FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
JUSTICE ROSS, PRESIDENT |
MELBOURNE, 22 MAY 2014 |
Appeal against directions issued by Deputy President Asbury on 8 May 2014 in matter number U2014/4464 - s.604(2) of the Fair Work Act 2009 (Cth) - permission to appeal refused.
[1] Mr Brett Hutton has applied for permission to appeal, and appeals, against directions (the Directions) of Deputy President Asbury issued on 8 May 2014. Mr Hutton has applied for an expedited hearing of the appeal. The Directions which are the subject of the appeal concern the hearing and determination of Mr Hutton’s application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of his employment by Sykes Australia Pty Ltd (the respondent). The Directions are as follows:
“[1] Further to the Directions Conference held on 6 May 2014, the following Further Directions are made:
Applicant's Material
[2] The Applicant is to confirm in writing to the Commission and to the Respondent, by 12.00 Midday on Tuesday 13 May 2014, whether the bundle of documents appended to these Directions constitutes all of the submissions, witness statements and documents upon which he proposes to rely at the hearing of his application.
[3] The Applicant is to provide to the Commission and to the Respondent by 12.00 Midday on Wednesday 14 May 2014, a hard copy of any document upon which he proposes to rely, which is not contained in the bundle of documents appended to these Directions.
[4] The Commission will not receive documents tendered by the Applicant in the hearing of this application other than:
(a) documents contained in the bundle appended to these Directions; or
(b) documents provided in hard copy form in accordance with these Directions.
Respondent's Material
[5] The date by which the Respondent is to file and serve its submissions and witness statements is extended to 12.00 Midday on Friday 16 May 2014.
Further Mention
[6] The matter is listed for further Directions Conference, by telephone on Tuesday 20 May 2013 at 4.00 pm.”
[2] Mr Hutton’s appeal concerns an interlocutory procedural matter. His primary concern is that the respondent was granted an extension of time within which to file its material in reply, from 6 May to 16 May 2014. The remedy he seeks is an order retracting the Directions and as a consequence the respondent would not be able to rely on the material it has filed in the substantive hearing. We note that the substantive hearing is to take place on 17 June 2014.
[3] The fact that this appeal challenges an interlocutory or procedural decision is relevant to the determination of permission to appeal. Courts and tribunals have generally discouraged appeals from preliminary or procedural rulings. 1 Permitting appeals against interlocutory or procedural rulings may prolong the proceedings overall and increase the costs to the parties. There are other reasons why appellate intervention at an early stage may be undesirable. Procedural rulings may be altered later in the case and the party complaining about a procedural decision might ultimately be successful in the substantive proceedings. In such a case any earlier appeal in relation to a preliminary or procedural issue would be rendered futile.
[4] The effect of the Directions was not to make any final or substantive ruling upon any of the matters in issue between the parties. All of the material that the parties wish to rely upon in the substantive proceeding has now been filed and Mr Hutton’s unfair dismissal claim has been listed for hearing. We are not persuaded that either party has been denied procedural fairness or that any substantial injustice has arisen.
[5] We therefore do not consider that it would be in the public interest to grant permission to appeal nor are we persuaded that there is any other proper basis upon which to grant permission to appeal. Permission to appeal is refused.
PRESIDENT
Appearances:
B. Hutton on his own behalf
E. Bailey for Sykes Australia Pty Ltd
Hearing details:
2014.
Sydney:
21 May.
1 In Re: the will of F.B. Gilbert (dec) (1946) 46 SR (NSW) 318 at 323; Adam P. Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 177; AMIEU v MATF (1990) 33 IR 431 at 432; Finance Sector Union v Comsec Trading Limited, Print PR945431, 6 April 2004 per Giudice J, Hamilton DP and Hingley C; TWU v Coles Supermarkets Australia Pty Ltd [2012] FWAFB 6907
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