C2014/7143, Transcript of Proceedings [2015] FWCTrans 36 (23 January 2015)

TRANSCRIPT OF PROCEEDINGS

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Fair Work Act 2009 1051288-1

JUSTICE ROSS, PRESIDENT
VICE PRESIDENT HATCHER
COMMISSIONER CARGILL

C2014/7143

s.604 - Appeal of decision

Mr Birden
and
University of Western Sydney School of Medicine
(C2014/7143)





Sydney

10.23AM, TUESDAY, 20 JANUARY 2015

Reserved for Decision

PN1

JUSTICE ROSS: Can I take the appearances, please?

PN2

MS N. MAIOLO: Yes, your Honour. Maiolo, initial N, for the University of Western Sydney, and I have with me MS C. WILLIAMS, who is our senior workplace relations specialist.

PN3

JUSTICE ROSS: Thank you. I note there is no appearance for Mr Briden. This matter was listed to commence after 9.00, and all parties in relation to the three matters that were listed at 9 o'clock were advised that they were in no particular order and they were to be here at 9 o'clock. We've also taken steps to endeavour to contact Mr Briden both on his - sorry, Mr Birden - on his mobile and his home number, with no success. We're minded to proceed with the hearing. We have the appellant's material that's been submitted in support of his application for permission to appeal. What does the university wish to say about that?

PN4

MS MAIOLO: Your Honour, thank you. I seek to rely on the written submissions that were filed on behalf of the university on 16 January.

PN5

JUSTICE ROSS: Yes.

PN6

MS MAIOLO: But I would also appreciate the opportunity to make some further very short submissions here today.

PN7

JUSTICE ROSS: Sure.

PN8

MS MAIOLO: I won't take more than five or 10 minutes of the commission's time. Firstly just in relation to the submissions, I would just like to correct an error in paragraph 2.4 where I've extracted a quote from the High Court in House v the King. The quote trails off mid sentence, and I apologise for that. So if I could just correct that by adding a comma after "discoverable" followed by the words "the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred."

PN9

JUSTICE ROSS: That's fine.

PN10

MS MAIOLO: Thank you. The submissions that I'd like to make this morning relate to two matters. Firstly the issue of appealable error, and secondly in relation to the public interest considerations of this matter. In relation to appealable error, in the submissions I've referred to the decision of House v the King, and also Norbis v Norbis. In the decision of the full bench of this commission in McConnell v Tony's Plumbing Services it was confirmed that the decision to extend time in relation to an unfair dismissal application is a discretionary decision, and so the principles set out in House v the King and also Norbis v Norbis will apply.

PN11

I'd also like to refer to the matter of Wan v Australian Industrial Relations Commission in which the Federal Court stated that, "It will rarely, if ever, be appropriate to grant leave unless an arguable case of appealable error is demonstrated. This is so simply because an appeal cannot succeed in the absence of an appealable error." We submit that there was no appealable error in her Honour's decision at first instance. Dr Birden in his submissions conceded that her Honour did not make a significant error of fact, and we would obviously agree with that.

PN12

It's quite clear from her Honour's reasons for decision that she considered all the circumstances that have been presented to her and applied each of the criteria that were prescribed by section 394 subsection (3) of the Fair Work Act in reaching her decision. We say that her Honour was entitled on the evidence before her to reach her conclusion that the circumstances of Dr Birden's delay were such that they could not be described as exceptional for the purposes of section 394 subsection (3) of the Fair Work Act.

PN13

Her Honour's decision was not unreasonably or plainly unjust, as referred to in House v the King, there was no consideration of extraneous or irrelevant matters, or a failure to take into account some material consideration, and furthermore, as I have mentioned, there was no mistake of fact whether significant or otherwise. So in the circumstances we submit that there was no appealable error, and having regard to those cases that I've mentioned, Dr Birden's appeal cannot succeed.

PN14

JUSTICE ROSS: That Federal Court case you mentioned, is the citation in the submissions?

PN15

MS MAIOLO: It's not, your Honour, I apologise, but I have a copy of it with me today, so would you like me to hand up all the authorities now?

PN16

JUSTICE ROSS: Sure. So your short point is that it's conceded there is no significant error of fact in the decision - - -

PN17

MS MAIOLO: Yes, your Honour.

PN18

JUSTICE ROSS: - - -subject to appeal. You say there's no arguable case of error - - -

PN19

MS MAIOLO: Yes.

PN20

JUSTICE ROSS: - - - in relation to the decision, and the public interest isn't enlivened, therefore we should refuse permission. Is that the essence of it?

PN21

MS MAIOLO: Yes. I did have a few further comments on public interest if you're interested in hearing them.

PN22

JUSTICE ROSS: Certainly.

PN23

MS MAIOLO: Thank you. In the bundle of authorities that I've handed up and - - -

PN24

JUSTICE ROSS: You don't need to go to the tests on the public interest, if that's what you're about to do, Maikin and the like.

PN25

MS MAIOLO: No. They're covered in the submissions.

PN26

JUSTICE ROSS: Yes.

PN27

MS MAIOLO: But the additional case that I wanted to refer to today is the decision of the full bench of this commission in Qantas Airways v Carter. Now, in that case there was a significant error of fact, but permission to appeal was nevertheless not granted due to the absence of any public interest grounds having been demonstrated, and if I might just quickly quote from that decision at paragraph 58, the full bench stated:

PN28

We do not discern any wider issues of principle raised by the grounds of appeal. There is no issue of general importance, and no jurisdictional or legal points raised, no substantial injustice will result if permission is refused. In our opinion no public interest considerations are established by the grounds of appeal. The appeal is dismissed.

PN29

We submit that those comments are equally applicable to Dr Birden's appeal. There are no wider issues of principle at stake in this matter. There are no issues of general importance that have been raised, and similarly no jurisdictional or legal points have been raised. So in our submission section 400 subsection (1) of the Act makes it quite clear that the existence of public interest considerations are a prerequisite for the granting of permission to appeal. We would say that in the absence of any such grounds, and also the absence of any appealable error, permission to appeal cannot succeed. Thank you.

PN30

JUSTICE ROSS: In Wan what was the paragraph reference?

PN31

MS MAIOLO: 58, your Honour - sorry, in Wan, no. My apologies. It's 30.

PN32

JUSTICE ROSS: Thank you.

PN33

MS MAIOLO: Thank you.

PN34

JUSTICE ROSS: Thanks very much. We'll reserve our decision in relation to that matter.

PN35

MS MAIOLO: Thank you, your Honour.

<ADJOURNED INDEFINITELY [10.30AM]