FEDERAL COURT OF AUSTRALIA

Zirk-Sadowski v University of New South Wales (No 3) [2024] FCA 515

ORDERS

THE COURT ORDERS THAT:

1.    The Applicant’s Amended Originating Application dated 22 June 2023 be dismissed.

2.    The First Respondent, within 7 days of these orders, file written submissions as to costs not exceeding 5 pages.

3.    The Applicant, within 14 days of these orders, file written submissions as to costs in reply not exceeding 5 pages.

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

REASONS FOR JUDGMENT

ANDERSON J:

INTRODUCTION

1    By his Amended Originating Application dated 22 June 2023 (AOA), the Applicant applies under s 39B(1A)(c) of the Judiciary Act 1903 (Cth) to this Court for review of the following three decisions of the Fair Work Commission (FWC):

(a)    C2022/3039 – Dr Jan Zirk-Sadowski v The University of New South Wales [2022] FWC 2086 (Primary Decision);

(b)    C2022/5233 — Jan Zirk-Sadowski v The University of New South Wales [2022] FWCFB 188 (Confidentiality Appeal Decision); and

(c)    C2022/5546 – Dr Jan Zirk-Sadowski v The University of New South Wales T/A The University of New South Wales Sydney, the University of New South Wales Canberra at the Australian Defence Force Academy [2022] FWCFB 211 (Extension Appeal Decision).

2    In the Primary Decision, Commissioner Yilmaz:

(a)    gave reasons for an ex tempore decision on 5 July 2022 to not issue directions under s 593(3) or s 594 of the Fair Work Act 2009 (Cth) (FW Act) to prohibit the publication of the Applicant’s name and other matters in material filed by the Applicant; and

(b)    refused to grant the Applicant an extension of time under s 366(1)(b) of the FW Act to lodge an application for the FWC to deal with a dismissal dispute against the University of New South Wales (UNSW) under s 365 of the FW Act.

3    The Confidentiality Appeal Decision was a decision of the Full Bench of the FWC which refused the Applicant permission to appeal in respect of the refusal to issue confidentiality orders. The Extension Appeal Decision was a decision of the Full Bench of the FWC to refuse permission to appeal in respect of the refusal to grant an extension of time.

4    The Applicant alleges various errors in the FWC decisions. These are summarised below. It is relevant to note at this stage that at the hearing of this application, and at all times since the commencement of this proceeding, the Applicant has been self-represented.

BACKGROUND

Grounds for review and relief sought

5    The Applicant filed voluminous material in making this application. The material relates primarily to his work with UNSW, his complaints raised in relation to UNSW and other material. Unfortunately, the extensive material filed by the Applicant was generally of little assistance and irrelevant to the matters in this application.

Grounds for review

6    The Applicant, in his AOA, Outline of Submissions dated 1 August 2023 and 21 September 2023, in his oral submissions at the hearing on 9 April 2024, and various other material he filed, has made wide-ranging claims which challenge the substance of each of the three FWC decisions. Although it is clear that the Applicant challenges the correctness of each of the decisions and the findings made, the AOA and the Applicant’s submissions generally lack clarity and are difficult to follow. It is difficult to articulate, with any particular level of precision, the specific bases on which the Applicant challenges the FWC decisions, and it is therefore equally difficult for UNSW to respond with any particular degree of specificity to the range of matters the Applicant seeks to raise. By way of illustration, the AOA, which spans over some 36 pages and which begins clearly enough by articulating that it relates to a review of the FWC decisions, is split across parts headed “Details of claim”, “Material facts giving rise to the claim”, “Grounds of application” and “Orders sought”, each of which makes reference to several, often unrelated, assertions regarding the FWC decisions, and refer to several authorities and pieces of legislation where it is generally unclear as to how the Applicant intends to rely upon them. There appears to be little discernment between the different grounds of review which the Applicant seeks to raise and therefore the grounds of review overlap to a large degree. It is also generally unclear which of the particular FWC decisions the Applicant raises each ground of review in relation to.

7    Noting the above, as I was best able to determine, the Applicant raises the following grounds of review:

(a)    The FWC failed to consider the impact of the Public Interest Disclosure Act 2013 (Cth) (PID Act) which the Applicant contends informs or otherwise impacts the Applicant’s rights in proceedings under the FW Act. In particular, the Applicant sought to make reference to s 22 of the PID Act and its interaction with Pt 3-1 of the FW Act (Ground 1);

(b)    The FWC exercised its power for an improper purpose as it knowingly contravened s 20 of the PID Act, and engaged in reprisal action in contravention of s 19 of the PID Act (Ground 2);

(c)    The FWC’s failure to protect the Applicant’s identifying information affected the Applicant’s right to personal safety (and which the Applicant contended had otherwise been protected by previous decisions of the Federal Court of Australia, the Australian Federal Police, the Commonwealth Ombudsman, the NSW Personal Injury Commission, and the NSW Commissioner of Victim Rights) (Ground 3);

(d)    The FWC decisions to not make non-publications orders were in contravention of s 118 of the Constitution as they were not consistent with previous decisions, breached art 22 of the Convention on the Rights of Persons with Disabilities (UNCRPD), and were not consistent with the European Union’s General Data Protection Regulation (GDPR) which required the Applicant’s consent for his name to be publicly processed (Ground 4);

(e)    The FWC decisions were knowingly in breach of art 22 of the UNCRPD, and may have been affected by fraud (Ground 5);

(f)    The FWC decisions were made arbitrarily, capriciously, unreasonably, were not bona fide, or were affected by fraud, which impacted the Applicant’s rights under the PID Act (Ground 6);

(g)    The FWC exceeded its powers, and could not “suppress decisions or orders issued by Australian judges or law courts” (Ground 7);

(h)    The Full Court of the FWC made an error in the Extension Appeal Decision (at [28]) in determining that, in relation to the Applicant’s application for extension under s 366(1)(b) of the FW Act, the NSW Commissioner of Victim Rights’ finding that the Applicant was a victim of a criminal offence was only potentially relevant to the merits of the application under s 366(2)(d). The Applicant contends that the finding is also relevant to the other factors of consideration under s 366(2). The Applicant also appears to submit that, more broadly, the FWC failed to appropriately consider the impairment allegedly caused to the Applicant by UNSW, and the allegedly coercive position the Applicant was put in by UNSW (Ground 8);

(i)    The Applicant makes reference to an apparent opinion of the Australian Human Rights Commission regarding his treatment by the UNSW (Ground 9);

(j)    The Applicant also raises a number of objections to a letter from the Australian Government Solicitor (AGS) (solicitors for the FWC) dated 22 December 2022 in which the FWC noted its opposition to particular forms of relief the Applicant had proposed to seek (Ground 10);

(k)    The Applicant makes reference to a number of provisions of the Migration Act 1958 (Cth) (Migration Act) as grounds for review, including ss 234 and 245AA-245AK (Ground 11);

(l)    The Applicant alleges that UNSW wrongfully published intellectual property of the Applicant without his name and consent (Ground 12);

(m)    The Applicant also states, as a ground of review, that the Applicant received during the course of his employment, a document comprising a “database of personal data of patients treated in Australian hospitals”, which disclosure the Applicant alleges constituted breaches of various pieces of legislation including provisions of the Crimes Act 1914 (Cth), the Privacy Act 1988 (Cth), and international treaties (Ground 13);

(n)    The Applicant alleges salary underpayments by UNSW which he contends amount to coercion under s 343 of the FW Act, and that upon reporting such underpayments, he was victim to reprisal actions in contravention of the PID Act (Ground 14);

(o)    The Applicant refers to extracts of a report prepared by a consultant psychiatrist, Dr Christopher Canaris, on 2 August 2020, referring to history provided by the Applicant to Dr Canaris and the conclusion of the Applicant’s overall impairment (Ground 15);

(p)    The Applicant also makes reference to 17 different authorities under the “Grounds of application” in his AOA. Although the authorities may be raised in support of the Applicant’s broader claims, they are noted here for completeness (Ground 16);

(q)    The Applicant also appears to allege that the FWC failed to acknowledge “Division 2” of the FW Act and the “international labor organization treaties, including human rights treaties and agreements” which the Applicant appears to contend should be recognised as integral components of “fair work rights” (Ground 17);

(r)    The FWC allegedly failed to take into consideration particular delays which wrongfully occurred in the Applicant’s claim with the NSW Personal Injury Commission (Ground 18);

(s)    The Applicant also referred to allegedly false representations made by UNSW regarding weekly compensation payments being made to the Applicant (Ground 19);

(t)    In addition to (and to the extent distinct from) the grounds of review mentioned above, the Applicant appeared to re-agitate a number of arguments that were already put to the Full Bench of the FWC and which have been outlined in appropriate detail in the Full Bench decisions: Confidentiality Appeal Decision at [19]-[23]; Extension Appeal Decision at [18]-[21]. I will not seek to restate these arguments in detail here, beyond noting the Applicant’s assertions that the errors of the FWC (and the FWC’s subsequent failure to correct such errors) resulted in the FWC falling into jurisdictional error.

For completeness, it is noted that due to the manner in which the AOA and the additional material filed by the Applicant was drafted, the above grounds for review reflect my understanding of the relevant arguments the Applicant wished to raise and do not reflect the paragraph numbering of the “Grounds of application” under the AOA.

Relief sought

8    The Applicant seeks various forms of relief including:

(a)    an order requiring the FWC to de-identify the FWC decisions, or alternatively, to “remove them from the public space”;

(b)    suppression orders under the Federal Court of Australia Act 1976 (Cth) in relation to the present application;

(c)    an order requiring the FWC to “respect” s 22 of the PID Act in any proceedings before the FWC, and “respect” s 366(2) of the FW Act, alongside orders requiring the FWC to “guarantee that only qualified Australian legal practitioners with appropriate levels of security clearance are involved in matters involving such governmental material”;

(d)    orders setting aside the decisions of the FWC;

(e)    damages in the order of $2,292,790.71 which are said to be associated with the Applicant’s permanent impairment and UNSW’s alleged misconduct;

(f)    various species of relief (including declaratory and injunctive relief) concerning the alleged unauthorised use of the Applicant’s intellectual property rights; and

(g)    the imposition of civil penalties on UNSW for alleged contraventions of the Migration Act and the PID Act.

Respondents’ submissions

9    UNSW filed no evidence in the proceeding and relied only on their submissions in opposition to the application.

10    The FWC filed a submitting notice by which it submitted to any order that the Court may make under s 39B of the Judiciary Act 1903 (Cth) insofar as that relief relates to the three FWC decisions that are the subject of the application. The FWC reserved its right to otherwise be heard on the question of costs and any matter insofar as it sought relief beyond the scope of the above. The FWC filed a singular affidavit (of Mr Matthew Jorgensen affirmed on 7 August 2023) relating to a notice to admit directed to the FWC from the Applicant. This is discussed in more detail below at paragraph 55.

WHAT THE APPLICANT MUST ESTABLISH

11    As the Applicant does not allege any error of law on the face of his submissions, he must show jurisdictional error in each of the Full Bench’s decisions as that concept is understood in light of Craig v State of South Australia (1995) 184 CLR 163. (Craig). That is, the Applicant must show that:

(a)    the Full Bench fell into an error of law;

(b)    that error of law caused the Full Bench to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material, to make an erroneous finding or to reach a mistaken conclusion; and

(c)    the Full Bench’s exercise or purported exercise of power was thereby affected.

12    The Applicant must establish the same elements mutatis mutandis in relation to the Primary Decision.

13    It is not enough for the Applicant to simply point to an error of law or an erroneous finding in the Full Bench’s reasons. So much is clear from the Full Court of the Federal Court’s analysis in Teys Australia Beenleigh Pty Ltd v Australasian Meat Industry Employees’ Union [2015] 234 FCR 405 at [56]-[80] (Jessup J) (Teys (No 2)) of the principles set out in Craig. Teys (No 2) also makes plain that a determination by a Full Bench whether or not a first instance decision is affected by error is not a jurisdictional fact: Teys (No 2) at [60]-[62].

14    In other words, the Full Bench was authorised to decide whether there was public interest in granting permission to appeal. If it incorrectly decided that question, that error would be within jurisdiction: Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at [163] (Hayne J). It follows that an alleged “acceptance” by the Full Bench of alleged errors of fact at first instance will not suffice to show jurisdictional error. Rather, what must be shown is that the Full Bench in each case misconstrued, misunderstood or failed to apply the test of whether it was in the public interest to grant permission to appeal. Absent any such misunderstanding or misconstruction, any error made in relation to a permission decision is an error within jurisdiction: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2016) 247 FCR 138 at [48] (Barker, Rangiah and Wigney JJ).

CONSIDERATION

The grounds of review disclose no reviewable error

15    Even allowing, as I do, for the fact that the Applicant is self-represented, the Applicant has not, for the reasons that follow, articulated anything which discloses material facts or principles of law which are capable of demonstrating jurisdictional error. The Applicant has largely re-agitated a number of contentions which he advanced before Commissioner Yilmaz and the Full Bench of the FWC.

Ground 1

16    The Applicant has failed to clearly explain which of the FWC decisions failed to consider the impact of the PID Act, how the particular factor should have been considered by the FWC (howsoever constituted), or how it is said that the FWC was so bound by the PID Act. I do not consider that the Applicant’s allegation that the FWC’s failure to consider the impact of the PID Act provides an appropriate ground for review.

17    While it is unnecessary to do so, as the Applicant made a substantial number of submissions related to the PID Act, a few preliminary observations regarding the Applicant’s submissions are noted below:

(a)    The Applicant’s submissions regarding the PID Act appear to centre primarily around his receipt, in the course of his employment at UNSW, of a document which he claims was confidential and which he was unauthorised to receive or use. The Applicant submits that he made public interest disclosures in relation to this conduct pursuant to the PID Act to various bodies. These appear to include disclosures to the Australian Institute of Health and Welfare (AIHW), the Australian Federal Police (AFP), the Commonwealth Ombudsman and the Federal Court.

(b)    The PID Act was considered by Commissioner Yilmaz and the Full Bench of the FWC comprehensively: Primary Decision at [4]-[7]; Confidentiality Appeal Decision at [35], [37]-[38], [40]; Extension Appeal Decision at [46]. The application of the PID Act in the relevant decisions was clearly correct and does not provide grounds for judicial review of the decisions.

(c)    The Applicant appears to submit that the AIHW confirmed that UNSW’s use of the document was unauthorised. This is not evident from the material filed by the Applicant, including in the letter from the AIHW to the Applicant dated 12 September 2018, or in the emails dated 21 May 2018 from Mr George Bodilsen of AIHW to the Applicant.

(d)    The Applicant also referred numerous times to being “granted the status of a public interest discloser” by the AFP. In relation to this, the Applicant appears to rely on an email from the AFP to the Applicant dated 27 August 2018. Again, it is not evident from the email that any such determination was made. The email indicates that in relation to the Applicant’s disclosure, the Applicant was determined by the relevant AFP Authorised Officer to be a “Public Official”, and that the Applicant’s disclosure could be “Disclosable Conduct” for the purposes of the PID Act. However, the matter was ultimately referred to the AIHW as there was no reasonable basis to determine that the disclosure constituted an “internal disclosure” for the purposes of the PID Act for the AFP.

(e)    The Applicant also makes several references to a “determination” of the Federal Court made in relation to the PID Act. What the Applicant appears to be referring to is an email to the Applicant dated 26 July 2018 from Deputy Principal Registrar John Mathieson in his role as an authorised officer of the Federal Court for the purposes of the PID Act. The email appears to be nothing more than an initial assessment of whether the Applicant’s disclosures to the Federal Court could constitute a “public interest disclosure” under the PID Act. The email also ultimately determined that the disclosure was not made to an authorised recipient to be considered an internal disclosure and therefore, would not be allocated to an agency to handle.

Ground 2

18    The Applicant alleges various breaches of the PID Act by the FWC “decision-makers”, stating that the FWC’s knowing contravention of the PID Act meant that it exercised its power for an improper purpose. No proper basis appears on the face of the AOA or elsewhere in the Applicant’s materials to make such allegations against Commonwealth officers. The comments made above in relation to the PID Act in respect of Ground 1 above are repeated.

Ground 3

19    Ground 3 makes reference to the “personal safety” of the Applicant, arguing that the FWC failed to uphold the protection afforded to the Applicant by previous decisions of the Federal Court, the AFP, the Commonwealth Ombudsman, the NSW Personal Injury Commission, and the NSW Commissioner of Victim Rights. Again, Ground 3 fails to provide any proper grounds for review of the FWC decisions.

20    It is noted that submissions regarding the safety of the Applicant were raised and dealt with by the FWC: Primary Judgment at [9]; Confidentiality Appeal Judgment at [48]. I agree with the approach taken by the FWC in each instance. The Applicant’s submissions relating to the NSW Personal Injury Commissioner were also appropriately dealt with by the Full Bench of the FWC: Confidentiality Appeal Judgment at [35]-[36], [45]. Again, I agree with the approach taken by the Full Bench.

Ground 4

21    The Applicant looks to call in aid of s 118 of the Constitution which states:

Recognition of laws & c. of States

Full faith and credit shall be given, throughout the Commonwealth, to the laws, the public Acts and records, and the judicial proceedings of every State.

22    How s 118 is said to be enlivened here – beyond the untenable proposition that s 118 compelled the FWC to make confidentiality orders in identical terms to those allegedly made by the NSW Personal Injury Commission – is unexplained. The purported relevance of the UNCRPD and GDPR is similarly unexplained.

Ground 5

23    Ground 5 alleges a knowing breach of the UNCRPD by the FWC, and appears to allege that the decision was affected by fraud. As with Ground 4, the proper basis for these allegations is similarly unclear.

24    It is unclear if the Applicant is alleging that a particular FWC decision may have been impacted by fraud or if the allegation is in relation to each decision. In any case, the source of the Applicant’s contention regarding fraud appears to be based on UNSW submitting to the FWC that the “Federal Court did not issue any determination regarding confidentiality”. On the understanding that the Applicant’s reference to a “determination” of the Federal Court is referring to the email from Deputy Principal Registrar John Mathieson referred to above, there is no proper basis for an allegation of fraud for the reasons already given.

Ground 6

25    The Applicant has failed to explain with any appropriate degree of clarity how the “decision-makers” (unidentified) acted “arbitrarily, capriciously, unreasonably, not bona fide, or being affected by fraud”. The Applicant has also failed to appropriately identify the rights under the PID Act which he claims to be affected by the relevant FWC decisions (noting the reasons already provided above in relation to Ground 1).

Ground 7

26    The Applicant has failed to articulate with any particular clarity how the FWC is said to have “exceeded its powers” or how the FWC has “suppress[ed] decisions or orders issued by Australian judges or law courts”.

27    To the extent the Applicant is seeking to allege, under this ground, that the FWC has acted beyond its powers by failing to make confidentiality orders that align with the decisions made by the Federal Court or by the NSW Personal Injury Commission, such an argument cannot be reasonably sustained for the reasons already provided above at paragraphs 17, 20 and 22.

Ground 8

28    The Applicant appears to be largely reagitating arguments put before the Full Bench of the FWC that the FWC failed to appropriately consider each of the elements under s 366(2) of the FW Act. In particular, the Applicant argued before the Full Bench of the FWC that Commissioner Yilmaz, in the Primary Decision, failed to consider s 366(2)(e), as the Commissioner wrongly referenced factors relevant to s 366(2)(c) (prejudice to the employer).

29    These arguments were addressed by the Full Bench of the FWC who found that while the Commissioner erred at first instance, the error did not found a basis for the grant of permission to appeal as the conclusion ultimately reached by the Commissioner was nonetheless correct: Extension Appeal Decision at [52]. I see no error in the approach of the Full Bench of the FWC.

30    The Full Bench of the FWC also noted that, in the context of an extension application under s 366 of the FW Act, they were unable to see the relevance of the Applicant’s references to the findings of the NSW Commissioner of Victim Rights or the allegedly coercive position the Applicant was put in by UNSW beyond potentially going to the merits of the relevant application (s 366(2)(d)): Extension Appeal Decision at [28]. Again, I see no error in the FWC’s approach in this respect.

31    While the Applicant has also sought to reagitate arguments regarding the alleged impairment caused by UNSW, in my view, these matters have already been appropriately and correctly considered by the FWC: Primary Decision at [23]-[24]; Extension Appeal Decision at [30]-[31].

32    In any case, I also accept UNSW’s submissions that whether or not the FWC made the relevant factual errors the Applicant appears to be alleging, those errors would not of themselves amount to jurisdictional error.

Grounds 9-19

33    In the context of an application for judicial review of the FWC decisions, Grounds 9-16 are largely irrelevant, as they fail to provide any actual ground for review of the FWC decisions.

34    Ground 9 makes reference to an apparent opinion of the Australian Human Rights Commission (AHRC), while Ground 10 makes reference to a letter from the AGS regarding the FWC’s opposition to particular forms of relief the Applicant was proposing to seek. It is unclear what the Applicant seeks in relation to the alleged AHRC opinion or the letter from AGS, or how the points raised by the Applicant could provide appropriate grounds for review of the FWC decisions.

35    Under Grounds 11-14, the Applicant appears to allege various contraventions by UNSW of the Migration Act, the FW Act, the PID Act, the Crimes Act 1914 (Cth), the Privacy Act 1988 (Cth) and the intellectual property rights of the Applicant. The Applicant has failed to establish any clear basis for making the various factual allegations, or to explain how they are said to be connected to the FWC decisions, or how they demonstrate jurisdictional error.

36    Grounds 15 and 16 again fail to disclose any specific basis on which to impugn the FWC decisions.

37    In relation to Ground 17, the Applicant has failed to clearly specify how it is that the FW Act incorporates various international labour treaties, which particular treaties the Applicant seeks to rely on, or which particular rights the Applicant seeks to rely on. In any case, the substance of this argument was also put before the Full Bench of the FWC who correctly concluded that such an argument is not relevant to an application for an extension of time pursuant to s 366(2) of the FW Act: Confidentiality Appeal Decision at [50].

38    In relation to Ground 18, the Applicant has failed to clearly outline how the matter amounts to a jurisdictional error in the Extension Appeal Decision. In particular, the Applicant has not outlined the degree to which the Applicant was delayed or how it is contended that a delay in the NSW Personal Injury Commission was relevant to his application for an extension of time under s 366 of the FW Act.

39    Ground 19 appears to refer to a statement in a document filed by UNSW in a separate application of the Applicant before the NSW Personal Injury Commission. Again, the Applicant has failed to explain how the matter is said to be relevant to this judicial review application, and therefore, the matter does not disclose any proper basis on which to impugn the relevant FWC decisions. It should be noted that this was the case generally for much of the Applicant’s submissions, where the Applicant alleged various wrongdoings by UNSW (not all of which have been captured above), while failing to explain how the conduct the Applicant alleged was relevant to the judicial review application before this court.

The decisions under review were not in any event affected by jurisdictional error

40    As the Applicant has sought to reagitate a number of arguments which were already put to the FWC, a general review of the FWC decisions has been undertaken in addition to the particular grounds of review discussed above. A consideration of the reasons and conclusions of Commissioner Yilmaz’s decision and the two decisions of the Full Bench of the FWC do not reveal any jurisdictional error for the reasons that follow.

The decisions to refuse leave to file out of time

41    The Applicant applied to the FWC under s 365 of the FW Act to deal with a dismissal dispute. That application was filed over 1400 days outside the 21-day statutory limit under s 366(1)(a). The Applicant therefore required a grant of leave to file out of time: FW Act, s 366(1)(b).

42    Commissioner Yilmaz identified the correct statutory provisions and the applicable tests: Primary Decision at [19] and [20].

43    The Commissioner addressed each of the statutory criteria in turn in some detail: Primary Decision at [22]-[43]. A review of the Commissioner’s reasons makes plain that she considered each of the Applicant’s contentions and supporting evidence as follows:

(a)    as to the reason for the delay (s 366(2)(a)) – the Commissioner summarised the Applicant’s contentions, and set out reasons why those contentions failed to provide a credible reason for his significant delay in filing the application: Primary Decision at [23], [24], [26], and [28];

(b)    as to the steps taken to dispute the termination (s 366(2)(b)) – the Commissioner identified the fact that the Applicant had earlier filed (within the relevant statutory period) a general protections application which was then withdrawn, and that the Applicant had commenced a number of applications against UNSW between 2018 and 2022. The Commissioner considered the Applicant’s explanation for withdrawing his application, but found in the circumstances that the Respondent could not reasonably have expected a further near-identical application four years after his dismissal: Primary Decision at [30]-[32];

(c)    as to prejudice to the employer (s 366(2)(c)) – the Commissioner found force in UNSW’s contentions concerning the passage of time, the impact of staff changes during that time on UNSW’s ability to defend itself, and the unreasonableness of allowing the Applicant to reagitate a claim he withdrew some 4 years earlier: Primary Decision at [33]-[35];

(d)    as to the merits of the application (s 366(2)(d)) – the Commissioner summarised the Applicant’s contentions supporting his substantive adverse action claim and further contentions alleging discrimination on several grounds. The Commissioner having expressly “considered the submissions and evidence tendered” was unable to conclude that the application had merit: Primary Decision at [39]. I see no error in the determination reached by the Commissioner. I also accept UNSW’s submission that the Commissioner was not required to address the substantive merits in fine detail, as s 366(2)(d) does not require the Commission to form concluded views on the merits at an interlocutory stage and does not compel the FWC to make findings on contested matters;

(e)    as to fairness between the Applicant and others in like circumstances (s 366(2)(e)) – the Commissioner summarised the Applicant’s contentions and those of UNSW. The Commissioner considered that the factor did not weigh in the Applicant’s favour considering the reasons and length of the delay, together with the previous application which the Applicant had withdrawn: Primary Decision at [43]. As has been discussed above, one of the grounds of appeal raised by the Applicant before the Full Bench of the FWC was that Commissioner Yilmaz erred in applying s 366(2)(e) as the Commissioner wrongly referenced factors relevant to s 366(2)(c). Although the Full Bench of the FWC found that Commissioner Yilmaz did so err at first instance, the error did not found the basis for the grant of permission to appeal, as the conclusion ultimately reached was nonetheless correct: Extension Appeal Decision at [52].

44    The review of the Primary Decision reveals that Commissioner Yilmaz identified the correct statutory provisions and relevant tests, addressed the evidence and submissions to the extent relevant, and exercised her discretion consistent with those matters. Noting the caveat mentioned above regarding the application of s 366(2)(e) of the FW Act, the Commissioner adopted an orthodox approach and there is nothing to suggest any jurisdictional error in the Commissioner refusing to extend time to allow the Applicant to file a general protections claim some 1400 days late.

45    The Extension Appeal Decision was similarly orthodox. The Full Bench identified the correct statutory provisions and relevant tests, the approach to be taken in appeals from discretionary decisions, and analysed as best it could each appeal ground and further submissions the Applicant advanced. The Full Bench concluded that none of the matters the Appellant raised enlivened the public interest or justified a grant of permission to appeal. That ultimate conclusion followed intermediate findings that none of the appeal grounds disclosed an arguable case of appealable error. I accept UNSW’s submissions that nothing indicates that the Full Bench misunderstood the nature of its function or purported to exercise power outside its statutory limits, and that its reasons reveal an orthodox and plainly correct approach to the questions before it.

The decisions to refuse confidentiality orders

46    By emails directly to Commissioner Yilmaz’s chambers dated 1 June 2022 and 30 June 2022, the Applicant flagged his intention to apply for confidentiality orders prohibiting the publication of names and addresses of persons appearing in the hearing and matters contained in documents before the FWC. The Applicant asserted, among other things, that his evidence concerned his work on data which could be classified information, that confidentiality orders should be made in light of the PID Act, and that he had been de-identified as a party in prior proceedings in New South Wales, in the Federal Court and in other jurisdictions: Primary Decision at [3]-[4], [7].

47    Section 594(1) of the FW Act granted Commissioner Yilmaz the discretion to order that publication of evidence, names and addresses of persons making submissions, and other related information, be prohibited or restricted. That discretion is properly exercised in a manner cognisant of the presumption of open justice given effect under s 593(2).

48    I am satisfied that nothing on the face of the Primary Decision reveals any suggestion of jurisdictional error. Commissioner Yilmaz properly identified the relevant provisions and applicable principles, and summarised each of the parties’ contentions. The Commissioner was not satisfied that it was necessary to de-identify the parties on the basis that there was no need to provide any detail concerning the work performed by the Applicant since it was immaterial to his application for leave to file out of time: Primary Decision at [7]. Additionally, the Commissioner’s reasons did not specify the nature of the Applicant’s work nor details of his prior proceedings against the Respondent: Primary Decision at [8]. The Commissioner was also not satisfied that the Applicant’s arguments regarding the prospect of embarrassment warranted the suspension of the open justice principle: Primary Decision at [9].

49    A review of the Confidentiality Appeal Decision reveals a similarly orthodox decision. The Full Bench followed a similar path to that adopted in the Extension Appeal Decision: it properly stated the requirements for permission to appeal, the nature of the FWC’s appellate function when dealing with a discretionary decision, summarised the various appeal grounds the Applicant sought to raise, addressed the merits of each of those grounds, and addressed the Appellant’s contentions concerning alleged public interest considerations. The Full Bench similarly concluded that none of the Appellant’s appeal grounds raised an arguable case of appealable error. Again, nothing in that analysis indicates that the Full Bench misunderstood the nature of its function or purported to exercise power outside its statutory limits.

NOTICES TO ADMIT

50    On 17 July 2023, the Applicant filed two Notices to Admit, one directed to each of the Respondents.

51    The Notice to Admit directed to UNSW spans some eight pages. It sought to require UNSW to admit to various allegations, the relevance of which to this application was not always clear. For example, the notice sought admissions to the effect that UNSW acted coercively in relation to the Applicant, that UNSW caused total permanent disability to the Applicant, UNSW caused breaches of the Applicant’s visa conditions, and that UNSW breached the Applicant’s human rights.

52    UNSW filed a Notice of Dispute on 31 July 2023. The notice objected to the Notice to Admit on the grounds that it was “vague, embarrassing, and discloses matters in the nature of opinion and conclusion rather than material facts”. Again, even allowing for the fact that the Applicant was self-represented and therefore a degree of imprecision may be expected, I agree that UNSW’s dispute to the Notice to Admit was appropriate and have not given any weight to the Applicant's Notice to Admit directed to UNSW.

53    The Notice to Admit directed to the FWC spanned five pages. It also sought a variety of admissions, largely reflecting the arguments the Applicant had already made to the FWC as part of his application. For example, the notice sought admissions to the effect that the FWC failed to consider the rights of the Applicant under the PID Act, the FWC committed errors of law, and that the FWC failed to consider previous decisions such as those made by the NSW Personal Injury Commission or the Federal Court.

54    The FWC failed to file a notice of dispute within the 14 day deadline after being served the Notice to Admit: Federal Court Rules 2011 (Cth) (Rules) r 22.02. Pursuant to r 22.04 of the Rules, the Applicant has taken this as an admission by the FWC of each matter specified in his Notice to Admit.

55    The FWC subsequently filed an affidavit of Mr Matthew Jorgensen affirmed on 7 August 2023. The affidavit deposes that Mr Jorgensen, who is an AGS lawyer acting for FWC, sought to send a letter to the Applicant and UNSW regarding the Notice to Admit by email on 28 July 2023. The email however was not sent successfully, and it was only after the Applicant filed various materials on 2 August 2023, including submissions which referred to the FWC admitting various matters, that Mr Jorgensen realised his attempt to send the email had been unsuccessful. The email (and attached letter) was subsequently sent to the Applicant and UNSW on 2 August 2023. The letter notes that in the context of the FWC’s qualified submitting notice, the FWC considered it would be inappropriate for the FWC to either admit or dispute facts or the authenticity of documents. The letter also stated that the FWC would seek to rely upon the letter should the Applicant seek to assert that the FWC admitted to any of the matters in his Notice to Admit.

56    Considering the nature of matters the Applicant sought for admission under his Notice to Admit directed to the FWC, I am not satisfied that the notice complied with r 22.01 of the Rules. In particular, a notice to admit is limited to requiring a party to admit the truth of a particular fact. It does not permit the Applicant to specify matters of law or mixed fact and law in the manner that the Applicant has drafted his notice: Montgomery v Child Support Registrar [2015] FCA 891 at [45] (Rangiah J).

57    In any case, based on the affidavit of Mr Jorgensen, I am satisfied that FWC’s intention was to neither admit or dispute the matters that had been put to it given the qualified submitting notice the FWC had filed and as is appropriate in the FWC’s position as an administrative tribunal.

58    For the reasons outlined above, I have not given any weight to either of the Applicant’s Notices to Admit. For the same reasons, I do not consider it appropriate to entertain the Applicant’s requests for summary judgment against the Respondents, for which the Applicant relied primarily on his Notices to Admit.

DISPOSITION

59    For the foregoing reasons, the Applicant has failed to identify any jurisdictional error in any of the three decisions the subject of this judicial review. There was nothing in the written or oral submissions of the Applicant which disclosed any jurisdictional error in any of the three decisions. A consideration of the three decisions makes plain that Commissioner Yilmaz and the Full Bench of the FWC in the two appeals adopted an orthodox approach which disclosed no jurisdictional error and, moreover, arrived at the correct conclusion. The Applicant’s Amended Originating Application will be dismissed.

60    UNSW has asked to be heard on the question of costs notwithstanding the operation of s 570 of the FW Act. I will order that within 7 days of the date of this decision, UNSW file written submission as to costs not exceeding 5 pages. I direct that the Applicant file written submissions on costs in reply not exceeding 5 pages within 14 days of the date of this decision.

Associate:

Dated:    16 May 2024