1 Fair Work Act 2009 s.604—Appeal of decision Lihui Wang v Lisa Krinas, TAFE SA (C2025/1411) DEPUTY PRESIDENT MILLHOUSE MELBOURNE, 3 MARCH 2025 Appeal against the interlocutory decision of Commissioner Thornton at Adelaide on 26 February 2025 in matter number AB2024/999 – application for a stay order – stay order refused. [1] This decision reproduces in edited form the decision and reasons which were stated on transcript at the conclusion of the stay hearing conducted in relation to this matter on 3 March 2025. At this hearing, I exercised my discretion to grant permission to the first and second respondents to be legally represented in all proceedings concerning Ms Wang’s appeal in matter C2025/1411, upon my satisfaction that s 596(2)(a) of the Fair Work Act 2009 (Cth) (Act) is engaged. [2] This decision concerns an application by Ms Lihui Wang for a stay order pursuant to s 606 of the Act. It is made in connection with an appeal filed by Ms Wang against an interlocutory decision made by Commissioner Thornton to grant permission to the respondents to be legally represented in matter AB2024/999. The matter before the Commissioner involves an application for a stop bullying order by Ms Wang. That application is listed to proceed to a jurisdictional hearing before the Commissioner tomorrow, 4 March 2025. [3] The Commissioner’s decision concerning legal representation was communicated to the parties by email on 28 February 2025 as follows: AB2024/999 - Application by Ms Lihui Wang Please see below the Commissioner’s unpublished decision with respect to the Respondent’s application to be legally represented in this matter: I do not accept the Applicant’s characterisation of the legal matters in issue as not being complex. The issues of jurisdiction raised by the Respondent are matters of complexity and include the characterisation of TAFE SA under the law and intersections between state and Commonwealth law. Taking into account the complexity of the matter, I am of the view that the involvement of the Crown Solicitor’s Office will enable the matter to be dealt with more efficiently in accordance with section 596(2)(a) of the Fair Work Act (the Act). [2025] FWC 633 DECISION [2025] FWC 633 2 I have considered the remaining submissions made by the parties in respect of the other considerations in section 596 but I am persuaded that permission should be granted to the Respondent to be legally represented in this matter on the basis of section 596(2)(a) of the Act. [4] Ms Wang has sought a stay of the whole of the decision pending the hearing and determination of the appeal. The stay is opposed by the respondents. For the reasons that follow, the application for a stay is refused. Relevant principles [5] Section 606 of the Act gives the Commission the discretionary power to stay the operation of the whole or part of a decision that is the subject of an appeal. The case of Edghill v Kellow-Falkiner Motors Pty Ltd,1 provided the following formulation for determining stay applications:2 In determining whether to grant a stay application the Commission must be satisfied that there is an arguable case, with some reasonable prospect of success, in respect of both the question of leave to appeal and the substantive merits of the appeal. In addition, the balance of convenience must weigh in favour of the order subject to appeal being stayed. Each of the two elements referred to must be established before a stay order will be granted. [6] Accordingly, both ‘elements’ are necessary conditions to the grant of a stay. Consideration [7] By her appeal grounds, Ms Wang contends, in summary, that the Commissioner erred by determining that the issues of jurisdiction are matters of complexity. Further, Ms Wang says that the Commissioner failed to consider all of the circumstances of the case. In this respect, Ms Wang contends that the Commissioner’s decision does not address the issue of “fairness” raised in Ms Wang’s submissions. Ms Wang contends that the appeal enlivens the public interest [8] I consider that the prospect of permission to appeal being granted in the public interest is not strong. The appeal is from an interlocutory and discretionary procedural decision. It raises no new issue as to the operation of s 596, which is a provision that is already the subject of a number of Federal Court and Full Bench authorities. Ms Wang’s notice of appeal does not explain how the Commissioner’s discretionary decision deviated from these authorities. Nor am I persuaded that there is an arguable case, with some reasonable prospect of success, in respect of both the question of leave to appeal and the substantive merits of the appeal. The Commissioner appears to have taken into account the complexity of the matter and was satisfied that permission would enable the matter to be dealt with more efficiently pursuant to s 596(2)(a) of the Act, in the exercise of her broad discretion. Satisfaction of a singular criterion is sufficient. [9] The conclusion that I have reached in relation to the question of whether there is an arguable case makes an assessment as to whether the balance of convenience favours the grant of a stay of the Commissioner’s decision concerning legal representation unnecessary. I [2025] FWC 633 3 consider it sufficient to observe that the balance of convenience does not weigh in favour of a stay. The jurisdictional hearing of Ms Wang’s application will commence at 10:00am tomorrow, 4 March 2025. The respondent is represented by Crown Solicitor’s Office as an outcome of the Commissioner’s decision. If the decision granting permission for legal representation is stayed, I accept the submission advanced by the respondents that there is a risk that the jurisdictional hearing will need to be adjourned. This not only delays Ms Wang’s opportunity to progress her application in the Commission, but it gives rise to cost and inconvenience to the respondent and is an inefficient use of the Commission’s resources. [10] Nor am I satisfied that Ms Wang has demonstrated any discernible prejudice that would result in the balance of convenience weighing in favour of granting a stay. Matters in the Commission frequently involve self-represented parties appearing against more experienced advocates. As far as is practicable, the Commission will ensure that a party appearing before it – represented or otherwise – is given an opportunity to advance their case. There is no basis for concluding that Ms Wang may not receive a fair hearing if a stay is not granted. [11] Ms Wang submits that her appeal will have no utility if a stay is not granted. I do not accept this. It is obviously correct to say that the hearing will proceed with the respondents being legally represented. However, Ms Wang may achieve a successful outcome following the jurisdictional hearing before the Commissioner tomorrow, such that the decision to grant the respondent permission to be legally represented did not deprive Ms Wang of the opportunity for a successful outcome. Alternatively, if Ms Wang is unsuccessful following the jurisdictional hearing, it is open to Ms Wang to file a fresh appeal challenging that overall outcome. There is no impediment to Ms Wang including as part of any such appeal a contention that the grant of permission under s 596 contributed to this outcome or that she was denied a fair hearing should that concern arise. [12] The application for a stay order is dismissed for the reasons stated. DEPUTY PRESIDENT Appearances: Ms Wang, on her own behalf. Ms Lamb, on behalf of the Respondent. Hearing details: 2025. [2025] FWC 633 4 Melbourne (by video link). 3 March. Printed by authority of the Commonwealth Government Printer <PR784898> 1 Kellow-Falkiner Motors Pty Ltd v Edghill [2000] AIRC 785. 2 Ibid at [5], approved on appeal in Kellow-Falkiner Motors Pty Ltd v Edghill [2000] AIRC 786.