Lui Cheng v Griffith University
[2020] FWCFB 5863
•10 NOVEMBER 2020
| [2020] FWCFB 5863 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
Lui Cheng
v
Griffith University
(C2020/7294, C2020/7313, C2020/7332, C2020/7390, C2020/7704)
VICE PRESIDENT HATCHER | SYDNEY, 10 NOVEMBER 2020 |
Appeals against decision or purported decision of Commissioner Booth at Brisbane in matter numbers U2018/11728 and C2019/6531
[1] Ms Lui Cheng has lodged five appeals against decisions or purported decisions made by Commissioner Booth in the course of dealing with Ms Cheng’s applications for an unfair dismissal remedy (U2018/11728) and for the Commission to resolve a dispute (C2019/6531) made against Griffith University. Permission to appeal is required in each appeal. Her appeals are as follows:
(1) In matter C2020/7294, Ms Cheng appeals against a decision issued by the Commissioner on 7 September 2020 1 (September decision) in the unfair dismissal matter in which the Commissioner rejected four applications made by Ms Cheng under s 590(2)(c) of the Fair Work Act 2009 (FW Act) for orders for the production of documents (first appeal).
(2) In matter C2020/7313, Ms Cheng appeals against the September decision again. On one reading of her notice of appeal, she also appeals against a “decision” said to be constituted by an email sent to her from the Commissioner’s chambers on 9 September 2020 in which Ms Cheng was informed that the Commissioner would not order the transcript of an interlocutory hearing in the unfair dismissal matter which occurred on 7 September 2020 and advised that she could access the audio recording of the hearing (second appeal).
(3) In matter C2020/7332, Ms Cheng appeals against a “decision” said to be constituted by an email sent to her from the Commissioner’s chambers on 7 September 2020 prior to the hearing on that day which referred to Ms Cheng’s email “asserting Commissioner Booth’s mediation/conciliation conference has compromised her impartiality in the matters” and then stated “Parties will be invited to address this point at the beginning of the hearing” (that is, the hearing on 7 September 2020) (third appeal).
(4) In matter C2020/7390, Ms Cheng appeals against a decision constituted by a listing and directions made by the Commissioner on 10 September 2020 in the dispute matter. The listing was for a hearing concerning the University’s jurisdictional objection to occur on 2 October 2020. The directions required the parties to file submissions and witness statements in relation to the jurisdictional objection by specified dates (fourth appeal).
(5) In matter C2020/7704, Ms Cheng appeals against a “decision” said to have been made in the unfair dismissal matter constituted by an email sent to Ms Cheng from the Commissioner’s chambers on 24 September 2020 in which:
• it was noted that during the hearing on 7 September 2020, the Commissioner did not say that a written transcript would be ordered by the Commission;
• it was confirmed that the transcript for the hearing on 7 September 2020 would not be ordered, but that access to the audio recording was available;
• Ms Cheng was invited to lodge a formal complaint in respect of any concerns she had about the Commissioner’s conduct of the mediation held on 31 August 2020;
• Ms Cheng was advised that a National Accreditation Authority for Translators and Interpreters (NAATI) certified interpreter had been organised for the hearing on 25 September 2020; and
• the purpose of the test of the Teams technology to be conducted at 3.00pm that afternoon was explained (fifth appeal).
[2] Ms Cheng’s unfair dismissal application relates to the termination of her employment with the University on 25 October 2018, after some seven months of employment, and was lodged on 14 November 2018. It has failed to progress to a hearing in the two years since it was filed because of various adjournments obtained by Ms Cheng on medical and other grounds and various procedural difficulties. Ms Cheng’s dispute application was lodged on 24 October 2019, and seeks resolution of an alleged dispute concerning Ms Cheng’s probationary period and the confirmation of her continuing employment pursuant to the dispute resolution procedure in the Griffith University Enterprise Agreement 2012-2016. It has likewise failed to progress to a hearing in the year since it was filed due to adjournments obtained by Ms Cheng and other procedural issues.
[3] All of the appeals identified above were listed together for a hearing on the issue of permission to appeal to commence at 4.00pm on 2 November 2020. In respect of each appeal, directions were made requiring Ms Cheng to file a three-page outline of submissions concerning the issue of permission to appeal at specified dates prior to the hearing.
[4] Ms Cheng did not file any submissions pursuant to these directions, nor did she participate in the hearing, which was conducted by way of videoconference. The circumstances in which this occurred are as follows:
(1) The presiding member of the Full Bench decided to order the transcript of the 7 September 2020 hearing before the Commissioner in order to aid the determination of the appeals. The parties were advised of this on 20 October 2020, and informed that they would be provided with copies of the transcript when it became available.
(2) On 22 October 2020, Ms Cheng sent an email to the presiding member’s chambers requesting that a Cantonese translation of the transcript, prepared by a NAATI-certified translator, be made available to her. Ms Cheng also asked to be advised whether the transcript was a public or private document.
(3) On 28 October 2020, Ms Cheng by email repeated her requests of 22 October 2020, and further requested that the directions and listing for hearing be cancelled until her requests were complied with.
(4) The same day, the presiding member’s chambers advised Ms Cheng by email that the transcript was not a public document and would not be published on the Commission’s website, that a Cantonese translation of the transcript would not be provided, and the directions and the listing for the hearing on 2 November 2020 would not be vacated.
(5) Ms Cheng sent a reply email the same day in which she requested reasons for the decision not to vacate the directions and hearing and not to provide a Cantonese translation of the transcript, and inquired whether she could send the transcript for translation herself. She contended that she could not prepare written submissions without a translated version of the transcript, and that to require her to prepare her submissions in the circumstances was “unreasonable and unfair, and a violation of human right[s]”. She again requested that her appeals be placed on hold until her requests had been dealt with.
(6) On 29 October 2020, Ms Cheng lodged an appeal (C2020/8007) against the “decision” said to be constituted by the email to her from the presiding member’s chambers of 28 October 2020. In her notice of appeal, Ms Cheng sought a stay of the “decision” pending the hearing of her appeal.
(7) The same day, Ms Cheng requested in an email to the presiding member’s chambers that all directions in respect of her five appeals be cancelled pending the outcome of her stay application in matter C2020/8007.
(8) On 30 October 2020, the presiding member’s chambers advised Ms Cheng by email for a second time that the directions and the hearing listed for 2 November 2020 would not be vacated.
(9) By reply email the same day, Ms Cheng asked: “Thank you for your email. Do you mean that my application of adjournment of C2020/7294, C2020/7313, C2020/7332, C2020/7390, C2020/7704(C2020/7709) submitted on 29 Oct 2020 has been rejected by Vice President Hatcher?
Could he please provide the reasons?”
(10) At 10.00am on 2 November 2020, Ms Cheng again requested by email to the presiding member’s chambers that all directions in respect of her five appeals be cancelled pending the outcome of her stay application in matter C2020/8007.
(11) At 11.59am, the presiding member’s chambers advised Ms Cheng by email that, as confirmed in previous emails dated 28 October 2020 and 30 October 2020, the adjournment request for the hearing listed at 4.00pm that day was refused.
(12) At 12.16pm, Ms Cheng by email to the presiding member’s chambers requested reasons for the rejection of her adjournment requests.
(13) At 12.23pm, Ms Cheng requested advice concerning the timezone to which the reference in the notice of listing to 4.00pm concerned. She was advised by the presiding member’s chambers at 12.58pm that the hearing was listed for 4.00pm AEDT or NSW time.
(14) At 1.19pm, Ms Cheng requested advice concerning which members would make up the Full Bench at the hearing. She was advised by the presiding member’s chambers at 1.25pm that this would not be disclosed in advance of the hearing.
(15) At 1.46pm, Ms Cheng requested that advice be provided to her by 3.00pm of the name and certified practitioner number of the interpreter who would be available for assistance at the hearing, and whether the interpreter was a freelancer or worked for an organisation. At 2.27pm, the presiding member’s chambers provided Ms Cheng by email with the name and NAATI accreditation number of the Cantonese interpreter to be provided.
(16) At 3.11pm, Ms Cheng sent an email stating that Microsoft Teams (the means by which the video hearing was to be conducted) was not working for her, and provided a telephone number on which she could be contacted.
(17) At 3.37pm, Ms Cheng sent an email to the presiding member’s chambers attaching an email from NAATI confirming that the interpreter to be provided at the hearing was “Certified Interpreter Cantonese to English”. She said however that the NAATI certified interpreter she had requested must be a: “NAATI Certified Interpreter between Cantonese and English”. She applied for an adjournment until such an interpreter had been arranged by the Commission and details of the interpreter’s name and certified practitioner number had been sent to her within a reasonable timeframe (48 hours) before the start of the hearing.
(18) At 3.48pm, the presiding member’s chambers called Ms Cheng directly on the number provided and confirmed that she would be dialled into the hearing. Ms Cheng asked why an interpreter was not on the line. It was explained to her that the interpreter was in the video hearing, and that Ms Cheng would be dialled in if she did not join herself. However, Ms Cheng failed to respond to attempts to dial her into the video hearing on the number she had provided. She was sent an email providing the details to dial in herself as specified on the notice of listing, but she did not do so.
(19) Ms Cheng was telephoned again as 3.59pm, at which time there was a repetition of the events of the 3.48pm phone call. She did not respond to further attempts to dial her in. Ms Cheng was sent an email at 4.08pm confirming her landline number, that the presiding member’s chambers was attempting to dial her in, that the interpreter was already waiting to be admitted into the hearing, and she was once more provided with the details and step-by-step instructions to dial herself in. Ms Cheng made no attempt to dial herself in, and she continued to not respond to attempts by the presiding member’s chambers to dial her in.
(20) At 4.20pm, the hearing commenced in Ms Cheng’s absence. We did not call upon the University to make any submissions, and we reserved our decision in the matters.
(21) At 4.39pm, Ms Cheng sent an email to the presiding member’s chambers which stated (telephone numbers and other details redacted):
“As mentioned, I am waiting for your phone call. No phone call from you since 4:06pm AEDT. Thank you.
Regarding the issue you mentioned “We have tried dialling you into the hearing however each time it says your number is unavailable.”, could you please contact your IT support to fix that? You was able to call me twice by XXXXX XXX and you spoke for 2 mins in the two phone calls with me, which shows that my phone number is working fine.
At least other 2 mediations and two hearings were hold with my same phone number, which shows that other Fair Work staff was able to connect me into the hearing by using the same number XXXXX XXXX.
As mentioned since 3:11pm AEDT this afternoon, currently, Microsoft Team is not working on my device so I am unable to call the Microsoft Team number you provided (XXXXX XXXX, then enter the conference ID: XXXXX XXXX).
I would like to exercise my right to join the hearing. If you have IT issues today which prevent you from calling me or proceeding the hearing, please issue an adjournment and advise the next step urgently.
As mentioned, I am still waiting for your phone call.”
(22) At 6.28pm, Ms Cheng sent the following email to the presiding member’s chambers (telephone number redacted):
“As mentioned, I am still waiting for your phone call for the hearing scheduled at 4pm AEDT today.
Please note that XXXXX XXXX will not be a valid phone number after 7pm AEDT today. If you or the respondent need to contact me after 7pm AEDT, please use emails only.
Looking forward to hearing from you soon.”
[5] We make a number of observations and conclusions about the circumstances described above. First, it is apparent to us from the record of proceedings in the appeals before us, as well as Ms Cheng’s unfair dismissal and dispute applications, that Ms Cheng is highly literate in written English. Notwithstanding that she is self-represented, Ms Cheng has been able to prepare applications and other documents containing the use of perfect or near-perfect complex English. She has also displayed no difficulty in understanding and rapidly responding to correspondence or documents sent to her by the Commission or the University in the proceedings without the need for translation. Accordingly, we consider her demand that the transcript of the hearing on 7 September 2020 be translated into Cantonese to be disingenuous. We also note that in her originating application for an unfair dismissal remedy filed on 14 November 2018, Ms Cheng answered “No” to the question of whether an interpreter was required. In previous requests made to the Commissioner for transcript to be produced, Ms Cheng has never requested that a Cantonese translation be provided. Accordingly, we consider her requests for vacation of the directions and an adjournment on that basis to be spurious.
[6] Second, the content of the transcript has no relevance to the third, fourth or fifth appeals, which relate to discrete events occurring before or after the 7 September 2020 hearing.
[7] Third, we infer from Ms Cheng’s persistent and increasingly spurious attempts to have the directions for the filing of submissions vacated and the hearing on 2 November 2020 adjourned that she had no intention of filing submissions or attending the hearing. This is most clearly indicated by her adjournment request shortly before the hearing commenced, which was advanced on the basis that a NAATI-certified interpreter described as a “Certified Interpreter Cantonese to English” did not meet her requirement for a: “NAATI Certified Interpreter between Cantonese and English”. We do not consider that it is credible that Ms Cheng believed that the interpreter provided for the hearing could not translate English to Cantonese as well as Cantonese to English.
[8] Fourth, we are wholly satisfied that Ms Cheng deliberately avoided being connected into the video hearing on 2 November 2020, whilst trying to create the appearance of an intention to participate. We consider her emails sent after the hearing in which she asserts that she is awaiting the Commission’s phone call and is desirous of participating in the hearing to be disingenuous and inconsistent with her prior conduct.
[9] 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 her five appeals. She has not made use of this opportunity. Procedural fairness requires the Commission to give a party a reasonable opportunity to present their case, not to ensure that a party takes the best advantage of that opportunity. 2 Accordingly, we will determine the question of permission to appeal on the basis of the contents of Ms Cheng’s notices of appeal.
The appeals
[10] The grounds of appeal and the grounds upon which it is contended that permission to appeal should be granted outlined in the notices of appeal filed by Ms Cheng are lengthy and detailed, and involve a considerable degree of repetition. We attempt to summarise below the main issues raised in each notice of appeal.
[11] In her notice of appeal in the first appeal, the substantive matters raised in Ms Cheng’s appeal grounds are:
• there was a mistrial at the hearing on 7 September 2020 because there were no certified interpreters between English and Cantonese to assist Ms Cheng, in that the first interpreter was not a NAATI-certified interpreter and the second was only NAATI-certified to interpret from Cantonese to English;
• after one of the interpreters asked the representative of the University to rephrase one expression which she had used and the representative did not do so, the Commissioner refused Ms Cheng’s request for her to direct the representative concerning the extent to which the interpreter could interpret, thereby violating Ms Cheng’s right to understand the trial;
• the Commissioner did not issue a written decision in accordance with s 601 of the FW Act; and
• the Commissioner refused Ms Cheng’s request for the transcript of the hearing without giving reasons, and the audio recording could not replace the transcript as it was not an official record of the proceedings and could not be published, distributed or transmitted.
[12] Ms Cheng contends in her notice of appeal that the grant of permission to appeal would be in the public interest because, in summary, 21 percent of Australians speak a language other than English at home, and any failure to provide NAATI-certified interpreters would be discriminatory and unfair to such Australians.
[13] In the second appeal, Ms Cheng contends in her grounds of appeal that, in summary, no reasons were given for the September decision and, to the extent that the Commissioner gave reasons orally at the hearing, Ms Cheng’s right to understand those reasons and provide oral submissions in response has been violated because of the failure to provide a NAATI-certified interpreter between English and Cantonese. In respect of the issue of the interpreter, the grounds of appeal largely canvass the same matters as those dealt with in the notice of appeal in the first appeal. In respect of permission to appeal, the second appeal notice raises the same matters as the first appeal notice.
[14] In the third appeal, Ms Cheng’s grounds of appeal contend that the Commissioner should not have conducted the hearing on 7 September 2020 because she conducted mediations on 24 August 2020 and 31 August 2020. Ms Cheng says that she raised this in an email to the Commissioner’s chambers on 7 September 2020, before the hearing commenced. The Commissioner arranged for the issue of impartiality to be discussed at the commencement of the hearing, but Ms Cheng’s right to understand and respond was violated because no NAATI-certified interpreter between English and Cantonese was arranged and the hearing was a mistrial. The grounds also raise the issue of the non-provision of the transcript and the alleged inadequacy of the audio recording. Ms Cheng contends in her notice of appeal that the grant of permission to appeal is in the public interest because all applicants should have the right to raise concerns about impartiality and be given a fair trial concerning the issue of impartiality, regardless of whether English is their first language or not, and otherwise largely repeats matters stated in the first and second appeal notice.
[15] In the fourth appeal, Ms Cheng’s grounds of appeal raise a variety of issues, including:
• the Commissioner had conducted mediations in relation to her unfair dismissal matter, and therefore should not be the member who dealt with the dispute matter;
• the Commissioner had not responded to the concerns Ms Cheng had expressed about her impartiality in her email of 7 September 2020 in the unfair dismissal matter;
• the Commissioner had failed to arrange NAATI-certified interpreters at the mediations in the unfair dismissal matter or for the hearing on 7 September 2020; and
• the Commissioner had made an error in her earlier directions in the dispute matter, and it is reasonable for Ms Cheng to apply for her matter to be re-assigned to another member.
[16] In respect of permission to appeal, Ms Cheng said that unfair treatment of a self-represented litigant who is not a native English speaker is relevant to the public interest, and the Commissioner’s issuing of an incorrect direction involved a denial of procedural fairness and shows that the public interest is at risk. Ms Cheng otherwise repeated matters raised in the first, second and third appeal notice.
[17] In the fifth appeal, Ms Cheng contends in her grounds of appeal that:
• it was a false statement that the Commissioner did not state at the hearing on 7 September 2020 that a written transcript would be ordered by the Commission, and the Commissioner’s decision not to order the transcript was based on this false statement and should not be enforced;
• the audio recording for the hearing on 7 September 2020 shows that the Commissioner said: “Should any party require a transcript of today's matter, then they should contact Chambers and an electronic copy of today's hearing will be provided”.
• all Commission members should follow their directions and keep their promises;
• the false statement made by the Commissioner raises potential integrity, impartiality and misconduct issues, and involves a violation of the human rights of Ms Cheng and all Australians;
• the capacity of a party to order transcript from Epiq Australia Ltd (Epiq) was not an adequate substitute because the transcript they provide is not public and cannot be provided to translators for translation; and
• Epiq’s terms and conditions for the provision of transcript are likely to be in violation of the Sales of Goods Act 1896 (Qld) and the Competition and Consumer Act 2010 (Cth) and are unfair and discriminatory against persons whose first language is not English.
[18] In respect of permission to appeal, Ms Cheng’s notice of appeal largely repeats the grounds of appeal.
Consideration
[19] An appeal under s 604 of the FW Act is an appeal by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker.3 There is no right to appeal and an appeal may only be made with the permission of the Commission.
[20] We consider that s 400 of the FW Act applies to the first, second, third and fifth appeals, since they involve interlocutory decisions or purported interlocutory decisions concerning an application made under Pt 3-2 of the FW Act. 4 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.
[21] In the Federal Court Full Court decision in Coal & Allied Mining Services Pty Ltd v Lawler and others, 5Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s 400 as “a stringent one”. The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.6 A Full Bench of the Commission, in GlaxoSmithKline Australia Pty Ltd v Makin, 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.” 7
[22] The fourth appeal arises from Ms Cheng’s dispute application and this, to the extent it involves an appealable decision at all, is one in which permission to appeal must be determined in accordance with s 604. Section 604(2) requires the Commission to grant permission to appeal if satisfied that it is “in the public interest to do so”. The task of assessing whether the public interest test is met under s 604(2) involves the same principles as identified above in respect of s 400(1). 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 and which would therefore usually be treated as justifying the grant of permission to appeal include that the decision is attended with sufficient doubt to warrant its reconsideration and that substantial injustice may result if leave is refused. 8
[23] 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.9 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.10
[24] 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. 11 However it is necessary to engage with those grounds to consider whether they raise an arguable case of appealable error.
[25] Two common issues arise in Ms Cheng’s notices of appeal. The first concerns the provision of interpreters at the hearing before the Commissioner on 7 September 2020. The simple fact is that the Commissioner, in accordance with the Commission’s standard practice, obtained the services of English-Cantonese interpreters for that hearing from the Translating and Interpreting Service (TIS) operated by the Department of Home Affairs. TIS provides interpreters with the highest available credential level with NAATI. In respect of the two interpreters provided for the 7 September 2020 hearing, Ms Cheng has not identified any deficiency in the translation services provided which caused her not to be able to understand any relevant aspect of the proceeding. No substantive denial of procedural fairness has been identified by Ms Cheng. The transcript of the hearing does not disclose that any particular difficulty with the quality of the interpretation services provided was raised by Ms Cheng, although she did at some points appear to seek to correct the interpreter. 12 Indeed, it is not even clear that Ms Cheng did not understand what was being said in English directly. To the contrary, the transcript reflects that Ms Cheng was able to and did communicate in a way which indicated that she clearly understood what was being said and asked questions for clarification at times. In any event, there cannot be any doubt that the interpreters were able to, and did, translate from English to Cantonese and from Cantonese to English. The various grounds of appeal related to the provision of interpreters are entirely lacking in substantive merit, and raise no general issue about how the Commission deals with parties who require the assistance of interpreters in order to understand the proceedings.
[26] The second common issue concerns the provision of the transcript for the 7 September 2020 hearing. It may be observed at the outset that this issue has been rendered moot by the fact that the transcript has now been obtained and provided to Ms Cheng. In any event, it needs to be emphasised that parties before the Commission do not have a right to be provided with a copy of the transcript free of charge. The Commission will itself order a copy of the transcript for a hearing to be prepared when the relevant member considers that the assistance of the transcript is necessary for decision-making purposes, or when the matter is one of broad public interest (such as in modern award proceedings) and is to be published on the Commission’s website. In those circumstances, parties will usually be provided with a copy of the transcript at no cost. Otherwise, the transcript is not prepared unless a party orders it and pays the requisite fees for its preparation. All transcripts, whether ordered by the Commission or a party, are prepared by a contractor to the Commission (which is currently Epiq), and are provided to parties on the same basis.
[27] If a party to a proceeding considers that they need access to a record of a hearing, and is either not prepared or not in a position to pay for the cost of the preparation of the transcript, they will be provided on request with access to the audio recording of the hearing. The audio recordings are provided in a “user friendly” format which allows the listener to play back the proceedings and to jump to particular segments of the recording by using audio controls.
[28] In this case, the Commissioner was dealing with a straightforward interlocutory matter concerning an application for orders for the production of documents, and unsurprisingly did not order the preparation of the transcript. Ms Cheng was informed that her request to that effect was not granted, and was provided access to the audio recording. This recording, of course, contained the translations from English to Cantonese and vice versa which Ms Cheng had required during the conduct of the hearing, so there can be no question as to the capacity of Ms Cheng to understand the recording. We note that Ms Cheng has, in relation to her fifth appeal, quoted from the audio recording a passage (in English) which she considers supports her position, which demonstrates the adequacy of the audio recording as a record of the hearing able to be used in the conduct of the litigation. Accordingly, insofar as the appeal grounds concern this issue, they also lack any merit and do not raise any issue of general importance requiring appellate consideration.
[29] We do not consider the other matters raised in the five appeals to involve reasonably arguable contentions of appealable error. We do not propose to deal with all of the matters raised, but we address what we perceive to be the principal matters as follows:
First appeal: The contention that the Commissioner did not issue a written decision in accordance with s 601(1) is plainly wrong. The September decision concerned whether the power under s 590(1)(c) should be exercised. On one view, the decision was one made under Pt 5-1 of the FW Act, making the requirement in s 601(1) inapplicable. In any event, the decision was issued in writing, and was also published on the Commission’s website.
Second appeal: The Commissioner gave ex tempore reasons for the September decision. 13 These reasons were translated by the interpreter into Cantonese. The proposition that the Commissioner did not give reasons for her decision, or that Ms Cheng was denied the right to understand those reasons, is without merit.
Third appeal: We do not consider the email from the Commissioner’s chambers to Ms Cheng of 7 September 2020, in which Ms Cheng was invited to address the concern she had raised about the Commissioner’s impartiality due to her previous involvement in mediation proceedings at the beginning of the hearing that day, to constitute a decision that is appealable under s 604. The third appeal is therefore incompetent. In any event, it was the appropriate course for the Commissioner to take. At the hearing, the Commissioner again invited Ms Cheng to address the concern she had raised so that the Commissioner could determine whether she should recuse herself. This was also the appropriate course. Ms Cheng initially declined this invitation, claiming that she was confused, but ultimately submitted that she wished the Commissioner to continue for the time being to deal with her unfair dismissal and dispute applications and to determine her applications for orders for production. 14 Accordingly, the issue raised by the third appeal goes nowhere.
Fourth appeal: The grounds of appeal bear no logical relationship to the “decision” the subject of the appeal, namely the Commissioner’s directions and listing for hearing of the University’s jurisdictional objection to Ms Cheng’s dispute application. The directions and listing were entirely unexceptional. Ms Cheng had not at any stage asked the Commissioner to recuse herself from determining the dispute application. As earlier stated, Ms Cheng had to the contrary requested that the Commissioner continue dealing with it. The fact that there had been an error in the making of some previous directions, which led the Commissioner to vacate them, is a matter of no significance or relevance.
Fifth appeal: The Commissioner’s statement that “Should any party require a transcript of today's matter, then they should contact Chambers and an electronic copy of today's hearing will be provided” was not a false statement. Although the statement cannot be said to be entirely unambiguous, it is best read as meaning that if a party wished to order the transcript, they could do so via the Commissioner’s chambers, although the reference to an “electronic copy” may also be read as referring to the audio recording. In any event, we do not consider the email the subject of the fifth appeal, in which the Commissioner noted that she did not say that the transcript would be ordered by the Commission at the 7 September 2020 hearing, constitutes a decision that is appealable under s 604. The fifth appeal is incompetent.
[30] For the reasons stated, Ms Cheng’s appeals 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. To the extent that s 400(1) applies to the first, second, third and fifth appeals, permission to appeal must be refused because we are not satisfied that the grant of permission would be in the public interest. Even if, contrary to our earlier view, s 400(1) does not apply to these appeals, we would not grant permission on discretionary grounds. In respect of the fourth appeal, we do not consider that the grant of permission to appeal would be in the public interest, nor do we consider that there are discretionary grounds favouring the grant of permission. Accordingly, permission to appeal is refused in respect of this appeal also.
VICE PRESIDENT
Appearances:
No appearances for the Appellant.
Ms B Rance on behalf of the Respondent.
Hearing details:
2020.
Sydney (video-link).
2 November.
Printed by authority of the Commonwealth Government Printer
<PR724197>
1 [2020] FWC 4791
2 Re Coldham and Others; Ex parte Municipal Officers Association of Australia and Others [1989] HCA 13, 84 ALR 208, 27 IR 278 at 220 per Gaudron J; Sullivan v Department of Transport [1978] FCA 48, 20 ALR 323 at 343 per Deane J; Secretary, Department of Family and Community Services v Verney [2000] FCA 570 at [45]; Soames v Secretary, Department of Social Services [2014] FCA 295 at [41]
3 This is so because on appeal the Commission has power to receive further evidence, pursuant to s 607(2); see Coal and Allied Operations Pty Ltd v AIRC [2000] HCA 47, 203 CLR 194, 99 IR 309 at [17] per Gleeson CJ, Gaudron and Hayne JJ
4 See Kennedy v Qantas Ground Services Pty Ltd[2018] FWCFB 4552 at [10] - [11]
5 [2011] FCAFC 54, 192 FCR 78, 207 IR 177 at [43]
6 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 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]
7 [2010] FWAFB 5343, 197 IR 266 at [27]
8 Also see CFMEU v AIRC [1998] FCA 1404, 89 FCR 200, 84 IR 314 at 220; and Wan v AIRC [2001] FCA 1803, 116 FCR481 at [26]
9 Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30]
10 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]
11 Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
12 For example, at PN204, Ms Cheng said: “Excuse me, excuse me. From the Chinese interpretation, I heard the word 'compared with the decision made by Commissioner Bissett', but from the English version, I haven't heard the word 'compared'. Can you clarify, please?”.
13 Transcript, 7 September 2020, PNs 184-238
14 Ibid, PNs 80-87
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