Fair Work Act 2009

s.604 - Appeal of decision

Appeal against Notice of Listing of Commissioner Spencer at Brisbane on 30 July 2018 in matter number C2018/1901; permission to appeal refused.

[1] This is an edited version of the decision delivered ex tempore and recorded in transcript on 27 September 2018.

[2] Mr Luke Tamu (Appellant) lodged an application in the Commission on 11 April 2018 pursuant to section 365 of the Act for the Commission to deal with a dispute involving an alleged contravention of the general protections provision of the Act. The dispute involves a dismissal. Several concerns about the application have arisen. Principally, these concerns are whether there was a dismissal of the Appellant, and if there was a dismissal, there is a dispute about the date on which the dismissal took effect and the circumstances in which the dismissal occurred. The issue concerning the date on which the dismissal took effect is relevant for the purposes of determining whether the Appellant's application made under section 365 was made within the time prescribed in the Act in accordance with section 366.

[3] Issues related to the Appellant's section 365 application have been the subject of two earlier appeals, which were determined by differently constituted Full Benches of this Commission. By a Notice of Appeal, for which leave to amend has been given, lodged on 4 September 2018, the Appellant appeals certain decisions of Commissioner Spencer described in the Notice of Appeal. In section 1.1 of the Notice of Appeal, the Appellant describes the decisions against which he is appealing as follows:

"On 23rd July, I applied for affidavits of Mr Bogan to be expunged (copy of letter attached) this has not been done.

• I also applied for Mr Bogan to be excluded from participating in hearing.

• I appeal that the attached notice of listing be reviewed and the following representatives of UNHCR be excluded from participating at the hearing on 18th September 2018.
  • - Mr Ben Bogan
  • - Mr Matthew Mellsop
  • - Ms Fiona Watters."

[4] The Notice of Appeal also contains a request by the Appellant for an expedited hearing of the appeal, that is, for the appeal to have been heard before 18 September 2018. For reasons explained during an earlier related hearing, an expedited hearing was not able to be accommodated. As a consequence, and after prompting by the Presiding Member, the Appellant applied for a stay. That stay was refused.[1] Commissioner Spencer had given, at the time the appeal was lodged, notice of a jurisdictional hearing deal with the Appellant's section 365 application that arises from the various disputed matters to which we have made reference. That jurisdictional hearing was scheduled for 10.00am on 18 September 2018. As best as we can ascertain, that hearing has concluded and the Commissioner's decision has been reserved.

[5] For the purposes of determining whether permission to appeal should be granted, we take the issuing of the notice of the hearing to be a decision made by the Commissioner in accordance with section 598 of the Act, that is, it is a procedural decision concerning how, when and where a matter is to be dealt with. It seems to us that the Commissioner has plainly made a decision that the jurisdictional matter would be dealt with at the hearing on 18 September 2018, and that was confirmed by her in the notice of listing issued.

[6] There are no decisions of which we are aware made by the Commissioner at the time that the Notice of Appeal was lodged, or at the time that the Commissioner gave notice of the hearing, which concern the affidavits of Mr Bogan, or which concern the exclusion of or the participation in any hearing of Mr Bogan, or the exclusion of Mr Bogan or Mr Mellsop or Ms Watters from participating in the hearing on 18 September 2018.

[7] The Appellant appears to persist in maintaining that the jurisdictional hearing has already occurred, despite being disabused of the validity of that contention by two earlier decisions of separate Full Benches to which we have briefly referred. In the first of those, in Luke Tamu v Australia for UNHCR [2018] FWCFB 3522, the Full Bench said at [21]:

"It is clear that the Commission has not made any decision as to whether Mr Tamu should be granted an extension of time, or whether indeed he even requires an extension of time. While Mr Tamu's submissions on the subject of the "decision" about which he is aggrieved are somewhat difficult to discern, he appears to complain about two different possible "decisions" - the first being a "decision" on the part of the Commissioner to not actually make a decision concerning whether Mr Tamu's general protections application required an extension of time and, if so, whether it should be granted, the second being to list his matter for determination of the extension of time issue but then to change the nature of the proceedings from a determinative hearing on a jurisdictional question to a conciliation focused upon the possible settlement of Mr Tamu's application."

[8] The Full Bench continued at [26]:

"The simple fact of the matter is that the extension of time question posed in relation to Mr Tamu's application has not been determined by any member of the Commission. On the face of it Mr Tamu's originating application plainly requires the Commission to determine whether an extension of time is required, if the matter is not otherwise resolved. The material filed by Australia for UNHCR in response to Mr Tamu's originating general protections application merely reinforces the need for the extension of time issue to be determined. In those circumstances the appropriate course is for the application to return to the Commissioner for determination as to the next step to be taken."

[9] Subsequently, in Luke Tamu v Australia for UNHCR [2018] FWCFB 4332, a second Full Bench said, commencing at [24]:

"The other matters Mr Tamu seeks to agitate on appeal do not give rise to a competent appeal."

"The first is that the jurisdictional objection hearing has already occurred and no decision was made; here Mr Tamu is referring to the proceeding which took place on 14 May 2018. As he put it during the course of oral argument:

'And there is an error in terms of law and fact for me to be actually asked to attend a jurisdictional hearing twice. On 14 May I attended a jurisdictional hearing and I am not prepared to attend another jurisdictional hearing again. It's a question of injustice and unfair to me.'"

"This submission proceeds on an erroneous premise. No such jurisdictional hearing has taken place..."

[12] The Full Bench then referred to the paragraphs of the earlier decision to which we also refer at [7] and [8] of this decision. Persistence with a contention that has been twice rejected by different Full Benches will invariably lead to the same result. At the time the Notice of Appeal was lodged, the circumstances had not changed. The jurisdictional question had not been decided. It had simply been listed for a hearing. At the time of the hearing of the application for permission to appeal, a decision on the question whether a further period within which to lodge the application is necessary, and if so whether it should be granted, had not been made. The appeal on that ground advanced in this Notice of Appeal is simply not competent, just as it was not competent when it was raised in the two earlier appeals. There had been no hearing of the jurisdictional question at the time the Notice of Appeal was lodged. Since then a hearing has occurred but a decision resolving the questions has not been made.

[13] So far as the grounds of appeal concern the affidavits of Mr Bogan, or the participation by him or the other identified UNHCR employees at a hearing on 18 September 2018, again at the time that the Notice of Appeal had been lodged, the Commissioner had made no decision about any of these matters. Whether particular employees can give relevant evidence are matters that should properly have been raised before the Commissioner. But in any event, there was no decision on any of the matters at the time the appeal was lodged. It is simply not competent to bring an appeal against that which is not a decision. So far as the Notice of Appeal seeks to agitate the concerns about particular persons attending a hearing or giving evidence, the grounds do not raise a competent appeal.

[14] The decision to issue a notice of listing, about which the Appellant is aggrieved, is an interlocutory decision. An appeal under section 604 is an appeal by way of a re-hearing. The Commission's power on appeal is exercisable if there is error on the part of the decision maker. There is no right of appeal, and an appeal may only be made with permission of the Commission. Section 604(2) requires the Commission to grant permission if it is satisfied that it is in the public interest to do so. The grant of permission to appeal, except in cases involving appeals against unfair dismissal related decisions, is not confined to circumstances in which the public interest is enlivened.

[15] The task of assessing whether an appeal is in the public interest is a discretionary one involving the exercise of broad value judgments. The public interest is not simply satisfied by identifying an error or by indicating a preference for a different result. The public interest may, for example, be attracted if the appeal raises important issues of general application, or where there is a diversity of decisions and outcomes at first instance so that guidance from an appellant tribunal is required, or where the subject matter of the appeal manifests an injustice or the result is counterintuitive, or in circumstances where the legal principles that were applied in the decision, the subject of appeal, appear disharmonious compared to other recent decisions dealing with similar matters. None of those circumstances appear to us to arise on the face of the Notice of Appeal, nor do they arise by anything that the Appellant put during his oral argument today.

[16] Putting to one side the question of public interest, where public interest is not enlivened, considerations which have traditionally been adopted for the granting of permission to appeal include where a decision is at least arguably attended by sufficient doubt to warrant its reconsideration or where there would be a substantial injustice which will result if permission or leave is refused. It is also rarely appropriate for permission to be granted unless there is an arguable case of appellable error, and that is because an appeal will not succeed absent showing appellable error. None of these matters are disclosed on the face of the Notice of Appeal, on an arguable case or otherwise. Nor is any such matter raised by any argument advanced by the Appellant during the hearing before us.

[17] As we have already observed, the remaining ground in relation to a decision against which a competent appeal is brought concerns an interlocutory procedural decision, that is, the Commission's decision to issue a notice for a jurisdictional hearing related to the Appellant's section 365 application. That matter has yet to be determined. Courts and tribunals have generally discouraged interlocutory appeals on the basis that they may prolong proceedings and increase costs. There are also other reasons why appellant intervention at an early stage is undesirable. Procedural rulings may be later altered in the case, and a party complaining about a procedural decision may ultimately be successful in substantive proceedings. In such cases, an early appeal in relation to a preliminary or procedural issue would be rendered futile. In the present case, the Commissioner must determine the question of whether the application has been made within the time prescribed, and if it has not, she must necessarily consider whether a further period should be allowed. The Commissioner noted that there is a controversy about that and properly listed the matter for hearing. At that hearing the Appellant was able to agitate the many concerns he has about the evidentiary case that the Respondent proposed to lead, and indeed the appropriateness of particular individuals' attendance at the hearing and their giving of any evidence. The hearing, as we understand it, has now concluded and a decision is reserved.

[18] We do not consider that there is any appellable error disclosed from the decision to list the controversial issue that requires determination for hearing, nor do we consider that there is any public interest in allowing a necessarily interlocutory or procedural decision to be agitated by the grant of permission to appeal. There is no evident injustice that would flow from our refusal of permission to appeal. We are not persuaded that there is any other basis upon which permission should be granted. In any event, the point that the Appellant seeks to agitate about the notice of listing is mute given that the hearing, the subject of the notice of listing, has taken place and concluded.

[19] We just wish to say a couple of things relating to the submissions the Appellant made during his oral argument. The Appellant should understand that our decision to refuse permission to appeal does not determine the question whether there was a dismissal, and if there was a dismissal, whether his general protections dispute application was made within the time prescribed. It does not determine whether, if his application was lodged outside of the time prescribed, he should be allowed a further period within which to lodge the application. Nor does our decision to refuse permission to appeal determine the merits issues, which the Appellant seeks to agitate in the substantive application, in the event that a certificate is issued by the Commissioner and he is free to pursue his general protections claim in a Court or by consent arbitration in this Commission. The Appellant should also understand that in the event the Commissioner makes a decision, which is presently reserved, which is adverse to his interests, he is then at liberty to lodge an appeal against that decision. There will at that stage be a substantive decision from which he can appeal.

[20] For these reasons, permission to appeal is refused.

[1] [2018] FWC 5853

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