1
Fair Work Act 2009
s.604—Appeal of decision
Inna Grabovsky
v
United Protestant Association of NSW Ltd T/A UPA
(C2019/3321)
DEPUTY PRESIDENT CLANCY
DEPUTY PRESIDENT MASSON
COMMISSIONER WILSON
MELBOURNE, 23 OCTOBER 2019
Appeal against decision [2018] FWC 7227 of Commissioner Johns at Melbourne on 5
December 2018 in matter number C2017/7037- appeal filed out of time- application to extend
time dismissed.
Introduction
[1] Mrs Inna Grabovsky (the Appellant) has applied for permission to appeal, and has
appealed, against a decision of Commissioner Johns. It was outlined by the Appellant in the
Form F7 - Notice of Appeal (Form F7) that the decision in question was made by the
Commissioner on 5 December 2018. However, the Appellant describes the decision as being
the Commissioner’s “decision to refuse to discharge himself from presiding over the matter
C2017/7037 (application for recusal)”. The Commissioner’s decision not to recuse himself
was made on 17 September 2018 (the recusal decision). It was made during the hearing which
resulted in the decision made by the Commissioner on 5 December 2018 (the December 2018
Decision).1
[2] An appeal filed under s.604 of the Act must be filed within 21 calendar days after the
date of the decision being appealed against, or within such further time allowed by the
Commission.2 The Appellant lodged the Form F7 on 29 May 2019, some 233 days after the
expiry of the prescribed 21-day time period.
[3] Rule 56(2)(c) confers a discretion on the Commission to extend the time within which
the appeal is to be lodged. However, time limits of the kind in Rule 56 should not simply be
extended as a matter of course. There are sound administrative and industrial reasons for
setting a limit to the time for bringing an appeal and it should only be extended where there
are good reasons for doing so.3
1 [2018] FWC 7227.
2 Rule 56(2) of the Fair Work Commission Rules 2013.
3 Tokoda v Westpac Banking Corporation T/A Westpac [2012] FWAFB 3995 at [3] and Snyder v Helena College Council,
Inc. t/as Helena College [2019] FWCFB 815 at [10].
[2019] FWCFB 7311 [Note: Appeals pursuant to s.604 (C2019/6930,
C2019/6932, C2019/6937) were lodged against this decision.]
DECISION
E AUSTRALIA FairWork Commission
[2019] FWCFB 7311
2
[4] The authorities4 indicate that the following matters are relevant in considering whether
to exercise the Commission’s discretion to extend time under Rule 56(2)(c):
whether there is a satisfactory reason for the delay;
the length of the delay;
the nature of the grounds of appeal and the likelihood that one or more of those
grounds would be upheld if time was extended; and
any prejudice to the respondent if time were extended.
[5] The Appellant seeks an extension of time within which the appeal is to be lodged. The
matters relevant to such an application are those set out at [4] above. In broad terms, the issue
for determination is whether, in all the circumstances and having regard to the matters set out
above, the interests of justice favour the Appellant being granted an extension of the time
within which to lodge the appeal.
Directions and hearing on 12 June 2019
[6] The appeal was initially listed for a hearing to deal with the issue of permission to
appeal and the merits of the appeal for 12 June 2019. At this hearing on 12 June 2019, we
discussed the further conduct of the matter with the parties and a proposal that had been
outlined by the Appellant. Having advised the parties that our preliminary view was that the
appeal could be determined on the basis of further written submissions from the parties
without the need for a formal hearing and noting that the Appellant disputes the standing of
the United Protestant Association NSW Ltd T/A UPA (the Respondent) in this proceeding,
we made further directions in consultation with the parties that allowed for the filing and
service of further, comprehensive written submissions in accordance with an agreed, extended
timetable.
[7] Directions made on 12 June 2019 required the Appellant to lodge submissions with the
Commission addressing:
a) her application for an extension of time;
b) how she says the Respondent is not a party to this appeal; and
c) her application for permission to appeal, setting out:
i. why the Commission should grant permission to appeal; and
ii. whether the Appellant says it is in the public interest to grant
permission to appeal, and if so, why.
[8] The Respondent was given the opportunity to file submissions in response and the
Appellant also had the opportunity to file any submissions in reply. We consider the
application for an extension of time within which to lodge the appeal can be determined based
on the written submissions of the parties.
4 See for example Fox v Kangan TAFE, Print S0253, 25 October 1999 at [36]; 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; Jobs Australia v Eland [2014] FWCFB 4822; Farnhill v Australian Business
Academy Pty Ltd [2016] FWFBC 3410 and Logan City Electrical Service Division Pty Ltd T/A Logan City Electrical v
Antonarkis [2018] FWCFB 3815.
[2019] FWCFB 7311
3
Respondent not a party to this appeal
[9] As to the Appellant’s proposition that the Respondent is not a party to this appeal, the
Appellant submitted that the appeal has been made against a decision of a Member of the
Commission and all grounds of the appeal relate solely to the conduct of the Commission.
Further, the Appellant submitted the Commission is responsible for its own conduct and if the
Commission permits a litigant to speak its (the Commission’s) mind, the Commission exposes
and confirms a conspiracy between the Respondent and the Commission. The Appellant
further submitted that by introducing an “erroneous” respondent, both the Commission and
the Respondent are committing a number of criminal offences.
[10] We do not accept these submissions. The submissions alleging conspiracy and
criminal behaviour are completely baseless and without merit. The Respondent’s substantive
rights are wholly affected by the December 2018 Decision and to the extent that decision is
being impugned by this appeal, it would be affected by change to its effect. Procedural
fairness therefore requires the Respondent be given the opportunity to make submissions in
respect of the request for an extension of time before us.
Application for extension of time - Reason for the delay
[11] It is well established in the context of applications that are made for an extension of
time within which to lodge applications for unfair dismissal pursuant to s.394 of the Act and
applications for the Commission to deal with a dismissal dispute pursuant to s.365 of the Act,
that mere ignorance of the statutory time limits in s.394(2)(a) and s.366(1)(a) does not weigh
in favour of a finding of exceptional circumstances. In this appeal, the Appellant does not
need to establish there were exceptional circumstances lying behind her delay but rather,
whether her claimed ignorance of the right to appeal the recusal decision until she received
the letter dated 23 May 2019 from the President of the Commission5 is a satisfactory reason
for the delay. In any event, the Appellant does not plead ignorance but rather, a claimed lack
of available information about the process of making applications for recusal, including
rights of appeal. The Appellant also asserts she is not seeking to overturn the December
2018 Decision but rather, she is seeking to “change” it.
[12] The Appellant explains the reason for her delay and the grounds on which she says an
extension of time should be granted in the Form F7, as follows:
“The Appellant was in view that the Fair Work Act 2009 does not provide recourse for
appealing against the member’s conduct in regards to the application to discharge
him/her/themselves from presiding over a matter before Fair Work Commission.
The delay in making this Appeal application is the result of the complete absence of
any information about the mechanism of “recusal” and consequences of a member’s
decision on the subject of recusal.
In light of the newly acquired information, provided by no other then [sic] the
President of Fair Work Commission himself*, the Appellant decided to utilize the
procedural avenue to pursue the course of justice.
5 Evidence A attached to the Form F7.
[2019] FWCFB 7311
4
* Please, see enclosed Evidence A - letter by President Ross dated 23 May 2019.
It must be noted that the appeal of Mr. Johns’ decision [2018] FWC 7227 did not
involve the ground of refusal to recuse, but this single ground is sufficient to
overturn the original decision.
By filing this application, the Appellant is not seeking to overturn decision
[2018]FWC 7227 and the decision of the Full Bench [2018]FWCFB 1964 directly
through the mechanism of this appeal - so, there is no question of law to be tried.
This appeal is designed to establish is the Applicant’s request for Mr. Johns to
discharge himself from the hearing of the matter C2017/7037 justifiable on the face of
facts and law and has Mr. Johns the right to continue presiding over the matter
C2017/7037. As it was mentioned earlier, this ground is sufficient to change both
decisions and therefore must be fully explored by the Commission through the
mechanism of appeal.
After the legitimacy of Mr. Johns’ decision is probed and the status quo is
established, the Appellant will employ other avenues provided by the Fair Work
Act 2009 to bring the outcome of this dispute in full compliance with the law.”
[13] On 12 June 2019, the Appellant was directed to lodge with the Commission
submissions in support of her application for an extension of time, having regard to matters
relevant to such an application are those set out at [4] above. In response, the Appellant
addressed the extension of time issue as follows:
a) The Form F7 was filed late because she was not aware “of a legal avenue that
provides a mechanism to appeal the FWC member’s decision to refuse a litigant’s
application for a member to disqualify him/herself from dealing with a matter”;
b) She is an unsophisticated litigant but the delay is not a consequence of her
negligence or ignorance, but rather “a product of the absence of any information about
the procedure or recusal, and appellate process in this respect, in any statutory or
regulatory document related to the FWC” and is not her fault;
c) The only timing relevant is the time after “knowledge became available” to
her. The time before this is not relevant because when the information was “released”
to her was not in her control. In this respect, the Appellant submits the Form F7 was
filed within 4 days after having received correspondence from the President of the
Commission, which indicated that leave to appeal a FWC member’s recusal decision
could be sought from a Full Bench of the Commission;
d) As the reason for the delay is a product of circumstances beyond her control
and there was an absence of intent to “abuse the process”, an extension of time cannot
be considered prejudicial to the Respondent; and
e) She has a prima facie case in support of her application for permission to
appeal and her appeal.
[14] As to these reasons and submissions, we make the following observations:
[2019] FWCFB 7311
5
The Commission’s Fair hearings practice note is available on the Commission’s
website and provides procedural guidance and information about the conduct of
hearings before the Commission, including the responsibilities of Commission
Members. It contains a section specifically entitled “Impartiality & apprehended
bias”, which makes clear that a recusal application may be made to the Member
concerned for his or her consideration and decision;
The Commission’s Appeal proceedings practice note at paragraph [9] states that an
appeal may be instituted against a decision or order made by a single Member of the
Commission;
This appeal is the twentieth proceeding since 2014 that the Appellant has
commenced in the Commission involving the Respondent, twelve of which have
involved an appeal from or an application to vary or revoke a previous decision of
the Commission;
On the day the application for recusal was determined, the Appellant’s representative
told the Commissioner “You don’t want to recuse yourself. That’s up to you. I will
take my course of action in due course in regards to this but for the matter I really
couldn’t care less who is presiding the meeting because I have prima facie provable
evidence and statute, full stop”;6
The Commissioner specifically referred to the recusal decision in the December
2018 Decision, confirming he had declined to recuse himself on 17 September
2018;7
The Appellant sought permission to appeal the December 2018 Decision and in
doing so, included amongst her appeal grounds that the Commissioner acted with
“actual bias, prejudice and hatred” towards her.8 Permission to appeal was refused
and that appeal ground was considered and determined to be meritless;9
The Appellant sought to re-agitate this appeal ground when, on 15 April 2019, she
made an application to the Full Bench in matter C2018/7219 that it correct various
purported “obvious errors, defects or irregularities” in its Decision.10 That
application was dismissed on 27 May 2019;11
This appeal was then lodged by the Appellant two days later, on 29 May 2019.
6 Transcript 17 September 2018 at PN741.
7 [2018] FWC 7227 at [32].
8 Appeal ground 8 in C2018/7219.
9 [2019] FWCFB 1964 at [11].
10 [2019] FWCFB 1964.
11 [2019] FWCFB 3620.
[2019] FWCFB 7311
6
[15] The Commission’s website contains relevant information going to Member recusal
applications and parties’ rights of appeal. It is also the case, having regard to the history of her
applications and appeals lodged with the Commission, that the Appellant is not unfamiliar
with her rights of appeal.
[16] Having regard to all these circumstances, we are not satisfied that the Appellant has
provided a satisfactory reason for the delay in lodging the appeal. This is a factor that weighs
against granting an extension of time.
Application for extension of time - Length of the delay
[17] The length of the delay in this case, 233 days, is substantial. This factor weighs against
granting an extension of time within which to allow the Appellant to lodge the appeal.
Application for extension of time - Prospects of the appeal
[18] The appeal grounds outlined by the Appellant in the Form F7 are:
1. The Commissioner acted with actual bias, prejudice and hatred towards
the Appellant;
2. The Commissioner applied psychological torture upon the representative of
the Appellant;
3. The Commissioner failed to provide a judicial environment where the
Appellant would be able to present her case to the best of her ability and in a
manner that would remove any reasonable doubts about the “legal tightness” of
her position. The Commissioner wilfully denied the Appellant natural justice
and the right to effective judiciary; and
4. The Commissioner refused to discharge himself from presiding over the
matter.
[19] In her written submissions dated 3 July 2019, the Appellant expanded upon the
submission made at 13(e) above, outlining four grounds as to why the appeal should be
allowed:
a) the process of the appeal must establish whether the misconduct of the
Commissioner, as identified in the appeal grounds outlined in the Form F7, warranted
the Appellant’s application for the Commissioner to discharge himself;
b) the Full Bench must examine whether the conduct of the Commission, in
response to the actions taken by the Appellant, has been in compliance with applicable
laws and supported by objectively verifiable evidence;
c) the Full Bench must also examine whether the conduct of the Commission, in
response to the action taken by the Appellant, contributed to the misuse of law and
miscarriage of justice; and
[2019] FWCFB 7311
7
d) the process of the appeal must establish the legitimacy (or otherwise) of any
procedure in relation to a litigant’s application for a member of the Commission to
discharge himself/herself from dealing with a matter and conduct of the Commission
in this respect.
[20] Of these grounds, the Appellant stated she would only address the ground outlined in
19(d) above, submitting it is “indisputable” proof of the existence of public interest in the
Commission hearing this appeal. The Appellant appears to dispute that a Member of the
Commission has jurisdiction to determine a party’s application that he or she discharge
himself or herself from dealing with a matter. In essence, the Appellant is challenging the
legitimacy of an application for “recusal” as a means of dealing with misconduct of Members
of the Commission, repeating allegations, made without substantiation, of misconduct on the
part of the Commissioner.
[21] The Appellant criticises the recusal application process by asserting it is subjective and
without “checks and balances”. Further, the Appellant’s submissions as to the basis of her
appeal includes an allegation that the President of the Commission provided her with false
and misleading information in directing her to take a legal course of action that is not
prescribed by the Act, when he informed her that it was open for her to seek leave to appeal a
recusal decision. The Appellant asserts this was in an attempt by the President to cover up a
failure by him to comply with his obligations to deal with a complaint about the misconduct
of a Member of the Commission. For these reasons, the Appellant submits it is in the public
interest to allow the appeal.
[22] The Appellant also addressed why it is in the public interest for the Commission to
grant her permission to appeal in the Form F7, as follows:
“Neither the Fair Work Act 2009 nor the FWC Rules or Regulation provides any
information about the mechanism of recusal of the Member of the Commission. The
Australian public at large is unaware about the procedure of “recusal” in jurisdiction of
Fair Work Commission or/and about the mechanism of recourse available to litigants,
appealing the Member’s decision in response to a party’s application for the Member
to discharge him/her/themselves from presiding over a matter before the FWC. This
appeal will strengthen the Rule of Law.”
[23] To the extent her written submissions dated 31 July 2019 were submissions in reply,
the Appellant states “[t]he grounds that warrant granting an extension of time have been
adequately addressed in the Appellant’s submission filed on 03 July 2019”.
[24] In considering the merits of the appeal, it is relevant to observe that an appeal under
s.604 of the Fair Work Act 2009 (the Act) is an appeal by way of rehearing and the
Commission’s powers on appeal are only exercisable if there is error on the part of the
primary decision maker.12 There is no right to appeal and an appeal may only be made with
the permission of the Commission. Section 604(2) requires the Commission to grant
permission to appeal if satisfied that it is “in the public interest to do so”. Permission to appeal
may otherwise be granted on discretionary grounds. These are not specified, however
considerations that have traditionally been treated as justifying the grant of permission to
12 This is so because on appeal FWC has the 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
[2019] FWCFB 7311
8
appeal include that the decision is attended with sufficient doubt to warrant its reconsideration
and that substantial injustice may result if leave is refused.
[25] Appeal ground 1 alleges that the Commissioner acted with “actual bias, prejudice and
hatred” towards the Appellant. As outlined above at [14] above, this ground was also
advanced in the Appellant’s appeal against the December 2018 Decision.13 Having reviewed
the transcript of the hearing before the Commissioner, we consider this accusation is without
basis and that this appeal ground is without merit.
[26] Appeal ground 2 alleges the Commissioner “applied psychological torture upon the
representative of the Appellant”. Again, our review of the transcript of the hearing before the
Commissioner reveals this allegation to be without basis and we consider this appeal ground
is also without merit. The Commissioner continually strove to engage with the Appellant’s
representative and afforded him the opportunity to answer questions and make submissions,
notwithstanding his disruptive, disrespectful and discourteous behaviour during the course of
the hearing towards the Commissioner and the representative for the Respondent.
[27] Appeal ground 3 asserts the Commissioner did not afford the Appellant procedural
fairness. As to this appeal ground, we note that in conducting the hearing the Commissioner:
adopted a process suggested by the Appellant’s representative;14
confirmed the written material upon which the Appellant relied;15
sought to engage the Appellant’s representative in the consideration of the principles
relevant to the making of interim orders;16
afforded the Appellant’s representative the opportunity to present his oral
argument;17
sought to put questions to the Appellant’s representative;18
invited the Appellant’s representative to make oral submissions in reply;19 and
invited the Appellant’s representative to engage with the Respondent’s application in
relation to the matter before him.20
[28] We consider appeal ground 3 to be without merit.
[29] Appeal ground 4 complains that the Commissioner refused to discharge himself
from presiding over the matter. The application made during the hearing before the
Commissioner was that the Commissioner should recuse himself on the grounds of
conduct exhibiting actual bias and prejudice. Further, it was alleged the Commissioner
was “acting in favour” of the Respondent. The Appellant’s representative accused the
Commissioner of both failing to uphold moral and professional standards and “covering up
for offences”21 of the Respondent. He also expressed his dissatisfaction at the manner in
13 Appeal ground 8 in C2018/7219.
14 Transcript 17 September 2018 at PN42 and PN50-PN52.
15 Ibid at PN52-PN56.
16 Ibid at PN84-PN140.
17 Ibid at PN142-PN165.
18 Ibid at PN166-PN179 and PN485-PN487.
19 Ibid at PN483.
20 Ibid at PN691, PN705, PN719-PN721, PN729.
21 Ibid at PN500.
[2019] FWCFB 7311
9
which a range of applications made by the Appellant had been dealt with by the Commission
over a four and a half year period commencing in 2014.
[30] We reject the Appellant’s suggestion that a member of the Commission should not
determine a recusal application made against himself or herself. It is incumbent on a Member
of the Commission, on receiving an application such as the one made by the Appellant, to
hear the application and consider whether there are grounds to recuse himself or herself from
dealing with the matter. Any application that a decision-maker, whether a judge of a court or a
member of an arbitral or administrative tribunal or a person conducting an inquiry, should
recuse himself or herself from hearing and deciding a matter on the ground of actual or
apprehended bias is to be made and determined in the first instance by the decision-maker.22
The Commissioner acted in accordance with this well-established practice.
[31] The Commissioner afforded the Appellant’s representative the opportunity to make
both submissions in support of the Appellant’s recusal application and submissions in reply
and, having received them, and the submissions of the Respondent, he made his ruling.23 The
Commissioner considered a range of authorities that deal with allegations of bias in doing so,
in particular Construction, Forestry, Mining and Energy Union v Fair Work Commission,24
Laws v Australian Broadcasting Tribunal25 and Ebner v Official Trustee in Bankruptcy
(Ebner).26
[32] A claim of actual bias requires proof that the decision maker approached the issues
with a closed mind or had prejudged the matter and for reasons of either partiality in favour of
a party or some form of prejudice affecting the decision, could not be swayed by the evidence
in the case at hand.27
[33] The principles applicable to an application for recusal based upon a reasonable
apprehension of bias were comprehensively stated in the judgment of Gleeson CJ and
McHugh, Gummow and Hayne JJ in the High Court decision in Ebner. In summary, as
relevant to the Appellant’s recusal application:
the governing principle is that a decision-maker is disqualified if a fair-minded lay
observer might reasonably apprehend that the decision-maker might not bring an
impartial mind to the resolution of the question the decision-maker is required to
decide;28
deciding whether a decision-maker might not bring an impartial mind to the
resolution of a question that has not yet been determined is a question of possibility
(real and not remote), not one of probability or prediction;29
22 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [74].
23 Transcript 17 September 2018 at PN541-PN548.
24 [2014] FWCFB 1443.
25 [1990] HCA 31.
26 (2000) 205 CLR 337.
27 Re Medicaments and Related Classes of Goods (No 2) [2000] EWCA Civ 350; [2001] 1 WLR 700 at [37]–[39].
28 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [6].
29 Ibid at [7].
[2019] FWCFB 7311
10
the application of the apprehension of bias principle requires two steps: (1)
identification of what it is said might lead the decision-maker to decide a case other
than on its legal and factual merits; and (2) an articulation of the logical connection
between the matter and the feared deviation from the course of deciding the case on
its merits;30
only once these two steps are undertaken can the reasonableness of the asserted
apprehension of bias be assessed;31 and
it is not possible to state in a categorical form the circumstances in which a decision-
maker may properly decline to sit, since relevant circumstances will vary.32
[34] Having regard to the matters we have outlined at [27] above, the suggestion that the
Commissioner acted with actual bias cannot be sustained. Nor are we persuaded the Appellant
has identified a matter or matters which might have lead the fair-minded lay observer to
apprehend that the Commissioner might not bring an impartial mind to the resolution of the
applications before him. It follows that the Appellant has also failed to articulate a logical
connection between any matter or matters and the feared deviation from the course of
deciding the applications on their merits. In summary, the Appellant has advanced no
submission that satisfies us that there is likelihood that one or more of her appeal grounds
would be upheld if time was extended.
[35] Additionally, we are not persuaded any of the appeal grounds enliven the public
interest. In particular, we reject the Appellant’s submissions that were directed at the
President of the Commission. There was no complaint made to the President of the
Commission in this proceeding in relation to the Commissioner’s recusal decision. The
correspondence relied on by the Appellant33 related to a complaint made by her representative
in relation to another proceeding before the Commissioner. Further, the correspondence
indicates the President of the Commission provided advice to the Appellant’s representative
in that proceeding that was entirely consistent with the Commission’s Procedure for dealing
with complaints about Members.
[36] We reject the Appellant’s characterisation of s.581A of the Act and her suggestion that
the President of the Commission must effectively deal with a complaint, regardless of the
existence of the right to make an application for recusal. Section 581A of the Act provides a
framework enabling the President of the Commission to deal with a complaint about the
performance by another Commission Member as the President considers appropriate. It does
not mandate a particular course for the handling of a complaint. For the benefit of interested
parties, the Commission’s Procedure for dealing with complaints about Members is outlined
on the Commission’s website. Relevant for present purposes, it provides:
30 Ibid at [8].
31 Ibid at [8].
32 Ibid at [21]; see also Livesey v NSW Bar Association [1983] HCA 17, 151 CLR 288 at [18]: “…each case must be
determined by reference to its particular circumstances”.
33 Evidence A attached to the Form F7
[2019] FWCFB 7311
11
“2.1 Complaints covered and excluded
This procedure applies to complaints made to the President about the performance by
another Commission Member of his or her duties, other than complaints about matters
that can be dealt with in an appeal or judicial review (see 2.2 below).
Complaints about delays in handing down decisions should be made through the
separate process for inquiring about delays (see 2.3 below).
2.2 Matters that can be dealt with in appeal or judicial review
A party who does not agree with a decision or order made by a Member should
consider seeking an appeal or judicial review.
If a complaint is received by the President about a decision or order that is, or was,
capable of being dealt with in an appeal or an application to a court, the President will
advise the complainant that the matter cannot be handled under this complaints
procedure.
There are time limits for making appeal and court applications. Making a complaint
will not relieve a person of the requirement to comply with these time limits.”
[37] Had the Appellant made a complaint about the Commissioner’s recusal decision,
which she did not, the Commission’s Procedure for dealing with complaints about Members
makes clear she would have been advised that the matter would not be handled under that
complaints procedure and that she should instead consider seeking an appeal.
[38] Having considered the Appellant’s appeal grounds and her submissions, we have
concluded the appeal has no prospect of success and this weighs against the granting of an
extension of time.
Application for extension of time - Prejudice to the Respondent
[39] As outlined at [13](d) above, the Appellant submits that as the reason for the delay is a
product of circumstances beyond her control and there was an absence of intent to “abuse the
process”, an extension of time cannot be considered prejudicial to the Respondent. The
Respondent submits it would be significantly prejudiced in the grant of an extension of time
as consideration of any review of the Commissioner’s refusal of the application for recusal
could, depending on the outcome, potentially affect the determination of the substantive
matter, which has not only been finalised in the Respondent’s favour, but has already been the
subject of its own appellate review.
[40] If an extension of time is granted, the Respondent will have to respond to an appeal,
the substance of which has already been unsuccessfully agitated by the Appellant on two
previous occasions. We consider this would be prejudicial to the Respondent and weighs
against an extension of time.
[2019] FWCFB 7311
12
Conclusion
[41] After considering all of the circumstances, we are not persuaded that it is in the
interests of justice to extend time for the Appellant to lodge the appeal. Accordingly, it is not
necessary for us to otherwise deal with submissions filed going to the matters outlined in
[7](b) and (c) above and we dismiss the Appellant’s application to extend time to lodge the
appeal.
DEPUTY PRESIDENT
Appearances:
Mr I Grabovsky for the Appellant
Mr S Puxty for the Respondent
Hearing details:
2019.
Melbourne:
12 June.
Final written submissions:
Appellant: 31 July 2019
Respondent: 17 July 2019
Printed by authority of the Commonwealth Government Printer
PR713613
NO R HE FAI NOISSIN THE SEA
