Kennedy v Secretary, Department of Industry (No 3) [2016] FCAFC 149

Kennedy v Secretary, Department of Industry (No 3) [2016] FCAFC 149

The appeal was dismissed because Mr Kennedy had been given more than an adequate opportunity to prepare and present his appeal, the medical and other material did not justify an adjournment, and the primary judge made no appellable error in concluding that the Fair Work Commission and its Full Bench committed no jurisdictional error. The primary judge dealt with the substance of Mr Kennedy's contentions, conducted the hearing procedurally fairly, gave adequate reasons, and was not shown to have acted with bias or apprehended bias. The Full Bench correctly identified its statutory task, including the public interest requirement in s 400(1) of the Fair Work Act 2009 (Cth), and it was open...

Jurisdiction
Australia
Judgment Date
01 November 2016
Procedural Posture
Appeal From Dismissal of an Application Under S 39 B of the Judiciary Act 1903 (cth) Seeking Relief in Relation to Fair Work Commission Decisions Concerning an Unfair Dismissal Application / Full Court Appeal, Including Adjournment and Other Preliminary Applications, Determined by Final Judgment
Outcome
Appeal dismissed.
Legal Topics
['unfair Dismissal Application Out of Time' 'extension of Time Under S 394(3) of the Fair Work Act 2009 (cth)' 'permission to Appeal in the Fair Work Commission Under S 400(1) of the Fair Work Act 2009 (cth)' 'jurisdictional Error' 'procedural Fairness' 'adjournment Application by Self Represented Litigant' 'open Justice' 'recusal and Apprehended Bias']
['industrial Law' 'administrative Law' 'employment and Industrial Relations' 'federal Court Procedure'] ['unfair Dismissal Application Out of Time' 'extension of Time Under S 394(3) of the Fair Work Act 2009 (cth)' 'permission to Appeal in the Fair Work Commission Under S 400(1) of the Fair Work Act 2009 (cth)' 'jurisdictional Error' 'procedural Fairness' 'adjournment Application by Self Represented Litigant' 'open Justice' 'recusal and Apprehended Bias']

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Procedural Posture

Appeal From Dismissal of an Application Under S 39 B of the Judiciary Act 1903 (cth) Seeking Relief in Relation to Fair Work Commission Decisions Concerning an Unfair Dismissal Application / Full Court Appeal, Including Adjournment and Other Preliminary Applications, Determined by Final Judgment

Legal Issues

  1. 1 ["Whether the appeal hearing should be adjourned because of Mr Kennedy's asserted medical condition, lack of legal representation, employment pressures and alleged procedural unfairness." "Whether the primary judge erred in dismissing Mr Kennedy's s 39B application for judicial review of decisions of the Fair Work Commission and its Full Bench." "Whether the Full Bench of the Fair Work Commission committed jurisdictional error in refusing permission to appeal and dismissing Mr Kennedy's appeal." 'Whether the primary judge denied Mr Kennedy procedural fairness or acted with bias or apprehended bias.' 'Whether there was any proper basis to remove a Court officer or a member of the public from the courtroom.']

Ratio Decidendi

The appeal was dismissed because Mr Kennedy had been given more than an adequate opportunity to prepare and present his appeal, the medical and other material did not justify an adjournment, and the primary judge made no appellable error in concluding that the Fair Work Commission and its Full Bench committed no jurisdictional error. The primary judge dealt with the substance of Mr Kennedy's contentions, conducted the hearing procedurally fairly, gave adequate reasons, and was not shown to have acted with bias or apprehended bias. The Full Bench correctly identified its statutory task, including the public interest requirement in s 400(1) of the Fair Work Act 2009 (Cth), and it was open...

Court Disposition

Appeal dismissed.

Orders

  • ['The appeal be dismissed.' 'The first respondent may apply for costs within seven days, in which event directions for the issue of costs to be determined will be made.']