The Industrial Appeal Court has dismissed an appeal against a decision of the Full Bench in relation to jurisdiction and ordered the appellant to pay the respondent’s costs of the appeal fixed at $3,000.

Background

The appellant lodged a claim in the Industrial Magistrates Court, alleging that the respondent failed to comply with the National Employment Standards and the Professional Employees Award 2010 (Cth). The Industrial Magistrates Court dismissed the claim, finding it an attempt to relitigate matters determined, or ought reasonably to have been raised, in two previous claims.

The appellant appealed to the Full Bench, contending omissions in the strike out application and that the Industrial Magistrate’s Court did not abandon or release the respondent from all claims. The Full Bench dismissed the appeal for want of jurisdiction on grounds that the Industrial Magistrate exercised Federal jurisdiction under a Federal award and the Fair Work Act 2009 (Cth) (FW Act), and ordered the appellant pay $5,150 in costs.

The appellant appealed the decision of the Full Bench to the Industrial Appeal Court.

Contentions

The appellant contended that he had been denied the right to be heard by refusing to hear submissions about a flawed affidavit in the respondent’s strike out application. The appellant contended that the Full Bench failed to hear the appellant’s submissions about the strike out application’s jurisdictional exercise arguments.

The appellant further submitted that the decision was erroneous in law due to errors in the construction and interpretation of the law. This concerned whether the Industrial Magistrate was exercising a State law by striking out the claim on grounds of abuse of process and Full Bench power to award costs.

The respondent sought $5,150 in costs for the appeal, the same amount awarded by the Full Bench.

Findings

The Industrial Appeal Court considered the legal principles relating to procedural fairness and found that the first ground was not made out. The Industrial Appeal Court noted issues as to whether the relied upon affidavit was defective and whether the appellant’s Industrial Magistrates Court claims were different. The Industrial Appeal Court found the Full Bench could only consider and adjudicate the merits of the appellant’s arguments on these issues if satisfied it had jurisdiction, which it was not.

The Industrial Appeal Court considered that the Full Bench did not err in finding that the Industrial Magistrates Court exercised Federal jurisdiction under s 539 of the FW Act, and that the Full Bench did not have jurisdiction. The Industrial Appeal Court found the resolution of a matter within Federal jurisdiction by application of non-federal procedural law is solely within Federal jurisdiction.

The Industrial Appeal Court noted that the Full Bench correctly construed its power to award costs in an appeal under s 84(5) of the IR Act.

The Industrial Appeal Court found no appeal could lie to the Full Bench, as the Full Bench appeal was against an Industrial Magistrate’s decision for enforcement of a Commonwealth law and instruments made under a Commonwealth law. The Industrial Appeal Court found that the appeal was manifestly groundless, and the applicant was aware of the incorrect jurisdiction. The Industrial Appeal Court dismissed the appeal and ordered the appellant pay the costs of the appeal fixed at $3,000, noting that less preparation would have been required by the respondent’s counsel in the present appeal.

The decision can be read here.