All Is 1 Pty Ltd t/a Banga Legal v Raylook Pty Ltd

[2022] FWC 2929

[2022] FWC 2929

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.604—Appeal of decision

ALL IS 1 Pty Ltd t/a Banga Legal
v

Raylook Pty Ltd

(C2022/6942)

DEPUTY PRESIDENT BELL MELBOURNE, 7 NOVEMBER 2022

Appeal against decision [2022] FWC 2495 of Commissioner O’Neill at Melbourne on 19 September 2022 in matter number U2022/5842 – stay application – amendment to Appellant name sought – name of Appellant amended – stay application dismissed.

1. The Appellant - or, more accurately, the law firm trading as “Banga Legal” –seeks a stay pursuant to s.606 of the Fair Work Act 2009 (FW Act) of an order for costs[1] (Order) made against Banga Legal Pty Ltd on 19 September 2022, pending the determination of its application for appeal against that order.

1. The Respondent to this appeal, Raylook Pty Ltd (Raylook) is the beneficiary of that costs order. Faced with the stay application, it undertook a company search for “Banga Legal Pty Ltd” and evidently observed that no such entity exists. Unsurprisingly, it sought to have the name of the Appellant corrected for the appeal and also in respect of the Order. For reasons that remain unclear to me, Banga Legal (the firm) opposed that correction.

1. These reasons address two matters: the correction to the name of the Appellant; and the Appellant’s application for a stay.

Litigation history

1. By a ‘Form F2’ application dated 1 April 2022, Ms Teagan Salton applied to the Fair Work Commission (Commission) for an unfair dismissal remedy against Raylook. Her Form F2 was filed by her solicitors, who were listed on that form as “Banga Legal Pty Ltd”, signed by Samir Banga.

1. Ms Salton’s application was heard by Commissioner O’Neill (now Deputy President O’Neill but whom I will refer to as ‘Commissioner’ in these reasons for consistency with the published decision and orders on appeal) who dismissed that application.[2]

1. Raylook subsequently made an application for costs against Banga Legal Pty Ltd, being the entity named as Ms Salton’s solicitors throughout the course of the substantive unfair dismissal application.

1. On 19 September 2022, the Commissioner issued a Decision[3] and the Order for the costs application. The Order required Banga Legal Pty Ltd pay to Raylook the sum of $3,300, which was payable within 14 days from the date of that order.

1. As the costs order was payable 14 days from 19 September 2022, the date for payment was Monday, 3 October 2022. Payment was not made and no stay of the order was sought prior to expiry of the time required for compliance.

1. By rule 56(2) of the Fair Work Commission Rules 2013, a Notice of Appeal must be lodged within 21 days of the relevant decision or order. In the present case, that would be by 10 October 2022.

1. On 17 October 2022, the Appellant filed its Notice of Appeal. The Notice of Appeal – itself late - belatedly indicated it sought a stay of the order for costs.

Correction to the name of Appellant

1. On 20 October 2022, the (in)correct name of the Appellant was expressly raised by the Respondent in correspondence with Vice President Catanzariti’s chambers. The correct legal entity identified by the Respondent was said to be “All IS 1 Pty Ltd”. Reference was also made to information on the Victorian Legal Services Board website, which returned the entity “All IS 1 Pty Ltd” in response to a search for “Banga Legal”. 

1. That same day, the Vice President’s chambers sent an email to the parties attaching a name search for All IS 1 Pty Ltd, which also indicated its trading name was “Banga Legal”. Further correspondence ensued, and the Appellant was asked whether it would consent to the name being changed to “All IS 1 Pty Ltd Trading As Banga Legal”. The Respondent expressed concern that it was unable to enforce a costs order against “Banga Legal Pty Ltd”.

1. On 26 October 2022, with a somewhat delayed response, Banga Legal replied (my emphasis):

“The naming convention utilised for the submission of these forms followed on from my understanding of the same utilised by Mr Dickinson in his previous application and was selected for continuity. The ABN is also consistent. My instructions to not consent to the change as this naming choice is suitable in the circumstances.”

1. The matter was then allocated to me for determination of the application for a stay and to address any name change for the Appellant.

1. On 27 October 2022, I listed the matter for a hearing on 4 November 2022 and issued directions requiring the Appellant to file and serve any evidence or submissions by 4:00pm, 31 October 2022 and for Raylook to do the same by 4:00pm, 2 November 2022. The Appellant filed no material. Raylook filed a short witness statement.

1. At the hearing before me on 4 November 2022, it became apparent that the author of the email on 26 October 2022 (partly extracted above) was a very junior solicitor, with less than a year’s post-admission practice. He also had no involvement in the matters below. In response to direct questions from me as to who gave him the “instructions” described in his email, those instructions evidently were given by Mr Samir Banga.

1. Mr Samir Banga is the principal of Banga Legal. He is also the director, secretary and sole shareholder of All IS 1 Pty Ltd.

1. Before me, the Appellant acknowledged that there is no entity called Banga Legal Pty Ltd. I was proffered an explanation to the effect that the ABN for “Banga Legal Pty Ltd” was the ABN for All IS 1 Pty Ltd. The explanation that followed (as I understood it) was that there would be no harm in retaining the incorrect reference to Banga Legal Pty Ltd in circumstances where the correct ABN was listed in the Notice of Appeal. I disagree but, in any case, the Order for costs referred only to Banga Legal Pty Ltd without any reference to an ABN. Without amendment, that costs order could only be notionally enforceable against an entity that did not exist and never existed.

1. The junior solicitor who appeared before me was in a difficult situation. He was being asked to defend the indefensible. He should not have been asked to do so, particularly upon what ought to have been an essentially administrative correction for an error to the name of a firm making the appeal and to the Order that it was seeking to overturn.

1. It is axiomatic that solicitors are held to a high standard in their dealings with courts (and tribunals) and the administration of justice. The Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (Rules), which applies to All IS 1 Pty Ltd, contain express duties – which are also “paramount”[4] duties – to the court (which relevantly includes tribunals such as the Commission)[5]. Specifically, rule 19 “Duties to the court” includes:

“19.1 A solicitor must not deceive or knowingly or recklessly mislead the court.

19.2 A solicitor must take all necessary steps to correct any misleading statement made by the solicitor to a court as soon as possible after the solicitor becomes aware that the statement was misleading.

…

19.11 A solicitor must inform the court of any misapprehension by the court as to the effect of an order which the court is making, as soon as the solicitor becomes aware of the misapprehension.”

1. It remains unexplained how the erroneous reference to “Banga Legal Pty Ltd” came about, although as I note above it was contained in the very first document filed with the Commission on 1 April 2022 in support of Ms Salton’s unfair dismissal application. The error was not introduced by Raylook or anyone other than Ms Salton’s representatives. I would also note that that document, expressed to be signed by Mr Samir Banga, did not include an ABN number for Banga Legal Pty Ltd. Perhaps generously, I will assume that the erroneous reference to “Banga Legal Pty Ltd” was not noticed at the time and the error essentially propagated through the course of Ms Salton’s unfair dismissal hearing.

1. However, at the time when a costs order was being sought against “Banga Legal Pty Ltd” in its own right, I consider it tolerably clear that Banga Legal (the firm) ought to have expressly drawn to the Commission’s attention that the entity Banga Legal Pty Ltd did not exist. The same observation applies to when the costs order was issued. It is trite to observe that it is generally very important that courts and tribunals make orders against the correct party. While errors will sometimes be made, legal practitioners ought not allow the propagation of those errors. 

1. Upon the Respondent specifically raising the issue following the Notice of Appeal being filed, and the subsequent correspondence from the Vice President’s chambers, there were no circumstances warranting the continuing reference to “Banga Legal Pty Ltd”, particularly as it appears in the cost order.

1. It reflected poorly on the conduct of All IS 1 Pty Ltd t/a Banga Legal, as solicitors with specific duties to the Commission, in allowing the issue to remain unresolved until a hearing before me. While I have concerns that conduct raises questions in relation to its compliance with the solicitors’ conduct Rules, that is not a matter appropriate for me to express a final view upon. I will, however, take steps to refer these reasons to the Victorian Legal Services Board or the Law Society of NSW for their consideration (if any) as appropriate.

Stay application

1. The substantive stay application can be disposed of in briefer terms.

1. The Notice of Appeal states that the grounds of the appeal “are to dispute the suggestion at [23]-[25] [of the Decision] that unreasonable conduct was enlivened by the suggestion that Raylook and its additional associated entities could indicate a cumulative employee count higher than 15.”

1. A brief summary of the Decision will indicate why a stay is inappropriate. Raylook advanced four grounds for its application for costs before the Commissioner:

·   First, it was said Banga Legal “encouraged” an application that had no reasonable prospects of success.

·   Second, it was said Banga Legal engaged in “unreasonable acts” regarding the adducing of spurious evidence concerning the number of employees Raylook and its associated entities might have.

·   Third, it was said that seeking an order for production regarding a number of categories of documents the day before Ms Salton was due to file evidence and 5 days before the hearing was an “unreasonable act”.

·   Fourth, it was said Banga Legal made a submission, without foundation, that Raylook had not complied with the Commission’s order to produce documents, with that submission being an “unreasonable act”.

1. The references to “encouraged” and “unreasonable acts” are to those terms within s.401(1A) of the FW Act. In short, the Commissioner agreed with Raylook on the second and fourth grounds referred to above and accepted that it was appropriate for Raylook to have briefed counsel to respond to them, thus incurring costs. While the Commissioner also accepted that the substantive unfair dismissal application had no reasonable prospects of success, she was not satisfied that Banga Legal “encouraged” that application. She was not satisfied the order for production sought was an unreasonable act, albeit the production order issued was evidently in narrower terms than that originally sought.

1. At [27] - [28] of the Decision, the Commissioner stated (my emphasis):

“[27] For the reasons set out above, I am satisfied that Banga Legal caused Raylook to incur costs because of its unreasonable acts in manufacturing spurious evidence that Raylook and its associated entities employed 15 or more persons and by making a submission, without foundation, that Raylook had not complied with the Order to produce documents.

[28] The costs incurred by these 2 unreasonable acts were the costs of instructing counsel to prepare for and appear at the jurisdiction hearing on 17 May 2022, in the amount of $3,300. I am satisfied that it is appropriate to exercise my discretion to order costs and I do so.”

1. A stay is to be determined according to the requirements of s.606 of the FW Act. The principles applicable to s.606 of the FW Act - summarised by Ross VP (as the President then was) and cited with approval by the Full Bench in P Edghill v Kellow-Falkiner Motors Pty Ltd[6] – are as follows (citations omitted, emphasis added):

“[5] 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] The Commission approaches applications for stay orders on the basis that, unless otherwise established, the order subject to appeal was regularly made.”

1. In assessing the criteria that there is an arguable case with some reasonable prospects of success (for leave and merits), the assessment is typically on a preliminary basis and without the benefit or opportunity of full consideration of the material before the Commission.[7]

1. An application for a stay is necessarily against an operative[8] order, not the reasons for that order.

1. It is sufficient to note that the Order made by the Commissioner was supported by two independent bases, being the second and fourth grounds I summarised in paragraph [27] above. The Notice of Appeal only seeks to impugn the first of those grounds. Even if the Appellant was wholly successful in its appeal, the costs Order would remain supported by the other ground. This is sufficient to dispose of the application for a stay.

1. While it is not necessary for me to make an assessment of the strength of the Appellant’s case as framed, I would refuse the stay application on the grounds of balance of convenience in any event. The amount in question is not large and there was no evidence to suggest that it would not be repaid if the appeal succeeded. The conduct of the Appellant to date, including lateness, are factors which further tend against any discretion being exercised in the Appellant’s favour.

Disposition

1. I will order as follows:

·   The name of the Appellant be amended from “Banga Legal Pty Ltd” to “All IS 1 Pty Ltd t/a Banga Legal”, both for the present application for appeal[9] and in the Decision and Order[10] made by Commissioner O’Neill.

·   The application for a stay is dismissed.

1. An order[11] is issued with this decision. It follows from my order that the Appellant (as correctly identified) remains liable to pay the monies owed to Raylook pursuant to the Order[12] of Commissioner O’Neill on 19 September 2022 immediately.

DEPUTY PRESIDENT

Hearing details:

2022.
Melbourne (by video via Microsoft Teams):
November 4.

[1] PR746007.

[2] Teagan Salton v Raylook Pty Ltd[2022] FWC 1211.

[3] Raylook Pty Ltd v Banga Legal Pty Ltd[2022] FWC 2495.

[4] Rules, r 3.1.

[5] Rules, ‘Glossary of terms’.

[6] P Edghill v Kellow-Falkiner Motors Pty Ltd[2000] AIRC 786.

[7] Appeal by Supreme Caravans Pty Ltd [2013] FWC 4766.

[8] Construction, Forestry, Mining and Energy Union v Collinsville Coal Operations Pty Limited[2014] FWC 4276 at [11].

[9] Section 586 of the FW Act.

[10] Section 602 of the FW Act.

[11] PR747614.

[12] PR746007.

Printed by authority of the Commonwealth Government Printer

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