Christopher Ross v Australian Postal Corporation
[2024] FWCFB 350
•23 AUGUST 2024
| [2024] FWCFB 350 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Christopher Ross
v
Australian Postal Corporation
(C2024/1796, C2024/1987, C2024/2635, C2024/2830, C2024/3147)
| VICE PRESIDENT ASBURY | BRISBANE, 23 AUGUST 2024 |
Appeal against procedural decision of Commissioner Harper-Greenwell at Melbourne on 13 March 2024 in matter number C2024/962; Appeal against decision [2024] FWC 802 of Deputy President Millhouse at Melbourne on 28 March 2024 in matter number C2024/1769; Appeal against decision [2024] FWC 1098 of Commissioner Harper-Greenwell at Melbourne on 26 April 2024 in matter number C2024/962; Appeal against procedural decision of Justice Hatcher, President, at Sydney on 3 May 2024 in matter number C2024/1796, C2024/1987 and C2024/2635; Appeal against decision [2024] FWC 1290 of Deputy President Slevin at Sydney on 16 May 2024 in matter number C2024/2830.
Background
Mr Christopher Ross (Appellant/Mr Ross) has lodged five applications to appeal, each requiring permission to appeal. All of the appeals relate to an application by Mr Ross under s 365 of the Fair Work Act 2009 (the Act) by which Mr Ross sought that the Fair Work Commission (Commission) deal with a dismissal dispute in relation to his dismissal by the Australian Postal Corporation trading as Australia Post (Australia Post/Respondent). The proceeding before the Commissioner was to determine whether there were exceptional circumstances for the purposes of s 366(2) of the Act, such that Mr Ross should be granted a further period to make a “general protections” application outside of the 21-day period provided by s 366(1)(a). Mr Ross sought an adjournment or to “stay” the proceeding which was refused by the Commissioner. The Commissioner subsequently determined that there were no “exceptional circumstances” to justify the grant of a further period for Mr Ross’ general protections application to be made, and dismissed that application.
In summary, the five applications for appeal are advanced on the following bases:
· (First Appeal) Appeal C2024/1796 lodged on 22 March 2024 – in this application, Mr Ross seeks to appeal against a decision of the Commissioner made on 13 March 2024, in which Mr Ross’ application to adjourn or otherwise stay the extension of time proceeding before the Commissioner was refused.
· (Second Appeal) Appeal C2024/1987 lodged on 28 March 2024 – in this application, Mr Ross seeks to appeal a decision of Deputy President Millhouse[1], who rejected Mr Ross’ application that day for a stay pending determination of the First Appeal.
· (Third Appeal) Appeal C2024/2635 lodged on 26 April 2024 – in this application, Mr Ross seeks to appeal against the substantive decision of the Commissioner, who dismissed Mr Ross’ general protections claim in a decision issued on that date[2] as after finding no “exceptional circumstances” were present to justify an extension of time for Mr Ross to lodge his general protections application.
· (Fourth Appeal) Appeal C2024/2830 lodged on 6 May 2024 – in this application, Mr Ross seeks to appeal a refusal by Justice Hatcher, President, to vacate procedural directions issued on 3 May 2024 in relation to the conduct of the First to Third Appeals, above.
· (Fifth Appeal) Appeal C2024/3147 lodged on 17 May 2024 – in this application, Mr Ross seeks to appeal a decision of Deputy President Slevin[3], who rejected Mr Ross’ application for a stay pending determination of the Fourth Appeal.
To put Mr Ross’ appeal applications in context, a precis of the procedural history of Mr Ross’ various proceedings and applications before the Commission follows. The chronological history that follows is, necessarily, a summary only. In the proceedings at first instance, and in the appeals, Mr Ross generated a substantial volume of email correspondence, often with multiple and repetitive communications on the same day. It is not practicable to set them out comprehensively or to otherwise seek to summarise them, and nor is there any utility in doing so.
Events leading to the First Appeal
A convenient starting point is 8 January 2024. This date is the undisputed date that Mr Ross was notified by the Respondent that his employment was terminated. This date was also the date that the termination of Mr Ross’ employment took effect.
On 21 January 2024, Mr Ross made an application to the Commission (U2024/962) for an unfair dismissal remedy under s 394 of the Act in the correct form for such an application - a “Form F2”. That application was lodged on Mr Ross’ behalf by the Communication Workers Union, and was made within the 21-day period stipulated by s 394(2)(a) of the Act.
On 15 February 2024, Mr Ross lodged a second Form F2 application for an unfair dismissal remedy (assigned case number U2024/1625). This application appears to have been prompted following a negative outcome for an internal review by Australia Post of Mr Ross’ dismissal. Nothing turns on the lodgement of the second Form F2.
On 16 February 2024, Mr Ross lodged a third application, for a different claim, being his current application under s 365 alleging he was dismissed in contravention of the “general protections” provisions of the Act. The application was lodged with the correct form for such an application - a “Form F8”. This application (subsequently assigned case number C2024/962) is the application that led to the present suite of applications to appeal. Mr Ross’ general protections application was made outside the 21-day period stipulated by s 366(1)(a) of the Act, a matter Mr Ross noted in his Form F8 when he lodged that form.
There are statutory restrictions on making certain types of claims under the Act. Division 3 of Part 6-1 of the Act is titled “Preventing multiple actions”. Subdivision B of Division 3 is titled “Applications and complaints relating to dismissal”. Within Subdivision B, s 725 of the Act provides that a person who has been dismissed must not make an application or complaint of a kind referred to in any one of sections 726 to 732 in relation to the dismissal if any other of those sections applies. Applications for unfair dismissal remedies and applications under s 365 are each referred to in sections 726 to 732 of the Act.
In short, Mr Ross was not permitted to make the general protections claim commenced by his Form F8 application while his unfair dismissal application under his Form F2 remained on foot.
Beginning on 16 February 2024, Commission registry staff wrote to Mr Ross on various occasions concerning Mr Ross’ multiple applications. It is not necessary to deal with the minutia of that correspondence because, in his oral explanation provided to the Full Bench on 12 June 2024, Mr Ross gave the following succinct description:
“And there was a few days back and forth about which one needed to be cancelled.
… Long story short, I made the determination because it’s my proceeding that I wanted to cancel the F2 which was within 21 days.
And I wanted to proceed with the F8, which was outside 21 days.
I made the determination because I believe the correct proceeding is the F8 application. …”
On 24 February 2024, the Respondent lodged a Form F8A response to Mr Ross’ general protections claim. The Respondent raised a jurisdictional objection that Mr Ross’ application was out of time.
On 27 February 2024, and with Mr Ross’ unfair dismissal application now discontinued, the parties were advised that Mr Ross’ general protections application in case number C2024/962 would be referred to a member of the Commission to deal with Australia Post’s jurisdictional objection. The matter was referred to the Commissioner.
On 6 March 2024, the Commissioner issued a Notice of Listing for a directions hearing to be held on 13 March 2024.
On 8 March 2024, Mr Ross sent an email to the Commissioner’s chambers indicating that he wanted to make an application for a stay of the proceeding before her and asked what form was required for his application.
On 12 March 2024, through correspondence with the Commissioner’s chambers, Mr Ross was informed that it would be sufficient for his application to be made by email. He was told the “request must provide the reason for seeking an adjournment, indicate the duration of the adjournment and provide supporting documentation for the Commissioner’s consideration. The other party must also be copied to this correspondence.” The directions hearing listed for 3.00pm the following day was also confirmed.
On the morning of 13 March 2024, Mr Ross sent an email setting out his foreshadowed stay application. The email stated:
“I ask for a 2 week adjournment of this hearing this afternoon.
This is to allow me time to submit a proper Leave or Stay application as I am awaiting applications to be filed by the Supreme Court of Victoria and Supreme Court of NSW for me to obtain legal representation for this proceeding.”
At 1.52pm the same day, he sent a further email with a one-page submission in support of his stay application. That submission referred to various matters but, distilled, referred to a “civil law matter pertaining to my military service”. Mr Ross then explained the difficulties he had in obtaining no-win, no-fee lawyers, and referred to correspondence he had received from the Supreme Court of NSW in a different proceeding that recommended he obtain legal advice. Mr Ross stated that the Communications Workers Union had declined to assist him. He also referred to separate proceedings he intended to commence to obtain (or, perhaps more accurately, compel) the provision of legal services to him, which Mr Ross asserted had “real and reasonable prospects of success”. Mr Ross identified proceedings in the Supreme Court of NSW (presumably the same proceeding referred to above) and proceedings in the Supreme Court of Victoria.
Mr Ross’ submission attached what appeared to be an unsealed originating motion, to be issued in the Trusts, Equity and Probate List of the Supreme Court of Victoria. The Communication Workers Union was listed as a proposed defendant, along with a number of other named individuals. The relief sought was for “assistance – through financial and legal representative aid – for my legal proceeding” in the Commission (presumably the matter before the Commissioner, although it was not specified) and other unspecified proceedings. Mr Ross sought “to be deemed a ‘Trustee’, and then to be able to use” the services of the Communications Workers Union, Legal Aid and possibly others.
No particular detail was provided about the “civil law matter pertaining to [Mr Ross’] military service” in his submissions, although we note that Mr Ross’ Form F8 application states the following:
“1. I am suing the Commonwealth and Ors in relation to my military service.
2. The Commonwealth spied on me in 2015/16 in relation to this.
1. I made an application to the AOIC [scil., the Office of the Australian Information Commissioner] in relation to this at the time. Further, this was then a Judicial Review in the Federal Court of Australia.
3. They did this again at the start of my work at Australia Post.
1. I made an application to the AOIC recently, who dismissed this application as the Respondent was the ‘Commonwealth of Australia’. I subsequently have in recent days resubmitted this application with the Respondent being ‘Australia Post’.
4. They then just wanted a reason for AP [i.e. Australia Post] to sack me.:
1. It is my submission that the Commonwealth of Australia, or one of its entities, have ‘asked’ or ‘ordered’ or ‘coerced’ Australia Post into ‘sacking me’.
2. I believe that this occurred almost immediately from the time I started my employment with Australia Post.
3. I believe that the Commonwealth of Australia ‘found reason’ from the above-stated violations of my Privacy, which is a violation in both civil and criminal law, to then ‘pass on’ to Australia Post as a reason to dismiss me.
5. ….”
At the hearing of Mr Ross’ application for leave to appeal before us, he requested we review the recording of the directions hearing on 13 March 2024. We have done so.
After the directions hearing commenced, it was adjourned for a short period to allow the Respondent to consider Mr Ross’ submission (which the Respondent had not yet had the opportunity to review before the directions hearing). Upon resumption, the Commissioner summarised the basis for Mr Ross’ request for a stay being his intention to obtain legal advice (which Mr Ross agreed with). The Commissioner indicated she was not going to “presently” stay the matter and also indicated she would arrange for Mr Ross to apply to the Workplace Advisory Service, to ascertain if he might qualify for free legal assistance through those arrangements. The Workplace Advisory Service is an arrangement where the Commission organises free legal help for employees and employers that qualify. The nature of the service will typically involve an appointment for up to an hour with a lawyer, where procedural or substantive advice or assistance might be provided in relation to the claim in question. Despite the offer for these arrangements, Mr Ross pressed his request at the directions hearing for the forthcoming hearing to be immediately stayed or otherwise vacated.
The Commissioner did not stay the matter before her at that time. The Commissioner set the directions and explained there was “liberty to apply”. She also explained it would give Mr Ross time to make his request of the Workplace Advisory Service. Mr Ross stated (among other matters) that if a stay was not granted, he would make an application for an appeal. The Commissioner explained that the directions would be issued with a timetable for the filing of evidence and a hearing date and that Mr Ross would be at liberty to apply for a further adjournment, depending on his endeavours with the Workplace Advisory Service. The Commissioner set down some programming dates. Mr Ross sought to resist this, in part, by reference to an (unexplained) special leave application to the High Court – he said this was his priority. Mr Ross insisted that his stay application proceed. Mr Ross said that the Commissioner had been “briefed substantially” about him – this was not explained but we understand it relates to Mr Ross’ broader allegations about conspiracy and coercion among various unspecified Commonwealth officials.
The Commissioner indicated that on the material before her, the adjournment was not granted. The Commissioner reiterated, and explained again, there was liberty to apply. While there was a ‘back-and-forth’ about the stay application, that is how the directions hearing concluded.
The directions that were subsequently issued on 13 March 2024 by the Commissioner for the extension of time matter (the EOT directions) required Mr Ross to file and serve his material by 29 March 2024, Australia Post by 2 April 2024, and the matter was listed for hearing on 9 April 2024. The final direction stated, in bold font and highlighted red, “The parties are at liberty to apply for a variation to these directions.”
On 18 March 2024, Mr Ross applied by email to the Commissioner’s chambers for an order directed at the Victorian Civil and Administrative Tribunal (VCAT) for a mental health assessment, for an “extended Leave Order” (which was to the effect that the proceeding before the Commissioner was stayed pending claims apparently now filed in the Supreme Courts of NSW and Victoria, and the Federal Court), and a permanent stay order. No supporting material was provided.
On the same day, the Commissioner responded through chambers as follows (formalities omitted):
“Chambers refers to the below correspondence on 18 March 2024. The Commissioner has considered the requests by the Applicant and declines to grant the orders sought and provides the following.
The Applicant requests the Commission issue an order for a VCAT mental health assessment. The Commissioner notes that the Fair Work Commission does not have the jurisdiction to grant the first order requested by the Applicant.
It appears the Applicant is making a request to have the matter held in abeyance pending the outcome of Applications made to the Supreme Court of Victoria, Supreme Court of New South Wales and The Federal Court of Australia. The Commissioner considers that there is insufficient information pertaining to this request that would persuade her to grant the request. Further the Commissioner notes that parties may represent themselves before the Commission. Permission for representation before the Commission is not automatically granted and should parties choose to engage a legal representative, the representative must request permission to take part in a conference or hearing. Mr Ross may bring a support person such as family member, which may be of assistance if he has been unable to engage a legal representative. Mr Ross may also wish to consider the following information available on the Commission’s website: [link omitted].The Applicant also requests that the Commissioner make a Stay Order, the Commissioner notes that no decision has been made by this Commission in this matter (C2024/962), therefore it is unclear what the order sought pertains to.
The Commissioner has formed the view that in the absence of further particulars the directions and listing for hearing (jurisdiction only - extension of time) at 9:00am AEST on Tuesday, 9 April 2024 are retained.”
Further supporting material was then supplied by Mr Ross. Specifically, on 19 March 2024, Mr Ross attached various unsealed and unsigned affidavits that appeared to indicate an intention to commence claims in the Supreme Court of Victoria and the Federal Court of Australia. Also included was a sworn and sealed affidavit from an earlier (and possibly ongoing) proceeding in the Supreme Court of Victoria from 2022 (with the Victorian Legal Aid Office as the named respondent), and an earlier affidavit from 2018 in a different proceeding (and possibly ongoing) in that Court (the Commonwealth of Australia being the named respondent in that matter), as well as other documents, including a fee-waiver application dated 19 March 2024 to the Supreme Court of Victoria.
On 21 March 2024, the Commissioner responded to Mr Ross’ further email and stated that she was unpersuaded by the further material. The Commissioner referred to her email sent on 18 March 2024 (extracted above). The existing directions and the hearing listing for 9 April 2024 were confirmed.
In response to the above decision, Mr Ross made his First Appeal application, which was lodged on 22 March 2024. The grounds identified in the Notice of Appeal were (in summary):
· An alleged error of law because there was a “Matter of a Constitutional nature”;
· The Commissioner’s decision was “unreasonable”, in that he should have been given time to obtain legal representation in light of the alleged complexity of his matter;
· Not taking into account evidence, being a reference to the evidence he provided to the Commissioner;
· There are “Contingent proceedings to this proceeding”, being a reference to Mr Ross’ claims against the Communications Workers’ Union and the Commonwealth of Australia;
· Alleged “Errors of Fact”, which were said to be reflected in the original decision “because the evidence supported a different result”.
Events leading to the Second Appeal
In Mr Ross’ Form F7 filed for the First Appeal, he applied for a stay order of the “trial listed for 9 April 2024” and that the EOT directions be stayed.
This stay application was allocated to Deputy President Millhouse. The Deputy President issued directions and indicated that the matter was appropriate to be dealt with “on the papers”. Mr Ross filed three emails, containing his submissions, on 26 March 2024, and twice on 27 March 2024.
The stay application was not opposed by Australia Post, and it filed no submissions.
On 28 March 2024, Deputy President Millhouse issued a written decision[4] declining Mr Ross’ application for a stay. The Deputy President’s decision recounted much of the procedural history, set out above, and Mr Ross’ appeal grounds and submissions. It is unnecessary to summarise that material.
The Deputy President referred to the applicable principles relevant to consideration of a stay application pending appeal, which is that there must be some arguable case with some reasonable prospects of success and the balance of convenience favours the stay. The Deputy President’s decision records that she rejected Mr Ross’ application on both grounds. It is again unnecessary to set them out in full but, on the question of balance of convenience, we note the following conclusion of the Deputy President in her decision:
“[32] In the counterfactual scenario, where a stay is not granted, Mr Ross may be successful in obtaining an extension of time at the hearing before the Commissioner on 9 April 2024. If so, there would seemingly be no ongoing utility in the present appeal because the Commissioner’s procedural decisions would not have deprived Mr Ross of the opportunity for a successful result.
[33] Alternatively, Mr Ross may be unsuccessful in obtaining an extension of time for the making of his general protections application. It would be open to Mr Ross to appeal that extension of time decision. Assuming the Commissioner’s decision, and any arising appeal is made prior to May 2024 when Mr Ross’ present appeal application will likely be listed for hearing, the Full Bench could hear and determine in a single hearing all of the issues that Mr Ross may wish to raise concerning his application for an extension of time. This could occur with the benefit of the Commissioner’s reasons for decision. As part of this process, it would be open to Mr Ross to challenge the Commissioner’s procedural rulings which he contends affected the final result as it relates to an extension of time. The capacity to address all of Mr Ross’ concerns efficiently in this way avoids the possibility of a multiplicity of appeals and therefore favours the stay being refused.”[5]
In response to the above decision, Mr Ross made his Second Appeal application, which was lodged on 28 March 2024. We return to the substance of this application, below.
We note that Mr Ross again sought a stay of the Commissioner’s EOT directions as part of his appeal of Deputy President Millhouse’s decision. That stay application was heard and determined by Deputy President Colman on 5 April 2024, who refused that application.[6] There is no appeal from that decision.
Events leading to the Third Appeal
On 28 March 2024, Mr Ross wrote an email to the Commissioner’s chambers titled “Application for adjournment”. Mr Ross again sought a variation of the EOT directions and a generalised “leave” application. Mr Ross stated:
“I seek a 6 week adjournment of these orders; I am away for 2 weeks from tomorrow night. I would like 4 weeks after that to submit a substantive leave and stay application as I have not been provided any time in this proceeding to do so to date.”
The Commissioner did not accede to Mr Ross’ request, however she did amend the EOT directions to allow Mr Ross further time to file and serve any material he intended to rely upon for the extension of time proceedings. Mr Ross’ filing date was amended from 29 March 2024 to 5pm, 3 April 2024.
Mr Ross did not file any material by the required time. An email from the Commissioner’s chambers at 4.06pm on Friday, 5 April 2024 noted that fact and stated that the matter remained listed for an in person hearing on Tuesday, 9 April 2024. Mr Ross replied:
“I am currently overseas and unable to attend in person.
- I return on the 15th or 16th.
- I seek an adjournment until after:
- I return to Melbourne/Australia.
- The hearing of the Full Bench in relation to my 2 appeals that were listed today”
In response to Mr Ross’ reiterated request for an adjournment, the Commissioner responded through chambers stating that his request contained insufficient evidence to support the adjournment application. The hearing date was confirmed and Mr Ross was directed to attend.
By email received at 5.38pm on Tuesday, 8 April 2024, Mr Ross again pressed his application for an adjournment. On this occasion, Mr Ross attached a copy of international flight bookings, which indicated he had been overseas since 30 March 2024 and would be returning on 16 April 2024. Mr Ross also explained his adjournment was required because “I seek to have heard in the Federal Court of Australia a Form 69 application”. Mr Ross attached to his email a signed, but unsealed, application and statement of claim for a Federal Court claim. The respondents named in those documents were Deputy President Millhouse and the Commissioner.
On 9 April 2024, shortly before the scheduled EOT hearing was due to commence, Mr Ross was told that he could attend the hearing via video conference. Very shortly before the substantive hearing started, Mr Ross sent an email with the following:
“I seek an order to:
1. Stay this proceeding pursuant to the Form 18 Notice of a Constitutional Matter application I have raised; and the Form 69 application I have raised in the Federal Court of Australia. Both of these documents were sent to you in my original stay and leave application.
2. Transfer this proceeding to the Federal Court of Australia, which pursuant to the Fair Work Act and the Federal Court of Australia Employment law practice note is permissible and lawful.
3. Merge this proceeding, once step 2 is done, with my original F2 application (unfair dismissal application).”
Upon the matter being called on, Mr Ross was in attendance by video. We note there was a brief adjournment shortly after the start due to a recording issue. Mr Ross reiterated orally his request for the three “orders” set out in the paragraph above. Mr Ross’ request was declined, and the Commissioner proceeded to deal with the substantive extension of time issue.
Notwithstanding that Mr Ross had not filed material directed at the extension of time issue beyond his Form F8, Mr Ross was affirmed and permitted to give oral evidence. However, after he was affirmed, he indicated that he was not going to address the jurisdictional issue (i.e. the extension of time), he declined to give evidence, and while he said his Form F8 application was pursued, he was going to “withdraw” from the hearing before the Commissioner. Mr Ross indicated that he needed to leave to be somewhere else. Mr Ross was told that the proceeding would continue in his absence. Unfortunately, further issues with the technology then ensued at which point Mr Ross had left. Attempts to rejoin him by telephone were unsuccessful, as no calls were answered. The proceeding continued in Mr Ross’ absence before concluding. The Commissioner reserved her decision.
On 26 April 2024, the Commissioner issued a decision[7] (the EOT decision) refusing to grant Mr Ross the extension of time he sought.
At the hearing of Mr Ross’ application for leave to appeal before us, he requested we review the recording of the hearing on 9 April 2024. We have done so, although we note that the Commissioner’s summary in the EOT decision[8] of Mr Ross’ stay application was more comprehensive than the summary we have provided above.
In response to the EOT decision, Mr Ross made his Third Appeal application, which was lodged on the same day the EOT decision was issue.
Events leading to the Fourth Appeal
On 3 May 2024, the President of the Commission issued directions in respect of the First to Third Appeals. Among other matters, those directions required Mr Ross to file and serve, by 5pm, 17 May 2024, an outline of submissions addressing permission to appeal and the merits of the appeal for those three applications to appeal. Those three matters were also listed for hearing at 10am, 12 June 2024.
On the same day, Mr Ross sent two emails to the President’s chambers seeking “an order adjournment and leave and stay application of the orders made by the President on 5/3/2024 [scil., 5 May 2024]”. Mr Ross advanced three reasons:
“• “Reason One” was that Mr Ross wished to sue a law firm, his former union and to obtain “Form 69 relief” in the Federal Court of Australia on “constitutional” grounds (which were said, among other matters, to involve prohibiting “collusion” between law firms and unions);
· “Reason Two” was to sue some specific holders, or former holders, of various offices he identified. Examples given included the Commonwealth Attorney General in 2016, the directors of Victorian Legal Aid in 2016 and others.
· “Reason Three” was to obtain time to see if “DAVLS” (the Defence and Veterans Legal Service) would represent him.”
Mr Ross also sought an adjournment to allow him to obtain a “certificate” from the Federal Court of Australia “for my original F2 application to be reinstated and heard alongside this proceeding.” On 6 May 2024, by correspondence from chambers, the President refused Mr Ross’ stay applications. In response, Mr Ross made his Fourth Appeal application, which was lodged on the same day.
Events leading to the Fifth Appeal
The Notice of Appeal[9] for Mr Ross’ Fourth Appeal sought an order for a stay under s 606 of the Act as follows:
“1. The trial listed for 12 June 2024 be adjourned, stayed and left (leaved?).
2. Submissions listed for 17 May 2024 in support of my appeals be adjourned, stayed and left (leaved?).”
The application for this stay application was allocated to Deputy President Slevin.
On 10 May 2024, Deputy President Slevin issued a notice of listing, setting down the hearing of the stay application accompanying the Fourth Appeal for 14 May 2024.
On 11 May 2024, Mr Ross sent a series of emails, with attachments, described as submissions in support of his application before Deputy President Slevin. The first email begins:
“My submissions.
1. I’m not a motherfucking lawyer. I seek legal representation in this proceeding. The legal representation may be to dismiss this proceeding. I seek to sign a legal services agreement with a solicitor and for him to make this decision. This would be for the second time. The first time the guy fucked me because he was told and paid to by the Commonwealth. So I’m gonna fuck him. I have paid a retainer to a solicitor and in accordance with his Solicitor Code of Conduct obligations expect to sign a legal services agreement with him to represent me. I don’t have to tell you how I will pay him. I have communicated to him information about that. He said that he doesn’t have capacity until 6 weeks. After that he does. My matter/s are very complex. [The first point of the email continues with various matters that we understand is intended to demonstrate some form of conspiracy among officials or lawyers in relation to Mr Ross].
2. I have made appropriate lawful steps to adhere to my obligations as a plaintiff in this proceeding.
3. [Mr Ross again referred to his “constitutional” writs and other claims we have referred to above.]”
On the morning of the hearing before Deputy President Slevin, Mr Ross sent a further email requesting a stay (that is of his stay application before the Deputy President) on the apparent basis that he had secured legal representation. Correspondence from the Deputy President’s chambers indicated that the proceeding would continue and Mr Ross could raise those matters at the proceeding.
Deputy President Slevin heard and considered Mr Ross’ application for a stay of the President’s directions and issued a decision refusing Mr Ross’ application on 16 May 2024.[10] It is unnecessary to recite the reasons in detail; the substance of the Deputy President’s reasoning was as follows:
“[7] The decision that Mr Ross seeks to appeal was an interlocutory decision. It was a decision not to adjourn proceedings. It was not a decision that had any operative effect. The refusal of the application to vacate the hearing and associated directions did not give rise to anything capable of being stayed pending appeal. A stay of the refusal to adjourn would simply put Mr Ross in the position he was before making the adjournment request. The earlier directions and listing would remain in place.”
The Deputy President noted that aspects of the “stay” orders sought went well beyond a stay of the refusal to adjourn and were beyond the power in s 606 of the Act. The Deputy President also noted that a notice of listing had issued separately for a hearing on the question of permission to appeal in the Third Appeal to occur on 4 June 2024. The Deputy President stated that if, in the meantime, Mr Ross secured an appointment to see a lawyer on 21 May 2024 (as Mr Ross had foreshadowed), he was free to make a further request to the President’s chambers that the directions for his submissions in the other appeal be extended.
The Deputy President dismissed the application.
In response, Mr Ross made his Fifth Appeal application, which was lodged the following day.
Other procedural requests
By 17 May 2024, each of Mr Ross’ five applications for permission to appeal were listed to be heard on 12 June 2024 before this Full Bench.
Mr Ross’ applications to “stay” or otherwise adjourn the various applications for appeal that he had lodged did not abate following the matters described above. By emails dated 17 May and 25 May 2024, Mr Ross sought an adjournment, a “leave order” and a “stay order” in relation to the hearing of the appeals listed for 12 June 2024.
Of relevance to the Fourth and Fifth Appeals is that Mr Ross’ request included an adjournment of his Fourth Appeal application.
On 27 May 2024, this Full Bench issued a Statement and Further Directions[11] in relation to Mr Ross’ appeals, refusing his request and confirming that all five appeals remained listed for 12 June 2024. The Further Directions (among other matters) provided additional time for Mr Ross to file any material he wished to rely upon. The parties were directed to make any application to vary the Further Directions to the Full Bench.
From 27 May 2024, across the following 4 days, Mr Ross sent multiple emails either requesting or demanding adjournments, stays or similar outcomes. Each request was considered by the Full Bench and refused, and Mr Ross was advised accordingly. Mr Ross purportedly sought to appeal the Full Bench’s procedural decisions under s 604 of the Act. In accordance with the Commission’s usual practice, Mr Ross was informed that such appeals are incompetent and would not be accepted. It is sufficient to note that an appeal does not lie from a Full Bench of the Commission to another Full Bench of the Commission.
Recusal application
On 1 June 2027, Mr Ross sent an email to the Chambers of the presiding Member of this Full Bench, stating that he sought to make an application for the Full Bench to recuse itself, and maintaining his application for an adjournment. Mr Ross sent further emails in relation to these matters in which he expressed the position that he would not be attending the hearing of his appeals before the Full Bench. The core ground for Mr Ross’ recusal application was the Full Bench was “unable to provide me a constitutional right to a fair hearing”. Mr Ross’ submissions, which were contained in his email, referred to four matters, although we note there is considerable overlap among them. Each ground appeared to rely upon some form of “unconstitutional” act, a crime against him, and that Mr Ross was being intentionally targeted by an extensive range of people and, we infer, this Full Bench.
Mr Ross was informed in correspondence sent to him from the Chambers of the presiding Member, on 4, 5 and 6 June 2024, that the Full Bench had decided to refuse his adjournment application, that his recusal application would be heard at the commencement of the hearing on 12 June 2024 and the hearing would be adjourned if the Full Bench decided to recuse itself and would proceed if it did not. The correspondence also informed Mr Ross that if he wished to press his recusal application, he would be required to attend the hearing on 12 June 2024, to be conducted by video on Microsoft Teams in accordance with the Directions, and that the appeals would proceed based on the material filed if he did not attend. The Respondent was informed that an application it had made seeking that Mr Ross’s appeals be dismissed for failure to comply with the Further Directions issued by the Full Bench, would also be addressed at the hearing on 12 June 2024. In emails sent to the Mr Ross on 5 and 6 June he was reminded that he had failed to file submissions in relation to his appeals and was non-compliant with Directions and that if he intended to file submissions in relation to his recusal application, he should do so immediately.
Hearing on 12 June 2024
Mr Ross attended the hearing before the Full Bench on 12 June 2024. Australia Post sought permission to be legally represented. Mr Ross did not object to permission being granted. We granted permission on the basis that we were satisfied that the multiple appeals lodged by Mr Ross could be dealt with more efficiently if permission was granted.[12] Mr Ross subsequently sought to object to the Respondent being legally represented, when various oral submissions seeking an adjournment were rejected. The Full Bench declined to withdraw permission for the Respondent to be represented by a lawyer.
Mr Ross was invited to commence his submissions in relation to his recusal application. Instead, Mr Ross sought an adjournment asserting that it was for the purpose of seeking legal representation. At various stages Mr Ross sought leave to appeal the decision of the Full Bench to refuse an adjournment, and sought various orders relating to representation, including that the Full Bench issue orders requiring that a Union or the Commission’s Workplace Advisory Service represent him. Mr Ross was informed that the Full Bench could not order a Union or the Workplace Advisory Service to represent him and he did not require leave of the Full Bench to appeal any of its decisions to the Federal Court.
In a decision issued on transcript, the Full Bench declined to recuse itself from hearing the matters before it, finding that Mr Ross advanced no legal or factual basis for a recusal involving either apprehended or actual bias. Mr Ross sought leave to appeal our decision to refuse his application seeking that we recuse ourselves from hearing his appeals. We did not grant such leave on the basis that the recusal decision was made by the Full Bench, we have no power to grant leave to appeal our decisions and leave of the Commission to appeal such decisions to a court is not required.
Principles concerning permission to appeal
There is no right to appeal and, by s 604(1) of the Act, an appeal may only be made with the permission of the Commission.
It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error.[13] However, that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.
An application for permission to appeal is not a de facto or preliminary hearing of the appeal. In determining whether permission to appeal should be granted, it is unnecessary and inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal. Support for that proposition is found in a decision of the Full Court of the Federal Court of Australia in Trustee for The MTGI Trust v Johnston[14] in which the Court referred with clear approval, to paragraphs [9] - [10] of an earlier Full Court decision in Waters v Commonwealth (Australian Taxation Office).[15] (Waters).
In Waters, the Full Court stated at [10] that an indiscriminate “scatter-gun” approach on the part of an applicant seeking leave upon each of proposed appeal grounds may well only divert attention away from the one (or a limited number of grounds) which really expose the reason why a primary judge’s decision is truly open to “sufficient doubt” to warrant leave being granted.
Where an appeal concerns a discretionary decision, the principles in House v The King (1936) 55 CLR 499 apply. An appeal against such a decision must establish the decision maker acted upon a wrong principle, gave weight to irrelevant matters, failed to give weight or sufficient weight to relevant matters, made a mistake as to facts, or where the decision is unreasonable or plainly unjust, demonstrating a failure to properly exercise the discretion.
By s 604(2), and without limiting when the Commission might grant permission, the Commission must grant permission if the Commission is satisfied that it is in the public interest to do so. The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[16] The public interest is not satisfied simply by the identification of error,[17] or a preference for a different result.[18] In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of the Commission identified some of the considerations that may attract the public interest:
“... the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters...”[19]
Grounds of appeal
There is considerable overlap in the grounds of appeal in the five Notices of Appeal. It is not practicable to set them out in full, as each extends over a number of pages.
A common element is reference to Mr Ross’ “constitutional” actions, or Federal Court claims, or Supreme Court claims (or all three). In this category, we include Mr Ross’ apparent legal claims against the Communication Workers Union, solicitors, or other legal service providers.
In all Notices of appeal, Mr Ross’ primary focus is on his complaint that his application was not stayed or adjourned. The alleged errors, such as they can be discerned, assert those decisions were “unreasonable”, as Mr Ross ought to have been given more time to secure legal assistance. The errors also assert a failure to take account of “evidence”, with the evidence referred to being, we infer, a number of the court documents and drafts described above.
In the Second Appeal (i.e. against the decision of Deputy President Millhouse), Mr Ross proceeds, largely seriatim, through the Deputy President’s decision from paragraph [23] onwards, identifying the paragraphs he disagrees with. He does not, however, identify any appealable error.
The Third Appeal challenges the substantive decision of Commissioner Harper-Greenwell in relation to whether a further period should be granted to Mr Ross to make his general protections application. Under s 366(2) of the Act, the Commission may allow a further period for an application for the Commission to deal with a general protections dispute involving dismissal to be made, if the Commission is satisfied that there are “exceptional circumstances”, taking into account: the reason for the delay; any action taken by the applicant to dispute the dismissal; prejudice to the employer (including prejudice caused by the delay); the merits of the application; and fairness as between the applicant and other persons in a similar position.
The EOT decision correctly records that Mr Ross refused to make submissions and give evidence regarding the question of whether exceptional circumstances existed to permit an extension of time. Mr Ross’s Notice of Appeal for the Third Appeal does not contend any error regarding the Commissioner’s reasoning on the application of s 366(2) of the Act. For this reason, we have not summarised the Commissioner’s reasoning although we observe it discloses no appealable error.
Rather, for the Third Appeal, the errors that Mr Ross alleges in respect of the EOT decision all generally concern the Commissioner’s refusal to broadly stay or adjourn that hearing. Mr Ross alleges the Commission has “colluded and been coerced”, in addition to other alleged errors of the kind identified above.
Consideration
It is well established in courts and tribunals that, where appeals are available, an appeal concerning interlocutory decisions involving inherently discretionary matters pertaining to the procedural management of a matter, requires a high hurdle.
As recently stated by Justice Lee in Link Investments Ltd v DC Rd DC Pty Ltd: [20]
“…if a tight rein is not kept upon the interference with orders of judges at first instance in the exercise of discretion on a point of practice and procedure, the result will be “disastrous to the proper administration of justice”. That is not to deny appellate guidance in discretionary matters to encourage consistency in judicial adjudication, but it recognises that an objective of the discretion given to first instance decision makers is to maximise the possibility of doing justice in every case.”[21]
Further reasons for the high hurdle for appeals against procedural decisions include:
·Frequently (although not always), no irrecoverable prejudice will be caused if the exercise of a discretion in an interlocutory decision is found to be wrong. This is not to deny the importance of a fair hearing or natural justice nor an appeal in appropriate cases. However, if there is denial of a fair hearing, a party retains substantive rights of appeal on that ground.
·Procedural decisions are frequently replaced or amended as part of routine case management, as the circumstances of case management may dictate, meaning the subject matter of the appeal may itself change by the time the appeal is heard.
The procedural decisions issued by the Commissioner concerning directions for the timing of evidence and submissions, and for the listing of the matter for hearing, were quintessentially discretionary matters of the kind identified in House v The King. So were the Commissioner’s decisions regarding the “stay” application before her, and likewise for the President’s programming of procedural directions the subject of the Fourth Appeal. While the decisions of Deputy Presidents Millhouse and Slevin were discretionary decisions of a different nature, they too are discretionary decisions of the kind described in House v The King.
In the case of the Commissioner’s decisions, which are the subject of the First and Third Appeals, she clearly considered – with some patience – the various explanations repetitively advanced by Mr Ross. She did not agree with Mr Ross’ contentions but that is not an error.
We have listened to the audio of the hearing before the Commissioner. There was nothing raised by Mr Ross, at all, that in our view disclosed any arguable basis for an adjournment or an extension of time, let alone legal error. Mr Ross’ fixation on the “constitutional” matters and his belief that his original unfair dismissal application and general protections claim would somehow be “merged” upon an order of the Federal Court are unfortunate, because those beliefs appear to have distracted him from focussing upon his substantive extension of time application.
As a recurrent theme of Mr Ross’ requests for adjournments or stays was to allow him to pursue his other legal claims or to obtain legal advice in relation to them (or both), we will address that contention. The request for time to obtain legal advice had two facets: the first was to allow him to obtain legal advice for the extension of time hearing; the second was to obtain advice to pursue the various third-party claims.
The refusal to grant Mr Ross an adjournment has not led to any denial of natural justice in relation to the extension of time decision. Contrary to Mr Ross’ assertions, it was not necessary for him to be legally represented for a fair hearing of his extension of time application to proceed. Many matters of that kind proceed in the Commission where the parties are not legally represented. A party must seek permission before they may be represented: s 596. Mr Ross was given the opportunity for a fair hearing but he declined to take it up. Instead of directing his efforts to the substantive matter before him, his efforts were directed at the production of draft documents and claims in the Supreme Courts of NSW or Victoria, the Federal Court and High Court.
As noted above, in the Third Appeal (i.e. the appeal against the Commissioner’s EOT decision), Mr Ross does not take issue with the Commissioner’s application of s 366 of the Act. He also refused to give evidence or make submissions and was given multiple opportunities to do so.
So far as Mr Ross sought a stay to first pursue various other legal claims in a court, those claims would make no difference to the discretion to be exercised under s 366, even if the Commissioner’s application of s 366 was under challenge. As we discern Mr Ross’ articulation of those claims, they appear to be meritless on the material before us, both factually and legally. A number of the claims disclose no legal claim known to us and others are fundamentally wrong (such as Mr Ross’ impression that, contrary to the express statutory position provided by s 725 of the Act, that he would obtain a “certificate” from the Federal Court of Australia to allow his discontinued unfair dismissal application to “merge” with his general protections claim.)
At their absolute highest, Mr Ross’ extraneous legal claims could arguably be tangentially relevant to the merits of his general protections claim against Australia Post. From what we can discern of those claims, we reject this notion, but these were matters considered by the Commissioner and we see no error in that consideration.
We make similar observations for the First, Second, Fourth and Fifth Appeals, each of which was against a decision of an interlocutory nature. There was no arguable error in any of those decisions. In the First and Second Appeals, the procedural directions issued by the Commissioner were amended on 28 March 2024, meaning that the total circumstances for assessing alleged error in either of those appeals changes. In the Fourth and Fifth Appeals, the procedural directions issued by the President that Mr Ross sought to appeal had been substantially substituted by the directions issued by this Full Bench, albeit in similar terms. As a result, the subject matter of those appeals was, in a real sense, non-existent at the time the appeal was heard.
Finally, there is no matter of public interest at all that satisfies us that permission to appeal should be granted in any of the appeals.
Disposition
For the reasons given above, permission to appeal in each matter is refused.
VICE PRESIDENT
Appearances:
Mr C Ross, Appellant
Mr M Foran of Counsel for Respondent
Hearing details:
2024.
By Microsoft Teams.
June 12.
[1] [2024] FWC 802.
[2] [2024] FWC 1098.
[3] [2024] FWC 1290.
[4] Ross v Australian Postal Corporation [2024] FWC 802.
[5] Ibid at [32] – [33].
[6] Ross v Australian Postal Corporation[2024] FWC 882.
[7] Ross v Australian Postal Corporation[2024] FWC 1098.
[8] Ross v Australian Postal Corporation[2024] FWC 1098 (with some formatting corrections issued on 2 May 2024) at [13] - [20].
[9] The Notice of Appeal was amended, but not in a material way for this aspect.
[10] Ross v Australian Postal Corporation[2024] FWC 1290.
[11] [2024] FWCFB 269.
[12] Transcript of appeal hearing 12 June 2024 PN11.
[13] Wan v AIRC (2001) 116 FCR 481 at [30].
[14] [2016] FCAFC 140 at [82].
[15] [2015] FCAFC 46.
[16] O’Sullivan v Farrer (1989) 168 CLR 210 at 216-217 per Mason CJ, Brennan, Dawson and Gaudron JJ: applied in Hogan v Hinch (2011) 243 CLR 506 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44] – [46].
[17] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 at [24]-[27].
[18] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 at [26]-[27], Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/ Warkworth[2010] FWAFB 10089 at [28], affirmed on judicial review; Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 178; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, 241 IR 177 at [28].
[19] [2010] FWAFB 5343, 197 IR 266 at [24] – [27].
[20] Link Investments Ltd v DC Rd DC Pty Ltd [2024] FCA 610 at [17], citing the “warning” of Jordan CJ in In re the Will of F.B. Gilbert (Deceased) (1946) 46 SR (NSW) 318 (at 323).
[21] Norbis v Norbis (1986) 161 CLR 513 at 519 (Mason and Deane JJ).
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