DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Daniel King
v
Patrick Projects Pty Ltd
(C2018/576)

DEPUTY PRESIDENT GOOLEY
COMMISSIONER WILSON
COMMISSIONER MCKINNON

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…

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: [2018] FWCFB 1387
Decision Date: 8 MARCH 2018

CaseChat Overview and Summary

The case of Daniel King versus Patrick Projects Pty Ltd, which reached the court, involved an appeal against decisions rendered in emails by Commissioner Johns on 2 February 2018 and 3 February 2018 in matter number U2014/7097. The central issue was whether the decisions made by the Commissioner were legally sound and properly exercised. The appellant, Daniel King, argued that the Commissioner's decisions were flawed and sought their reconsideration or reversal. The respondent, Patrick Projects Pty Ltd, maintained that the Commissioner's decisions were appropriate and should stand as they were.

The court was tasked with determining whether the Commissioner's decisions were indeed erroneous and whether the appeal against them was justified. This involved a detailed examination of the legal framework governing the Commissioner's authority and the specific circumstances surrounding the decisions in question. The court had to assess the procedural correctness of the decisions, as well as their substantive legality, to ensure that all relevant laws and principles were properly applied.

In its reasoning, the court found that the Commissioner's decisions were made in accordance with the applicable legal standards and processes. The court held that the Commissioner had exercised their discretion appropriately and that there were no grounds for the appeal to be successful. Consequently, the appeal was dismissed, and the decisions of the Commissioner were upheld. The court's decision was grounded in a thorough analysis of the evidence and the applicable legal principles, leading to the conclusion that the Commissioner's actions were lawful and justified.

Orders