s.604 - Appeal of decision

Application for an extension of time within which to lodge appeal - fourth appeal - extension of time be refused.

[1] On 16 July 2019, Commissioner Hampton issued a decision in matter U2019/3430 (the July 2019 Decision) in which he refused Mr Panayiotou's application for an extension of time within which to lodge his unfair dismissal application. The July 2019 Decision was accompanied by an order dismissing the application.[1]

[2] On 21 July 2019, Mr Panayiotou made an application to appeal the July 2019 Decision (the First Appeal). The First Appeal was lodged within time and allocated matter number C2019/4461. On 6 September 2019, a differently constituted Full Bench issued a decision refusing permission for Mr Panayiotou to appeal the July 2019 Decision (First Appeal Decision).[2]

[3] On 7 September 2019, Mr Panayiotou lodged a second Notice of Appeal against the July 2019 Decision (Second Appeal). The Second Appeal was filed outside the time period prescribed by the Fair Work Commission Rules 2013 (FWC Rules). It was lodged 32 days out of time. The Second Appeal was allocated matter number C2019/5541.

[4] On 26 September 2019, Mr Panayiotou lodged a third Notice of Appeal against the July 2019 Decision (Third Appeal). The Third Appeal was also filed outside the time period prescribed by the FWC Rules. It was lodged 51 days out of time. The Third Appeal was allocated matter number C2019/6144.

[5] The Second and Third Appeals were dealt with together. On 20 December 2019, we issued a decision refusing Mr Panayiotou's applications to extend the time in which to file the Second and the Third Appeals.[3]

[6] On 23 December 2019, Mr Panayiotou lodged a fourth Notice of Appeal against the July 2019 Decision (Fourth Appeal; Matter No. C2019/7975). The Fourth Appeal was lodged 139 days out of time.

[7] Rule 56(2) of the FWC Rules provides that an appeal must be instituted within 21 days after the date of the decision appealed against, or within such time as is allowed by the Commission on application. 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.

[8] 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):

• (1) the length of the delay;

• (2) whether there is a satisfactory reason for the delay;

• (3) 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

• (4) any prejudice to the respondent if time were extended.

[9] Mr Panayiotou has unsuccessfully sought to appeal the July 2019 Decision on three separate occasions. This is Mr Panayiotou's fourth attempt to challenge the July 2019 Decision.

[10] In a Statement[5] issued on 24 February 2020 (February 2020 Statement) we made the observation set out below in relation to the matters which are relevant to the Commission's power to extend time and expressed some provisional views in respect to those matters. The relevant parts of the February 2020 Statement are set out below:

[11] The extent of the delay is substantial - the appeal was filed 139 days out of time. It is our provisional view that the length of the delay weighs against allowing a further period of time within which to lodge the Fourth Appeal.

(ii) Whether there is a satisfactory reason for the delay

[12] It is our provisional view that Mr Panayiotou has not advanced a satisfactory reason for the delay in filing the Fourth Appeal.

(iii) Nature of the ground of appeal and the likelihood that one or more of those grounds would be upheld if time was extended

[13] As was the case with Mr Panayiotou's Second and Third Appeals, the Fourth Appeal is seeking to appeal the July 2019 Decision. The public interest in the appeal and the grounds of appeal in the Fourth Appeal Notice are also in identical terms to the Second Appeal Notice. Further, it is apparent that Mr Panayiotou is dissatisfied with the outcome of the Second and Third Appeals. It is clear that there is no appeal from a decision of a Full Bench of the Commission (see s.604(1)(a)).

[14] Further, it is our provisional view that the Fair Work Act 2009 (Cth) (Act) does not provide for an aggrieved person to lodge multiple appeals in respect of the same decision. The finite resources of the Commonwealth are not to be unreasonably diverted by parties who cannot accept that their claims have been unsuccessful. It is unfair that the respondent to such proceedings be embroiled in such repetitive litigation before the Commission.

[15] The Fourth Appeal is not the appropriate vehicle to challenge the Full Bench decisions in the First Appeal and the Second and Third Appeals. If Mr Panayiotou is aggrieved by these decisions, he may seek judicial review in the Federal Court of Australia pursuant to s.39B of the Judiciary Act 1903 (Cth) and ss.562 and 563 of the Act.

[16] The nature of the grounds of appeal and the likelihood that one or more would not be upheld if time were extended weigh against extending the time for lodging the Fourth Appeal.

(iv) Any prejudice to the respondent if time were extended

[17] It is our provisional view that the University would be prejudiced if an extension of time were granted in respect of the Fourth Appeal as it would have to respond to a further appeal, the substance of which has already been unsuccessfully agitated by Mr Panayiotou. This weighs against the grant of an extension of time within which to lodge the Fourth Appeal.'[6]

[11] In the February 2020 Statement we concluded by expressing our provisional view that:

'the interests of justice do not favour Mr Panayiotou being granted an extension of time within which to lodge the Fourth Appeal and, accordingly, it is our provisional view that we not exercise our discretion to grant an extension of time to Mr Panayiotou to lodge the Fourth Appeal.'[7]

[12] In a supplementary statement[8] issued on 2 March 2020 (March 2020 Statement) we noted that while Mr Panayiotou had requested an oral hearing, given the history of the proceedings we rejected the request. In the March 2020 Statement we indicated that the matter would be dealt with on the papers.

[13] The parties were provided with an opportunity to make written submissions in relation to the provisional views set out in the February 2020 Statement, as follows:

• If Mr Panayiotou or the University of Adelaide (University) wish to oppose or to support the provisional views set out above, they are to lodge in the Commission written submissions explaining their position and the reasons for it on or before 4pm on Tuesday 10 March 2020.

• Any submissions in reply should be in writing and lodged on or before 4pm on Tuesday 17 March 2020.

[14] On 2 March 2020 the University responded indicating that it supported the provisional views set out in the February 2020 Statement on the basis that in its submission the provisional views 'are clearly correct.' The University submitted that:

' ... There has been substantial unexplained delay. There has been no satisfactory explanation for the delay. The grounds of appeal lack merit. The University should not have to respond to a further appeal. The interests of justice do not favour an extension of time.'[9]

[15] Mr Panayiotou's submission letter of 16 March 2020 responded as follows:

'It seems fair for the commission to consider and comment on the top three apparent circumstances that I feel reveal some of the exceptional circumstances associated with the matters of this unfair dismissal case.

TOP 3 CIRCUMSTANCES I FEEL IS FAIR FOR CHAMBERS ROSS TO CONSIDER AND COMMENT TO:

1 Counter Terrorism Unit (SAPOL) managed the investigation in a way that we feel would make most people fearful of their life. The investigation initiated on the same date of salary payments ceased from the employer. Confirmation of these circumstances has been provided via official SAPOL letter submissions which can be found in SAPOL INTERNAL INVESTGATION BUNDLE [500]. Please note that the Commission has been provided with all of the annexures in this SAPOL bundle submission.

2 Both the Australian Fair Work Commission and the CEO of the National Health and Medical Research Council confirmed that my audio files were reviewed. Confirmation was provided by the FWC in the first decision record for case U2019/3430 while confirmation from NHMRC in a letter from the CEO addressed to myself. It appears that both the first and second appeal decision records did not comment on the audio submissions. That being said I feel it is very reasonable to request that the submissions itemized in [2019] FWC 4071 [135] and [2019] FWC 4363 [167] be commented on by the Commission in this appeal decision. I feel that these audios reveal exceptional circumstances that have yet to be fairly addressed.

3 On 2-Mar-2020 I feel like I was unlawfully detained by SAPOL and seemed to be engaged by someone impersonating a Commonwealth Employee (Department of Home Affairs Officer). Attached is an outline of this circumstance [501]. Please review [501] for the summary of this incident.'[10]

[16] Mr Panayiotou attached the following documents to his submission:

• '[500] 3-FEB-2020 - SAPOL BUNDLE SUBMISSION - low res;'

• '[501] 2-mar-2020_unlawfully detained-impersonating home affairs officer;'

• '[505] c2019-7975 submission letter;' and

• '[506] 9-AUG-2019_Letter from CEO NHMRC 20190809.'

[17] In respect of whether an extension of time should be granted for the Fourth Appeal, the issue for determination is, in broad terms, whether in all the circumstances the interests of justice favour Mr Panayiotou being granted an extension. This issue was decided against Mr Panayiotou in respect of the Second and Third Appeals, in circumstances where the delay involved in lodging the appeals was significantly less than the current delay of 139 days.

[18] The submissions advanced by Mr Panayiotou do not provide a satisfactory reason for a substantial part of the delay in filing the appeal. In short Mr Panayiotou has not satisfactorily explained why it has taken him 139 days to file the Fourth Appeal. Nor does Mr Panayiotou contest the following provisional view expressed in the February 2020 Statement:

'[14] Further, it is our provisional view that the Fair Work Act 2009 (Cth) (Act) does not provide for an aggrieved person to lodge multiple appeals in respect of the same decision. The finite resources of the Commonwealth are not to be unreasonably diverted by parties who cannot accept that their claims have been unsuccessful. It is unfair that the respondent to such proceedings be embroiled in such repetitive litigation before the Commission.'[11]

[19] We have given consideration to Mr Panayiotou's submission and the matters relevant to our discretion to extend time under Rule 56(2) of the FWC Rules and have concluded that in all the circumstances the interests of justice do not favour Mr Panayiotou being granted an extension. We refuse the extension sought.

[1] See [2019] FWC 4363 and PR710237

[2] [2019] FWCFB 6214

[3] [2019] FWCFB 8487

[4] 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 Services Division Pty Ltd t/as Logan City Electrical v Christopher Antonarkis [2018] FWCFB 3815

[5] [2020] FWCFB 832

[8] [2020] FWCFB 1140 at [11]

[9] Respondent's submissions, 2 March 2020, paragraph [3]

[10] Appellant's Submission Letter, 16 March 2020

[11] [2020] FWCFB 832 at [14]

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