Hendrik Johannes Liebenberg, who worked as a Patent Examiner from October 2012 until May 2024, has applied to the Federal Court of Australia for writs of certiorari and mandamus following unsuccessful FWC proceedings. His case centres on allegations that routine quality assurance procedures at IP Australia constituted improper interference with his decision-making authority. He has, additionally, escalated these claims into broader accusations about institutional practices.
For readers unfamiliar with the legal terminology, a writ of certiorari commands an inferior court or tribunal to set aside a decision, and is typically used when the decision-maker has exceeded their jurisdiction or made a jurisdictional error. A writ of mandamus compels a public official or body to perform a duty they are legally required to perform, or to exercise their jurisdiction according to law. Both are supervisory remedies allowing superior courts to oversee the exercise of power by decision-makers.
While it is more usual for the Federal Court to review administrative decision under the Administrative Decisions (Judicial Review) Act 1977, the difficulty for Mr Liebenberg is this case is that paragraph (a) of Schedule 1 to the ADJR Act excludes decisions made under employment-related legislation – including the Fair Work Act – from review. This exclusion reflects Parliament's intention that Fair Work matters should be resolved within the specialist tribunal system rather than through general administrative law review. To succeed, therefore, Mr Liebenberg will need to show that the FWC fundamentally misunderstood its jurisdiction, not just that it made errors within its jurisdiction.
The case provides a window into workplace dynamics at Australia’s primary intellectual property agency, though the FWC found no merit in the constructive dismissal claim after examining the circumstances of Mr Liebenberg's resignation.
