Fair Work Act 2009

s.604 - Appeal of decision

Appeal against decision ( [2017] FWC 4829) and order (PR596154) of Deputy President Masson at Melbourne on 15 September 2017 in matter number U2017/8045 - unfair dismissal claim lodged out of time - notice of appeal lodged out of time - extension of time to lodge appeal refused

[1] Mr Manoj Ellikuttige has applied for permission to appeal and has appealed against a decision[1] made by Deputy President Masson on 15 September 2017 (Decision), in which the Deputy President refused to grant an extension of time for Mr Ellikuttige to lodge his application for an unfair dismissal remedy. The matter was listed for hearing before us in respect of both permission to appeal and the merits of the appeal.

[2] Section 394(2) of the Fair Work Act 2009 (Act) provides that an application for an unfair dismissal remedy must be made within 21 days after the dismissal took effect, or such further period as the Fair Work Commission allows under s 394(3). Mr Ellikuttige was dismissed from his employment with the Moonee Valley Racing Club on 26 June 2015. He lodged his unfair dismissal application on 25 July 2017, two years and eight days out of time. The Deputy President was not persuaded that there were exceptional circumstances and declined to extend the 21 day period under s 394(3).

[3] Mr Ellikuttige's appeal contends that the Deputy President should have extended the 21 day period within which his unfair dismissal application could be brought, and that the Decision was affected by error. The appeal also raises an additional question of timeliness. Rule 56 of the Fair Work Commission Rules 2013 (Rules) states, among other things, that an appeal must be lodged within 21 calendar days after the date of the decision against which an appeal is brought. Mr Ellikuttige's appeal was lodged on 18 July 2018,[2] nine months and twelve days late. Rule 56(2)(c) provides that the Commission may allow further time within which the appeal is to be lodged. The procedural rules are made by legislative instrument pursuant to s 609, and s 585 states that an application to the Commission must be in accordance with the procedural rules relating to applications of the relevant kind. This includes appeals.

[4] There are sound reasons for setting a limit to the time for bringing an appeal, connected to the fair and effective exercise of the Commission's functions and powers in accordance with the Act.[3] The time limit should only be extended where there are good reasons for doing so. The authorities indicate that the following matters are relevant to the exercise of the Commission's discretion 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 of one or more of those grounds being upheld if time were extended; and

• any prejudice to the respondent in the appeal if time were extended.[4]

[5] In broad terms the issue for the Commission is whether, in all the circumstances and having regard to the matters set out above, the interests of justice favour an extension of the time within which to lodge the appeal.[5]

Reason for and length of the delay in lodging the appeal

[6] Mr Ellikuttige advanced a number of contentions in respect of the reason for delay in lodging his appeal. First, he submitted that he could not afford the fee that his lawyer would charge for lodging a notice of appeal, due to his unstable financial position and homelessness, and that his lawyer did not advise him that he could file the notice of appeal himself. However, Mr Ellikuttige did not explain why he did not seek to contact another lawyer.[6] There is not a sufficient basis to conclude that Mr Ellikuttige was wrongly or inadequately advised, or that any representative error caused the delay in lodging the appeal.

[7] Secondly, Mr Ellikuttige contended that he was adversely affected by the Club's action to obtain an intervention order against him, in connection with the Club's claim that Mr Ellikuttige had made threats to kill staff. This action commenced in February 2018, and on 18 April 2018 the Magistrates' Court issued an order against Mr Ellikuttige, preventing him from contacting or approaching a certain employee of the Club until April 2020. Mr Ellikuttige said that this had affected his mental health.[7] However, these events occurred several months after the 21 day period for lodging an appeal had elapsed. Further, as the Club pointed out, Mr Ellikuttige was able to attend and participate in proceedings in the Magistrates' Court from February to April 2018, which is an indication that he could also at this time have attended to lodging his appeal.

[8] Thirdly, Mr Ellikuttige contended that his dismissal by the Club, and its previous allegations that he had made threats to kill employees of the Club, caused him to suffer mental injuries which continue to seriously affect his capacity to concentrate and to make decisions.[8] He submitted in his appeal materials medical certificates from the Royal Melbourne Hospital dated 15 May and 14 July 2018, which record that he suffers from major depression and anxiety. There is no medical evidence of Mr Ellikuttige's mental health condition in the period between the date of the Deputy President's decision and 15 May 2018. However, even if Mr Ellikuttige were suffering from these conditions continuously from the date of the Decision, the evidence does not establish that his condition prevented him, or seriously impeded him, from lodging his appeal. Indeed he did lodge his appeal, in July 2018; and there was no evidence that he had ceased to suffer from his mental health condition before the appeal was lodged, which might otherwise have supported an inference of a causative link between the mental illness and the failure to lodge his appeal earlier.

[9] We also take note of the fact that the medical certificate dated 15 May 2018 records that Mr Ellikuttige had attended the hospital with well-organised folders of materials and legal paperwork, and that Mr Ellikuttige had posted messages on Facebook about his grievances against the Club. This evidence does not support Mr Ellikuttige's contention that his mental health condition prevented or seriously impeded him from lodging his appeal.

[10] Mr Ellikuttige explained that, having struggled to find assistance, he decided to visit the Commission on 4 July 2018. There he was put in contact with a pro bono lawyer, who advised him that he did not need a lawyer to lodge his appeal against the Decision. The lawyer provided him with a form F7 and explained how to prepare and lodge the appeal. Prior to this, Mr Ellikuttige had believed that he needed a lawyer to lodge his appeal.[9] Although he had spoken to community legal centres, Justice Connect, Job Watch and the Human Rights Commission, he says that no-one had advised him that he could make an application to the Commission by himself.

[11] We do not doubt that the loss of employment and the claims raised against him by the Club had an adverse effect on Mr Ellikuttige. We accept that Mr Ellikuttige has suffered from mental health problems, that since his dismissal by the Club in June 2015 his personal circumstances have been very difficult, and that this continued to affect him in the period following the Deputy President's decision. We also take note of Mr Ellikuttige's submission that he is socially isolated.[10] However, we are not satisfied that these matters provide a satisfactory explanation for the delay in lodging his appeal. Mr Ellikuttige was able to and did seek advice from various organisations, including ultimately the Fair Work Commission. His circumstances did not prevent him from doing these things, or from receiving the advice of the pro bono lawyer and preparing and lodging the notice of appeal. Nor is it established that the matters referred to above seriously impeded his ability to lodge his appeal.

[12] We accept that Mr Ellikuttige did not know that he could lodge an appeal without a lawyer until July 2018, however we do not consider ignorance of the process to be an adequate explanation for the delay. The Commission makes available on its website information about unfair dismissal claims and how to appeal from decisions of the Commission. Mr Ellikuttige had access to the internet, as evidenced by his Facebook posts about the Club. Even absent internet access, a phone call to the registry of the Commission could have led him to the relevant information.

[13] We are not persuaded that there is a satisfactory explanation for the delay in lodging the appeal, which in this case was substantial, a period in excess of nine months.

[14] Moonee Valley Racing Club submitted that it would be prejudiced, should an extension of time to file the appeal be granted, by the substantial delay. However other than general contentions about difficulties presented by the passage of time, no particular prejudice was identified. We are not persuaded that the respondent would suffer prejudice if the time to lodge the appeal were extended.

[15] We now turn to the grounds of appeal and the likelihood of one or more of them being upheld if time to lodge the notice of appeal were extended. What are the prospects of Mr Ellikuttige's appeal succeeding?

[16] An appeal under s 604 of 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.[11] There is no right to appeal and an appeal may only be made with the permission of the Commission. This appeal is one to which s 400 of the Act applies. Section 400 provides:

'(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part unless the FWC considers that it is in the public interest to do so.

(2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.'

[17] In Coal & Allied Mining Services Pty Ltd v Lawler and others, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s 400 as 'stringent'.[12]

[18] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[13] In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of the Commission identified some of the considerations that may attract the public interest:

'... the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.'[14]

[19] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error.[15] However, the fact that a member at first instance has made an error is not necessarily a sufficient basis for the grant of permission to appeal.[16]

[20] Mr Ellikuttige advances three grounds of appeal.

[21] First, Mr Ellikuttige challenges the Deputy President's assessment that the circumstances of his matter were not out of the ordinary course, unusual, special or uncommon, and that he did not provide a reasonable explanation for the delay in lodging his unfair dismissal application. He contends that the Deputy Present was wrong to conclude that his circumstances were not exceptional. However, for an appeal to be upheld, it is not sufficient to contend that the decision-maker should have reached a different conclusion. The Deputy President's decision was made in the exercise of a discretion vested in the Commission by the Act. The grant of discretion under s 394 affords a member of the Commission some latitude in respect of the decision to be made. Such a decision can only be challenged by showing error in the decision-making process.[17] This may occur if the decision-maker acts upon wrong principle, is guided by extraneous or irrelevant matters, mistakes the facts, or does not take into account some material consideration.[18] The first ground of appeal does not establish appealable error.

[22] Secondly, Mr Ellikuttige submitted that the Deputy President was wrong to determine that he had not demonstrated that his medical condition and homelessness impacted on his ability to lodge his unfair dismissal application, because he provided all necessary evidence to his lawyer at the time. However, the Deputy President refers to the medical evidence and evidence of homelessness presented to the Commission at paragraphs [14] and [18] of the Decision. In each case, the Deputy President notes that evidence does not address the question of any link between these matters and the delay in lodging the unfair dismissal application. Mr Ellikuttige's position appears to be that these factors inherently explain the delay. But this cannot be accepted. In our assessment, the second ground of appeal does not make out any representative error. There is no indication that Mr Ellikuttige's lawyer did not present relevant evidence to the Deputy President, or that Mr Ellikuttige raised any concerns to this effect. Further, the Deputy President did not in our view mistake the facts, let alone make a significant error of fact, as would be necessary to found an appeal on this basis (s400(2)).

[23] Thirdly, Mr Ellikuttige says that he considers the Deputy President's decision to be unreasonable, taking into account his living situation, mental state and the occurrence of events outside his control. However, we do not see any basis to infer that in some way there was a failure by the Deputy President properly to exercise the discretion which the Act conferred on him or that his decision was legally unreasonable.

[24] Finally, we have considered Mr Ellikuttige's challenge to the Deputy President's conclusion that he did not provide 'a reasonable explanation for the whole of the delay'.[19] This statement appears in the penultimate paragraph of the Decision. In our opinion, it is a conclusion of fact, and one which reveals no error; on our review of the evidence and materials before us, it is correct to say that Mr Ellikuttige did not provide an explanation for the whole of the delay. By this statement the Deputy President did not imply that Mr Ellikuttige necessarily had to provide such an explanation in order for the Commission to exercise its discretion to extend the 21 day period to file the unfair dismissal application.

[25] However, earlier in the Deputy President's decision, at the commencement of his consideration of the reason for the delay in filing the unfair dismissal application, he stated that Mr Ellikuttige 'must provide a credible reason for the whole of the period that the application was delayed.'[20] This is not a correct statement of principle. In Long v Keolis Downer T/A Yarra Trams,[21] a Full Bench of the Commission concluded that the Commissioner at first instance had erred by adopting a decision rule that an applicant for an extension of time under s 394(3) 'must provide a credible reason for the whole of the delay' (emphasis added).[22] An earlier Full Bench in Stogiannidis[23] had determined that the adoption of such a decision rule in the context of s 366 of the Act constituted an error of law. The Full Bench in that case noted that the absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant's favour, however all of the circumstances must be considered.[24] We note that Stogiannidis and Long, as well as another Full Bench authority overturning a similar error,[25] were handed down after the Deputy President's decision, and therefore he did not have the benefit of their analysis.

[26] However, although the Deputy President's decision contains an incorrect statement of principle, it is not apparent to us that he acted on wrong principle. Read as a whole, the Decision does not disclose that the Deputy President considered the absence of a credible or reasonable explanation for the entire period of the delay to be determinative of the application, or the consideration in s 394(3)(a). The Deputy President considered all of the matters that s 394(3) requires the Commission to take into account, not just the reason for the delay. And at the conclusion of his analysis of the reason for Mr Ellikuttige's delay in filing the application, the Deputy President stated that there are 'a number of factors that weigh against Mr Ellikuttige's claims that he was unable to make an application prior to 25 July 2017.'[26] He stated that those factors include: the absence of medical evidence between the dismissal and date of filing; Mr Ellikuttige's visit to Sri Lanka in August - September 2015; his delay in seeking legal advice following the resolution of his criminal matter in July 2016; the absence of evidence about the impact of his homelessness on his ability to file his claim; and his further delay in lodging his unfair dismissal claim following instructions to his lawyer in May 2017. The Deputy President concluded his consideration of s 394(3)(a) by stating that he was not satisfied that Mr Ellikuttige had provided 'a reasonable explanation for the delay in lodging his application' (not the entire period of the delay), and that this 'weighs against a finding that there are exceptional circumstances.' This statement is consonant with a correct approach to s 394(3).

[27] However, even if the Deputy President's misstatement of principle did affect his approach to the exercise of his discretion, we do not consider that there is any utility in the appeal. We have had the benefit of hearing full argument both in relation to the application for permission to appeal and the appeal itself. The position of both parties was that, if the appeal were successful, we should rehear and determine the application. Neither party sought to lead fresh evidence. Were we to rehear and determine the application for an extension of time, we would not exercise our discretion to grant a further period for Mr Ellikuttige to lodge his unfair dismissal application, for the following reasons.

[28] On rehearing, we would be required to consider whether we were satisfied that there are exceptional circumstances, taking into account the matters is s 394(3)(a) to (f). This involves the exercise of discretion. The Commission 'may' allow an extension of time 'if the Commission is satisfied that there are exceptional circumstances', taking into account the prescribed matters. The test of 'exceptional circumstances' establishes a 'high hurdle' for an applicant seeking an extension of time.[27] In Nulty v Blue Star Group Pty Ltd,[28] a Full Bench of what was then Fair Work Australia noted that to be 'exceptional', circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. In determining whether there are 'exceptional circumstances' the Commission is required to 'take into account' the matters set out in s 394(3)(a)-(f). To take a matter into account means that the matter is a 'relevant consideration' in the 'Peko-Wallsend' sense of matters which the decision-maker is bound to take into account.[29] This means that each of these matters, insofar as they are relevant, must be treated as a matter of significance in the decision-making process.[30] Generally speaking, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances, because even though no one factor may be exceptional, in combination the circumstances might nevertheless be regarded as exceptional.[31]

[29] We are not persuaded that there is a sufficient evidentiary basis to conclude that there was a credible or acceptable reason for the delay (s 394(3)(a)). In the present case, Mr Ellikuttige contended that various factors contributed to his delay in lodging his unfair dismissal application. One was stress and anxiety associated with his dismissal in June 2015, and his arrest in July 2015 in connection with alleged threats to kill Club staff. However, these contentions do not establish a reason for delay. It is not explained why they prevented or impeded Mr Ellikuttige from lodging an unfair dismissal application following his dismissal. Another factor cited by Mr Ellikuttige as contributing to or constituting the reason for delay was his poor mental health. He relied on a psychiatric report of a Dr Singh, dated 9 July 2017. But this too fails to shed light on whether Mr Ellikuttige's mental health condition affected his ability to lodge an unfair dismissal application. Mr Ellikuttige submitted that he had been homeless in the period from August 2015 to 25 July 2017. This was corroborated by his daughter, and a document from the Department of Human Services dated 9 June 2016. It can be accepted that this made the task of filing his application more difficult than would otherwise have been the case, but not (without evidence) that it prevented or seriously impeded him from doing so. A further reason for delay cited by Mr Ellikuttige was that he believed the police were inquiring into his dismissal concurrently with their investigation into his alleged threats to kill Moonee Valley staff. It is not clear why he thought this. The police matter was withdrawn on 28 July 2016.

[30] Mr Ellikuttige also contended that he was not aware of his right to lodge an unfair dismissal application or the requirement to file within 21 days. However, it is well-established that ignorance of the statutory time limits is not itself an exceptional circumstance,[32] nor is it in our view a good or acceptable reason for delay. Mr Ellikuttige explained that on 22 May 2017, he met with his lawyer and instructed him to file an unfair dismissal application. It is not clear why the application was not lodged until 25 July 2017. In any event, by May 2017, the application was already nearly two years out of time. We also note that in the period 17 August 2015 to 24 September 2015, Mr Ellikuttige and his daughter travelled to Sri Lanka. This is not an acceptable or reasonable explanation for delay.

[31] Mental illness, the loss of employment, workplace conflict, impecuniosity, allegations of wrongdoing that are disputed, and even homelessness, are relevant factual matters. Any of them might, in a particular case, found or point to a conclusion that exceptional circumstances existed. However, in our view it would be wrong to think of certain categories of occurrences as being inherently exceptional. In the present case, what is somewhat unusual is the contention that Mr Ellikuttige has been affected by a combination of various unfortunate events. We accept that Mr Ellikuttige's personal circumstances after his dismissal were very difficult. But the evidence has not established that this combination of factors, or any of them, prevented or seriously impeded him from lodging his unfair dismissal application. It is not established that they provide an acceptable or credible reason or reasons for the delay in lodging his unfair dismissal application. This tells against the granting of an extension of time.

[32] As to the considerations in s 394(3)(b) and (c), we note that Mr Ellikuttige was notified of his dismissal on 26 June 2015 and was aware of its immediate effect. He had the benefit of the full 21 days to file his unfair dismissal application. There was little if any action taken by Mr Ellikuttige to contest the dismissal, other than lodging his unfair dismissal application some two years late. We do not consider Mr Ellikuttige's misapprehension that police were investigating his dismissal as action taken by him to contest his termination. These considerations do not weigh in favour of an extension of time.

[33] We take note of the former employer's contention that it would suffer prejudice from a decision to extend time (see s 394(3)(d)), given the significant length of the delay, on the basis that the recollection of its witnesses is likely no longer to be fresh. However, the same could be said of Mr Ellikuttige's recollection and that of any other witnesses he might wish to call. On balance, we consider this to be a neutral consideration.

[34] As to the merit of Mr Ellikuttige's unfair dismissal application (s 394(3)(e)), we note that an application to extend time is essentially an interlocutory matter that does not allow for a substantive testing of the relevant merits, and there is insufficient material before us to make any detailed assessment of them. In his unfair dismissal application, Mr Ellikuttige stated that he was wrongly accused of attempting to bribe the Club in order to gain financial advantage. The Club submitted that it dismissed Mr Ellikuttige for serious misconduct, after he demanded it give him a financial benefit under threat. The merits of the unfair dismissal matter would depend on factual findings that we are not in a position to make. We therefore consider this to be a neutral consideration.

[35] In respect of the final consideration in s 394(3), that of fairness as between the applicant and other persons in a similar position, applications to extend time turn on their own facts. The parties did not draw our attention to any relevant persons or cases that would be relevant in relation to the question of fairness as between Mr Ellikuttige and other persons in a similar position. We consider this to be a neutral consideration in the present matter.

[36] The time limit that applies to the exercise of a person's right to bring an unfair dismissal application reflects the Parliament's intention that this right be exercised promptly. The Act recognises that there will be some cases where a late application may be accepted, namely where there are exceptional circumstances. Having regard to all of the matters that we would be required to take into account under s 394(3) in rehearing the application to extend the time for lodging the unfair dismissal application, we are not satisfied that exceptional circumstances exist. There is no credible, acceptable or reasonable explanation for the delay in filing the application and none of the other factors weighs in favour of granting an extension. In our view, the evidence does not establish that circumstances of this case are exceptional. Upon rehearing of the application for a further period within which to lodge the unfair dismissal application, we would decline to do so.

[37] For this reason, we are not satisfied that it would be in the public interest to grant permission to appeal in these circumstances; and s 400(1) directs that the Commission must not grant permission to appeal from a decision made by the Commission under Part 3-2 unless it is satisfied that it is in the public interest to do so.

[38] We appreciate that Mr Ellikuttige wishes to clear his name in respect of various allegations that were raised against him and which he denies. However, it is not our role in this appeal to make findings about these matters. We note that Mr Ellikuttige sees the rules concerning time limits as technicalities, however they are matters of importance and we must exercise our appeal powers in accordance with the Act.

[39] Returning to our consideration of whether to extend the 21 day time period for the lodging of the appeal, we conclude that the grounds of appeal will not succeed if time to file the appeal were extended. In particular, it would not be in the public interest to grant permission to appeal.

[40] Having regard to all of the relevant considerations, we are not persuaded that it is in the interests of justice to extend time to file the appeal. Accordingly we dismiss Mr Ellikuttige's application to extend time to file the appeal. His appeal is therefore incompetent and is dismissed.

[1] [2017] FWC 4829

[2] The notice of appeal is dated 17 July 2018, but was lodged in the Commission the following day

[4] 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; Tokoda v Westpac Banking Corporation [2012] FWAFB 3995; Lesic v No. 1 Riverside Quay Pty Ltd [2015] FWCFB 395

[5] Jobs Australia v Donna Eland [2014] FWCFB 4822 at [6]

[6] Reason for delay 1 and 2, notice of appeal

[7] Reason for delay 3, notice of appeal

[8] Reason for delay 4, notice of appeal

[9] Reason for delay 5-7, notice of appeal

[10] Reason for delay 7, notice of appeal

[11] This is so because on appeal the Commission has power to receive further evidence, pursuant to s 607(2); see Coal & Allied Operations Pty Ltd v AIRC [2000] HCA 47; (2000) 203 CLR 194 at [17]

[12] [2011] FCAFC 54; (2011) 192 FCR 78 at [43]

[13] O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210; applied in Hogan v Hinch [2011] HCA 4; (2011) 85 ALJR 398 at [69]; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54; (2011) 192 FCR 78 at [44] -[46]

[14] [2010] FWAFB 5343, 197 IR 266 at [27]

[15] Wan v AIRC [2001] FCA 1803; (2001) 116 FCR 481 at [30]

[16] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 at [26]- [27], 197 IR 266; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089 at [28], 202 IR 388, affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler and Others [2011] FCAFC 54; (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28]

[17] Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 at [21]

[18] House v King (1936) 55 CLR 488

[21] [2018] FWCFB 4109

[22] At [15] of the decision at first instance ( [2018] FWC 2437)

[23] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901

[25] Elliott v LEAP Legal Software Pty Ltd [2018] FWCFB 3288

[27] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21]

[28] [2011] FWAFB 975; that decision concerned s 366(2), which is in substantially the same terms as s 394(3)

[29] Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24

[30] Friends of Hinchinbrook Society Inc v Minister for the Environment (No 3) (1997) 77 FCR 153; Australian Competition and Consumer Commission v Leelee Pty Ltd [1999] FCA 1121; Edwards v Giudice [1999] FCA 1836; National Retail Association v Fair Work Commission [2014] FCAFC 118

[31] See Griffiths v The Queen [1989] HCA 39; (1989) 167 CLR 372 at 379 (Brennan and Dawson JJ); Ho v Professional Services Review Committee No 295 [2007] FCA 388 at [23]- [26] (Rares J); Hasim v Attorney-General of the Commonwealth [2013] FCA 1433, (2013) 218 FCR 25 at [65] (Greenwood J)

[32] [2011] FWAFB 975

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