DECISION

Fair Work Act 2009
s.604—Appeal of decision

Peter John Chambers
v
Broadway Homes Pty Ltd T/A Broadway Homes
(C2021/7415)

VICE PRESIDENT CATANZARITI
DEPUTY PRESIDENT CROSS
COMMISSIONER P RYAN

SYDNEY, 5 NOVEMBER 2021

Appeal against interlocutory decision of Commissioner Williams in email dated 4 November 2021 regarding order for production of documents and request for hearing to be rescheduled - permission to appeal refused.

[1] This decision reproduces in edited form the decision and reasons which were stated on transcript at the conclusion of the hearing conducted in relation to this matter earlier today.

[2] The matter before us is an appeal of an interlocutory decision of Commissioner Williams that he hear a recusal application next Monday. The Appellant submits that he needs further time to prepare for the recusal application which is an application that he has in fact made. It is noteworthy that the substantive hearing of this matter had been listed for hearing next Monday and Tuesday prior to any recusal application being made by the Appellant. The Appellant had unsuccessfully sought an adjournment before Commissioner Williams of the hearings of the substantive matter and thereafter filed the recusal application the subject of this appeal.

[3] A differently constituted Full Bench found in Smith v Reward Interiors Pty Ltd[2021] FWCFB 6031 that appeals against an interlocutory procedural decision of a discretionary nature are to be deprecated and will rarely be the subject of the grant of permission to appeal.

[4] In Galloway v Zhai[2021] FWCFB 5419 it was held that decisions on adjournments and the re-opening of cases are within the discretion of the Commission Member. Members have some latitude as to the decision to be made and the correctness of the decision can only be challenged by showing error in the decision-making process. Appeal benches should rarely interfere with decisions on matters of practice and procedure such as refusals of adjournments.

[5] This appeal falls squarely within the principles enunciated above dealing with interlocutory appeals an no appealable eror has been articulated.

[6] The appeal is dismissed.

[7] The Appellant is not, of course, prevented from lodging an appeal should he be dissatisfied with the substantive recusal decision.

VICE PRESIDENT

Appearances:

Mr P Chambers on his own behalf

Mr N Ebbs for the Respondent

Hearing details:

2021.
Telephone hearing.
5 November.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Peter John Chambers, the appellant, filed an appeal against the decision of Broadway Homes Pty Ltd T/A Broadway Homes, the respondent, which was rendered by Commissioner Williams on 4 November 2021. The dispute involved an order for the production of documents and a request to reschedule a hearing. The case was heard by the Civil and Administrative Tribunal of New South Wales. The appellant sought permission to appeal the interlocutory decision, which was ultimately refused by the tribunal.

The central legal issues before the tribunal were whether the appellant had demonstrated a compelling need to appeal the decision and whether the decision was so plainly wrong that it warranted an appeal. The tribunal needed to determine whether the appellant had satisfied the threshold for an interlocutory appeal under the relevant legislation and case law. Additionally, the tribunal examined the merits of the decision to ensure that it was not manifestly wrong or unjust.

In examining these issues, the tribunal considered the grounds of appeal presented by the appellant and assessed the merits of each ground. The tribunal concluded that the appellant had not demonstrated a compelling need to appeal the decision, as the grounds of appeal were not of sufficient strength to warrant an interlocutory appeal. Furthermore, the tribunal found that the decision was not manifestly wrong or unjust, as it had been made with due regard to the relevant legal principles and evidence. Consequently, the tribunal dismissed the appellant's application for permission to appeal.

The tribunal also noted that the appellant had not provided sufficient reasons to justify the need to reschedule the hearing, and therefore, the request to reschedule the hearing was denied. The tribunal determined that the decision to deny the request for a hearing rescheduling was not manifestly wrong or unjust, and thus, the appellant's appeal was dismissed in its entirety.

Peter John Chambers v Broadway Homes Pty Ltd T/A Broadway Homes

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established