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Daniel King v Patrick Projects Pty Ltd

Daniel King v Patrick Projects Pty Ltd

Case [2016] FWCFB 5069 27 July 2016

Appeal

Interlocutory Orders

Civil Litigation & Procedure

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[2016] FWCFB 5069

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 604 - Appeal of decisions

Daniel King and others
v
Patrick Projects Pty Ltd
(C2016/3987)

DEPUTY PRESIDENT SAMS
DEPUTY PRESIDENT GOSTENCNIK
COMISSIONER SAUNDERS

SYDNEY, 27 JULY 2016

Appeal against a Decision of Senior Deputy President Drake in Sydney on 27 June 2016 in matters U2014/982, U2014/983, U2014/1008, U2014/1059, U2014/5970 and U2014/7097 – interlocutory decision – public interest not enlivened – permission to appeal refused.

BACKGROUND

[1] This decision will determine an application for permission to appeal in relation to a Notice of Appeal, filed on 3 June 2016, by Mr Daniel King, Mr Jason Deeney, Mr Christopher Hughes, Mr Richard Park, Mr Denis Seiffert and Mr Christopher Strauss (the self-styled ‘concurrent applicants’ or the ‘appellants’) against a decision of Senior Deputy President Drake on 27 June 2016 in matters U2014/982, U2014/983, U2014/1008, U2014/1059, U2014/7097 and U2014/5970 (the ‘Decision’). Her Honour’s Decision arose in the context of six unfair dismissal applications filed by each of the appellants, under s 394 of the Fair Work Act 2009 (the ‘Act’) following their dismissals for reasons of redundancy by Patrick Projects Pty Ltd (the ‘respondent’) in March 2014. Relevantly, Her Honour has listed the six applications for arbitration between 8 and 11 August 2016 in Perth (the ‘substantive proceedings’).

[2] In preparation for the hearing next month, including directions for the filing of evidence and materials upon which both parties rely (which has now been completed), Her Honour was required to consider an application by the respondent, under s 596 of the Act, that it be granted permission to be represented by a lawyer in the substantive proceedings. On 12 April 2016, in a separate ruling concerning orders to produce documents sought by the appellants, her Honour also ordered that the parties file written submissions concerning the application by the respondent for permission to be represented by a lawyer.

[3] Both parties filed detailed submissions and the respondent relied on a witness statement of Ms Elizabeth Ferrier, General Manager, Industrial Relations, Asciano (the parent Company). We note that there was no request by the appellants to cross examine Ms Ferrier. Ms Ferrier’s evidence was therefore uncontested. On 18 May 2016, Her Honour advised the parties by email as follows:

‘I have considered your application that I not allow legal representation of the respondent at the hearing of the applications before me.

I am persuaded that the respondent should be allowed to be represented.

Please provide any dates in the next three months which would be unavailable to the applications for a hearing.’

It is from this Decision that the appellants have sought to appeal.

[4] On 14 June 2016, the parties were advised that this Full Bench intended to list the appellants’ appeal for permission to appeal only on 12 July 2016. Associated directions were issued, including a direction that any party who wished to be represented by a lawyer or paid agent, was to file and serve a one page document…

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.

Continue reading Daniel King v Patrick Projects Pty Ltd

Details

AGLC: Daniel King v Patrick Projects Pty Ltd [2016] FWCFB 5069
Case: [2016] FWCFB 5069
Decision Date: 27 JULY 2016

CaseChat Overview and Summary

The case of Daniel King v Patrick Projects Pty Ltd involves an appeal against a decision made by Senior Deputy President Drake in the Federal Circuit Court of Australia on 27 June 2016. The matters under consideration include U2014/982, U2014/983, U2014/1008, U2014/1059, U2014/5970, and U2014/7097. The dispute pertains to an interlocutory decision, specifically whether the public interest was sufficiently engaged to warrant an appeal. The court was required to determine whether the appeal was permissible and whether the decision met the criteria for public interest considerations.

The primary legal issues revolved around the criteria for granting permission to appeal in interlocutory matters. The court had to assess whether the public interest was adequately served to justify the appeal and if there were any exceptional circumstances that warranted the granting of such permission. The court was also required to examine whether the decision made by the Senior Deputy President was appropriate in light of the public interest and the overall context of the case.

In its reasoning, the court found that the public interest was not sufficiently enlivened to warrant the granting of permission to appeal. The decision of the Senior Deputy President was considered appropriate and aligned with the legal principles governing interlocutory appeals. The court emphasised that the public interest criterion must be rigorously applied, and in this instance, the requirements were not met. Consequently, the appeal was dismissed, and permission to appeal was refused. The court's decision underscores the importance of adhering to strict criteria when considering interlocutory appeals and the significant threshold that must be met to satisfy the public interest requirement.

Orders