FEDERAL COURT OF AUSTRALIA

Reeve v Ramsay Health Care Australia Pty Ltd [2012] FCA 1294

THE COURT ORDERS THAT:

1.    The summary judgment application of the first respondent filed 20 September 2012 be granted.

2.    The originating application of the applicant filed 10 August 2012 be dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

summary judgment application by first respondent

1    By originating application filed 10 August 2012, the applicant (Ms Reeve) seeks a writ of certiorari to quash an order of the Full Bench of the second respondent (FWA) made 20 July 2012, as well as a writ of mandamus requiring the Full Bench to determine according to law the application she made under s 604 of the Fair Work Act 2009 (Cth) (FW Act) which the Full Bench dismissed.

2    By interlocutory application filed 20 September 2012 (the summary judgment application), the first respondent (Ramsay) applies for an order for summary judgment in relation to the originating application on the grounds that Ms Reeve has no reasonable prospect of successfully prosecuting the proceeding and/or the proceeding is frivolous or vexatious.

3    The summary judgment application is supported by the affidavits of Nicholas David Ellery sworn 19 September 2012, 27 September 2012 and 31 October 2012. Ramsay also relies on certain documents contained in a bundle lodged by Ms Reeve with the originating application on 10 August 2012 and described by her as the “Appeal booklet”.

4    Ms Reeve opposes the application relying on her affidavit filed in support of the originating application on 10 August 2012, other materials in the appeal booklet lodged with the originating application and her submissions.

background

5    In March 2011, Ms Reeve’s employment with Ramsay ceased.

6    In 8 July 2011, Ms Reeve made an application to FWA to deal with a dispute under s 365 of the FW Act on the basis that she had been dismissed in contravention of Pt 3-1 of that Act.

7    Her application was well out of time. By s 366(1)(a) the application under s 365 had to be made within 60 days after the dismissal took effect or by subs (1)(b) within such further period as FWA allows under subs (2).

8    By s 366(2) the FWA may allow a further period if satisfied that there are “exceptional circumstances”, taking into account:

(a)     the reason for the delay; and

(b)     any action taken by the person to dispute the dismissal; and

(c)     prejudice to the employer (including prejudice caused by the delay); and

(d)     the merits of the application; and

(e)     fairness as between the person and other persons in a like position.

9    On 18 August 2011, Commissioner Williams refused Ms Reeve’s extension application as he was not satisfied that there were exceptional circumstances to allow it: Reeve v Ramsay Health Care Limited [2011] FWA 5349. Ms Reeve’s subsequent appeal against this decision was dismissed by the Full Bench of FWA.

10    Ms Reeve then applied to the Federal Magistrates Court concerning unlawful termination purportedly under s 773 FW Act, but this application was also dismissed as no certificate had issued under s 777 of the FW Act: Reeve v Ramsay Health Care Limited [2012] FMCA 120.

11    Ms Reeve then made a second unlawful termination application under s 773 of the FW Act, this time to FWA. This application has led to the present proceeding in this Court.

12    Section 773 falls within Div 2 of Pt 6-4 of the Act and enables an employee to apply to FWA to deal with a dispute if an employer has “terminated an employee’s employment in contravention of subsection 772(1)”.

13    Section 772(1) provides:

(1)     An employer must not terminate an employee’s employment for one or more of the following reasons, or for reasons including one or more of the following reasons:

(a)     temporary absence from work because of illness or injury of a kind prescribed by the regulations;

(b)     trade union membership or participation in trade union activities outside working hours or, with the employer’s consent, during working hours;

(c)     non-membership of a trade union;

(d)     seeking office as, or acting or having acted in the capacity of, a representative of employees;

(e)     the filing of a complaint, or the participation in proceedings, against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities;

(f)     race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin;

(g)     absence from work during maternity leave or other parental leave;

(h)     temporary absence from work for the purpose of engaging in a voluntary emergency management activity, where the absence is reasonable having regard to all the circumstances.

14    In her application the applicant relied on (1)(e), namely, that a complaint against Ramsay alleging violation of laws (ie her whistle blowing) had led to her employment being terminated.

15    But s 774, like s 366, requires the application to be made within 60 days or in such further period as FWA allows under subs (2), which is in almost identical terms to s 366(2).

16    When Ms Reeve’s extension application came before Commissioner Cloghan, like Commissioner Williams he was not satisfied that there were exceptional circumstances and refused it: Reeve v Ramsay Health Care Australia Limited [2012] FWA 3141.

17    Ms Reeve’s further appeal application to the Full Bench of FWA was dismissed: Reeve v Ramsay Health Care Australia Pty Limited [2012] FWAFB 5601. It is that decision that Ms Reeve now seeks to quash, although she focuses on the decision of Commissioner Cloghan in doing so, alleging the Full Bench erred in not finding the Commissioner erred. Her main complaint though is that Commissioner Cloghan denied her natural justice by deciding the extension of time issue on the papers and without giving her a hearing.

FWA decisions on extension of time

18    When the application to extend time came before Commissioner Cloghan, he issued a document called Statement and Directions under the FW Act, which recited the nature of the application, the reliance on s 772(1)(e) and the need to establish exceptional circumstances taking into account the matters referred to in s 774(2) in order to extend time. To assist in the “efficient and effective determination” of whether the applicant should be allowed to proceed with her application out of time, the Commissioner made procedural directions that required:

    The applicant to email the representative of Ramsay a statement of facts upon which the applicant relied, any documentary material and other relevant submissions to allow an extension of time.

    Ramsay to provide the applicant by email with a copy of a response to the statement of facts asserted or submitted, a statement of facts asserted upon which the employer relies and any documentary material or submissions in response to the applicant’s materials.

    The applicant to respond if she wished by email.

    Having received the “written submissions” the Tribunal would then make a determination as to whether it was satisfied there were exceptional circumstances.

    Should the Tribunal not be satisfied that there were exceptional circumstances, the application would be dismissed.

    If the Tribunal found there were exceptional circumstances, the matter would proceed to a conference under s 776 of the FW Act.

19    In his written decision dated 23 April 2012, Commissioner Cloghan dismissed the application. His written reasons cited the relevant statutory framework, summarised the applicant’s case, summarised the employer’s case and then considered the matter. In the process the Commissioner considered the background including statements made in the materials supplied by Ramsay that included a statement that Mr James MacWatt had engaged in five discussions with Ms Reeve before he met with Ms Young, the manager of Human Resources, where it was decided that the applicant’s employment was likely to be terminated, and that there was then a further meeting on 16 March 2011 when it was determined following a meeting with Ms Kane, the coordinator of employee relations, that Ms Reeve’s employment would be terminated for performance reasons. Then on 24 March 2011, Mr MacWatt and Ms Kane met with Ms Reeve and her employment was terminated. A letter of termination was provided. In this part of the background the Commissioner simply sets out facts and did not make any findings as to whether the termination was justified or not, or lawful or not.

20    The Commissioner then proceeded to set out the details of an email of 22 March 2011 from Ms Reeve to Mr MacWatt and others, having to do with the data entry aspects of her employment. The Commissioner noted a particular email to Mr Cowan on 28 March 2011 in which Ms Reeve concluded that:

One of the major reasons for this unfair dismissal might be to prevent me from reporting this to you and the ramifications it posed on staff in the Emergency Department at JHC.

[Emphasis in original.]

The subject matter of the reporting to which this statement was to be found in the earlier reference in that email, where Ms Reeve stated that she did not “have much time to investigate these negatives [in the data]” as her employment had ceased, notwithstanding this she was able to advise that at least for January there appeared to be a possible computing error.

21    The Commissioner then considered what was required for circumstances to be exceptional and then considered each of the criteria in s 774(2) of the FW Act. He noted that while Ms Reeve had previously made a general protections application and had also sought to extend the time for the making of that application, she had failed to set out the reasons for the delay in doing so. He noted that she had mentioned that her grandmother had passed away within the first 60 days, but also noted that, still within the 60 day period, she had been dealing with the Office of the Minister for Health in Western Australia and a number of other persons. He was not satisfied that there were exceptional circumstances shown to explain the delay. He also noted that she engaged a lawyer and that eventually the general protections application was lodged. He also noted the subsequent proceedings in the Federal Magistrates Court that were unsuccessful.

22    He accepted in all the circumstances that the primary timeframe to be considered for the purposes of exceptional circumstances was the first 60 days after the employee was dismissed. He was not satisfied that an explanation, apart from the death of the applicant’s grandmother, had been provided for the delay.

23    The Commissioner expressly noted that there was no doubt Ms Reeve disputed her dismissal four days after the termination. He was not satisfied, however, that the applicant took any meaningful action to dispute her dismissal. As to her allegations about data manipulation made to various persons and agencies, the Commissioner considered they were “different to disputing her dismissal”.

24    The Commissioner further considered whether there was any prejudice to the employer caused by the delay and found there was “general prejudice” only.

25    He also considered the merits of the application. In this regard, he noted that the allegation was that Ramsay had unlawfully terminated her employment having regard to s 772(1)(e), namely, the filing of a complaint or the participation in proceedings against an employer involving alleged violation of laws, or regulations, or recourse to competent administrative authorities. He said it was necessary for Ms Reeve to have filed a complaint against the employer or participated in proceedings involving alleged violation of laws or regulations or taking herself to a competent administrative authority. In that regard, the Commissioner noted decided cases about what is required. The Commissioner found that: at the time of her dismissal Ms Reeve had not filed a complaint against the employer; the only complaint was to the Chief Executive Officer of the hospital and that was after her termination of employment. He found she had not claimed that her complaint was in violation of any laws or regulations. He had not been advised that she was engaged with any competent administrative authority at the time of her dismissal. In short, the Commissioner found none of the conditions in s 772(1)(e) were present for her to rely upon as reasons for her unlawful termination of employment. He also noted that employment appeared to be terminated for reasons associated with her performance.

26    The Commissioner also considered fairness between other persons in the like position and with the exception of the passing of the applicant’s grandmother, did not accept that the activities the applicant undertook during the remainder of her first 60 days prevented her from filing the application within the standard time period.

27    The Commissioner then considered the application of s 723 of the FW Act to the applicant’s proposed claim before him. That provision provides:

A person must not make an unlawful termination application in relation to conduct if the person is entitled to make a general protections court application in relation to the conduct.

28    The Commissioner found that Ms Reeve was entitled to and did make a general protection application, being the one which failed before Commissioner Williams where the subsequent appeal was dismissed. The Commissioner found that the materials and submissions provided by the applicant contained the “implicit conclusions” that the applicant:

    was not terminated by Ramsay in breach of s 772(1)(e) of the FW Act; and

    is prohibited from making the application as it is a “double dipping” application contrary to s 723.

29    This consideration obviously added to the Commissioner’s view that the merits of the case were lacking.

30    The Full Bench of FWA then dismissed an appeal against Commissioner Cloghan’s decision. The Full Bench considered the most significant event was that Ms Reeve had previously lodged a general protections application before FWA arising from the same circumstances relied on in the application before Commissioner Cloghan. As a consequence there was no certificate issued by FWA enabling Ms Reeve to proceed with her application in the Federal Magistrates Court. The Full Bench noted that when the second application pursuant to s 773 came before Commissioner Cloghan he dealt with the issues arising on the extension of time application at length. He also dealt with the jurisdictional bar to the proceedings arising under s 723 of the FW Act. The Full Bench set out in detail what Commissioner Cloghan found in relation to s 723 and stated that given his conclusion there was no need for him to consider the extension of time question or for the Full Bench to consider his reasons for refusing to extend the time for lodgement. However, for the sake of completeness, the Full Bench stated that to make the situation plain for Ms Reeve, they have considered those reasons and discern no error. Thus, there was no issue on the appeal.

Ramsay’s submissions

31    Ramsay applies for summary judgment under s 31A(2) of the Federal Court Act of Australia 1976 (Cth) on the basis that Ms Reeve has no reasonable prospect of successfully prosecuting the originating application.

32    Ramsay submit that the remedies sought by Ms Reeve in her originating application are discretionary remedies and if she is to obtain them a question of “utility” of the orders would be considered.

33    Ramsay contend that Commissioner Cloghan’s discretionary decision to refuse Ms Reeve an extension of time to make s 773 application took into account all of the matters put forward to him and was consistent with that of Commissioner Williams, who had addressed the same criteria under the s 366 application.

34    Thus, on behalf of the first respondent it is submitted that a question of extension has been considered by two separate Commissioners and two separate Full Benches of FWA, none of whom have considered that exceptional circumstances exist. Consequently, there is no proposition of law to be decided.

35    Further, there is no utility in the orders sought as the only orders that this Court could grant would be to require FWA to reconsider an application for extension and given this background, the same result is likely to obtain.

36    Ramsay accepts that Commissioner Cloghan was bound to observe the principles of natural justice but as affected by s 577 and s 578 of the FW Act. In this regard, natural justice does not require the application of fixed or technical rules but requires fairness in all the circumstances: The Queen v The Commonwealth Conciliation and Arbitration Commission; Ex parte The Angliss Group [1969] HCA 10; (1969) 122 CLR 546 at 552-553.

37    The first respondent says there was no requirement in the FW Act that the Commissioner hold a hearing when considering to extend time. Indeed, s 593(1) provides that FWA is not required to hold a hearing in performing functions or exercising powers, except as provided by the Act. However, by s 593(2) if it holds a hearing the hearing must be held in public, except as provided by subs (3) – which deals with matters of a confidential nature.

38    Accordingly, Ramsay contend that Ms Reeve had no right to a public hearing to cross-examine witnesses.

39    It also contends that it was not unfair for her not to have the opportunity of a public hearing to cross-examine witnesses having regard to the procedure laid down by Commissioner Cloghan in the Statement and Directions made 2 March 2012 in which he directed the applicant to provide:

(1)    a statement of facts upon which she relies;

(2)    any documentary material; and

(3)    any other relevant submissions as to an extension of time.

40    The first respondent was also provided with the opportunity to put on relevant materials which were served on the applicant.

41    Included in the materials put on by Ramsay was an affidavit by Mr MacWatt that deposed to “approximately 5 discussions” that he had with the applicant in relation to her performance and conduct in the workplace.

42    On behalf of Ramsay it is said that the applicant made no request for hearing or to cross-examine any witnesses having been served with these affidavits.

43    It is further submitted that Commissioner Cloghan in his reasons for decision dealt with matters as follows:

(1)    Referring to the Statement and Directions made 2 March 2012.

(2)    Summarising the applicant’s case.

(3)    Summarising Ramsay’s case.

(4)    Setting out background to the application.

(5)    Considering certain email correspondence and then considering the extension of time.

44    Ramsay acknowledge that in consideration of the background to the application, Commissioner Cloghan refers to five discussions between the applicant and Mr MacWatt. It says that inferentially those conversations are the ones deposed to by Mr MacWatt. But, it was unnecessary for Commissioner Cloghan to make findings of fact about the conversations and he did not do so. Ramsay submit that taking into account these various matters, the applicant was not denied natural justice because of the reference by the Commissioner to the five conversations.

45    As to bias, it is submitted on behalf of the first respondent that there is nothing to suggest any bias actual or apprehended.

46    The first respondent submits that there is no right for a person such as applicant to have legal representation in relation to such a proceeding as that before Commissioner Cloghan and the FWA.

47    It is further submitted by Ramsay that the applicant had an appropriate opportunity to be heard by the putting of materials and the making of submissions.

48    Ramsay submit that the Commissioner took into account all of the materials put before him and so it cannot be said to have failed to take into account relevant evidence.

49    As to the alleged dismissal of “data bundles”, Ramsay submit that consideration of these materials was unnecessary for the decision as to an extension to time and it was open to the Commissioner to deal with them as he did and it was open to the Commissioner to interpret the particular email mentioned at [64] of his reasons.

50    As to the Commissioner taking into account unidentified hearsay evidence, Ramsay submit FWA is not bound by the rules of evidence, regardless of whether it holds a hearing, as provided for by s 591 of the FW Act. It cannot therefore be said that any relevant materials were not properly considered.

51    Finally, Ramsay says the applicant’s contentions concerning Senior Deputy President Drake of the Full Bench are misconceived and have no merit and are irrelevant to the originating applications formulated by the applicant.

52    Ramsay thus submit there is no reasonable prospects of the originating application succeeding and so the Court should enter summary judgment in favour of Ramsay under R 26.01 or dismiss the proceeding as vexatious.

the applicant’s submissions

53    Ms Reeve relies on her affidavit filed 10 August 2012 in support of the originating application, in opposing the summary judgment application.

54    Ms Reeve complains that Commissioner Cloghan did not hear her application in open court but instead made directions that he would deal with the case by way of submissions and that in doing so he denied her equal justice to the courts, contrary to cl 14(1) of the International Covenant on Civil and Political Rights (ICCPR) and in breach of s 7 of the “Human Rights and Responsibilities Act 2006” apparently a reference to legislation of a similar title of the State of Victoria.

55    She also alleges the Commissioner breached the Evidence Act 1995 (Cth) by failing to acknowledge vital evidence in her case concerning graphs, statistics, work diary, reports, and a Joondalup health campus patient facsimile which substantiated her claims of manipulated data. She further alleges that Commissioner Cloghan breached the “Electronic Evidence Act” (which is not further identified by the applicant and may well be a reference to legislation of the Province of Prince Edward Island, Canada of that title, as there is no relevant Australian legislation by that name) by failing to acknowledge the manipulated/altered data that she sent him by email on two occasions.

56    Ms Reeve further submits that the Commissioner breached Whistleblowers Protection Act 2001 (which I take to be a reference to legislation of that title of the State of Victoria) by failing to acknowledge data as evidence that substantiates her whistle blowing claims, dismissing it as “bundles of data”. Instead he placed weight on his decision “based on his individual critique and perception of my email sent to my manager, drawing inference to wording and making his own assumptions of what that means, rather than looking to the data for raw proof and evidence”.

57    I should note here that the legislation of jurisdictions other than the Commonwealth of Australia are not relevant to the proceeding in this Court.

58    She also contends the Commissioner breached a rule of evidence by placing a great deal of importance on hearsay, that is “five discussions that apparently had with me by managers and other staff”, where none of this was in any sworn testimony and she did not have the opportunity to challenge any of that evidence with cross-examination.

59    To similar effect, Ms Reeve contends that the Commissioner breached the hearing rule when he found facts without evidence and without permitting her to call evidence or cross-examining witnesses. For example, in his decision makes mere mention of “documents submitted to the Corruption and Crime Commission” but nowhere in his decision does he refer to these exact documents.

60    Ms Reeve also states that she sent Commissioner Cloghan the letter from her Family Court lawyer informing her that they had ceased to act and gave instructions on how to subpoena childrens’ counselling notes because she had lost her job and had no income.

61    Ms Reeve says if she had been given the “fundamental right to a public hearing in an open court, I would have had the opportunity to explain the evidence and the relevance of this letter, and how it indicated a single mother without a job, cannot afford legal counsel for the most important in her life, the custody of her children…”.

62    Ms Reeve also says that the FWA’s own material indicates that the circumstances in which a victim of family violence may find themselves, may suggest additional time should be granted to make an application under the FW Act.

63    Ms Reeve makes other general references to the personal pressure she was under at various times, including her own poor health.

64    Ms Reeve finally complains that the Full Bench failed to acknowledge that whistle blowing is an important public policy issue and that the integrity of government relies on the effective operation of a range of integrity systems for keeping institutions and their office holders honest and accountable.

65    In all these circumstances, the applicant denies that her originating application has no reasonable chances of success or that it is vexatious.

consideration

66    For the reasons which follow, the summary judgment application of Ramsay should be granted on the basis there is no reasonable prospect of her originating application succeeding.

67    The practical question to be assessed often will be whether the applicant has more than a “fanciful” prospect of success: see O’Donoghue v Australian Information Commissioner (No 3) [2012] FCA 1244 at [16]-[18].

68    The history of Ms Reeve’s various concerns since her employment with Ramsay ceased in March 2011 has been set out in some detail above. As the various materials and submissions lodged by Ms Reeve indicate, and as she explained in her written and oral submissions to the Court on the hearing of the summary judgment application, she feels indignant that her allegations as a whistle blower should not find their way to consideration in a final hearing of her unlawful termination application to FWA. Further, she is aggrieved that Commissioner Cloghan and subsequently the Full Bench on the appeal did not appreciate that both before and at the time she made the unlawful termination application and sought an extension of time for doing so that she was under great stress due to her personal circumstances, including Family Court proceedings, criminal proceedings involving a neighbour, the whistle blower allegations and her own personal health.

69    The circumstances when the extension application came before Commissioner Cloghan were, as set out in detail above, that Ms Reeve: had taken a general protection proceeding in FWA and had been unsuccessful; had then commenced proceedings for unlawful termination in the Federal Magistrates Court of Australia, but had been unsuccessful; and had then renewed that application in FWA. Quite some considerable time had passed. When the unlawful termination application came before Commissioner Cloghan it was necessary to determine whether the time for making that application should be extended.

70    To that end the Commissioner issued the document called Statement and Directions in which he directed that the parties should put on materials and make submissions in writing and he would determine the extension of time question on the papers so submitted. It is primarily this step that Ms Reeve now complains about, because she believes she was denied primary right to be heard orally in a hearing and if necessary to call witnesses and cross-examine witnesses before Commissioner Cloghan.

71    That primary submission is not correct as a matter of law. Ms Reeve at the summary judgment hearing mentioned a number of principles that bear upon the obligation of a court to provide natural justice, not to be biased and to conduct hearings in public. The position in this case is that FWA is not a court. It is an administrative decision-maker, albeit an important administrative decision-maker dealing with various matters arising in relation to workplace disputes.

72    So far as the performance of its functions and exercise of its powers are concerned, s 577 of the FW Act requires that FWA act in a manner that:

    is fair and just;

    is quick, informal and avoids unnecessary technicalities;

    is open and transparent; and

    promotes harmonious and cooperative workplace relations.

73    Consistent with s 577, s 593(1) further provides that FWA is not required to hold a hearing in performing functions or exercising powers, except as provided by the Act.

74    There are no relevant provisions of the FW Act that require FWA to hold a hearing in relation to the determination of the question whether an extension of time should be provided for the purposes of a s 773 application. This is not entirely surprising given that FWA has been set up as an administrative agency to act in the way described by s 577. If every time it was required to determine an extension of time application FWA was obliged to hold a hearing, hear from parties orally and enable witnesses to be called and cross-examined and the like, the ability of FWA to act quickly, informally and to avoid unnecessary technicalities would be severely and adversely affected. Of course FWA must act fairly and justly, and openly and transparently, as well.

75    The procedure adopted by Commissioner Cloghan for the purpose of determining the extension of time issue in this case is unexceptional. The only remaining question is whether the procedure adopted was fair and just and open and transparent. In my view there can be no real question that by setting a program for the parties to file all the materials that they wished in relation to the matters that needed to be taken account of on the extension of time application and enabling the parties to make submissions about those matters, Commissioner Cloghan did all that was required of FWA in this regard.

76    In other words, there is no natural justice point, no procedural fairness point, no denial of the basic rights of Ms Reeve to a fair and just consideration of the extension of time issue by FWA. Certainly, there is no reasonable prospect of any such claims to the contrary succeeding on her originating application.

77    Additionally, as the Full Bench of FWA found on the appeal against Commissioner Cloghan’s decision, he considered everything he needed to consider as required by s 773 and s 774 of the FW Act.

78    Ms Reeve complains that when Commissioner Cloghan made reference to the five conversations that Mr MacWatt stated he had with her, that she was denied the opportunity to cross-examine Mr MacWatt about those matters. But the point made by Ms Reeve fails to recognise that all that Commissioner Cloghan was doing in his reasons was recounting some background events in order to explain how in March 2011 Ms Reeve’s employment with Ramsay was actually terminated. The focus of the examination that the Commissioner was then conducting, was whether any relevant complaint was made for the purposes of s 772(1)(e) to found an unlawful termination application. He was considering the merits of the application that Ms Reeve had made. In the event, he found there was no relevant complaint and so there was nothing of substance in the claim that Ms Reeve wished to advance.

79    Further, Commissioner Cloghan found that s 723 of the FW Act provided a statutory bar to the maintenance of the unlawful termination application that Ms Reeve wished to maintain, having already lodged a general protections application which had been dismissed.

80    It is important to note that when the matter went on appeal to the Full Bench, it was the s 723 bar point that primary resulted in the Full Bench dismissing the appeal. It mentioned more as an aside that Commissioner Cloghan’s considerations of the exceptional circumstances grounds was also appropriate.

81    In these circumstances, the s 723 bar consideration provides a substantial reason why the unlawful termination application of Ms Reeve could not proceed at all, regardless of what exceptional circumstances she may have been able to show. For that reason alone, the summary judgment application should succeed, because there is absolutely no efficacy or utility in requiring either the Full Bench or a Commissioner of FWA to reconsider the exceptional circumstances considerations if the unlawful termination application has little or no prospect of success because of the s 723 bar.

82    In any event, however, for the reasons that the Full Bench gave, the decision made by Commissioner Cloghan does not exhibit any error. He took account of everything that needed to be taken account of. So far as the complaint is concerned that he made findings of fact, I do not construe his reasons in that way, as explained above. There was no occasion where, in the course of making that decision, he was relying on what could be considered contested issues which required the parties and Ms Reeve, in particular, to be given the opportunity to expand on information she had provided or for her to be given the opportunity to cross-examine persons on whose evidence Ramsay relied.

83    It was always going to be important, if the unlawful termination application was to succeed, for Ms Reeve to be able to establish a relevant complaint against her employer concerning violation of a law that gave rise to her termination. There was nothing in the materials, as Commissioner Cloghan found, that could in substance support that claim. The whistle blowing issues upon which Ms Reeve relies really had their genesis subsequent to her employment termination.

84    There was also nothing in the materials before Commissioner Cloghan that required him to undertake some additional inquiry into whether Ms Reeve was under some degree of personal stress or other emotional circumstances that helped to make out exceptional circumstances. The fact is that the Commissioner rightly focussed on the first 60 days and not what happened after that. He reasonably in the circumstances, having taken account of the fact that the applicant’s grandmother had died in that period, found that no satisfactory explanation for the delay in taking out the initial general protections application. The other materials before him which Ms Reeve had supplied did not raise stress issues.

85    The Full Bench did not err, in my view, in dismissing the appeal for the reasons it did.

86    In all of these circumstances the appeal by Ms Reeve to broader principles of law whether derived from international covenants or other constitutional origins as to her right to have had a full hearing before Commissioner Cloghan is not made out. The FWA (both Commissioner Cloghan and the Full Bench) at all times acted in accordance with the requirements of the FW Act in the determination of the application for an extension of time under s 774 of the FW Act. There is no evidence at all that the FWA was biased actively or by reasonable apprehension.

87    In the circumstances the originating application filed in this Court by Ms Reeve has no reasonable prospect of success on the relevant test.

orders

88    The appropriate orders would appear to be as follows:

1.    The summary judgment application of the first respondent filed 20 September 2012 be granted.

2.    The originating application of the applicant filed 10 August 2012 be dismissed.

89    I will hear from the parties on the question of costs.

Associate:

Dated:    21 November 2012