In civil cases a party who loses a case at first instance generally has at least one automatic right to appeal a decision. The position is otherwise in the Fair Work Commission where it is a statutory condition precedent for an appeal to proceed that it be regarded by the Commission as being in the public interest to do so.
“The task of assessing whether the public interest test is met is a discretionary one
involving a broad value judgment.45 The public interest is not satisfied simply by the
identification of error,46 or a preference for a different result.47 In GlaxoSmithKline Australia
Pty Ltd v Makin, 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…”48
[19] 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.49 However, that the Member at first instance made an error is not necessarily
a sufficient basis for the grant of permission to appeal.50
[20] An application for permission to appeal is not a de facto or preliminary hearing of the
appeal. In determining whether permission to appeal should be granted, it is unnecessary and
inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal.51
[21] It is well established that an appellate body will not interfere with the factual findings
of a first instance decision-maker unless it is concluded that a finding cannot stand because it
was contrary to incontrovertible facts or uncontradicted testimony, glaringly improbable, or
contrary to compelling inferences.
52
[22] Where a finding or conclusion involves the exercise of a discretion, where some latitude
is afforded, an appellate body will generally not interfere with the conclusions of the decisionmaker. As stated by the High Court in Coal and Allied Operations Pty Ltd v Australian
Industrial Relations Commission:
53
“”Discretion” is a notion that “signifies a number of different legal concepts”. In general
terms, it refers to a decision-making process in which “no one [consideration] and no
combination of [considerations] is necessarily determinative of the result.” Rather, the
decision-maker is allowed some latitude as to the choice of the decision to be made. The
latitude may be considerable as, for example, where the relevant considerations are
confined only by the subject-matter and object of the legislation which confers the
discretion. On the other hand, it may be quite narrow where, for example, the decisionmaker is required to make a particular decision if he or she forms a particular opinion
or value judgment.”
[2023] FWCFB 153
7
(citations omitted)
[23] For there to be legal error, it would need to be shown that the Commissioner acted on a
wrong principle, took into account irrelevant matters, mistook facts,54 or that the outcome is
unreasonable or plainly unjust.55 It is not enough that a different member or an appellant body
might have reached a different conclusion…………..”
Reeve v PKF (Gold Coast) HR Services Pty Ltd [2023] FWCFB 153 delivered 5 September 2023 per Millho