Peter Ristevski v South Coast Private Evolution Health Care

[2014] FWCFB 9304

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions
Peter Ristevski
v
South Coast Private - Evolution Health Care
(C2014/6831)
VICE PRESIDENT HATCHER
SENIOR DEPUTY PRESIDENT HAMBERGER
COMMISSIONER ROBERTS	SYDNEY, 24 DECEMBER 2014

Appeal against an order PR556146 of Senior Deputy President Drake at Sydney on 1 October

2014 in matter number U2014/11846.

[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 on 18 December

2014.

[2] This is an appeal, for which permission to appeal is required, by Peter Ristevski

against a decision of Senior Deputy President Drake made on 1 October 2014 to refuse to

grant to Mr Ristevski an extension of time to lodge an unfair dismissal remedy application.

The Senior Deputy President published her reasons for the decision on 25 October 2014

[3] Section 400(1) of the Fair Work Act 2009 (the Act) applies to this appeal. Under that

provision, we must not grant permission to appeal unless we consider that it is in the public

interest to do so.

[4] Under s.394(3) of the Act, the Commission may allow an extension of time if it is

satisfied that there are exceptional circumstances, taking into account a number of specified

matters. The criterion of “exceptional circumstances” is a stringent one. Its application in a

particular case will involve the exercise of a discretion.

[5] In an appeal from an extension of time decision it will therefore be necessary for an

appellant to demonstrate appellable error of the type identified in House v The King

[6] The Senior Deputy President’s reasons for decision demonstrate that her Honour took

into account all the matters she was required to take into account under s.394(3). At paragraph

[9] her Honour identified the matters which Mr Ristevski identified in his application as the

reasons for the delay in filing his application, and at paragraph [15] stated the conclusion that
[2014] FWCFB 9304

she was not satisfied that there were exceptional circumstances which would warrant the grant

of an extension of time. Mr Ristevski has not submitted that there was any error in the

decision, and none is apparent to us.

[7] He has complained about the fact that due, he said, to his lawyers’ error, he did not

receive from the Senior Deputy President a written request she made before the issue of the

decision requiring from him a written statement explaining the circumstances of the delay.

However, Mr Ristevski was unable to identify any additional matter, not dealt with in the

decision, which he would have raised as constituting exceptional circumstances such as to

justify an extension of time. In those circumstances, even if there was a representative error in

the process, there is no reason to consider that it caused Mr Ristevski any injustice.

[8] We consider that it was open to the Senior Deputy President to conclude that there

were no exceptional circumstances such as to allow the grant of an extension of time. The

result was not counter-intuitive and did not manifest any injustice. The decision turned on its

own facts and raised no broader issue of law or policy.

[9] We are not satisfied that it is in the public interest to grant permission to appeal, and

we therefore must therefore refuse permission to appeal.

VICE PRESIDENT

Appearances:

P. Ristevski on his own behalf

I. Litchfield on behalf of South Coast Private - Evolution Healthcare

Hearing details:

2014.

Sydney:

18 December.

Printed by authority of the Commonwealth Government Printer

[2014] FWC 7534

(1936) 55 CLR 499 at 504-505.

In the matter of Peter Ristevski v South Coast Private Evolution Health Care, the Federal Circuit Court heard an appeal from a decision made by Senior Deputy President Drake on 1 October 2014. The appeal, numbered C2014/6831, was heard by Vice President Hatcher, Senior Deputy President Hamberger, and Commissioner Roberts. The appeal concerned the refusal to grant an extension of time for the lodging of an unfair dismissal remedy application. The initial decision had been detailed in a published document on 25 October 2014.

The central legal issue before the Court was whether the refusal to grant an extension of time for lodging the unfair dismissal remedy application constituted an error warranting an appeal. Specifically, the Court had to determine if there were exceptional circumstances justifying the extension under section 394(3) of the Fair Work Act 2009. This required a stringent evaluation of the circumstances presented by Mr. Ristevski. The Court was also tasked with considering whether granting permission to appeal was in the public interest, as mandated by section 400(1) of the Act.

The Court examined the reasons provided by Senior Deputy President Drake, who had carefully considered all relevant factors under section 394(3). The Senior Deputy President had identified the reasons for the delay and concluded that there were no exceptional circumstances justifying an extension. Mr. Ristevski did not challenge the decision's correctness, nor did the Court find any apparent error. The Court also noted that any potential error in the process did not result in any injustice to Mr. Ristevski, as he could not specify additional exceptional circumstances that would have warranted an extension. Therefore, the Court concluded that the decision was justified and did not indicate any broader legal or policy issues.

Ultimately, the Court ruled that it was not in the public interest to grant permission to appeal. Consequently, the appeal was dismissed, and permission to appeal was refused.

CaseChat Overview and Summary

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Legal Principle Established