Federal Court of Australia

Lim v Flinders University of South Australia [2022] FCA 1361

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s application for an extension of time to appeal, filed on 8 July 2021, is refused.

2.    Costs of the application are reserved.

3.    If there be no application for costs made under s 570 of the Fair Work Act 2009 (Cth) on or before 3 November 2022, the parties are to bear their own costs.

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

REASONS FOR JUDGMENT

(Revised from the transcript)

CHARLESWORTH J

1    The applicant, Dr Hazel Lim, was employed by the Flinders University of South Australia (the University) from late 2016 to early 2017. Her employment contract provided for a three month probationary period. The University determined not to continue Dr Lim’s employment beyond the probationary period. Dr Lim commenced proceedings in the formerly named Federal Circuit Court of Australia alleging that the University contravened the Fair Work Act 2009 (Cth) (FW Act) both in respect of the termination of her employment and in respect of various actions of the University preceding its decision. By an order made on 31 March 2021, the primary judge dismissed Dr Lim’s application:  Lim v Flinders University of South Australia (No 2) [2021] FCCA 614. In accordance with r 36.03 of the Federal Court Rules 2011 (Cth), the period in which to commence an appeal from the judgment expired on 28 April 2021.

2    Rule 36.05 of the Rules confers a power on this Court to extend the period in which an appeal may be commenced, if it is satisfied that it is in the interests of justice to do so.

3    On 27 October 2022, I heard submissions from the parties, both as to the application for an extension of time in which to appeal and submissions with respect to the substantive merits of the proposed appeal so that, if an extension of time were to be granted, the appeal may be immediately determined.

4    Upon hearing the parties, I concluded that the application for an extension of time should be dismissed, and I so ordered. Reasons for that order were delivered orally on that day. Dr Lim has since been provided with a transcript of the reasons as delivered orally.

5    The parties were informed that written reasons for the order would follow and I now publish those reasons. As foreshadowed to the parties at the time that the order was made, the written reasons that follow will not contain any conclusions inconsistent with those expressed in the reasons delivered orally. However, they do provide more information by way of factual background, summaries of the submissions advanced at the hearing and some additional reference to legal principle.

Background

6    Dr Lim appeared self-represented at the hearing and has at all times been self-represented in this Court. I have interpreted her submissions and documents beneficially, having regard to her lack of legal assistance. Dr Lim made forthright and genuine attempts to assist the Court to apprehend the case she advanced on the proposed appeal. It nonetheless remains that the proposed grounds of appeal appear to impugn every adverse factual finding contained in the comprehensive reasons for judgment of the primary judge.

7    Of significance in the resolution of the case below was the circumstance that Dr Lim’s employment contract provided for a three month probationary period. In that period, it remained open to the employer to bring an end to the employment contract without demonstrating that there had been a breach on the employee’s part.

8    At the end of a probationary period, in the ordinary course, an employer needs to make a decision about whether the employment should continue beyond that period, after which the employer is not at liberty to terminate the employment contract other than in accordance with its terms. Usually, but not always, termination before the end of the term of the contract might require a conclusion of misconduct on the part of the employee, but that was not the case here.

9    Dr Lim was employed in the position of a Senior Research Fellow at a classification level referred to in the evidence as B6. It is not disputed that in the early months of 2017, the University made requests and imposed requirements on Dr Lim, including deadlines for the completion of certain work. Those requests and requirements to some extent were opposed and resisted by Dr Lim, including because she considered that they were neither lawful nor reasonable, or both. Dr Lim asserted that she had various rights and to some extent she exercised or purported to exercise them. At first instance, she characterised those rights as “workplace rights” as that expression is defined in the FW Act. Dr Lim’s arguments that were the asserted rights in fact fell within the statutory description was one of the multiple matters considered by the primary judge and, in significant part, rejected by him.

10    Dr Lim alleged that the University contravened the Flinders University Enterprise Agreement (the EA), with a resulting contravention of s 50 of the FW Act. She also alleged multiple contraventions of s 340 of the FW Act (the adverse action claim). Section 340(1) is contained in Div 3 of Pt 3.1 of Ch 3. It provides:

(1)    A person must not take adverse action against another person:

(a)    because the other person:

(i)    has a workplace right; or

(ii)    has, or has not, exercised a workplace right; or

(iii)    proposes or propose not to, or has at any time proposed or proposed not to, exercise a workplace right; or

(b)    to prevent the exercise of a workplace right by the other person

11    The phrases “workplace right” and “adverse action” are defined in s 341 and s 342 of the FW Act, relevantly as follows:

341  Meaning of workplace right

(1)    A person has a workplace right if the person:

(a)    is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or

(b)    is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or

(c)    is able to make a complaint or inquiry:

(i)    to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or

(ii)    if the person is an employee—in relation to his or her employment.

…

342  Meaning of adverse action

(1)    The following table sets out circumstances in which a person takes adverse action against another person.

…

(2)    Adverse action includes:

(a)    threatening to take action covered by the table in subsection (1); and

(b)    organising such action.

…

12    At trial, for the purposes of the adverse action claim, Dr Lim had the benefit of the presumption in s 361 of the FW Act. It provides:

361     Reason for action to be presumed unless proved otherwise

(1)    If:

(a)    in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and

(b)    taking that action for that reason or with that intent would constitute a contravention of this Part;

it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.

(2)    Subsection (1) does not apply in relation to orders for an interim injunction.

13    The reasons of the primary judge identify in some detail the issues arising at trial as he understood them to be. His Honour’s identification and helpful organisation of the issues arising on the adverse action claim is not challenged by Dr Lim. His Honour’s summary reveals that Dr Lim asserted that she had exercised no less than 24 workplace rights and that the University had taken no less than 19 adverse actions against her. She alleged that the University had contravened s 340 of the FW Act by a multiple of combinations of the rights and actions.

14    At trial (and for the purposes of the appeal) it is not disputed that the decision to dismiss Dr Lim and a recommendation for her dismissal were each “adverse actions”.

15    Various individuals were joined as additional respondents on the basis that they were said to be knowingly involved in the contraventions alleged against the University.

16    The University’s case was that the decisions that adversely affected Dr Lim and the employment relationship were based on its assessment (through its relevant decision-makers) that Dr Lim was, among other things, unable to work or incapable of working with her funding supervisor, and that her conduct in the workplace had given rise to unnecessary hostility and tension between her and the staff that she had interactions with. The University’s evidence in that critical respect was accepted by the primary judge.

17    The primary judge concluded that a number of actions taken by the University did not meet the description of an adverse action. His Honour otherwise concluded that Dr Lim had not exercised or proposed to exercise a work place right, or that the adverse actions that had been taken by the University were not taken because Dr Lim had exercised a workplace right as she had alleged, or a combination of those things.

The application for an extension of time

18    The originating application in this Court was eventually lodged for filing on 8 July 2021. That followed an unsuccessful attempt by Dr Lim to file the action in another registry of the Court a short time earlier, the date of which is uncertain. I am informed, and it is not disputed, that the respondents were not made aware of the intention of Dr Lim to commence an appeal until on or around 4 August 2021, when Dr Lim made an inquiry about whether or not the respondents’ solicitors were authorised to accept service. The time for commencing an appeal by that time had well passed.

19    Rule 36.05 of the Rules provides that a party who wants to apply for an extension of time within which to file a notice of appeal must file an application in accordance with Form 67, accompanied by an affidavit briefly stating the facts on which the applicant relies and why the notice of appeal was not filed within time.

20    The principles guiding the exercise of the Court’s discretion to extend the time to appeal are well established. They are not to be approached as fixed and inflexible rules. As I have mentioned, the power might be exercised if the Court considers it to be in the interests of justice to extend the time. As the Full Court said in Porter v Ghasemi (2021) 286 FCR 556 (at [40]):

…  In all cases there must be a proper basis for the extension and therefore an acceptable explanation for delay. The Court will take into account any prejudice to the respondent and the merits. In most instances the Court undertakes a rough and ready assessment of the merits in considering whether to grant leave. It does so for the reasons explained in Jackamarra v Krakouer (1998) 195 CLR 516.  … the degree to which there is close consideration of the merits will depend on the circumstances.  …

21    The Full Court continued that (at [41]):

Leave to appeal will only be granted where an applicant can demonstrate that the orders in question are attended by sufficient doubt that reconsideration on appeal is warranted and that substantial injustice would result if the orders were left uncorrected:  Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397.

22    Among the relevant factors listed by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 (at 348) are:

1.    Although the section does not, in terms, place any onus of proof upon an applicant for extension an application has to be made. Special circumstances need not be shown but the court will not grant the application unless positively satisfied that it is proper so to do. The ‘prescribed period’ of twenty-eight days is not to be ignored (Ralkon Agricultural Co. Pty Ltd v. Aboriginal Development Commission (1982) 43 A.L.R. 535 at 550). Indeed, it is the prima facie rule that proceedings commenced outside that period will not be entertained (Lucic v. Nolan (1982) 45 A.L.R. 411 at 416). It is a pre-condition to the exercise of discretion in his favour that the applicant for extension show an ‘acceptable explanation of the delay’ and that it is ‘fair and equitable in the circumstances’ to extend time (Duff at 485; Chapman v. Reilly unreported (Federal Court of Australia, Neaves J., 9 December 1983) at 7).

2.    Action taken by the applicant, other than by making an application for review under the Act, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished. A distinction is to be made between the case of a person who, by non-curial means, has continued to make the decision-maker aware that he contests the finality of the decision (who has not ‘rested on his rights’:  per Fisher J in Doyle v Chief of Staff (1982) 42 A.L.R. 283 at 287) and a case where the decision-maker was allowed to believe that the matter was finally concluded. Compare Doyle, Chapman, Ralkon and Douglas v. Allen (1984) 1 F.C.R. 287 with Lucic at 414-415 and Hickey v. Australian Telecommunications Commission (1983) 48 A.L.R. 517 at 519. The reasons for this distinction are not only the ‘need for finality in disputes’ (see Lucic at 410) but also the ‘fading from memory’ problem referred to in Wedesweiller v. Cole (1983) 47 A.L.R. 528.

3.    Any prejudice to the respondent including any prejudice in defending the proceedings occasioned by the delay is a material factor militating against the grant of an extension:  see Doyle at 287, Duff at 484-485, Hickey at 525-527 and Wedesweiller at 533-534.

4.    However, the mere absence of prejudice is not enough to justify the grant of an extension:  Douglas, Lucic at 416, Hickey at 523. In this context, public considerations often intrude (Lucic, Hickey). A delay which may result, if the application is successful, in the unsettling of other people (Ralkon at 550, Becerra at 12-13) or of established practices (Douglas) is likely to prove fatal to the application.

5.    The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted:  Lucic at 417, Chapman at 6.

23    The delay in the present case cannot be regarded as insignificant.

24    After the expiry of the time in which to appeal had passed, the successful party in the proceeding at first instance should be entitled to proceed on the basis that she or he has the benefit of the judgment, especially where an intention to commence a belated appeal has not been made known. In and of itself, that circumstance constitutes a form of prejudice to the respondent parties. However, I do not have evidence before me that the respondents would otherwise be prejudiced in the presentation of their defence of the appeal. I take that circumstance into account and afford it substantial weight.

25    On the basis of the material before me, I find that Dr Lim formed an intention to appeal from the judgment of the primary judge very soon if not immediately after its delivery, and yet she did nothing to convey her intention to the respondents as the deadline for commencing the appeal came and went.

26    Dr Lim’s explanation for the delay is set out in an affidavit filed on 8 July 2021. There it is said (at [6]) that the appeal was not commenced “by the due date for various reasons which I did not have control over”. Dr Lim then goes on to refer to the circumstance that she had to move house by 8 April 2021. She then says, at [6(b)]:

I also had to attend to and take conclusion a matter relating to a barrister who briefly worked for this case Lim v Flinders University. The work occupied virtually the entire month of April 2021, in the middle of sorting out accommodation.

27    At [6(c)], Dr Lim says that she contacted more than 10 lawyers in different states to see if she could get help lodging the notice of appeal in time, but they either did not have the capacity or they gave her estimates of costs that were beyond what she could afford. She asserts that she is the only person in her family who has a full-time job, that her husband works odd jobs, and that because of their low family income, she could only ask for legal services from lawyers who would accept payment plans. Dr Lim also refers to deaths in her family (an uncle on her father’s side and another uncle on her mother’s side in Manila in May 2022), and she refers to earlier deaths occurring in January 2021 and February 2021.

28    Dr Lim referred to the circumstance that she shares caring responsibilities for her elderly and health impaired mother, who lives with her. Dr Lim says that she fell ill for around two weeks in May 2019, which I take to mean a reference to 2021. She annexes to her affidavit a medical certificate covering the days of 5 to 7 May 2021. The nature of the illness is not specified in the certificate. Dr Lim asserts that she was still not feeling well outside of the period of the medical certificate, but needed to continue to work to maintain her income.

29    Dr Lim goes on to say that she could only work evenings on weekdays to prepare the requisite documents. She then goes on to refer to the number of errors of fact and law in the judgment that she says were so significant that the notice of appeal ended up being around double the length of the 105-page judgment of the primary judge. She is correct in respect of the length of the document. She then says (at [6(i)]):

When I rang the Federal Court of Australia, regarding being not able to file the Notice of Appeal in time, I was advised to just request for time-extension (Form 67), complete an affidavit (Form 59), and submit these two documents with the Notice of Appeal when I am finished with writing the Notice of Appeal.  …

30    The explanation provided by Dr Lim is to be considered in the context that she was not represented by a lawyer at the time that the judgment was delivered. Indeed, she was self-represented for much of the proceedings before the primary judge. I have placed considerable weight on that circumstance.

31    However, notwithstanding her status as a self-represented litigant, Dr Lim was plainly aware of the time by which an appeal must be commenced from the judgment. I consider it reasonable to infer from the material before me that Dr Lim understands the need to utilise court forms and the methods by which documents can be filed in the Court in order to commence a proceeding. I do not consider that her status as a self-represented litigant rendered her unable to understand those essential processes or to understand the existence of the timeframe by which the appeal should be commenced.

32    Dr Lim’s reference to a task that she had to undertake with a barrister involved in the proceedings at first instance raises more questions than it answers. The task was said to have consumed the whole of April. However, her evidence on that topic is vague. There is no evidence about the nature of the work that had to be done. Dr Lim does not explain why that work should have taken priority over meeting the deadline for commencing an appeal. The circumstance of having to move home did not seem to deprive Dr Lim of the time for resolving whatever issue there was with the barrister. I consider that aspect of her explanation remains ill-defined. It relates to the critical period of the whole of April 2021. I do not consider Dr Lim’s explanation to be adequate to cover that important period of time.

33    The life circumstances referred to by Dr Lim must, of course, be taken into account. However, in my view, they could not reasonably present an obstacle to there being a notice of appeal filed within the requisite period, or even in a fairly short timeframe afterwards such that the extension of time would not have presented such a problem for her. That is so even if the notice of appeal did not specify all of the grounds that Dr Lim might seek to advance, and even if the notice did not express the grounds to a standard of perfection or at the length that she might have preferred.

34    The evidence that Dr Lim attempted to contact 10 lawyers is not disputed. However, I do not consider it was reasonable for Dr Lim to expect that she could secure legal representation on terms that were affordable to her in time to properly brief that incoming lawyer with all of the issues so as to have a notice of appeal prepared by that lawyer and lodged in time. I do not consider it was reasonable for Dr Lim to await the outcome of those inquiries before she commenced the work herself.

35    I take into account Dr Lim’s caring responsibilities, but I also take into account that they are shared with her husband. Dr Lim does not explain why her husband could not attend to some caring responsibilities for the time that it would have taken to at least get a notice of appeal alleging broad categories of error filed within the prescribed timeframe.

36    I consider that one of the principal factors explaining the delay is Dr Lim’s choice to prepare a 200 page notice of appeal and her perception that no other document could or should be filed until that work was complete.

37    In her oral submissions, she said that she “just wrote and wrote and wrote, ending up with 200-page appeal on notice”. I must of course have regard to the complexity of the issues arising on the judgment appealed from. However, it remains that Dr Lim made a positive choice to delay the commencement of these proceedings until she had drafted a very long document. I do not consider it reasonable for her to have formed the view that such a document would be necessary in order to commence the appeal. All litigants should have regard to the rules of the Court, and I consider that Dr Lim would have become familiar with that requirement in the first instance proceedings. The requirement was to file a notice of appeal that briefly stated the grounds of appeal upon which she relied. As Dr Lim said, the notice of appeal was longer than the judgment itself. There is no evidence that Dr Lim gave any consideration to filing a briefer document. There was an element of choice in the time that she took to prepare it.

38    I also infer, from the manner in which the proceedings were conducted at first instance, that Dr Lim was aware that the grounds upon which she might seek to rely in a legal proceeding might be amended, and more than once. Her originating process at first instance was amended a number of times. That reinforces my view that a conscious decision was made by Dr Lim to continue drafting notwithstanding the expanding delay beyond the prescribed deadline.

39    I have taken into account the existence of a medical certificate stating that Dr Lim was unfit for work for a short time in May 2021, and I do not have regard to the three days to which the medical certificate relates.

40    The affidavit evidence concerning the inquiry Dr Lim made of Registry is lacking in the necessary detail in order for it to be given much weight in her favour. The affidavit goes no further than to state that Dr Lim made an inquiry of the Registry about what to do because she was not able to complete the notice of appeal in time, and that she was told that the proper forms to file were those constituting an application for an extension of time and a supporting affidavit. From the bar table, Dr Lim asserted that she was told by Registry staff not to worry about the missing deadline but to file the document as soon as she could do so. However, evidence to that effect is not contained in her affidavit, and I have no regard to her submission about it. I do not consider, in any event, that there could be a reasonable basis for Dr Lim to expect that the advice to use the form and to file the supporting affidavit constituted any reassurance emanating from the Court that it was in any way excusable to take the time that she took before filing the documents.

41    Whether there is an adequate explanation for the failure to commence the appeal does not admit of a simple yes-or-no answer. I do not accept the submission that the matters asserted in the explanation for the delay were all matters that were beyond Dr Lim’s control, although some of them do have that character. As I have said, weight may be given to her living circumstances, particularly her responsibilities for caring for her mother and the circumstance that she had to move house in April 2021. Circumstances of that kind might have warranted a grant of an extension of time without a considerable argument if the extension that was sought was more in the nature of two weeks rather than two months or more. There is an adequate explanation for some part of the delay, however the remaining period is not adequately explained. The unexplained portion of the delay weighs against the grant of an extension of time and, I consider, heavily so. It cannot be in the interests of justice to grant an extension in respect of a period for which there is no adequate explanation for the delay.

42    That weighs against the exercise of the discretion to extend the time.

Prospective merits

43    It is relevant to have regard to the apparent merits of the proposed appeal. The inadequacy of the explanation and the prospective merits interrelate. Given the inadequacy for some part of the delay, it is not the case that I must grant an extension of time if I consider that some of the grounds or one or more of the grounds are merely arguable. The grounds of appeal in all appellate proceedings should be at least arguable.

44    I will not extract the grounds of appeal here. They are lengthy. It is not unfair to say that Dr Lim takes issue with nearly every conclusion of fact and law contained in the detailed reasons of the primary judge. Those reasons contain, from [12] to [15], a summary of the case as his Honour understood it to be. Dr Lim has not made a submission to the effect that his Honour has misunderstood the manner in which her claim was advanced, the workplace rights relied upon, the adverse actions relied upon, and how the alleged contraventions were said to have been established.

45    His Honour has helpfully set out the workplace rights in a table at [12], the adverse actions in a table in [13], and the alleged contraventions in [14], with numberings of the contraventions and the alleged adverse actions that conveniently align. After setting out the statutory provisions and other background, the primary judge then gives a factual narrative of events occurring from the commencement of Dr Lim’s employment in December 2016 through to the termination of her employment. That is done in a chronological fashion under the headings that set out the dates upon which the relevant events occurred. Importantly for present purposes, the primary judge made findings that were based, at least in part (and in some cases in significant part), on the impressions that he formed of the witnesses and the manner in which they gave their evidence.

46    Very briefly summarised, the primary judge set out in his reasons the impressions made by the witnesses Professor Chew, Associate Professor Ganesan, and other witnesses called by the respondents.

47    The primary judge said this, of the impressions he formed of the applicant (at [156]):

I did not find the applicant to be an impressive witness. She was not attempting to mislead the Court. However, her evidence both in her affidavits and oral evidence, demonstrated that she was impervious to any opinion or view of the facts which was inconsistent with her own, irrespective of how misconceived her position was on any matter. As the respondents submitted, she had a tendency to conflate issues in her own mind. She operated at all relevant times under a fundamental misconception of the operation and meaning of the FUEA and the nature of her workplace rights.  …

48    His Honour went on to say:

Her presentation and the content of her evidence reflected her tendency to become frustrated, agitated and upset which served to entrench her views on matters even further.  …

49    The primary judge said that tendency had blurred Dr Lim’s ability to give an objective account of events. He stated that he did not regard Dr Lim to be a reliable witness.

50    In considering the prospective merits of the grounds of appeal, it is necessary to have regard of the role of the appellate court. An appeal to this Court under s 24 of the Federal Court of Australia Act 1976 (Cth) is an appeal by way of a rehearing. The Court is to apply principles that explain and confine the role of a court on an appeal of that kind. Those principles are explained by the High Court in Fox v Percy (2003) 214 CLR 188 and more recently in Lee v Lee (2019) 266 CLR 129. In Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Monash Freeway Widening Case) [2022] FCAFC 59, the Full Court summarised the authorities as follows:

39    This Court’s appellate jurisdiction is conferred under s 24 of the Federal Court of Australia Act 1976 (Cth). The appeal is in the nature of a rehearing. The principles concerning the content of the obligation to conduct an appeal of that nature are well established.

40    In Devries v Australian National Railways Commission (1993) 177 CLR 472 the majority (Brennan, Gaudron and McHugh JJ) said (at 479):

More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against — even strongly against — that finding of fact. If the trial judge’s finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge ‘has failed to use or has palpably misused his advantage’; or has acted on evidence which was ‘inconsistent with facts incontrovertibly established by the evidence’ or which was ‘glaringly improbable’.

(footnotes omitted)

41    Their Honours cited Jones v Hyde (1989) 63 ALJR 349 and Abalos v Australian Postal Commission (1990) 171 CLR 167.

42    In Fox v Percy (2003) 214 CLR 118 Gleeson CJ, Gummow and Kirby JJ emphasised that Devries, Jones and Abalos did not constitute a departure from established doctrine, but were simply ‘a reminder of the limits under which appellate judges typically operate when compared with trial judges’. Their Honours continued (at [27]):

The continuing application of the corrective expressed in the trilogy of cases was not questioned in this appeal. The cases mentioned remain the instruction of this Court to appellate decision‐making throughout Australia. However, that instruction did not, and could not, derogate from the obligation of courts of appeal, in accordance with legislation such as the Supreme Court Act applicable in this case, to perform the appellate function as established by Parliament. Such courts must conduct the appeal by way of rehearing. If, making proper allowance for the advantages of the trial judge, they conclude that an error has been shown, they are authorised, and obliged, to discharge their appellate duties in accordance with the statute.

43    Their Honours emphasised that the mere fact that a trial judge had reached a conclusion favouring the witnesses of one party over those of another did not and could not prevent the appellate court from performing the functions imposed upon it by statute. As their Honours explained:

28    …  In particular cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge’s conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings.

29    That this is so is demonstrated in several recent decisions of this Court. In some, quite rare, cases, although the facts fall short of being ‘incontrovertible’, an appellate conclusion may be reached that the decision at trial is ‘glaringly improbable’ or ‘contrary to compelling inferences’ in the case. In such circumstances, the appellate court is not relieved of its statutory functions by the fact that the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must ‘not shrink from giving effect to’ its own conclusion. Finality in litigation is highly desirable. Litigation beyond a trial is costly and usually upsetting. But in every appeal by way of rehearing, a judgment of the appellate court is required both on the facts and the law. It is not forbidden (nor in the face of the statutory requirement could it be) by ritual incantation about witness credibility, nor by judicial reference to the desirability of finality in litigation or reminders of the general advantages of the trial over the appellate process.

(footnotes omitted)

44    More recently, in Lee v Lee (2019) 266 CLR 129 the High Court concluded that the Court of Appeal of the Supreme Court of Queensland had shown a degree of deference to the judgment of a trial judge that was not in accordance with principle, and so had failed to discharge its statutory function. The majority (Bell, Gageler, Nettle and Edelman JJ) criticised the Court of Appeal’s treatment of the trial judge’s advantage, articulated in this concluding observation of McMurdo JA (with emphasis added by the High Court):

This factually complex case was very closely balanced. The task of this Court is to rehear the case, but not without regard to the decision of the trial judge. Although there were limitations upon the use which the judge could make of the way in which the appellant and his mother gave their evidence, it is not demonstrated that the trial judge misused the advantage which he had from hearing and seeing this evidence as it was being given. The decision of the trial judge was neither ‘glaringly improbable’ nor ‘contrary to compelling inferences’. The appellant’s careful and sometimes forceful arguments do not demonstrate that the decision of the trial judge was erroneous.

45    See Lee v Lee (2018) 84 MVR 316 at [152]; Lee at [53].

46    In Lee, the majority said (at [55]):

A court of appeal is bound to conduct a ‘real review’ of the evidence given at first instance and of the judge’s reasons for judgment to determine whether the trial judge has erred in fact or law. Appellate restraint with respect to interference with a trial judge’s findings unless they are ‘glaringly improbable’ or ‘contrary to compelling inferences’ is as to factual findings which are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence. It includes findings of secondary facts which are based on a combination of these impressions and other inferences from primary facts. Thereafter, ‘in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge’.  …

(footnotes omitted)

47    The majority went on to conclude that the findings challenged on the appeal were not findings that were likely to have been affected by impressions about the credibility of witnesses formed as a result of the trial judge seeing and hearing the witnesses giving their evidence. The majority continued (at [56]):

…  It was an error for the Court of Appeal to dismiss the appeals in this ‘very closely balanced’ case on the footing that the trial judge’s decision was neither glaringly improbable nor contrary to compelling inferences. It was the duty of the Court of Appeal to decide for itself which of the two hypotheses was the more probable. It was the duty of the Court of Appeal to persist in its task of ‘weighing [the] conflicting evidence and drawing its own inferences and conclusions’ and, ultimately, to decide for itself which of the two hypotheses was the more probable. It did not. The appellant’s second ground is made good.

(original emphasis, footnote omitted)

48    The judgment in Lee emphasises the importance of recognising when an occasion for the appellate restraint discussed in Fox v Percy properly arises and when it does not. The plurality confirmed that the relevant advantage to which the appellate court should ordinarily defer is the advantage of the trial judge enjoyed by virtue of being in a position to form impressions about the credibility and reliability of witnesses ‘as a result of seeing and hearing them give their evidence’ (at [55]).

(original emphasis)

51    In the present case, there are many findings of the primary judge that were not based on his assessment of the credibility of witnesses, including the characterisation of the correspondence that passed between the parties. The words of the correspondence speak for themselves, and this Court (on an appeal) would be in just as good a position to make its own assessment about their meaning and how they should be characterised. Likewise, it is for this Court to make its own assessment as to how the EA should be interpreted. There is no requirement that this Court defer to the view expressed by the primary judge in respect of those issues.

52    The primary judge approached the various allegations by reference to “issues” in his judgment. I consider it helpful to adopt the same approach in assessing the merits of the grounds of appeal. One of those issues was identified as the “Form A issue”, the other the “Authorship issue”. Crudely summarised, the Form A issue takes its name from a form referred to in the EA in the context of annual performance review processes for academic staff. A form known as Form A is to be used in that process. At trial, there was a dispute between the parties about whether or not the University was obliged under the EA to work with Dr Lim to jointly complete and execute such a form for the purposes of identifying to Dr Lim the key components and expectations of her, and particularly expectations of her work output during the early weeks of her employment. The University took a different view about the interpretation of the EA than that asserted by Dr Lim. That disagreement was one that was unfolding in the workplace as the relevant events occurred, with Dr Lim asserting the Form A must be completed and the University asserting otherwise.

53    The Authorship issue relates to policies within the University that protect the intellectual property and moral rights of academic staff. The policies guard against the misappropriation of that intellectual property and work product of staff and students, including misappropriation by more senior staff. It is correct to say that academic staff within the University have workplace rights, being rights of the kind contained in the EA and, in addition, in the policies concerning intellectual property rights. The case turned, however, on the interpretation of those documents that confer those rights, and the time in which those rights might arise and be asserted.

54    To a large extent, the issues turned not only on the existence of the asserted workplace rights but on the manner in which Dr Lim asserted them, both in respect of the Form A issue and the Authorship issue.

55    As I have mentioned, under the legislative scheme, Dr Lim had the benefit of a presumption that the University’s reasons for proven adverse actions were (or included) the circumstance that Dr Lim had exercised the particular workplace rights that she had alleged in her claim. The presumption was such that if the University gave no evidence about its reasons, the requisite connection between those two things would have been established under the legislative scheme.

56    However, the University did give evidence about its reasons for taking the various actions upon which Dr Lim relied. Not surprisingly, the primary focus was on the reasons for the recommendation and decision to dismiss Dr Lim, because it was the act of dismissal that was said to give rise to her considerable claims for financial remedies.

57    The person who recommended that Dr Lim be dismissed was Professor Chew. The effect of his recommendation was that Dr Lim’s employment not continue beyond the probationary period specified in the employment contract. The primary judge found that Professor Chew gave his evidence in a considered and spontaneous manner, and considered him to be an impressive witness. Some of the evidence given by Professor Chew is set out in the Reasons at [138] and [139], including this:

I saw no attempt on Ms Lim’s part to try to rectify the deficiencies in her performance during her employment. By way of an indicative example, Ms Lim’s obstinate refusal to allow work she claimed to have completed to be reviewed by either Associate Professor Ganesan or myself not only created an obstacle to the progression of Associate professor Ganesan’s research project, but also gave rise to unnecessary hostility and tension between Ms Lim and most of the staff she interacted with.

58    There was a dispute at trial as to the extent to which Dr Lim had refused to allow her supervisors to review work that she had claimed to have completed, but for the present purposes, not a great deal turns on that. The critical issues were whether Professor Chew should be believed in the reasons that he advanced for the dismissal of Dr Lim, and also whether his reasons included any one of the prohibited reasons under the FW Act.

59    If it was shown that Dr Lim exercised a workplace right by refusing to provide her completed work for review, then the evidence of Professor Chew would not have been sufficient to discharge the University’s onus. That is because his evidence would disclose a confusion in his mind between obstinacy on her part and her exercise of a workplace right. He would have wrongly equated what was a genuine conflict arising in the workplace whereby Dr Lim was asserting rights as a character problem or incapacity on her part to work collaboratively with other staff. There is no obligation on a University staff member to work collaboratively in circumstances where to do so might constitute an infringement of his or her workplace rights. I remain alert to that possibility in assessing Dr Lim’s various challenges to the reasoning of the primary judge.

60    I turn now to the submissions made by Dr Lim on the present application. Again, I approach the submissions having regard to her status as a self-represented litigant. The submissions in respect of the merits of the proposed appeal did little more than re-agitate the submissions that would or could have been made before the primary judge. Dr Lim re-agitated the case advanced below, rather than taking the Court to the reasons why that case was rejected, or explaining where appealable error might lie. It has not been demonstrated that the findings of the primary judge were not reasonably open to him to make, having regard to the assessment that he had made of the witnesses and the principles discussed in Fox v Percy.

61    When asked to take this Court to the incontrovertible evidence that contradicted the findings of the primary judge, in most cases, the Court was taken to correspondence that Dr Lim had authored during the time of the relevant events whereby she was making contemporaneous assertions as to states of affairs as she asserted them to be. The effect of her submissions was that those assertions should have been accepted as correct by the primary judge. The difficulty is that the content of her assertions during the course of her employment were issues that were very much in contention at the trial, and indeed during the course of the employment relationship. Accordingly, I do not consider that the evidence to which she took the Court could properly be regarded as incontrovertible.

62    I have had regard to Dr Lim’s submissions with respect to the proper interpretation of the EA and policies concerning both performance review processes and the protection of intellectual property. As I have mentioned, Dr Lim asserted an entitlement to have the University prepare (in collaboration with her) and to sign a document titled “Form A”, such that she should be consulted before the expectations of her role were fixed. It is not in dispute that on 31 January 2017, Associate Professor Ganesan sent an email communication to Dr Lim setting out the expectations in the early months or weeks of her employment, including the fixing of deadlines for specified tasks. He did not do that by utilising a form of the kind that Dr Lim said should have been used.

63    The primary judge held that the “Form A” was a form that was intended to be used during an annual performance review process and not one that was to be used by reference to a probationary employee; that is, it was not a form that had to be used as the mechanism by which the initial expectations of the new employee were to be fixed. I do not consider there to be merit in the allegation that there is appealable error in that conclusion, especially having regard to clause 2.4 of the EA. Read against the relevant parts of the EA as a whole, it is clause 2.4 that provides the mechanism by which a new employee is, in the first instance, to be apprised of the expectations of his or her employment. The Form A procedure arises at the time of an annual performance review, which by its very name indicates that there has been work performed that is capable of being assessed and reviewed.

64    Accordingly, whilst Dr Lim, both at her trial and during the course of her employment, asserted that she had a workplace right to have a Form A completed as the means of fixing her workload, that submission should be rejected. She was wrong about that at the time of her employment, and I do not consider that there is an arguable basis to contend that the primary judge erred in so finding. Unfortunately, the circumstance that Dr Lim was wrong (and her conviction that she was right) resulted in her engaging in certain conduct that the University viewed most dimly indeed. It was the University’s case on the evidence (which the primary judge accepted) that there was a reluctance by Dr Lim to participate in team meetings and to disclose her work during the course of those meetings and that she was motivated in that respect at least in part by her agitation of the Form A issue.

65    As to the Authorship issue, it was Dr Lim’s case that she had undertaken considerable work with respect to academic writings and that she was entitled to the protection of University policies concerning intellectual property rights with respect to her academic output. She is correct in that regard. However, the case that was agitated at trial (and for that matter during the course of her employment) was that the University should complete a form relating to contribution and attribution of intellectual property rights at the time that she asserted it should – that is, before the completion of a paper and, importantly, before she would be willing to provide copies of her work to others.

66    Dr Lim’s evidence at trial, as evidenced from the transcript, and as reiterated in submissions before me, makes it plain that she was gravely concerned that her intellectual property rights would not be observed. That may or may not be a justified concern, but the issue arising at trial, and indeed during the course of employment, was what Dr Lim was entitled to do and say about that concern.

67    The primary judge found (at [133]) that during the course of a meeting referred to as the second performance review meeting (at which the witnesses Ms Dawson-Howard and Professor Chew were present) that:

… the applicant took issue with the validity of the apparent concerns with respect to her work performance.  …

68    More critically, his Honour found that (at [133]):

…  She refused to report on the status of her work or to provide evidence of work she had completed.  …

69    His Honour continued:

…  On the applicant’s case, she invited Chew to look at her work on the two laptops she had brought with her to the meeting but she concedes that she did not provide him with an electronic or hard copy of the work she had done. Chew declined to review her work on the laptops.  …

70    His Honour observed that:

133    …  The respondents’ case is that the applicant’s firm position was that she wanted to be attributed as the sole author of the research paper with respect to which she was analysing statistical data which had been provided to her by Ganesan. Her evidence was that she wanted to be the lead author.

134    On Chew’s version, he took issue with the applicant’s view as to the application of academic authorship guidelines and advised that he did not agree that she should be granted sole authorship. The applicant maintained her position as to sole authorship and Chew advised that they had reached an ‘impasse’.  …

71    The primary judge ultimately found that Professor Chew’s reasons for dismissing or recommending the dismissal of Dr Lim were genuinely held and that there was no connection between those reasons and the exercise of a workplace right. His acceptance of Professor Chew’s evidence as to what occurred at the meeting was based on his assessment of Professor Chew as an impressive witness.

72    Dr Lim was afforded about three hours to present her case on the present application, although there were some interruptions by the Court to clarify aspects of her submissions. In that time, Dr Lim did not put forward a basis on which it could be held that the acceptance of Professor Chew’s reasons for so acting was contrary to incontrovertible evidence or glaring inferences or that otherwise would overcome the threshold for interference by this Court on an appeal with respect to the critical decision about Dr Lim’s dismissal.

73    In addition, the primary judge concluded that it would not constitute adverse action for an employer in the University’s position to commence a process by which it might inquire whether the performance of a probationary employee was such as to justify a decision not to continue the employment relationship. That particular matter is one that this Court on appeal can and should decide for itself. However, I do not consider that Dr Lim has reasonable grounds for establishing that there could be error in the finding of the primary judge in respect of that issue.

74    In having regard to whether or not the grounds of appeal have sufficient merit to warrant the extension of time, I should not be understood to express a firm conclusion or final conclusion that the grounds should or should not be upheld. That is not my task on an application for an extension of time.

75    A considerable hurdle faced by Dr Lim is that even if she could establish that the primary judge had made error in certain parts of his reasoning, it would be necessary for her to establish that that error was sufficient to justify the grant of the relief sought on the appeal. The difficulty for Dr Lim in that regard is that there were a number of elements to the contraventions that she alleged at first instance. As I have said, in some respects the primary judge found that certain conduct that Dr Lim asserted was the exercise of a workplace right did not meet the statutory definition of that phrase in the FW Act. In light of those findings, it was not necessary for the primary judge to find whether or not adverse action was connected with the asserted right.

76    In other respects the primary judge found that the actions alleged by Dr Lim to be adverse actions were not properly to be characterised as adverse actions as defined in the FW Act. There are two species of such findings, as I understand his Honour’s judgment. One of them is of the kind that I have earlier mentioned, namely, that the act of inquiring into the performance of a probationary employee was not an adverse action in and of itself. Of course, if a performance concern was initially raised because of an activity by an employee constituted of the exercise or proposed exercise of a workplace right, that might put a different complexion on things.

77    The second species of finding related to the content of correspondence passing between the University and Dr Lim. It was Dr Lim’s case at trial that some of the correspondence sent to her by other University employees, and particularly Associate Professor Ganesan, constituted actions variously described as harassment, or threatening, bullying or intimidating behaviour. The primary judge had regard to the content of the communications and rejected the contention that the communications had those qualities. I have had regard to the same correspondence, and have independently formed the same view as the primary judge. I do not consider that the applicant, if granted an extension of time to appeal, would have reasonable prospects of persuading another judge otherwise.

78    Similarly, with respect to an issue as to whether or not the work expectations of Dr Lim were impossible to achieve (as she alleged at trial), the primary judge assessed the evidence on that question and made findings about it. I was not taken in the course of submissions to evidence that would enable this Court on appeal to conclude that a different finding could or should have been made on the same evidence. The primary judge on that issue accepted the evidence of the University employees, and those findings were based in part on the impressions that those employees had on him when giving oral evidence at trial.

79    I have had careful regard to an allegation advanced on the proposed notice of appeal to the effect that the primary judge failed to afford Dr Lim procedural fairness. That allegation was founded, in part, on the circumstance that at the commencement of the trial, Dr Lim found herself without a lawyer (although she had been self-represented, as I understand it, for a good deal of the pre-trial stage). When the trial commenced, the primary judge granted Dr Lim’s lawyers leave to withdraw. I have not been taken to evidence that might inform any assessment as to why that leave was granted. Dr Lim sought an adjournment on the basis that her lawyers had ceased to act at short notice.

80    The requirement to afford procedural fairness does not necessarily require that an adjournment be granted in order to enable a litigant to obtain legal representation. The power to grant an adjournment is discretionary. An appeal court may only interfere with the exercise of the discretion in accordance with the principles discussed in House v The King (1936) 55 CLR 499. The primary judge had regard to case management principles and to the disadvantage and expense that would be suffered by the respondent parties if an adjournment were to be granted. I do not consider Dr Lim has reasonable prospects of succeeding on her complaint that the discretion miscarried.

81    The refusal of the adjournment nonetheless created a circumstance where special obligations arose to assist Dr Lim in the presentation of her case as a self-represented litigant. Dr Lim has not taken this Court to evidence to show that those particular obligations were not complied with by the primary judge in the course of the trial. She alleged that she felt at a disadvantage in presenting her case. Having regard to her position relative to the legally represented and well-funded respondents, that is an understandable feeling on her part. Nonetheless, lawyers were eventually engaged by her and appeared for her for some part of the trial. That created an opportunity for any prior rulings to be reversed on the application of Dr Lim via her newly appointed lawyers, thereby, ameliorating any disadvantage that might previously have been suffered by Dr Lim by virtue of her self-represented status in the earlier stage of the trial.

82    Moreover, as to the disadvantages expressed by Dr Lim in those early stages, it has not been established that she has an arguable case that her self-represented status resulted in any ruling or decision or other circumstance that resulted in a practical injustice in the conduct of the trial. In that regard, I asked Dr Lim about the content, for example, of the evidence of Dr Hennenberg, upon which she wanted to rely. The trial judge ruled that evidence inadmissible whilst Dr Lim was unrepresented. On the submissions made by Dr Lim on the present application, I am not satisfied that his Honour erred (even on an arguable basis) in ruling that evidence inadmissible, principally because Dr Lim did not take me to it to demonstrate that there was a proper basis for its admission.

83    Finally, I have had regard to the circumstance that the evidence of Professor Chew was not subject to cross-examination. It was critical evidence. It was submitted by the respondents that the primary judge, in effect, would have been obliged to accept Professor Chew’s evidence because it was not put to him that the explanation that he gave was wrong or untrue or disingenuous or otherwise challenged. The primary judge, however, did not base his judgment or his assessment of Professor Chew’s evidence on the circumstance that it was not challenged in cross-examination by Dr Lim. Dr Lim has not demonstrated that her failure to cross-examine Professor Chew (including any failure to put to him that the Court should not accept his explanation), has not resulted in any arguable practical injustice, assuming that the failure came about because of the refusal to grant an adjournment or her self-represented status. The reasons of the primary judge disclose that he had regard to the whole of the evidence in asking himself whether Professor Chew should be believed.

84    I do not consider the grounds founded on procedural fairness enjoy sufficient prospects of success to warrant the grant of an extension of time, having regard to my findings about the inadequacy of the explanation for a good part of the delay in commencing these proceedings.

85    Nor do I consider that there is a reasonable basis for finding that the primary judge committed error in concluding that the University’s evidence concerning its reasons for dismissing Dr Lim should be accepted.

86    It should be emphasised that the cause of action commenced by Dr Lim was founded on the general protections obligations and breach of the EA. Dr Lim did not bring a claim founded on unfair dismissal. She cannot succeed on this application by demonstrating that the primary judge ought to have found that her dismissal was unjust or unfair. That was not the case before the primary judge. The judgment at first instance dealt thoroughly with the causes of action that were alleged. There is insufficient merit in all of the grounds of appeal to warrant the grant of an extension of time in which to appeal, especially given the inadequacies in Dr Lim’s various explanations for the delay.

Associate:

Dated:    27 October 2022

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