DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Ewan Chapman
v
Ignis Labs Pty Ltd T/A Ignis Labs
(C2020/4353)

Appeal against Order PR709289 of Deputy President Clancy at Melbourne on 13 June 2019 in matter number U2019/1451

Introduction

[1] Mr Ewan Chapman has lodged an appeal against a decision by Deputy President Clancy on 13 June 2019 (Decision) 1 to dismiss his application for relief from unfair dismissal pursuant to s 587(1)(c) of the Fair Work Act 2009 (FW Act).

[2] In his notice of appeal Mr Chapman seeks permission to appeal the Decision and, if granted, appeals the Decision and the associated order, and also seeks the Decision be stayed. The notice of appeal was filed outside the 21-day timeframe for lodging an appeal required by the Fair Work Commission Rules 2013 (Rules). For Mr Chapman’s appeal to have been instituted within time it must have been lodged on or before 5 July 2019. Mr Chapman’s appeal was filed 335 days outside this timeframe. The appeal cannot proceed unless the Commission grants Mr Chapman an extension of time.

[3] For the reasons that follow, we decline to allow a further period of time for the lodgement of Mr Chapman’s notice of appeal. The application for permission to appeal is dismissed.

Background

[4] The background to this matter is as follows. On 11 February 2019 Mr Chapman filed an unfair dismissal application under s 394 of the FW Act (Application). On 12 March 2019 the Application was the subject of a conciliation conference before the Fair Work Commission, conducted by a staff conciliator. Mr Chapman was represented at the conciliation conference by Ms Sarwari of Unfair Dismissals Direct (UDD). Mr Wimmler appeared on behalf of the respondent (Ignis Labs). On 14 March 2019, the conciliator wrote to the parties confirming that a settlement agreement had been reached at the conciliation conference and that the parties had agreed to waive the cooling off period, and provided the parties with the terms of settlement that had been reached. Ignis Labs signed the terms of settlement on 19 March 2019. Mr Chapman did not sign the terms of settlement.

[5] On 4 March 2020 Mr Chapman wrote to the Commission seeking to progress the Application. The matter was referred to Deputy President Clancy, who issued directions to the parties to file materials as to whether a binding settlement agreement had been reached at the conciliation conference. The matter was listed for mention before Deputy President Clancy on 13 June 2019 (Mention). At the Mention, Mr Chapman appeared for himself and Mr Wimmler again appeared on behalf of Ignis Labs. At the direction of the Commission, Ms Sarwari also attended the Mention. Having heard from the parties and Ms Sarwari, the Deputy President determined that the Application had resolved at the conciliation conference on 12 March 2019. The Deputy President dismissed the Application pursuant to s 587(1)(c) of the FW Act.

Appeal Grounds

[6] Mr Chapman’s notice of appeal advances six grounds of appeal.² The grounds of appeal may be conveniently summarised as follows:

1. The Deputy President’s conclusion that the Application had no reasonable prospects of success was based on the contract for the provision of legal services between Mr Chapman and UDD (Contract). The Contract was unenforceable, void and contained illegal clauses;

2. UDD’s business model is framed around misappropriation of funds and secret commissions;

3. In representing Mr Chapman UDD did not exercise due diligence and care;

4. UDD has a history of negligence;

5. Mr Chapman’s agreement to the terms of settlement was obtained under duress;

6. Ignis Labs had breached Mr Chapman’s contract of employment.

[7] It is apparent from Mr Chapman’s written and oral submissions in support of his grounds of appeal that he is principally concerned with and aggrieved by the conduct of UDD and the representation afforded him by Ms Sarwari at the conciliation conference.

Extension of time

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

[9] As is frequently noted, most recently by a Full Bench of the Commission in Synder v Helena College Council, Inc. t/a Helena College, 3 time limits of the kind in rule 56(2) of the Rules 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.

[10] The usual principles applying to consideration of an application to extend time to lodge an appeal were summarised in the Full Bench decision in Jobs Australia v Eland⁴ as follows (footnotes omitted):

“[5] 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. The authorities indicate that the following matters are relevant to the exercise of the Tribunal’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 that one or more of those grounds being upheld if time was extended; and

•  any prejudice to the respondent if time were extended.”

[11] Taking these matters into account, the exercise of discretion will be guided by a consideration of whether, in all the circumstances, the interests of justice favour Mr Chapman being granted an extension of time within which to lodge his notice of appeal. 5

Consideration

Reason for the delay

[12] As to the reason for the delay, in his notice of appeal Mr Chapman states that the reason for the delay in lodgement was that he believed that the proceedings before the Commission had concluded. 6  Deputy President Clancy handed down the Decision on 13 June 2019 and issued an order of the same date dismissing the Application. Accordingly, Mr Chapman had been aware for almost a year prior to filing his notice of appeal that proceedings before the Commission had concluded. We are unable to see how this provides any explanation for the delay. Further, we note that the notice of appeal is dated 2 April 2020 but was not filed with the Commission until 4 June 2020. Mr Chapman also provided no explanation for this.

[13] Mr Chapman has not provided a satisfactory, or indeed, any comprehensible explanation for the delay in lodgement. The absence of an acceptable reason for the delay weighs against the grant of an extension of time in respect of the appeal.

Length of delay

[14] Mr Chapman’s appeal was lodged 335 days outside the statutory timeframe for instituting an appeal. The delay can only be described as lengthy and is significant.

[15] This weighs against the grant of an extension.

Nature of appeal grounds and likelihood that one or more would be upheld if time were extended

[16] In the assessment of whether to extend time, it is necessary to consider the nature of the grounds of appeal and the likelihood that one or more of those grounds would be upheld if time was extended.

[17] An appeal under s 604 of the FW 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. 7 There is no right to appeal and an appeal may only be made with the permission of the Commission.

[18] The Decision is a decision to which s 400 applies (notwithstanding that it was made under s 587). 8 Therefore permission to appeal must not be granted unless the Commission considers it is in the public interest to do so. Further, appeals on a question of fact can only be made on the ground that the decision involved a significant error of fact.

[19] The test under s 400 has been characterised as “a stringent one.” 9 The task of assessing whether the public interest is met is discretionary and involves a broad value judgment.10 In GlaxoSmithKline Australia Pty Ltd v Makin11 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 and injustice, or the result is counter intuitive, or that the legal principles appear disharmonious when compared with other recent decisions dealing with similar matters…” 12

[20] 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. 13 However, the fact that the member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.14

[21] Appeal grounds one and five may usefully be considered together.

[22] Appeal ground one contends that the Deputy President’s conclusion that the Application had no reasonable prospects of success was based on the Contract, which Mr Chapman contends is unenforceable, void and contains illegal clauses.

[23] Section 587 of the FW Act provides as follows:

  587 Dismissing applications

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

(c) the application has no reasonable prospects of success.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3 2, see section 399A.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a) is frivolous or vexatious; or

(b) has no reasonable prospects of success.

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.

[24] In Australian Postal Corporation v Gorman 15 the Federal Court confirmed that, pursuant to s 587 of the FW Act, the Commission may dismiss an unfair dismissal application where a binding settlement agreement exists.16

[25] In Masters v Cameron 17 the High Court said the following in relation to when a binding contract will exist:

“Where parties who have been in negotiation reach agreement upon terms of a contractual nature and also agree that the matter of their negotiation shall be dealt with by a formal contract, the case may belong to any of three cases. It may be one in which the parties have reached finality in arranging all the terms of their bargain and intend to be immediately bound to the performance of those terms, but at the same time propose to have the terms restated in a form which will be fuller or more precise but not different in effect. Or, secondly, it may be a case in which the parties have completely agreed upon all the terms of their bargain and intend no departure from or addition to that which their agreed terms express or imply, but nevertheless have made performance of one or more of the terms conditional upon the execution of a formal document. Or, thirdly, the case may be one in which the intention of the parties is not to make a concluded bargain at all, unless and until they execute a formal contract.

In each of the first two cases there is a binding contract: in the first case a contract binding the parties at once to perform the agreed terms whether the contemplated formal document comes into existence or not, and to join (if they have so agreed) in settling and executing the formal document; and in the second case a contract binding the parties to join in bringing the formal contract into existence and then to carry it into execution.” 18

[26] At the Mention, both Mr Wimmler 19 and Ms Sarwari20 confirmed that the Application had resolved at conciliation. As the Deputy President noted, this is consistent with the correspondence issued by the conciliator on 14 March 2019 and the terms of settlement provided at that time, which were signed by the respondent. We note that the terms of settlement include an obligation to make payment of the settlement sum, Mr Chapman’s cessation of employment to be characterised as a resignation, provision to Mr Chapman of a statement of service, mutual releases and mutual confidentiality and non-disparagement provisions.21 Further, at the Mention Mr Chapman confirmed that the matter had resolved. However, he said that the resolution had been obtained “under duress”.22 We address the question of duress below in the context of appeal ground five.

[27] Having heard from the parties and considered the documents prepared by the Commission, the Deputy President said:

“But having heard from you, Mr Chapman; having heard from Mr Wimmler; having heard from Ms Sarwari; and having regard to the contemporaneous documents prepared by the Fair Work Commission following this conciliation, I am of the view that this matter was resolved at the conciliation on 12  March, and the result of that is that it brings the unfair dismissal application to an end by dint of an agreement between the parties, and that in seeking to press your application now, there would be no reasonable prospects of success in it, and that I should dismiss your application for unfair dismissal remedy pursuant to section 587 the Act.”23

[28] We consider it clear from the above that the Deputy President concluded that a binding settlement agreement had been reached between the parties at conciliation and on that basis determined that the Application had no reasonable prospects of success. The Deputy President did not determine that the Application had no reasonable prospects of success on the basis of the Contract as advanced in appeal ground one. We have not identified any appealable error in the Deputy President’s approach in this regard.

[29] Appeal ground five contends that the settlement agreement was obtained under duress. During the proceedings Mr Chapman accepted that an agreement to resolve the Application was reached at conciliation, however he contends that he is not bound by it because he entered into the settlement agreement under duress. The duress alleged is the conduct of Ms Sarwari in settlement discussions during the conciliation. This ground of appeal does not disclose any arguable case of appealable error for two reasons. Firstly, it is clear that the effect of duress, should it be established (which we do not consider could be so established), would be to render the settlement agreement voidable, rather than void. 24 Accordingly, Mr Chapman’s contention that he is not bound by the settlement agreement on this basis, without more, cannot be sustained. Secondly, it is equally clear that a determination that the settlement agreement ought be set aside on the ground of duress is a matter for the courts, not this Commission. We find no error in the Deputy President’s approach to this matter.

[30] Finally, in his submissions Mr Chapman contends that the settlement agreement reached at conciliation was an agreement to agree. 25  We reject that submission. Firstly, during the proceedings Mr Chapman accepted that an agreement to resolve the Application was reached between the parties at conciliation on 12 March 2019. Secondly, the agreement reached between the parties at conciliation contained all the terms of the settlement agreement. The written terms of settlement provided to the parties by the Commission on 14 March 2019 simply restated those terms in a more fulsome or precise form. We do not consider the Deputy President’s conclusion that a binding settlement agreement had been reached between the parties at conciliation discloses any appealable error and further, is one with which we agree. As such, Mr Chapman’s pre-existing cause of action was extinguished and the continued pursuit of the Application was without reasonable prospects of success, as that phrase is contemplated in s 587(1)(c) of the FW Act. The Deputy President properly exercised his power to dismiss the Application on this basis and no appealable error is disclosed.

[31] As to appeal grounds two, three and four, it is apparent that they are also directed to Mr Chapman’s dissatisfaction with the legal representation provided to him by UDD. They do not involve any challenge to the Decision nor raise any contention of appealable error in the Deputy President’s Decision.

[32] Appeal ground six is directed to the alleged conduct of Ignis Labs. This appeal ground does not involve any challenge to the Decision nor raise any contention of appealable error in the Deputy President’s Decision.

[33] Accordingly, we are not satisfied that Mr Chapman’s grounds of appeal disclose an arguable case of appealable error in the Deputy President’s Decision.

[34] Further, there is nothing on the material which satisfies us that it would be in the public interest to grant Mr Chapman permission to appeal. The appeal does not raise any issue of importance or general application. The Decision was made based on the particular circumstances before the Deputy President. The Decision does not manifest any injustice and the outcome determined by the Deputy President was unsurprising given Mr Chapman’s acceptance that a settlement agreement to resolve the Application was reached at conciliation.

[35] Having regard to the nature of the appeal grounds, we are satisfied that they are not reasonably arguable and would not attract the grant of permission to appeal in the public interest. This weighs against the grant of an extension of time to lodge the appeal.

Prejudice to the respondent

[36] The grant of an extension of time would cause prejudice to Ignis Labs. The grant of an extension of time would require it to respond to an appeal that is without merit, long after it was entitled to regard the matter as resolved.

Disposition

[37] The absence of an acceptable explanation for the delay in lodging the appeal, the significant length of the delay, the likelihood that the appeal grounds would not be upheld if time was extended and the prejudice to the respondent all weigh against allowing a further period of time within which to lodge the appeal.

[38] We therefore conclude that, in all the circumstances, the interests of justice do not favour Mr Chapman being granted an extension of time.

[39] An extension of time to file the appeal is refused. Mr Chapman’s application for permission to appeal is dismissed on that basis.

VICE PRESIDENT

Appearances:

E. Chapman on his own behalf

J. Yi on her own behalf

Hearing details:

2020

Sydney:

6 July

Final written submissions:

Printed by authority of the Commonwealth Government Printer

<PR721196>

 1   PR709289

2 Ground 6 of the Notice of Appeal provides “no space to list” and is therefore not included in the grounds considered

 3   [2019] FWCFB 815

4 [2014] FWCFB 4822

 5   Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541

 6   Form F7 – Notice of Appeal at question 5.1

 7   This is so because on appeal the Commission has the power to receive further evidence pursuant to s.607(2); see Coal and Allied v AIRC [2000] HCA 47, 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ

 8   Australian Postal Corporation v Gorman [2011] FCA 975

 9   Coal & Allied Mining Services Pty Ltd v Lawler and Others (2011) 192 FCR 78 at [43]

 10   O’Sullivan v Farrer [1989] HCA 61, (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ applied in Hogan v Hinch [2011] HCA 4, (2011) 243 CLR 506 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and Others [2011] FCAFC 54, (2011) 192 FCR 78, (2011) 207 IR 177 at [44]-[46]

 11   [2010] FWAFB 5343, (2010) 197 IR 266

 12   Ibid at [27]

 13   Wan v Australian Industrial Relations Commission and Another [2001] FCA 1803, 92001) 116 FCR 481 at [30]

 14   Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089, (2010) 202 IR 388 at [28] affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler and Others [2011] FCAFC 54, (2011) 192 FCR 78, (2011) 207 IR 177; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, (2014) 241 IR 177 at [28]

 15   [2001] FCA 975

 16   See also Curtis v Darwin City Council [2012] FWAFB 2021

 17   [1954] 91 CLR 353

 18   Ibid at 360

 19   Transcript of Mention PN13-15

 20   Ibid PN18-21

 21   Appeal book, Annexure D3

 22   Transcript of Mention PN23

23 Ibid PN112

 24   Gibbons v Wright [1954] HCA 17, 91 CLR 423; see also R Bigwood ‘Coercion in Contract: The Theoretical Constructs of Duress’ (1996) 46 The University of Toronto Law Journal 201 at 208

 25   Annexure D01 to Form F7 – Notice of Appeal at [1], Appeal book, page 3 at [7]