Alasady v Australian Capital Territory [2022] FCA 967

Alasady v Australian Capital Territory [2022] FCA 967

Although there was a prima facie case, it was weak. Clause 117 of the 2021 Agreement did not appear to make a preliminary assessment the only gateway to an investigation or create the immunity, time bar, procedural requirements, or limitation on investigation scope contended for by the applicant, especially in light of clauses 121 and 123. The lack of particulars argument was not shown to relate to a breach of the enterprise agreements and was undermined by the correspondence. The apprehended bias claim was speculative because the investigation was being conducted externally, the second respondent was only likely to be the sanctions delegate, the public statements were conditional,...

Jurisdiction
Australia
Judgment Date
18 August 2022
Procedural Posture
Industrial Law Proceeding Seeking Interlocutory Injunctive Relief / Interlocutory Application
Outcome
Application for interlocutory injunctive relief dismissed; costs reserved.
Legal Topics
['interlocutory Injunction' 'enterprise Agreements' 'disciplinary Investigation' 'preliminary Assessment' 'procedural Fairness' 'apprehended Bias' 'balance of Convenience']
['industrial Law' 'practice and Procedure' 'employment and Industrial Relations'] ['interlocutory Injunction' 'enterprise Agreements' 'disciplinary Investigation' 'preliminary Assessment' 'procedural Fairness' 'apprehended Bias' 'balance of Convenience']

Case Brief

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Procedural Posture

Industrial Law Proceeding Seeking Interlocutory Injunctive Relief / Interlocutory Application

Legal Issues

  1. 1 ['Whether there was a serious question to be tried that the disciplinary investigation breached the applicable enterprise agreements.' 'Whether a preliminary assessment under clause 117 of the 2021 Agreement was a precondition to an investigation and whether any defect in preliminary assessment restrained the investigation.' 'Whether the allegations lacked sufficient particulars to permit a fair response.' 'Whether there was a prima facie case of apprehended bias or predetermination by the likely sanctions delegate.' 'Whether the balance of convenience favoured interlocutory relief preventing further disciplinary investigation or procedure.']

Ratio Decidendi

Although there was a prima facie case, it was weak. Clause 117 of the 2021 Agreement did not appear to make a preliminary assessment the only gateway to an investigation or create the immunity, time bar, procedural requirements, or limitation on investigation scope contended for by the applicant, especially in light of clauses 121 and 123. The lack of particulars argument was not shown to relate to a breach of the enterprise agreements and was undermined by the correspondence. The apprehended bias claim was speculative because the investigation was being conducted externally, the second respondent was only likely to be the sanctions delegate, the public statements were conditional,...

Court Disposition

Application for interlocutory injunctive relief dismissed; costs reserved.

Orders

  • ['The application for interlocutory relief dated 1 August 2022, filed on 2 August 2022 be dismissed.' 'The costs of and pertaining to the application are reserved.' 'The matter be set down for a case management hearing on a date convenient to the parties and the Court.']