In very rare cases the Fair Work Commission will exercise its discretion to allow fresh evidence to be produced either at the hearing of an appeal or when the case is remitted to the Commission at first instance to essentially re-open the hearing. This is to be contrasted with the civil courts which are considered functus officio when a hearing is concluded.
.“[17] Section 607(2) of the Act confers a discretion on the Full Bench to admit further evidence and take into account any other information on appeal. However, it is by no means a matter of course that it will do so. The well-settled principles governing the discretion to admit new evidence or to consider further material are set down in Akins v National Australia Bank (Akins).9 Three conditions need to be met before fresh evidence can be admitted. It must be established that the evidence could not have been obtained or adduced with reasonable diligence for use at first instance; it must be evidence which is of such a high degree of probative value that there is a probability that there would have been a different result at first instance; and the evidence must be credible.10 While it is permissible in an appropriate case to depart from the principles set out in Akins,11 it will be rare for fresh evidence to be admitted on appeal where the conditions in Akins are not met.
[18] The fresh evidence sought to be relied upon is said by Mr Gonzalez to provide context to the medical evidence considered by the Commissioner. Having considered the content of this material and Mr Gonzalez’s submissions in relation to it, we are not persuaded that the evidence sought is of such a high degree of probative value that there is a probability that there would have been a different result at first instance. We therefore decline to admit the document.”
Appeal by Gonzalez v Department of Transport and Planning [2025] FWCFB 25 delivered 6 February 2025 per Millhouse DP, O’Neill DP and Lee C