Merhi v Commonwealth of Australia [2021] FCA 181

Procedural Posture

Application for Judicial Review Under S 39 B of the Judiciary Act 1903 (cth) / Final Judgment on Application to Set Aside the Full Bench of the Fair Work Commission's Refusal of Permission to Appeal

Legal Issues

1. 1 ['Whether the Full Bench of the Fair Work Commission committed jurisdictional error or error of law on the face of the record in refusing permission to appeal.' "Whether the applicant's grounds challenged reviewable error rather than the merits of the Full Bench's decision." "Whether the Full Bench's assessment of delay, merits, medical evidence, unusual circumstances and s 394 of the Fair Work Act 2009 (Cth) disclosed reviewable error." "Whether the Full Bench's conclusion that permission to appeal was not in the public interest was reviewable on the grounds advanced."]

Ratio Decidendi

The application was dismissed because it was an application for judicial review, not an appeal, and the applicant's grounds did not establish jurisdictional error or error of law on the face of the record. The Full Bench had refused permission to appeal because it was not satisfied that doing so was in the public interest, and the applicant did not allege any reviewable error in that conclusion. The remaining complaints challenged the merits, weight given to matters, or factual assessments, which at most would be errors within jurisdiction and did not justify certiorari or mandamus.

Court Disposition

Application dismissed.

Orders

• ['The application be dismissed.' 'No order as to costs.']