Fair Work Act 2009

s.604 - Appeal of decision

Appeal against decision [2025] FWC 2030 of Deputy President Boyce at Sydney on 16 July 2025 in matter C2025/4758 - permission to appeal refused.

[1] On 4 August 2025, Mr Alex Kwok Kit Ng lodged an appeal under s 604 of the Fair Work Act 2009 (Cth) (the Act) against a decision of Deputy President Boyce issued on 16 July 2025 (the Decision). Under s 604(1), Mr Ng requires permission to appeal.

[2] In the Decision, the Deputy President declined to grant an extension of time for the filing of Mr Ng's application under s 365 for the Commission to deal with a general protections dismissal dispute against, Laing O'Rourke Australia Construction Pty Ltd (the Employer). The general protections dispute application was filed outside the 21-day time limit.

[3] The Decision sets out a number of relevant factual matters related to the late filing of the application. On 14 April 2025, Mr Ng filed an unfair dismissal application under s 394, which was within the requisite 21-day period specified in s 394(2). The Employer made a "genuine redundancy" objection to the unfair dismissal application. On 7 May 2025, Mr Ng filed a general protections application dismissal application under s 365 (First General Protections Application), which was filed 42 days after the date of dismissal and 21 days out of time. On 14 May 2025, the Commission conducted a conciliation conference in respect of the unfair dismissal application. On 21 May 2025, Mr Ng discontinued both the unfair dismissal application and the First General Protections Application. On 21 May 2025, Mr Ng filed a second general protections dismissal application (the Second General Protections Application) under s 365, which was filed 56 days after the dismissal or 35 days out of time.

[4] It was Mr Ng's second general protections application which was before the Deputy President in respect of whether an extension of time should be granted under s 366(2). In the Decision, the Deputy President concluded that he was not satisfied that there were exceptional circumstances to extend time, having regard to the considerations in s 366(2)(a)-(e) of the Act.

[5] The Deputy President reached this conclusion having weighed the considerations individually and also collectively. The Deputy President took the view that three factors weighed against a finding of exceptional circumstances, being the reason for the delay, prejudice and fairness between the applicant and other persons in a similar position. The Deputy President concluded that Mr Ng's reasons for the delay, being that he filed the incorrect application, due to his own procedural errors and/or his misunderstanding as to which application to file, were not reasonable or credible because they did not explain or justify the length of the delay. In relation to prejudice, the Deputy President accepted the Employer's submission that it had suffered practical and identifiable prejudice as a result of the multiple claims filed by Mr Ng. In relation to the fairness consideration, the Deputy President had regard to cases where other applicants had relied on procedural errors or misunderstandings and found that the consideration weighed against exceptional circumstances in Mr Ng's case. The Deputy found that the considerations relating to action Mr Ng had taken to dispute the dismissal and the merits of the application were neutral, that is, they neither weighed for, nor against, a finding of exceptional circumstances.

[6] The Notice of Appeal set out several grounds of appeal. In his outline of submission filed on 25 August 2025, Mr Ng raised additional grounds of appeal. At the hearing regarding permission to appeal, we allowed Mr Ng to amend his appeal grounds and argue for a grant of permission based on the grounds set out in his outline of submission.

[7] There is no right to appeal from a decision of the Commission, and an appeal may only be made with the permission of the Commission. However, under s 604(2), permission must be granted if the Commission is satisfied that it is in the public interest to do so.

[8] The task of assessing whether the public interest is engaged is a discretionary one involving a broad value judgment.[1] The public interest is not satisfied simply by the identification of error or a preference for a different result.[2] Considerations that may attract the public interest include that the matter raises issues of importance and general application, that the decision manifests an injustice or that the result is counter intuitive.[3]

[9] In the absence of public interest, the Commission may still grant permission to appeal on general discretionary grounds.

[10] An application for permission to appeal is not a preliminary hearing of the appeal. In determining whether to grant permission to appeal, it is unnecessary and inappropriate to conduct a detailed examination of the appeal grounds.[4] However it is necessary to engage with the grounds to consider whether they raise an arguable case of appealable error. This is because an appellant must demonstrate that there is an arguable case of appealable error to be granted permission to appeal. However, error at first instance is not necessarily a sufficient basis for the grant of permission to appeal.

[11] Where an appeal concerns a discretionary decision (as this matter does), the principles in House v The King (1936) 55 CLR 499 apply in the identification of error.

[12] In our consideration below of Mr Ng's appeal grounds, we refer to the numbering of those grounds as set out in his outline of submission filed 25 August 2025.

Alleged Errors relating to Reason for Delay (s 366(2)(a))

[13] In relation to Deputy President's consideration of the reasons for delay, Mr Ng alleges a number of errors.

[14] In ground 1, Mr Ng alleges that the Deputy President erred by failing to consider Mr Ng's explanation for the delay or his explanation for discontinuing his unfair dismissal application. Ground 1 does not raise arguable appealable error. The Deputy President was required by s 366(2)(a) to consider the reason for the delay in filing the general protections application. The Deputy President did precisely this. At paragraph [15] of the Decision the Deputy President said as follows "the Applicant maintains that his delay was caused by him filing the wrong application, or misunderstanding which dismissal application he should file". At paragraph [16], the Deputy President rejected that reason as being an adequate explanation or justification for the delay. Ground 1 is misconceived.

[15] In grounds 2 & 3, Mr Ng alleges that the Deputy President erred by failing to accord him procedural fairness because at the hearing the Deputy President introduced material and asked questions relating to information on the Commission's case management system, matters which Mr Ng had not been given notice about prior to the hearing. Grounds 2 & 3 do not raise arguable appealable error. During the hearing, the Deputy President specifically asked Mr Ng whether he wished to say anything about that matter. In response, Mr Ng indicated he had nothing to say about the matter. Consequently, it is not arguable that the Deputy President failed to accord Mr Ng procedural fairness.

Alleged Errors relating to Action Taken to Dispute Dismissal (s 366(2)(b))

[16] In grounds 4, 5 & 6, Mr Ng alleges that the Deputy President erred by failing to weigh the actions taken by him to dispute the dismissal, prior to the filing of his general protections application, as favourable to the grant of an extension of time. These contentions do not disclose arguable error. They amount to a contention that the Deputy President should have assessed or weighed the consideration in s 366(2)(b) differently than he did. Such a contention does not raise an arguable error of the type identified in House v King.

[17] In grounds 4 & 5, Mr Ng further alleges that the Deputy President failed to provide adequate reasons for his consideration or weighing of the factor in s 366(2)(b). The Deputy President's reasons in respect of his consideration and weighing of the factor in s 366(2)(b) are entirely adequate.

[18] Grounds 4, 5 and 6 do not raise arguable appealable error.

Alleged Error relating to Prejudice to the Employer (s 366(2)(c))

[19] In ground 7, Mr Ng alleges that the Deputy President erred in his assessment of the prejudice consideration, asserting that the prejudice identified by the Deputy President was "generic, speculative and not substantive" and that the time and costs expended by the Employer constituted no more than the routine burden of defending a claim. Ground 7 does not disclose arguable appealable error. It amounts to a contention that the Deputy President should have assessed or weighed the consideration in s 366(2)(c) differently than he did. Such a contention does not disclose arguable error of the type identified in House v King.

Alleged Error relating to Merit (s 366(2)(d))

[20] In grounds 8 & 9, Mr Ng alleges that that the Deputy President erred in his assessment of the merit consideration. These errors are variously identified as being a failure to take a material consideration into account, acting upon a wrong principle, exceeding jurisdiction and compromising procedural fairness. Grounds 8 & 9 do not raise arguable appealable error. The Deputy President was entitled to assess the merits in the manner that he did. Furthermore, the Deputy President considered the various contentions Mr Ng made regarding merits, expressly noting at [25] of the Decision that he had heard Mr Ng's detailed oral submissions at the extension of time hearing, noting his written submissions and making express reference in a footnote both to item 2.2 of the F8 (in which Mr Ng had set out aspects of his case) and Mr Ng's contention that he was a whistleblower.

Alleged Error relating to Fairness as between the Person and Other Persons in like positions (s 366(2)(e))

[21] In ground 10, Mr Ng alleges that the Deputy President erred by failing to give adequate reasons relating to his consideration of fairness between Mr Ng and other persons in like positions. The basis of the alleged error is that the Deputy President did not identify the cases he relied on to make a comparison between Mr Ng and other persons or identify how those cases were factually analogous to Mr Ng's situation. Ground 10 does not raise arguable appealable error. In paragraph [27] and footnote 33 of the Decision, the Deputy President identified the comparison cases he relied upon by reference to cases set out in particular paragraphs of the Employer's written submission. Furthermore, in paragraph [27] of the Decision, the Deputy President expressly identified how he considered those cases as being factually analogous to Mr Ng's situation, in that he referred to those cases as being matters where the applicants relied upon procedural errors or misunderstandings as reasons for their delay.

[22] In ground 11, Mr Ng alleges that the Deputy President erred in considering two cases as analogous. Mr Ng contends that that those two cases were not analogous to his own but involved different factual circumstances. Ground 11 does not raise arguable appealable error. The matters raised by Mr Ng in ground 11, merely amount to a submission that Mr Ng considers that the facts of the two cases are not analogous to his own. This is not an arguable error of the type identified in House v King.

[23] In grounds 12 & 13, Mr Ng alleges error by the Deputy President, the basis of the error being Mr Ng's comparison of his own case with the facts of two other cases. Grounds 12 & 13 do not raise arguable appealable error. Again, Mr Ng's submission merely amounts to a submission that he has a different view as to whether or not the facts of the two cases are analogous to his own. This is not an arguable error of the type identified in House v King.

[24] As we have noted, Mr Ng's appeal grounds do not disclose arguable appealable error.

[25] We reject Mr Ng's contention that the public interest is engaged in respect of grant of permission to appeal. In relation to public interest, Mr Ng contended there would be substantial injustice if permission were refused, that the decision of the Deputy President was plainly unjust and that the appeal raises important issues of procedural fairness, transparency, rational decision-making and consistency of Commission decision making. Mr Ng further contended that a failure to consider these matters in an appeal would undermine public confidence in the Commission's decision making and that the matters warranted correction by a Full Bench. We do not accept Mr Ng's contentions in relation to public interest and do not consider that there is any public interest ground engaged.

[26] Furthermore, we do not consider that permission to appeal should be granted on any general discretionary grounds.

[27] Consequently, permission to appeal is refused.

[1] Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54 at [44] - [46].

[2] NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28].

[3] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 at [26] - [27].

[4] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82].

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