Denis Seiffert v Patrick Projects Pty Ltd
[2018] FWCFB 5010
•29 AUGUST 2018
| [2018] FWCFB 5010 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Jason Deeney; Christopher Hughes; Richard Park; Denis Seiffert
v
Patrick Projects Pty Ltd
(C2018/3303)
| VICE PRESIDENT CATANZARITI | SYDNEY, 29 AUGUST 2018 |
Permission to appeal sought in relation to decision [2018] FWC 3514 of Deputy President Bull at Sydney on 15 June 2018 in matter numbers U2014/982, U2014/983, U2014/1008 and U2014/1059.
Jason Deeney, Richard Park, Christopher Hughes and Denis Seiffert (the Applicants) applied in 2014 for unfair dismissal remedies in relation to the termination of their employment by Patrick Projects Pty Ltd (the Respondent).
On 15 June 2018 Deputy President Bull issued a decision dealing with a number of procedural matters in relation to the unfair dismissal applications[1]. In particular, the Deputy President refused to: adjourn hearings listed to take place on 18, 19, 20 and 21 June 2018, revoke leave that had previously been given for the Respondent to be legally represented, order the Respondent’s Directors to attend the forthcoming hearing in person and not accept submissions from the Respondent’s legal representatives.
The Applicants have sought permission to appeal the Deputy President’s decision. A hearing was conducted on 9 August 2018 to deal with this application. The Applicants were represented by Mr C Strauss and the Respondent by Ms J Doecke. At the conclusion of the hearing we refused permission to appeal and indicated that the reasons for our decision would be published in due course. These are those reasons.
The Decision
The Deputy President had listed the applications for hearing and determination on 18 to 21 June 2018. On 8 June 2018 the Applicants sought the hearing to be adjourned until further notice. This was, it was submitted on behalf of the Applicants, to allow an issue concerning legal representation in another matter before Commissioner Johns to be determined.
The Deputy President noted that the matter before him had been listed on 9 April 2018 and the adjournment application had been made on 8 June 2018. The witness statements and submissions had been filed. The hearings had already been significantly delayed. He also noted that the matter before Commissioner Johns had not been determined and in any case would not be binding on him. The Applicants were unable to point to any real prejudice that they would suffer should the matters proceed as programmed or raise any issue of procedural fairness.
The Applicants submitted that the Respondent’s permission to be legally represented should be revoked on the ground that the firm representing the Respondent, K&L Gates, lacked the authority to represent the Respondent before the Fair Work Commission (Commission). The Deputy President noted that the Commission’s decision to allow the Respondent to be legally represented was not attached to a particular legal firm or counsel.
The Deputy President continued:
‘It is not ordinarily a matter for the Commission to go behind a legal practitioner’s assertion that they have authority and have been instructed to act on behalf of a client. Unlike a lay advocate, legal practitioners have a paramount duty when appearing in courts and tribunals to conduct themselves with probity, candour and honesty. In Western Australia, where the matters were filed and are to be heard, every practitioner is an officer of the Supreme Court and bound by the Legal Profession Act 2008 (WA) and the legal Professional Conduct Rules 2010. Legal practitioners are also guided by the Law Society of Western Australia publication Ethical & Practice Guidelines.
While the Commission has the ability to revoke an earlier decision to grant a party permission to be legally represented to do so would normally involve a change of circumstances from those in existence at the time the original determination was made and involve consideration of whether the change is sufficient to justify the revocation of an earlier decision pursuant to s.603 of the Act.
I am not persuaded that the application sought should be granted. The alleged change in circumstances relates to the authority of K & L Gates to appear on behalf of the Respondent.
K & L Gates maintain that they have been properly instructed to appear in these proceedings and the Applicants’ submissions to the contrary are misconceived and fanciful.’[2]
The Applicants’ request that the Respondent’s Directors be ordered to attend was also based on the proposition that K & L Gates was not authorised to represent the Respondent and was similarly rejected by the Deputy President.
Permission to appeal principles
An appeal under s.604 of the Fair Work Act 2009 (the Act) is an appeal by way of rehearing. The Commission’s powers on appeal are only exercisable if there is an error on the part of the primary decision maker. There is no right to appeal, and an appeal may only be made with the permission of the Commission. Section 604(2) of the Act states:
“Without limiting when the FWC may grant permission, the FWC must grant permission if the FWC is satisfied that it is in the public interest to do so.”
Because this appeal concerns a procedural decision in relation to applications for unfair dismissal remedies it is governed by s.400 of the Act, which provides as follows:
“(1) 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.
(2) 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.”
In Coal & Allied Mining Services Pty Ltd v Lawler and others, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 of the Act as “a stringent one”. The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment. 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.”
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. However, the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.
Consideration
The Applicants are seeking permission to appeal a decision against an interlocutory decision regarding the manner in which the Commission has decided to deal with a matter. Under s.589 of the Act the Commission has a broad discretion to make decisions as to how, when and where a matter is to be dealt with. It is also significant that the hearings that the application concerns have now been concluded.
We agree with the observation made by the Full Bench of the Australian Industrial Relations Commission in Comsec Trading Limited and others[3] that:
‘it is in the public interest to discourage appeals from preliminary or procedural rulings. This is an approach generally adopted by the courts and by the Commission. It is only necessary to refer to the well-known passage from the judgment of Sir Frederick Jordan in re the Will of F. B. Gilbert (dec):
“…I am of the opinion that, …there is a material difference between an exercise of discretion on a point of practice or procedure and an exercise of discretion which determines substantive rights. In the former class of case, if a tight rein were not kept upon interference with the orders of Judges of first instance, the result would be disastrous to the proper administration of justice. The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a Judge in Chambers to a Court of Appeal.”
The circumstances of this case are indeed a particularly good example of why it is generally not in the public interest to grant permission to appeal procedural decisions. The Applicants have continually sought the revocation of the original decision of the Commission to give the Respondent permission to be legally represented, as well as other challenges to procedural decisions. This has led to continual delays in dealing with the substantive applications. Such delays are inconsistent with the proper administration of justice.
We note that the applications for permission to appeal in respect of the Deputy President’s refusal to adjourn the June hearings or to consider the Respondent’s representative’s submissions are of no utility as the hearings have already occurred.
More generally, we consider that the approach of the Deputy President in the decision which the Applicants are seeking to appeal was entirely reasonable and well within his discretion. There was no error in the approach he adopted. Moreover there is nothing in the submissions of the Applicants which raise issues of importance or 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.
Conclusion
We are not persuaded that the Applicants have put anything before the Commission that could be said to enliven the public interest.
For the reasons set out above, we are not satisfied that it would be in the public interest to grant permission to appeal pursuant to s.400(1) of the Act. The application for permission to appeal is therefore dismissed.
VICE PRESIDENT
Appearances:
Mr C Strauss for the Applicants
Ms J Doecke for the Respondent
Hearing details:
2018
Sydney with video link to Perth
August 9
<PR620312>
[1] [2018] FWC 3514.
[2] At [31] to [34]
[3] (PR945431) 6 April 2004.
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