James Sydney Willis v Be Imaging Pty Ltd T/A Iris Imaging
[2021] FWCFB 6030
•20 OCTOBER 2021
| [2021] FWCFB 6030 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
James Sydney Willis
v
BE Imaging Pty Ltd T/A IRIS Imaging
(C2021/4981)
VICE PRESIDENT CATANZARITI | SYDNEY, 20 OCTOBER 2021 |
Appeal against decision [2021] FWC 4306 of Deputy President Lake at Brisbane on 29 July 2021 in matter number U2020/12418 – permission to appeal refused.
[1] Mr James Willis (the Appellant) has lodged an appeal under s 604 of the Fair Work Act 2009 (the Act) for which permission to appeal is required against a decision 1 (the Decision) of Deputy President Lake (the Deputy President) issued on 29 July 2021. The Decision dealt with both an application for recusal and a jurisdictional objection to the Appellant’s application for an unfair dismissal remedy. In his Notice of Appeal, the Appellant indicated he was appealing only the Deputy President’s decision not to recuse himself and not the Deputy President’s ruling on the jurisdictional objection raised by IRIS Imaging (the Respondent). As such, this decision will deal only with the appeal against the Deputy President’s decision regarding the recusal application.
[2] Directions were set for the filing of material by the Appellant. As this matter was listed for permission to appeal only, the Respondent was not required to file any material and it did not do so.
[3] The appeal was subject to a telephone hearing on 7 October 2021. The Appellant appeared on his own behalf. Ms Oby Emchete of the Respondent appeared on the Respondent’s behalf.
[4] The Full Bench has heard the Appellant on the issue of permission to appeal. For the reasons that follow, permission to appeal is refused.
The Decision under appeal
[5] The matter before the Deputy President has had an unusual history. We will briefly summarise the sequence of events. The Deputy President had previously issued a decision (the Dismissal Decision) 2 dismissing the Appellant’s application for an unfair dismissal remedy as it appeared that the Appellant failed to comply with directions from the Deputy President’s Chambers. The Appellant appealed the Dismissal Decision. In the course of prosecuting the appeal, it came to the Commission’s attention that, through no fault of the Commission or the Appellant, the Appellant’s email address had inadvertently been blacklisted, meaning his email communications could not be received by the Commission. When the Deputy President became aware of this, he issued a revocation (the Revocation Decision)3 of the Dismissal Decision on 12 January 2021 and the matter was then reallocated to the Deputy President on 15 March 2021.
[6] On 12 April 2021, the Appellant expressed his wish that the Deputy President recuse himself from hearing the matter. The Deputy President determined to hear the recusal application and the jurisdictional objection together.
[7] The Deputy President considered the evidence and submissions from both parties regarding the recusal application. The Appellant’s submissions and evidence can be summarised as follows:
• The Deputy President was particularly “vehement and scathing” of the Appellant 4 in the Dismissal Decision. The Appellant provided quotes from the Dismissal Decision as evidence that the Deputy President was scathing. One such quote is “Despite the delay, the conference proceeded.”5
• The Appellant took issue with paragraph [3] of the Dismissal Decision which reads “despite numerous phone calls” as this inferred that there were many phone calls. The Appellant stated there were at most two phone calls that he missed and that he responded after listening to the voice message left by the Deputy President’s associate.
• In relation to the above submission, the Appellant submitted that paragraph [4] of the Dismissal Decision which reads “Shortly after the applicant attended” is evidence that there were not numerous phone calls made to him. 6
• The Appellant submitted that the Deputy President advised nothing about the Respondent’s lack of submissions when they became due.
• The Appellant submitted that the Deputy President advised him, via email, that once his matter had been dismissed, it could not be reopened, which gave the Appellant the impression that there was no avenue of appeal.
[8] The Respondent’s submissions and evidence in relation to the recusal application were summarised in the Decision as follows:
“[10] The Respondent submitted that I should not rescue myself. The Respondent stated that the communications from myself and the Commission in no way suggested anything that requires a recusal. The Respondent stated that the Applicant was provided adequate opportunity to back his application with supporting information. The Respondent further stated that the Applicant had shown by his conduct and actions during the process, his disregard for people and process.
[11]In the hearing, Mrs Emechete of the Respondent stated that she believed I should hear the case because I had all the documents and that there was no need to recuse myself. Mrs Emechete stated that this was her belief because they all had that email and the Applicant had contradicted himself that he had been receiving emails from the Commission. The Respondent stated that the Applicant was blacklisted, and that was not the fault of the Commission.”
[9] The Deputy President then outlined the test he applied in consideration of whether or not he should recuse himself. The legislative principles are well-trodden, and we will not repeat them here.
[10] Regarding the Appellant’s submission that the language used in emails from Chambers to himself and in the Dismissal Decision gave rise to an apprehension of bias, the Deputy President found that the words used were not indicative of any pre-judgment or bias in respect of the merits of the Appellant’s application. The Deputy President considered that the words were directed at the Appellant’s perceived lack of engagement with his application which arose from his seeming lack of responsiveness. The Deputy President reiterates that the lack of communication was caused by technical issues of which he was unaware at the time.
[11] The Deputy President also addressed the Appellant’s frustration with being unable to speak with the associate to the Deputy President when he called into chambers. The Appellant took issue with having to speak with a registry staff member instead. The Deputy President noted this is common practice when the associate is not available to take a call.
[12] The Deputy President reiterated again that much of the lack of communication between the parties and the Commission, and the resultant frustration, were caused by technical issues which were subsequently identified. With the technical difficulties now remedied, the Deputy President was not satisfied that the test for apprehended bias was met and he declined to recuse himself.
Principles of appeal
General principles
[13] The Decision subject to appeal was made under Part 3-2- Unfair Dismissal – of the Act. Section 400(1) of the Act provides that permission to appeal must not be granted from a decision made under Part 3-2 unless the Commission considers that it is in the public interest to do so. Further, in unfair dismissal matters, appeals on a question of fact can only be made on the ground that the decision involved a ‘significant error of fact’ (s 400(2)). Section 400 of the Act manifests an intention that the threshold for a grant of permission to appeal is higher in respect of unfair dismissal appeals than the threshold pertaining to appeals generally.
[14] The public interest test in s 400(1) is not satisfied simply by the identification of error or a preference for a different result. In GlaxoSmithKline Australia Pty Ltd v Making 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 they result in counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters…” 7
[15] 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. 8 However, that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.
[16] 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. 9 However, it is necessary to engage with the appeal grounds to consider whether they raise an arguable case of appealable error.
[17] As aforementioned, the Decision subject to appeal concerns an application for a remedy made pursuant to the provisions of Pt 3 - 2 of the Act. However, the Appellant is appealing the Deputy President’s decision in relation to a recusal application which is a ruling in relation to procedural matters involving the exercise of power under s 589 of the Act – a provision which lies outside Pt 3 - 2. A question might arise therefore, regarding whether s 400(1) applies to the Appellant’s application for permission to appeal against the Decision insofar as it involves a ruling on the recusal application.
[18] On this issue, a differently constituted Full Bench in Kennedy v Qantas Ground Services Pty Ltd 10found the following:
“[10] The Deputy President’s decision was made under s 590, which allows the Commission to inform itself in relation to any matter before it in such manner as it considers appropriate, including by requiring a person to provide copies of documents or records (s 590(2)(c)). Section 590 is in Part 5-1 of the Act and on this basis it might be contended that s 400 does not apply to decisions made under that provision. However, the Decision was made in relation to an application brought under Part 3-2 of the Act, namely Mr Kennedy’s unfair dismissal application. In Australian Postal Corporation v Gorman ([2011] FCA 975, 196 FCR 126 at [37]), Besanko J concluded that an appeal from a decision to dismiss an unfair dismissal proceeding under s.587 of the Act was a decision to which s 400 applied. Section 587, like s 590, is found in Part 5-1 of the Act. Further, in Asciano Services Pty Ltd v Hadfield ([2015] FWCFB 2618), a Full Bench of the Commission decided that s 400 applied to an appeal from a decision not to grant permission for representation under s 596 of the Act in respect of an unfair dismissal application.
[11] The apparent purpose of s 400 is to confine the circumstances in which unfair dismissal applications can be appealed so as to promote the finality of litigation with respect to such claims. It would be contrary to this purpose if the limitation applied to substantive decisions made under Part 3-2, but not to procedural or interlocutory decisions concerning those same matters. In our view, the present appeal is one from a decision made under Part 3-2 of the Act. The Decision dealt with applications for the production of documents in an unfair dismissal proceeding brought before the Commission under that part of the Act. Accordingly, we consider that s 400(1) of the Act applies to the matter before us.”
[19] We agree with and will adopt this approach.
Consideration
[20] The Appellant advances two grounds of appeal, contained in his F7 Notice of Appeal, as follows:
“1. Deputy President Lake initially dismissed my application for an Unfair Dismissal Remedy on the grounds that his chambers had not received any submissions from me in response to his directions. When I appealed, Chambers Catanzariti VP, after some input from me, finally, with the assistance of the Commission’s IT Department, apparently located all of my emails “in Quarantine.” The Appeal was supposed to be heard as is normal by the full bench, but this did not occur as Deputy President Lake suddenly revoked his decision to dismiss my application for an Unfair Dismissal Remedy. Amongst the matters that raised suspicions in me was the fact that the respondents did not place any submissions in response to mine. The respondents were on their own email system, not the Commission’s, so they most certainly received my emailed submissions. There is the reasonable suspicion that the respondents did not submit anything at all because they were confident for some reason that Deputy President Lake would act against me, which he did. In his decision regarding my application for his Recusal, aside from a lot of legalese that a layman can not possibly understand, DP Lake mentions the fact that the respondents did not put in any submissions, but he does not deal with it.
2. In his decision, DP Lake incorporates a little bit of censure for me, in that he makes a rather ridiculous statement along the lines of “he did not understand why I did not move away from Dr Emechete when he was threatening me,” as most particularly shown in the audio files I submitted. The threatening behaviour is not so well shown on the surveillance videos. In fact, I did not move away from Dr Emechete initially because he reached out and grabbed my shoulder when I had turned to walk away from him. I notice though that even though there is this censure of me, there is absolutely no censure at all of the respondents for the lies and distortions they have made throughout these whole proceedings.”
[21] The Appellant’s written submissions reiterate his view that it is odd for the Deputy President to issue a revocation of the Dismissal Decision. The Appellant expresses his suspicion that the Deputy President took this course of action in order to not have the appeal heard by a Full Bench.
[22] The Appellant’s grounds of appeal and submissions on appeal go to matters that were not put before the Deputy President at first instance. As outlined above, the Appellant’s submissions regarding the recusal application go to the language of the Dismissal Decision. On appeal, the Appellant is now submitting fresh arguments regarding why an apprehension of bias arose in the matter below. Therefore, they are not properly constructed grounds of appeal. Notwithstanding this, we will deal with the Appellant’s grounds of appeal and submissions.
[23] The Appellant’s first ground of appeal does not disclose any case of arguable error in the Deputy President’s decision not to recuse himself. The Appellant merely makes an unfounded accusation that the Deputy President issued the Revocation Decision in order to avoid the Appellant’s initial appeal from being heard by a Full Bench. The Deputy President clearly set out the reasons for the Revocation Decision and there is nothing odd in his decision to issue it given the technical difficulties that had been uncovered. In our view it was appropriate for the Deputy President to issue the Revocation Decision in circumstances where he became aware that the Applicant had not in fact failed to comply with Directions.
[24] The Appellant’s second ground of appeal does not disclose any case of arguable error. The Appellant simply takes umbrage with certain parts of the Decision which he does not agree with. This ground of appeal does not, in any way, go to the appeal against the recusal application.
Public Interest
[25] Regarding the public interest, the Appellant submits that members of the public need reassurance that the legal system is an honest one. The Appellant further submits that significant injustice and errors should be prevented and that the judiciary is there to serve the public and not itself.
[26] We are not satisfied that the Appellant has identified any arguable public interest grounds. Furthermore, we are not satisfied that:
(a) There is a diversity of decisions at first instance so that guidance from an appellate body is required of this kind;
(b) The appeal raises issues of importance and/or general application;
(c) The decision at first instance manifests an injustice, or the result is counter intuitive; or
(d) The legal principles applied by the Deputy President were disharmonious when compared with other decisions dealing with similar matters.
Conclusion
[27] For the reasons set out above, we are not satisfied, for the purpose of s 400(1) of the Act, that it would be in the public interest to grant permission to appeal.
[28] Permission to appeal is refused.
VICE PRESIDENT
Appearances:
Mr J Willis on his own behalf.
Ms O Emchete for the Respondent.
Hearing details:
2021.
Sydney by telephone.
7 October.
Printed by authority of the Commonwealth Government Printer
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1 Willis v BE Imaging Pty Ltd T/A IRIS Imaging [2021] FWC 4306.
2 Willis v BE Imaging Pty Ltd T/A IRIS Imaging [2021] FWC 133
3 Willis v BE Imaging Pty Ltd T/A IRIS Imaging [2021] FWC 763.
4 Decision at [5].
5 Ibid at [5].
6 Ibid at [7].
7 (2010) 197 IR 266 at [27].
8 Wan v AIRC (2001) 116 FCR 481 at [30].
9 Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
10 [2018] FWCFB 4552.
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