Daniel King v Patrick Projects Pty Ltd
[2018] FWC 897
•9 FEBRUARY 2018
| [2018] FWC 897 |
| FAIR WORK COMMISSION |
| REASONS FOR DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Daniel King
v
Patrick Projects Pty Ltd
(C2018/576)
| DEPUTY PRESIDENT GOOLEY | MELBOURNE, 9 FEBRUARY 2018 |
Appeal against decisions in emails of Commissioner Johns on 2 February 2018 and 3 February 2018 in matter number U2014/7097 - stay application dismissed.
Mr Daniel King has appealed two decisions of Commissioner Johns set out in two emails, one dated 2 February 2018 and the second dated 3 February 2018 and applied for a stay.
At the stay hearing Mr King sought two orders:
1. That Patrick Projects Pty Ltd not be granted permission to be represented by a lawyer.
2. That Mr King’s application for costs be stayed until the appeal is heard and determined.
At the conclusion of the stay hearing, I advised the parties that I would not grant a stay. These are my reasons.
Permission to appear
At the hearing Patrick applied for permission to be represented at the stay. It submitted that the appeal disclosed that Mr Strauss, who was representing Mr King, was a paid agent. It referred to various statements in the appeal itself which evidence that Mr Strauss had been paid monies by Mr King to represent him and that Mr King was claiming in his costs application for services provided by Mr Strauss. It submitted that it would be unfair in those circumstances to not permit Patrick to be represented.
It also submitted that the matter involved some complexity and legal representation would enable the matter to be dealt with more efficiently.
Mr Strauss objected to Patrick being granted permission and submitted that he was not a paid agent because he did not charge a fee. He also submitted that the matter did not involve any particular complexity.
I did not determine whether Patrick should be given permission to appear at the stay as it was not necessary in determining whether to grant the stay to hear from Patrick. Further, in relation to the issue of whether Mr Strauss is or is not a paid agent I considered that this was a matter best dealt with at the appeal proper in circumstances where the parties have an opportunity to make detailed submissions on the issue. I determined that if it were necessary to grant permission to Mr Strauss to appear, I would grant such permission.
The decisions under appeal
Mr King was successful in his claim that his dismissal by Patrick was unfair. On 4 April 2017, Mr King applied for costs. Because Mr King appealed the unfair dismissal decision, the matter was delayed.
On 28 November 2017, the Commissioner issued directions requiring the parties to file material in relation to Patrick’s application to be represented by a lawyer and in relation to the costs application. On 6 December 2017, Patrick filed submissions in support of its application to be represented and on 12 December 2017, Mr King filed submissions in opposition to Patrick being represented. On 22 December 2017, further directions were issued for the parties to file material in relation to the costs application. There were further requests to amend the directions and on 17 January 2018 the Commissioner advised that he would not entertain any further amendments to the directions unless they were made by consent.
On 23 January 2018, Mr King filed material in support of his costs application. On 25 January 2018, Patrick’s lawyers wrote to the Commissioner referring to the material filed by Mr King. The email stated:
“In particular, not 1 of the 16,976 pages details or particularises the costs incurred by the Applicant, nor provides evidence of such costs being incurred or the basis to which the Applicant is entitled to such costs within the framework of the Fair Work Act 2009 (Cth) (FW Act). This is inconsistent with the directions issued by the Commission which ordered the Applicant to file his materials which support his application for costs.
Moreover, the Materials contain copies of the FW Act, blank Fair Work Commission Forms, the Privacy Act 1988 (Cth), bench books and numerous copies of the same materials, the majority of which relate to proceedings which have no bearing on the Applicant's application for costs or the substantive unfair dismissal proceedings which were heard and determined by Senior Deputy President Drake. Not only does reviewing such materials put the Respondent to considerable cost and expense, it is also a waste of the Commission's time and resources.
Accordingly, the Respondent's position is that the Applicant should be invited to comply with the directions to provide details of his costs, the basis for recovery and evidence of such costs being incurred within a timeframe to be determined by the Commission. If the Applicant is unwilling or unable to comply with the directions, then the Respondent's position is that the matter should be discontinued by the Applicant. Alternatively, if the Applicant does not provide such materials within the timeframe determined by the Commission, the Respondent requests that the Commission exercise its powers to dismiss the Applicant's application.”
On 30 January 2018, Patrick filed submissions in relation to the costs application.
On 2 February 2018, the Commissioner sent the following email to Mr King:
“The Commissioner has considered the email below complaining about the material that the Cost Applicant (Mr King) has filed (purportedly) in support of his application for costs.
The Commissioner himself has also now had cause to consider the documents contained on the USB filed in the Perth Registry.
It is not immediately apparent to the Commissioner how any of what has been filed can be said to comply with the Direction that Mr King file and serve “any materials in support of [his] costs application.”
It seems, more likely than not (but without having determined the matter), that Mr King has failed to comply with the Direction without reasonable cause (despite a number of amendments being made to the timing of the Directions).
Further, it seems, more likely than not (but without having determined the matter), that the costs application has no reasonable prospects of success.
The Commissioner therefore apprehends that the Respondent applies to the Commission for it to dismiss the costs application under s.587 of the Fair Work Act 2009. If this is the case the Respondent should do so by application (using a Form F1).
In the circumstances it seems unfair to require the Respondent to respond to the materials that have been filed.
For this reason the Commissioner had decided to vacate all of the remaining Directions and to cancel the hearing listed for 22 February 2018.
Further, by 5 pm on 9 February 2018 Mr King is directed to identify any page in the 16,976 which:
1.Quantifies the costs incurred by Mr King;
2.Particularises the costs incurred by Mr King;
3.Evidences that Mr King has paid for such costs.
Or to otherwise, again by 5 pm on 9 February 2018, file in the Commission and serve on the Respondent material which:
1.Quantifies the costs incurred by Mr King;
2.Particularises the costs incurred by Mr King;
3.Evidences that Mr King has paid for such costs (including, without limitation, a witness statement from Mr King attesting to the same).
Failure to comply with this Direction may result in the Commissioner exercising his powers under section 587 of the Fair Work Act 2009.”
On the same date, Mr King objected to the decision of Commissioner Johns and said as follows:
“1. Is it not the case, that as per your direction 5, Mr King has until 5pm Tuesday 13 February 2018 to file any further materials in response to the Respondent's reply, which the Respondent's lawyer has now provided, in two parts those being 25 and then 29 January 2018, from which you have now shortened that date without consent and only upon the Respondent's lawyer's submissions to FWA?
2. Is it not the case, albeit amendments may obviously be required to bring the original schedule as filed up to date, by 5pm Tuesday 13 February 2018, that the basis for the claim is set out in the original application as filed together with the original schedule and supported by the 17,976 pages evidencing what had to be attended to in connection with the unfair dismissal, which is now challenged only by the Respondent's lawyer's submissions to FWA?
3. Is it not the case, if we are only just now conversing on minutia and details of matters of law which the applicant and his representative have no understanding, that the Respondent's lawyer is not permitted to make submissions to the Commission as permission has not yet been granted and that the Commission is therefore in direct breach of section 596(1) by considering any of the Respondent's lawyer's submissions to FWA?
4. Is it not the case, in considering section 596(1), that the Respondent has not in fact complied with directions and not in fact filed any legitimate reply or submissions with FWA to date?
596 Representation by lawyers and paid agents
(1) Except as provided by subsection (3) or the procedural rules, a person may be represented in a matter before FWA (including by making an application or submission to FWA on behalf of the person) by a lawyer or paid agent only with the permission of FWA.
Naturally, this situation must inevitably lead to full award the full claim of cost to the Applicant, given the Respondent has not filed any submissions in consideration and compliance with section 596(1).
The Applicant respectfully requests, you immediately withdraw your previous comments, simply allow the Applicant to file his further materials in response to the Respondent's reply as per direction 5, then hear the argument.”
On 3 February 2018, the Commissioner advised that the decision stood and said:
“In relation to the Costs Application Mr King was directed to file material in support of it.
However, many issues that would usually be addressed in the filing of evidence, submissions and materials in relation to an Application for Costs remain unaddressed, for example:
1.What is the nature of Mr King’s position as a litigant?
2.Is he self-represented?
3.Is he represented by a paid agent (if so, what are the terms of that engagement)?
4.Is he represented by a non-paid agent (in which case where are the submissions/authorities which support the proposition that Mr King is entitled to recover costs of the type contained in the Costs Application if he has never incurred them?).
5.Where is the evidence of out of pocket expenses incurred by Mr King?
Mr King objects to the respondent being represented, but has not explained to the Commissioner the basis of his representation. This is an important consideration relevant to what, if any costs, can be recovered by Mr King.
Consequently, by 5 pm on Wednesday, 7 February 2018 Mr King must file in the Commission and serve on the respondent an Affidavit attesting to the nature of his position as a litigant and explaining how Mr Strauss is his representative and the basis for that engagement including, without limitation, disclosing any fee arrangements agreed between them. The Commissioner must be put in a position where he clearly understands whether or not Mr King claims to be self-represented, but assisted by a lay advocate or there is some other basis for the representation.
The Commissioner will then list the matter for a short hearing on Friday, 9 February 2018 at 2 pm (Eastern Summer Time) in Perth (by video-link to Sydney).
In addition to clarifying the basis of Mr King’s representation (for which he must be present), the Commissioner will also hear any supplementary oral submissions about whether the respondent should be granted permission to be represented (noting that the Commissioner has read the submissions made by the respondent and applicant in December 2017).”
Events after the decision
On 5 February 2018, Mr King sought an extension of time to file material.
On the same date, new directions were issued which granted Mr King an extension of time to file his material. The original directions and the amended directions were vacated. The hearing to determine whether Patrick would be granted permission to be represented by a lawyer was set down for hearing on 5 March 2018.
Grounds of appeal
Mr King did not set out clearly his grounds of appeal. He provided a detailed history of his costs application and sets out the procedural decisions of the Commissioner.
At the hearing, I asked Mr Strauss if the following accurately summarised Mr King’s grounds of appeal:
· Mr King submitted that the Commissioner erred in permitting Patrick’s to file material without being granted permission to appear.
· Mr King submitted that the Commissioner did not have the power to direct him to file material set out in the directions.
· Mr King submitted that the Commissioner did not have the power to change the directions as there was no consent.
· Mr King submitted that the Commission is actually biased.
Mr Strauss agreed with this but said there were more matters that they would press on appeal.
The stay
In deciding whether to issue a stay, the Commission needs to be satisfied that the party seeking the stay has made out an arguable case that has some reasonable prospect of success, in respect of both the question of permission to appeal and the substantive merits of the appeal, having regard to the additional hurdle in unfair dismissal related appeals set out in s.400 of the Act. Further consideration must be given to whether the balance of convenience favours the granting of a stay.
This assessment is necessarily carried out without the benefit of hearing the party’s full argument and without the opportunity to undertake a thorough analysis of the case material.
However as Vice President Hatcher further noted in CFMEU v Collinsville Coal Operations Pty Ltd:[1]
“[11] However the application of those principles is necessarily subject to it being demonstrated at the outset by the applicant for a stay that there is an operative decision with ongoing or future effect capable of being stayed under s.606(1). It is not clear to me that this has been demonstrated here. For example, the CFMEU seeks as part of its stay application that the decision of the Senior Deputy President to refuse an adjournment be stayed. It is not apparent how a stay of such a decision could have any practical effect. The refusal or dismissal of an application does not usually give rise to anything capable of being stayed pending an appeal.” (references omitted)
In this matter the decisions under appeal are expressed to set out in the emails of 2 and 3 February 2018. The difficulty faced by Mr King was that those directions were vacated and new directions issued on 5 February 2018 as a result of the request by Mr King for additional time to comply. Even if I formed the view that the decisions of 2 and 3 February 2018 should be stayed, the stay would have no utility because the directions of 5 February 2018 would remain. This is sufficient grounds to dismiss the application for a stay.
Further, what is sought is not a stay of the decisions but a stay of the proceedings.
S.606(1) of the Act provides as follows:
“If under sections 604 or 605, the FWC hears an appeal, or conducts a review of, a decision, the FWC may, (except as provided by subsection (3)) order that the operation of the whole or part of the decision be stayed, on any terms and conditions that the FWC considers appropriate, until a decision in relation to the appeal or review is made or the FWC makes a further order.”
It is not clear to me, and I was not taken to any authorities on this issue, that this provides the Commission with a power to make the order sought by Mr King that the proceedings be stayed. The Commission is a creature of statute and does not have inherent powers such as superior courts. S.606(1) refers to staying the decision not staying the proceeding. However given my conclusion that the decisions sought to be stayed have been set aside it is not necessary for me to determine this issue.
The decisions of the Commissioner were interlocutory.
Permission to appeal would rarely be granted in appeals against interlocutory or procedural decisions which do not involve the determination of any substantive issue, for the reasons explained by the Full Bench in Hutton v Sykes Australia Pty Ltd[2] (footnote omitted):
“[3]The fact that this appeal challenges an interlocutory or procedural decision is relevant to the determination of permission to appeal. Courts and tribunals have generally discouraged appeals from preliminary or procedural rulings. 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.”
Given this, I am not satisfied on the basis of the material before me and submissions made by Mr Strauss that he has demonstrated that there is an arguable case with some reasonable prospects of success with respect to permission to appeal.
In his decision, the Commissioner altered the directions for the future programing of the matter.
The emails set out clearly the issues that the Commissioner was concerned about and provided Mr King with an opportunity to put forward evidence and submissions in relation to those matters. If, in his final decision, the Commissioner has regard to irrelevant material, then Mr King, if he is aggrieved with the decision, can rely on this as one of his grounds of appeal.
These were clearly procedural decisions and do not determine any matter in dispute between the parties.
However Mr Strauss submitted that some of the matters Mr King complains of remain on foot.
Legal representation
It was submitted that Patrick needed permission to have its lawyers file material. I am not satisfied that there is an arguable case that permission to appeal would be granted in relation to this ground of appeal.
At the hearing I drew Mr Strauss’ attention to rules 11 and 12 of the Fair Work Commission Rules 2013 and to the decision of the Full Bench in Stephen Fitzgerald v Woolworths Limited[3] where the Full Bench explained the interaction between s.596 and the rules:
“[45] On that basis, s.596 operates in conjunction with rules 11 and 12 in respect of unfair dismissal applications in the following way. Where an applicant engages the services of a lawyer or paid agent, representation begins at the point that the application to the Commission is made on the applicant’s behalf. All dealings with Commission undertaken on behalf of either party from that point onwards in connection with the application constitute representation. Rule 11(1) operates to require the lawyer or paid agent to lodge a “notice of representative commencing to act” as soon as representation in the sense discussed commences. However, notwithstanding that representation has commenced in relation to the application, permission under s.596(2) for any representational activities undertaken prior to or outside of a conciliation conference, determinative conference, or interlocutory or final hearing will generally not be required because rule 12(1) exempts, subject to any contrary direction made under rule 12(2), the making of written applications and written submissions, the lodgement of documents with the Commission and correspondence with the Commission from the general prohibition in s.596(1). If a party considers themselves to be prejudiced by such representational activity on behalf of the opposing party, the remedy is to apply for a direction under rule 12(2) which, if granted, would require the opposing party to seek permission for representation to the necessary extent under s.596(2).”
Mr Strauss submitted that Mr King did not need to seek a direction under rule 12(2) because the Commissioner had already sought submissions on whether permission to be represented by a lawyer should be approved.
I am not satisfied on the basis of the material before me and submissions made by Mr Strauss that he has demonstrated that there is an arguable case with some reasonable prospects of success with respect to permission to appeal. The Commissioner had not yet determined the issue of permission. Until such time as a decision is made, rule 12 permits a party’s legal representative to file submissions, make applications and communicate with the Commission.
The direction to provide additional evidence and submissions
I am not satisfied on the basis of the material before me and submissions made by Mr Strauss that he has demonstrated that there is an arguable case with some reasonable prospects of success with respect to permission to appeal that the directions issued by the Commission were beyond power.
It is clear from the emails that there were issues about which the Commissioner sought information and submissions. S.590 gives the Commissioner a wide discretionary power to obtain information and submissions. There is nothing unusual for a Commission member to, having considered the material filed, seek further evidence and submissions from the parties about particular issues that must be resolved. Mr King complains that the Commissioner’s concerns only arose because of the email from Patrick’s lawyers. However that does not detract from the Commissioner’s power to seek the information. Again, nothing in this procedural direction determines any of the matters in dispute between the parties.
The change to the directions
I am not satisfied on the basis of the material before me and submissions made by Mr Strauss that he has demonstrated that there is an arguable case with some reasonable prospects of success with respect to permission to appeal that the Commissioner did not have the power to vary his directions.
While the Commissioner advised, having received a request for variations to the directions, that had been opposed that any future request to change the directions would need to be by consent, that did not mean that the Commissioner was not able to alter the directions.
Bias
I am not satisfied on the basis of the material before me and submissions made by Mr Strauss that he has demonstrated that there is an arguable case with some reasonable prospects of success with respect to permission to appeal that the Commissioner was biased.
Mr King submitted that the Commissioner gave legal advice to Patrick’s lawyers. That is a misreading of what the Commissioner said. The Commissioner received an email from Patrick’s lawyers in which it was stated:
“The Respondent’s position is that the Applicant should be invited to comply with the directions to provide details of his costs, the basis of recovery and evidence of such costs being incurred within a timeframe to be determined by the Commission. If the Applicant is unwilling or unable to comply with the directions, then the Respondent’s position is that the matter should be discontinued by the Applicant. Alternatively, if the Applicant does not provide such materials within the timeframe determined by the Commission, the Respondent requests that the Commission exercise its power to dismiss the Applicant’s application.” (my emphasis)
The Commissioner replied to that part of the correspondence as follows:
“The Commissioner therefore apprehends that the Respondent applies to the Commission for it to dismiss the costs application under s.587 of the Fair Work Act 2009. If this is the case the Respondent should do so by application (using a Form F1).”
The Commissioner is merely giving information to Patrick that any such application would need to be made in the usual manner. He is not advising Patrick to make such an application.
The Commissioner’s bias it is said is evidenced by the unfairly truncated timetable. The difficulty with this submission is that once Mr King sought a variation to the timetable it was granted.
It was submitted that evidence of actual bias arose because the Commissioner broke the law by allowing Patrick to be represented without granting permission. I have considered the issue of permission above. Given the Commissioner had not yet determined the application for permission it is difficult to understand how he has broken the law.
Balance of convenience
Mr Strauss submitted that it was in all parties’ interests for the proceeding to be stayed because the Full Bench might uphold the appeal and refer the matter to another member of the Commission to be determined. However that would be a possibility in all appeals.
I am satisfied that the balance of convenience does not favour a stay. The parties are best served by allowing the matter to proceed and in the event that Mr King is aggrieved about the outcome he can appeal and the appeal will be able to deal with all the matters about which Mr King is aggrieved rather than have them dealt with in a piecemeal manner. This will reduce the costs for all parties.
Conclusion
I am not satisfied that given the directions issued on 2 and 3 February 2018 have been vacated there is any matter to stay. Further, I am not satisfied for the reasons set out about above that Mr King has demonstrated that there is an arguable case with some reasonable prospects of success with respect to permission to appeal. An order giving effect to the decision to refuse the stay will issue with these reasons.
DEPUTY PRESIDENT
Appearances:
C. Strauss for the Appellant.
M. Stutley for the Respondent.
Hearing details:
2018.
Melbourne and Perth via video link:
9 February.
<PR600309>
[1] [2014] FWC 4276
[2] [2014] FWCFB 3384
[3] [2017] FWCFB 2797
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