Fair Work Act 2009

s.604 - Appeal of decision

The Hospitals Contribution Fund of Australia Ltd

Appeal against decision [2025] FWC 1713 of Commissioner Crawford at Sydney on 18 June 2025 in matter number C2025/881 - permission to appeal refused

[1] Vikram Singh has lodged an appeal under s 604 of the Fair Work Act 2009 (Act) against a decision of Commissioner Crawford on 18 June 2025, in which the Commissioner declined to grant an extension of time for Mr Singh to make his application under s 365 of the Act, and dismissed his application. The appeal was listed in relation to the question of 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 Singh's application was lodged over two years outside the 21-day period. He asked the Commissioner to allow a further period under s 366(2).

[3] In his decision, the Commissioner noted that Mr Singh had failed to attend the hearing on 18 June 2025 at which his request for an extension of time was considered, and that the Commissioner decided to deal with the application based on the filed material. The Commissioner addressed each of the considerations in s 366(2). As to the reasons for the delay, the Commissioner noted Mr Singh's submission that he had been suffering from mental health problems and that he had submitted a medical certificate dated 4 June 2024 which confirmed that he suffers from depression and anxiety. The Commissioner accepted that Mr Singh suffers from a serious mental health condition but did not accept that this provided a satisfactory explanation for the delay, noting the other legal proceedings that Mr Singh had commenced against the respondent since his dismissal. The Commissioner considered that the reason for delay weighed against a finding of exceptional circumstances. As to the other considerations referred to in s 366(2), the Commissioner noted that Mr Singh had taken steps to dispute his dismissal, but that he considered this to be a neutral factor, given that one of the other proceedings that Mr Singh had initiated was a s 365 application made within the 21-day period that was then discontinued. The Commissioner found that there was significant prejudice to the respondent, as the lengthy delay would compromise the respondent's ability to defend itself. The Commissioner noted that if an extension of time were granted, Mr Singh would likely need to deal with other jurisdictional objections relating to the Act's prohibition of multiple proceedings in particular circumstances, however the Commissioner regarded the merits of the application to be neutral, as was the question of fairness as between Mr Singh and other persons in a similar position. Having regard to all of the matters in s 366(2), the Commissioner was not satisfied that there were exceptional circumstances in Mr Singh's case and dismissed his application.

[4] 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 (Makin) 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. An appellant must ordinarily demonstrate that there is such a case in order to be granted permission to appeal, as an appeal cannot succeed in the absence of error (Coal & Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 at 204). The fact that a member at first instance may have made an error is not necessarily a sufficient basis to grant permission to appeal.

[5] Mr Singh advanced four grounds of appeal. First, he contended that the Commissioner failed to consider important evidence and relied on outdated material, however Mr Singh did not identify what this evidence and material was. This ground reveals no arguable error. The second appeal ground submitted that the Commissioner failed to take into account or to 'apply' the mandatory considerations. But it is plain from the decision that the Commissioner did consider each of the matters in s 366(2). And the challenge to the 'application' of these considerations appears simply to dispute the weight that they were afforded by the Commissioner without identifying any actual error. Mr Singh's third ground asserted that he was denied procedural fairness because his materials and evidence were not meaningfully addressed in the decision but again Mr Singh does not identify what material and evidence were said to have been overlooked. More generally, there is nothing in the materials before us that is suggestive of a denial of procedural fairness. The fourth appeal ground stated that the decision produced a manifestly unjust outcome. We fail to see any basis for this assertion. We find the outcome to be unsurprising.

[6] Mr Singh submitted a bundle of documents, including medical reports and correspondence pertaining to his employment. To the extent that Mr Singh seeks to adduce further evidence on appeal under s 607(1)(a), we decline to admit it, having regard to the usual considerations that bear on the exercise of this discretion (see Akins v National Australia Bank [1994] 34 NSWLR 155 and Perry v Rio Tinto Shipping Pty Ltd [2016] FWCFB 6963). In particular, we do not consider that the new material would have been likely to produce a different result at first instance.

[7] The appeal grounds do not disclose an arguable case of appealable error. The Commissioner 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. None of the matters referred to in Makin is present in this case and the public interest is not engaged in any other way. Nor do we consider that there is any reason to grant permission to appeal on general discretionary grounds.

[8] The notice of appeal was filed many months outside of the 21-day period prescribed by the Fair Work Commission Rules 2024. In light of what we have said above, the appropriate course is to refuse to allow Mr Singh a further period within which to lodge his notice of appeal.

[9] We refuse to allow Mr Singh a further period within which to lodge his notice of appeal. We would in any event have refused permission to appeal.

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