Lee v Fair Work Commission [2020] FCA 1204

FEDERAL COURT OF AUSTRALIA

Lee v Fair Work Commission [2020] FCA 1204 Appeal from: Lee v Fair Work Commission [2020] FCA 733

File numbers: QUD 65 of 2020 QUD 66 of 2020

Judge: COLLIER J

Date of judgment: 21 August 2020

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

Legislation: Australian Human Rights Commission Act 1986 (Cth) art 14 Fair Work Act 2009 (Cth) ss 349, 387, 390, 604 Federal Court of Australia Act 1976 (Cth) Pt VB, ss 20A, 23 37M, 37N, 37P Federal Court Rules 2011 (Cth) rr 1.32, 1.40, 26.01, 30.11, 35.13, 35.14, 35.20, 36.43 Judiciary Act 1903 (Cth) s 39B Privacy Act 1988 (Cth)

Cases cited: AZAEY v Minister for Immigration and Border Protection (2015) FCAFC 193; [2015] FCAFC 193 Brock v Minister for Home Affairs [2008] FCAFC 165 BVG17 v BVH17 (2019) 268 FCR 448; [2019] FCAFC 17 Coffey v Secretary, Department of Social Security (1999) 86 FCR 434 Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397; [1991] FCAFC 844 DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 127 Djaigween v Douglas (1994) 48 FCR 535 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 Fagan v Crimes Compensation Tribunal (1982) 150 CLR 666; [1982] HCA 49 Humphries v Newport Quays Stage 2A Pty Ltd [2009] FCA 699 Hunter Valley Developments Pty Limited v Cohen (1984) 3 FCR 344; [1984] FCA 176 Johnston v Judge Middleton [2019] FCA 966 Lee v Fair Work Commission [2020] FCA 733 Lee v Superior Wood Pty Ltd (2019) 286 IR 368; [2019] FWCFB 2946 Lee v Superior Wood Pty Ltd (2020) 295 IR 242; [2020] FWCFB 1301 Lee v Superior Wood Pty Ltd (t/a Superior Wood) [2019] FWC 5095 Lee v Superior Wood Pty Ltd [2018] FWC 4762 Luck v Secretary, Department of Human Services (2017) 72 AAR 219; [2017] FCA 540 Marsden v R [2002] FCAFC 229 Mentink v Minister for Home Affairs [2013] FCAFC 113 Mulhern v Morgan [2017] FCA 1183 MZABP v Minister for Immigration and Border Protection (2016) 152 ALD 478; [2016] FCAFC 110 Nationwide News Pty Limited v Rush [2018] FCAFC 70 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 Quall v Northern Territory [2009] FCA 18 R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13; [1980] HCA 13 Sea Culture International Pty Ltd v Scoles (1991) 32 FCR 275 Smits v Loel (No 3) [2015] FCA 77 State Bank of NSW v Stenhouse (1997) Australian Torts Reports 81-423 SZSDA v Minister for Immigration and Citizenship (2012) 135 ALD 17; [2012] FCA 1319 SZVCP v Minister for Immigration and Border Protection (2016) 238 FCR 15; [2016] FCAFC 24 Walsh, Liquidator of D&R Community Services Pty Ltd (Receivers & Managers Appointed) (in liq) v Commissioner of Taxation [2018] FCA 1739 Walsh, Liquidator of D&R Community Services Pty Ltd (Receivers & Managers Appointed) (in liq) v Commissioner of Taxation [2018] FCA 1739 Walton v Gardiner (1993) 177 CLR 378