Lee v Fair Work Commission

Case [2020] FCA 1204

FEDERAL COURT OF AUSTRALIA

Lee v Fair Work Commission [2020] FCA 1204

Appeal from: Lee v Fair Work Commission [2020] FCA 733
File numbers: QUD 65 of 2020
QUD 66 of 2020
Judge: COLLIER J
Date of judgment: 21 August 2020
Catchwords: PRACTICE AND PROCEDURE – application for extension of time and leave to appeal – where primary proceedings sought review of Fair Work Commission decisions – where primary Judge summarily dismissed matters at Court’s own initiative – Federal Court Rules 2011 (Cth) rr 1.40 and 26.01(1)(a) – Federal Court of Australia Act 1976 (Cth) s 37P – refusal of in-person hearing in light of COVID-19 pandemic – principles relevant to extension of time and leave to appeal – whether adequate explanation for delay provided – where explanation for delay partly related to the disadvantages of being a litigant in person – where bias claimed against primary Judge on basis that Fair Work Commission President also a Federal Court Judge – lack of connection between alleged interest in matter and departure from impartial decision-making – primary decision not attended with sufficient doubt – appeal dismissed.
Legislation:

Australian Human Rights Commission Act 1986 (Cth) art 14

Fair Work Act 2009 (Cth) ss 349, 387, 390, 604

Federal Court of Australia Act 1976 (Cth) Pt VB, ss 20A, 23 37M, 37N, 37P

Federal Court Rules 2011 (Cth) rr 1.32, 1.40, 26.01, 30.11, 35.13, 35.14, 35.20, 36.43

 Judiciary Act 1903 (Cth) s 39B

Privacy Act 1988 (Cth)

Cases cited:

AZAEY v Minister for Immigration and Border Protection (2015) FCAFC 193; [2015] FCAFC 193

Brock v Minister for Home Affairs [2008] FCAFC 165

BVG17 v BVH17 (2019) 268 FCR 448; [2019] FCAFC 17

Coffey v Secretary, Department of Social Security (1999) 86 FCR 434

Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397; [1991] FCAFC 844

DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 127

Djaigween v Douglas (1994) 48 FCR 535

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63

Fagan v Crimes Compensation Tribunal (1982) 150 CLR 666; [1982] HCA 49

Humphries v Newport Quays Stage 2A Pty Ltd [2009] FCA 699

Hunter Valley Developments Pty Limited v Cohen (1984) 3 FCR 344; [1984] FCA 176

Johnston v Judge Middleton [2019] FCA 966

Lee v Fair Work Commission [2020] FCA 733

Lee v Superior Wood Pty Ltd (2019) 286 IR 368; [2019] FWCFB 2946

Lee v Superior Wood Pty Ltd (2020) 295 IR 242; [2020] FWCFB 1301

Lee v Superior Wood Pty Ltd (t/a Superior Wood) [2019] FWC 5095

Lee v Superior Wood Pty Ltd [2018] FWC 4762

Luck v Secretary, Department of Human Services (2017) 72 AAR 219; [2017] FCA 540

Marsden v R [2002] FCAFC 229

Mentink v Minister for Home Affairs [2013] FCAFC 113

Mulhern v Morgan [2017] FCA 1183

MZABP v Minister for Immigration and Border Protection (2016) 152 ALD 478; [2016] FCAFC 110

Nationwide News Pty Limited v Rush [2018]…

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AGLC
Lee v Fair Work Commission [2020] FCA 1204
Case
[2020] FCA 1204
Decision Date

CaseChat Overview and Summary

The Full Bench of the Fair Work Commission, in Lee v Superior Wood Pty Ltd, was tasked with reviewing decisions made by the Fair Work Commission regarding Mr. Lee's unfair dismissal case. Mr. Lee had filed numerous grounds of appeal against the Commission's Compensation Decision, which were ultimately narrowed down to two main contentions: the Commissioner's conclusion that Superior Wood had a rational basis for its loss of trust and confidence in Mr. Lee, and the alleged failure of the Commissioner to consider certain factors in favor of Mr. Lee's reinstatement. The Full Bench rejected the first contention but upheld the second, ordering a rehearing of the case to determine the appropriate remedy for Mr. Lee. The proceedings were complex, with significant legal and factual issues requiring resolution, and the outcome of the case was still pending at the time of the Full Bench's decision.

The legal issues before the court in this case centered on whether Mr. Lee had provided an adequate explanation for the delay in seeking an extension of time and leave to appeal, and whether the primary judge's decision was attended with sufficient doubt to warrant reconsideration by the appellate court. The court also considered whether there were any grounds for alleging bias on the part of the primary judge. The principles governing the grant or refusal of leave to appeal from an interlocutory judgment were applied, with particular attention given to the length and explanation for the delay, the nature of the litigation, the prejudice to other parties of a grant or refusal of an extension of time, and the prospects of success of the appeal if it proceeded.

The court found that Mr. Lee had not provided an adequate explanation for the delay in seeking an extension of time and leave to appeal. While Mr. Lee cited his status as a litigant in person as a factor contributing to the delay, the court found that this was not a sufficient explanation for the significant delay that had occurred. The court also found that the primary judge's decision was not attended with sufficient doubt to warrant reconsideration by the appellate court. The court noted that the primary judge had carefully considered the relevant legal principles and had applied them to the facts of the case in reaching his decision. The court further found that there were no grounds for alleging bias on the part of the primary judge.

The court dismissed the application for extension of time and leave to appeal, finding that Mr. Lee had not demonstrated that the delay was justified or that the primary judge's decision was attended with sufficient doubt to warrant reconsideration by the appellate court. The court also found that there were no grounds for alleging bias on the part of the primary judge. The outcome of the case remains pending before the Fair Work Commission.

Orders

Orders of the court

1. The application for extension of time and leave to appeal filed on 11 March 2020 be dismissed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

MR J MR J MR J MR J MR J MR J MR J MR J MR J MR J MR J MR J MR J MR J MR J MR J MR J MR J
On 5 May 2020, the decision of the Full Bench in Lee v Superior Wood Pty Ltd (2020) 295 IR 242; [2020] FWCFB 1301 (Second Full Bench Decision) was delivered. As noted in the Second Full Bench Decision at [16], Mr Lee advanced 51 grounds of appeal against the Compensation Decision. The Full Bench noted at [56]:We have earlier set out in full the extensive grounds of appeal contained in Mr Lee’s notice of appeal. Many of those grounds merely seek to re-argue Mr Lee’s case for reinstatement. However, reading the appeal grounds generously, we consider that they raise two broad contentions of error on the part of the Commissioner:(1)The Commissioner erred in concluding that Superior Wood had a rational basis for its loss of trust and confidence in Mr Lee based on various statements made by Mr Lee, or A Lee on his behalf, during the course of the proceedings.(2)The Commissioner failed to take into account a number of matters which weighed in favour of reinstatement – in particular, Mr Lee’s prior unblemished record of employment, the lack of any fault on his part for the dismissal, and the loss he had suffered as a result of the dismissal. The Full Bench rejected the first contention of error: see Second Full Bench Decision at [72]. The Full Bench upheld the second contention of error (at [78]), concluding as follows:[80]For the foregoing reasons we have decided to uphold the appeal and quash the Decision. We have decided to rehear the application as it concerns the remedy to be provided to Mr Lee under the terms of the FW Act…[81]In the event of reinstatement, we would also need to consider whether the continuity of service should be provided under s.391(2) of the FW Act and whether an order to restore lost pay should be made under s.391(3), including whether there has been any remuneration under s.391(4) that should be taken into account. The compensation paid by Superior Wood under the Order made by the Commissioner, which has not been appealed, would also need to be considered in this context. Consideration also needs to be given to the fact that we delayed our determination of this appeal because we became aware during the proceedings that Mr Lee had taken the counter-intuitive step of seeking judicial review of the first appeal decision in the Federal Court of Australia. We did not consider it appropriate to determine the appeal of the Commissioner’s decision concerning the proper remedy for Mr Lee’s unfair dismissal in circumstances where he was seeking that the decision in which his dismissal was found to be unfair be quashed. This application was dismissed by the Court on 6 February 2020.[82]We confirm the grant of permission to appeal, and we order that the appeal be upheld. Directions will shortly be issued to enable the outstanding issues to be determined by this Full Bench. It is not clear on the material before me whether the rehearing of the appropriate remedy to be awarded referred to at [80] of the Second Full Bench Decision has occurred, or similarly, whether the “outstanding issues” have been determined by the Full Bench.PROCEEDINGS BEFORE THE PRIMARY JUDGE

Ratio Decidendi

Legal Principle Established

Established by: MR J, MR J, MR J, MR J, MR J, MR J, MR J, MR J, MR J, MR J, MR J, MR J, MR J, MR J, MR J, MR J, MR J, MR J

I note that some of Mr Lee’s submissions concerned the outcome of the Compensation Decision, which was overturned in the Second Full Bench Decision, and, more generally, the lack of appropriate compensation (or remedy), which I understand from the Second Full Bench Decision is still being litigated before the Fair Work Commission. Both decisions were also subsequent to the commencement of the proceedings in QUD356/2019 and QUD385/2019.CONSIDERATION As the decision of the primary Judge was interlocutory in nature, leave to appeal is required. The Federal Court Rules, r 35.14 empowers the Court to grant an extension of time in which to seek leave to appeal. As the majority of the Full Court observed in BVG17 v BVH17 (2019) 268 FCR 448; [2019] FCAFC 17:30.In the circumstances it [sic] appropriate for the Court to briefly consider principles relevant to extension of time and leave to appeal: see for example discussion of the Full Court in SZVCP v Minister for Immigration and Border Protection [2016] FCAFC 24; (2016) 238 FCR 15 at [13]-[16]…34.In considering whether to order an extension of time in which to file a notice of appeal, the Court is required to determine whether an order in such terms is in the interests of justice. This ordinarily requires consideration of issues including the length and explanation for the delay, the nature of the litigation, the prejudice to other parties of a grant or refusal of an extension of time, and the prospects of success of the appeal if it proceeded: see AZAEY v Minister for Immigration and Border Protection [2015] FCAFC 193; (2015) FCAFC 193 at [10]-[12].…45.The principles governing the grant or refusal of leave to appeal from an interlocutory judgment were explained in Decor Corporation Pty Ltd v Dart Industries Inc [1991] FCAFC 844; (1991) 33 FCR 397 at 398-399 and recently reiterated in Nationwide News Pty Limited v Rush [2018] FCAFC 70 at [3]. The first question is whether, in all the circumstances, the interlocutory judgment is attended with sufficient doubt to warrant it being reconsidered on appeal. The second question is whether substantial injustice would result if leave were refused, supposing the interlocutory judgment to be wrong.See also DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 127 at [46]-[77]. In each set of proceedings, Mr Lee has filed an application in accordance with Form 118. Note 1 to rule 35.14 of the Federal Court Rules provides that the Court may grant an extension of time, and hear and determine the application for leave to appeal, at the same time. In Smits v Loel (No 3) [2015] FCA 77 Reeves J observed at [9]:The application for extension of time to file an application for leave to appeal requires consideration of the prospects of success in the application for leave to appeal, which application, in turn, requires consideration of the prospects of success in the appeal. Given this, it follows that, in practical terms, both applications engage the former question; specifically, whether the primary judge’s decision is attended with sufficient doubt to warrant its being reconsidered by an appellate court: see Sharman License Holdings at [20] per Lindgren J.(Emphasis added.)