Capital Maintenance Solutions v David Fraser - [2022] FWCFB 8

[2022] FWCFB 8

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.604—Appeal of decision

Capital Maintenance Solutions
v

David Fraser

(C2022/308)

VICE PRESIDENT CATANZARITI
commissioner bissett
commissioner wilson

SYDNEY, 3 FEBRUARY 2022

Appeal against interlocutory decision of Deputy President Dean made on transcript on 21 December 2021 refusing application to set aside order for production of documents – permission to appeal refused.

Capital Maintenance Solutions (the Appellant) has lodged an appeal under s 604 of the Fair Work Act 2009 (Cth) (the Act) for which permission to appeal is required against a decision of Deputy President Dean (the Deputy President) made on 21 December 2021.

By way of brief background, on 2 December 2021, the Deputy President issued an order (the Order) requiring the production of certain documents in the possession of Capital Maintenance Solutions Pty Ltd (the Appellant). Relevant to the current appeal are categories 33 and 35 contained in the schedule of the Order. They are as follows:

“33. Copies of tax returns of Capital maintenance Solutions Pty Ltd from 2018/2019, 2019/2020, and 2020/2021 financial years.

35. Copies of bank statements for all accounts held by Capital Maintenance Solutions Pty Ltd for the period:

a. 18 August 2018 to 29 July 2021.

b. 30 July 2021 to 24 November 2021.”

On 9 December 2021, the Appellant made an application that the above orders be set aside (the Application). On 21 December 2021, the Deputy President made a decision, on transcript, refusing the Application. The Deputy President found that the documents were “apparently relevant” to the unfair dismissal application of Mr Fraser (the Respondent). The matter before us is the appeal of that interlocutory decision (the Decision).

Directions were set for the filing of material and the matter was listed for hearing. Prior to hearing, the Appellant sought permission to be represented by a lawyer. The Respondent opposed the grant of permission for the Appellant to be represented at the hearing. We refused permission for legal representatives to appear. In those circumstances and given the comprehensive written submissions already filed, the parties consented to have the matter determined on the papers. Further submissions were filed by the parties in lieu of a hearing and we have considered that material.

For the reasons that follow permission to appeal is refused.

Principles of Appeal

The Decision under appeal is one made under ss 589 and 590 of the Act being an interlocutory decision exercised in the context of an unfair dismissal application. A question arises then, regarding whether s 400 applies to an appeal against decisions of this nature as an application for an unfair dismissal remedy is made pursuant to Pt 3 – 2 of the Act.

On this issue, a differently constituted Full Bench in Kennedy v Qantas Ground Services Pty Ltd[1] found the following:

“[9] Section 400(1) modifies s.604(2) of the Act in relation to appeals from decisions made under Part 3-2, which concern unfair dismissal applications. It provides that, despite subsection 604(2), the Commission must not grant…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] FWCFB 8
Decision Date: 3 FEBRUARY 2022

CaseChat Overview and Summary

Capital Maintenance Solutions appealed the decision of Deputy President Dean, who had refused to set aside an order requiring the production of certain documents. The appeal was lodged under s 604 of the Fair Work Act 2009 and required permission to proceed. The dispute was between Capital Maintenance Solutions and David Fraser, the latter having brought an unfair dismissal application. The legal issue was whether the decision was one that could be appealed under s 400 of the Act. The Full Bench found that it did and, having considered the grounds of appeal and submissions, concluded that the appeal did not meet the stringent criteria for permission to appeal. The Full Bench refused permission to appeal.

Orders