Lim v Flinders University of South Australia [2022] FCA 1361

Lim v Flinders University of South Australia [2022] FCA 1361

The applicant’s delay in filing the appeal was, in major part, due to her own choices in preparing an extensive notice of appeal, rather than circumstances beyond her control, and her explanation was inadequate for the critical period. Additionally, the proposed grounds of appeal lacked sufficient merit to warrant an extension of time, as the findings of the primary judge were reasonably open on the evidence, particularly where based on witness credibility, and no appealable error or procedural unfairness was established. It was therefore not in the interests of justice to grant the extension.

Jurisdiction
Australia
Judgment Date
27 October 2022
Procedural Posture
Application for Extension of Time to Appeal – Employment/industrial / Determination of Extension of Time Application; Judgment on the Merits of the Proposed Appeal for Prospects Assessment
Outcome
Application for extension of time to file notice of appeal refused; costs reserved.
Legal Topics
['extension of Time for Appeal' 'adverse Action' 'general Protections' 'procedural Fairness' 'employee Workplace Rights']
['employment Law' 'industrial Relations' 'appellate Procedure'] ['extension of Time for Appeal' 'adverse Action' 'general Protections' 'procedural Fairness' 'employee Workplace Rights']

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Procedural Posture

Application for Extension of Time to Appeal – Employment/industrial / Determination of Extension of Time Application; Judgment on the Merits of the Proposed Appeal for Prospects Assessment

Legal Issues

  1. 1 ["Whether the applicant's delay in filing an appeal was excusable so as to warrant an extension of time under rule 36.05 of the Federal Court Rules 2011 (Cth)" 'Whether the proposed appeal concerning contraventions of the Fair Work Act 2009 (Cth) had sufficient merit to justify granting an extension of time' 'Whether the primary judge erred in the assessment of evidence and findings regarding adverse action and workplace rights' 'Whether denial of procedural fairness occurred in the trial below']

Ratio Decidendi

The applicant’s delay in filing the appeal was, in major part, due to her own choices in preparing an extensive notice of appeal, rather than circumstances beyond her control, and her explanation was inadequate for the critical period. Additionally, the proposed grounds of appeal lacked sufficient merit to warrant an extension of time, as the findings of the primary judge were reasonably open on the evidence, particularly where based on witness credibility, and no appealable error or procedural unfairness was established. It was therefore not in the interests of justice to grant the extension.

Court Disposition

Application for extension of time to file notice of appeal refused; costs reserved.

Orders

  • ["The applicant's application for an extension of time to appeal, filed on 8 July 2021, is refused." 'Costs of the application are reserved.' 'If there be no application for costs made under s 570 of the Fair Work Act 2009 (Cth) on or before 3 November 2022, the parties are to bear their own costs.']