s.604 - Appeal of decision

Appeal against decision [2025] FWC 3142 of Deputy President Masson at Melbourne on 21 October 2025 in matter number C2025/8662 - permission to appeal refused

[1] Kevin Shari has lodged an appeal under s 604 of the Fair Work Act 2009 (Act) against a decision of Deputy President Masson issued on 21 October 2025 ( [2025] FWC 3142) in which the Deputy President declined to grant an extension of time for Mr Shari to make his application under s 365 of the Act and dismissed the application. The appeal was listed before us in relation to permission to appeal only. The parties consented to the matter being determined without a hearing, and we are satisfied that it can be adequately determined without the parties making oral submissions (see s 607(1) of the Act).

[2] Section 366(1) provides that an application under s 365 must be made within 21 days after the dismissal took effect, or within such further period as the Commission allows. Section 366(2) provides that the Commission may allow a further period if it is satisfied that there are exceptional circumstances, taking into account the matters in ss 366(2)(a) to (e). Mr Shari was dismissed on 13 June 2025 and lodged his s 365 application on 29 August 2025. He asked the Commission to allow a further period under s 366(2).

[3] In his decision, the Deputy President considered each of the matters in s 366(2) and the arguments that Mr Shari advanced in respect of them. As to the reasons for the delay, the Deputy President noted Mr Shari's evidence that after his dismissal he suffered acute trauma symptoms including disorientation, anxiety and lack of sleep, and that he was unable to manage two complex legal matters concurrently (the s 365 application and a claim in the Magistrates' Court lodged on 18 July 2025 concerning alleged contraventions of his workplace rights). He noted that medical reports from a Dr Olszewskj stated that Mr Shari's mental health had significantly impaired his capacity to engage with complex legal processes and meet strict deadlines. The Deputy President noted that Dr Olszewskj was not available to be cross-examined, that his first report was dated the same day as the application and was therefore not contemporaneous with the period of the alleged incapacity, that the reports did not identify a medical condition but only symptoms reported by Mr Shari, that the filing of the Magistrates' Court claim on 18 July 2025 indicated a capacity to deal with legal matters, and that Mr Shari regularly engaged with the respondent by email following his dismissal, which was not consistent with his claim of incapacity during this period. The Deputy President said that he was not satisfied that Mr Shari's mental health was so compromised that he was unable to file his application earlier than 29 August 2025. The Deputy President considered these circumstances to weigh against a conclusion of exceptional circumstances.

[4] As to the other mandatory considerations in s 366(2), the Deputy President concluded that Mr Shari took other action to dispute his dismissal but considered this to be a neutral consideration. He considered that there would be prejudice to the respondent if an extension were granted because it would be required to defend two claims dealing with the same factual circumstances, and that this weighed against an extension of time. As to the merits of the application, which we will not set out here, the Deputy President said that Mr Shari had an arguable case but not a strong one and that he considered the merits to be a neutral factor. Finally, the Deputy President considered that there was nothing bearing on the question of fairness as between Mr Shari and other persons in a similar position. The Deputy President concluded that, having taken into account the mandatory considerations, he was not satisfied that there were exceptional circumstances in this case, either when the various circumstances were considered individually or together, and dismissed Mr Shari's application.

[5] An appeal may only be brought with the permission of the Commission under s 604(1). Section 604(2) provides that the Commission must grant permission if it is satisfied that it is in the public interest to do so. Consideration of the public interest involves a broad value judgment (Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCA 54; (2011) 192 FCR 78 at [44]). Matters that may engage the public interest include issues of importance and general application, a diversity of decisions at first instance, or if the decision manifests an injustice (GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343; (2010) 197 IR 266 at [27]). Where the public interest is not engaged, the Commission may grant permission to appeal on general discretionary grounds. In deciding whether to grant permission to appeal, it is unnecessary and inappropriate to conduct a detailed examination of the appeal grounds (Trustee for the MTGI Trust v Johnston [2016] FCAFC 140 at [82]). However, it is necessary to engage with the appeal grounds to consider whether they raise an arguable case of appealable error. The fact that a member at first instance may have made an error is not necessarily a sufficient basis to grant permission to appeal.

[6] In his notice of appeal, Mr Shari presented two sets of appeal grounds. The first comprised 7 appeal grounds. Of these, the first contended that the Deputy President erred by failing to apply the correct test for exceptional circumstances as laid down in Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 (Nulty), which requires consideration of the combination of relevant factors - in this case, mental health, stress and Mr Shari's 'concurrent legal burden' - instead of whether there was an extraordinary incapacity that caused the delay. However it appears to us that the Deputy President did approach the question of whether there were exceptional circumstances in the wholistic manner contemplated by Nulty. There is no indication that he fettered his discretion in the manner suggested by Mr Shari. The second appeal ground contended that the Deputy President erred in finding that Dr Olszewskj's reports were not contemporaneous and that they did not explain the delay, but these findings appear to us to have been entirely open on the evidence. Contrary to Mr Shari's apparent assumption, the Deputy President was not bound to accept the opinions in the reports if other evidence pointed to different conclusions. The third appeal ground stated that the Deputy President was wrong to draw an inference of capacity from the filing of his Magistrates' Court claim, and that this was speculative and substituted a binary test for a wholistic assessment. But again, it appears to us that the Deputy President's finding was open to him, and comfortably so. It did not involve the imposition of a binary test, or speculation. Appeal ground 4 recapitulates the contention that the facts were not considered on a cumulative basis and takes Mr Shari's application for permission to appeal no further.

[7] By his fifth ground of appeal, Mr Shari contended that he was denied procedural fairness because the Deputy President rejected his medical evidence without affording him the opportunity to call Dr Olszweski for clarification or by supplementing the evidence following the hearing. But it appears to us that Mr Shari had a fair opportunity to put forward his case and to produce the evidence that he wished to lead in the matter.

[8] The sixth ground submitted that the Deputy President gave excessive weight to the perceived prejudice to the respondent associated with two claims having been brought against it and insufficient weight to his own good faith conduct and 'timely pursuit' of redress through his Magistrates' Court application. The seventh ground contended that the Deputy President incorrectly treated the merits of his claim as a neutral factor, despite having found that he had an arguable case. Neither of these grounds present an arguable case of error. Mr Shari disputes the Deputy President's weighting and conclusions and argues for different ones, but this does not speak to any error in the decision.

[9] In his second set of appeal grounds, Mr Shari contended that the Deputy President erred by allowing the respondent to file a late submission, and in so doing denied him procedural fairness, acted outside jurisdiction, and manifested unfairness. No arguable case of error is revealed by these submissions. Contrary to Mr Shari's contention, we cannot identify any adverse consequence for Mr Shari flowing from the respondent's late filing and do not consider it arguable that he was denied a fair opportunity to be heard.

[10] Mr Shari said that the public interest favoured the granting of permission to appeal because his case involved procedural unfairness, as well as different and unfair treatment of parties who had filed matters out of time. We disagree. There is no logical comparison to be drawn between the statutory filing requirements of s 366, where an extension of time can only be granted where the Commission is satisfied that there are exceptional circumstances, and a minor extension of time to lodge a submission, which is not subject to this requirement. We do not consider that this matter enlivens the public interest, whether in the various ways referred to in Makin or otherwise, nor in our opinion is it appropriate to grant permission to appeal on general discretionary grounds.

[11] The appeal grounds do not disclose an arguable case of appealable error. The Deputy President considered each of the mandatory factors in the usual way. We are not satisfied that it is in the public interest to grant permission to appeal, or that permission should be granted on general discretionary grounds.

[12] Permission to appeal is refused.

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