Ashton v Qube Bulk Pty Ltd
[2017] FWCFB 134
•19 JANUARY 2017
| [2017] FWCFB 134 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Qube Bulk Pty Ltd
(C2016/6701)
VICE PRESIDENT HATCHER |
|
Appeal against decision [2016] FWC 7668 of Commissioner Platt at Adelaide on 21 October 2016 in matter number U2016/10555.
Introduction and factual background
[1] Mr Daryl Ashton has lodged an appeal, for which permission to appeal is required, against a decision of Commissioner Platt issued on 21 October 2016 1 (Decision). The effect of the Decision was to refuse Mr Ashton an extension of the time to make an application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (FW Act) in respect of the termination of his employment by Qube Bulk Pty Ltd (Qube), and to dismiss the application which had actually been received by the Commission.
[2] The appeal was listed for hearing before us on 13 December 2016. We granted both parties permission to be represented by lawyers pursuant to s.596 of the FW Act.
[3] Section 394(2) of the FW Act requires an unfair dismissal remedy application to be lodged within 21 days after the dismissal took effect or within such further period as the Commission allows under s.394(3). Section 394(3) provides:
“(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) whether the person first became aware of the dismissal after it had taken effect; and
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.”
[4] Mr Ashton’s application identified his date of dismissal by Qube as being 27 June 2016. He did not lodge his application until 24 August 2016, and thus was 37 days outside the prescribed time limit. The chronology of events between the dismissal and the lodgement of the application may be summarised as follows:
● Within a few days of his dismissal, Mr Ashton sought advice from a solicitor, Dr Whitwell. He was accompanied by his wife, Mrs Sandra Ashton.
● Dr Whitwell was concerned that Mr Ashton’s earnings were in excess of the high income threshold for an unfair dismissal remedy application referred to in s.382(b)(iii), even though it is clear that he was aware that Mr Ashton’s employment with Qube had been covered by an enterprise agreement, the Qube Bulk Pty Ltd Utah Point Enterprise Agreement 2013 (Agreement), thus making the high income threshold irrelevant (see s.382(b)(ii)).
● On 13 July 2016 Dr Whitwell filed on Mr Ashton’s behalf in the Commission an application for the Commission to deal with a dispute in accordance with the dispute resolution procedure in the Agreement (dispute application). The dispute identified concerned Mr Ashton’s dismissal and the circumstances attending it.
● On 15 July 2016 Qube wrote to Dr Whitwell advising him that the dispute application was outside the Commission’s jurisdiction because, having been dismissed, Mr Ashton was no longer covered by the Agreement and therefore did not have the benefit of access to its dispute resolution procedure. Among other things the letter characterised the dispute application as a “de facto unfair dismissal application”.
● Notwithstanding this correspondence, Dr Whitwell advised Mr Ashton to proceed with the dispute application.
● The 21-day period for lodging an unfair dismissal remedy application expired on 18 July 2016.
● On 27 July 2016 the dispute application was the subject of a hearing before the Commission (Commissioner Cloghan). The Commissioner expressed the view that the dispute application was beyond jurisdiction, and it was withdrawn. At this point Mr Ashton lost confidence in Dr Whitwell.
● On 29 July 2016 Mr Ashton made contact with new lawyers, DeLancey Legal, and provided them with his documents.
● On 4 August 2016 Ms Akers of DeLancey Legal provided Mr Ashton with provisional advice.
● On 9 August 2016 Mr Ashton met with Ms Akers. Ms Akers also wrote to Qube on the same day requesting a copy of the “Incident Report which precipitated [Mr Ashton’s] dismissal” on the basis that “Without a copy of this report we are unable to advise him fully of his legal options”.
● On 10 August 2016 Qube wrote to Ms Akers declining to provide a copy of the incident report.
● On 15 August 2016 Ms Akers advised Mr Ashton that she had spoken with counsel for advice. We understand the counsel involved from this point onwards to have been Mr Matthew Crowley of the Western Australian bar, who subsequently appeared on behalf of Mr Ashton in the hearing before the Commissioner and in the appeal before us.
● On 16 August 2016, counsel gave Ms Akers advice by telephone.
● On 19 August 2016 Mr Ashton executed a costs agreement with DeLancey Legal.
● On 24 August 2016, as earlier stated, the unfair dismissal remedy application application was filed. It sought an extension of time pursuant to s.394(3).
[5] On 14 September 2016 the Commission (Gooley DP) notified Mr Ashton and Qube that the extension of time application would be dealt with at a telephone conference on 29 September 2016. Directions were issued at the same time requiring Mr Ashton to file an outline of argument, his statement of evidence and a document list by close of business on 21 September 2016, with Qube required to file its material in reply by close of business on 28 September 2016. Accompanying these directions was a substantial amount of information intended to assist the parties in preparing their evidence and submissions. In Mr Ashton’s case, this included a letter to him which, amongst other things, identified the matters the Commission was required to take into account under s.394(3) and stated “In preparing your response, you must explain the whole of the delay in lodging your application”. He was also provided with a guide and a standard format for a witness statement, as well as a standard format for an outline of submissions which required Mr Ashton to respond to a series of questions.
[6] Mr Ashton filed an outline of submissions in accordance with the directions using the standard format document. It identified him as being represented by Mr Crowley, instructed by DeLancey Legal. Also filed as part of Mr Ashton’s case was a document list and a short statement (eight sentences) made by Mrs Ashton which concerned the period of time in which Mr Ashton was represented by Dr Whitwell. Mr Ashton did not himself make a statement of evidence. A notice that Mr Crowley was commencing to act as Mr Ashton’s representative was filed at the same time as the outline of submissions and Mrs Ashton’s statement of evidence.
[7] Qube also filed an outline of submissions in accordance with the directions, together with three statements of evidence. The first, a statement of evidence of Mr Adam Brough, Qube’s Pilbara Regional Manager, described the circumstances which caused Qube to dismiss Mr Ashton. The second statement, made by Mr Andrew Raterry, Qube’s Operations Manager at its Utah Point facility, concerned the process leading to Mr Ashton’s dismissal and events afterward. The third was made by Mr Tyler Counsel, a Human Resources Manager for Qube, and it described matters associated with the dispute application and the request for the incident report.
[8] The hearing of the extension of time application proceeded on 29 September 2016 before Commissioner Platt. The matter was heard in the Commissioner’s chambers in Adelaide, with the parties attending by telephone. Mr Crowley appeared on behalf of Mr Ashton by telephone from Perth. It appears to have been intended that Mr Ashton would also attend on a separate telephone line from Port Hedland, but due to technical difficulties he stayed on hold for all but the last five minutes of the hearing. The representatives of Qube attended by telephone from Sydney. The hearing was electronically recorded.
[9] At the outset of the hearing, the Commissioner asked Mr Crowley if he wanted him to proceed in the absence of his client. A transcription of the recording of the hearing which was prepared on Mr Ashton’s behalf for the purpose of the appeal disclosed that Mr Crowley replied “Yes sir”. The Commissioner then confirmed with Mr Crowley that he relied upon the material filed in accordance with the directions, and in addition Mr Crowley identified two documents that he also relied on. The Commissioner then asked (according to the transcription) “Ok. Is there anything that you want to add further to those documents?” to which Mr Crowley replied “No sir”. We understand that no witness had been required to attend for cross-examination, so the matter then proceeded straight to submissions. Mr Crowley submitted, in substance, that the reason for the delay in filing the application was that Mr Ashton had relied upon misconceived advice from Dr Whitwell, and that after Mr Ashton lost confidence in him on 27 July 2016. “he did get some speedy advice and the application was lodged by 24th of August” and that “in those circumstances ... there has been really no meaningful delay and what delay there has been is quite explicable in the circumstances”. It may be noted that during his submissions, Mr Crowley incorrectly referred on a number of occasions to s.366 of the FW Act, which concerns extension of time for general protections dismissal applications, and not s.394(3). The Commissioner then received Qube’s submissions, and Mr Crowley’s submissions in reply. It was then that the Commissioner became aware that Mr Ashton was now on the line, and Mr Ashton said (again, according to the transcription) “...we were on the line but somehow we got disconnected earlier”. The Commissioner then closed the hearing by saying:
“Ok. One thing I do note, I note that I do not have any evidence before me as to Mr Crowley’s conduct in the matter and that surprises me but be as it may both parties are represented. I reserve my decision and I’ll publish it in due course. Thank you very much for your attendance. Conference is now closed.”
[10] In normal circumstances, the recording device for the hearing would at this point have been turned off. However this did not occur, and for a short period it recorded some remarks made by the Commissioner to another person (who appears to have been his Associate). When Mr Ashton sought access to the recording of the hearing for the purpose of preparing his appeal, he was (no doubt unknowingly) also given access to this additional portion of the recording. At the hearing of the appeal, we allowed the transcription of the additional portion of the recording to be admitted as new evidence in the appeal (for reasons which will be explained later). This disclosed the following exchange between the Commissioner and the other person:
“COMMISSIONER: [inaudible] He was banging all about section 366.
WOMAN: [inaudible].
COMMISSIONER: He was banging all about section 366 and that’s the criteria for a general protections extensions. It’s 394. And then he tells me that I have to take into account prejudice to the employee. I said if I have to take into account prejudice to the employee, how could I refuse any application because every case that we deny of access to the hearing.
WOMAN: Oh my gosh.
COMMISSIONER: And then he had to call the employee. There is no evidence from the employee. Nothing as to what his view was. And that’s what he’s gonna get called on. Anyway.
WOMAN: Why would they brief that?
COMMISSIONER: Dunno.
WOMAN: Very odd.
COMMISSIONER: Yeh so. We’ll save it.”
[11] We note at this point that there was some dispute concerning whether the words “that’s what he’s gonna get called on” accurately transcribed what was said on the recording. Possible alternatives were that he said “that’s what he’s gonna get caught on” or “... cruelled on”.
[12] On 30 September 2016 Mr Crowley sent an email to the Commissioner’s chambers which stated, omitting formal parts:
“My client informs me that he was not in fact ‘unavailable’ yesterday, but was in fact on hold with the Commission for over 20 minutes during the hearing due, evidently, to technical mix-up, that was why his phone was ‘engaged’.
I am concerned that the hearing proceeded on the false basis that Mr Ashton was ‘unavailable’. I note in that regard the Commissioner’s comment that he though it ‘strange’ that counsel did not file a statement.
I therefore ask that the matter be re-listed for a further hearing”
[13] On 4 October 2016 the Commissioner’s Associate sent an email to Mr Crowley in response to this email which stated:
“As you advised at the commencement of the conference that you would proceed without your client, the Commissioner will not relist the matter.
The letter written to the Applicant and the Applicant’s representative by Deputy President Gooley on 14 September 2016 directed that all material in support of an extension of time was to be filed by 21 September 2016. Therefore, given that no witness statement was filed prior to the hearing, evidence from Mr Ashton could not have been relied upon.”
[14] As earlier stated, the Decision was then issued on 21 October 2016.
The Decision
[15] In the Decision the Commissioner set out the facts of the matter in a manner consistent with our earlier summary, and referred to the Full Bench decision in Nulty v Blue Star Group Pty Ltd 2 concerning the meaning of the expression “exceptional circumstances” in s.394(3) and also to the Full Bench decision in M N Robinson v Interstate Transport Pty Ltd3concerning the circumstances in which error by a legal or other representative may justify the grant of an extension under s.394(3). The Commissioner accepted that there was an acceptable explanation for the delay for the period up until 27 July 2016, in that it was caused by representative error on the part of Dr Whitwell.4 However he stated that Mr Ashton “needs to provide a credible explanation for the entire period of the delay”5, and made a number of findings and conclusions concerning the period of the delay from 27 July 2016 to the date of the filing of the application on 24 August 2016. First, he did not accept Mr Crowley’s characterisation of DeLancey Legal as having provided speedy advice.6The Commissioner subsequently said in the Decision (footnotes omitted):
“[29] However, there is no satisfactory explanation for the further delay until the application was lodged on 24 August 2016, some 28 days after Mr Ashton became aware that his s.739 application could not be pursued. This was 20 days after Mr Ashton was provided with provisional advice and 13 days after Ms Ashton met with Ms Akers to discuss “progressing the case.”
[30] De Lancey Legal’s apparent failure to promptly file an application is not of itself, a basis for an extension of time. Appropriate account must be taken of the overall circumstances and the conduct of the applicant. All of the actions, or in this case, lack of action on the part of Mr Ashton are relevant to the question of whether there is an acceptable reason for the delay.
[31] There is no evidence of Mr Ashton pursuing the matter after 9 August 2016 or making any follow up phone calls prompting his representative to urgently file the application. There is no evidence before me as to when Mr Ashton instructed that a claim be filed. It appears he took little action to pursue the lodgement of his claim. It is not suggested that Mr Ashton was unaware of the 21 day time limit. Having been led up the garden path once, Mr Ashton should have kept a close watch on the pursuit of his claim. In my view the delay was compounded by lack of action on the part of Mr Ashton to follow up the conduct of his representative.”
[16] The Commissioner went on to consider the issue of prejudice to the parties. He rejected a submission that a failure to award an extension of time would prejudice Mr Ashton, since “if that were the basis for determining extension of time applications no application could be refused” 7, and stated that he was not satisfied that the grant of an extension of time would prejudice Qube.8 In relation to the merits of Mr Ashton’s application, the Commissioner concluded:
“[34] In terms of the merits of the application, the applicant submits that there are disputes as to the facts and the inferences to be made from otherwise agreed facts. I accept this position and consequently have regarded the merits of the matter as a neutral factor with respect to the extension of time issue.”
[17] The Commissioner’s ultimate conclusion was that he was not satisfied that Mr Ashton’s circumstances could be regarded as exceptional, and accordingly he refused an extension of time.
Appeal grounds and submissions
[18] The notice of appeal filed by Mr Ashton contained ten grounds of appeal. The further amended notice of appeal upon which Mr Ashton ultimately proceeded abandoned two of those grounds, leaving eight grounds of appeal for determination. Those grounds, and the submission advanced in their support, may be summarised as follows:
Ground 1: The Commissioner misdirected himself by regarding himself as precluded from granting Mr Ashton’s application to re-open his case as a result of his failure to file a statement of evidence. The FW Act conferred wide discretionary procedural powers on the Commission, including in s.586(b), s.590(1) and s.591, under which the Commissioner had express power to grant the application.
Ground 2: The Commissioner was not entitled to rely on the concession of counsel that he should proceed in the absence of Mr Ashton at the hearing, given that the concession was elicited on the false basis that Mr Ashton was unavailable when in fact he was “on hold” for all but the last five minutes of the hearing. The Commissioner in effect purported to rely on a waiver of Mr Ashton’s right to be present and advance evidence. Such a waiver could rarely excuse a breach of the hearing rule, and the waiver had to be an intentional act done with knowledge. The result was a denial of procedural fairness.
Ground 3: The decision to refuse Mr Ashton’s application to re-open the case was arbitrary and legally unreasonable, given that the Commissioner had privately expressed an intention to dismiss the application on the basis that Mr Ashton had not himself given evidence. A reasonable decision-maker would not have exercised his discretion to refuse to hear Mr Ashton in circumstances where he sought to address an error caused by the Commission itself which the Commissioner considered ought to have been addressed.
Ground 4: Mr Ashton was denied natural justice on the basis of a reasonable apprehension of bias on the part of the Commissioner. That was demonstrable from the fact that immediately after the hearing he expressed views about the lack of evidence to support Mr Ashton’s case, but did not raise it during the hearing when it might have been addressed. Further, the recorded statements “that’s what he’s gonna get called on” and “We’ll save it” suggested a “gotcha” approach to the deliberative task on the part of the Commissioner and a perception of his role as seizing an opportunity to find in favour of the employer over the employee. The Commissioner’s disparaging remarks about Mr Crowley, and his failure to take into account Qube’s contribution to the delay (namely its refusal to provide a copy of the incident report), were also relevant. The conduct of the Commissioner was apt to raise the possibility in the mind of a fair-minded observer that the Commissioner did not approach his task impartially.
Ground 5: The Commissioner denied Mr Ashton procedural fairness in that he withheld the view that his case lacked a fundamental element and conducted the hearing to conclusion without raising the issue.
Ground 6: The Commissioner failed to take into account the prejudice to Mr Ashton if an extension of time was not granted, namely his age (61 years) and his 10.5 years’ employment with Qube.
Ground 9: The Commissioner made a significant error of fact by finding that there was a significant lack of action on the part of Mr Ashton, without specifying what actions he should have taken but did not. The only fair inference was that the steps taken by Mr Ashton’s legal representatives were the result of instructions given to them by Mr Ashton.
Ground 10: The Commissioner failed to take into account Qube’s contribution to the delay, namely its refusal to provide a copy of the incident report when requested to do so. This was relevant to determining the reason for the delay under s.394(3)(a).
[19] Mr Ashton sought to adduce two items of new evidence in the appeal pursuant to s.607(2). First, as earlier stated, he sought to admit the recording and the transcription he had obtained of the Commissioner’s remarks immediately after the conclusion of the hearing on 21 October 2016. This material did not properly form part of the appeal book required by rule 56(3) of the Fair Work Commission Rules 2013 because it was not part of the “transcript of the evidence and argument in the matter from which the appeal is brought” (rule 56(b)(iii)). We determined to receive this material into evidence because it was not available during the hearing and it was necessary to permit Mr Ashton to advance grounds 3 and 4 of his appeal.
[20] Second, Mr Ashton sought to be admitted into evidence a covert recording which he had made of a meeting with Qube management he had attended on 20 June 2016 in relation to the incident which led to his dismissal, and a transcription of this recording. This was said to demonstrate that one particular aspect of the witness statement of Mr Rattery was false or misleading. It was conceded at the appeal hearing that Mr Ashton was in the possession of this recording at all relevant times, including during the hearing before the Commissioner. We declined to admit this material because no reason had been demonstrated as to why it could not have been placed into evidence at the hearing at first instance.
Consideration
Permission to appeal
[21] This appeal is one to which s.400(1) of the FW Act applies. Section 400(1) provides:
(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part unless the FWC considers that it is in the public interest to do so.
[22] We consider that it would be in the public interest to grant permission to appeal. Mr Ashton’s appeal involves a serious challenge to the fairness of the process conducted by the Commissioner. In that context we consider that the process should be reviewed at the appellate level to ensure that any alleged procedural unfairness is examined and, if demonstrable, remedied. The appeal also raises issues of general application concerning the procedures applied by the Commission in respect of applications for an extension of time under s.394(3) of the FW Act.
[23] We therefore grant permission to appeal.
The appeal - general considerations
[24] An appeal under s.604 of the FW Act is an appeal by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker.9
[25] The test of “exceptional circumstances”, in relation to extensions of time to lodge applications under s.394(3), establishes a “high hurdle” for an application for an extension, and a decision as to whether to extend time under s.394(3) involves the exercise of a broad discretion.10 Therefore it will be necessary, in an appeal against a decision made under s.394(3), to demonstrate that there was appealable error in the exercise of the discretion. This will require the identification of error of the type described in House v The King11 - that is, that the decision-maker has acted on a wrong principle, has mistaken the facts, has taken into account an irrelevant consideration or failed to take into account a relevant consideration, or has made a decision which is unreasonable or manifestly unjust. Additionally, where an error of fact is alleged, s.400(2) requires that it must be a significant error of fact.
[26] Although Mr Ashton’s appeal involves some contentions of appealable error with respect to the substantive decision made by the Commissioner to reject his application for an extension of time, the main focus of his appeal was on the procedure by which the Commissioner heard and determined that application. As earlier stated, it is this which has persuaded us that permission to appeal should be granted in the public interest. We will deal with each appeal ground in turn shortly, but we consider that the following matters arising from our earlier narrative of the course of the proceedings at first instance are critical to a determination of the procedural grounds:
(1) Mr Ashton was at all relevant times after the filing of his application on 24 August 2016 represented by counsel instructed by DeLancey Legal.
(2) The directions issued by the Commission on 14 September 2016 gave Mr Ashton an opportunity to file evidence in support of his application for an extension of time demonstrating the extraordinary circumstances necessary to permit the application to be granted under s.394(3).
(3) The explanatory documents provided to Mr Ashton in conjunction with the directions on 14 September 2016 identified the matters which the Commission was required to consider in connection with an application for an extension of time under s.394(3), and specifically identified that it was necessary for him to explain the whole of the delay in bringing his application. In that context, we consider that the period in excess of four weeks from 29 June 2016, when it became clear that the dispute application was beyond jurisdiction and Mr Ashton lost confidence in his original lawyer (and when the 21-day period for filing and unfair dismissal remedy application had already passed), to 24 August 2016 when Mr Ashton’s application was actually filed, cried out for an explanation. This is particularly the case given that the Commission’s standard form unfair dismissal remedy application (Form F2) is not a complex document, is not in the nature of a formal pleading, is designed so that it may be completed by a layperson, and may be lodged by a number of methods including online. Thus, once Mr Ashton had the benefit of legal advice concerning his capacity to make an unfair dismissal remedy application, it is not readily explicable why such an application could not be quickly filed.
(4) In response to the directions, at a period when he had the benefit of legal representation, Mr Ashton chose not to file any statement of evidence made by himself or anyone else explaining the delay for the period from 29 June 2016 to 24 August 2016.
(5) Mr Ashton was represented by Mr Crowley of counsel at the telephone hearing on 29 September 2016. Mr Crowley affirmed that he wished to proceed in the absence of Mr Ashton. There is nothing on the record to indicate that Mr Crowley took this position on the basis of any particular understanding as to the reason for Mr Ashton’s non-attendance. There was no suggestion at any stage of the hearing that Mr Crowley desired to adduce any evidence from Mr Ashton, notwithstanding that no statement of evidence made by him had been filed pursuant to the directions. There is no reason to think that if Mr Crowley had indicated that he was not willing to proceed in Mr Ashton’s absence, the Commissioner would not have adjourned the hearing until Mr Ashton’s presence on the telephone could be secured.
(6) Mr Crowley advanced no submission during the hearing that explained the delay in the period from 29 June 2016 to 24 August 2016 except that Qube had contributed to the delay by failing on request to provide a copy of the incident report. This was notwithstanding that Qube’s written and oral submissions specifically raised the lack of any explanation for the delay during this period. Further, there was no submission that there was any error on the part of Mr Ashton’s legal representatives after 29 June 2016.
(7) The application to re-open Mr Ashton’s case made on 30 September 2016 did not disclose what the purpose of re-opening the case would be. It contained no indication that there was a desire or intention to adduce evidence from Mr Ashton (although the Commissioner’s reply to the application seemed to assume that was the intention). The reference in the application noting the Commissioner’s comment at the end of the hearing that it was “‘strange’ that counsel did not file a statement” did not necessarily imply this, since the Commissioner’s comment (which we have earlier set out) concerned the lack of any evidence about “Mr Crowley’s conduct in the matter”.
[27] Prima facie, these matters do not indicate any denial of a fair opportunity for Mr Ashton to present his case for an extension of time. The Commission identified the issues he needed to address, including the need to explain the entire period of the delay. He was given the opportunity to make a statement of evidence explaining the circumstances of the delay, and he declined to take advantage of that opportunity. His counsel agreed to proceed in the hearing despite Mr Ashton’s absence. There was never any indication from counsel, including in the application to re-open, that he wished to adduce evidence from Mr Ashton notwithstanding his earlier failure to make a statement of evidence. The only reason Mr Ashton did not give evidence in support of his own case or otherwise provide a proper explanation for the delay 29 June 2016 to 24 August 2016 was that he failed to take up the opportunity to do so. Procedural fairness required the Commission to give Mr Ashton a reasonable opportunity to present his case, not to ensure that he took the best advantage of that opportunity. 12
[28] Having regard to these matters we turn to a consideration of the specific grounds of appeal.
Appeal ground 1
[29] We do not consider that the Commissioner’s response of 4 October 2016 to the application made on behalf of Mr Ashton to re-open his case can fairly be read as premised on the proposition that the Commissioner was precluded from granting the application. Rather, we read the response as identifying the reasons why the Commissioner had decided not to exercise his procedural discretion in favour of Mr Ashton. These reasons were that Mr Crowley had advised the Commissioner at the commencement of the hearing that he would proceed in Mr Ashton’s absence, and that the failure to file a witness statement from Mr Ashton in accordance with the directions meant that the Commissioner would not have allowed Mr Ashton to give evidence at the hearing had he been present and had that been requested in any event. There is nothing in the response which indicates a view that there was a lack of power to allow the case to be re-opened. The first appeal ground is therefore rejected.
Appeal ground 2
[30] It is not clear to us on what basis it is submitted that the “concession” of counsel that he would proceed in the absence of Mr Ashton was “elicited on a false factual basis”, namely that Mr Ashton was “unavailable”. All that is apparent to us is that there was an attempt to connect Mr Ashton by telephone to the hearing, that was unsuccessful for an unknown technical reason, and in those circumstances the Commissioner quite properly asked Mr Crowley whether he was prepared to proceed in Mr Ashton’s absence. There is nothing before us which demonstrates that it was represented to Mr Crowley that Mr Ashton was “unavailable”, or that Mr Crowley’s response was in any sense a “concession” in respect of anything. As earlier stated, there is no reason to think that if Mr Crowley had responded to the Commissioner in the negative, the hearing would not have been adjourned until a time when Mr Ashton could be connected to the hearing. We consider that the Commissioner was entitled to proceed on the basis that the response he received from Mr Crowley was either made on instructions or represented the exercise of sound forensic judgment. Further, the Commissioner was entitled to presume from the response that Mr Crowley’s counsel did not consider that Mr Ashton’s absence would result in him being denied procedural fairness and that there was never any intention to adduce evidence from Mr Ashton at the hearing.
[31] Appeal ground 2 is rejected.
Appeal ground 3
[32] A legally unreasonable decision is one which is made otherwise than in accordance with the rules of reason and justice, or is arbitrary, vague or fanciful, or is made in bad faith or dishonestly, or is manifestly unjust or oppressive, or lacks an evident or intelligible justification, or which no reasonable person could have arrived at. In the context of administrative decision making, the standard of reasonableness is assessed having regard to the scope and purpose of the governing statute, with the relevant question being whether the decision represented an abuse of the statutory power. However a standard of legal reasonableness does not involve substituting an appellate body’s view as to how a discretion should be exercised for that of the decision-maker at first instance. 13
[33] We do not consider that the Commissioner’s decision to refuse Mr Ashton’s request to re-open his case after the Commissioner had reserved his decision approached anywhere near the standard of legal unreasonableness. An application to re-open by a litigant who had already had a full and fair opportunity to advance the case that he or she wished to advance will not readily be granted, and the public interest in the finality of litigation means that the power to re-open will always be exercised with caution. The usual grounds for an application to re-open are that there is fresh evidence, there has been an inadvertent error, there has been a mistaken apprehension of the facts, or that there has been a mistaken apprehension of the law. 14 An application by a party to re-open its case in order to adduce evidence as to a relevant matter, in circumstances where the party had earlier made a deliberate decision not to adduce such evidence, may legitimately be rejected in the interests of justice. However such an application may attract greater sympathy if the decision not to adduce the evidence at the hearing was the result of an error by the party’s counsel.15
[34] Having regard to the course of the proceedings which we have earlier described, it may be inferred that there was a deliberate decision not to have Mr Ashton give evidence in support of his application for an extension of time. For reasons earlier given, the absence of Mr Ashton for most of the hearing did not have the consequence that he was deprived of the opportunity to give evidence because he had never intended to give any evidence.
[35] The application to re-open did not, as earlier stated, given any indication of the reason for or purpose of the re-opening. It was not stated that its purpose was to allow Mr Ashton to give evidence, or that Mr Ashton’s absence for most of the hearing had deprived him of the opportunity to give evidence, or that counsel had made a mistake in respect of not having him prepare a witness statement, or that Mr Ashton had any evidence to give which he could not have given by way of a witness statement filed in accordance with the directions.
[36] That the Commissioner had apparently formed the view, after he reserved his decision, that the failure to call any evidence from Mr Ashton explaining the delay would tell against him did not mean that Mr Ashton should have been allowed to re-open his case to give such evidence (even assuming that was the purpose of the application to re-open). No party who has been given a reasonable opportunity to advance his or her case is automatically entitled to be given a second opportunity in order to rectify an apparent deficiency in that case. The position is a fortiori where the party is represented by counsel. The overriding consideration is the interests of justice, but that requires to be taken into account not just the individual circumstances of the party applying to re-open but also the public interest in the finality of litigation. 16
[37] Appeal ground 3 is rejected.
Appeal ground 4
[38] The test for apprehended bias is that a fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the resolution of the question the decision-maker is required to decide. 17 The critical aspect of the case in this respect here is that the inadvertently-recorded remarks of the Commissioner had been made at a time when, so far as he was aware, he had heard the respective cases advanced by Mr Ashton and Qube in their entirety and had reserved his decision. Insofar as those remarks disclosed the view the Commissioner had formed about the merits of the case, they could not for that reason be regarded as demonstrating a lack of impartiality. The matter had reached the stage where it was the Commissioner’s duty to reach a decision. That, by “thinking aloud” in the presence of his Associate, the Commissioner gave a clear indication as to what his decision would be and what factors had led him to that position would be regarded by the fair-minded lay observer as entirely unremarkable given that the Commissioner had already heard the case. The matters adverted to concerning prejudice to the employee and the lack of any evidence from Mr Ashton subsequently featured as reasons in the Decision for the refusal of the extension of time, so they could not be characterised as ulterior considerations improperly affecting the decision-making process.
[39] Mr Ashton relies heavily on the manner in which the Commissioner expressed his thoughts as indicative, retroactively, of a lack of impartiality towards his case. In this respect Mr Ashton veered close to an allegation of actual bias. We reject this. The Commissioner was speaking informally and, he would have thought, privately to his Associate. The two aspects of the remarks seized upon by Mr Ashton - “that’s what he’s gonna get called [or caught or cruelled] on” and “We’ll save it” -would be taken by the fair-minded lay observer to be no more than colloquial indications that the failure to adduce evidence from Mr Ashton would ultimately count against him (as it did). We do not consider that the more sinister interpretation advanced by Mr Ashton is reasonably available.
[40] We also reject the proposition that the recorded remarks might lead a fair-minded lay observer to think that the Commissioner did not impartially consider the application to re-open which was made the following day. The Commissioner of course could not have known that such an application would be made, nor do any of his remarks involve an expression of any view reasonably relatable to any potential future re-opening of the hearing.
[41] Insofar as the Commissioner made some mildly disparaging remarks about the way in which Mr Ashton’s counsel advanced his case, that does not take the apprehension of bias point any further. The fair-minded lay observer would understand that judges and tribunal members may from time to time express views about the performance of counsel who appear before them without that affecting their capacity to decide impartially the cases advanced by them.
[42] Appeal ground 4 is rejected.
Appeal ground 5
[43] We do not consider that Mr Ashton was denied procedural fairness because the Commissioner did not point out at some stage during the hearing that Mr Ashton had himself given no evidence as to the circumstances of the delay in making his application (particularly in relation to the period from 29 June 2016 to 24 August 2016). As earlier stated, the Commission had earlier alerted Mr Ashton of the need to identify the reason for the entire period of the delay in bringing his application, and he had failed to take advantage of the opportunity afforded him by the directions to make a statement of evidence addressing this issue. Qube’s written and oral submissions also raised the lack of any explanation for the delay during this period. Mr Ashton was legally represented throughout, including by counsel. In those circumstances, we do not consider that the Commissioner was required to point out at the hearing that Mr Ashton had failed to give any evidence on a critical issue. Because the operations of the rules of procedural fairness will adjust themselves to the circumstances of the particular case, the position may arguably have been different if Mr Ashton had been a self-represented litigant. However Mr Ashton was represented by counsel at the hearing.
[44] Appeal ground 5 is rejected.
Appeal ground 6
[45] The Commissioner was not required by s.394(3) to take into account the prejudice to Mr Ashton that would be caused by a refusal of an extension of time. The Commissioner did take the argument advanced in that respect by Mr Ashton’s counsel into account, but rejected it on the basis that any applicant refused an extension of time would be denied the opportunity to advance his or her case. That was, we consider, a reasonable conclusion to make. The Commissioner separately took into account, as he was required to do under s.394(3)(e), the merits of the application, and expressed a view about this which is not the subject of any challenge in the appeal grounds pressed at the hearing. Mr Ashton’s age takes the matter little further. He did not, as asserted in his submission, have 10.5 years’ service in the employment the subject of the dismissal; it was less than 3 years.
[46] Appeal ground 6 is rejected.
Appeal ground 9
[47] We do not accept that the Commissioner made a significant error of fact in concluding that there was a lack of action on Mr Ashton’s part in pursuing his claim after 9 August 2016. 18 That was an inference drawn by the Commissioner on the basis of the evidentiary material before him. We consider that it was reasonably open to him to draw this inference, and we agree with it. By 9 August 2016 at the latest Mr Ashton had received advice from his new lawyers. We presume that this included advice about his unfair dismissal rights and the 21-day time period for filing an application. We cannot imagine that if there had been a failure to provide such advice, it would not have been disclosed by Mr Ashton’s lawyers at the hearing before the Commissioner (or at the appeal hearing). There is no evidence that Mr Ashton did anything to hasten the lodgement of his application from that time until 24August 2016, and indeed despite the advice he had been given he did not sign a costs agreement until 19 August 2016. The submission advanced in the appeal that it should be inferred that everything done by Mr Ashton’s lawyers was done on his instructions does not assist him. It means that the filing of the application on 24 August 2016, as against any earlier time, was a result of an instruction from him.
[48] Appeal ground 9 is rejected.
Appeal ground 10
[49] We do not consider that the Commissioner committed any appealable error by not taking into account as a reason for the delay Qube’s refusal on request to provide a copy of the incident report. It was left unexplained in the appeal why access to the incident report was necessary in order for Mr Ashton to have his unfair dismissal remedy application prepared and lodged by his lawyers. Although the report was never provided, the application which was eventually filed was able to set out in a detailed and comprehensive way the grounds of the application. Presumably Mr Ashton’s lawyers were also able to give him advice about his prospects of success prior to the lodgement of the application without the benefit of access to the incident report. No explanation was advanced as to why, in those circumstances, the application in the form that it was could not have been filed much earlier than 24 August 2016. In any event, Qube’s refusal to provide the incident report could at best only have explained a very small part of the delay. It was a matter of little or no weight.
[50] Appeal ground 10 is rejected.
Conclusion and orders
[51] We do not consider that the Decision was attended by appealable error. We are satisfied that the Commissioner’s refusal to grant Mr Ashton an extension of time under s.394(3) was reasonably open to him in the exercise of his discretion, and that he afforded procedural fairness to Mr Ashton. The appeal grounds are rejected and the appeal must be dismissed.
[52] We order as follows:
(1) Permission to appeal is granted.
(2) The appeal is dismissed.
VICE PRESIDENT
Appearances:
M. Crowley of counsel for D. Ashton.
E. Hartley solicitor for Qube Bulk Pty Ltd.
Hearing details:
2016.
Melbourne:
13 December.
1 [2016] FWC 7668
2 [2011] FWAFB 975; 203 IR 1
3 [2011] FWAFB 2728
4 Decision at [28]
5 Decision at [27]
6 Decision at [23]
7 Decision at [32]
8 Decision at [33]
9 This is so because on appeal the Commission has power to receive further evidence, pursuant to s.607(2); see Coal and Allied v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ
10 Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21]
11 (1936) 55 CLR 499
12 Re Coldham; Ex parte Municipal Officers Association of Australia [1989] HCA 13; 63 ALJR 298 at 220 per Gaudron J; Sullivan v Department of Transport (1978) 20 ALR 323 at 343 per Deane J; Secretary, Department of Family and Community Services v Verney [2000] FCA 570 at [45], Soames v Secretary, Department of Social Services [2014] FCA 295 at [41]
13 Minister for Immigration and Citizenship v Li [2013] HCA 18, 249 CLR 332 at [64]-[76] per Hayne, Kiefel and Bell JJ
14 Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22 at [24]
15 Ibid at [25]-[28]
16 Ibid at [24], referred to with approval in Ashby v Slipper (No 3) [2015] FCAFC 9; 317 ALR 623 at [39]
17 Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 at [6]
18 Decision at [31]
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