Daniel King v Patrick Projects Pty Ltd
[2018] FWCFB 1387
•8 MARCH 2018
| [2018] FWCFB 1387 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
Daniel King
v
Patrick Projects Pty Ltd
(C2018/576)
DEPUTY PRESIDENT GOOLEY | MELBOURNE, 8 MARCH 2018 |
Appeal against decisions in emails of Commissioner Johns on 2 February 2018 and 3 February 2018 in matter number U2014/7097 – appeal not granted.
[1] Mr Daniel King has appealed two decisions of Commissioner Johns to issue directions which were set out in two emails, one dated 2 February 2018 and the second dated 3 February 2018 and applied for a stay.
[2] On 9 February 2018, Deputy President Gooley refused to grant a stay and published her reasons. 1
[3] In the stay decision, Deputy President Gooley set out the background to this matter and the details of the decisions under appeal and we do not repeat them here.
[4] On 5 February 2018, new directions were issued by the Commissioner and those directions were amended on 16 February 2018. On 20 February 2018, Mr King sought to have the directions delayed or vacated due to other proceedings before the Commission including this appeal. On 21 February 2018, new directions were issued by the Commissioner.
[5] The matter was listed for hearing before the Full Bench for permission to appeal. Patrick Projects advised the Full Bench on 23 February 2018 that it did not intend to seek to appear or be heard in relation to permission to appeal. Patrick Projects advised that the appeal has no utility and possesses no reasonable prospects of success.
Submissions of Mr King
[6] Mr King submitted that it was in the public interest for permission to appeal to be granted because the Commission did not have the power to make the directions issued and the directions imposed requirements that are outside the law. Further, it was submitted that the directions required Mr King to provide more information than is required by the Fair Work Act 2009 (the FW Act) and in particular s.381(1)(b)(i).
[7] Mr King submitted that the FW Act at s.403 only requires an applicant for costs to provide a schedule of costs.
[8] Mr King submitted that the Full Bench should make the following orders:
1. Make a direction under rule 12(2) [and under section 596(1)] preventing the Respondent from being represented by a lawyer, including by making any application or submission to the Commission on behalf of the Respondent, with previous submissions by the Respondent’s lawyer disregarded.
2. Find that the Appellant, in his costs application, is only required to provide what is actually described in s.403 that being:
“An applicant in a costs application under section 400A, 401 or 611, by way of section 403, need only provide a Schedule of Costs containing items as per the regulations Schedule 3-1 Schedule of Costs.
[9] In relation to order 1 sought by Mr King, he submitted that this direction should apply to both this appeal and the costs application before Commissioner Johns as they were all part of the same application.
Permission to appeal
[10] An appeal under s.604 of the FW Act is an appeal by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker. 2 There is no right to appeal and an appeal may only be made with the permission of the Commission.
[11] This appeal is one to which s.400 of the FW Act applies. Section 400 provides:
“Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part unless the FWC considers that it is in the public interest to do so.
Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.”
[12] In Coal & Allied Mining Services Pty Ltd v Lawler and others, the Federal Court characterised the test under s.400 as ‘stringent’. 3
[13] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment. 4 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.” 5
[14] Alternately, other grounds on which permission to appeal may be granted include the decision being attended with sufficient doubt to warrant its reconsideration and that substantial injustice may result if permission is refused. 6
[15] It is not clear if s.400 applies to a decision of a member to issue directions. However, given our decision we do not need to resolve this issue.
[16] 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. 7 However, the fact that a member of the Commission at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.8
[17] The decision under appeal is a procedural decision. In the decision of Hutton9 the Full Bench observed that an appeal that challenges an interlocutory or procedural decision is relevant to the determination of permission to appeal.10 It continued that courts and tribunals have generally discouraged appeals from preliminary or procedural rulings and set out reasons for this11:
“Permitting appeals against interlocutory or procedural rulings may prolong the proceedings overall and increase the costs to the parties. There are other reasons why appellate intervention at an early stage may be undesirable. Procedural rulings may be altered later in the case and the party complaining about a procedural decision might ultimately be successful in the substantive proceedings. In such a case any earlier appeal in relation to a preliminary or procedural issue would be rendered futile.”
Permission to appear and make submissions or communicate with the Commission
[18] Patrick Projects did not seek permission under s.596 of the FW Act to appear or file any submissions in relation to this appeal. As noted above, Patrick Projects did correspond with the Full Bench advising that it did not intend appearing in this matter and explained its reasons.
[19] Mr King submitted that the claim, in that correspondence, that the current directions in the matter before Commissioner Johns were made by consent is not correct. However nothing turns on this point.
[20] We are not persuaded to issue a direction under rule 12 of the Fair Work Commission Rules 2013. Rule 12 provides as follows:
“12 Representation by a lawyer or paid agent
For subsection 596(1) of the Act, a person may be represented in a matter before the Commission by a lawyer or paid agent for the following purposes:
(a) preparing a written application or written submission for the person in relation to the matter;
(b) lodging with the Commission a written application, written submission or other document, on behalf of the person in relation to the matter;
(c) corresponding with the Commission on behalf of the person in relation to the matter;
(d) participating in a conciliation or mediation process conducted by a member of the staff of the Commission, whether or not under delegation, in relation to an application for an order to stop bullying made under section 789FC of the Act.
Note 1: Section 596 of the FW Act sets out other circumstances in which a person may be represented in a matter before the Commission by a lawyer or paid representative.
Note 2: Subrule 12(3) deals with representation of parties in a conference or hearing before a Commission Member.
(2) However, subrule (1) is subject to a direction by the Commission to the contrary in relation to the matter.
(3) To remove doubt, nothing in this rule is to be taken as permitting a lawyer or paid agent to represent a party in a conference or hearing before a Commission Member.”
[21] Given our decision in this matter, it is not clear to us that such an order would have any utility. There will be no subsequent need for Patrick Projects to communicate with the Commission.
[22] We are not persuaded, given our decision in this matter, that the Full Bench has the power to give directions to Commissioner Johns that he not grant permission to Patrick Projects to be represented in this matter. The decision to grant permission under s.596 or to issue a direction under rule 12 is a matter for the Commissioner hearing the matter.
Permission to appeal
[23] In this matter the directions sought to be challenge have been vacated. While other directions have been issued they are significantly different to the directions under appeal. Mr King is no longer required to comply with the directions the subject of the appeal.
[24] In the notice of appeal Mr King alleged that the Commission is clearly biased 12 and corrupt13 and has improperly made decisions.14 These are serious allegations made without any evidentiary foundation. Mr King is entitled to disagree with the decisions of the Commission but to make out these claims cogent evidence is required. The mere fact that the Commissioner had regard to correspondence from Patrick Projects’ lawyers is not evidence of actual bias. Mr King made no further submissions at the hearing or in his written submissions in support of permission to appeal in relation to the grounds of appeal alleging actual bias. Here, there has been no decision in relation to the claim of bias because there has been no application to the Commissioner that he not continue to hear the matter because of actual bias. As such, there is no decision for us to consider. Further, in relation to the decision under appeal, we are not satisfied that there is an arguable case that in making that decision the Commissioner was actually biased.
[25] In relation to the appeal against the directions issued by the Commission on 2 and 3 February 2018, as these directions have been revoked we are not satisfied that the appeal has any utility.
[26] Accordingly, we are not satisfied that it is in the public interest to grant permission to appeal and the appeal is dismissed.
DEPUTY PRESIDENT
Appearances:
C. Strauss for the Appellant.
Hearing details:
2018.
Melbourne and Perth by video link:
7 March.
Printed by authority of the Commonwealth Government Printer
<PR600985>
1 [2018] FWC 897
2 This is so because on appeal the Commission has power to receive further evidence, pursuant to s607(2); see Coal and Allied v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ
3 (2011) 192 FCR 78 at [43] per Buchanan J (with whose judgment Marshall and Cowdroy JJ agreed)
4 O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson,Toohey and Gaudron JJ; applied in Hogan v Hinch (2011) 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44] -[46]
5 [2010] FWAFB 5343, 197 IR 266 at [27]
6 Esso Australia Pty Ltd v AMWU; CEPU; AWU[2015] FWCFB 210
7 Wan v AIRC (2001) 116 FCR 481 at [30]
8 GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343 at [26]-[27], 197 IR 266; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089 at [28], 202 IR 388, affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28]
9 Ibid
10 Ibid [3]
11 Ibid
12 Notice of appeal at 16.11, 19.4
13 Ibid at 17.8, 19.5, permission to appeal 1.16-1.17
14 Ibid at 19.6-19.20
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