Application under fair work provisions led to requests for constitutional writs
A single justice of the High Court of Australia has dismissed an application seeking writs of mandamus and certiorari without listing the matter for hearing upon determining that the filing abused judicial process and lacked reasonable cause.
In Yu v Judges of Federal Court of Australia & Ors, [2025] HCASJ 23, the Australian Capital Territory employed the plaintiff as a teacher of Mandarin beginning in 1991 and dismissed her in 2016.
In November 2016, the plaintiff brought an originating application against the ACT Education Directorate. She claimed contraventions of multiple provisions of the Fair Work Act 2009 (Cth) during her employment and upon termination.
In November 2021, the second division of the Federal Circuit and Family Court of Australia (FCFCOA) dismissed the plaintiff’s application.
In June 2022, the Federal Court of Australia’s Full Court allowed her appeal and remitted the matter to the FCFCOA’s second division to decide the proper remedies. The Full Court saw a breach of s 50 of the Fair Work Act.
The plaintiff applied for special leave to appeal the Full Court’s decision. In December 2022, the High Court refused her application
In January 2024, on the remitted matter, a judge of the FCFCOA’s second division ruled that the ACT Education Directorate should pay the plaintiff $10,500 in total pecuniary penalties, but dismissed her claims for compensation and aggravated damages.
The plaintiff appealed the January 2024 judgment and tried to set aside the November 2021 and June 2022 judgments. Last April, the Federal Court partly allowed her appeal and raised the total penalties to $18,600.
In June, the plaintiff applied for:
The ACT Education Directorate, the third defendant named in the case, wanted to dismiss the proceeding without a hearing under r 25.09.1 of the High Court Rules 2004 (Cth).
Justice James Edelman of the High Court dismissed the plaintiff's application, ordered her to pay the third defendant’s application costs, and ordered the amendment of that defendant’s name from the ACT Education Directorate to the Australian Capital Territory, the body politic and legal entity holding the relevant rights and liabilities.
Edelman decided that he could dismiss the application without listing it for hearing under r 25.09 based on the application’s abuse of the court’s process and absence of a reasonable cause.
He noted that the plaintiff brought the application even after the court’s registry had notified her that applicants should generally exhaust their avenues of appeal before applying for constitutional writs, which were discretionary in nature.
Edelman determined that the Federal Court had already partly set aside the FCFCOA’s orders for which the plaintiff sought certiorari.
Edelman ruled that the plaintiff:
Edelman added that the plaintiff failed to establish the exceptional circumstances – such as a constitutional issue or a clearly shown lack or excess of jurisdiction by a federal judge – which might have justified her disregard for the ordinary appeal process.
Lastly, Edelman saw no basis for a “public interest cost order” because the plaintiff commenced her application to vindicate her private interests.
