Peter Elliott v LEAP Legal Software Pty Limited T/A LEAP Legal Software
[2018] FWCFB 6032
•3 OCTOBER 2018
[2018] FWCFB 6032
FAIR WORK COMMISSION
DECISION
Fair Work Act 2009
s.604—Appeal of decision
Peter Elliott
v
LEAP Legal Software Pty Limited T/A LEAP Legal Software
(C2018/4502)
DEPUTY PRESIDENT GOSTENCNIK
DEPUTY PRESIDENT BULL
| COMMISSIONER BISSETT | SYDNEY, 3 OCTOBER 2018 |
Appeal against decision [2018] FWC 4343 of Commissioner Saunders at Newcastle on 24 July 2018 in
matter number C2017/7240.
Introduction and background
[1] Mr Peter Elliott (Appellant) was, until his dismissal on 8 November 2017, employed by LEAP Legal
Software Pty Limited (Respondent). On 30 December 2017, the Appellant lodged an application pursuant to s.365 of the Fair Work Act 2009 (Cth) (Act) alleging that the termination of his employment by the Respondent contravened the general protections provisions of the Act. The lodgement occurred 31 days after the prescribed 21 day period for lodgement had passed. Section 366 of the Act requires a person who has been dismissed and who applies to the Fair Work Commission (Commission) for it to deal with a general protections dispute pursuant to s.365, to make an application within 21 days after the dismissal took effect. However, the Commission may allow a further period for the application to be made if it is satisfied that there are exceptional circumstances taking into account the enumerated matters in s. 366(2)(a)–(e).
[2] The question whether a further period should be allowed was determined by Commissioner Saunders
who, on 6 February 2018, concluded that he was not satisfied that there are exceptional circumstances upheld for the reasons explained by the Full Bench and set out below:
warranting allowing a further period within which an application under s.365 of the Act could be made. 1
“[9] The legislative scheme in which s.366 of the Act operates, was comprehensively considered by a
Full Bench of the Commission in Periklis Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd
t/as Richmond Oysters (Stogiannidis).
[10] Relevantly, in Stogiannidis, it was found that the Commissioner at first instance had erred by
elevating a relevant factor (that is, the reason for delay) under s.366(2)(a) of the Act, into a “decision
rule so as to allow the automatic production of a solution”. This was, in the Full Bench’s view, theresult of the Commissioner erroneously relying upon Cheval Properties Pty Ltd (t/as Penrith Hotel
Motel) v Smithers (Cheval) as authority for the proposition that an applicant “needs to provide a credible
explanation for the entire period of the delay” in order to support an extension of time application beinggranted under s.366(2) of the Act.
[11] In this appeal, it is clear to us that Commissioner Saunders has fallen into the same error.
[12] At paragraph [11] of the Decision, Commissioner Saunders cites the case of Cheval and sets out the
following proposition:
“The applicant must provide a credible reason for the whole of the period that the
application was delayed.” (Emphasis added).
[13] The Commissioner then detailed a timeline of events from which the Appellant’s dismissal took
effect on 8 November 2017, to the date in which the general protections application was lodged on 30 adequate explanation for not filing his application in the period from 10 November 2017 to 8 December 2017. However, in respect of the period from 9 December 2017 to 30 December 2017, the Commissioner was not satisfied that the Appellant had provided an adequate explanation for the delay, as the Commissioner was of the view that the Appellant was not “incapacitated or otherwise unable to file” his application for the “whole” of this period. On that basis, the Commissioner determined that s.366(2)(a) was a factor which weighed against granting an extension of time.
[14] Having considered the remaining factors under s.366(2)(b)-(e), the Commissioner concluded that,
on balance, he was not satisfied that there were exceptional circumstances which warranted an extension
of time. More specifically, the Commissioner stated that:
“Although I have sympathy for [the Appellant], he has not, on the evidence before me, provided
an acceptable reason for the whole of the delay in making his Application. My evaluative
judgment is that [the Appellant’s] circumstances were not, either viewed in isolation or
considered together, out of the ordinary course, unusual, special or uncommon.” (Emphasisadded).
[15] Based on these aspects of the Decision, it is apparent that the Commissioner adopted and applied a
decision rule of the kind identified as an error of law in Stogiannidis. Namely, the Commissioner
erroneously adopted Cheval as authority for the proposition that a credible reason must be provided for
the whole period of delay in supporting a finding that exceptional circumstances existed. According to
the Full Bench’s reasons in Stogiannidis, Cheval did not stand for such proposition because the relevant
error that was identified in that case was not that a credible explanation must be provided for the whole
of the delay, but rather it was that the Member at first instance had failed to take into account the factthat part of the delay was unexplained.
Stogiannidis
[16] As such in following , we find that the Commissioner’s adoption of a decision rule at regarded as exceptional such as to enliven the discretion to extend time under s.366(2) of the Act. On that basis, we find that the Decision is attended with error and sufficient doubt as to warrant its reconsideration on appeal.
[11] of the Decision amounted to an error of law. This, in our view, plainly influenced the
[17] In those circumstances, it is unnecessary to give further consideration to the other grounds of
appeal.
[18] We would note however, that Commissioner Saunders did not have the benefit of Stogiannidis at
the time he issued his Decision, and particularly given the ambiguity in Cheval, we imply no criticism ofhim in our decision. 2 [Endnotes omitted; Emphases in original]
[3] Consequently, the Commissioner’s decision was quashed and the Appellant’s application to be allowed a
further period within which to lodge his general protections application was remitted to the Commissioner
for rehearing. The Commissioner subsequently conducted two hearings, the first on 6 July 2018 and the
second on 20 July 2018. By decision published on 24 July 2018 3, the Commissioner concluded that he was
not satisfied that there are exceptional circumstances so as to allow a further period within which the
Appellant’s application may be made.4 The Appellant lodged an appeal against that decision on 15 August
2018.
Consideration
Appeal lodged outside of the time prescribed by Rule 56(2)(a)
[4] The appeal raises an additional question of timeliness. Rule 56 of the Fair Work Commission Rules 2013
(Rules) states, amongst other things, that an appeal must be lodged within 21 calendar days after the date of late. Rule 56(2)(c) provides that the Commission may allow further time within which the appeal is to be lodged. The procedural rules are made by legislative instrument pursuant to s.609, and s.585 states that an application to the Commission must be in accordance with the procedural rules relating to applications of the relevant kind. This includes appeals.
the decision against which an appeal is brought. The appeal should have been lodged by no later than 14
[5] There are sound reasons for setting a limit to the time for bringing an appeal, connected to the fair and
effective exercise of the Commission’s functions and powers in accordance with the Act. 5 The time limit
should only be extended where there are good reasons for doing so. The authorities indicate that the
following matters are relevant to the exercise of the Commission’s discretion under Rule 56(2)(c):
• whether there is a satisfactory reason for the delay;
• the length of the delay;
•
the nature of the grounds of appeal and the likelihood of one or more of those grounds being upheld if time were extended; and
• any prejudice to the respondent in the appeal if time were extended. 6
[6] In broad terms, the issue for the Commission is whether, in all the circumstances and having regard to the
matters set out above, the interests of justice favour an extension of the time within which to lodge the
appeal. 7
[7] The Respondent does not oppose the grant of an extension of time to lodge the appeal. 8 The reason for
the delay given by the Appellant appears to be technical difficulties with lodgement.9 The length of delay in
the lodgement is very short, only one hour and 17 minutes. No prejudice is asserted by the Respondent if we
were to allow a further period. Although for the reasons which will follow, the nature of the grounds of
appeal did not warrant the grant of permission to appeal, we consider on balance that it is appropriate that we
exercise our discretion to allow a further period within which the appeal may be lodged. That period is
extended to 15 August 2018.
Nature and principles of appeal under the Act
[8] An appeal under s.604 of the Act is an appeal by way of rehearing and the Commission powers on appeal
are only exercisable if there is error on the part of the primary decision maker. 10 There is no right to appeal
and an appeal may only be made with the permission of the Commission. Section 604 provides:
(1) A person who is aggrieved by a decision:
(a) made by the FWC (other than a decision of a Full Bench or an Expert Panel); or
(b) made by the General Manager (including a delegate of the General Manager) under the
Registered Organisations Act;
may appeal the decision, with the permission of the FWC.
(2) Without limiting when the FWC may grant permission, the FWC must grant permission if the FWC
is satisfied that it is in the public interest to do so.
Note: Subsection (2) does not apply in relation to an application for an unfair dismissal (see section
400).
(3) A person may appeal the decision by applying to the FWC.
[9] Subsection 604(2) requires the Commission to grant permission to appeal if satisfied that it is “in the
public interest to do so”. The grant of permission to appeal, except in the case of appeals against unfair
dismissal related decisions, is not confined to circumstances where the public interest is enlivened. 11 The
task of assessing whether the public interest test is met is a discretionary one involving a broad value
judgment.12 The public interest is not satisfied simply by the identification of error13, or a preference for a
different result.14
[10] The public interest may for example be attracted if an appeal 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 or tribunal is required, or where the decision the subject of appeal manifests an injustice, or the result
in that decision is counterintuitive or if the legal principles applied in the decision appear disharmonious
compared with other recent decisions dealing with similar matters. 15
[11] Other than the special case in s.604(2), which does not here apply, 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. 16 It will rarely be appropriate to grant permission to appeal unless an arguable case of appellable error is demonstrated. This is so because an appeal cannot succeed in the absence of
appellable error.17 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.18
[12] We would also observe as relevant that the test of “exceptional circumstances” establishes a “high
hurdle” for an applicant for an extension, 19 and that a decision determining whether to allow a further
period under s.366(2) involves the exercise of a discretion.20 In this proceeding, we have had the benefit of
full argument on both permission to appeal and the merits of the appeal.
Grounds of appeal and summary of the Appellant’s contentions
[13] The grounds of appeal contained in the Appellant’s Notice of Appeal are lengthy and take a form which
is more consistent with submissions than grounds of appeal. This is not a criticism of the Appellant, merely observation of the way in which the grounds of appeal are expressed. The grounds of appeal in essence can be summarised in short compass. The Appellant contends that:
•
he should have been permitted to rely upon a report of Dr Michael Schirripa dated 25 June 2018 and to call Dr Schirripa to give evidence unencumbered by an order for production of documents relating to the Appellant’s medical history. The Appellant complains that the Commissioner made no
reference in his decision about the Appellant’s reason for not calling Dr Schirripa to give evidence
and not relying on the report, that is, that the Appellant did not wish for his entire medical history to
be the subject of a public hearing which he considered would be particularly invasive and detrimental
to his health;•
he should have been given the opportunity to call Dr Schirripa without the need for compliance with the order for production of documents which, on its face required production of an extensive category of documents, including notes, medical reports and other documents concerning examinations, consultations, observations and treatment of the Appellant by Dr Schirripa;
•
the Commissioner had a conflict of interest and ought to have recused himself from dealing with the Appellant’s application because of a LinkedIn connection between the Commissioner and an employee of the Respondent who was involved in the termination of the Appellant’s employment by the Respondent;
• the Commissioner should have but failed to deal with the decision in Lam v Stallman partners Pty Ltd, 21 (Lam) a decision on which the Appellant relied, and did not give reasons for any decision not
to follow Lam;
•
taking into account the findings made by the Commissioner as to the matters he was required to take into account and the weight he assigned each consideration, there is a disconnect between those findings and the Commissioner’s ultimate conclusion that he was not satisfied that there are exceptional circumstances;
•
the Commissioner should have been satisfied that the medical certificate on which the Appellant did rely, indicating that he was incapacitated for the period 9 December 2017 to 31 December 2017, was sufficient to enable the Commissioner to be satisfied that there was an acceptable explanation for the delay in lodging the application; and
•
the Commissioner wrongly concluded that the merits of the application should weigh neutrally in the assessment whether there were exceptional circumstances.
Consideration of the Appellant’s appeal grounds and his contentions
[14] We turn then to consider these grounds and contentions, but before doing so, it is necessary to observe
that transcripts of the proceedings before the Commissioner were not ordered or produced. Audio recordings
of the proceedings were made available to the parties to this appeal to assist them in their preparation of
arguments. Given the costs associated with the production of a transcript, we do not consider it appropriate
to require an official transcript to be ordered and produced by the Appellant. The Respondent commissioned
a private provider 22 to transcribe the audio recordings into a transcript for the purposes of referring to
segments in the appeal. The Appellant did not object this course but proposed one amendment to the
transcription of the audio recording of the hearing of 20 July 2018 and which is recorded in the transcript of
the hearing of the appeal.23 We will refer to the transcription provided as is necessary in this decision.
a. Dr Schirripa’s Report
[15] As is evident from our summary above, the Appellant’s complaint about his inability to rely on Dr
Schirripa’s report concerns the circumstances in which he elected not to rely on the report or to call Dr Schirripa. In particular, he complains about the necessity for, and breadth of, the order for production of certain medical records, compliance with which would have followed had he proceeded to rely upon the report or to call Dr Schirripa.
[16] During the hearing of 6 July 2018, the following exchange occurred between the Appellant and the
Commissioner concerning Dr Schirripa’s report:
“COMMISSIONER SAUNDERS: I made directions following a Directions Hearing I held in this matter
and those directions were made on the 21st of June. I made directions because you wanted to rely on
additional witness statements, documents and submissions in this rehearing. And just to recap what we
have happening here is re-hearing your application for an extension of time following the Full Bench
quashing my earlier decision in that regard. And because you told me on the last occasion you wanted to
rely upon additional material I made directions allowing you to file and serve additional submissions,
witness statements, medical reports and other documents you wanted to rely upon in support of your
application by the 28th of June, 2018.
MR ELLIOTT: Yes.COMMISSIONER SAUNDERS: You did subsequently file and serve what is effectively a report by your treating psychiatrist, Dr Michael Schirippa. It’s a report of 25 June, 2018; that’s correct, isn’t it?
MR ELLIOTT: That’s correct, yes.
COMMISSIONER SAUNDERS: Yes. But you have subsequently informed my associate in writing that you do not wish to rely upon that report; is that right?
MR ELLIOTT: Yeah. Out of circumstance, Commissioner, I basically, as I mentioned previously ... and the reason - a bit of background. The reason that when we last had a hearing I wasn’t fully across the Full Bench decision was because, yeah, I had some health problems; I wasn’t actually able to have the opportunity to actually read it. So, when we had that last hearing and it was put to me that I needed to nominate a date, as I said, I was weighing up against the health implications of you know to continue to attend each hearing with the probability that I’d be able to get Dr Michael Schirripa available. Obviously I’ve just learned that he is not available in the time and therefore I’m not actually able to submit his evidence, which it is what it is.
COMMISSIONER SAUNDERS: Well, Mr Elliott, that’s not right. What we’ve said to you in writing is that if you were to rely upon Dr Schirripa’s report, because the respondent has requested that he be made available for cross-examination to ask some questions about that report, that’s a fair request.
MR ELLIOTT: Right.
COMMISSIONER SAUNDERS: And so, we’ve notified you and informed you in writing that if you want to rely upon Dr Schirripa’s report, that’s fine. We can adjourn the hearing to a time when he is able to participate by telephone to give evidence. And we afforded you an option and you told us you did not want to take up that option but instead you wanted to proceed today and you would not be relying upon Dr Schirripa’s report. Is that still the case?
MR ELLIOTT: Yes. So, my understanding was that it wasn’t simply a matter of relying on questioning at the hearing; it was also a matter of digging up my entire history. So, that was my understanding of the situation, but I could be wrong.
COMMISSIONER SAUNDERS: Well, when you say, “Digging up your entire history” what happened
was that the respondent indicated, or applied for, an order for the production of documents by Dr
Schirripa concerning various matters and concerning things that he may well have relied upon to prepare
his report. And I would be mindful to make such an order for the production of documents if you wanted
to rely upon his report. You came back and said, “No, I don’t want to rely upon his report. I don’t want
to adjourn the hearing today; I want to proceed on the basis that I will not be relying upon Dr Schirripa’sreport.”
I’m just asking you to confirm whether that is still the case?
MR ELLIOTT: Yes, that is still the case, and my reasoning is twofold. First of all, obviously further delay probably helps no-one in this matter. Secondly, yeah, my initial understanding when I was going to produce the report that it would just be a matter of a verbal, a cross-examination. I wasn’t privy to obviously latter information which was, “Yeah, we’re going to ask for a complete history and a year of the entire - yeah, all the medical information basically.” So, that’s my reasoning and hence, yes, I don’t wish to rely upon that on that basis.
COMMISSIONER SAUNDERS: Just to be clear, you agree you were given the chance to adjourn this hearing this today to another time when Dr Schirripa could have been available to give evidence by telephone; you agree with that?
MR ELLIOTT: That is correct, and that with also the caveat of - that Dr Schirripa was also required to order for the production of documents by Dr Schirripa.
produce a full report as well.
MR ELLIOTT: Correct. Correct, yes.
COMMISSIONER SAUNDERS: But you could have course applied to have that set aside or make
some application in respect of it. What you’ve elected to do - you’ve told us in writing and you’re telling
me now today, as long as I understand what you’re saying - is that rather than adjourn this hearing so
that Dr Schirripa can give evidence in support of your application your preference is not to rely upon hisreport and instead proceed with the hearing today. Is that right?
MR ELLIOTT: Correct, yes.
COMMISSIONER SAUNDERS: So, the report from Dr Schirripa is the only document you filed pursuant to the directions I made on the last occasion permitting you to file and serve additional submissions, witness statements, medical reports and other documentary material. That’s right, isn’t it?
MR ELLIOTT: Yes. So, with the outline of submissions that I put forth for my appeal hearing, I’ve put forth my submission in terms of the reasons for the appeal and also perhaps for this particular hearing as well.
COMMISSIONER SAUNDERS: I’m not quite following you at the moment. I made a direction for you to file any additional submissions, witness statements, medical reports and other documents you wanted to rely upon in support of your application for an extension of time. The only thing you filed was the
report of Dr Schirripa which you say you know don’t want to rely upon; is that right?
MR ELLIOTT: Correct, yes, based on our previous submissions. Yes. But also when I filed the appeal I filed an outline of submissions. So, for the appeal presumably that is something that will be considered today as well. I know it relates to the appeal but it’s documents that I previously filed so I assume that
that will also be considered in today’s hearing.”
[17] There are a number of observations that may be made about the exchange recorded and reproduced
above. It is clear that the Appellant filed Dr Schirripa’s report and sought to rely upon it. The Respondent
indicated that it wished to cross-examine Dr Schirripa. It applied for an order for production of documents to
which we have already referred. The Commissioner had earlier indicated that he would be minded to make
the order. The Appellant indicated that he did not wish to rely on the report. The Appellant was offered an
adjournment to enable Dr Schirripa to attend for cross-examination by telephone but the applicant declined
the offer and instead proposed not to rely upon Dr Schirripa’s report. The Appellant explained that his
reasons for so doing were that he did not want his entire medical history to be trawled over and in particular
his history of mental illness. The Commissioner pointed out that the Appellant could have applied to set
aside the order for production or to make some other application in relation to it, but instead the Appellant
elected not to rely on the report. The Appellant acknowledged that this was so.
[18] At a further hearing on 20 July 2018, another exchange between the Commissioner and the Appellant
about Dr Schirripa’s report occurred, the substance of which is recorded as follows:
“COMMISSIONER SAUNDERS: Mr Elliott, do you wish to make any further oral submissions to
supplement what’s been put in writing or to respond -
MR ELLIOTT: No.
COMMISIONER SAUNDERS: - to the respondent’s submissions of 13 July?
MR ELLIOTT: No. I mean again I would just like to - or should I say, reiterating what I previously said,
and that is that forensically dissecting 24 the history of my health really is not something that is
beneficial to my health and so, obviously I’m relying on what the weight that would be given to a
specialist in mental health and his submission.
COMMISSIONER SAUNDERS: Well, I don’t understand what you mean by that.MR ELLIOTT: Essentially obviously I can actually rely on further evidence. As we’ve previously seen I was able to get a documentation or report from Dr Michael [Sherapa] but...
COMMISSIONER SAUNDERS: He’s doing it.
MR ELLIOTT: Is he? Yes.
COMMISSIONER SAUNDERS: Mr Elliott, you obtained a report from your treating psychiatrist and then you made an election not to rely on that report. That’s right, isn’t it?
MR ELLIOTT: That is correct, yes.
COMMISSIONER SAUNDERS: So, I’m not going to have any regard to that report because you told me you’re not relying on it. Is that right?
MR ELLIOTT: That is correct, yes. And I understand that you are not going to have any further regard to that report and I acknowledge that.
COMMISSIONER SAUNDERS: Mr Elliott, I’m not going to have any regard to the report you obtained from your treating psychiatrist after the Full Bench decision because you told me you don’t want to rely upon it. Is my understanding correct?
MR ELLIOTT: Your understanding is correct.
COMMISSIONER SAUNDERS: Thank you. Is there anything else you’d like to say?
MR ELLIOTT: No. Again I just wanted to reiterate obviously that I’m relying on the evidence that is submittable and that I’ve submitted.
COMMISSIONER SAUNDERS: But that’s the evidence that you submitted in the original hearing before me on 29 January, 2018.
MR ELLIOTT: Correct.
COMMISSIONER SAUNDERS: That’s right, isn’t it?
MR ELLIOTT: That is correct, yes.
COMMISSIONER SAUNDERS: Thank you. Is there anything else you would like to say?
MR ELLIOTT: No, Commissioner.”
[19] It is clear from the above exchange the Commissioner confirmed with the Appellant that he was not
relying on Dr Schirripa’s report and as a consequence the Commissioner would not have regard to it.
[20] It was not necessary for the Commissioner in his decision to set out the reason that the Appellant gave
for his decision not to rely upon the report. Ultimately, the Appellant made a judgement that he would prefer his health as an explanation for the delay. The Respondent would likely have been assisted in this regard by reference to some of the documents which were the subject of the order for production. Whether or not any or all of those documents were relevant and would have been admitted into evidence, are matters about which we do not and cannot make comment. These would have been matters left to the Commissioner had there been a response to the order and particular documents produced had been sought to be tendered as evidence. This did not occur because of the choice made by the Appellant.
to proceed with his application without the report than to rely on the report and any evidence that Dr
Schirripa might give during cross examination because he did not want the order for production fulfilled and
to have his medical history potentially, as he put it “forensically dissected”. That the order for production
required production of documents did not ultimately mean that any and all documents produced would be
introduced into the record of evidence. The Appellant could have objected to the introduction of any
particular document on various grounds including relevance. He could have sought a confidentiality of
evidence order in relation to any documents so introduced. He could have, as the Commissioner pointed out,
made application to set aside the order or to make some other application in relation to the order. He did
none of those things. He did not accept the Commissioner’s invitation to adjourn the proceedings to enable
the doctor to attend. Instead he made a judgement call. The Commissioner properly proceeded on the basis
of the case as put by the Appellant, that is, without the benefit of Dr Schirripa’s report. The Respondent was
entitled to test the veracity of that which was contained in Dr Schirripa’s report by way of cross examination.
[21] Furthermore, despite the Appellant’s assertion during the appeal that he would have called Dr Schirripa
and would have relied on the report but for the order of production, he made no such submission below and as is evident from the transcription of the proceeding on 6 July 2018, the Commissioner made clear that the Appellant could have made an application to set aside the order or to make some other application in relation
to it. No such application was made.
[22] Ultimately, the Appellant is bound by the case that he conducted at first instance and the choices that he
made in relation to the evidence upon which he sought to rely. An appeal is not an opportunity to conduct a
better case than that which, though he had an opportunity to advance at first instance, he elected not to
advance.
[23] The Appellant’s grounds of appeal and contentions concerning Dr Schirripa’s report and the
circumstances in which the Appellant elected not to rely on the report do not disclose any appellable error in
the Commissioner’s decision and are rejected.
b. LinkedIn connection
[24] In the first appeal, to which reference has already been made, the Appellant complained that since
issuing the decision the subject of that appeal on 6 February 2018, the Appellant had discovered on 7 the Respondent involved in the Appellant’s dismissal. He therefore contended that this fact was not disclosed by the Commissioner or that there was a potential for a conflict of interest and there was an absence of full transparency. As events transpired, the Full Bench did not need to deal with this ground of appeal for the reasons earlier stated. The Appellant did not complain in the first appeal that the Commissioner’s decision was affected by any actual bias, or prejudgment.
[25] As earlier noted, the Appellant again raises this issue in this appeal, but he does so in circumstances
different to those advised on the first appeal. The Appellant now, unlike then, was well aware of the rehearing, unlike at the initial hearing, every opportunity to raise the issue with the Commissioner and to make an application if he saw fit that the Commissioner recused himself from further dealing with the application on the basis of the LinkedIn connection to Ms Heffernan, or that the connection gives rise to a reasonable apprehension of bias.
[26] The Applicant did not make such an application during the rehearing, despite being armed with full
knowledge of all the circumstances upon which an allegation of a conflict or apprehended bias could be based. Moreover, as the transcription of the audio recorded proceeding before the Commission on 6 July 2018 reveals, the Appellant was given the opportunity to press or make such an application or submission
but did not do so. So much is clear from the following:
“COMMISSIONER SAUNDERS: Now, I’ve just started looking at these submission you put to the Full you make some comments about me and say that I should recuse myself from hearing this case. Is that still an accusation you make?
MR ELLIOTT: No, Commissioner Saunders. submissions or just part of it. So, you don’t rely upon paragraph 8 of those submissions, is that right?
MR ELLIOTT: Yes, correct, Commissioner Saunders.”
[27] The Appellant seeks to explain his failure to raise or pursue the issue of conflict of interest or
apprehended bias with the Commissioner by contending that he had little choice but to accept that his
concern about the conflict of interest was not going to be considered in the rehearing of the case by the same
Commissioner against whom he had raised the issue of a potential conflict of interest in his first appeal.
[28] This submission is, in the circumstances of this case, without merit. It is not the case that there was any
basis for the Appellant to assume that the issue would not be considered in the rehearing. The Commissioner expressly asked him whether he pressed the submission made in paragraph 8 of his outline of submissions to the Full Bench in the first appeal. The Appellant said that he did not. As is evident from the above, he was
asked whether he relied on the submission twice, on each occasion indicating he did not. Applications for
recusal are generally to be made to the tribunal member against whom an allegation of apprehended or actual
bias is levelled. The Appellant had full knowledge and opportunity to press his allegation and to make an
application for recusal. He declined to do so. Any suggestion that as a consequence there is appellable error
disclosed, is completely without merit. Such grounds in the Notice of Appeal and the Appellant’s contentions
as concern the LinkedIn connection are rejected.
c. Decision in Lam
[29] The Appellant contends that the Commissioner should have but failed to deal with the decision in Lam
and that the Commissioner did not give reasons for any decision not to follow Lam.
[30] It is correct that the Commissioner makes no reference in his decision to Lam. But that is not fatal nor does it expose appellable error. Lam is not binding authority. It is merely an example of the way in which a single member of the Commission exercised her discretion to extend time in the particular circumstances of that case. As the Commissioner’s reasons for decision clearly disclose, the Commissioner asked himself the right questions, considered the matters that he was required to take into account and accorded each matter
such weight he thought appropriate. All of this is completely unremarkable. The Commissioner was not of greater generality or because there is a factual premise upon which a contention rests which has been rejected.
required to mention it in his reasons. The decision in Lam was not a fact in issue which required
determination. As the Full Court explained in WAEE v Minister for Immigration and Multicultural
[31] In any event, we consider on a fair reading of the Commissioner’s reasons, that he dealt with the extent
to which Lam might be relevant, although not expressly, immediately before his concluding paragraphs as
follows:
“[29] The Full Bench in Perry v Rio Tinto Shipping Pty Ltd considered this criterion and said (at [41]):
“Cases of this kind will generally turn on their own facts. However, this consideration is
concerned with the importance of the application of consistent principles in cases of this kind,
thus ensuring fairness as between the Appellant and other persons in a similar position. This
consideration may relate to matters currently before the Commission or matters previouslydecided by the Commission.”
[30] I am not satisfied that the issue of fairness as between Mr Elliott and other persons in a similar
position is a relevant consideration in this matter. Because it is not a relevant, I find that this factor is a
neutral consideration in determining whether to grant an extension of time.” 26 [Endnote omitted]
[32] For these reasons, this ground of appeal and the Appellant’s contention in support of it are rejected.
d. Attribution of weight/unreasonableness of ultimate conclusion
[33] As earlier noted, the Appellant contends that having regard to the findings made by the Commissioner
as to the matters he was required to take into account and the weight he assigned each consideration, that there is a disconnect between those findings and the Commissioner’s ultimate conclusion that he was not satisfied that there are exceptional circumstances.
[34] We take this appeal ground and supporting contention to be a contention that the Commissioner’s
decision is attended by legal unreasonableness in the sense explained in House v The King: 27
“. . . It may not appear how the primary judge had reached the result embodied in his order, but, if upon
the facts it is unreasonable or plainly unjust, the appellant caught may infer that in some way there has
been a failure to properly exercise the discretion which the law reposes in the court of first instance. In
such a case, although the nature of the error may not be discoverable, the exercise of the discretion isreviewed on the ground that a substantial wrong has in fact occurred. 28”
[35] We do not consider that the Appellant has established on the facts that the decision is unreasonable or
plainly unjust. To the contrary, we consider having regard to the reasons of the Commissioner embodied in
his decision that the Commissioner, as we have already observed, asked himself the right questions,
considered the matters that he was required to take into account and accorded each matter such weight he
thought appropriate. The result was well within the reasonable bounds of outcomes that would be expected
from a consideration and weighing of the facts relevant to the Commissioner’s exercise of discretion and his
ultimate conclusion as to his satisfaction whether there were exceptional circumstances. It is not open nor
appropriate to a Full Bench on appeal to interfere with decisions as to weight that is to be attached to
particular matters (except in the rare cases where weight attributed is plainly disproportionate or wrong) or to
substitute its own views for the way in which a discretion should have been exercised by a member at first
instance.
[36] No appellable error has been disclosed. This ground of appeal and the contentions of the Appellant
advanced in support of it are rejected.
e. Medical certificate
[37] The Appellant also contends that the Commissioner should have been satisfied that the medical
certificate on which the Appellant did rely indicating that he was unfit for work for the period 9 December
2017 to 31 December 2017 was sufficient to enable the Commissioner to be satisfied that there was an
acceptable explanation for the delay in lodging the application.
[38] This contention is rejected. The medical certificate at issue 29 certifies that the Appellant was unfit for work for the period 27 October 2017 to 31 December 2017. The certificate indicates that during this period he was an inpatient receiving the treatment particularised therein. On its face the certificate says nothing
about the Appellant’s capacity, cognitive or otherwise, to complete and file an application during that period. certifies the Appellant as being unfit for work. That the Appellant was able to lodge his application during a period that he was unfit for work merely underscores the weak nature of the certificate alone in establishing the Appellant’s medical condition as an explanation for the delay. Moreover, though the certificate indicates that the Appellant was an inpatient of a hospital during this period, it is uncontroversial that he was discharged on 8 December 2017.30 The Commissioner rightly attributed little weight to the certificate because it did not speak to the Appellant’s capacity to lodge an application during the period identified in the certificate. No appellable error is disclosed.
f. Merits
[39] Although the Appellant initially contended that the Commissioner wrongly concluded that the merits of
the application should weigh neutrally in the assessment whether there were exceptional circumstances,
during the hearing of the appeal, the Appellant withdrew it and did not rely on that contention. 31
Accordingly, we do not deal with the contention.
Conclusion
[40] Simply disagreeing with the decision at first instance does not provide a basis for satisfying the public
interest test for the grant of permission to appeal or for the grant of permission on any other basis. On the
material before us, and for the reasons stated, we are not persuaded that the matters set out in the grounds of
appeal raise an arguable case of error in the exercise of the Commissioner’s discretion, of the kind discussed
in House v King or otherwise. We also do not consider that the Commissioner's conclusion was
unreasonable, is manifested by any injustice nor is it counterintuitive. We are not persuaded that the appeal
raises issues of importance or general application or that there is a need for Full Bench guidance on the
question of that which constitutes “exceptional circumstances” for the purposes of s.366(2) of the Act. We do
not consider the grant of permission to be in the public interest nor do we consider there is any other basis
upon which permission to appeal should be given.
[41] Permission to appeal is therefore refused.
| DEPUTY PRESIDENT |
| Appearances: |
| P Elliott, Appellant. |
| S Meehan of Counsel for the Respondent. |
| Hearing details: |
| 2018. |
| Melbourne-Adelaide-Sydney (by video link): |
| September 24. |
| Printed by authority of the Commonwealth Government Printer |
| <PR700860> |
| 1 [2018] FWC 627 |
| 2 [2018] FWCFB 3288 at [9]-[18] |
| 3 [2018] FWC 4343 |
| 4 Ibid at [31] 5 See in particular s.577 |
| 6 Stevenson-Helmer v Epworth Hospital, Print T2277, 19 October 2000; Dundovich v P&O Ports, Print PR923358, 8 October 2002; SPC Ardmona Operations Ltd v Esam and Organ (2005) 141 IR 338; Tokoda v Westpac Banking Corporation [2012] FWAFB 3995; Lesic v No. 1 Riverside Quay Pty Ltd [2015] FWCFB |
| 395 |
| 7 Jobs Australia v Donna Eland [2014] FWCFB 4822 at [6] |
| 8 Email from Respondent to Fair Work Commission dated 28 September 2018 |
| 9 Email from Appellant to Fair Work Commission dated 27 September 2018 |
| 10 This is so because on appeal the Commission has power to receive further evidence, pursuant to s.607(2); see Coal and Allied v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ |
| 11 See s.400 which deals with appeals against unfair dismissal related decisions. |
| 12 O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ: applied in Hogan v Hinch (2011) 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; |
| Coal & Alllied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44]-[46] |
| 13 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [24]-[27] |
| 14 Ibid at at [26]-[27]; see also 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] |
| 15 See GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [24]-[27] |
| 16 See CFMEU v AIRC (1998) 89 FCR 200 at 220; and Wan v AIRC (2001) 116 FCR 481 at [26] |
| 17 Wan v AIRC (2001) 116 FCR 481 at [30] |
| 18 See Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089 at [28], 202 IR 288, affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v |
| Lawler (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia |
| represented by the Australian Taxation Office [2014] FWCFB 1663, 241 IR 177 at [28] |
| 19 Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21] |
| 20 Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82] |
| 21 [2014] FWC 1892 |
| 22 Transcript Divas |
| 23 Transcript PN 15 – PN 31 |
| 24 Correction discussed at transcript PN 15 – PN 31 |
| 25 [2003] FCAFC 184; (2003) 236 FCR 593 at [47] |
| 26 [2018] FWC 4343 at [29]-[30] 27 [1936] HCA 40, (1936) 55 CLR 499 |
| 28 Ibid at 505 |
| 29 Appeal Book, Tab 15 |
| 30 Form F8 filed by the Appellant at p 6 |
| 31 Transcript PN 249 – PN 272 |
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