Fair Work Act 2009

s.604 - Appeal of decision

United Protestant Association of NSW Ltd T/A UPA

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.

[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]

[4] The authorities[4] 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.

[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:

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.

[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 Commission[5] 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.

* 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:

• 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.

[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

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 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 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 Tribunal[25] 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]

• 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 Appellant[33] 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:

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.

[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.

[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].

[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.

[5] Evidence A attached to the Form F7.

[6] Transcript 17 September 2018 at PN741.

[7] [2018] FWC 7227 at [32].

[9] [2019] FWCFB 1964 at [11].

[10] [2019] FWCFB 1964.

[11] [2019] FWCFB 3620.

[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

[14] Transcript 17 September 2018 at PN42 and PN50-PN52.

[18] Ibid at PN166-PN179 and PN485-PN487.

[20] Ibid at PN691, PN705, PN719-PN721, PN729.

[22] Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [74].

[23] Transcript 17 September 2018 at PN541-PN548.

[24] [2014] FWCFB 1443.

[25] [1990] HCA 31.

[26] [2000] HCA 63; (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] HCA 63; (2000) 205 CLR 337 at [6].

[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

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