1
[2013] FWCFB 2532
DECISION
Fair Work Act 2009
s.604—Appeal of decision
Peter Viavattene
v
Health Care Australia
(C2013/3139)
JUSTICE ROSS, PRESIDENT
SENIOR DEPUTY PRESIDENT DRAKE
DEPUTY PRESIDENT ASBURY MELBOURNE, 24 APRIL 2013
Catchwords: Unfair dismissal appeal - determined on the papers - s.607(1) Fair Work Act
2009 (Cth) - failure to prosecute case at first instance and application dismissed - no denial
of procedural fairness - permission to appeal refused.
[1] On 14 June 2012 the appellant, Mr Peter Viavattene, was dismissed from his
employment with Health Care Australia Pty Ltd (the Respondent). Mr Viavattene made an
application for an unfair dismissal remedy on 18 June 2012. Commissioner Booth dismissed
Mr Viavattene’s application pursuant to s.587(1) of the Fair Work Act 2009 (the Act), on 4
February 20131. Mr Viavattene has appealed that decision. The parties have consented to the
appeal being determined on the papers. We are satisfied that the appeal can be heard without
persons making oral submissions and pursuant to s.607(1) of the Act, we determine the appeal
on the papers and without an oral hearing.
[2] The background facts may be briefly stated.
[3] Attempts to resolve the application for relief by conciliation were unsuccessful and the
matter was set down for a three day hearing commencing 17 October 2012. Prior to the
commencement of the hearing Mr Viavattene was arrested by Australian Federal Police
officers, on unrelated matters, and Commissioner Booth adjourned the hearing and gave both
parties liberty to apply.
[4] A directions hearing was held on 19 December 2012. New hearing dates were set
down for 30 and 31 January 2013 and Mr Viavattene was directed to attend in person2.
[5] The Commissioner sets out what occurred on 30 and 31 January 2013 in the decision
subject to appeal, as follows:
AUSTRALIA FAIR WORK COMMISSION
[2013] FWCFB 2532
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“[12] The hearing commenced on 30 January 2013 at 10am. The Respondent’s representatives
and their witnesses were in attendance. There was no appearance from the Applicant, who had
not advised that he could not attend in person.
[13] My associate contacted the Applicant from the hearing room by telephone. While on the
phone the Applicant at times seemed upset or angry. He advised that did not attend in person
because of the recent flooding that had affected Northern New South Wales where he is living.
The Tribunal was prepared to provide some latitude to the Applicant in the circumstances,
taken at face value.
[14] It turned out to be a brief telephone appearance. The Applicant submitted the matter
should be decided without a hearing, on the papers, and then hung up. The matter had not been
adjourned. He had not asked to be excused. He simply chose to hang up.
[15] The Respondent then sought an order that the application be dismissed for want of
prosecution, given the Applicant’s apparent refusal to participate further in the hearing, not
having tendered evidence.
[16] Despite these circumstances, and what appeared to be a deliberate choice by the
Applicant to cease participation in the hearing, I indicated to the Respondent that, given that
flooding apparently preventing the Applicant from attending in person, I would not dismiss the
application but would adjourn for the day.
[17] The Respondent opposed the matter being heard on the papers as there were a number of
contested evidentiary matters, and a wish on the Respondent’s part that the Applicant’s
evidence be tested by cross examination. Any adjournment, it was submitted, should take into
account that the Respondent’s representatives had now travelled from Sydney on a second
occasion for the hearing and its witnesses attended also for a second time. It was put to me that
the matter be reconvened the next day, on 31 January 2013, which was also a day listed for the
hearing of this matter.
[18] In a written decision published on 30 January 2013 I noted that, given the contest of facts
in this matter, there was a need for cross examination and that would require a hearing with
the parties present. However given the circumstances of the Applicant’s home apparently
having been flooded, or at least his movements curtailed by the flood, the order requiring
personal attendance was vacated and the Applicant was given leave to attend the hearing by
telephone. The matter was adjourned until the next day, Thursday 31 January 2013 at 10am.
[19] At around lunchtime on Wednesday, 30 January 2013, the Applicant contacted my
associate to enquire about a number of matters including the transcript of the hearing that
morning. Additionally he advised that his email service had been restored. He then hung up
again. There was no further communication by the Applicant with the Tribunal.
[20] The Applicant was advised by email of the decision issued that day, for the resumption of
the hearing the next day.
The resumed hearing - 31 January 2013
[21] The Respondent’s representatives and witnesses attended on 31 January 2013 for the third
time. The Tribunal attempted to contact the Applicant by telephone at 10am. He did not
answer and a message was left. After a short adjournment a further attempt was made again to
contact the Applicant by phone. A similar message was left. As at the writing of this decision,
the Applicant has not contacted the Tribunal in response to the messages or the directions.”3
[2013] FWCFB 2532
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[6] After the second failed attempt to contact Mr Viavattene the Respondent applied to
have the application for relief dismissed under s.587 of the Act.
[7] The Commissioner granted the Respondent’s application and dismissed Mr
Viavattene’s application for relief, in the following terms:
“[32] ... the Applicant had been given every opportunity to present his case to the Tribunal.
Natural justice had been afforded, even if the Applicant had not taken up the opportunities
provided.
[33] It remains to consider whether the Respondent’s case can satisfy the Tribunal that it
has a defence to the action brought against it. While it is arguable after Sayer that it is not
necessary to examine the merits of the alleged dismissal when the Applicant fails to press his
or her case at hearing, it is however prudent to ensure that the Respondent has a defence to its
action.
[34] The Respondent’s case was contained in the statements of the witnesses Mr
Hewerdine and Mr McCombes and the outline of submissions filed on 24 September 2012. By
these statements and submissions, the Respondent seeks to defend the claim of unfair
dismissal. The sworn statements were put into evidence and are unchallenged. These
statements and submissions contain substantial arguments in response to the Applicant's
contentions. The Respondent’s case is not frivolous nor does it lack substance.
[35] The Applicant was afforded natural justice, yet failed to participate in the hearing,
despite numerous attempts by the Tribunal to facilitate his participation. The Respondent has
established that it has a defence to it’s action. Additionally, the Respondent would be
prejudiced by further adjournments at the Tribunal’s own motion.
[36] The requirements set out by the Full Bench in Sayer are met in this case. The
appropriate course is to dismiss the application pursuant to section 587(1).
[37] In these circumstances, the application for unfair dismissal remedy is dismissed.4”
[8] It is apparent from the Commissioner’s decision that Mr Viavattene’s application was
dismissed, pursuant to s.587(1), on the basis that it had no reasonable prospects of success.
[9] Section 587 is in the following terms:
“587 Dismissing applications
(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an
application if:
(a) the application is not made in accordance with this Act; or
(b) the application is frivolous or vexatious; or
(c) the application has no reasonable prospects of success.
Note: For another power of the FWC to dismiss an application for a remedy for unfair
dismissal made under Division 5 of Part 3-2, see section 399A.
(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under
section 365 or 773 on the ground that the application:
(a) is frivolous or vexatious; or
(b) has no reasonable prospects of success.
[2013] FWCFB 2532
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(3) The FWC may dismiss an application:
(a) on its own initiative; or
(b) on application.”
[10] It is also relevant to note that s.399A of the Act commenced operation on 1 January
2013. Section 399A states:
“399A Dismissing applications
(1) The FWC may, subject to subsection (2), dismiss an application for an order under
Division 4 if the FWC is satisfied that the applicant has unreasonably:
(a) failed to attend a conference conducted by the FWC, or a hearing held by the
FWC, in relation to the application; or
(b) failed to comply with a direction or order of the FWC relating to the application; or
(c) failed to discontinue the application after a settlement agreement has been
concluded.
Note 1: For another power of the FWC to dismiss applications for orders under Division 4, see
section 587.
Note 2: The FWC may make an order for costs if the applicant’s failure causes the other party
to the matter to incur costs (see section 400A).
(2) The FWC may exercise its power under subsection (1) on application by the employer.
(3) This section does not limit when the FWC may dismiss an application.”
[11] In addition, it is important to note that the Commission has an express power, in s.600,
to determine a matter before it in the absence of a person who has been required to attend
before it.
[12] An appeal under s 604 of the Fair Work Act 2009 (the Act) is an appeal by way of
rehearing and the Tribunal’s powers on appeal are only exercisable if there is error on the part
of the primary decision maker.5 There is no right to appeal, rather an appeal may only be
made with the permission of the Commission.
[13] The decision subject to appeal was made under Part 3.2 - Unfair Dismissal - of the
Act. Section 400 (1) of the Act provides that permission to appeal must not be granted from a
decision made under Part 3.2 unless the Commission considers that it is in the public interest
to do so. Further, in such matters, appeals on a question of fact may only be made on the
ground that the decision involved a ‘significant error of fact’ (s 400(2)). Section 400 of the
Act manifests an intention that the threshold for a grant of permission to appeal is higher in
respect of unfair dismissal appeals than the threshold pertaining to appeals generally (compare
s 604(2) and s 400).
[14] We issued directions in this matter on 22 February 2013. Mr Viavattene was directed
to file an outline of submissions by 11 March 2013. Mr Viavattene subsequently made
enquiries with the Fair Work Commission Registry to gain further information about the
directions. On 4 March 2013, the presiding Member’s associate wrote to Mr Viavattene
providing a brief explanation of the directions and on 10 March 2013 Mr Viavattene replied in
the following terms:
[2013] FWCFB 2532
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“Dear Ms Summers,
I rely on the evidence already filed that is contained within the appeal books already filed as
stipulated in the below email. All evidence is contained within the appeal books and to my
understanding of the Fair Work process the matter is now determined on paper and as
previously stated all the evidence is contained within the appeal books and I have nothing
further to add.
Yours sincerely,
Peter Viavattene
10/3/2013”
[15] On 15 March 2013 the Commission again wrote to Mr Viavattene pointing out that the
directions required him to file an outline of submissions in support of the appeal, and drawing
Mr Viavattene’s attention to the fact that the Appeal Bench will be determining two issues;
whether permission to appeal should be granted and whether there was an error in the original
decision. The correspondence also provided further information on s.400 of the Fair Work Act
2009 and gave Mr Viavattene the option of appearing at the appeal hearing via telephone. Mr
Viavattene replied on 16 March 2013 stating that he would appear via telephone.
[16] The respondent matter filed their outline of submissions on 25 March 2013, in
accordance with the directions issued.
[17] On 25 March 2013 Mr Viavattene wrote to the Commission asking ‘that this matter
should be determined on paper according to the legislation? I cannot possibly say anything as
good as I have stipulated in the Appeal books in writing.’ The respondent subsequently
consented to the appeal being determined on the papers.
[18] The grounds of appeal and the matters advanced in support of a grant of permission to
appeal are set out below:
“Grounds:
1. This appeal is brought under section 604 of the Fair Work Act 2009.
2. There has been a failure to observe the rules of Natural Justice. There has been a failure
to observe the procedures that were required by law to be observed in connection with the
making of the decision.
3. Procedural error is an administrative failure to meet all the procedural requirements laid
down by a statute that condition the exercise of Ms. Booth's discretion.
4. Ms. Booth has denied procedure fairness because the right to be heard never occurred and
impartiality never existed to allow any of my evidence (facts) to be heard she has caused the
process to be constantly delayed and forced me into poverty because her bias manner in
allowing every request of the respondents was very unreasonable and her lack of empathy at
my position after experiencing damage due to the storms.
5. Ms. Booth did everything in her power not to focus on the facts and the legislation of my
matter. It was very evident from the conversations going on that she was working with Mr.
Capelin Solicitor for Healthcare Australia as she continued to try and stir me up and do
everything possible not to focus on the evidence I had presented to the tribunal.
[2013] FWCFB 2532
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6. Ms. Booth stated on the 30th of January 2013 that my Application for direction on
procedure under FWA 365 was to be decided on paper, including all e-mails I sent to Fair
Work Australia and all documents filed in FWA on the 30th of August 2012- and then
dismissed my matter on the 4th of February 2013.
7. I was never informed that a phone hearing was listed for the 31st as I presumed the matter
was to be determined on paper as I was still experiencing extenuating circumstances and could
not receive any written correspondence.
8. Please be advised that the NSW and Federal Governments declared a natural disaster to
be recognized as result of the Australia day weekend flood event in the Tweed shire were we
reside.
9. Statements of McCombe and Hewerdine are false vexatious and malicious and they have
no evidence to support any of their claims because it never happened.
10. My Witnesses never turned up because they don't want to expose Hewerdine and
McCombe for the liars they are.
11. The decision involves a significant error of fact.
12. Ms. Booth has failed because she has taken many irrelevant considerations into account
in the exercise of her powers.
13. Ms. Booth has failed because she has refused to take many or any relevant considerations
into account in the exercise of her powers.
14. Ms. Booth has demonstrated an exercise of power for a purpose other than a purpose for
which the power is conferred.
15. Ms. Booth has demonstrated an exercise of discrepancy power in bad faith.
16. Ms. Booth has demonstrated an exercise of power that is so unreasonable that no
reasonable person could have so exercised the power.
17. Please be advised that I was Flood stricken and without electricity for 3 days, therefore I
was cut off from receiving any correspondence by mail or e-mail after I had previously
requested a phone hearing for the 30th of January 2013 that was denied by Commissioner
Booth. Instead on Thursday the 30th of January 2013 I was rung while repairing my house
after being up for nearly 48 hours straight, when a phone hearing had not been scheduled.
18. I had previously stipulated throughout the months of the process that the evidence was in
the documents filed with FW A on the 30th of August 2012 and contained in the e-mails
received by Fair Work Australia. The right to be heard never occurred and ultimately the aim
of the Jaw is to avoid practical injustices which Ms. Booth has chosen to ignore.
19. An exercise of power may be improper if the relevant conduct
involves the following:
an error of law has occurred,
the decision was induced or affected by fraud,
there was no evidence by the respondents that or other material to justify the making of the
decision,
[2013] FWCFB 2532
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The decision was otherwise contrary to the law, Wednesbury Unreasonableness has occurred.
20. The decision is devoid of plausible justification and is unnecessarily harsh and she has not
given genuine or proper or realistic consideration to this matter and has been inconsistent with
other decisions and her discrimination has been without rational distinction never taking into
account the legislation.
3. Public interest in permitting the appeal:
1. Where a Society is marked by a culture of justification an exercise of public power is
only appropriate where it can be justified to citizens in terms of rationality and fairness, Ms.
Booth would not be able to justify her decision on paper in relation to fair work legislation and
Australian Administrative law.
2. This is a matter is of public interest because if Healthcare Australia continues to sack and
then cover up the employees of Queensland Health who make medical and Work place health
and safety errors than people will continue to die as 70 deaths have been highlighted just
recently in the media.
3. FWA has a federal responsibility to hear unfair work applications in a timely and fair
manner and Ms Booth has not followed the process and favours Health Care Australia.
4. Health Care Australia is also a National employer who have unfairly sacked and defamed
my name so that I cannot gain any nursing employment now because Ms Booth has continued
to draw out the process since 14th of June 2012.
5. I am currently on centre link benefits and not able to get further employment until matter
is resolved.
6. The QLD Nurses union refused to represent me after many written requests.
7. Because I am being unrepresented by Unions after requesting assistance it is in the public
interest in permitting the appeal because I should still be given the same legal rights and
equalities.
8. I had previously stipulated throughout the months of the process that the evidence is in
the documents filed with FW A on the 30th of August 2012 and contained in the e-mails
received by Fair Work Australia. 1bis discrimination exhibited by a member of Ms. Booth's
statue, who is supposed to be a fair work legislative administrator of impartiality, has brought
the great organization of Fair work into disrepute. To highlight Lord Greene's words "that
something so absurd as this decision that no sensible person could ever dream that it lay within
the power of the authority".
[19] In essence, the appellant’s grounds of appeal can be distilled into the proposition that
he was denied natural justice (or not accorded procedural fairness) and an allegation of bias
on the part of the Commissioner. While it is asserted that the decision contains a ‘significant
error of fact’ and that the Commissioner erred in taking irrelevant considerations into account
and failing to take into account relevant considerations, neither the alleged error of fact nor
the asserted irrelevant/relevant considerations were identified.
[20] We are not persuaded that the appellant has established error in the decision subject to
appeal.
[2013] FWCFB 2532
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[21] The impartiality of the Commission is central to a fair hearing. Bias, whether actual or
apprehended, connotes the absence of impartiality. Applied to Commission members the
governing principle is that a member is disqualified if a fair minded observer might
reasonably apprehend that the member might not bring an impartial mind to the resolution of
the question that the member is required to decide. The principle gives effect to the
requirement that justice should both be done and be seen to be done6.
[22] There is no substance to the appellant’s bias allegation. The basis for the allegation is
either not particularised or is not substantiated by a review of the transcript of the proceedings
at first instance.
[23] In the fifth ground of appeal the appellant states:
“It was very evident from the conversations going on that she [the Commissioner] was working
with Mr Capelin Solicitor for Healthcare Australia as she continued to try and stir me up and
do everything possible not to focus on the evidence I had presented to the tribunal.”
[24] The appellant’s reference to ‘the conversations going on’ was not the subject of any
further elaboration and a review of the transcript does not support the allegation made.
[25] The only particular advanced in support of the allegation that the Commissioner was
biased against the appellant is set out at Ground 4 of the grounds of appeal:
“. . . because her bias manner in allowing every request of the respondents was very
unreasonable and her lack of empathy at my position after experiencing damage due to the
storms.”
[26] We are not persuaded that the Commissioner’s procedural decisions evidence any bias
towards the appellant. We also note that the statement in the grounds of appeal is factually
inaccurate. The Commissioner did not grant every request made by the respondent. As is
apparent from paragraphs [15] - [18] of the decision subject to appeal, the Commissioner
adjourned the 30 January 2013 hearing despite the respondent’s application that Mr
Viavattene’s application be dismissed.
[27] Nor are we persuaded that the appellant was denied natural justice.
[28] It is clear that members of the Commission are bound to act in a judicial manner and
the principles of natural justice are applicable to hearings before the Commission.7 The term
‘natural justice’ in the context of administrative decision making has been equated to an
obligation to act fairly or to accord procedural fairness. The requirements of natural justice or
procedural fairness are not prescribed in a fixed body of rules. What is required is judicial
fairness and what is fair in one case may be quite different from what is required in another.8
[29] The Commission’s obligations regarding the manner in which it must perform its
functions and exercise its powers are set out in ss.577 and 578 of the Act. Relevantly, the
Commission must act in a manner that:
is fair and just;
is quick, informal and avoids unnecessary technicalities;
is open and transparent; and
takes into account equity, good conscience and the substantial merits of the case.
[2013] FWCFB 2532
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[30] These obligations may be seen as incidents of a general duty on the Commission to
ensure a fair hearing. The concept of a fair hearing is fundamental to the justice system and is
at the very heart of the Commission’s obligations to the parties who appear before it.9
[31] In this context it is relevant to note that Mr Viavattene is a litigant in person and
Commission members are required to provide litigants in person with such assistance as is
necessary to ensure that the proceedings are fair.10 However, the assistance to be provided to
a litigant in person is limited. It is plainly necessary to balance the interests of litigants who
represent themselves with the need to afford procedural fairness to other parties.11
[32] In the decision subject to appeal the Commissioner dealt with these issues at
paragraphs [30]-[31] of her decision:
“A key requirement for this Tribunal is to ensure natural justice is not denied It is the reason
that, despite submissions of the Respondent to dismiss the application on 30 January 2013, I
adjourned the matter and directed that the Applicant may attend by telephone the next day The
circumstances of the flood were unusual, and procedural fairness dictated that the previous
order to attend in person was no longer tenable, based on the Applicant's assertion that he was
disadvantaged by the floods.
However, it was not unreasonable that the Respondent would press for dismissal of the
application after the third attempt at a hearing.
In all the circumstances, the Applicant had been given every opportunity to present his case to
the Tribunal. Natural justice had been afforded, even if the Applicant had not taken up the
opportunities provided”
[33] While it is common ground that northern New South Wales was affected by floods at
the time of the hearing, it is relevant to note that the Commissioner offered the appellant an
opportunity to seek an adjournment, which he expressly rejected:
“Commissioner: Mr Viavattene, its Commissioner Booth here. Are you telling me that you are
unable to attend this morning because of other matters? Are you seeking an adjournment?
The Appellant: No, I'm not seeking an adjournment. I'm seeking that you make your
decision.”12
[34] The appellant reiterated his position shortly after this initial exchange in a further
exchange with Commissioner Booth, as follows:
“Commissioner: ... I see my options as follows: either an adjournment to a time that is suitable
...
The Appellant: No, Ms Booth, I'm not coming any more. I've had enough of it.”13
[35] The appellant's position on his application for relief was confirmed when he stated in
part "you dismiss it, you do what you like with it, Ms Booth,”14 which essentially repeated an
earlier statement where he stated: "I don't really care what Ms Booth does with her decision.
She can dismiss it. She can pay me my money She can give me my job back She can do what
she likes.."15
[2013] FWCFB 2532
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[36] The Commissioner provided the appellant with an opportunity to present his case, she
was not required to ensure that the appellant took advantage of the opportunity presented. As
Deane J said in Sullivan v Department of Transport:
“. . . it is important to remember that the relevant duty of the Tribunal is to ensure that a party
is given a reasonable opportunity to present his case. Neither the act nor the common law
imposes on the Tribunal the impossible task of ensuring that a party takes the best advantage
of the opportunity to which he is entitled.”16
[37] Kirby J made an observation to similar effect in Allesch v Maunez:17
“It is a principle of justice that a decision maker, at least one exercising public power, must
ordinarily afford a person whose interests may be adversely affected by a decision an
opportunity to present material information and submissions relevant to such a decision before
it is made . . .
. . . it is worth emphasising that the principle just described does not require that the decision-
maker actually hear (or receive the submissions of) the party potentially liable to be adversely
affected. Sometimes, through stubbornness, confusion, misunderstanding, fear or other
emotions, a party may not take advantage of the opportunity to be heard, although such
opportunity is provided. Affording the opportunity is all that the law and principle require.
Decision-makers, including the courts, cannot generally force people to protect their own
rights, to adduce evidence or other materials, to present submissions or to act rationally in
their own best interests.
Nor are courts obliged to delay proceedings indefinitely because one party, although proved to
be on notice of the proceedings, refuses or fails to appear in person or to be represented by a
lawyer or some other individual permitted to speak for them who can explain the need for an
adjournment.”18
[38] In Sayer v Melsteel19 the Full Bench considered the approach to be followed by the
Commission in circumstances where the applicant failed to prosecute their case. Relevantly,
the Full Bench noted:20
“When, as in this case, the applicant fails to attend to prosecute their case and the matter is
determined in their absence, assuming there is no denial of natural justice, it would be
artificial and unproductive to apply the criteria in s.387 on a hypothetical basis involving
speculation about the facts. While the applicant had filed material including witness
statements, the fact that he did not attend to pursue his case meant that there was no
requirement to take that material into account. The respondent's case was, in effect,
unchallenged Furthermore, the respondent clearly had a defence of substance. If the
Commissioner had concluded that the respondent's case was frivolous or completely lacking in
substance it would have been open to him to take another course, but that is not a matter we
need to explore.
It may be prudent, where a matter is determined in the absence of the applicant, for the
tribunal to satisfy itself that the respondent had some defence to the action. The
Commissioner's decision is consistent with that approach.”
[39] It is apparent from the decision subject to appeal21 that the Commissioner had regard
to Sayer v MelSteel, and made her decision following an analysis of the respondent's
uncontested evidence, noting that the respondent's sworn statements and submissions
contained “substantial arguments in response to the Applicant's contentions”.22 There is no
[2013] FWCFB 2532
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legislative or common law requirement pursuant to which the Commission must persevere
with an application in circumstances where the applicant's conduct clearly demonstrates an
unwillingness to participate in proceedings commenced at his or her initiative. It is important
to bear in mind that there is respondent to the application for relief and the objects of Part 3-2
(Unfair Dismissal) provide that the unfair dismissal provisions of the FW Act are intended ‘to
ensure that a ‘fair go all round is accorded to both the employer and employee concerned’
(s.381).
[40] We are satisfied that Mr Viavattene was given a reasonable opportunity to present his
case to the Commission in the proceedings at first instance, he must bear responsibility for
failing to take the best advantage of the opportunity presented. We are not persuaded that the
appellant was denied procedural fairness. Nor are we persuaded that Commissioner Booth
erred in the exercise of her discretion in accordance with section 587 of the Act.
[41] As we have noted, there is no right to appeal and an appeal may only be made with the
permission of the Commission. Section 400(1) of the FW Act provides that in an unfair
dismissal case permission to appeal must not be granted unless the Commission considers that
it is in the public interest to do so.
[42] In GlaxoSmithKline Australia Ply Ltd v Colin Makin,23 a Full Bench considered the
expression ‘in the public interest’ in the context of s.400(1), and observed that:
“.. .It has not been considered useful or appropriate to define the concept in other than the
most general terms and we do not intend to do so. The expression 'in the public interest', when
used in a statute, classically imports a discretionary value judgment to be made by reference to
undefined factual matters, confined only by the objects of the legislation in question.
Although 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 ...”24
[43] We are not persuaded that it is in the public interest to grant permission to appeal.
None of the matters referred to in GlaxoSmithKline are enlivened in this case and a
consideration of all the circumstances has not satisfied us that it would be in the public
interest to grant permission to appeal.
[44] We refuse permission to appeal.
[45] Finally, we note that in their written submissions the respondent seeks an order for
costs pursuant to s.611 of the FW Act. The appellant has made no submissions in reply to the
costs application. We remit the hearing and determination of that application to Deputy
President Asbury. The respondents are to advise the Deputy President and the appellant
whether they wish to pursue their application for costs, within 7 days of today’s date.
PRESIDENT
[2013] FWCFB 2532
12
Final written submissions:
P. Viavattene, 8 April 2013
Health Care Australia, 9 April 2013
Printed by authority of the Commonwealth Government Printer
Price code C, PR535997
1 [2013] FWC 756; PR533750.
2 [2013] FWC 628.
3 [2013] FWC 756 at [12]-[21].
4 [2013] FWC 756 at [30]-[37].
2 This is so because on appeal FWA 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.
6 Ebner v The Official Trustee in Bankruptcy (2000) 176 ALR 644 at 647 per Gleeson CJ, McHugh, Gummow and Hayne JJ.,
Re Finance Sector Union of Australia Ex parte Illaton Pty Ltd (1992) 107 ALR 581.
7 Kioa v Minister for Immigration & Ethnic Affairs (1985) 62 ALR 321 at 347 per Mason J; R v Commonwealth Conciliation
and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546; Re Australian Bank Employees Union; Ex
parte Citicorp Australia Ltd 91989) 167 CLR 513; 29 IR 148.
8 Mobil Oil Australia Pty Ltd v Commissioner of Taxation (Cth), (1963) 113 CLR 475 at [504] per Kitto J.
9 In Ebner v The Official Trustee in Bankruptcy (2000) 176 ALR 644 at 646 the joint judgment of Gleeson CJ, McHugh,
Gummow and Hayne JJ described it in terms of an adversarial trial conducted by an independent and impartial tribunal.
10 Davidson v Aboriginal & Islander Child Care Agency, Print Q0784; Wan v Australian Broadcasting Corporation, Print
S6650; Savinelli v Alfred health T/A Caulfield General medical Centre [2011] FWAFB 7280.
11 See Abram v Bank of New Zealand (1996) ATPR 42,340, affirmed on appeal (1998) ATPR 41-507.
12 See PN140 - 141 of the transcript from 30 January 2013.
13 See PN162 and PN163 of the transcript from 30 January 2013.
14 See PN165 of the transcript from 30 January 2013.
15 See PN120 and PN165 of the transcript from 30 January 2013.
16 (1978) 20 ALR 323 at 343; also see Re Association of Architects of Australia; Exparte Municipal Officers Association of
Australia (1989) 63 ALJR 298 at [305] per Gaudron J.
17 (2000) 203 CLR 172.
18 Ibid at [35], [38]-[40].
19 [2011] FWAFB 7498.
20 Ibid at [16]-[17].
21 [2013] FWC 756 at [26].
22 Ibid at [34].
23 [2010] FWAFB 5343.
24 Ibid at [26]-[27].
