Lui Cheng v Griffith University
[2024] FWCFB 129
•8 MARCH 2024
| [2024] FWCFB 129 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Lui Cheng
v
Griffith University
(C2020/7877, C2020/7878, C2020/8007, C2020/8038)
| DEPUTY PRESIDENT MILLHOUSE | MELBOURNE, 8 MARCH 2024 |
Appeals against decision or purported decision of Vice President Hatcher at Sydney in matter numbers C2020/7294, C2020/7313, C2020/7332, C2020/7390 and C2020/7704 – permission to appeal refused.
Ms Lui Cheng has lodged four appeals against decisions or purported decisions made by Vice President Hatcher.[1] Permission to appeal is required in respect of each application. The respondent to the appeals is Griffith University.
For the reasons that follow, permission to appeal is refused in respect of each application.
Procedural context
The four decisions under appeal before us are set out below. They were each made in the course of managing five earlier appeal applications filed by Ms Cheng in connection with her applications for an unfair dismissal remedy (U2018/11728) and for the Commission to resolve a dispute (C2019/6531), which were each dealt with by Commissioner Booth.
The four appeal applications before us are summarised as follows:
(1) In matter C2020/7877 (sixth appeal),[2] Ms Cheng appeals the Vice President’s decision, communicated in emails from chambers dated 30 September and 7 October 2020, not to order transcript for a hearing before Commissioner Booth on 7 September 2020.
(2) In matter C2020/7878 (seventh appeal),[3] Ms Cheng appeals an email from the Vice President’s chambers on 30 September 2020 in which Ms Cheng was advised that there is nothing to stay in respect of appeals C2020/7294 (first appeal), C2020/7313 (second appeal), C2020/7332 (third appeal).
(3) In matter C2020/8007 (eighth appeal),[4] Ms Cheng appeals the Vice President’s decision, communicated in an email from chambers dated 28 October 2020, not to publish the transcript of the 7 September 2020 proceedings to the website or arrange for its translation into Cantonese.
(4) In matter C2020/8038 (ninth appeal),[5] Ms Cheng appeals an email from the Vice President’s chambers on 8 October 2020 in which Ms Cheng was advised that there is nothing to stay in respect of appeal C2020/7390 (fourth appeal).
The matters identified above as the first appeal, the second appeal, the third appeal, and the fourth appeal, together with a further appeal in respect of matter C2020/7704 (fifth appeal) were the subject of a hearing before an earlier Full Bench of the Commission on 2 November 2020 (First Full Bench). For reasons set out in the decision of the First Full Bench, permission to appeal was refused in respect of each of these five appeals.[6]
The sixth appeal, the seventh appeal, the eighth appeal and the ninth appeal, being the matters presently before this Full Bench, were adjourned on 28 November 2020, upon Ms Cheng’s request. The request was supported by correspondence from Ms Cheng’s psychologist.
In correspondence dated 13 April 2021, the Commission confirmed with the parties that these four appeal applications remained adjourned.
The notices of appeal in each of the sixth appeal, the seventh appeal, the eighth appeal and the ninth appeal instructed the Commission to communicate with Ms Cheng via email and a phone number was not provided.
On 17 January 2024, the Commission wrote to Ms Cheng by sending an email to her nominated email address held on file. The University was copied to the correspondence. The Commission sought Ms Cheng’s responsive views addressing the question of whether she sought to pursue the sixth appeal, the seventh appeal, the eighth appeal and the ninth appeal. A response was requested by 24 January 2024.
On 25 January 2024, in the absence of any response, the Commission sent further correspondence by email to Ms Cheng and the University. The email drew Ms Cheng’s attention to the 17 January 2024 correspondence, and noted that the matter required Ms Cheng’s urgent attention and response.
On 30 January 2024, in the absence of a response from Ms Cheng, the Commission sent a letter by postal mail to Ms Cheng’s last known postal address. The letter referred to the sixth appeal, the seventh appeal, the eighth appeal and the ninth appeal, and noted that the Commission had not received a response to either its 17 January or 24 January 2024 emails, despite no “bounce back” indicating that the email address was no longer in use. That correspondence was also sent by email to Ms Cheng and the University.
The 30 January 2024 correspondence relevantly stated:
In the absence of you demonstrating an acceptable basis for the Commission continuing to hold the above matters in abeyance, the matters will be listed jointly for hearing on the question of permission to appeal, before a Full Bench on a date to be fixed in early March 2024.
If we do not hear from you before Tuesday 6 February 2024, Directions and a notice of listing will be issued by the Commission for this hearing.
The Commission did not receive a response from Ms Cheng.
On 5 February 2024, the Commission received, by return post, its 30 January 2024 correspondence, with the envelope marked “return to sender decommissioned P.O. Box.”
Directions were issued by the Commission on 7 February 2024, together with a Notice of Listing which listed the sixth appeal, the seventh appeal, the eighth appeal and the ninth appeal for hearing before a Full Bench on 6 March 2024 at 2:00pm AEDT. The Directions were sent to the parties by email. They required Ms Cheng to, inter alia, file in the Commission and serve upon the University an outline of submissions on the issue of permission to appeal by 21 February 2024. The Commission did not receive any material from Ms Cheng on this date, or at all.
On 21 February 2024, the University advised the Commission that it consented to the applications being determined on the papers.
On 22 February 2024, the Commission sent an email to Ms Cheng and the University, which relevantly stated:
The matter is listed for a permission to appeal hearing. A notice of listing and directions were provided to the parties by email on 7 February 2024.
Direction [10] required Ms Cheng, the appellant, to file submissions in preparation for the hearing by 4:00pm yesterday, 21 February 2024.
The Commission has not received any material from Ms Cheng. Ms Cheng’s urgent attention to this matter is required.
In the event that Ms Cheng does not file material pursuant to the directions, the appeal will proceed to a permission to appeal hearing on 6 March 2024 in any event and will be determined on the material available to the Commission.
In circumstances where the Commission has not received any correspondence from Ms Cheng, chambers enquires as to whether the respondent has any alternative recent contact details for the appellant which it may provide to the Commission.
(emphasis in original)
The University responded the same day by advising that the last email address it held for Ms Cheng is the same address being utilised by the Commission to communicate with Ms Cheng.
On 6 March 2023, the Commission sent an email to Ms Cheng and the University at approximately 12:03pm Victorian time. The email noted that the sixth appeal, the seventh appeal, the eighth appeal and the ninth appeal were listed for a permission to appeal hearing that day at 1:00pm Queensland time / 2:00pm Victorian time. The email contained a link to join the videoconference and the parties were requested to join the hearing at least 10 minutes prior to its commencement.
At 1:59pm Victorian time, a further email was sent by the Commission which observed that it did not appear that the parties had joined the hearing via the link provided, and confirmed that the hearing would commence shortly.
The University joined the hearing thereafter. However, Ms Cheng did not join the hearing and did not make contact with the Commission.
At approximately 2:15pm, the hearing commenced in Ms Cheng’s absence. The Full Bench did not call upon the University to make any submissions.
Having regard to the procedural history set out, the Full Bench is satisfied that Ms Cheng has been given a fair opportunity to make written and oral submissions concerning whether permission to appeal should be granted in respect of the sixth appeal, the seventh appeal, the eighth appeal and the ninth appeal. Ms Cheng has not made use of this opportunity.
The four notices of appeal filed by Ms Cheng in relation to the appeals before us are detailed. We have determined to deal with the question of permission to appeal on the basis of Ms Cheng’s notices of appeal.
The appeals
Ms Cheng’s notice of appeal in the sixth appeal contains 62 paragraphs beneath the heading “What are the grounds for your appeal?” The substantive matters raised concern the following:
No reasons were given to support the Vice President’s decision not to order transcript for the hearing before Commissioner Booth on 7 September 2020, and the audio recording was an inadequate replacement as it was not an official record of the proceedings.
The decision not to order transcript contravenes Ms Cheng’s right to a fair trial as she did not authorise the audio recording of the 7 September 2020 hearing for dissemination.
Referring Ms Cheng to a third party to request a copy of the transcript at a cost to Ms Cheng is a violation of impartiality, natural justice and procedural fairness.
Ms Cheng contends that the grant of permission to appeal would be in the public interest, including because Members of the Commission have a requirement to perform their functions and exercise their powers in a manner that is, amongst other things, fair and just.
The ground of appeal raised in the seventh appeal, in summary, is that the email from the Vice President’s chambers on 30 September 2020 declining to stay the 7 September 2020 decision of Commissioner Booth was not supported by a valid reason. Ms Cheng contends that this is a violation of procedural fairness and natural justice, particularly in circumstances where there was a mistrial at the 7 September 2020 hearing due to the inadequacy of the interpreters provided to assist her. Ms Cheng contends that it would be in the public interest to grant permission to appeal for broadly the same reasons as advanced in the sixth appeal.
In the eighth appeal Ms Cheng contends, in summary, that no reasons were given to support the 28 October 2020 email from the Vice President’s chambers declining to publish the transcript of the 7 September 2020 proceedings to the website or arrange for its translation from English to Cantonese by a NAATI-certified interpreter. Ms Cheng submits that it is in the public interest to ensure that transcripts are made public because 21 percent of Australians speak a language other than English at home. Accordingly, limiting a party’s access to translated transcripts is unfair and impairs a party’s rights to a fair trial.
The ninth appeal concerns an email from the Vice President’s chambers on 8 October 2020 in which Ms Cheng was advised that there is nothing to stay in respect of the fourth appeal. By her grounds of appeal, Ms Cheng contends that refusing to grant a stay is a likely violation of procedural fairness and natural justice. Ms Cheng’s notice of appeal does not address the public interest.
Principles – permission to appeal
An appeal under s 604 of the Act is an appeal by way of rehearing. The Commission’s powers are only exercisable if there is error on the part of the primary decision maker.[7] There is no right to appeal and an appeal may only be made with the permission of the Commission.
We consider that s 400 of the Act applies to the sixth appeal, the seventh appeal and the eighth appeal as they each involve interlocutory decisions or purported interlocutory decisions concerning an application made under Part 3-2 of the Act.[8] Section 400 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.
(2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.
The test under s 400 of the Act is “a stringent one.”[9] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[10] A Full Bench of the Commission in GlaxoSmithKline Australia Pty Ltd v Makin identified some of the considerations that may attract the public interest:[11]
“… 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.”
The ninth appeal arises from Ms Cheng’s dispute application. To the extent it involves an appealable decision at all, it is one in which permission to appeal must be determined in accordance with s 604 of the Act. By s 604(2), permission to appeal must be granted if the Commission is satisfied that it is in the public interest to do so.
The assessment of whether the public interest test is met under s 604(2) involves the application of the same principles set out at [32] above. Other than the special case in s 604(2), the grounds for granting permission to appeal are not specified. Considerations which have traditionally been adopted in granting leave include that the decision is attended with sufficient doubt to warrant its reconsideration and that substantial injustice may result if leave is refused.[12]
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, the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.[14]
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.[15] However, it is necessary to engage with the appeal grounds to consider whether they raise an arguable case of appealable error.
Consideration
For the following reasons, Ms Cheng’s notices of appeal in respect of each of the four appeals before us disclose no reasonably arguable contention of appealable error. Nor do they raise any issue of law, principle or general application which would warrant the grant of permission to appeal either in the public interest or on discretionary grounds. Our reasons for reaching this conclusion may be briefly stated.
First, the issue the subject of the sixth appeal is moot. The transcript of the proceedings before Commissioner Booth on 7 September 2020 was produced to the parties. The Commission’s approach to the provision of a copy of the transcript free of charge is otherwise addressed in the decision of the First Full Bench.[16] The contentions of procedural unfairness are not arguable.
Second, we consider it dubious that the emails from the Vice President’s chambers to Ms Cheng of 30 September and 8 October 2020 in which Ms Cheng was advised that there was nothing to stay, constitutes a “decision” that is appealable under s 604 of the Act.[17] We therefore regard the seventh appeal and the ninth appeal to be incompetent.
In any event, we do not accept that the 30 September 2020 correspondence was not supported by a valid reason, as contended in the seventh appeal. The correspondence was responsive to Ms Cheng’s request for a stay of Commissioner Booth’s 7 September 2020 decision. This decision involved the dismissal by the Commissioner of four applications made by Ms Cheng under s 590(2)(c) of the Act for an order for the production of documents. Further, the Commissioner had advised the parties that no further steps would be taken in relation to matter U2018/11728 pending the outcome of Ms Cheng’s appeals. In these circumstances, there was plainly nothing to “stay.” The 30 September 2020 correspondence from the Vice President’s chambers confirmed this position, with reasons.
Similar observations may be made in relation to the 8 October 2020 correspondence, challenged by the ninth appeal. In that case, the correspondence was responsive to Ms Cheng’s request for a stay of Commissioner Booth’s directions, as issued in the dispute proceedings on 10 September 2020. Relevantly, the Commissioner had advised the parties that the hearing before her had been vacated and the application in matter C2019/6531 would not proceed until Ms Cheng’s appeal had been dealt with. It follows that there was nothing to be “stayed.” The 8 October 2020 correspondence from the Vice President’s chambers explained this position.
Third, Ms Cheng asserts in the eighth appeal that she sought that the 7 September 2020 transcript be published to the website or translated to Cantonese for the purpose of preparing “the written submissions for C2020/7294, C2020/7313, C2020/7332, C2020/7390.”[18] These matters concern the first appeal, the second appeal, the third appeal and the fourth appeal respectively. As earlier stated, the First Full Bench considered each of these applications and permission to appeal in respect of each of them was refused. It follows that the grant of permission in respect of the eighth appeal would be inutile as the basis for Ms Cheng’s request is now redundant. Nor do we consider it arguable that Ms Cheng’s access to a fair trial was impaired in the manner contended, or at all.
Order and disposition
To the extent that s 400(1) of the Act applies to the sixth appeal, the seventh appeal and the eighth appeal, permission to appeal must be refused. We are not satisfied that the grant of permission to appeal would be in the public interest. Nor would we grant permission on discretionary grounds. We would in any event refuse permission to appeal, even if s 400 did not apply.
As to the ninth appeal, we do not consider that the grant of permission to appeal would be in the public interest as required by s 604(2) of the Act. Nor do we consider there to be discretionary grounds supporting the grant of permission.
For the reasons given, permission to appeal is refused in matters C2020/7877, C2020/7878, C2020/8007 and C2020/8038.
DEPUTY PRESIDENT
Appearances:
No appearance for the appellant
Hearing details:
2024.
Melbourne (by video):
6 March.
[1] Now Justice Hatcher, President of the Fair Work Commission
[2] Notice of appeal dated 21 October 2020
[3] Notice of appeal dated 21 October 2020
[4] Notice of appeal dated 28 October 2020
[5] Notice of appeal dated 29 October 2020
[6] [2020] FWCFB 5863
[7] This is so because on appeal the Commission has power to receive further evidence, pursuant to s 607(2); se Coal and Allied Operations Pty Ltd v AIRC [2000] HCA 47; 203 CLR 194; 99 IR 309 at [17]
[8] Kennedy v Qantas Ground Services Pty Ltd[2018] FWCFB 4552 at [10]-[11]
[9] Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [43] per Buchanan J (with whom Marshall and Cowdroy JJ agreed)
[10] O’Sullivan v Farrer [1989] HCA 61; 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch [2011] HCA 4, 243 CLR 506; 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54; 192 FCR 78; 207 IR 177 at [44]-[46]
[11] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343 at [27]; (2010) 197 IR 266
[12] See CFMEU v AIRC [1998] FCA 1404, 89 FCR 200, 84 IR 314 at 220; Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [26]
[13] Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30]
[14] Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089; 202 IR 388 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54; 192 FCR 78; 207 IR 177; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office[2014] FWCFB 1663; 241 IR 177 at [28]
[15] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
[16] [2020] FWCFB 5863 at [26]-[28]
[17] See CPSU, the Community and Public Sector Union (090V) v Australian Broadcasting Corporation T/A ABC [2023] FWCFB 91 at [29]
[18] Notice of appeal dated 28 October 2020 at 2.1 [15]
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