Sabapathy v Jetstar Airways

• Jurisdiction: Australia Federal only
• Judgment Date: 04 March 2021
• Neutral Citation: [2021] FCAFC 25
• Date: 04 March 2021
• Court: Full Federal Court (Australia)

FEDERAL COURT OF AUSTRALIA

Sabapathy v Jetstar Airways [2021] FCAFC 25

Appeal from:	Application for leave to appeal: Sabapathy v Jetstar Airways & Ors [2020] FCCA 1433
File numbers:	NSD 615 of 2020NSD 786 of 2020
Judges:	LOGAN, FLICK AND KATZMANN JJ
Date of judgment:	4 March 2021
Catchwords:	PRACTICE AND PROCEDURE — application for leave to appeal from decision of Federal Circuit Court to strike out statement of claim but with leave to replead — factors relevant to granting leave to appeal — where questions of general importance raised but no substantial injustice, whether leave should be granted ; PRACTICE AND PROCEDURE — application for judicial review of decision of Federal Circuit Court under s 39B of the Judiciary Act 1903 (Cth) to remove multiple respondents — whether primary judge failed to afford procedural fairness — whether denial of procedural fairness was material — whether there is utility in granting relief — whether applicant has a reasonable cause of action against the removed respondents
Legislation:	Fair Work Act 2009 (Cth) ss 340, 341, 342, 351, 368, 500, 550, 546(3) Federal Circuit Court of Australia Act 1999 (Cth) ss 3, 17A(2), 42, 43(2)(b) Federal Circuit Court Rules 2001 (Cth) 1.05, 45.06, Pt 2 Sch 3 Federal Court of Australia Act 1976 (Cth) ss 24, 31A, 37M Federal Court Rules 2011 (Cth) rr 16.01, 16.02(2), 16.21 Federal Court Rules 1979 (Cth) O 11 r 1B Judiciary Act 1903 (Cth) s 39B
Cases cited:	Adam P Brown Male Fashions Proprietary Limited v Philip Morris Incorporated (1981) 148 CLR 170 Auimatagi v Australian Building and Construction Commissioner (2018) 267 FCR 268 Australian Automotive Repairers’ Association (Political Action Committee) Inc. v NRMA Insurance Limited [2002] FCA 1568 Australian Building and Construction Commissioner v Hall (2018) 261 FCR 347 Australian Parking and Revenue Control Pty Ltd v Reino International Pty Ltd [2016] FCA 744 Australian Securities & Investment Commission v P Dawson Nominees Pty Ltd (2008) 169 FCR 227 Chamoun v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 276 FCR 75 Cleland v Skycity Adelaide Pty Ltd (1017) 256 FCR 306 Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2015) 230 FCR 298 Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd [1999] FCA 1531; 140 IR 131 Coshott v Kam Tou Mak [1998] FCA 147 Dare v Pulham (1982) 148 CLR 658 Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 Do Carmo v Ford Excavation Proprietary Limited (1984) 154 CLR 234 Edwards v Santos Ltd (2011) 242 CLR 421 Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365 Fair Work Ombudsman v Hu [2019] FCAFC 133 House v The King (1936) 55 CLR 499 In re the Will of FB Gilbert (deceased) (1946) 46 SR (NSW) 318 Maritime Union of Australia v Geraldton Port Authority (1999) 93 FCR 34 Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 National Tertiary Education Industry Union v University of Sydney [2020] FCA 1709 Optiver Australia Pty Ltd v Tibra Trading Pty Ltd (2008) 169 FCR 435 R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389 Re McBain; Ex parte Australian Catholic Bishops Conference (2002) 209 CLR 372 Re Minister for Immigration and Multicultural and Indigenous Affairs: Ex parte Lam (2003) 214 CLR 1 Spencer v The Commonwealth (2010) 241 CLR 118 Squires v Flight Stewards Association of Australia (1982) 2 IR 155 Stefanovski v Digital Central Australia (Assets) Pty Ltd [2018] FCAFC 31; (2018) 368 ALR 607 Stewart v Deputy Commissioner of Taxation [2010] FCA 402; 76 ATR 66 Whitby v ZG Operations Australia Pty Ltd (No 2) [2019] FCA 201 Wride v Schulze [2004] FCAFC 216
Division:	Fair Work Division
Registry:	New South Wales
National Practice Area:	Employment and Industrial Relations
Number of paragraphs:	102
Date of last submission/s:	4 February 2021
Date of hearing:	1 February 2021
Counsel for the Applicant:	Mr D Pritchard with Mr S McIntosh
Solicitor for the Applicant:	Harmers Workplace Lawyers
Counsel for the Respondents	Mr R Dolton with Mr A Pollock
Solicitor for the Respondents	Herbert Smith Freehills

ORDERS

		NSD 615 of 2020
BETWEEN:	RAJESH SABAPATHY Applicant
AND:	JETSTAR AIRWAYS ABN 33 069 720 243 First Respondent ; CAPTAIN PETER TERRILL Second Respondent ; CAPTAIN DAVID MCCUTCHEON (and others named in the Schedule) Third Respondent

JUDGE:	LOGAN, FLICK AND KATZMANN JJ
DATE OF ORDER:	4 March 2021

THE COURT ORDERS THAT:

1. Leave to appeal be refused.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ORDERS

		NSD 786 of 2020
BETWEEN:	RAJESH SABAPATHY Applicant
AND:	FEDERAL CIRCUIT COURT OF AUSTRALIA First Respondent ; JETSTAR AIRWAYS ABN 33 069 720 243 Second Respondent ; CAPTAIN PETER TERRILL (and others named in the Schedule) Third Respondent

order made by:	LOGAN, FLICK, KATZMANN JJ
DATE OF ORDER:	4 march 2021

THE COURT ORDERS THAT:

1. Orders 2 to 16 made by the Federal Circuit Court of Australia on 15 May 2020 be quashed.

2. The matter be remitted to the Federal Circuit Court.

3. Costs be reserved, to be determined if necessary, on the papers.

4. Any application for costs be filed, together with submissions, within 14 days.

5. Any party opposing such an order file and serve submissions within 14 days thereafter.

6. Any submissions in reply be filed within 7 days after that.

7. No submissions may exceed 4 pages.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

LOGAN AND KATZMANN JJ:

Introduction

1. Rajesh Sabapathy is an airline pilot formerly employed by Jetstar Airways. In June 2019 his employment was terminated. He lodged a general protections application in the Fair Work Commission (FWC) and on 5 September 2019 he commenced proceedings in the Federal Circuit Court contending that the termination constituted “adverse action” within the meaning of the Fair Work Act 2009 (Cth) (FW Act). He named as respondents Jetstar, Qantas, and 11 pilots, seeking various forms of relief including orders for compensation and pecuniary penalties.

2. Attached to the originating application were a certificate signed by a Deputy President of the FWC under s 368 of the FW Act; a claim form alleging dismissal in contravention of a general protection; Jetstar’s letter of termination dated 13 June 2019; and a schedule purportedly setting out the grounds for the claim but incorporating them in a lengthy account of Mr Sabapathy’s service with Jetstar. Consent orders were made requiring the case to proceed by way of pleadings and Mr Sabapathy filed a statement of claim....