[2021] FWCFB 5419

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604—Appeal of decision

Brett Galloway
v
Milena Molina and Raymond Zhai
(C2021/2262) (C2021/2367)

VICE PRESIDENT CATANZARITI
DEPUTY PRESIDENT EASTON
COMMISSIONER O’NEILL

SYDNEY, 1 SEPTEMBER 2021

Appeal against decision [2021] FWC 1756 of Deputy President Dean at Sydney on 31 March 2021 in matter number U2020/4351 - appeal against decision [2021] FWC 1785 of Deputy President Dean at Sydney on 31 March 2021 in matter number U2020/4410 - jurisdictional error - procedural fairness - opportunity to present evidence - refusal to grant adjournment - permission to appeal granted - appeal upheld.

[1] Mr Brett Galloway (“the Appellant”) has been in practise as a solicitor for more than 30 years. Ms Milena Molina was employed as his Practice Manager between 2011 and March 2020. Mr Zhai was employed by Mr Galloway as a solicitor from 2017 until 2020.

[2] On 18 March 2020, as the COVID19 outbreak was unfolding and many courts were closing, Mr Galloway dismissed Ms Molina and Mr Zhai for alleged misconduct. Ms Molina’s alleged misconduct occurred between 2019 and 2020. Mr Zhai’s alleged misconduct took place in 2019 and 2020.

[3] Ms Molina and Mr Zhai made applications for unfair dismissal remedies. Their matters were heard together and Deputy President Dean found that the dismissal of each applicant was harsh, unjust and unreasonable, and accordingly unfair. On 31 March 2021 the Deputy President published her reasons for each decision: Milena Molina v Brett Galloway [2021] FWC 1756 (“the Molina Decision”) and Raymond Zhai v Brett Galloway [2021] FWC 1785 (“the Zhai Decision”).

[4] On 31 March 2021 the Deputy President made an order under s.392 of the Fair Work Act 2009 (“the Act”) requiring Mr Galloway to pay $49,013.74 compensation to Ms Molina, and made a separate order that Mr Galloway pay $24,086.41 compensation to Mr Zhai.

[5] Mr Galloway wishes to appeal the Molina Decision and the Zhai Decision and the associated orders made by the Deputy President.

[6] There were procedural problems from the beginning of the appeal process. Rule 56 of the Fair Work Commission Rules 2013 requires appeals to be lodged within 21 calendar days after the date of the decision being appealed against. On 21 April 2021 Mr Galloway lodged electronically an undated, unsigned Notice of Appeal of the Molina Decision (“the Molina Appeal”). After inquiries by Commission staff Mr Galloway attended the Sydney Registry on 27 April 2021 and provided a signed copy of the Notice of Appeal for the Molina Appeal. The Appeal Books for the Molina Appeal were due on 28 April 2021 however Mr Galloway needed and was granted an extension of time to file the Appeal Books.

[7] On 27 April 2021 Mr Galloway also filed a Notice of Appeal of the Zhai Decision (“the Zhai Appeal”). This Notice of Appeal was dated 21 April 2021 but only filed on 27 April 2021. Mr Galloway therefore requires an extension of time to commence the Zhai Appeal.

Extension of Time (Zhai Appeal)

[8] We have decided to grant Mr Galloway an extension of time to commence the Zhai Appeal. We have taken into account the following considerations:

(a) Mr Galloway’s explanation for the delay is inadequate. Mr Galloway claims to have experienced computer related difficulties in filing the Zhai Appeal. He enlisted help from a landscape gardener, Ms Letitia Bridges, to file the documents. Ms Bridges provided an affidavit purporting to support the application for an extension of time. Ms Bridge’s affidavit contains numerous typographical errors, a reference to the wrong month, and an incorrect statement about what material she actually filed.

(b) The length of the delay was relatively short.

(c) The grounds of appeal point slightly towards favouring an extension of time, insofar as the Zhai Appeal relies upon an alleged jurisdictional error.

(d) The Molina Appeal was filed within time and Mr Zhai’s application had travelled with Ms Molina’s application before the Deputy President.

(e) There is no evidence of prejudice to Mr Zhai caused by the delay.

Grounds of Appeal

[9] The grounds of appeal in the Molina Appeal and the Zhai Appeal are identical, viz:

1. The Deputy President denied the Respondent procedural fairness by determining the matter in the following circumstances:

1.1 Refusing the Respondent an adjournment on the first day of hearing in circumstances where a replacement legal representative had filed a notice of appearance the day before;

1.2 Denying the Respondent permission to lead further evidence in chief in response to answers provided by the applicant under cross examination;

1.3 Refusing the Respondent’s application to reopen the case following the final day of hearing to permit the Respondent to provide his evidence following his inability to attend the final day of hearing due to medical reasons detailed in a statutory declaration sworn by the Respondent; and

1.4 Determining the application without the Respondent’s evidence in chief.

2. The Deputy President erred in law, by applying the incorrect test in determining whether the applicant’s conduct constituted serious misconduct.

[10] We take the references to “the Respondent” in the grounds of appeal to be references to the Appellant, Mr Galloway.

[11] Given that the claims were heard together before the Deputy President, and that the grounds of appeal are identical, we can deal with both appeals together in this single decision.

[12] The parties agreed that the appeal could be conducted without a hearing and we are separately satisfied that the appeal can be adequately determined without the parties making oral submissions.

Principles of Appeal

[13] An appeal under s.604 of the Act is an appeal by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker. 1 There is no right to appeal and an appeal may only be made with the permission of the Commission.

[14] Section 400 of the Act applies to this appeal. It provides:

“(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part unless the FWC considers that it is in the public interest to do so.

(2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.”

[15] In Coal & Allied Mining Services Pty Ltd v Lawler and others, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 of the Act as “a stringent one”. 2 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.3 The public interest is not satisfied simply by the identification of error, or a preference for a different result.4 In GlaxoSmithKline, a Full Bench of the Commission identified some of the considerations that may attract the public interest:

“… the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.” 5

[16] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error. 6 However, that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.

Permission to Appeal

[17] We have decided to grant Mr Galloway permission to appeal but only in relation to Ground 1 – denial of procedural fairness.

[18] The Deputy President determined Ms Molina’s application and Mr Zhai’s application without receiving evidence from Mr Galloway personally. Mr Galloway claims that this is a denial of procedural fairness and, necessarily, a jurisdictional error.

[19] Superficially this argument is attractive. However, as will become apparent, the situation was significantly more nuanced: Mr Galloway was dilatory in his case preparation, the progress of the application was materially delayed by matters not of Ms Molina or Mr Zhai’s making, Mr Galloway asked for adjournments to better prepare his case and these adjournments were denied. On the two occasions that Mr Galloway could have given evidence, and following unsuccessful adjournment applications, Mr Galloway allegedly suffered medical misadventures that forced hearing days to be abandoned. After closing his evidentiary case Mr Galloway then applied to re-open his case, offering an explanation for his disappearance from the last two days of hearing, however the Deputy President considered and then ‘placed little weight’ on Mr Galloway’s explanation.

[20] The appeals raise important questions regarding the conduct of proceedings generally and the Commission’s obligations to act judicially in the performance of its functions. We are satisfied that it is in the public interest to grant the permission sought.

[21] For the reasons that are briefly expanded upon at the end of this decision, we do not grant permission to appeal the Molina Decision or the Zhai Decision in relation to Ground 2 and the application of the Small Business Code.

Procedural fairness and jurisdictional error

[22] The Commission is a statutory tribunal that is bound to act in a judicial manner and to observe procedural fairness in carrying out its functions.⁷

[23] Procedural fairness depends on a number of considerations including the statutory context, the nature of the matters in issue, and what would be a reasonable opportunity for parties to present their case in the relevant circumstance.⁸ The expression procedural fairness conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. 9 As such, the procedural fairness required in one case may be quite different to the procedural fairness required in another.¹⁰

[24] Procedural fairness requires the Commission to give each party a reasonable opportunity to present their case, however the Commission does not have to ensure that parties take the best advantage of that opportunity. 11 That said, procedural fairness requires that the hearing be both procedurally fair and be seen to be procedurally fair. This derives from the recognition of the importance of the process of the exercise of the Commission’s power and not just the correctness of the outcome.12

[25] More so, the opportunity to present a case to the Commission is not confined to giving parties the opportunity to stand up and say what they want to say; it necessarily extends to a reasonable opportunity to prepare their case before they are called on to present it. A mere allocation of court time is of no value if the party in question is deprived of the opportunity of getting their case in order and being able to present their case in the fullest sense. 13

[26] Any breach of procedural fairness constitutes jurisdictional error. 14 However, not every failure to provide procedural fairness at trial will entitle the aggrieved party to a new hearing. It is relevant to consider whether further information that might have come before the Commission if procedural fairness had been afforded would have made any difference.15 The materiality of a procedural breach is an ordinary question of fact in respect of which the applicant bears the onus of proof.16 As the High Court said in Stead v State Government Insurance Commission 17:

“All that the appellant needed to show was that the denial of natural justice deprived him of the possibility of a successful outcome. In order to negate that possibility, it was, as we have said, necessary for the Full Court to find that a properly conducted trial could not possibly have produced a different result.”

[27] Fairness is not an abstract concept - it is essentially practical. The concern of the law is to avoid practical injustice. 18

[28] The Commission is a busy specialist tribunal and must deal with matters efficiently as well as fairly. The Commission is not required to grant every adjournment application that a party might make, nor agree to every application by a party to reopen their evidentiary case. The Commission is entitled to take into account the effect of procedural applications on the Commission’s resources and the competing claims by litigants in other cases awaiting hearing, as well as the interests of the parties. 19

[29] Decisions on adjournments and the re-opening of cases are within the discretion of the Commission member. Members have some latitude as to the decision to be made and the correctness of the decision can only be challenged by showing error in the decision-making process. 20 Appeal benches should rarely interfere with decision on matters of practice and procedure such as refusals of adjournments.21

[30] In the present matter Mr Galloway had the opportunity to give evidence but he did not actually do so. The questions of principle that come sharply into focus on appeal are whether, in a practical sense, the opportunities given to Mr Galloway were reasonable and appropriate to the circumstances of the case, whether Mr Galloway was deprived of a proper opportunity to get his case in order and present his case in the fullest sense, and whether the Deputy President miscarried the discretion conferred upon her.

The Proceedings Before the Deputy President

[31] On appeal Mr Galloway does not take issue with the Deputy President’s account of how the proceedings progressed or didn’t progress, as the case may be. Annexure A to this decision is an extract from the Molina Decision that records the procedural matters that are material to the present appeals. The extract is necessarily lengthy because it records the context in which the Deputy President made her procedural decisions.

[32] The Deputy President’s decisions reveal a long list of deficiencies in the preparation and conduct of Mr Galloway’s case at first instance:

a) Mr Galloway required an extension in the timetable to file his evidence (Molina decision at [10]);

b) Mr Galloway’s material was filed after the extended filing date (Molina decision at [13]);

c) Mr Galloway filed his evidence on 10 July 2020, late, and the signed document bearing Mr Galloway’s name was in the form of a Statutory Declaration but was not witnessed by anyone. Mr Galloway’s filed evidence was described by the Deputy President as “poorly laid out, difficult to follow and many of the annexures were never filed with the Commission” (Molina Decision at [125]);

d) on Day 1 of the hearing Mr Galloway sought an adjournment because he had not engaged legal representation early enough to give his representative sufficient time to prepare (Molina decision at [16]);

e) on Day 2 of the hearing Mr Galloway purported to issue a Notice to Produce upon the Respondents, being an order that only the Commission can make (Molina decision at [18]). The documents sought by the Notice to Produce were, in the Deputy President’s view, of no apparent relevance or were already in Mr Galloway’s possession (Molina decision at [19]);

f) Mr Galloway handed up written submissions late. The submissions were filed by email on 30 July 2020, and were dated 13 July 2020 – being the date the submissions were due to be filed (Molina decision at [21]);

g) at 4:30pm on the day before the resumption of the hearing in October 2020, Mr Galloway foreshadowed by email on adjournment application and indicated that Mr Galloway intended to rely on “additional evidence discovered” by Mr Galloway.

[33] More significantly, there was a large amount of valuable hearing time lost. None of the lost time can be attributed to Ms Molina, Mr Zhai or their representatives. Of the five hearing days allocated by the Deputy President, more than three whole days were lost:

a) the matter was initially scheduled for three days: 29, 30 and 31 July 2020;

b) on Day 1 (29 July) Mr Zhai and Ms Molina gave evidence in Mr Zhai’s case and were cross-examined by Mr McGirr. The hearing on Day 1 commenced at 10:00am and concluded at 4:13pm;

c) Day 2 (30 July) was abandoned after 7 minutes because Mr Galloway was said to have flu-like symptoms and was attempting to have a COVID test. The whole of Day 2 was effectively lost;

d) Day 3 (31 July) was vacated because of Mr Galloway’s absence. The whole of Day 3 was lost;

e) on Day 4 (15 October) Ms Molina and Mr Zhai gave evidence in Ms Molina’s case and were cross-examined by Mr McGirr. In the middle of Day 4 the Deputy President indicated that she would sit until 5:00pm because “we want to get through this – we need to get through this in the next couple of days”. However, the proceedings were adjourned at 3:07pm because none of Mr Galloway’s final three witnesses were in attendance to give evidence. The last two hours of Day 4 were therefore lost; and

f) on Day 5 (16 October) Mr Galloway did not attend to give evidence, nor did his other two witnesses. The whole of Day 5 was lost.

[34] The Deputy President’s observation that “the manner in which the [Appellant], including through his legal representative, engaged with the Commission throughout the proceedings fell well short of the standard expected of a ‘highly experienced and well regarded lawyer’ is apt. 22

[35] On the two occasions that Mr Galloway’s application for adjournments were refused, alleged medical-related misadventure befell him shortly thereafter, preventing the hearing from continuing:

a) on Day 1 (29 July) Mr Galloway asked for the proceedings to be adjourned because his newly-instructed solicitor was not properly prepared. The adjournment application was refused. On Day 2 Mr Galloway claimed to have flu-like symptoms and the proceedings were adjourned. Day 3 was vacated because of Mr Galloway’s alleged flu-like symptoms. The hearing was then adjourned until 15 and 16 October.

b) on Day 4 (15 October) Mr Galloway asked for the proceedings to be adjourned to prepare additional evidence in chief. The adjournment application was refused. Mr Galloway’s evidentiary case opened later that day however by then Mr Galloway had left Mr McGirr’s offices (from where Mr Galloway and his witnesses were located for the hearing on Microsoft Teams) because of his wife’s alleged medical mishap, and then his own medical mishap. On his version of events Mr Galloway did not make contact again with Mr McGirr until after the proceedings had concluded on the morning of Day 5.

[36] Mr Galloway says he was denied procedural fairness in three decisions made by the Deputy President during the course of the hearing:

a) the decision to not adjourn the hearing on the morning of Day 1 (Ground 1.1);

b) the decision to not adjourn the proceedings on the morning of Day 4 and to not allow Mr Galloway to lead additional evidence in chief in response to answers giving in cross-examination (Ground 1.2); and

c) the decision to reject Mr Galloway’s application to re-open his evidentiary case (Ground 1.3).

[37] The Grounds of Appeal also claim as a separate ground, the decision to determine the applications without the Respondent’s evidence in chief. This decision is indistinguishable from the Deputy President’s decision to reject Mr Galloway’s application to re-open his evidence. We do not need to consider this sub-ground separately.

[38] We shall deal with each procedural decision in turn.

Day 1 Adjournment Application

[39] In his written submissions on appeal Mr Galloway concedes that “sub-ground 1(a) 23 in and of itself does not constitute a denial of procedural fairness, but … is relevant to the overall consideration of this ground [of procedural unfairness].” This concession by Mr Galloway is properly made. The Deputy President issued directions and then granted a concession to Mr Galloway of an additional two weeks to file his evidence in chief.

[40] Mr Galloway had the assistance of counsel for the preparation of his evidence and submissions. On 14 July 2020, two weeks before the scheduled hearing, Mr Overall of Counsel ceased to act for Mr Galloway. 24

[41] On the day before the first day of hearing Mr McGirr filed a notice of commencing to act for the Respondent. On Day 1 of the hearing on Wednesday 29 July 2020 Mr McGirr indicated that he had “only just come into the matter last Thursday evening”, which we take to be a reference to Thursday 22 July 2020. Mr McGirr was engaged 8 days after Mr Overall had ceased to act and one week before the hearing. Mr McGirr asked that the matter be adjourned for reasons that included “I think it’s unfair to my client because he hasn’t had time to instruct me properly; I haven’t had time to get all the documents I need”. Mr McGirr also sought the adjournment because, he said, “there are certain matters raised in [Ms Molina’s and Mr Zhai’s filed evidence in reply] that invite us to call other people to respond and get other documents to respond, which I regard as new matters outside the issue of a reply.”

[42] The Deputy President did not grant the adjournment requested stating “there has been sufficient time for the parties to prepare. If there are matters that have been raised in the reply evidence that are not properly in reply, then you can raise those when the statements are proposed to be tendered, and we will deal with any objections you have at that point in time.”

[43] We agree with Mr Galloway that the Deputy President’s decision not to grant Mr Galloway’s adjournment did not constitute a denial of procedural fairness.

Day 4 Adjournment Application

[44] Notwithstanding a 10-week period of apparent inactivity between the hearing in July 2020 and the rescheduled hearing in October 2020, Mr Galloway again asked for an adjournment of the hearing on the first morning (Day 4) of the October hearing dates. The adjournment application was foreshadowed in an email sent at 4:30pm the day before. Unsurprisingly, given that the adjournment application was not materially different to the previous adjournment application in July, Mr Galloway’s application was rejected.

[45] Whilst the Commission must necessarily be flexible with self-represented parties who are not familiar with the dynamics and imperatives of contested litigation, the Deputy President was entitled to expect far better conduct from Mr Galloway and his legal representative. It should have been quite obvious to Mr McGirr and to Mr Galloway that if they had any hope of obtaining leave to file this late evidence, they needed to take steps to ameliorate any prejudice that the late filing would cause to Ms Molina and Mr Zhai. Elementary steps include the preparation of the evidence itself, serving the evidence on the opposing party, approaching the Commission as soon as possible to seek permission to rely on the material, and so on. In the 10 weeks between hearing dates Mr McGirr and Mr Galloway appeared to have done nothing to prepare any further evidence.

[46] The adjournment request on the morning of Day 4 was unreasonable. The Deputy President did not deny Mr Galloway any procedural fairness when she rejected this adjournment request.

Re-opening the Appellant’s Evidentiary Case

[47] The strongest point of Mr Galloway’s appeal is his claim that the refusal by the Deputy President to allow him to reopen his case denied him procedural fairness because it resulted in the applications being determined without Mr Galloway’s evidence in chief.

[48] On the second occasion that Mr Galloway did not attend to give evidence, Mr Galloway’s evidentiary case was closed, the hearing was concluded, and a program was set for filing written closing submissions. Mr McGirr did not seek an adjournment, nor did he seek to tender Mr Galloway’s signed statement, nor did he attempt to call the other two witnesses scheduled to give evidence on behalf of Mr Galloway that day.

[49] Instead, several days later, Mr McGirr applied to reopen Mr Galloway’s evidentiary case. Mr Galloway made a Statutory Declaration supporting his application.

[50] Mr Galloway’s application to reopen his evidentiary case called upon the Deputy President to make a procedural decision to exercise her discretion in favour of Mr Galloway. The consequences of the Deputy President’s decision were that Mr Galloway would have another opportunity to give evidence, or he would not, and that if he did not have another opportunity to give evidence then the two applications would be determined without any evidence from him.

[51] As is apparent from the principles recited earlier, the Deputy President was bound to act in a judicial manner, was bound to avoid a practical injustice, needed to ensure that Mr Galloway had been given a reasonable opportunity to prepare and present his case, and had considerable latitude in the exercise of her discretion.

[52] The Deputy President identified the following considerations to be relevant 25:

a. Is the evidence relevant, in that it engages in one or more of the issues requiring determination?

b. Was the evidence able to be obtained with reasonable diligence for use during the hearing?

c. Are the interests of justice served better by allowing or rejecting the evidence?

d. What is the likely prejudice to the party resisting the application?

e. Will a denial of procedural fairness likely arise if a party does not have an adequate opportunity to argue its case?

f. Was the evidence not led because of inadvertence or mistake?

[53] Mr Galloway submitted that the Deputy President “correctly included whether there would be a denial of procedural fairness to a party … and whether the evidence of the Appellant was relevant to the proceedings”. Mr Galloway submits that:

“Notwithstanding these considerations, these were outweighed by the Deputy President’s failure to accept the explanation provided by the appellant, a legal practitioner provided by way of statutory declaration. Additionally she relied upon an apparent incorrect assessment that the sole cause for the alleged length of time taken for the proceedings, lay squarely with Appellant.”

[54] In order to deal with this proposition we will firstly consider whether the Deputy President miscarried her discretion in addressing erroneous considerations, then secondly consider whether the Deputy President’s failure to accept the explanation provided by Mr Galloway was an appealable error, and then thirdly consider whether the Deputy President’s discretion miscarried when she rejected Mr Galloway’s application to re-open his evidence.

[55] Firstly, when the factors identified by the Deputy President are measured against the principles recited earlier in this decision, we can readily see that the Deputy President turned her mind to the essential considerations that she was obliged to take into account. The Deputy President did not act upon a wrong principle or allow extraneous or irrelevant matters to guide or affect her and she did not fail to take into account material considerations. 26

[56] Mr Galloway’s submission is principally directed to the weight applied by the Deputy President to particular considerations, rather than to any misdirected inquiry.

[57] The Deputy President ultimately “placed little weight” on Mr Galloway’s explanation for his non-attendance on Days 5 and 6 of the hearing. The Deputy President found 27:

“At the time I made the decision not to reopen the proceedings, I considered the following:

a. The explanation provided by Mr Galloway as to his non-attendance on 15 and 16 October 2020. In this regard I was persuaded by the submissions of the Applicants that Mr Galloway’s statutory declaration was self-serving and not supported by other obtainable evidence, and given his prior conduct in the proceedings, I considered that I should place little weight on it.”

[58] The Deputy President’s summary of Mr Galloway’s explanation for his absence is as follows 28:

In Mr Galloway’s statutory declaration, he explained his non-attendance on 16 October 2020 as follows:

a. When he arrived home at around 1.55pm on 15 October he assisted his wife inside their house.

b. Shortly after this time, their dog Jock was extremely excited and so Mr Galloway bent over to give him a calming pat. Unfortunately, Jock jumped up and hit Mr Galloway’s face which caused him to fall backward and hit his head.

c. Mr Galloway was not sure but thinks he could have lost consciousness.

d. When he regained his senses, he realised he had blood in his mouth and had a loose tooth.

e. He went inside and told his wife.

f. They called a taxi at about 5.30pm and went to a dentist.

g. The dentist advised him to go to a doctor as soon as possible if he had been unconscious.

h. Mr Galloway and his wife went to the medical centre at Darlinghurst as it was outside his regular doctors’ hours.

i. He told the doctor what had happened and the doctor told Mr Galloway to go and have tests done. He was given a referral to St Vincent’s Hospital and was provided with a medical certificate.

j. The referral to St Vincent’s Hospital was in the following terms: “Thank you for seeing Mr Brett Galloway, aged 59 years. Brett is feeling very unwell today, dizzy, nauseous etc. He has prominent nystagmus on examination today. I would appreciate review and perhaps imaging to clarify his diagnosis...”

k. The medical certificate was in the following terms: “This is to certify that Mr Brett Galloway is unable to work from 15/10/2020 to 16/10/2020 inclusive due to a medical condition”.

l. Mr Galloway said he then went to St Vincent’s Hospital and on arrival was told he would need to wait as there was quite a large number of people there.

m. As he was not feeling well, he and his wife decided to go home at around 8.30pm and return to the hospital the following day or sometime later.

n. Mr Galloway said that when he got home he said to his wife that he should check his phone for messages because Mr McGirr needed to know what had happened, but his wife told him to check his phone in the morning because he was always up early, to which Mr Galloway agreed.

o. Mr Galloway then took a dose of Valium to help him sleep. He said he woke up at around 10am the next morning and said to his wife: “goodness look at the time. I’m supposed to be in court, ring Paul McGirr urgently and tell him what has happened”.

p. Mr Galloway said he heard the conversation between Mr McGirr and his wife that took place at around 10.10am, during which his wife told Mr McGirr that Mr Galloway had been unwell and only just woken up, and Mr McGirr replying that the Deputy President had just declared the proceedings concluded around 10 minutes ago and the case was over. Mr McGirr also said he had been phoning and emailing Mr Galloway but had had no reply from him.

q. Mr Galloway said that given how he was feeling that morning, it would have been unwise for him to give evidence as he was not thinking clearly and was still suffering from slight vertigo.

r. Mr Galloway said he had been unwell for some time and in hindsight he realised that the illness from which he was suffering has resulted in him being unable to properly instruct counsel and unable to properly prepare for these proceedings. His illness had also resulted in him taking 10 hours to do something that used to take him one hour to complete, and the simplest of tasks had become very difficult.

s. He apologised for the delay caused by him in this matter, declared that he wished to give evidence on his own behalf, and said that the events on 15 and 16 October were a result of a genuine accident.

[59] The central question is whether the Deputy President erred in “placing little weight” on Mr Galloway’s explanation for his absence of Days 4 and 5. Mr Galloway’s submissions imply, but do not directly submit, that Mr Galloway’s explanation is credible. The Deputy President did not appear to regard Mr Galloway’s explanation as credible.

[60] The task on appeal is to review the process undertaken by the Deputy President rather than to separately make our own findings of fact. Mr Galloway presumably provided his best evidence to the Deputy President and the Deputy President did not find it satisfactory.

[61] The Deputy President considered Mr Galloway’s “prior conduct in the proceedings” which she was entitled to do. However, the Deputy President’s finding that Mr Galloway’s evidence was “not supported by other obtainable evidence” was not reasonably open for her to find in the circumstances. Mr Galloway provided a certificate from a medical practitioner recording specific medical conditions that the doctor presumably independently observed.

[62] We accept that it was open to place little weight on evidence from Mr Galloway himself where his evidence was not supported by other evidence, however the Deputy President erred in also placing “little weight” on the medical evidence before her. This medical evidence was material to Mr Galloway’s explanation for his absence. In her reasons the Deputy President did not explore why she placed little weight on the medical evidence. The absence of explanation for, and reasoning in support of, the Deputy President’s conclusion reveals that the process of fact finding miscarried. 29

[63] In his submissions on appeal Mr Galloway referred to the fact that he is a legal practitioner, as if to imply that his statutory declaration has a greater credibility than statutory declarations made by others. In Mr Galloway’s case this submission is aspirational at best. The Deputy President was so dissatisfied with Mr Galloway’s conduct in the proceedings before her that she made specific observations in the Molina Decision and the Zhai Decision about how Mr Galloway’s conduct fell short of the standard expected of a legal practitioner: 30

[64] Mr Galloway’s submissions on appeal also suggest that the Deputy President erred by relying upon “an apparent incorrect assessment that the sole cause for the alleged length of time taken for the proceedings lay squarely with the Appellant.” Mr Galloway seems to draw a distinction between Mr Galloway being the sole cause of the delays in the proceedings and Mr Galloway causing only some or most of the delays. Mr Galloway did not elaborate on how this apparent incorrect assessment had an effect, let alone a material effect, on the Deputy President’s deliberations. In any event the Deputy President did not explicitly find or suggest that the sole cause of the delays in the proceedings lay squarely with Mr Galloway.

[65] In Australian Education Union v Bendigo Kangan Institute of TAFE [2021] FWCFB 3649 the Full Bench provided the following useful summary:

“[36] In Fox v Percy Gleeson CJ, Gummow and Kirby JJ said at [23]:

“[An appellate court] must, of necessity, observe the ‘natural limitations’ that exist in the case of any appellate court proceedings wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses’ credibility and of the ‘feeling’ of a case which an appellate court reading the transcript, cannot always fully share.” (footnotes omitted)

[37] In Robinson Helicopter v McDermott the High Court, citing Fox v Percy, said the following at [43]:

“A court of appeal conducting an appeal by way of rehearing 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 judge has erred in fact or law. If the court of appeal concludes that the judge has erred in fact, it is required to make its own findings of fact and to formulate its own reasoning based on those findings. But a court of appeal should not interfere with a judge's findings of fact unless they are demonstrated to be wrong by ‘incontrovertible facts or uncontested testimony’, or they are ‘glaringly improbable’ or ‘contrary to compelling inferences’” (footnotes omitted)

[38] The principles in Fox v Percy have been consistently applied by Full Benches of the Commission. On appeal, the factual findings made by a member at first instance should generally stand, unless it can be demonstrated that the member has failed to use their advantage in respect of the hearing of the evidence, or has acted on evidence which was inconsistent with facts incontrovertibly established by the evidence or which was “glaringly improbable”. The natural limitations that apply to the hearing of an appeal by a Full Bench include the inability of the Bench to hear the witnesses, and the constraints of time that prevent the Full Bench being taken to all of the evidence in detail. The member at first instance is in a better position than the appeal bench to make findings of fact. Further, an appeal to a Full Bench exists for the correction error. It is not a hearing de novo.”

[Footnotes omitted]

[66] The Deputy President’s decision to place little weight on the medical evidence provided by Mr Galloway was material to her decision to place little weight on Mr Galloway’s whole explanation for his absence from the hearing on 15 and 16 October 2020. The only conclusion available on appeal is that the Deputy President’s process of fact finding miscarried in assessing to Mr Galloway’s explanation for his absence from the scheduled hearing.

[67] The Deputy President’s consideration of Mr Galloway’s explanation was but one factor considered in deciding not to allow Mr Galloway to reopen his evidentiary case. We turn now to consider whether Mr Galloway was afforded procedural fairness when the Deputy President declined Mr Galloway’s application.

[68] The Deputy President’s reasons for declining Mr Galloway’s application to re-open his case are contained in the following paragraphs of the Molina Decision and the Zhai Decision:

“[50] At the time I made the decision not to reopen the proceedings, I considered the following:

b. That the evidence of Mr Galloway is relevant to the proceedings.

c. The evidence of Mr Galloway was available for use during the hearing and there was a reasonable opportunity for him to put his evidence before the Commission.

d. The interests of justice would be better served by not reopening the proceedings in the circumstances described in the procedural history above.

e. The prejudice to the Applicants would have involved further delay and additional legal costs, in circumstances where Mr Galloway’s conduct had already resulted in both delay and increased costs for the Applicants.

f. There is no denial of procedural fairness as the Respondent has had an adequate opportunity to argue its case.

g. There is no suggestion that evidence was not led because of inadvertence or mistake.

[51] Further, there is a strong public interest in maintaining the finality of litigation.

[52] I also note that Mr Galloway and Mr McGirr were on notice on 15 October 2020 that the proceeding would not be allowed to drag out further than what had already occurred. This is clear from the exchange that took place between Mr McGirr and me at the beginning of the day when Mr McGirr was seeking permission to introduce new evidence:

THE DEPUTY PRESIDENT: Well, Mr McGirr, I'm sure you're very experienced in litigation and you would know that it's not the normal course that, you know, once you've finished your cross-examination, you don't get another turn, that's it, we've moved on.

MR McGIRR: That is normally the case.

THE DEPUTY PRESIDENT: Yes. And these proceedings have already taken significantly longer, in terms of our normal time frames. It’s not normal - it may be perfectly acceptable in other courts, but in the Fair Work Commission we have an obligation to deal with matters quickly. It's a particular requirement of the Act and this is already going for a very long period of time. So - - -

MR McGIRR: Well, (indistinct) - - -

THE DEPUTY PRESIDENT: I'm not at liberty to simply keep giving parties the opportunity to provide new evidence and extend these proceedings beyond what has already been a reasonable time frame, to provide evidence and deal with the hearing.

[53] Having considered all of these matters, I was satisfied that, on balance, the proceedings should not be reopened.”

[69] The Commission is obliged to provide the parties with a reasonable opportunity to present their case. If a party fails to take up that opportunity by, for example, failing to adequately prepare their case in the time available, or by failing to have all necessary witnesses available to give evidence, the Commission is not required to rescue that party’s case by reconvening a further hearing. The Commission might do so, particularly if no prejudice arises to other parties, but it is not required to do so.

[70] Mr Galloway, by his own admission, did not properly prepare his case for hearing. The proceedings had already been substantially delayed - in 5 days of hearing more than 3 whole days had been wasted - and if Mr Galloway’s application was granted the proceedings would be even further delayed.

[71] The Deputy President was justifiably concerned about the prejudice to Ms Molina and Mr Zhai if Mr Galloway was allowed a further opportunity to give evidence, as well as the likely additional costs incurred by them.

[72] In these circumstances, and with these appropriate concerns held by the Deputy President, the adequacy of Mr Galloway’s explanation for his absence was a significant factor, perhaps even determinative. If Mr Galloway had a bad explanation for his absence, or even no good explanation, then it would have been readily open to the Deputy President to be satisfied that Mr Galloway had been given a reasonable opportunity to present his case and to find that the interests of justice were better served by not reopening the proceedings.

[73] Recognising that the Deputy President’s process of fact finding miscarried when she decided to place little weight on Mr Galloway’s explanation, it necessarily follows that the Deputy President’s discretion miscarried when she decided to refuse Mr Galloway’s application to re-open his evidence.

[74] In these circumstances the Deputy President did not afford procedural fairness to Mr Galloway.

[75] A practical injustice arose that requires intervention by the Full Bench. It is self-evident that the breach was a material one insofar as Mr Galloway did not then give any evidence on his own behalf. Mr Galloway’s evidence might have made a difference to the outcome of the proceedings and in the circumstances, he is entitled to a re-hearing.

Ground 2 – the Small Business Code

[76] Ground 2 of Mr Galloway’s appeal is as follows:

“2. The Deputy President erred in law, by applying the incorrect test in determining whether the applicant’s conduct constituted serious misconduct.”

[77] The entirety of Mr Galloway’s submissions in relation to Ground 2 are as follows:

“In Ryman v Thrash Pty Ltd t/a Wisharts Automotive Services [2015] FWCFB 5264 a Full Bench of this Commission determined that the types of conduct listed in Regulation 1.07 were not meant to be exhaustive, given that they did not include other types of behaviour which may well constitute misconduct justifying summary dismissal.

The Deputy President took the approach of considering that the reasons provided by the Appellant in summarily dismissing the Respondent were not one of those proscribed within the list in regulation 1.07. This was an integral part of the reason that the Deputy President found that the Code had not been complied with by the Appellant.

The approach adopted by the Deputy President was inconsistent with that identified in Ryman and by doing so, she fell into error.”

[78] Mr Galloway’s submissions misconstrue the Deputy President’s reasoning. The Deputy President does not find, in either decision, that the summary dismissal provisions in the Small Business Code only apply to the examples of misconduct “within the list” in regulation 1.07. 31 The Deputy President does not refer to “the list” within Regulation 1.07 at all. The Deputy President does refer to “serious misconduct as defined in Regulation 1.07” which is consistent with the Full Bench’s reasoning in Ryman v Thrash Pty Ltd t/a Wisharts Automotive Services.

[79] There is no arguable merit to Ground 2 of the appeals. We are not satisfied that it is in the public interest to grant permission to appeal in relation to Ground 2 and we decline to do so.

Orders

[80] We order as follows:

(1) Permission to appeal is granted.

(2) The appeal is upheld.

(3) The Molina Decision and the Zhai Decision are quashed.

(4) Matters U2020/4351 and U2020/4410 are remitted to the Region 1 Regional Coordinator for allocation to another Member for re-hearing.

al of the Fair Work Commission with member's signature,

VICE PRESIDENT

Final written submissions:

Respondent’s written submissions dated 28 May 2021.

Printed by authority of the Commonwealth Government Printer

Appendix A – Excerpt from

Milena Molina v Brett Galloway [2021] FWC 1756

[9] The Applicants filed their witness statements and submissions in accordance with the Commission’s directions on 17 June 2020.

[10] On 3 July 2020, Mr Overall, Counsel for the Respondent, sought an extension of time to file the Respondents material. The extension was granted, and the material was due on 13 July 2020.

[11] On 14 July 2020 the Commission wrote to Mr Overall as no material had been filed by the extended due date.

[12] Mr Overall wrote to the Commission later on 14 July 2020. The email reads:

“Dear Ms Wong,

Thank you for your email re the above matters.

I have today (Tuesday 14 July) ceased to act for APT Corporation in both the Molina and the Zhai matters.

I have impressed upon Mr. Galloway, particularly over the past week that he needs to prepare statements of evidence and file and serve them on Monday 13 July.

On Sunday 12 July, I provided Mr Galloway with 3 written and signed submissions so he could file and serve them the next day in accordance with the Commission’s orders. These submissions were drafted from oral instructions given to me by Mr. Galloway. and some draft statements of evidence. Those 3 submissions were:

1. In ZHAI - Submissions that the FWC lacks jurisdiction to hear the matter;

2. In ZHAI - Submissions on the substantive matter; and

3. In MOLINA - Submissions on the substantive matter

I informed Mr. Galloway that he must file and serve these submissions together with statements of evidence on Monday 13 July as per the Commission’s orders.

On Monday 13 July and on Tuesday I made numerous attempts to contact Mr. Galloway seeking to confirm whether he had filed and served the submissions and statements. Mr Galloway did not answer my phone calls. He did not call me back after I left messages on his phone. He did not respond to my emails nor to my SMS messages.

In addition to my inability to obtain proper instructions there is a further ethical issue that I have raised with Mr. Galloway on numerous occasions and that he has failed to address. Accordingly, I have informed Mr Galloway that I have ceased to act for him and his company.

I have done my best to ensure the Commission’s orders were complied with. However, compliance was out of my hands. I trust my ceasing to act will not seriously inconvenience the Commission. I trust the Commission will understand that I can no longer act in this matter where my ethical obligations are compromised.

Finally, I confirm that I will not be attending the second conciliation conference listed for Friday 17 July. I have informed Mr Galloway that he should attend this conference.

Kind regards,
John Overall B.Agr; Dip.Ed. LLB(Hons)
Barrister”

[13] The Respondent’s submissions and witness statements were subsequently filed on 14 July 2020.

[14] Ms Molina’s submissions in reply were filed on 22 July 2020.

[15] On 28 July 2020 Mr Paul McGirr, solicitor, filed a notice of commencing to act for the Respondent.

[16] The first hearing day was scheduled for 29 July 2020. At the commencement of the hearing Mr McGirr made an application for an adjournment on the basis that he had not had sufficient time to obtain proper instructions. The application was not granted given the time already provided to the parties to prepare for the hearing, and that it was a choice made by Mr Galloway to change legal representation so close to the commencement of the hearing. The hearing proceeded on 29 July 2020.

[17] The second day of the hearing was scheduled for the following day, 30 July 2020, and Mr Galloway was scheduled to give his evidence. At 8:38am on 30 July 2020 an email was received from Mr McGirr who advised that Mr Galloway had flu symptoms and required a COVID test.

[18] When the hearing commenced on 30 July 2020 Mr McGirr indicated he had issued a notice to produce that morning in relation to both Applicants. I explained to Mr McGirr that he needed to make an application to the Commission for an order for production if he wished to have the Applicants produce documents. Mr McGirr was also advised that the adjournment, which became necessary because of Mr Galloway’s alleged illness, would not be used as an opportunity to ‘improve’ his client’s case – something that Mr McGirr had been complaining about during the first day of hearing when the Applicants sought to answer his questions with something other than a yes or no answer.

[19] Mr McGirr outlined the documents being sought as tax records of Ms Molina and airplane booking records of Ms Molina over a specified time period. I indicated at the time that the documents sought were either of no apparent relevance or were, or ought to have been, in the possession or control of the Respondent. Further, if this were the case, I would be unlikely to issue an order for production but would make a final decision when such an application was properly made.

[20] Other than dealing with these procedural matters on 30 July, the proceedings were adjourned due to Mr Galloway’s absence.

[21] Also on 30 July 2020, Mr McGirr emailed a document to the Commission headed ‘Respondent’s outline of submissions on jurisdiction’ which related to Mr Zhai’s application. This document was dated 13 July 2020 but had not previously been filed by the Respondent.

[22] The hearing date of 31 July was subsequently vacated due to Mr Galloway’s alleged illness. The applications were relisted for 17 and 21 August, however due to the unavailability of the parties, the hearing dates were pushed back to 15 and 16 October 2020.

[23] An application for an order for production was subsequently made in respect of Ms Molina. As a further conciliation conference had been arranged with another member of the Commission, the application for an order for production was considered at the commencement of the next hearing date.

[24] In an email dated 14 October 2020, Mr McGirr indicated that further ‘preliminary matters’ would be raised at the hearing the following day. These matters included ‘the issue of additional evidence discovered’ by Mr Galloway, and Mr McGirr foreshadowed an application for a further adjournment. Additionally, the jurisdictional objection raised in mid-July relating to Mr Zhai needed to be dealt with.

[25] At the outset of the hearing on 15 October 2020 the Respondent’s application for an order for production was considered. I declined to make the order and the reasons are set out later in this decision.

[26] Ms Molina concluded her evidence on 15 October 2020, as did Mr Zhai. The Respondent’s witnesses were not available at the conclusion of the Applicants’ evidence, resulting in a further delay. When the hearing resumed later on 15 October, the evidence of Mr Vu and Mr Silvestre was taken.

[27] Shortly after 1pm on 15 October, Mr McGirr advised the Commission that Mr Galloway had to go home because his wife had fallen over and he had to attend to her. Mr Galloway was then unavailable to give his evidence. The hearing concluded early as no further witnesses of the Respondent were available. It was agreed that the hearing would resume at 9am on 16 October to ensure that the remaining witnesses would be finalised that day.

[28] At 9am on 16 October 2020, Mr Galloway was not in attendance, nor were the Respondent’s remaining witnesses. The hearing was stood over until 10am to allow Mr McGirr further time to attempt to contact his client. At 10am, Mr McGirr advised he had had no contact from Mr Galloway since the previous afternoon and had been unable to contact him. The hearing was then concluded and directions were issued regarding the filing of closing submissions.

[29] On 19 October 2020 the Applicants filed their closing submissions in accordance with the Commission’s directions. The closing submissions of the Respondent were due on 21 October 2020.

[30] Instead of receiving closing submissions from the Respondent, Mr McGirr filed a submission seeking the proceedings be reopened to allow the evidence of Mr Galloway and his remaining witnesses. He filed a statutory declaration of Mr Galloway in support of the application to reopen, along with a medical certificate dated 15 October 2020 certifying that Mr Galloway was unable to work from 15 to 16 October 2020 due to a medical condition.

[31] Closing submissions were subsequently filed by the Respondent on 22 October 2020 on the basis that the application to reopen the proceedings may be declined.

[32] On 23 October 2020 the Applicants filed their submissions in reply.

[33] On 26 October 2020 the Commission advised the parties that the application to reopen the case was refused. The reasons for refusing the application are set out later in this decision.

Procedural and jurisdictional matters

[34] As noted earlier, there are several matters that need to be dealt with in this decision. I will deal with them now, before turning to whether Ms Molina’s dismissal was unfair.

….

Application to reopen case

[45] On 16 October 2020, when it became obvious that Mr Galloway was not in attendance, I asked Mr McGirr whether there was any reason I should not conclude the proceedings at that time and deal with the application based on the material before me. That material clearly did not include any evidence of Mr Galloway. Mr McGirr’s response was: “I have no information as what’s happened to my client so I have nothing further to put”. I then concluded the proceedings and confirmed the directions for the filing by both parties of their closing submissions.

[46] As outlined in paragraph 30 above, Mr McGirr made an application to reopen the proceedings on 21 October 2020 to allow the evidence of Mr Galloway and the Respondent’s remaining witnesses.

[47] In Mr Galloway’s statutory declaration, he explained his non-attendance on 16 October 2020 as follows: