Fair Work Act 2009

s.604 - Appeal of decision

Application for an extension of time within which to lodge appeal - fourth appeal - preliminary view that extension of time be refused - Directions inviting views of parties.

[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 respect of whether an extension of time should be granted to lodge 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. As to the matters which are relevant to the exercise of the Commission's discretion to extend time, we make the following observations:

• (i) Length of the delay

[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.

[18] In conclusion, it is 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.

[19] We propose to deal with Mr Panayiotou's application on the papers, without holding a hearing.

[20] The parties will have an opportunity to make written submissions in relation to our provisional views, as follows:

1. If Mr Panayiotou or the University of Adelaide 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.

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

3. All submissions are to be sent in a Word document to chambers.ross.j@fwc.gov.au.

[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.

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