Xiaoqin Hua v Braemar Presbyterian Care (C2014/8119)  FWCFB 396. JUSTICE ROSS, PRESIDENT, VICE PRESIDENT HATCHER, COMMISSIONER CARGILL.
The above matter was appealed. I have examined this FB decision in the context of what is needed to mount a successful appeal. In the case cited, this FB went against the applicant because the “public interest not enlivened”.
In this decision the FB considered the following:
Section 400(1) (of the FWA) provides that permission to appeal must not be granted from such a decision unless the Commission considers that it is in the public interest to do so.
Appeals on a question of fact may only be made on the ground that the decision involved a “significant error of fact”
The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment. 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.”
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.
However, the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.
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