FEDERAL COURT OF AUSTRALIA

Lee v Fair Work Commission [2020] FCA 1204

Appeal from:

Lee v Fair Work Commission [2020] FCA 733

File numbers:

QUD 65 of 2020

QUD 66 of 2020

Judge:

COLLIER J

Date of judgment:

21 August 2020

Catchwords:

PRACTICE AND PROCEDURE – application for extension of time and leave to appeal where primary proceedings sought review of Fair Work Commission decisions where primary Judge summarily dismissed matters at Court’s own initiative – Federal Court Rules 2011 (Cth) rr 1.40 and 26.01(1)(a) – Federal Court of Australia Act 1976 (Cth) s 37P – refusal of in-person hearing in light of COVID-19 pandemic – principles relevant to extension of time and leave to appeal – whether adequate explanation for delay provided – where explanation for delay partly related to the disadvantages of being a litigant in person – where bias claimed against primary Judge on basis that Fair Work Commission President also a Federal Court Judge lack of connection between alleged interest in matter and departure from impartial decision-making – primary decision not attended with sufficient doubt – appeal dismissed.

Legislation:

Australian Human Rights Commission Act 1986 (Cth) art 14

Fair Work Act 2009 (Cth) ss 349, 387, 390, 604

Federal Court of Australia Act 1976 (Cth) Pt VB, ss 20A, 23 37M, 37N, 37P

Federal Court Rules 2011 (Cth) rr 1.32, 1.40, 26.01, 30.11, 35.13, 35.14, 35.20, 36.43

Judiciary Act 1903 (Cth) s 39B

Privacy Act 1988 (Cth)

Cases cited:

AZAEY v Minister for Immigration and Border Protection (2015) FCAFC 193; [2015] FCAFC 193

Brock v Minister for Home Affairs [2008] FCAFC 165

BVG17 v BVH17 (2019) 268 FCR 448; [2019] FCAFC 17

Coffey v Secretary, Department of Social Security (1999) 86 FCR 434

Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397; [1991] FCAFC 844

DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 127

Djaigween v Douglas (1994) 48 FCR 535

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63

Fagan v Crimes Compensation Tribunal (1982) 150 CLR 666; [1982] HCA 49

Humphries v Newport Quays Stage 2A Pty Ltd [2009] FCA 699

Hunter Valley Developments Pty Limited v Cohen (1984) 3 FCR 344; [1984] FCA 176

Johnston v Judge Middleton [2019] FCA 966

Lee v Fair Work Commission [2020] FCA 733

Lee v Superior Wood Pty Ltd (2019) 286 IR 368; [2019] FWCFB 2946

Lee v Superior Wood Pty Ltd (2020) 295 IR 242; [2020] FWCFB 1301

Lee v Superior Wood Pty Ltd (t/a Superior Wood) [2019] FWC 5095

Lee v Superior Wood Pty Ltd [2018] FWC 4762

Luck v Secretary, Department of Human Services (2017) 72 AAR 219; [2017] FCA 540

Marsden v R [2002] FCAFC 229

Mentink v Minister for Home Affairs [2013] FCAFC 113

Mulhern v Morgan [2017] FCA 1183

MZABP v Minister for Immigration and Border Protection (2016) 152 ALD 478; [2016] FCAFC 110

Nationwide News Pty Limited v Rush [2018] FCAFC 70

Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589

Quall v Northern Territory [2009] FCA 18

R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13; [1980] HCA 13

Sea Culture International Pty Ltd v Scoles (1991) 32 FCR 275

Smits v Loel (No 3) [2015] FCA 77

State Bank of NSW v Stenhouse (1997) Australian Torts Reports 81-423

SZSDA v Minister for Immigration and Citizenship (2012) 135 ALD 17; [2012] FCA 1319

SZVCP v Minister for Immigration and Border Protection (2016) 238 FCR 15; [2016] FCAFC 24

Walsh, Liquidator of D&R Community Services Pty Ltd (Receivers & Managers Appointed) (in liq) v Commissioner of Taxation [2018] FCA 1739

Walsh, Liquidator of D&R Community Services Pty Ltd (Receivers & Managers Appointed) (in liq) v Commissioner of Taxation [2018] FCA 1739

Walton v Gardiner (1993) 177 CLR 378

Date of hearing:

Determined on the papers

Date of last submissions:

31 July 2020 (Applicant)

The Respondents did not provide submissions

Registry:

Queensland

Division:

General Division

National Practice Area:

Employment and Industrial Relations

Category:

Catchwords

Number of paragraphs:

120

Counsel for the Applicant:

The applicant was self-represented

Counsel for the Respondents:

The Respondents filed a submitting notice

ORDERS

QUD 65 of 2020

BETWEEN:

JEREMY LEE

Applicant

AND:

FAIR WORK COMMISSION

First Respondent

COMMISSIONER JENNIFER HUNT

Second Respondent

JUDGE:

collier j

DATE OF ORDER:

21 august 2020

THE COURT ORDERS THAT:

1.    The application for extension of time and leave to appeal filed on 11 March 2020 be dismissed.

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

ORDERS

QUD 66 of 2020

BETWEEN:

JEREMY LEE

Applicant

AND:

FAIR WORK COMMISSION

First Respondent

DEPUTY PRESIDENT SAMS

Second Respondent

COMMISSIONER MCKINNON (and another named in the Schedule)

Third Respondent

JUDGE:

collier j

DATE OF ORDER:

21 August 2020

THE COURT ORDERS THAT:

1.    The application for extension of time and leave to appeal filed on 11 March 2020 be dismissed.

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

REASONS FOR JUDGMENT

COLLIER J:

1    Before the Court are two related matters. In both matters the applicant filed an application for extension of time and leave to appeal against the decision of the primary Judge in Lee v Fair Work Commission [2020] FCA 733. The primary decision dismissed two proceedings, QUD356/2019 (which is sought to be appealed in proceeding QUD66/2020) and QUD385/2019 (which is sought to be appealed in proceeding QUD65/2020).

2    Proceeding QUD356/2019 concerned an application under s 39B of the Judiciary Act 1903 (Cth) to quash the decision of the Full Bench of the Fair Work Commission in Lee v Superior Wood Pty Ltd (2019) 286 IR 368; [2019] FWCFB 2946 (First Full Bench Decision) and have the matter reheard.

3    Proceeding QUD385/2019 concerned an application for judicial review of the conduct of Commissioner Hunt, claiming a conflict of interest or apprehended bias on the part of the Commissioner. Commissioner Hunt dismissed the applicant’s application for unfair dismissal on 1 November 2018 in Lee v Superior Wood Pty Ltd [2018] FWC 4762 (FWC Decision), which decision was then appealed to and quashed by the Full Bench in the First Full Bench Decision.

background

4    The background of this matter before the Fair Work Commission related to the dismissal of the applicant in the current proceedings, Mr Lee, by his then employer, Superior Wood Pty Ltd (Superior Wood). Mr Lee was employed by Superior Wood from on or about 19 November 2014 to 12 February 2018. He was dismissed for refusing to use then newly introduced fingerprint scanners to sign on and off for work, thus failing to comply with Superior Wood’s site attendance policy. Mr Lee claimed ownership of the biometric data contained within his fingerprint. He also claimed that such biometric data was personal information under the Privacy Act 1988 (Cth), which Superior Wood was not entitled to require from him, or require him to provide to Finlayson Timber Pty Ltd (the owner of the scanners and software), such that his refusal to provide the information was not a valid reason for his dismissal.

5    On 5 March 2018, Mr Lee applied to the Fair Work Commission for a remedy for unfair dismissal under s 349 of the Fair Work Act 2009 (Cth) (Fair Work Act). At first instance, Commissioner Hunt assessed whether Mr Lee’s dismissal was harsh, unjust or unreasonable against the criteria set out in s 387 of the Fair Work Act and found that Mr Lee’s dismissal was not harsh, unjust or unreasonable and dismissed his application.

6    Mr Lee appealed to the Full Bench of the Fair Work Commission, constituted by the respondents in proceeding QUD66/2020. The First Full Bench Decision upheld four grounds of appeal and accordingly made the following Orders:

1.    the appeal is upheld;

2.    the Decision in [2018] FWC 4762 is quashed;

3.    on rehearing we determined that Mr Lee’s dismissal was unfair; and

4.    the question of what remedy, if any, should be ordered is remitted to Commissioner Simpson for determining having regard to our findings.

7    On 1 June 2019, Mr Lee commenced proceeding QUD356/2019 in the Federal Court.

8    On 13 June 2019, Mr Lee commenced proceeding QUD385/2019 in the Federal Court.

9    On 22 July 2019, Commissioner Simpson delivered his decision in Lee v Superior Wood Pty Ltd (t/a Superior Wood) [2019] FWC 5095 (Compensation Decision). Commissioner Simpson determined that Mr Lee be compensated by Superior Wood in the amount of $24,117.08, plus an additional 9.5% for superannuation.

10    On 9 August 2019, Mr Lee applied for permission to appeal from the Compensation Decision under s 604 of the Fair Work Act, which was granted on 2 October 2019. A Full Bench constituted by Vice President Hatcher, Deputy President Millhouse and Commissioner Hampton heard the appeal on 10 December 2019.

11    On 6 February 2020, the primary Judge delivered judgment in proceedings QUD356/2019 and QUD385/2019.

12    On 11 March 2020, Mr Lee filed applications for extension of time and leave to appeal in proceedings QUD65/2020 and QUD66/2020.

13    On 5 May 2020, the decision of the Full Bench in Lee v Superior Wood Pty Ltd (2020) 295 IR 242; [2020] FWCFB 1301 (Second Full Bench Decision) was delivered. As noted in the Second Full Bench Decision at [16], Mr Lee advanced 51 grounds of appeal against the Compensation Decision. The Full Bench noted at [56]:

We have earlier set out in full the extensive grounds of appeal contained in Mr Lee’s notice of appeal. Many of those grounds merely seek to re-argue Mr Lee’s case for reinstatement. However, reading the appeal grounds generously, we consider that they raise two broad contentions of error on the part of the Commissioner:

(1)    The Commissioner erred in concluding that Superior Wood had a rational basis for its loss of trust and confidence in Mr Lee based on various statements made by Mr Lee, or A Lee on his behalf, during the course of the proceedings.

(2)    The Commissioner failed to take into account a number of matters which weighed in favour of reinstatement – in particular, Mr Lee’s prior unblemished record of employment, the lack of any fault on his part for the dismissal, and the loss he had suffered as a result of the dismissal.

14    The Full Bench rejected the first contention of error: see Second Full Bench Decision at [72]. The Full Bench upheld the second contention of error (at [78]), concluding as follows:

[80]    For the foregoing reasons we have decided to uphold the appeal and quash the Decision. We have decided to rehear the application as it concerns the remedy to be provided to Mr Lee under the terms of the FW Act

[81]    In the event of reinstatement, we would also need to consider whether the continuity of service should be provided under s.391(2) of the FW Act and whether an order to restore lost pay should be made under s.391(3), including whether there has been any remuneration under s.391(4) that should be taken into account. The compensation paid by Superior Wood under the Order made by the Commissioner, which has not been appealed, would also need to be considered in this context. Consideration also needs to be given to the fact that we delayed our determination of this appeal because we became aware during the proceedings that Mr Lee had taken the counter-intuitive step of seeking judicial review of the first appeal decision in the Federal Court of Australia. We did not consider it appropriate to determine the appeal of the Commissioner’s decision concerning the proper remedy for Mr Lee’s unfair dismissal in circumstances where he was seeking that the decision in which his dismissal was found to be unfair be quashed. This application was dismissed by the Court on 6 February 2020.

[82]    We confirm the grant of permission to appeal, and we order that the appeal be upheld. Directions will shortly be issued to enable the outstanding issues to be determined by this Full Bench.

15    It is not clear on the material before me whether the rehearing of the appropriate remedy to be awarded referred to at [80] of the Second Full Bench Decision has occurred, or similarly, whether the “outstanding issues” have been determined by the Full Bench.

proceedings before the primary judge

16    By an application filed on 13 June 2019 in proceeding QUD385/2019, Me Lee sought review of the conduct of Commissioner Hunt. The details of that application were as follows:

Details of claim

The Applicant is aggrieved by Commissioner Hunt’s conduct and her failure to recuse herself from a matter in which there was an obvious conflict of interest.

1.    Commissioner Hunt is legally obliged to provide impartiality to all parties at the Fair Work Commission and should have properly declared her conflict of interest to those parties prior to hearing.

2.    Commissioner Hunt should have, as a matter of principle, recused herself from carriage of the case.

Grounds of application

1.    Prior employment duties and conduct. I have reasonable apprehension that Cmr Hunt was ruling on a matter involving her own past conduct being similar to that of one party. The Cmr was effectively setting down a legal ruling on her own conduct.

2.    Cmr Hunt never attempted to inform parties of her conflict.

3.    Please see attached Complaint Letter dated 11 April 2019.

Orders sought

1.    The Judicial Review of my complaint of Apprehended Bias against Commissioner Hunt.

17    Mr Lee filed an affidavit in support of that application on 13 June 2019, in which he set out the circumstances of the alleged claim of apprehended bias against Commissioner Hunt:

6.    Cmr Hunt never raised the issue of her potential conflict of interest at any time. There were no disclosures by Cmr Hunt in relation to her previous employment or past conduct at any time prior to the arbitration hearing of 15 June 2018.

7.    At about 2:30pm, after lunch and during the hearing of 15 June 2018, Cmr Hunt was then engaged in a discussion about express and implied consent, and apropos of nothing, Cmr Hunt said:

8.    T[745] Cmr Hunt “Just before you move from 3.3, in my former life, I was a data privacy officer for a large corporation, so I am quite familiar, up until when that role finished, with privacy.”

9.    This comment was made without warning, context or explanation and there was no mention by Cmr Hunt of it being in connection to any disclosure of a conflict of interest.

10.    This was the only mention by Cmr Hunt of her past, her employment history or potential past conduct during the 8 months my matter was under her carriage.

11.    Cmr Hunt never raised the issue of disclosure, conflict of interest, impartiality or apprehension of bias at any time. And there was never any indication from Cmr Hunt that ·she may need to recuse herself from the matter.

12.    I raised an Apprehension of Bias complaint against Cmr Hunt at the first opportunity I had to do so, during the Full Bench Appeal Hearing 18 March 2019.

13.    I explained my “genuine concern that, in light of the Cmr's past duties, the matter may not have been dealt with in a fair and balanced way.

14.    As a former data privacy officer, Cmr Hunt may have overseen the collection of employees personal data.

15.    If true, the Cmr would not want to rule against Superior Wood, as the judgement would have personal implications for her own past conduct.”

16.    However, the Cmr Gostencnik of the Full Bench attempted to prevent me from making this complaint, and the Decision of the Full Bench [2019] FWCFB2946 ignored the issue entirely.

17.    I was concerned by the Full Bench's reaction at the hearing and sought to bring it to the attention of Justice lain Ross, President of the Fair Work Commission. I emailed President Ross a letter of complaint 11 April 2019, several weeks prior to the release of the Full Bench Decision on 1 May 2019.

18.    I received no reply and then emailed a second letter of complaint to President Ross 1 May 2019.

19.    President Ross responded to my complaint 7 May 2019 without actually addressing the matter and I emailed a third letter of complaint to President Ross 9 May 2019, requesting proper consideration of it.

20.    President Ross emailed a final letter of reply to me 16 May 2019, claiming he has “no jurisdiction to make a formal ruling”.

21.    Consequently, I would like to submit an Application for the Judicial Review of my complaint of Apprehended Bias against Cmr Hunt.

18    On 1 June 2019, in proceeding QUD356/2019, Mr Lee filed an originating application for relief under s 39B of the Judiciary Act 1903 (Cth). The details of the claim are as follows:

On the grounds stated in the statement of claim, accompanying affidavit or other document prescribed by the Rules, the Applicant applies for the following relief under section 39B of the Judiciary Act 1903:

1.    Quash Full Bench Decision [2019] FWCFC 2946

2.    Full Rehearing of Matter

19    No statement of claim was filed in proceeding QUD356/2019. The affidavit filed on 1 June 2019 in support of the originating application relevantly stated as follows:

27.    I also made a Complaint of Apprehended Bias to the Full Bench against Cmr Hunt at this hearing and asked for a ruling on this.

28.    I wrote repeatedly to the President of the Fair Work Commission, Justice lain Ross, to ensure that my complaint of Apprehended Bias against Cmr Hunt be considered. I believe Cmr Hunt had a conflict of interest in hearing my matter and should have recused herself. I requested a public hearing with Cmr Hunt to appear and requested her full employment record. I insisted that the Full Bench is not entitled to release a Decision until this complaint is ruled upon.

29.    The Full Bench released their Decision on 1 May 2019. [2019] FWCFB 2946.

30.    The Full Bench Decision makes no mention of my Complaint of Apprehended Bias against Cmr Hunt. It does not consider or rule on ownership my central ground of appeal. Like the Decision which preceeded [sic] it, the Full Bench Decision misunderstands the concept of consent and fails utterly to grasp the difference between a direction and a request. The Full Bench ignore my grounds of appeal and made a list of their own.

31.    Despite these glaring failures, the Full Bench declare it to be a ruling in my favour. However, I consider it to be a ruling against me and have appealed my case to the Federal Court to have it quashed in favour of a full rehearing.

(Errors in original.)

20    Annexure JL8 to Mr Lee’s affidavit of 1 June 2019 sets out Mr Lee’s grounds before the primary Judge in QUD356/2019, which were as follows:

One:        My Apprehension of Bias against Cmr Hunt was ignored by the Full Bench. Cmr Hunt was given carriage of my matter by the Work Commission, carried it through conciliation to arbitration and potentially ruled on the legality of her own conduct. Her ruling and any subsequent ruling relying on its tainted evidence is thoroughly corrupted by her carriage, and must be annulled. Following the President of the Work Commission's failure to address the inherent conflict, I have submitted an Application for Judicial Review at the Federal Court.

Two:        The Full Bench changed the goalposts for the Appeal process. Their discretionary powers and the opaque nature of their decision making was used against me and I was left, as a self represented party, at a huge disadvantage.

Three:        I was denied the opportunity of a rehearing. I went thru [sic] the full process: Application for Appeal, Verbal Presentation for Why the Appeal Should Be Heard, and Full Bench Appeal Hearing on the basis that this was all for the opportunity to have my matter properly reheard. At the end of that, the Full Bench retired behind closed doors, and without notice or warning denied me a rehearing by considering the matter in secret, without any reference to me whatsoever.

Four:        The Full Bench did not address my Grounds for Appeal. They made up their own list and addressed their ruling to these instead.

Five:         The Full Bench’s ruling that the other employees gave implied consent is wrong. It is a contradictory Decision.

Six:         The Full Bench Decision is wrong to claim that my employers [sic] direction for me to provide my biometric data was a request. A direction is not a request.

Seven:        The Decision from the Full Bench is flawed as it proposed to recognize consent without also recognizing ownership. To recognize that my consent is required, is to recognize that I own my biometric data. And conversely, to recognize that I own my biometric data, you must recognize that my consent is required to obtain it.

Eight:        The Full Bench did not address my Ground for Appeal of the change to the nature of the relationship between Employer/Employee.

Nine:        The Decision claims the new scanner system provided “safety benefits” with “sufficient evidentiary basis to support this (PN71). Yet the Full Bench does not point to identify this evidence. Superior Wood claimed to be able to view a list of onsite staff on their phones, but this was never shown. Furthermore, a list of names on a phone is the same as a list of names on a sign-in book. It is still a list of names of those that have scanned onto site. It is no further proof of those that are still there. This was evidenced when an evacuation occurred and the old sign in book was used to check off names instead of the new system. The Full Bench claim of improved safety is in error.

21    Case management hearings were conducted before the primary Judge on 19 September 2019, 3 October 2019, 10 October 2019, 7 November 2019, 21 November 2019 and 19 December 2019.

22    Both respondents in proceeding QUD385/2019 filed a submitting notice on 9 October 2019. The first respondent in QUD356/2019 filed submitting notice on 13 November 2019.

23    At the case management hearing on 7 November 2019, the following exchange took place between the primary Judge and Mr Lee:

HIS HONOUR: Whichever proceeding it is that you are seeking to review the order of Commissioner Hunt, you’re seeking to review an order that has been set aside, and it seems to me that that is nugatory.

MR J. LEE: Yes. Your Honour, could I ask for you to be specific? Matter 385 is an application for judicial review of Commissioner Hunt’s conflict of interest in hearing the matter.

HIS HONOUR: Okay. So it’s that one I’m talking about.

MR J. LEE: I beg your pardon?

HIS HONOUR: That’s the proceeding I’m talking about. The proceeding against Commissioner Hunt.

MR J. LEE: Yes.

HIS HONOUR: You’re seeking to review her decision on your matter.

MR J. LEE: No. No. I’m seeking to review her conflict of interest in hearing the matter.

HIS HONOUR: That’s the same thing, in substance, Mr Lee.

MR J. LEE: Well, it may result in the quashing of her decision, but it is not - - -

HIS HONOUR: Her decision has already been set aside by the Commission.

MR J. LEE: It is not the same. I didn’t hear you. You spoke over the top of me.

HIS HONOUR: Your decision has already – that decision has already been set aside by the Commission, and the Commission ordered that another hearing be held, and that hearing has been held.

MR J. LEE: Yes.

HIS HONOUR: And you were successful in that hearing, and you have received a sum of some $20,000 or more as a result.

MR J. LEE: Okay. There was no rehearing. That was disingenuous. There was zero rehearing. They simply produced a new decision. And all of that decision rested upon Commissioner Hunt’s hearing and her carriage of the matter.

HIS HONOUR: The end result of the process, Mr Lee, was that you were ordered compensation in the sum of $20,000 or more, wasn’t it?

MR J. LEE: Yes.

HIS HONOUR: So you were successful in the proceeding before the - - -

MR J. LEE: Successful by whose measure?

HIS HONOUR: - - - Fair Work Commission. By the measure of the Fair Work Commissioner who reheard the matter.

MR J. LEE: No. I dispute that.

HIS HONOUR: Well, why should I allow you to agitate this matter in this court, and waste the resources of the public and the time of this court, with a matter that you have been successful in?

MR J. LEE: Because I’m still paying the cost of Commissioner Hunt’s conflict of interest in hearing my matter.

HIS HONOUR: Is there any reason why I should not strike out the proceeding seeking to review the decision of Commissioner Hunt as an abuse of process?

MR J. LEE: Yes.

HIS HONOUR: What is it?

MR J. LEE: I was hoping to make my arguments for my case, that is matter 385, at trial, rather than here. I’m not sure – is the respondent putting an argument that my case should not proceed to trial?

HIS HONOUR: No. I am looking at the matter, now that I’ve been familiarised with the history by that affidavit of Mr Reeves, to determine whether or not the matter should be disposed of at this stage as an abuse of process, because it seeks to agitate an issue that is no longer live. It relates to a decision of the Commissioner that’s been set aside by the Commission.

HIS HONOUR: I’ll give you time to agitate all that, Mr Lee, but I’m putting you on notice that I propose to strike out the matter unless you can persuade me – that is both matters – that they do not constitute abuses of process, because they have been resolved in your favour in the Fair Work Commission. How much time do you require to prepare an argument as to why they should not be struck out?

MR J. LEE: Isn’t that based on your judgment of what is in my favour?

HIS HONOUR: Yes, it is. It’s based on the material that has now been placed before me by the Commission, including the affidavit of Mr Reeves. I have no other respondent before me, because they filed a submitting notice, but having before [sic] aware of the history of the matter, that’s how I intend to proceed. Now, do you require seven days - - -

MR J. LEE: Okay. So does it - - -

HIS HONOUR: - - - or 14 days to mount your argument as to why the matters shouldn’t be struck out?

MR J. LEE: Seven days, your Honour. Does it matter if I return the money? Would that affect your decision?

HIS HONOUR: You will have to work it out, Mr Lee. You’ve had the money for three or four months now, haven’t you?

MR J. LEE: Yes.

HIS HONOUR: So I’ll give you - - -

MR J. LEE: Well - - -

HIS HONOUR: - - - because I’ve raised this matter with you at this hearing and without notice, I will allow you the seven days. So I’ll adjourn the matter to the - - -

MR J. LEE: Well, the respondent - - -

HIS HONOUR: Just a moment. I’ll adjourn the matter until the 15th of November.

MR J. LEE: Your Honour, can I raise – I’ve applied to – I need to raise a matter which I hope does not cause offence. I’ve applied to the Federal Court for a judicial review of the Commissioner’s conduct, after first raising my apprehension of bias with the President of the Commission. The Commission President is also a member of the Federal Court, so I seek an assurance from this court that the matter will be dealt with fairly and at arm’s length. I’m mindful of the fact that I’m seeking a judicial review of a conflict of interest from the Federal Court, which itself has a potential conflict of interest in hearing it. However, this is my only avenue for review.

HIS HONOUR: You’ve put that on the record, Mr Lee. It has no effect on this judge’s view of the matter in this court. I will adjourn it to 10.15 am on the 15th of November, and on that occasion you can tell me why the matter shouldn’t be struck out as an abuse of process. Anything further?

MR J. LEE: I would like to request that QUD356 be postponed until there is a ruling on QUD385.

HIS HONOUR: I’m adjourning both matters to the 15th of November. 10.15 am. That is 356/2019 and 385/2019.

(Transcript p 3-9.)

24    At a further case management hearing on 21 November 2019, Mr Lee made lengthy submissions addressing why the proceedings should not be dismissed as an abuse of process. The following passages of the transcript are of relevance:

The first accusation that I should address is your Honour's assertion that I am wasting the court's time, because I am seeking a review of Commissioner Hunt's decision, which has already been quashed by the full Bench. Justice Reeves – sorry, your Honour claims that my application for judicial review:

    Amounts to the same thing in substance.

As if I was appealing Commissioner Hunt's decision and, therefore, that I am seeking to agitate a matter that is no longer live. This is the same accusation already made unsuccessfully by the Registrar. Both attempts to conflate my application for judicial review QUD385 with an appeal. I am not appealing Commissioner Hunt's decision: that is why it is called a judicial review. I totally reject any attempt to conflate a judicial review application with an appeal of a decision.

Furthermore, the matter of Commissioner Hunt's conflict of interest is still very much alive. The full Bench of the Commission denied my request to rehear the matter, despite the fact that I had won that right. If the full Bench wants to produce a new decision without a rehearing, they are required to seek the applicant's consent. This never happened. The full Bench never requested my consent, and never reheard the matter. The Commission's claim to the contrary is a flat out lie, and I quote an exchange from the official transcript between myself and the full Bench as proof.

It begins at paragraph 12 of the transcript, 18th of March 2019. Deputy President Sams is presiding Commissioner and is speaking to me, the applicant, at the last appeal hearing on 18 March 2019:

This is the last appeal hearing before the full Bench produce their decision.

Me:    

I was hoping this would be a more substantive appeal. The full Bench could have had witnesses and materials produced which we were denied, so I just wanted to ask, why have I been restricted in this appeal?

Deputy President Sams:

Mr Lee, appeals are not usually used for the purpose of agitating the case below, including taking a witness' evidence. If you are successful in appeal, there's a number of courses that the full Bench can take, which may include a rehearing of your matter, and at that point is when the matter would be reagitated with witnesses. That's the reason.

Commissioner Gostencnik at paragraph number 20 reiterates this point:

And that's why you were denied your request to call further evidence.

This exchange categorically establishes, in the full Bench's own words, that the matter was never reheard. The full Bench rejected all my attempts to present evidence, and all my applications for a rehearing. Instead, the full Bench simply produced a new decision founded on the evidence gathered by the previous Commissioner, Commissioner Hunt.

The full Bench decision is current. It affects me to this day. It is built on Commissioner Hunt's hearing and evidence. I have appealed the full Bench decision in QUD356, but, appropriately, as Commissioner Hunt had a conflict of interest in hearing my matter in the first instance, I have applied to the Federal Court for a judicial review of her carriage. This request follows the failure of the full Bench and the President of the Commission to consider my apprehended bias complaint when it was raised there.

I have not sought to appeal or review Commissioner Hunt's decision. I have sought to have her conflict of interest in hearing my case reviewed by the Federal Court. This is appropriate, proper, and very much in the interests of justice.

The Federal Court cannot claim that I have won my case, because if I was employed by the same employer today, and I followed the same attempt to protect my privacy, I would still lose my job. The Commission has provided no protection to my job, nor my privacy. It has endorsed my sacking and the invasion of my privacy.

After being unfairly dismissed for protecting my privacy, I have been out of work for 21 months. That is $83,760 gross in lost wages. The Commission ordered the employer to pay me six months' lost wages: $24,117 gross. That is a net penalty a net loss to me, for protecting my privacy, of just under $60,000. Conversely, the employer has saved some $60,000 in wages that he was legally obliged, prior to my sacking, to pay me.

My loss is, then, and continues to be, my employer's gain. How anyone could claim that I have had the matter resolved in my favour is grossly misrepresenting the facts. It is a gross falsehood. And this is to ignore the time and money I have had to spend defending myself.

The court also claimed that I have not sought to review the full Bench decision, that in not paying the money back, I am somehow happy with its outcome. This is a disgraceful claim. I have taken every possible chance to appeal the full Bench's appalling decision, and roundly criticised it in the strongest possible terms, at every available avenue. I have appealed to the Federal Court itself in matter QUD356, and it's breathtaking that the court has somehow ignored an entire matter before it as evidence of my intent.

The court should remind itself of my originating application in matter QUD356/2019. This should be ample evidence of my attempt to have the full Bench decision reviewed. Indeed, my repeated attempts to challenge the full Bench decision both at the Commission and the Federal Court is proof that I have taken every chance to appeal, even at the risk of jeopardising this compensation payment.

If the court believes that I am happy with my remedy decision of $24,000 compensation, how does it explain that I have appealed this decision and argued it all the way to a full Bench remedy hearing, scheduled for 10 December 2019? I have risked this payment at every opportunity, proving time and again in both word and actions that the Federal Court's allegations against me area [sic] baseless.

(Transcript p 8-11)

25    On 6 February 2020, the primary Judge dismissed the applications in both proceedings. The primary Judge delivered ex tempore reasons for his Honour’s decision, then published in Lee v Fair Work Commission [2020] FCA 733. Those reasons are as follows:

1    Mr Jeremy Lee has filed two proceedings in this Court. Proceeding QUD 385 of 2019 sought judicial review of the decision of Fair Work Commissioner Hunt made on 1 November 2018. Commissioner Hunt’s decision dismissed Mr Lee’s unfair dismissal application ([2018] FWC 4762). The other proceeding, QUD 356 of 2019, sought relief under s 39B of the Judiciary Act 1903 (Cth) to quash the decision of the Full Bench of the Fair Work Commission made on 1 May 2019 ([2019] FWCFB 2946). That decision: upheld Mr Lee’s appeal against Commissioner Hunt’s decision; quashed that decision; determined that Mr Lee’s dismissal by Superior Wood Pty Ltd, his erstwhile employer, was unfair; and remitted the matter to Fair Work Commissioner Simpson to determine the appropriate remedy.

2    The brief details of the history of Mr Lee’s unfair dismissal application thereafter are as follows. On 22 July 2019, Commissioner Simpson determined, for the purposes of s 390(3) of the Fair Work Act 2009 (Cth) (the FWA), that reinstatement of Mr Lee was inappropriate and that Superior Wood should pay compensation to him in the amount of $24,117.08 (less tax) together with a 9.5% superannuation contribution ([2019] FWC 5095). That order was to come into effect on 22 July 2019 and was to be paid within 14 days. Mr Lee informed me at an earlier case management hearing that those monies had been paid to him. On 9 August 2019, Mr Lee lodged an application with the Fair Work Commission for permission to appeal Commissioner Simpson’s decision, under s 604 of the FWA. That application was granted by a Full Bench of the Commission on 2 October 2019. A second Full Bench appeal was then heard on 10 December 2019. The Full Bench’s decision following that hearing remains reserved.

3    Having regard to this background, I do not consider it is in any interest of justice, or consistent with the overarching purpose of civil litigation in Part VB of the Federal Court of Australia Act 1976 (Cth), to allow these proceedings to continue in this Court. In proceeding QUD 385 of 2019, the decision of Commissioner Hunt has been quashed and no longer has any effect. In proceeding QUD 356 of 2019, the decision of the Full Bench has been overtaken by subsequent events, namely, the hearing before Commissioner Simpson and the subsequent appeal from Commissioner Simpson’s decision to a second Full Bench.

current applications to this court

26    On 11 March 2020, Mr Lee filed an application for extension of time and leave to appeal in both proceeding QUD65/2020 and proceeding QUD66/2020. These are the applications currently before me.

27    The grounds of both applications are almost identical.

28    The grounds in proceeding QUD65/2020 are:

Extension of time

1.    I am a self-represented applicant with no prior experience of The Federal Court or its processes, procedures, deadlines, forms, and rules. I have received no legal aid, no financial or legal assistance.

2.    I do not know what the deadline for the appeal of a case management dismissal order is.

3.    If I have missed the deadline for submitting my application for leave to appeal, it is due to my inexperience and ignorance which can be wholly attributed to my self­representation. I seek some allowance of time from the Court as a result.

4.    I have had to:

a)    Attempt to understand what occurred

b)    Clarify without provision of transcript the Docket Judges reasons for dismissal

c)    Determine if an appeal is possible

d)    Attempt to confirm the most likely deadline date

e)    Decide on the appropriate appeal forms

f)    Draft, edit and collate the forms and documents in support of my application

5.    I have been out of work and, as a result of my unfair dismissal, without an employment income since February 2018 - some two years. My limited financial resources have cut down my had a dramatic impact on any failure to meet the submission deadline.

6.    I have endeavoured to submit my application with as little delay as possible.

7.    Bearing in mind the mitigating factors outlined above, I ask that the Federal Court waive the appeal deadline requirement and accept my application for consideration on its merits.

Appeal Grounds

8.     The Dismissal Order issued by Justice Reeves at Case Management on 6 Feb 2020 denied me the right to a fair, impartial, public hearing before a competent, independent and impartial tribunal. The right to a fair and public hearing is one of the central guarantees in relation to all legal proceedings and it has been denied in this case.

9.    The Federal Court is conflicted in dealing with this matter. Justice Reeves, in quashing this matter at Case Management, has acted in the interests of his colleague and associate Federal Court Justice Iain Ross who is implicated by it. This conflict of interest should not be allowed to enable the dismissal of this legitimate, important matter.

10.    The Court purposefully confused this matter with that of QUD356/2019 and falsified numerous accusations against myself to form the pretext for dismissal. All of the accusations made against the Applicant by Justice Reeves are wrong, and all of the assertions used by the Court to justify the dismissal order are false. The Applicant rejects them absolutely.

11.    The Respondent made NO application for dismissal and NO application to strike out the matter. These proposals were put to the Applicant by Justice Reeves on his own, independently of parties

12.    The dismissal of QUD385/2019 is a blatant abuse of process by the Court. The matter has the potential to dishonour a colleague and associate of Justice Reeves and the Court itself. However, the Court must allow the matters to be heard and it is the docket Judge's duty and responsibility to make sure that occurs. The Applicant submits this application to ensure QUD385/2019 is rightly progressed to hearing at trial.

(Errors in original.)

29    The grounds in proceeding QUD66/2020 are:

Extension of time

1.    I am a self-represented applicant with no prior experience of The Federal Court or its processes, procedures, deadlines, forms, and rules. I have received no legal aid, no financial or legal assistance.

2.    I do not know what the deadline for the appeal of a dismissal order at case management is.

3.    If I have missed the deadline for submitting my application for leave to appeal, it is due to my inexperience and ignorance which can be wholly attributed to my self­representation. I seek some allowance of time from the Court as a result.

4.    I have had to:

a)    Attempt to understand what occurred

b)    Clarify without provision of transcript the Docket Judges reasons for dismissal

c)    Determine if an appeal is possible

d)    Attempt to confirm the most likely deadline date

e)    Decide on the appropriate appeal forms

f)    Draft, edit and collate the forms and documents in support of my application

5.    I have been out of work and, as a result of my unfair dismissal, without an employment income since February 2018 - some two years. My limited financial resources have cut down my options have had a dramatic impact on my ability to meet any submission deadline.

6.    I have endeavoured to submit my application with as little delay as possible.

7.    Bearing in mind the mitigating factors outlined above, I ask that the Federal Court waive the appeal deadline requirement and accept my application for consideration on its merits.

Leave to Appeal Grounds

8.     The Dismissal Order issued by Justice Reeves at Case Management on 6 Feb 2020 denied the applicant the right to a fair, impartial, public hearing before a competent, independent and impartial tribunal. The right to a fair and public hearing is one of the central guarantees in relation to all legal proceedings and it has been denied in this case.

9.    The Federal Court is conflicted in dealing with this matter. Justice Reeves, in quashing this matter at Case Management, has acted in the interests of his colleague and associate Federal Court Justice Iain Ross who is implicated by it. This conflict of interest should not be allowed to enable the dismissal of this legitimate, important matter.

10.    The Court purposefully confused this matter with QUD385/2019 and falsified numerous accusations against the Applicant to form the pretext for dismissal. All of the accusations made against the Applicant are wrong, and all of the assertions used by the Court to justify the dismissal order are false. The Applicant rejects them absolutely.

11.    The Respondent made NO application for dismissal and NO application to strike out the matter. These proposals were put to the Applicant by Justice Reeves on his own, independently of parties

12.    The dismissal of QUD356/2019 at case management level is a blatant abuse of process by the Court. The matter has the potential to dishonour a colleague and associate of Justice Reeves and the Court itself. In view of this conflict, the Court has wrongly quashed the matter and ignored its duty. I submit this application to ensure the dismissal of QUD356/2019 is reversed and the matter is stayed as requested pending the outcome of QUD385/2019.

(Errors in original.)

30    In both proceedings Mr Lee annexed to affidavits filed on 11 March 2020 a Form 119, being a notice of objection to application being considered without oral hearing. The reasons for Mr Lee’s objection set out in that notice are virtually identical. The reasons in QUD65/2020 are as follows:

The appellant objects to this application for Extension of Time and Leave to Appeal being considered without oral hearing.

The Federal Court has so far refused to schedule the matter for hearing on false assertions, and tried to obscure and confuse the matter to misrepresent its intent, diminish its importance, and prevent it from being heard.

It would be inappropriate for the appeal of this summary dismissal to be determined behind closed doors. The matter needs to be heard in public at an oral hearing.

31    The only difference between these reasons, and those in the notice of objection annexed to Mr Lee’s affidavit in QUD66/2020, is that, in the reasons in the notice of objection in QUD66/2020, the word “schedule” in the second paragraph is replaced with “consider”.

32    In respect of these notices of objection I note that:

    They were filed as annexures to affidavits;

    They were in the form of Form 119, a statutory form referable to rr 35.20 and 36.43 of the Federal Court Rules 2011 (Cth) (Federal Court Rules);

    As is made plain by rr 35.20 and 36.43 of the Federal Court Rules, the statutory form Form 119 is for the use of respondents who object to hearings being determined on the papers; and

    Mr Lee is not a respondent.

33    In the interests of justice, however, I have treated these notices of objection as applications by Mr Lee for an oral hearing.

34    As matters have transpired, however, while I have at all times been prepared to conduct the hearings for the applications for extension of time and leave to appeal by way of oral hearing, I have ultimately ordered that they be determined on the papers. I will turn to my reasons for this decision after setting out the relevant procedural history of the present applications to date.

Relevant Procedural history

35    On 11 June 2020, a senior legal case manager in the Brisbane Federal Court Registry emailed Mr Lee, informing him that both matters had been listed for case management hearings on 2 July 2020 via Microsoft Teams. Microsoft Teams is a communication and collaboration platform that allows parties to appear before the Court via a video-link, to make oral submissions, and to see and hear the presiding Judge. Microsoft Teams is currently being utilised by the Federal Court of Australia to facilitate the continued operation of the Court during the COVID-19 pandemic in Australia. This is noted in the Special Measures Information Note (SMIN-1) issued by the Court, relevantly as follows:

1.2     Due to the COVID-19 pandemic, where appropriate and necessary, the Federal Court is modifying its practices in order to minimise in person attendance on Court premises, with the Court’s priority being the health and safety of the community, and in particular, parties, practitioners, judges and staff, and the families of all of these groups.

7.     ALL COURT LISTINGS AND EVENTS, INCLUDING HEARINGS AND MEDIATIONS

7.1     In order to remain open and operational, whilst protecting health, safety and wellbeing, the Court must work to limit in person attendance on Court premises.

7.2     To the extent possible, alternative arrangements will be put in place for all listings and events that would ordinarily require in person attendance. In particular, the Court will contact legal practitioners and parties to determine whether listings and events may be able to be conducted on the papers, by telephone or by other remote access technology.

7.3     If alternative arrangements are not able to be put in place for listings and events that would ordinarily require in person attendance, such listings and events will need to be vacated or adjourned other than in exceptional circumstances and with the express authorisation of the Chief Justice.

36    On 16 June 2020, the Federal Court issued a further Practice Note relating to special measures in response to COVID-19, entitled “Court Attendance (SMIN-4). That Practice Note relevantly states:

2.     IN-PERSON ATTENDANCE

 2.1     The health and safety of the community, judges and court staff is our priority.

2.2     As infection rates and government restrictions ease the opportunities for a limited return to in-person attendance in Court will increase.

2.3     The Court will continue to limit the number of people within the Court precinct to limit the spread of COVID-19. In addition, there will be physical distancing requirements and limits on the size of gatherings for all persons who are in attendance.

37    On 16 June 2020, and in reply to the email of 11 June 2020, Mr Lee emailed the Registry in the following terms:

Dear Registrar,

I do not consent to the hearing being conducted via Microsoft Teams.

38    On 17 June 2020, the senior legal case manager emailed Mr Lee in reply as follows:

Thank you for your email.

The Federal Court is presently conducting online hearings due to the restriction of in-person hearings during the COVID-19 pandemic. Microsoft Teams is a communication and collaboration platform that allows parties to appear before the Court via a video-link.

As noted in the guide that was provided to the parties, you do not need a subscription to Microsoft Teams in order to participate in a Teams hearing. You can participate in a Teams hearing using your web-browser on a computer. Further, if the parties do not have the facilities required to participate in a Teams hearing, the Court may be able to organise alternative arrangements.

Current restrictions mean that the parties cannot appear in person at the case management hearing of the above matters.

If the applicant is unable to participate in the case management of the above matters via Teams, could he please advise the Court of the reason for this.

39    On 18 June 2020, Mr Lee emailed the Registry in reply as follows:

Dear Registrar,

The Federal Court needs my consent to conduct the matter via Microsoft Teams.

I do not consent to have the matter heard via MS Teams.

The Federal Court is currently holding public court Hearings, in person.

40    On 22 June 2020, the senior legal case manager emailed Mr Lee in reply as follows:

Thank you for your email.

In-person attendance at Court is currently minimised and limited to cases where it is deemed essential.

Can the applicant please provide reasons why the case management at 9.00 am on Thursday, 2 July 2020, needs to be conducted in-person.

(emphasis in original)

41    On 26 June 2020, Mr Lee emailed the Registry in reply as follows:

Dear Registrar,

The Court is attempting to alter the hearing process from in-person to a Microsoft Teams/datalink.

To do so, the Court requires the consent of Parties. The Court has neither requested nor gained my consent.

I am the Applicant and I do not consent.

If the court requires the Applicant to provide a reason why the hearing should be conducted in-person, I have already provided it. I do not consent to a hearing using Microsoft Teams.

The Court's assertion that I am required to provide reason's [sic] for NOT altering the process, is a reversal. The burden of convincing parties to use Microsoft Teams is on the Court.

I request that Justice Collier hold the Case Management Hearing in-person, as is currently occurring in other matters at the discretion of the Court.

42    On 29 June 2020, the parties to the present applications were provided with the Teams link in an email from the senior legal case manager, which email relevantly stated:

I refer to the above matters and note that they are listed for case management at 9.00 am on Thursday, 2 July 2020.

Chambers notes that the applicant in both matters has indicated that he does not wish the case management to be conducted by Teams.

However, in the absence of the applicant providing reasons why the case management should be conducted in-person, her Honour has determined that the case management will proceed via Microsoft Teams.

Could the parties please provide draft case management orders, by consent if possible, by 4.00 pm on Wednesday 1 July 2020.

The Teams link for the case management hearing at 9.00 am on 2 July 2020 is below:

Join Microsoft Teams Meeting

+61 2 9161 1229 Australia, Sydney (Toll)

Conference ID: 602 679 089#

I have also provided the relevant conference ID and number for the dial-in function. The details for the dial-in function will also be provided in the listing of the matters on the Daily Court List to enable members of the public to listen to the proceeding.

The Teams link for the test meeting at 4.00 pm on 1 July 2020 is below:

Join Microsoft Teams Meeting

I have also attached the Chamber’s Guide to hearings via Teams for the benefit of the respondents.

43    Mr Lee made no appearance at the case management hearing on 2 July 2020 when the matters were called, though I understand he attended the court room in the Commonwealth Law Courts in Brisbane immediately prior to the hearing for the purpose of appearing in-person and, when the Court officer provided him with another Court room from which he could appear via Teams, declined to do so.

44    On 2 July 2020, and in the absence of either appearance or submissions by Mr Lee, I made the following case management Orders in each proceeding:

1.     Pursuant to rule 1.32 of the Federal Court Rules 2011 (Cth), proceeding QUD65/2020 and proceeding QUD66/2020 be heard together.

2.     All hearings associated with these proceedings be conducted via Microsoft Teams in accordance with the Practice Note headed “Special Measures in Response to COVID-19 (SMIN-4) Court Attendance”, published 16 June 2020 by the Federal Court of Australia.

3.     The applicant file and serve submissions, not exceeding 10 pages and in accordance with Practice Note APP2, and any further material on which he seeks to rely, in both proceedings by 4.00 pm on 17 July 2020.

4.     The applications for extension of time and leave to appeal, filed on 11 March 2020 in both proceedings, be listed for hearing for half a day at 10.15 am on 23 July 2020.

 5.     Liberty to apply.

45    On 13 July 2020, Mr Lee emailed the Registry as follows:

Dear Justice Collier,

The Court held the Case Management hearing of 2Jul2020 via Microsoft Teams despite my lack of consent. Consequently I have been denied the opportunity to attend.

I attended the court in-person, to ensure I was available in the event it was held in-person. I was told by staff the hearing was to be via MS Teams and no alternative was available. I left before the hearing began.

I ask for the opportunity to attend the case management hearing in-person.

Also, I do not consent to the scheduled hearing of 23Jul2020 being held via MS Teams and request an in-person hearing.

By not getting the consent of Parties to use MS Teams, the court is breaching the privacy of participants.

My case, which has come from the Work Commission, is all about privacy, ownership of biometric data and consent.

My employer attempted to take my biometric data without consent then sacked me for refusing to allow it.

Similarly, the Court ordering a hearing with MS Teams is a breach of parties' right to privacy.

The Court has taken an almost identical position to my employer's.

Please reschedule the 2Jul and 23Jul hearings to in-person hearing dates and notify me of the time.

46    From this correspondence, it appeared that Mr Lee’s key concern was his appearance by the videoconference technology, with the suggestion that his image and voice being captured was a breach of his privacy. On 13 July 2020, the senior legal case manager emailed Mr Lee in reply as follows:

Dear Mr Lee

The Court notes your correspondence of 13 July 2020.

The Court rejects your suggestion that you were denied an opportunity to attend the case management hearing of 2 July 2020. As is plain from your correspondence:

    You were aware of the hearing, but chose not to attend when the matters were called; and

 •    You have only raised privacy concerns in your most recent correspondence.

The decision whether to conduct a hearing in-person, or via Microsoft Teams, resides with the Judge. Your views have been taken into account, however:

    In the present circumstances involving the COVID-19 pandemic, all hearings of the Federal Court of Australia are conducted by Microsoft Teams unless a hearing in-person is considered essential;

    You have not provided adequate reasons for the hearing of your matter to be conducted in-person; and

    Your consent or otherwise to the matter being heard by Microsoft Teams is not a determinative factor.

Your matters are currently listed for hearing on 23 July 2020. If you are concerned about appearing via Microsoft Teams videoconference, you could apply to the Court for orders referable to options including the following:

    The hearing to be vacated, and the matters be determined on the papers, without any need for you to participate in a hearing;

    The hearing proceed on 23 July 2020, conducted by telephone via Microsoft Teams dial-in;

    The hearing be adjourned to a date in 2021 when the public health environment may cease to restrict in-person hearings to exceptional cases; or

    The matters be discontinued.

Otherwise, your applications in QUD 65 of 2020 and QUD 66 of 2020 remain listed for hearing on 23 July 2020, via Microsoft Teams videoconference.

47    In my view this email from the Registry was appropriate, and the options suggested to Mr Lee were reasonable.

48    On 15 July 2020, Mr Lee emailed the Registry in reply as follows:

Dear Judge Collier,

If Parties don't consent to use Microsoft Teams and you don't provide Parties an alternative to appearing via Microsoft Teams, then parties are not actually provided an opportunity to participate.

As is clear from my letters, I do not consent to appear via MS Teams.

However I did attend, and wanted to participate. I spoke with your associate and other court staff.

Because the court provided no alternative to appearance via Microsoft Teams, I left.

I have repeatedly asked for a public, in-person hearing to allow me to participate.

The suggestion:

You have not provided adequate reasons for the hearing of your matter to be conducted in-person;

- presumes that I need to provide reasons. I do not, as consent is voluntary.

Rather, the Court must gain the consent of parties for use of MS Teams, prior to assigning hearings via MS Teams.

Therefore, I wish to challenge the Court's assertion it can stipulate Hearings via Microsoft Teams, without the consent of all parties.

I apply to the Court for an in-person case management hearing to make up for the 2Jul2020 hearing I was denied. At the completion of that hearing I will also need time to prepare for a rescheduled 23Jul2020 Hearing.

Can you advise me if this letter is sufficient, or do I need to make a separate Federal Court Application?

(Emphasis in original.)

49    As a result of Mr Lee’s previous concerns about appearing via Microsoft Teams and his privacy, the matter was listed for a case management hearing by Telstra telephone conference on 16 July 2020. The senior legal case manager called Mr Lee on 15 July 2020 to ensure he was informed of that hearing.

50    On 15 July 2020, Mr Lee emailed the Registry as follows:

Dear Justice Collier,

You have not consulted with Parties before Listing the case management hearing via teleconference.

I do not consent to a Teleconference on 16Jul2020.

I want all hearings to be conducted in public (and all documents and transcripts to be made freely available to the public).

A hearing via teleconference is not a public hearing.

It is essential that my matters be heard publicly because the Court itself is an undeclared Party and has acted to prevent my matter(s) from getting a fair and public hearing.

Also, less than 24hrs notice is insufficient preparation time. I am self-represented and require more time to be available and prepare for a case management hearing.

I would like a weeks notice to prepare for a case management hearing.

My phone number was provided to Registry upon application to the Federal Court in good faith.

It was not provided to allow Judge Collier to schedule teleconference hearings rather than public hearings against my wishes.

I would like all records of my phone number held by the court to be deleted and not shared with any other entities.

I will not be available or willing to participate in tomorrows Listed teleconference and request the Court reschedule the Listing to a public in-person hearing in at least one weeks time.

51    In light of Mr Lee’s email, the case management hearing was vacated.

Determination on the papers

52    Mr Lee’s correspondence appears to proceed on his mistaken belief that Court hearings conducted via Microsoft Teams are not public hearings. Microsoft Teams has a dial-in function, whereby a person may dial the telephone number provided, type in the relevant conference ID and be granted access to the audio aspect of the Teams hearing. The telephone number and relevant conference ID for each proceeding are provided on the Daily Court List to enable members of the public to dial-in and listen to the proceedings should they choose to do so. This was specifically drawn to Mr Lee’s attention in the email of 29 June 2020.

53    That email of 29 June 2020 to Mr Lee also attached a guide to online hearings, an eight page document, adapted from the Federal Court’s “National practitioners and litigants guide to online hearings and Microsoft Teams (which was hyperlinked in the guide), which explained what Microsoft Teams was and how to participate in a hearing via Teams. The guide also explains that transcripts of the preceding are produced and available in the ordinary way.

54    As I have also noted, the current public health environment creating the need for the Federal Court to conduct most hearings via Microsoft Teams has been specifically drawn to Mr Lee’s attention.

55    In light of the correspondence with Mr Lee, on 16 July 2020, I made the following Orders:

 1.     Orders 2, 3 and 4 of the Orders of 2 July 2020 be vacated.

2.     The applications for extension of time and leave to appeal filed on 11 March 2020 in proceeding QUD 65 of 2020 and proceeding QUD 66 of 2020 be determined on the papers.

3.     The applicant file and serve submissions, not exceeding 20 pages and in accordance with Practice Note APP2, and any further material on which he seeks to rely, in both proceedings by 4.00 pm on 31 July 2020.

 4.     Judgment be reserved at close of business on 31 July 2020.

56    In particular, I note that Order 2 of these Orders constitutes a refusal to conduct the hearing of Mr Lee’s applications for extension of time and leave to appeal by oral hearing.

57    I made these Orders for the following reasons.

58    First, Mr Lee has indicated a strong preference for an oral hearing but only with his physical presence in the Court room.

59    It is undoubtedly desirable that proceedings be conducted orally in Court where parties and/or their legal representatives are physically present. Indeed, historically civil proceedings have been largely oral: see for example the discussion in Neil Andrews, English Civil Procedure (Oxford University Press, 2003) at 6.53-6.54. However, the current public health environment restricting in-person hearings means that the preferred manner of hearings being conducted via Microsoft Teams is appropriate.

60    Second, Mr Lee submitted that he had a “right” to an oral hearing, with him being physically present in Court, in both proceedings, and that the Court could not order his applications be determined on the papers without his consent. However, s 20A of the Federal Court of Australia Act 1976 (Cth) (Federal Court Act) provides:

20A Power of the Court to deal with civil matters without an oral hearing

(1)     This section applies in relation to any civil matter coming before the Court in the original jurisdiction of the Court.

(2)     The Court or a Judge may deal with the matter without an oral hearing (either with or without the consent of the parties) if satisfied that:

   (a)     the matter is frivolous or vexatious; or

(b)     the issue or issues on which determination of the matter depends have been decided authoritatively in the case law; or

(c)     determination of the matter would not be significantly aided by an oral hearing because:

(i)     there is no real issue of fact relevant to determination of the matter; and

(ii)     the legal arguments in relation to the matter can be dealt with adequately by written submissions.

(3)     This section does not limit subsections 20(4) and (6).

(Emphasis added.)

61    I am satisfied in accordance with s 20A(2)(c) of the Federal Court Act that there is no real issue of fact relevant to the determination of both matters, that the legal arguments in relation to both matters could be dealt with adequately by written submissions, and that the matters would not be significantly aided by an oral hearing. In particular, I note that:

    Mr Lee’s matters are not complex, being applications for extension of time and leave to appeal.

    Legal principles referable to consideration by the Federal Court of whether an extension of time and leave to appeal ought be granted are well settled: see for example BVG17 v BVH17 (2019) 268 FCR 448; [2019] FCAFC 17 and DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 127.

    If Mr Lee were granted the orders he currently seeks, he would be entitled to proceed with applications for judicial review of the decisions of the Fair Work Commission. No issue of fact requires determination in these matters.

    Mr Lee’s matters do not require credit findings in respect of witnesses, which could be a particular issue supporting an order that the hearing be in person.

    The respondents are taking no active part in these proceedings, thus the only submissions proposed in both proceedings are the submissions of Mr Lee. It follows that there is no suggestion that Mr Lee would not be in a position to answer submissions of the respondent (as there are no such submissions).

    Mr Lee is a litigant in person and, to that extent, could be at some disadvantage in framing comprehensive legal arguments. However, I also note that he has participated in proceedings in both this Court and the Fair Work Commission, and accordingly has some experience in making submissions in adjudicative proceedings.

    Insofar as I can ascertain from his correspondence and the transcripts of the hearing before the primary Judge, Mr Lee is competent in the English language. No reason has been advanced for him being unable to make written submissions, or to suggest that he is incapable of doing so.

62    Third, Mr Lee’s objections to a hearing not being conducted in public because the hearing would be conducted via Microsoft Teams do not, with respect, make sense in circumstances where (as I have explained) any member of the public can dial in to the hearing. In this respect, a hearing conducted via Microsoft Teams is a public hearing.

63    Fourth, if Mr Lee’s objections to appearing in Court via Microsoft Teams were because he feared that his biometric data (in the form of his image) would be captured, and thus his privacy breached, those objections do not, with respect, make sense, in circumstances where he could appear by audio over Microsoft Teams rather than by video.

64    Fifth, if Mr Lee’s primary concern is that his privacy would be breached by a hearing being conducted via Microsoft Teams (either by video or audio) and his biometric data (in the form of either his image or his voice) being captured, his refusal to appear in Court for a case management hearing ordered for 16 July 2020 by Telstra telephone conference does not, with respect, make sense. I note that a case management hearing by telephone is unremarkable, and indeed common in circumstances where litigants are unable for various reasons to attend Court in-person but wish to make oral submissions or otherwise be heard orally.

65    Sixth, if Mr Lee is concerned that there would be a breach of his privacy by the hearing being recorded, I note that any hearing involving Mr Lee would be automatically recorded, and the audio of the hearing retained by Auscript. Hypothetically, such audio recording could be made available, on proper application, to members of the public.

66    Seventh, in the email of 13 July 2020 from the senior legal case manager to Mr Lee, an option was put to Mr Lee that he could apply to have the proceedings adjourned until a date in 2021, when present restrictions on the conduct of hearings in the Court room may be eased and he could physically appear in Court. Mr Lee has made no such request or application.

67    Eighth, the Court has made numerous attempts to list the proceedings in a manner which permits Mr Lee to enter an appearance and make submissions, while seeking to progress the matter to a hearing. In my view, Mr Lee has been unco-operative. Rather, as is indicated by his correspondence with the Court, his demands of the Court have escalated, including, for reasons unexplained by Mr Lee, that all documents and transcripts be made available to members of the public, presumably free. I note that, as a general rule, and in light of the contractual arrangements in place between the Federal Court of Australia and Auscript, transcripts of Court proceedings are not freely available to either parties or members of the public. Transcripts of proceedings can, of course, be purchased from Auscript for a fee unless restrictions are placed on the availability of the transcript by the Court.

68    Ninth, s 37M(1) of the Federal Court Act provides that the overarching purpose of the civil practice and procedure provisions in the Federal Court Act is to facilitate the just resolution of disputes according to law, and as quickly, inexpensively and efficiently as possible. Further, s 37N(2) of the Federal Court Act requires the parties to a civil proceeding before the Court to conduct the proceeding in a way that is consistent with the overarching purpose. In circumstances where Mr Lee has made escalating demands of the Court and refused various practical means of having the proceedings heard in Court compatible with the present public health environment, Mr Lee has not discharged this obligation.

69    Finally, the Court has general powers to make orders it considers appropriate in the interests of justice: r 1.32 Federal Court Rules. Similarly, s 37P(2) of the Federal Court Act provides that a Judge may give directions about the practice and procedure to be followed in relation to the proceeding, or any part of the proceeding.

70    In circumstances where a publicly-conducted oral hearing via Microsoft Teams, or a hearing by Telstra telephone conference, has at all times been available and offered to Mr Lee by the Court, however, not acceptable to Mr Lee, I consider that the most efficient manner in which to determine his applications for extension of time and leave to appeal was by written submission.

71    I now turn to the material filed by Mr Lee in these applications.

affidavits filed by Mr Lee

72    Mr Lee filed affidavits in support of his applications in both proceedings.

73    In QUD65/2020 he filed an affidavit on 11 March 2020, deposing as follows:

1.     I am the Applicant and I make this Application for Extension of Time and Leave to Appeal from Justice Reeves' dismissal of matter QUD385/2019.

2.     The Order to Dismiss QUD385/2019 made by Justice Reeves at Case Management on 6 Feb 2020 denied the applicant the right to a fair, impartial, public hearing before a competent, independent and impartial tribunal.

3.     Matter QUD385/2019 was dismissed by Justice Reeves in an abuse of process on the basis of his own accusations against the Applicant.

4.     The Respondent made no application to dismiss the matter and no application to strike the matter out.

5.     To prevent the matter proceeding to trial, Justice Reeves made a Case Management order to dismiss it, ruling on his own assertions and accusations against the Applicant.

6.     Art.14 of The Australian Human Rights Commission Act 1986 (also Art.14 of the International Covenant on Civil and Political Rights (ICCPR) states that:

7.     All persons shall be equal before the courts and tribunals. In the determination of a ... [person's] rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.

8.     The right to a fair and public hearing is one of the central guarantees in relation to all legal proceedings. This right has been denied in this case.

9.     The Federal Court is the Applicant's only available avenue of Judicial Review from the Fair Work Commission. The dismissal of the Applicant's matter therefore quashes any opportunity for the Applicant's right to seek a Judicial Review of Fair Work Commissioner Hunt's conflict of interest.

10.     The Federal Court is conflicted in dealing with this matter. Justice Reeves quashing it before it has been heard, has acted in the interests of his colleague and associate Federal Court Justice lain Ross who is implicated by the matter.

11.     The Court is required to be impartial and proceedings must be free from bias, and the objective perception of bias. The Applicant raised the Court's conflict with the public interest in three separate case management hearings. Justice Reeves refused to acknowledge the conflict, and the appearance of bias.

12.     If allowed to proceed to trial, QUD385/2019 threatened to publicly expose Federal Court Justice lain Ross' conduct as President of the Fair Work Commission.

13.     Justice Reeves has quashed the matter at Case Management to prevent the examination of his colleague's conduct, and the potential dishonour that could bring to the Federal Court.

14.     The interests of judicial officers and the Court itself do not supersede the public interest. Each new authority which refuses to act transparently and impartially, merely compounds and reinforces the preceding misconduct.

15.    Dismissing matters to defend the reputation of Federal Court colleagues' is a blatant abuse of process and I submit this Application for Leave to Appeal so that my Application for Judicial Review may rightly progress to being heard and determined.

74    Annexed to this affidavit were the Orders of the primary Judge, the transcript of one of the case management hearings before the primary Judge, the draft notice of appeal, and some of Mr Lee’s submissions before the primary Judge.

75    In QUD66/2020 he filed an affidavit on 11 March 2020, deposing as follows:

1.     I am the Applicant and I make this Application for Extension of Time and Leave to Appeal from Justice Reeves' order to dismiss matter QUD356/2019.

2.     The Order to Dismiss QUD356/2019 made by Justice Reeves at Case Management on 6 Feb 2020 denied the applicant the right to a fair, impartial, public hearing before a competent, independent and impartial tribunal.

3.     Matter QUD356/2019 was dismissed by Justice Reeves in an abuse of process on the basis of his own accusations against the Applicant.

4.     The Respondent made no application to dismiss the matter and no application to strike the matter out. Justice Reeves made a Case Management order to dismiss it, ruling on his own assertions and accusations against the Applicant.

5.     Art.14 of The Australian Human Rights Commission Act 1986 (also Art.14 of the International Covenant on Civil and Political Rights (ICCPR) states that:

6.     All persons shall be equal before the courts and tribunals. In the determination of a ... [person's] rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.

7.     The right to a fair and public hearing is one of the central guarantees in relation to all legal proceedings. This right has been denied in this case.

8.     The Federal Court is the Applicant's only available avenue to appeal a Fair Work Commission Full Bench ruling. The dismissal of the Applicant's matter therefore quashes the Applicant's right to appeal.

9.     The Federal Court is conflicted in dealing with this matter. Justice Reeves, in quashing it, has acted in the interests of his colleague and associate Federal Court Justice lain Ross who is implicated by the matter.

10.    The Court is required to be impartial and proceedings must be free from bias, and the objective perception of bias. The Applicant raised the Court's conflict with the public interest in three separate case management hearings. Justice Reeves refused to acknowledge the conflict, and the appearance of bias.

11.     If allowed to proceed to trial, QUD356/2019 threatens to publicly expose Federal Court Justice Iain Ross' conduct as President of the Fair Work Commission.

12.     Justice Reeves has quashed the matter at Case Management to prevent the examination of his colleague's conduct, and the potential dishonour that could bring to the Federal Court.

13.     The interests of judicial officers and the Court itself do not supersede the public interest.

14.    Dismissing matters to defend the reputation of Federal Court colleagues' [sic] is a blatant abuse of process and the Applicant submits this Application for Extension of Time and Leave to Appeal so that his appeal from the Full Bench of the Fair Work Commission is affirmed by the Federal Court as a legitimate, right and proper matter to be heard and determined.

76    Annexed to this affidavit were the Orders of the primary Judge, the transcript of one of the case management hearings before the primary Judge, the draft notice of appeal, and some of Mr Lee’s submissions before the primary Judge.

77    It is plain that Mr Lee’s evidence in both proceedings is substantially the same. Fundamentally, Mr Lee stated:

    The primary Judge should not have summarily dismissed his applications; and

    The motive of the primary Judge in summarily dismissing his applications was to “protect” the President of the Fair Work Commission, who is also a Federal Court Judge.

submissions of mr lee

78    On 31 July 2020, Mr Lee provided common submissions in both QUD65/2020 and QUD66/2020. Mr Lee also provided submissions he had made before the primary Judge, dated 21 November 2019 and 6 February 2020. I note the submissions dated 6 February 2020 were also included in the affidavits filed in each proceeding on 11 March 2020.

79    Mr Lee submitted “an Overview” of his submissions as follows:

My Unfair Dismissal case at the Fair Work Commission is a nationally significant, precedent setting matter, involving the clash between employee’s ownership of their personal information and employer’s theft of it.

The Full Bench of the Work Commission lied to prevent a rehearing of the matter, which threatened to expose the willful, calculated theft of Australians’ personal information by governments and business.

The Commission as the Industrial arm of the Federal Court, has acted in concert with government and business to enable the collection and appropriation of Australians’ biometric data and personal information.

In Australia there has been no equivalent case to legally challenge this theft of Australians’ personal information by government agencies and employers.

Despite this, or maybe because of it, the Federal Court has refused my matter a hearing to censor it.

Delay, dishonesty and misdirection have been used to keep the matter from the public record.

The Court’s oversight of the Commission means that it is responsible for the misconduct and is embarrassed by it. For my case, the Court as “referee” is neither independent or impartial.

As a consequence, the legal process has been jettisoned in favour of suppression, as the Summary Dismissal of both my matters prior to Hearing is censorship.

If the Court and the legal system rebuffs the chance to observe my Case(s) it will be a missed opportunity to halt the invasion and appropriation of people’s privacy for capital gain.

80    Mr Lee further submitted, in summary:

    The primary Judge “refused to acknowledge the Court’s Conflict of Interest” and “ignored facts and reason”.

    The Federal Court had a conflict of interest because Commissioner Jennifer Hunt had a personal interest in ruling on his unfair dismissal, however, the President of the Commission had appointed the Commissioner to determine it, and therefore the President was complicit in the appointment of Commissioner Hunt to decide his case.

    The primary Judge had become an active, adversarial party to his matter, and allowed the Fair Work Commission to make submissions and attend case management “against Judicial probity”.

    The primary Judge was biased.

    The Fair Work Commission sought to block the progress of his matters prior to trial.

    The primary Judge allowed and insisted that the Fair Work Commission attend the case management hearing before the Court and make submissions. The primary Judge did not raise with the Fair Work Commission “or even ask them to apply to withdraw their Submitting Notice.”

    His matters were not frivolous as they “involve the Privacy rights of every Australian which is recognised by the UN Charter on Human Rights. The matters concern my right to a fair public Hearing, the independence of Commissioners and Australians’ right to privacy and control of their personal information.”

    The matters clearly stated a reasonable and necessary cause of action – progression to trial.

    The matters did not constitute an abuse of process because they were legitimate, significant, precedent-setting cases.

    The primary Judge erred in describing Mr Lee’s matters as seeking judicial review of the decision of Commissioner Hunt – rather, he sought judicial review of Commissioner Hunt’s conflict of interest.

    The primary Judge erred in ruling that the decision of Commissioner Hunt had been quashed and no longer had any effect. Rather, Commissioner Hunt’s conflict of interest continued to affect him, the matter was never re-heard, and issues of privacy, ownership and consent had not been admitted by the Fair Work Commission or the Court.

    The amount of compensation ordered by the Fair Work Commission was inadequate for his loss of employment and his loss of privacy.

    The primary Judge erred in finding that the Full Bench conducted a rehearing of his matter – there was no listing date, venue, witnesses testimony or attendance by parties, and no-one presided.

    He had followed the correct appeals process, and as the Federal Court is the court of appeal from the Fair Work Commissions, the Court was “obliged” to hear his applications for judicial review.

81    I note that some of Mr Lee’s submissions concerned the outcome of the Compensation Decision, which was overturned in the Second Full Bench Decision, and, more generally, the lack of appropriate compensation (or remedy), which I understand from the Second Full Bench Decision is still being litigated before the Fair Work Commission. Both decisions were also subsequent to the commencement of the proceedings in QUD356/2019 and QUD385/2019.

consideration

82    As the decision of the primary Judge was interlocutory in nature, leave to appeal is required. The Federal Court Rules, r 35.14 empowers the Court to grant an extension of time in which to seek leave to appeal.

83    As the majority of the Full Court observed in BVG17 v BVH17 (2019) 268 FCR 448; [2019] FCAFC 17:

30.    In the circumstances it [sic] appropriate for the Court to briefly consider principles relevant to extension of time and leave to appeal: see for example discussion of the Full Court in SZVCP v Minister for Immigration and Border Protection [2016] FCAFC 24; (2016) 238 FCR 15 at [13]-[16]

34.    In considering whether to order an extension of time in which to file a notice of appeal, the Court is required to determine whether an order in such terms is in the interests of justice. This ordinarily requires consideration of issues including the length and explanation for the delay, the nature of the litigation, the prejudice to other parties of a grant or refusal of an extension of time, and the prospects of success of the appeal if it proceeded: see AZAEY v Minister for Immigration and Border Protection [2015] FCAFC 193; (2015) FCAFC 193 at [10]-[12].

45.    The principles governing the grant or refusal of leave to appeal from an interlocutory judgment were explained in Decor Corporation Pty Ltd v Dart Industries Inc [1991] FCAFC 844; (1991) 33 FCR 397 at 398-399 and recently reiterated in Nationwide News Pty Limited v Rush [2018] FCAFC 70 at [3]. The first question is whether, in all the circumstances, the interlocutory judgment is attended with sufficient doubt to warrant it being reconsidered on appeal. The second question is whether substantial injustice would result if leave were refused, supposing the interlocutory judgment to be wrong.

See also DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 127 at [46]-[77].

84    In each set of proceedings, Mr Lee has filed an application in accordance with Form 118. Note 1 to rule 35.14 of the Federal Court Rules provides that the Court may grant an extension of time, and hear and determine the application for leave to appeal, at the same time. In Smits v Loel (No 3) [2015] FCA 77 Reeves J observed at [9]:

The application for extension of time to file an application for leave to appeal requires consideration of the prospects of success in the application for leave to appeal, which application, in turn, requires consideration of the prospects of success in the appeal. Given this, it follows that, in practical terms, both applications engage the former question; specifically, whether the primary judge’s decision is attended with sufficient doubt to warrant its being reconsidered by an appellate court: see Sharman License Holdings at [20] per Lindgren J.

(Emphasis added.)

85    In my respectful view this statement is correct, and applicable to the matters before me in circumstances where Mr Lee has filed combined applications for extension of time and leave to appeal in each proceeding. Accordingly, the key issues for determination before me in each proceeding are:

(1)    Whether an adequate explanation for the delay in seeking leave to appeal the decision of the primary Judge has been provided; and

(2)    Whether the primary decision is attended with sufficient doubt to warrant it being reconsidered by an appellate Court.

Issue 1: Whether an adequate explanation for the delay in seeking leave to appeal the decision of the primary Judge has been provided

86    The Court’s power to extend time is flexible and is designed to enable substantial justice to prevail over technical default: Marsden v R [2002] FCAFC 229 at [19]. The relevant factors to be considered by a Court in determining whether to grant an extension of time to appeal are well-established, namely:

(1)    whether there is an acceptable explanation for the delay;

(2)    the length of the delay;

(3)    the merits of the appeal; and

(4)    any prejudice to the respondent.

See, for example, Hunter Valley Developments Pty Limited v Cohen (1984) 3 FCR 344 at 348-349; [1984] FCA 176; Marsden v R [2002] FCAFC 229 at [19].

87    By reason of r 35.13 of the Federal Court Rules, Mr Lee had 14 days from the day that judgment was pronounced by the primary Judge, being 6 February 2020, to file an application for leave to appeal. Mr Lee filed his applications for extension of time and leave to appeal in both proceedings on 11 March 2020. Accordingly, he is approximately three weeks out of time. The length of the delay is relatively short.

88    The respondents in both proceedings before me have filed submitting notices. There is no evident prejudice to the respondents if an extension of time were to be granted.

89    Mr Lee’s explanation for the delay is partly based upon his being a litigant in person (see grounds 1 to 3 and 6 of his applications for extension of time and leave to appeal). Generally, a mere ignorance of time limits, without further justification, cannot provide a satisfactory explanation for the delay: SZSDA v Minister for Immigration and Citizenship (2012) 135 ALD 17; [2012] FCA 1319 at [38].

90    However, Mr Lee has also sought to explain the delay by reason of:

    His lack of employment for the past two years, resulting in limited financial resources, which have reduced his options;

    The time taken to determine if an appeal was possible; and

    The time taken drafting the appropriate forms and supporting documentation.

(See grounds 4 and 5 of his applications for extension of time and leave to appeal.)

91    Whilst borderline, considering the delay is short, the reason for the delay in the circumstances is acceptable.

92    For completeness, I also note that ground 7 of the applications for extension of time and leave to appeal is in the nature of a submission, rather a ground for extending time.

Issue 2: Whether the primary decision is attended with sufficient doubt to warrant it being reconsidered by an appellate Court

93    Consideration of the merits of the appeal, in practical terms, requires consideration of whether the primary decision is attended with sufficient doubt to warrant it being reconsidered: Smits v Loel (No 3) [2015] FCA 77 at [9].

94    In determining this issue, it is not appropriate to have regard to the applicant’s proposed grounds of appeal as though it was a final hearing of his appeal on the merits: Mentink v Minister for Home Affairs [2013] FCAFC 113 at [51].

95    At this stage, the merits should be assessed at a reasonably impressionistic level and should not transgress into a fuller consideration of the arguments for and against each ground: MZABP v Minister for Immigration and Border Protection (2016) 152 ALD 478; [2016] FCAFC 110 at [38]. Unless the appeal grounds are plainly hopeless, it follows that it could reasonably be said that the threshold of merit has been passed such that the matter should proceed to appeal: MZABP at [21]; DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 127 at [45]-[56] and [68].

96    In both proceedings, Mr Lee seeks leave to appeal the decision of the primary Judge, relying upon grounds 8 to 12 of his applications for extension of time and leave to appeal in each matter.

97    Turning now to these grounds I first note that, to the extent that in grounds 8 and 11 of each application Mr Lee seeks to claim that the primary Judge was not empowered to dismiss the proceedings and “[deny Mr Lee] the right to a fair, impartial, public hearing”, there is no merit to these grounds because his Honour clearly did have power to summarily dismiss each of the proceedings.

98    Contrary to Mr Lee’s contention, it was not incumbent on the respondents to apply for the dismissal, or strike out, of the proceedings before the primary Judge could make such orders. Rule 37P of the Federal Court Act relevantly provides:

37P Power of the Court to give directions about practice and procedure in a civil proceeding

(1)     This section applies in relation to a civil proceeding before the Court.

(2)     The Court or a Judge may give directions about the practice and procedure to be followed in relation to the proceeding, or any part of the proceeding.

(6)     In particular, the Court or Judge may do any of the following:

(a)     dismiss the proceeding in whole or in part;

(b)    strike out, amend or limit any part of a party’s claim or defence;

(c)    disallow or reject any evidence;

(d)    award costs against a party;

(e)    order that costs awarded against a party are to be assessed on an indemnity basis or otherwise.

(7)     Subsections (5) and (6) do not affect any power that the Court or a Judge has apart from those subsections to deal with a party’s failure to comply with a direction.

99    Also of relevance are s 23 of the Federal Court Act, and rr 1.32, 1.40 and 26.01(1)(a) of the Federal Court Rules. Section 23 of the Federal Court Act provides:

23 Making of orders and issue of writs

The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, and to issue, or direct the issue of, writs of such kinds, as the Court thinks appropriate.

100    Rule 1.32 of the Federal Court Rules provides:

The Court may make any order that the Court considers appropriate in the interests of justice.

101    Rule 1.40 of the Federal Court Rules provides:

Exercise of Court’s power

The Court may, at any stage of the proceeding, exercise a power mentioned in these Rules in the proceeding:

(a)     on its own initiative; or

(b)     on the application of a party, or a person who has a sufficient interest in the proceeding.

102    Rule 26.01(1)(a) of the Federal Court Rules provides:

Summary judgment

(1)     A party may apply to the Court for an order that judgment be given against another party because:

(a)     the applicant has no reasonable prospect of successfully prosecuting the proceeding or part of the proceeding; or

...

103    In relation to the undoubted power of the Court to summarily dismissed unmeritorious claims on its own initiative, I also note the decisions in Mulhern v Morgan [2017] FCA 1183 and Johnston v Judge Middleton [2019] FCA 966.

104    Second, to the extent that in ground 10 of each application Mr Lee seeks to claim that the primary Judge “purposely confused” the two proceedings, I note r 30.11 of the Federal Court Rules which provides:

Consolidation of proceedings before trial

If several proceedings are pending in the Court and the proceedings:

(a)    involve some common question of law or fact; or

(b)     are the subject of claims arising out of the same transaction or series of transactions;

any party to any of the proceedings may apply to the Court for an order that the proceedings be:

(c)     consolidated; or

(d)     heard together; or

(e)     heard immediately after one another; or

(f)     stayed until after the determination of any of the other proceedings.

105    It is again plain that the primary Judge had power pursuant to rule 1.40 of the Federal Court Rules to hear both proceedings together.

106    As noted in Walsh, Liquidator of D&R Community Services Pty Ltd (Receivers & Managers Appointed) (in liq) v Commissioner of Taxation [2018] FCA 1739, in considering r 30.11 of the Federal Court Rules:

18.    The precursor of r 30.11 under the former Federal Court Rules, O 29 r 5, was considered by Besanko J in Humphries v Newport Quays Stage 2A Pty Ltd [2009] FCA 699. His Honour at [11] in that case set out nine factors to be considered by the Court when making an order for proceedings to be heard together:

1.     Are the proceedings broadly of a similar nature?

2.     Are there issues of fact and law common to each proceeding?

3.    Will witnesses (lay and expert) in one proceeding be witnesses in one or more of the other proceedings?

4.    Has there been an alternative proposal put forward that there be a test case and have the parties agreed to abide the outcome, or, at least, the determination of common issues of fact and law?

5.    Is there a prospect of multiple appeals with substantial delays if the proceedings are not tried at the same time?

6.    Will there be a substantial saving of time if the proceedings are tried at the same time, compared with each proceeding being tried separately?

7.    Will an order that the proceedings be tried at the same time create difficulties in terms of trial management, complexity of procedural issues and difficulties in determining cross-admissibility of evidence?

8.    Is one proceeding further advanced in terms of preparation for trial than the others?

9.    Are there parties to one or some only of the proceedings who will be inconvenienced if all of the proceedings are tried at the same time?

107    In circumstances where:

    Both proceedings clearly related to the same substratum of facts involving Mr Lee’s employment claims before the Fair Work Commission;

    An appeal ground in QUD356/2019 before the primary Judge concerned the alleged failure of the Full Bench to properly deal with Mr Lee’s complaint of apprehended bias against Commissioner Hunt (which complaint was the subject of proceedings in QUD385/2019); and

    Allowing the matters to separately proceed clearly created the prospect of multiple appeals relating to the same matter,

it was logical and appropriate that the matters be heard together by the primary Judge.

108    Third, to the extent that in grounds 8 and 9 Mr Lee contended that the primary Judge had a conflict of interest, or was not impartial, the observation of the majority in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 in relation to the principles of apprehended bias is pertinent:

8.     The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.

(Emphasis added.)

109    Similarly, as the majority observed in Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20:

How the governing principle is to be applied

20.    The question whether a fair-minded lay observer might reasonably apprehend a lack of impartiality with respect to the decision to be made is largely a factual one, albeit one which it is necessary to consider in the legal, statutory and factual contexts in which the decision is made.

21.    The principle governing cases of possible bias was said in Ebner to require two steps to be taken in its application. The first requires the identification of what it is said might lead a decision-maker to decide a case other than on its legal and factual merits. Where it is said that a decision-maker has an “interest” in litigation, the nature of that interest must be spelled out. The second requires the articulation of the logical connection between that interest and the feared deviation from the course of deciding the case on its merits. As Hayne J observed in Jia Legeng, essentially the fear that is expressed in an assertion of apprehended bias, whatever its source, is of a deviation from the true course of decision-making.

23.    How the principle respecting apprehension of bias is applied may be said generally to depend upon the nature of the decision and its statutory context, what is involved in making the decision and the identity of the decision-maker. The principle is an aspect of wider principles of natural justice, which have been regarded as having a flexible quality, differing according to the circumstances in which a power is exercised. The hypothetical fair-minded observer assessing possible bias is to be taken to be aware of the nature of the decision and the context in which it was made as well as to have knowledge of the circumstances leading to the decision.

(Footnotes omitted.)

110    These principles are both well-known and settled.

111    In relation to Mr Lee’s proceedings, it is very clear that:

    Justice Ross did not hear or determine the FWC Decision, the First Full Bench Decision, the Compensation Decision or the Second Full Bench Decision.

    It was the resolution by Justice Ross (in his capacity as President of the Fair Work Commission) of Mr Lee’s complaint of bias on the part of Commissioner Hunt, by correspondence, that Mr Lee contended “implicatedJustice Ross, both in QUD356/2019 and QUD385/2019.

    Mr Lee claimed no relationship or connection between Justice Ross and the primary Judge other than both being Justices of the Federal Court of Australia.

    That relationship was said to give rise to an interest on the part of the primary Judge in preventing “potential dishonour” to the Federal Court.

    There is no articulation of the connection between the interest said to exist, and the possibility of the primary Judge departing from impartial decision-making.

112    It is very plain that no issues of bias arise in respect of the conduct of the primary Judge. In this respect, I note similar issues raised, and properly rejected, by a member of a Full Court holding an additional commission as President of the Administrative Appeals Tribunal in Luck v Secretary, Department of Human Services (2017) 72 AAR 219; [2017] FCA 540.

113    Fourth, to the extent that in grounds 8, 10 and 12 of the applications Mr Lee contended abuse of process or other impropriety associated with the primary Judge’s conduct of the proceedings, I consider there is no merit to these grounds.

114    It is evident from the transcript of the proceedings before the primary Judge that his Honour considered the proceedings to be an abuse of process. Principles relevant to dismissing a proceeding as an abuse of process were helpfully summarised in Quall v Northern Territory [2009] FCA 18 as follows:

100.    First, it is convenient to identify the relevant principles on abuse of process. The concept of abuse of process is founded on the same underlying concerns as res judicata and issue estoppel, viz the concern a person should not be troubled twice for the same cause and public policy concerns in the finality of litigation: see Spalla at [64] and [67] per French J. However, the concept is not limited by reference to those doctrines. Thus, even though the earlier proceedings did not give rise to a res judicata or an issue estoppel, eg because the parties or their privies to the two sets of proceedings were not the same, an attempt to re-litigate an issue that has already been disposed of in other proceedings, may constitute an abuse of process: see Sea Culture International Pty Ltd v Scoles (1991) 32 FCR 275 (Sea Culture) at 279 per French J, Walton v Gardiner (1993) 177 CLR 378 (Walton) at 393–394 per Mason CJ, Deane and Dawson JJ, Coffey v Secretary, Department of Social Security (1999) 86 FCR 434 at [25] per von Doussa, Branson and Sundberg JJ, Spalla at [66]–[67] per French J and Brock v Minister for Home Affairs [2008] FCAFC 165 at [74] per Lindgren and Tracey JJ.

101.    The Court is empowered under O 20 r 4 to stay or dismiss a proceeding where it is considered to be an abuse of process. However, as with the summary dismissal of court proceedings in general, this power is to be exercised very sparingly and only in exceptional circumstances: see Sea Culture at 279 per French J and Djaigween v Douglas (1994) 48 FCR 535 at 545 per Carr J. The circumstances in which abuse of process may arise are “extremely varied” and are not limited to “fixed categories”: see Rogers v R (1994) 181 CLR 251 at 255 per Mason CJ, Sea Culture at 279 per French J, Spalla at [63] and Batistatos at [15] and [49]. Thus, the concept of abuse of process may extend to prevent the waste of judicial resources and include, as a consideration, the necessity of maintaining confidence in, and respect for, the authority of the courts: see Spalla at [69] per French J. So, too, an attempt to litigate an issue that ought reasonably to have been litigated in earlier proceedings: see Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 and Spalla at [59]. Finally, the concept may apply to allow proceedings to be struck out that can be clearly seen to be foredoomed to fail: see Walton at 393 per Mason CJ.

102.    In State Bank of NSW v Stenhouse (1997) Australian Torts Reports 81-423 at 64,098, Giles CJ emphasised the importance of the particular circumstances that apply in determining whether it is an abuse of process to re-litigate an issue in subsequent proceedings. His Honour set out a non-exhaustive list of matters relevant to the determination whether an abuse of process was occurring. This non-exhaustive list of matters was adopted by French J in Spalla at [70]. The non-exhaustive list is as follows:

(a)    the importance of the issue in and to the earlier proceedings, including whether it is an evidentiary issue or an ultimate issue;

(b)    the opportunity available and taken to fully litigate the issue;

(c)    the terms and finality of the finding as to the issue;

(d)    the identity between the relevant issues in the two proceedings;

(e)    any plea of fresh evidence, including the nature and significance of the evidence and the reason why it was not part of the earlier proceedings; all part of—

(f)    the extent of the oppression and unfairness to the other party if the issue is relitigated and the impact of the relitigation upon the principle of finality of judicial determination and public confidence in the administration of justice; and

(g)    an overall balancing of justice to the alleged abuser against the matters supportive of abuse of process.

(Citations omitted.)

115    His Honour plainly dismissed both proceedings because:

    Mr Lee had been successful in prosecuting his proceedings in the Fair Work Commission;

    Mr Lee sought to reagitate the findings of the First Full Bench which had been given effect by subsequent determinations of the Fair Work Commission, namely the Compensation Decision and the Second Full Bench Decision;

    Mr Lee’s wish to pursue alleged bias on the part of Commissioner Hunt was pointless where the decision allegedly tainted by the Commissioner’s alleged bias had been set aside in the First Full Bench Decision; and

    Mr Lee’s arguments for seeking to prolong the proceedings against the respondents completely lacked merit.

116    There is absolutely no material before me which supports a finding that that the Federal Court had “falsified numerous accusations” against Mr Lee “to form the pretext of dismissal” as he claims in ground 10.

117    Finally, I note for completeness that Mr Lee complained that the primary Judge had, in the course of case management, allowed the respondents in each proceeding to make submissions and attend case management contrary to the principle in R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13; [1980] HCA 13. This issue was not the subject of a ground of appeal in either proceeding before me. In any event, I note that the only respondents to Mr Lee’s applications were the Fair Work Commission and Commissioners. In this context, I note the following orthodox statement of principle by the High Court in Fagan v Crimes Compensation Tribunal (1982) 150 CLR 666 at 681-682; [1982] HCA 49:

In this case the Tribunal appeared by counsel as respondent to contest the appellant's case. Where curial proceedings arise out of a matter which is contested between parties appearing before a tribunal, it is not ordinarily appropriate for the tribunal to appear to contest the curial proceedings brought by one of the parties before it (Reg. v. Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13, at pp 35-36). But where the proceedings before the tribunal are not inter partes, and where the Attorney-General cannot or does not intervene to represent the public interest … and neither a law officer nor a public official is heard by the court … it may be desirable that the tribunal should appear by counsel to make such submissions as it thinks calculated to assist the court and, in an appropriate case, to argue against the applicant's case. That is what was done in this case. Here, the Tribunal's function was to determine whether and to what extent a claimant was entitled under statute to a payment out of public moneys. Though the Tribunal was bound to act impartially, it was in a sense the guardian of the moneys appropriated by Parliament to answer the proper claims for compensation under the Act. In proceedings to review its decision, the Tribunal properly represents the public purse, and it was right that the Tribunal should appear by counsel as a party to respond substantially to the application.

(Emphasis added, citations omitted.)

118    It is apparent that submissions of the respondents to the primary Judge were at the request of the Court, to assist the Court, in accordance with the well-recognised exception to the Hardiman principle.

119    In my view, there is no merit to Mr Lee’s current arguments before me concerning the disposition of these matters by the primary Judge.

conclusion

120    The applications for extension of time and leave to appeal filed in both proceedings should be dismissed.

I certify that the preceding one hundred and twenty (120) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier.

Associate:

Dated:    21 August 2020

SCHEDULE OF PARTIES

QUD 66 of 2020

Respondents

Fourth Respondent:

DEPUTY PRESIDENT GOSTENCNIK