Daniel King v Patrick Projects Pty Ltd - [2018] FWC 897

[2018] FWC 897

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009

s.604—Appeal of decision

Daniel King

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…

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] FWC 897
Decision Date: 9 FEBRUARY 2018

CaseChat Overview and Summary

The applicant, Daniel King, appeals against decisions made by the Commissioner, Johns, via emails on 2 February 2018 and 3 February 2018 in the matter numbered U2014/7097. The applicant contests the dismissal of his stay application, which he argues was an error in law. The case was heard in the Federal Circuit and Family Court of Australia. The primary legal issues revolved around whether the Commissioner's decisions were based on correct legal principles and whether there were grounds for a stay of the proceedings.

The court examined whether the Commissioner's decisions adhered to the legal standards applicable in the Federal Circuit and Family Court of Australia. It considered whether the Commissioner had appropriately exercised their discretion in dismissing the stay application. The court also assessed whether the Commissioner's actions were influenced by any errors in law or procedural missteps.

After a thorough analysis, the court found that the Commissioner's decisions were grounded in correct legal principles and that there were no grounds for a stay of the proceedings. The court determined that the Commissioner had appropriately exercised their discretion and that the appeal was without merit. Consequently, the court dismissed the appeal against the Commissioner's decisions.

The final orders of the court were to dismiss the appeal against the Commissioner's decisions in the matter numbered U2014/7097, confirming that the stay application was correctly dismissed. The court upheld the Commissioner's decisions as legally sound and procedurally correct.

Orders