PN1

VICE PRESIDENT CATANZARITI: Thank you. I will take the appearances, please, Mr Boncardo.

PN2

MR P BONCARDO: If the Full Bench pleases, I seek permission to appear on behalf of the appellant.

PN3

VICE PRESIDENT CATANZARITI: Thank you. Mr Arndt?

PN4

MR J ARNDT: If the Commission pleases, I seek to appear with permission on behalf of the respondent.

PN5

VICE PRESIDENT CATANZARITI: Yes. Permission is granted for both counsel. Thank you. The Full Bench has had the opportunity to consider the extensive written material and all the material in the matters filed on this appeal. We now invite short oral submissions, Mr Boncardo.

PN6

MR BONCARDO: Thank you, Vice President. I propose to say something very shortly about appeal ground 2 and appeal ground 3 and then make a short reference to appeal ground 1.

PN7

In respect to appeal ground 2, my learned friend at paragraphs 45 to 47 of his submissions contends that the Deputy President below did take into account actions by my client's partner, Ms O'Sullivan as actions falling under the umbrella of section 394(3)(c). And he isolates the first - well, a phrase the first sentence used by her Honour at paragraph 83 of the decision which is at appeal book 26, to the effect that Ms Sullivan took some action as a consequence of the dismissal.

PN8

But in our submission, when that sentence is read as a whole, it is plain that her Honour was not taking into account a matter relevant for the purposes of section 394(3)(c), the action taken as a consequence of the dismissal by Ms O'Sullivan.

PN9

That is plain, in my submission, from the language used by her Honour. That is, action taken as a consequence of the dismissal. She does not identify the action as action taken disputing the dismissal.

PN10

Secondly, the Full Bench will see that the sentence commences with the word 'while', and concludes that the action taken as a consequence of the dismissal was not specifically directed at making an unfair dismissal application. In other words, her Honour discounts as relevant what my client's partner did, in her communications to the Commission on the 7th and 12 October, as matters that could be taken into account under section 394(3)(c), because they were not specifically directed at making an unfair dismissal application.

PN11

My learned friend says at paragraphs 50 and 53 of his submissions that all her Honour was doing was characterising the nature of the correspondence. But with respect that is not borne out by what is said in that first sentence and I've set out the correspondence in my written submissions.

PN12

But that correspondence which the Commission will find at appeal book 110 and 111 where Ms O'Sullivan is writing to the anti-bullying team or an email address she thought was the anti-bullying team's email and the enquiries email address for the Commission makes clear that she was agitating the dismissal of my client in a manner that can only be properly described as a dispute of that dismissal.

PN13

And properly read, those communications do constitute a disputation of the dismissal and our contention is that there was an error of approach and construction which would justify the grant of permission, because of the erroneously narrow view that her Honour appears to have adopted in the first sentence of paragraph 83. Secondly, my learned friend makes the point that it's well open to the Commission to take into account that the action was not directed to the employer in terms of putting the employer on notice that the dismissal was being disputed.

PN14

And my friend says, somewhat rhetorically at paragraph 48 of his submissions that the applicant or the appellant I should say is unable to point to any matter that the Deputy President did not take into account as action disputing the dismissal.

PN15

But can I take the Full Bench to appeal book 92. This is an attachment to my client's statement below. It's an email sent by him to Margaret Kidd on 29 September 2021 at 2.26 pm. Now, this is in the course of an exchange between my client and Ms Kidd about my client's personal leave and his injuries that he sustained on 17 September.

PN16

And the Full Bench will see my client complaining about two days sick leave only being paid to him and then saying that he has some six weeks' sick leave owing when he went on leave prior to knowing about being terminated. And then he says this, 'You cannot terminate me whilst I'm on sick leave.' And he goes on to talk about his injuries to his ribs.

PN17

So there is a complaint to the respondent about the dismissal and an assertion that the dismissal was not permissible by reason of him being on sick leave.

PN18

So my friend is not correct, with respect, to say that there was simply nothing before the Deputy President which was directed to the respondent disputing the dismissal. And we rely upon that as a matter that was a relevant matter that her Honour overlooked which we say resulted in the discretion miscarriage.

PN19

The final matter I wish to raise with respect to appeal ground number 2 is that her Honour, as I said, previously discounts at paragraph 83 the action taken, such as it was, by Ms O'Sullivan as not putting the respondent on notice about my client disputing the dismissal.

PN20

And in addition to the matter I've just drawn the Full Bench's attention to, I rely upon the Full Bench decision in Cowen v Renascent Regional Pty Ltd, which I understand was sent through to the Full Bench yesterday. The media neutral citation is [2021] FWCB 2606.

PN21

The factual matrix of that case was somewhat different to the matter here in that the appellant went to a solicitor, asked the solicitor to file an application. There was some miscommunication and misunderstanding on the solicitor's part and that application wasn't filed, but it was taken into account for the purpose of section 394(3)(c) at paragraph 31 and also at paragraph 40 by the Full Bench that the fact that the appellant Mr Cowen had gone and sought to have his solicitor file an application was a conduct relevant to section 394(3)(c).

PN22

And the Full Bench will see that in that case it is quite clear that the employer was entirely unaware of what Mr Cowan was doing in engaging with his solicitor. And, in my submission, the fact that the action did not put the employer on notice in this case, for the simple reason that Ms O'Sullivan didn't copy the employer into her communications with the Commission, bespeaks error and bespeaks - - -

PN23

VICE PRESIDENT CATANZARITI: Mr Boncardo, not every error of fact is going to be deemed to be significant. We are fully aware of the decision you are referring to.

PN24

MR BONCARDO: Yes.

PN25

VICE PRESIDENT CATANZARITI: And it's that particular fact in that particular consequence. You are drawing an analogy -= that's fine, but it's not a proposition to say, 'Well, there's an error of fact here. That's enough.'

PN26

MR BONCARDO: Perhaps I wasn't articulating the point as clearly as I should have been, Vice President, but the point I'm making is not that there was an error of fact by the Deputy President. It's that her approach, as evinced in the second sentence of paragraph 83, is far too narrow in that she is discounting, in our submission, the action taken because it did not put the employer on notice.

PN27

Those are the points I wish to make in respect to appeal ground 2. I will be even briefer in respect to the last two appeal grounds. Appeal ground 3, focuses on the analysis at paragraph 86 of the decision at appeal book 27. The Full Bench will there see that her Honour correctly records with respect that there are factual disputes between the parties and then she determines that the matter is not totally without merit, but goes on to say that it doesn't seem to have or it's not possible to say that it has strong prospects and therefore resolves that, at paragraph 87, in the circumstances the merits are a neutral consideration.

PN28

In my submission, having concluded that the application was not totally without merit, the general approach of the Commission having reached that view under section 394(3)(e) is to find that that matter appoints in favour, albeit only slightly in favour of the existence of exceptional circumstances.

PN29

My learned friend has relied upon, in his list of authorities a decision of Gostencnik DP in the matter of Potapova v Alfred Health [2022] FWC 225 and at paragraphs 13 to 14 of that decision, the Full Bench will see that the Deputy President concludes that the application, prima facie, has some merit and that is a factor that bears, albeit slightly in favour of the existence of exceptional circumstances.

PN30

A similar finding was made in Robinson v Interstate Transport [2011] FWAFB 2728, at paragraph 39, another decision relied upon by my friend and also in Cowen's case, at paragraph 44.

PN31

In our submission, what the Deputy President appears to have done, which we say conveys an error of principle is that she found that the application was not without merit, but then gone and made an assessment of the merits on the basis that she concludes that the employers followed a detailed and comprehensive show cause process. In doing that, she has delved, we say, unnecessarily and impermissibly into the merits and that has caused her assessment of that ground to miscarry.

PN32

In respect to the first appeal ground, very briefly in response to my learned friend's written submissions, we say that when the Full Bench reads paragraph 79 and 80 as a whole, what the Full Bench will see is that that the Deputy President has erroneously conflated her consideration of whether there are exceptional circumstances having regard to all of the factors under section 394(3), with whether or not one of those factors, being the explanation for the delay can in and of itself constitute an exceptional circumstance.

PN33

And in the final sentence of paragraph 79, in the context of a discussion about representative error, she concludes that an applicant may rely upon another person who is not a representative in the sense of a lawyer or an industrial advocate to file their application cannot of itself be a reasonable explanation for delay, constituting an exceptional circumstance.

PN34

Now, my friend points out that paragraph 80, she does not use the phrase 'exceptional circumstances' in setting out that my client had not provided a reasonable explanation for the delay, but that needs to be considered, we say, in the context of paragraph 79, where her Honour appears to - particularly when read in light of the first sentence of that paragraph - adopt the position that unless the explanation for the delay in and of itself constitutes an exceptional circumstance, that that is that the explanation cannot be taken into account as a factor weighing in favour of the time limitation being extended by reason of there being exceptional circumstances.

PN35

And we rely upon the analysis at paragraph 76 and 77 at appeal book 25 in support of that submission. What her Honour does there in discussing representative error, the basis for contending that there are exceptional circumstances is, particularly at paragraph 77 in the last sentence, make it clear that the mere fact that someone relies upon a person other than a lawyer or industrial advocate, in this case, Mr Thomson relied on Ms O'Sullivan to file their application, cannot be an exceptional circumstance, as that would subvert the purpose of section 394(3), in my submission that analysis feeds into paragraph 79 and 80, and whilst - what her Honour says there as a matter of general principle is not controversial. What she has done at paragraph 79 and 80 is discount the explanation, because she does not find the explanation in and of itself to constitute an exceptional circumstance.

PN36

We content that one or other of those errors justify a grant of permission and the quashing of the decision and we submit that it would be appropriate if permission was granted and the decision were quashed for the Full Bench to extent time, having regard to all of the circumstances. Unless the Full Bench has any questions, those are the submissions.

PN37

VICE PRESIDENT CATANZARITI: Thank you. Any questions, Deputy President Anderson?

PN38

DEPUTY PRESIDENT ANDERSON: No questions, Vice President.

PN39

VICE PRESIDENT CATANZARITI: Commissioner Hampton?

PN40

COMMISSIONER HAMPTON: Yes. Mr Boncardo, do I take it it's common ground between the parties that section 400 is engaged here because of the jurisdiction within the extension of time matter was dealt with?

PN41

MR BONCARDO: Yes. As I understand it.

PN42

COMMISSIONER HAMPTON: Good. Yes, I appreciate you can only speak for yourself. Thank you very much, Mr Boncardo.

PN43

MR BONCARDO: Thank you , Commissioner.

PN44

VICE PRESIDENT CATANZARITI: Mr Arndt.

PN45

MR ARNDT: Thank you, Vice President. Commissioner, I can concur with the question or it is common ground rather. I appreciate the Vice President's comments at the start that our written submission has been accepted. That was dated 22 March. We continue to rely on that. Given that submission was relatively comprehensive, I will only trouble the Full Bench with five matters this morning, relating solely to the appeal grounds. First, I want to address the - apologies, I heard some disturbance. First I want to address the relevant questions arising on appeal about the medical state of the appellant. Secondly, I want to address the specific claims of the appellant regarding the application of the relevant rest by the Deputy President. Thirdly, I want to address the relevant aspect of the appeal in relation to representative error. Fourth, the issues on appeal about the steps taken to dispute the dismissal and, lastly and very briefly, addressing the Deputy President's finding on the assessment of merits. So firstly to the medical evidence.

PN46

I might just ask, and I apologise to the Full Bench, I'm getting some feedback on my end. I wonder if all parties are muted?

PN47

VICE PRESIDENT CATANZARITI: It appears on the screen that is the case.

PN48

MR ARNDT: I will battle on, Vice President. That's okay. It's not too bad.

PN49

So firstly the medical evidence, the appellant seeks to make a distinction on appeal, between being incapacitated and being unable to file an application because of the lack of mental acuity and mental wherewithal to file or to arrange to file the application. The appellant submits that the Deputy President took into account the capacity issue, as opposed to the lack of mental acuity nor the mental wherewithal. As we've put in our written submissions, we would say that this is a distinction without a difference. A capacity means the ability to do something. The appellant's claim, and this is apparent from the evidence that he relied on, was that he was unable to file his application on time because of his mental condition or his medical status, rather. I apologise. Medical status. This is a submission about capacity and that was the case before the Deputy President. At 72 of the decision, the Deputy President assessed the reasons forward and accepted that the appellant or applicant had - that his day-to-day was affected and that he was fatigued and this had an effect on his thinking. The Deputy President was clearly cognisant of the position being put by the appellant and her decision was sound on that point. Of course, even if there was a difference between capacity and lacking mental acuity, there was no medical evidence of either of those things.

PN50

Also, the evidence which there was, seems to be inconsistent with the position put in any event. The appellant was able to send several emails to the former employer during the relevant period and ultimately he was able to have his application filed on 14th, despite the fact the medical evidence which did exist covered a period up to the 19th, that medical evidence only going to his fitness for work.

PN51

So we say that that element of the decision should not be disturbed. The second aspect I want to address is the scope of the exceptional circumstances test or how the exceptional circumstances test was applied by the Deputy President.

PN52

It's common ground, there are six elements to the exceptional circumstances test and what the appellant does in his submission is say that the decision inappropriately isolates a single element of those six relevant for assessment and then determines whether that single element is considered an exceptional circumstance. And we heard something more from Mr Boncardo about that earlier this morning. This is said to give rise to a range of errors and these errors are said to arise at 76, 79 and 80 of the judgment.

PN53

Now, our response is put in our written submissions and we would say that on any fair reading of the Deputy President's decision, it's clear that all six elements are considered before a decision on exceptional circumstances is made. It's also clear on (indistinct) that the decision does not convey a misunderstanding or error that only one element would need to be considered before coming to a satisfaction of the exceptional circumstances test.

PN54

I take the Full Bench to 79 of the decision which states:

PN55

However, the mere fact that a person relies on another person to file an application, and the latter person fails to do so in the required time, is not of itself, a reasonable explanation for delay constituting an exceptional circumstance.

PN56

Now, that statement is correct. It certainly doesn't convey any legal error. And it's correct in two ways. One, the mere fact that someone requested someone to file an application for them wouldn't be a reasonable explanation of delay. But, secondly, a mere request by and in of itself could not constitute an exceptional circumstance. And I think the parties would agree with that. It's entirely consistent with the very point that the appellant is making, that one element of the relevant test should not constitute the entire assessment of exceptional circumstances.

PN57

We also say that the words in 76 and 80 about the reason for delay conveyed the fact that it was just one of the elements that the Deputy President considered when making her assessment as to exceptional circumstances.

PN58

The reference to representative error, in my submission, needs to be approached or considered slightly differently in relation to the reading of the decision with any decision on representative error on the basis that representative error is not one of the six elements that you would - or it's not named as one of the six elements in the exceptional circumstances test. It's more a concept whereby body of law has developed around where the exceptional circumstances might be found, where representative error is in play.

PN59

The appellant's submission acknowledges this at 33 of their written submission when it says error by such a representative may be sufficient in of itself to extend time. And perhaps to flesh this out slightly, I had included Robinson v Interstate Transport in my list of authorities today.

PN60

I must just pause here for the benefit of the transcript to note that in footnote 23 of our written submissions we've made a small error in reference the Robinson authority. The correct reference should be paragraphs 24 and 41.

PN61

And I would take the Full Bench to paragraph 24 of that decision and to the last sentence where it says:

PN62

We think that representative error, in circumstances where the applicant was blameless, would constitute exceptional circumstances under section 366(2), subject to consideration of the statutory considerations in the relevant section.

PN63

Reading on at paragraph 41,

PN64

The error by Mr Robinson's original representative, in circumstances in which Mr Robinson is blameless for the delay, constitutes an exceptional circumstance in which the application should be accepted late.

PN65

Now going back to my submission on this, this is an example where representative error as a concept is conveyed or expressed perhaps in shorthand way of being able to constitute exceptional circumstances within the meaning of the relevant section of the Act.

PN66

That doesn't mean the statutory test has been misunderstood or misapplied or that one element of the six elements has been considered to the exclusion of all others. It just merely identifies whether the case falls into a particular category of these types of cases, namely representative error cases. And we say that it's clear on the decision of the Deputy President that the Deputy President had regard to all the six elements in making her decision and this is expressly stated in paragraph 89.

PN67

I move on to my third point which is to deal with representative error specifically and I have a few brief submissions about this. I had included Officeworks v Park in my list of authorities at number 2. It was a case reference in the notice of appeal, but I haven't seen it since in the materials of the appellant.

PN68

I would take the Full Bench to paragraph 18 of the decision, Officeworks:

PN69

In circumstances where 'representative error' is relied upon in Commission proceedings as an excuse or explanation for the failure to meet time limits, it is appropriate to have regard to the professional qualifications and expertise of the representative concerned.

PN70

I could continue reading that paragraph, but it's sufficient to say that that's exactly what the Deputy President did in this case. And little further down in that decision in Officeworks at paragraph 21 the Full Bench made a finding that representative error would not provide an acceptable reason for delay. The Full Bench noted that the actions and conduct of the applicant needed to be considered. And, again, this is what occurred in our relevant case.

PN71

The Deputy President considered the actions of the appellant's partner and the action position of the appellant and then made a decision. At paragraph 76 of this decision the Deputy President concludes, like in Officeworks, that the appellant in this case could not rely on the principle of representative error.

PN72

I briefly note that the authority for Clark v Ringwood, which is referenced in all of these representative error cases is authority for the proposition that it's the conduct of the applicant which is the essential consideration deciding whether representative provides an acceptable reason for delay and given the finding on the appellant's medical status, including the lack of evidence concerning that point and the fact that the appellant instead sought to engage in a debate with his employer on email about his sick leave. It's entirely legitimate to hold that there is no acceptable reason for delay. And we say that that part of the decision should not be disturbed.

PN73

I have two last issues to address. The second last is steps taken to dispute the dismissal. Again, I apologise if I'm halting in any way. The feedback is quite bad on my end, particularly when I am reading part of judgments. So I apologise if I'm slightly stilted on my - - -

PN74

VICE PRESIDENT CATANZARITI: That's okay, Mr Arndt. On our end we can hear you perfectly.

PN75

MR ARNDT: Excellent. That's important. Thank you, Vice President. So steps taken to dispute the dismissal. I want to say three things about this and perhaps address some of the issues that Mr Boncardo raised this morning.

PN76

Firstly, to the appellant's reliance on Cowen v Renascent. My reading of that case is that it was a case which involved the overturning of a finding that no steps had been taken to dispute the relevant dismissal in circumstances - excuse me. I'm just having - I really apologise to the Full Bench. Can I just please go on mute for 10 seconds and sort out my technology, so I don't go offline?

PN77

VICE PRESIDENT CATANZARITI: Go ahead.

PN78

MR ARNDT: Thank you. I apologise to the Full Bench and Mr Boncardo. I almost ran out of battery, but I think I'm fine now.

PN79

VICE PRESIDENT CATANZARITI: Thank you.

PN80

MR ARNDT: I will continue. To the appellant's reliance on Cowen v Renascent, that case involved a finding that no steps were taken to dispute the relevant dismissal and that case was about or had involved the applicant seeing a lawyer and instructing the lawyer to file an application and in that case at paragraph 30, the primary decision maker did not take into account the clear and unchallenged evidence and a failure to do so resulted in a significant error of fact.

PN81

That seems quite clear. For our part the principle arrived at from that case is that if steps are taken to dispute the dismissal, the decision maker is required to have regard to them when applying the relevant test.

PN82

Now, in our case, at 83 of the decision does take into account those matters. I will say something about Mr Boncardo's comments this morning at the conclusion of this submission, but the steps taken by the appellant's partner were considered. There is no error of fact here and certainly no significant one and, in any event, the Deputy President found the relevant factor to be a neutral consideration.

PN83

Now, my submission would be if no steps were considered, if steps had been excluded or if the steps taken had been excluded the finding would be the same as reached in Cowen v Renascent, which was that it tended against a finding that there were exceptional circumstances. In this case the steps were considered and that's why it was a neutral consideration.

PN84

In Mr Boncardo's oral submissions this morning, he made a submission that the deputy president discounts is relevant steps of the appellant's partner. To repeat, if that would free, it would be a case of Cowen v Renascent where it would be a neutral consideration. It would be - it would tend against the finding of the exceptional circumstances. Now, Mr Boncardo took the Full Bench to an email and I believe it was at court book 139.

PN85

Now, I am not aware that that email was relied upon at first instance as a step taken to the dismissal. And the reason why I am comfortable in making that submission is going through the transcript - - -

PN86

VICE PRESIDENT CATANZARITI: Mr Arndt, I'm having trouble hearing you now.

PN87

MR ARNDT: Vice President, is that better?

DISCUSSION RE TECHNICAL ISSUES [12.11 PM]

PN88

VICE PRESIDENT CATANZARITI: Can you hear me now, Mr Arndt?

PN89

MR ARNDT: I can, Vice President. Can you hear me?

PN90

VICE PRESIDENT CATANZARITI: I can hear you now. The system just collapsed at this end.

PN91

MR ARNDT: I would take the blame, Vice President, because I've caused a lot of issues so far, but I think all can hear me. So I will continue if everyone is ready.

PN92

VICE PRESIDENT CATANZARITI: Yes. Proceed.

PN93

MR ARNDT: Before dropping out, I had made a submission that the email that Mr Boncardo had taken the Full Bench to this morning - the email located at 139 hadn't been relied upon as a step to dispute the dismissal, which was certainly my memory and I can't find any reference to that in any submissions made by the applicant as he was there at first instance. And the reason why I am confident in making that submission is if one goes to 375 of the transcript, located at page 64 of the court book or the appeal book rather, and I will read:

PN94

The action taken to dispute the dismissal - well, he does dispute it. Certainly at the time he concentrated his partner more on medical certificates and sick leave owed to him, he didn't dispute it in the sense that he wrote to the respondent and disputed it.

PN95

Now, I would say that tends to suggest that that wasn't put in support of that ground at first instance. It wasn't characterised in an attempt to dispute the dismissal at that point. And a failure, as Mr Boncardo to reference it at this point. In any sense the email - the Deputy President was aware of these emails in any sense and referenced them in the decision, but the fact that it was not specifically referenced in that section of the decision, I don't think - or in my submission at least does not disclose the error which would need to be corrected.

PN96

In terms of the comment made about the step to be taken to dispute the dismissal, firstly it's not correct to say that as the appellant's submissions do, that the Deputy President failed to take into account relevant considerations like the appellant asked his wife to make the applications or the emails she sent. Clearly those are recognised and referred to in paragraph 83 of the decision.

PN97

The claim by the appellant that it's impermissible for the Deputy President or rather the Deputy President's comments or gloss on this part of the statutory test was impermissible shouldn't be accepted by the Bench. And we say this for a number of reasons. It's completely uncontroversial, we would submit, for a decision maker to consider the character of the steps taken by an applicant to dispute a dismissal.

PN98

It's not a question of simply counting the steps taken to dispute the dismissal. A decision maker has to weigh them up and characterise them. To consider - to provide a comparison by way of example, if an applicant took the step of attempting to, but failed to file an unfair dismissal claim because they got the email address wrong of the Fair Work Commission, that would quite properly be considered different to an applicant contacting, say, the Fair Work Ombudsman to ask about their options in pursuing a claim. There's nothing inappropriate or concerning about considering the character of the steps taken to dispute a dismissal.

PN99

Equally, the appellant's submissions that the Deputy President was in error by making an observation that the respondent was not put on notice about the appellant disputing his dismissal should not be accepted. In our written submissions at footnote 58 - that footnote arising from paragraph 47 or our submissions, consideration of steps taken to dispute dismissals directly with an employer is a very common and orthodox normal consideration for a decision maker when making a decision about the relevant test to make.

PN100

An authority which did not make that list or did not make the footnote is on our authority list for this morning's proceedings. It is the authority of Potapova v Alfred Health [2022] FWC 225. The relevant reference being paragraph 11 where Gostencnik says:

PN101

If an applicant disputes a dismissal with his or her employer or brings the dispute to his or her employer's attention, the employer is on notice that there is a controversy about the dismissal, and so in such circumstances this might weigh in an applicant's favour. However, in this case there has been no such dispute raised with the employer and consequently the absence of any step taken to dispute her dismissal also weighs against the applicant.

PN102

In this case the applicant was in contact with the employer, but in our submission this contact was to dispute sick leave entitlement. It wasn't to dispute a dismissal. The appellant submits at 18 of its written submissions that to consider this when assessing steps taken to dispute the dismissal, alongside section 394(3)(d), which is the element which concerns prejudice to the employer would be double-counting.

PN103

We say that puts an inappropriate mathematical calculation on the application of the relevant test. We say that it was entirely appropriate that the Deputy President characterised the steps taken and we say that there is no error arising from that part of the decision.

PN104

Lastly and very briefly, to the merit of the appeal, as we say in our written submission, ground 3 of the notice of appeal appears to be based on misreading of the decision, which we appreciate may have been corrected in Mr Boncardo's oral submissions this morning. The decision does not make a finding that the application did not have some strong prospects of success. It states at 86 that it was not possible to say that it did not have - that it did have strong prospects of success. It's an entirely available conclusion. It doesn't contain the error alleged.

PN105

The submission of Mr Boncardo this morning that it's the general approach of the commission that if a finding such as that was made, the commission should or would tend to make this a factor in favour of granting the extension of time. He relies on two cases which were put on my authority list.

PN106

My submission to that is it's a matter for the Deputy President to weigh and it certainly is not required of the Deputy President to - in making a finding that it did not have - that it wasn't a completely hopeless application that it should tend to support the extension of time.

PN107

Unless the Full Bench has any further questions, for those reasons and the reasons put in my submissions, that's all I wish to say. And, again, I apologise for any technical or audio errors.

PN108

VICE PRESIDENT CATANZARITI: Yes. Thank you. Any questions, Deputy President Anderson?

PN109

DEPUTY PRESIDENT ANDERSON: No questions, Vice President.

PN110

VICE PRESIDENT CATANZARITI: Commissioner Hampton?

PN111

COMMISSIONER HAMPTON: Not from me either. Thank you.

PN112

VICE PRESIDENT CATANZARITI: Thank you. Anything in reply, Mr Boncardo?

PN113

MR BONCARDO: Very briefly, two matters in respect to the second appeal ground concerning section 394(3)(c). We do join issue with the notion of what the Deputy President was doing at paragraph 83 was characterising the actions taken. That's not what is occurring in our respectful submission. Her Honour is discounting them because they are not directed specifically at making unfair dismissal applications.

PN114

Secondly, in relation to the document at appeal book 139 - I think I took the Full Bench to the copy of that document at appeal book 92 - I accept what my friend says about the submission made at paragraph number 375, but as my friend point out, her Honour was alive to and was taken to - including by the respondent the emails in question and the submission that I made in relation to that email that the complaint made in that email is in response to my friend's submission at paragraph 48 of his written submissions, where he sets out that there was no conduct that wasn't considered by the Deputy President as conduct disputing the dismissal. Unless the Full Bench has any questions, those are the submissions in reply.

PN115

VICE PRESIDENT CATANZARITI: Thank you. The decision is reserved. The Commission is adjourned.

ADJOURNED INDEFINITELY [12.22 PM]