1
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 warranting allowing a further period within which an
application under s.365 of the Act could be made.1 The Appellant lodged an appeal against
the Commissioner’s decision on 28 February 2018. That appeal was upheld for the reasons
explained by the Full Bench and set out below:
“[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).
1 [2018] FWC 627
[2018] FWCFB 6032
DECISION
E AUSTRALIA FairWork Commission
[2018] FWCFB 6032
2
[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, the result 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 being granted 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 December 2017. Based on those events, the
Commissioner accepted that the Appellant had provided an 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.” (Emphasis added).
[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 fact that part of the delay was unexplained.
[2018] FWCFB 6032
3
[16] As such in following Stogiannidis, we find that the Commissioner’s adoption of a
decision rule at [11] of the Decision amounted to an error of law. This, in our view,
plainly influenced the Commissioner’s ultimate conclusion that the circumstances of
the Appellant’s case could not be 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.
[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 of him 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 20183, 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 the decision against which an appeal is brought. The
appeal should have been lodged by no later than 14 August 2018. The Appellant’s appeal was
lodged at 1:17 am on 15 August 2018, an hour and 17 minutes 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.
[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):
2 [2018] FWCFB 3288 at [9]-[18]
3 [2018] FWC 4343
4 Ibid at [31]
5 See in particular s.577
[2018] FWCFB 6032
4
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.
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
http://www.fwc.gov.au/decisionssigned/html/2014fwcfb4822.htm
http://www.fwc.gov.au/decisionssigned/html/2015fwcfb395.htm
http://www.fwc.gov.au/decisionssigned/html/2012fwafb3995.htm
http://www.fwc.gov.au/awardsandorders/html/PR923358.htm
[2018] FWCFB 6032
5
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
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]
http://www.fwc.gov.au/decisionssigned/html/2014fwcfb1663.htm
http://www.fwc.gov.au/decisionssigned/html/2010fwafb10089.htm
http://www.fwc.gov.au/decisionssigned/html/2010fwafb5343.htm
http://www.fwc.gov.au/decisionssigned/html/2014fwcfb1663.htm
http://www.fwc.gov.au/decisionssigned/html/2010fwafb10089.htm
http://www.fwc.gov.au/decisionssigned/html/2010fwafb5343.htm
[2018] FWCFB 6032
6
[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
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
http://www.fwc.gov.au/decisionssigned/html/2014fwcfb2288.htm
[2018] FWCFB 6032
7
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
provider22 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?
22 Transcript Divas
23 Transcript PN 15 – PN 31
[2018] FWCFB 6032
8
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’s report.”
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 -
[2018] FWCFB 6032
9
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 produce a full report as well.
COMMISSIONER SAUNDERS: Well, what you mean by that is that the respondent
applied for an order for the production of documents by Dr Schirripa.
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 his report
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
[2018] FWCFB 6032
10
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 dissecting24 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.
24 Correction discussed at transcript PN 15 – PN 31
[2018] FWCFB 6032
11
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 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. This is particularly so in circumstances where the Appellant put his health
in issue by proffering the state of 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
[2018] FWCFB 6032
12
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.
[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 February 2018 that Commissioner Saunders had a LinkedIn
connection with Brid Heffernan, an employee of 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 LinkedIn connection by the time the Commissioner came to rehear the
matter. The Appellant had during 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 Bench for the first time today, and I see ... and you say you want to
[2018] FWCFB 6032
13
rely upon all of them. Paragraph 8 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.
COMMISSIONER SAUNDERS: That’s why I asked you to identify whether you rely
upon all of these 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
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 Affairs25, it may be unnecessary to make a finding on a particular matter
because it is subsumed in findings of greater generality or because there is a factual premise
upon which a contention rests which has been rejected.
25 [2003] FCAFC 184; (2003) 236 FCR 593 at [47]
[2018] FWCFB 6032
14
[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 previously decided 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 is reviewed 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
26 [2018] FWC 4343 at [29]-[30]
27 [1936] HCA 40, (1936) 55 CLR 499
28 Ibid at 505
[2018] FWCFB 6032
15
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 issue29 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. Indeed the
application was filed on 30 December 2017, a date within the period the medical certificate
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
29 Appeal Book, Tab 15
30 Form F8 filed by the Appellant at p 6
31 Transcript PN 249 – PN 272
[2018] FWCFB 6032
16
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.
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PR700860
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