, assuming the alleged facts in Mr Ashby's favour, the refusal of an act of grace payment under s 65 was action authorised by a law of the Commonwealth and therefore excluded from "adverse action" by s 342(3)(a) of the Fair Work Act.

Jurisdiction
Australia
Judgment Date
12 May 2022
Procedural Posture
Application for Extension of Time and Leave to Appeal From Dismissal of Judicial Review Application; Application for Leave to Appeal From Summary Dismissal of Fair Work Act Proceeding / Appeal
Outcome
Extension of time and leave to appeal granted; leave to appeal granted; both appeals dismissed with costs.
Legal Topics
['act of Grace Payments' 'delegation of Statutory Power' 'judicial Review' 'leave to Appeal' 'extension of Time' 'summary Judgment' 'adverse Action' 'workplace Rights']
['administrative Law' 'practice and Procedure' 'industrial Law' 'employment and Industrial Relations'] ['act of Grace Payments' 'delegation of Statutory Power' 'judicial Review' 'leave to Appeal' 'extension of Time' 'summary Judgment' 'adverse Action' 'workplace Rights']

Case Brief

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Procedural Posture

Application for Extension of Time and Leave to Appeal From Dismissal of Judicial Review Application; Application for Leave to Appeal From Summary Dismissal of Fair Work Act Proceeding / Appeal

Legal Issues

  1. 1 ["Whether the delegate lacked jurisdiction, or an impermissible fetter was placed on the delegate's jurisdiction, because the delegate could consider all applications for act of grace payments but could not authorise payments over $50,000." 'Whether the primary judge erred in granting summary judgment on the basis that refusal of the act of grace payment application under s 65 of the PGPA Act was authorised by law and therefore excluded from "adverse action" by s 342(3)(a) of the Fair Work Act 2009 (Cth).' 'Whether an extension of time and leave to appeal were required and should be granted.']

Ratio Decidendi

The appeals failed because the delegate had authority to consider and refuse Mr Ashby's act of grace payment application: s 65(1) of the PGPA Act contemplated an evaluative step separate from the authorisation of payment, and the relevant delegation validly permitted that evaluative refusal even where the delegate could not authorise a payment over $50,000. The Fair Work Act claim was also correctly summarily dismissed because, assuming the alleged facts in Mr Ashby's favour, the refusal of an act of grace payment under s 65 was action authorised by a law of the Commonwealth and therefore excluded from "adverse action" by s 342(3)(a) of the Fair Work Act.

Court Disposition

Extension of time and leave to appeal granted; leave to appeal granted; both appeals dismissed with costs.

Orders

  • ['NSD 799 of 2021: The application for extension of time and leave to appeal be granted.' 'NSD 799 of 2021: The appeal be dismissed with costs.' 'NSD 806 of 2021: Leave to appeal be granted.' 'NSD 806 of 2021: The appeal be dismissed with costs.']