Inna Grabovsky v United Protestant Association NSW Limited t/a UPA

[2019] FWC 6925

[2019] FWC 6925

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 604—Appeal of decision

Inna Grabovsky
v
United Protestant Association NSW Limited t/a UPA
(C2019/5979)

DEPUTY PRESIDENT SAMS SYDNEY, 14 OCTOBER 2019

Appeal against decision [[2019] FWC 6318] and order (PR712290) of Commissioner Johns at Sydney on 11 September 2019 in matter number C2017/7037 – costs ordered against appellant – application for a stay order – consideration of prospects of success and balance of convenience – principles applying to stay orders – numerous unsuccessful proceedings – prospects of success remote – unnecessary to consider balance of convenience – application for stay order dismissed.

BACKGROUND

[1] On 30 September 2019, Mrs Inna Grabovsky (the ‘appellant’) lodged an appeal, for which permission to appeal is required from the Full Bench of the Fair Work Commission (the ‘Commission’), pursuant to s 604 of the Fair Work Act 2009 (the ‘Act’) against a Decision and Order (PR712290) of Commissioner Johns of 11 September 2019 in Inna Grabovsky v United Protestant Association of NSW Ltd t/a UPA[2019] FWC 6318 (the ‘Costs Decision’). In the Costs Decision, the Commissioner, having taken into account the provisions of s 611 of the Act, ordered the payment of costs by the appellant of $27,537.12 to the United Protestant Association of New South Wales Limited (‘UPA’), in respect to the unreasonable conduct of the appellant in pursuing an application, commenced by her on 20 December 2017, pursuant to s 739 of the Act. That application was in relation to an alleged dispute under the UPA, NSWNMA and HSU NSW Enterprise Agreement 2014-2017 (the ‘Agreement’) between the appellant and the UPA.

[2] Relevantly, on 5 December 2018, the Commissioner dismissed the s 739 application by finding that the application had no reasonable prospects of success; see: Inna Grabovsky v United Protestant Association of NSW Ltd t/a UPA [2018] FWC 7227. That decision was the subject of an appeal by the appellant. Permission to appeal was refused by the Full Bench on 26 March 2019; see: Inna Grabovsky v United Protestant Association NSW Ltd [2019] FWCFB 1964. Further consequential Full Bench proceedings initiated by the appellant were dismissed by the Full Bench on 27 May 2019; see: Inna Grabovsky v United Protestant Association NSW Ltd t/a UPA [2019] FWCFB 3620.

[3] The appellant’s Notice of Appeal (subsequently ‘AMENDED UNDER PROTEST’ on 2 October 2019, on advice from the Commission, as the appellant had wrongly identified Commissioner Johns as the respondent to the appeal) seeks a stay of the ‘decision and order in their entirety’, pending the hearing and determination of the appeal which is listed before the Full Bench on 27 November 2019. I note that the original notice of appeal and stay application were lodged 2 days before the 21 day time limit for filing an appeal. Further, the order for costs was required to be complied with on 11 September 2019, meaning the appellant is, and remains in default of the Commissioner’s order.

LEGISLATIVE PROVISIONS AND PRINCIPLES

[4] Section 604 of the Act reads:

‘604 Appeal of decisions

(1) A person who is aggrieved by a decision:

(a) made by the FWC (other than a decision of a Full Bench or an Expert Panel); or

(b) made under the Registered Organisations Act by:

(i) the General Manager (including a delegate of the General Manager); or

(ii) the Registered Organisations Commissioner (including a delegate of the Commissioner);

may appeal the decision, with the permission of the FWC.

(2) 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.

Note: Subsection (2) does not apply in relation to an application for an unfair dismissal (see section 400).

(3) A person may appeal the decision by applying to the FWC.

[5] The specific provisions dealing with stay applications are set out at s 606 as follows:

‘606 Staying decisions that are appealed or reviewed

(1) If, under section 604 or 605, the FWC hears an appeal from, 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.

(2) If a Full Bench is hearing the appeal or conducting the review, an order under subsection (1) in relation to the appeal or review may be made by:

(a) the Full Bench; or

(b) the President; or

(c) a Vice President; or

(d) a Deputy President.

(3) This section does not apply in relation to a decision to make a protected action ballot order.’

[6] The principles to be applied by the Commission in considering an application for a stay order are now well-settled. These principles are set out in the decision of Ross VP (as His Honour then was) in P Edghill v Kellow Falkiner Motors Pty Ltd (Print S2639), which was adopted by the Full Bench of the Australian Industrial Relations Commission (AIRC) in Kellow-Falkiner Motors Pty Ltd v Edghill (Print S4216). In the earlier decision, His Honour said at [5] and [6]:

‘[5] In determining whether to grant a stay application the Commission must be satisfied that there is an arguable case, with some reasonable prospect of success, in respect of both the question of leave to appeal and the substantive merits of the appeal. In addition, the balance of convenience must weigh in favour of the order subject to appeal being stayed. Each of the two elements referred to must be established before a stay order will be granted.

[6] The Commission approaches applications for stay orders on the basis that, unless otherwise established, the order subject to appeal was regularly made.’

See also: Boom Logistics Limited v Bell and Mackay[2013] FWC 1017; GM Holden Ltd v Symonds[2013] FWC 332; Vondoo Hair v Crockett[2012] FWA 9553; Vita Property Group Pty Ltd v Clayworth[2012] FWA 6547; DesignInc (Sydney) Pty Limited v Xu[2012] FWA 1088; Suncorp Staff Pty Limited v Brewer[2012] FWA 823;and Gippsland Waste Services Pty Ltd v Irene Meadley[2013] FWC 3090; and Smerff Electrical v Lamacq [2019] FWC 796.

[7] In respect of the first limb of the test for the grant of a stay – that there is an arguable case, with some reasonable prospects of success – it is necessary to emphasise that the test applies to the requirement for permission to appeal as well as the substantive merits of the appeal. Section 604(2) of the Act provides that the Commission may grant permission to appeal, if it is satisfied that it is ‘in the public interest to do so’. The task of assessing whether the public interest test is met is a discretionary one, involving a broad value judgement.  The public interest is not satisfied simply by the identification of error, or a preference for a different result. In GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343 a Full Bench of Fair Work Australia (as the Commission was then styled), identified some of the considerations that may attract the public interest:

‘... the public interest might be attracted where a matter raises issue 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...”

[8] In assessing whether the purpose of a stay application in an appeal has the requisite prospects of success, the Commission necessarily engages in an assessment of the merits of the matter in a preliminary way, since the Commission will not have had the benefit of hearing the appellant’s full argument and usually will not have had the opportunity to properly consider the case materials (as was the case here).

GROUNDS OF APPEAL

[9] The appellant (presumably, through her husband, Mr Igor Grabovsky, as Mrs Grabovsky has never appeared at, or in any of her numerous proceedings in the Commission since March 2014) set out the appellant’s grounds of appeal as follows:

‘1. The Commission constituted by Mr. Johns acted upon wrong principles and in breach of principles;

2. Decision [2019] FWC 6318 was made in breach of due process and therefore it is invalid by default.

The conduct of Mr. Johns in C2017/7037 is currently on appeal (matter C2019/3321). Johns C did make decision [2019] FWC 6318 before the results of the inquiry into the legitimacy of his conduct in the matter C2017/7037 (to which decision [2019] FWC 6318 relates) are known and before his right to preside over the matter C2017/7037 and to make determination is established an/or confirmed.

Consequently, the legitimacy of decision [2019] FWC 7227, which gave [rise] to decision [2019] FWC 6318, is not yet established. It makes decision [2019] FWC 6318, on appeal by this application, of a questionable validity regardless of the outcome C2019/3321 which will come after decision [2019] FWC 6318 that is already made.

Mr. Johns’ rash action to produce the outcome to the cost application of a questionable legality did place the FWC into a difficult position to deal with the matter C2019/3321 in a lawful and unbiased manner;

1. Commissioner Johns has a conflict of interest in dealing with [any matter related to] this dispute; his is driven by prejudice and hatred towards the Applicant/Appellant. His hatred is based on the Applicant’s actions that detected, exposed and documented Mr. Johns’ failure to discharge his statutory duties in compliance with the law and the uncovering of the unscrupulous nature of his mind.

Also, IT MUST BE NOTED that Mr. Johns is discriminating the Applicant/Appellant on sexual, racial and social grounds. As the first step to rectify the problem with Mr. Johns’ behaviour, the Applicant/Appellant did complaint to Mr. Iain Ross, the President of the FWC. President Ross failed to protect the Applicant from Mr. Johns’ predatory behaviour. While the Applicant/Appellant did take the next steps (in a different [jurisdiction]) to bring the conduct of the members of the FWC in line with the applicable laws and public expectations, the people who are responsible for allocation of this appeal to the arbitrating members, and members of the Full Bench, who will deal with this matter, must be aware of the real state of affairs.

Consider yourselves being informed!

Mr. Johns has a motive to lie to conceal his misconduct, and the opportunity and means to tamper with the course of justice, abusing the powers of his Office and trust of the Australian people and he did use the opportunity and means to commit another serious offence by issuing decision [2019] FWC 6318.

2. Decision [2019] FWC 6318, in its current form, constitutes a fraudulent official instrument intended to be used (in conjunction with Decision [2018] FWC 7227 and [2019] FWCFB 1964) against the law of the Commonwealth to pervert the course of justice to conceal serious offences. Mr. Johns arrived to his decision(s) in error of facts, in error of law and in deliberate error of determination that are reversible and appealable errors.’ (emphasis in original)

[10] The appellant set out why it would be in the public interest for permission to appeal being granted by the Full Bench as follows:

‘The judicial and juristic errors, the Decision [2019] FWC 6318 is riddled with [errors], must be corrected to stop the circulation of this fraudulent official instrument in the judicial system, especially in the jurisdiction of Fair Work Commission, and prevent the use of this decision as an “authority” to harm uninformed litigants.’

[11] In Attachment A, Mr Grabovsky sought to reargue why the Commissioner is the respondent to the appeal. He put that the appellant had been coerced to amend the appeal by the Commission. I do not intend to recite the bizarre and nonsensical submissions in Attachment A, except by demonstrating this observation by Mr Grabovsky’s insistence that 20 named members of the Commission (including the President and the two Vice Presidents) must not be assigned to deal with this appeal because of a ‘conflict of interest’. Putting aside that no details were provided of how the 20 Commission members have a conflict of interest, these submissions are patently absurd and cannot be accepted.

[12] The stay application was allocated to me for hearing and I listed the matter for Tuesday, 8 October 2019. On Friday 4 October 2019, Mr Steve Walkerden, the respondent’s General Manager, advised that the respondent would not be able to attend, or be represented at the hearing. However, it sought to provide short submissions and be otherwise excused from the hearing. Shortly after, I advised Mr Walkerden as follows:

‘Given that the onus is on the applicant to satisfy the tests for the grant of a stay of Commissioner [Johns’] last decision, the respondent is granted leave to be absent from the hearing next Tuesday.

The respondent’s submissions and the applicant’s oral submissions next Tuesday, will be taken into account in His Honour’s decision on the stay application.

SUBMISSIONS

For the appellant

[13] Given the desirability of determining stay applications as soon as possible, I have not had the benefit of the transcript of the hearing. However, the appellant’s submissions are summarised below.

[14] Mr Grabovsky put lengthy and detailed oral submissions essentially explaining the history of his wife’s litigation in the Commission since 2014 and making numerous allegations of criminal conduct and conspiracy against:

•  Commissioner Johns;

•  the Fair Work Commission;

•  the UPA;

•  the UPA’s barrister in earlier proceedings; and

•  the UPA workers’ compensation insurer.

I shall group Mr Grabovsky’s submissions under the following headings:

The Costs Decision

[15] The appellant submitted that the Costs Decision:

(a) is ‘fraudulent’ and the Commission should grant the stay to prevent the currency and circulation of a fraudulent decision and unlawful order imposed on an innocent person seeking justice;

(b) perverted the course of justice to conceal criminal offences. A stay order would prevent further criminal offences;

(c) did not demonstrate a shred of evidence of an abuse of process by the appellant;

(d) is ‘riddled with errors’, and therefore there is a clear public interest in removing it from public access and as an authority of the Commission; and

(e) was almost a year’s salary for the appellant when she was last employed. She has no assets, income or other financial resources and relies on a disability pension and therefore, could not pay the costs of $25,537.12.

Commissioner Johns

[16] The appellant submitted that Commissioner Johns:

(a) is the respondent in this appeal, not the UPA, due to his fraudulent decision and unlawful order;

(b) had planned a hearing of a jurisdictional objection of the UPA which had not been filed and had acted as an agent for UPA for its benefit. There was misconduct by both the UPA and the Commissioner;

(c) had ‘wilfully and sadistically inflicted psychological damage’ on him and ‘enjoyed’ doing it; and

(d) knew the Costs Order was unenforceable, but made it in order to put further psychological pressure on the appellant.

The Commission

[17] The appellant submitted that the Commission:

(a) is not bound by decisions or principles set by Full Benches; and

(b) is bound by the Vexatious Proceedings Act 2008 (NSW) and where that Act refers to the word ‘may’ this is not a discretionary matter, but an ‘illegal test’.

The UPA

[18] The appellant submitted that:

(a) the UPA’s barrister was incompetent and unscrupulous and had committed criminal offences;

(b) the UPA had misappropriated millions of dollars of Government subsidies for its own gain and benefited by not paying its workers and not appropriately caring for its aged residents; and

(c) he (Mr Grabovsky) had made at least 20 applications to the Commission in respect to his wife’s mistreatment by the UPA. Further, he had been responsible for the establishment of the investigation into former Commission Vice President, Michael Lawler, and the establishment of the Royal Commission into Aged Care.

For the respondent

[19] Mr Walkerden submitted:

‘3. The principles concerning whether a stay application will be granted are well established. They are stated in the decision of Edghill v Kellow-Falkiner Motors Pty Ltd[2000] AIRC 785 as follows:

“In determining whether to grant a stay application the Commission must be satisfied that there is an arguable case with some reasonable prospects of success, in respect of both the question of leave to appeal and the substantive merits of the appeal. In addition, the balance of convenience must weigh in favour of the order subject to appeal being stayed. Each of the two elements referred to must be established before a stay order will be granted.”

Arguable case with some reasonable prospects of success?

4. The Decision is predicated on findings that the Appellant’s s739 application was:

(a) brought without proper justification pursuant to s611(2)(a); and

(b) brought with no reasonable prospects of success pursuant to s611(2)(b).

5. The s739 application itself was dismissed by Commissioner Johns on the basis that the proceeding was an attempt to re-litigate claims previously determined adversely to the Appellant and, as such, were never capable of success1. The Appellant failed to obtain permission to appeal the original decision to dismiss the s739 application2.

6. The Respondent submits that the findings in the Decision made in accordance with s611 were appropriate.

7. The Decision also reveals the proper exercise of the available discretion by the Commissioner.

8. The grounds of appeal in the Appellant’s Notice of Appeal are:

(a) the Decision was based upon “wrong principles or in breach or principles” which are not properly revealed in the Notice of Appeal;

(b) the Decision was “in breach of due process”. The Appellant cites the fact that there remain a number of other of the Appellant’s appeals that have not yet been determined. None of those appeals in any way relate to the subject matter of the Decision;

(c) Commissions Johns had a conflict of interest in making the Decision. This allegation has been a feature of previous unsuccessful appeals. The Respondent submits that it has no merit; and

(d) the Decision is a “fraudulent official instrument intended to be used against the law of the Commonwealth to pervert the course of justice to conceal serious offences”. The Appellant has offered no support for this most serious allegation.

9. The Respondent submits that none of these grounds or the supporting submissions within the Notice of Appeal reveal any basis for the grant of leave to appeal or an arguable case on appeal with reasonable prospects of success.

10. Further, the Notice of Appeal does not reveal any public interest considerations in the subject matter of the appeal. ‘

Balance of Convenience considerations

11. The grant of a stay will prevent the Respondent from proceeding to seek payment of its costs under the order until the determination of the appeal proceedings.

12. At best, the balance of convenience is a neutral consideration.

Appropriate Order

13. Despite the neutral balance of convenience considerations, the Respondent submits that the first limb of Edghill is not satisfied and, therefore, the stay application should be dismissed.’ (footnotes omitted)

CONSIDERATION

[20] I shall not give further currency to Mr Grabovsky’s submissions and sully this decision by repeating what is set out in [9] above. I shall use as neutral language as possible to comment on the appellant’s grounds of appeal in the context of this stay application.

[21] Firstly, Mr Grabovsky submitted that the Costs Decision was based on wrong principles, or in breach of principles. The appellant does not identify what wrong principles were acted upon, or breached by Commissioner Johns.

[22] Secondly, Mr Grabovsky asserted that the costs decision was made in breach of due processes and is ‘invalid by default’. Similarly, the appellant does not disclose how it is said the Costs Decision was in breach of process. On a fair reading of the Commissioner’s Costs Decision, the process undertaken by him was, in my view, thoroughly and fairly conducted, and related only to the provisions of s 611 of the Act. The fact the appellant may have other matters previously determined, remaining on foot or foreshadowed, has nothing to do with the application of the principles and procedures for dealing with costs applications before the Commission. Further, there is no such thing, and certainly no authority dealing with a Commission decision, being ‘invalid by default’.

[23] Thirdly, Mr Grabovsky claimed that the Commissioner had a conflict of interest. This allegation has been the subject of previous unsuccessful appeals by the appellant. Continuing to raise matters and filing applications previously determined by the Commission would usually constitute an abuse of process. Accusing the Commissioner of breaching his statutory duties by using highly offensive, defamatory and insulting language is reprehensible and unacceptable and for which Mr Grabovsky has been previously warned; see: [29] of Inna Grabovsky v United Protestant Association NSW Ltd[2019] FWCFB 1964.

[24] I note also the appellant’s complaint against the President for not protecting the appellant from the Commissioner’s ‘predatory conduct’. While it is difficult to understand what this offensive comment means, or what conduct he is speaking of, this type of language is utterly contemptible. Further, Mr Grabovsky does not explain what it is alleged His Honour has, or has not done, in accordance with the President’s express powers mandated to him by the statute.

[25] Fourthly, Mr Grabovsky claimed the Costs Decision ‘is a fraudulent official instrument intended to be used against the law of the Commonwealth to pervert the course of justice to conceal serious offences’. Similarly, this very serious allegation offers no detail or explanation as to how the Costs Decision is fraudulent, how it is intended to pervert the course of justice and what are the concealed ‘serious offences’.

[26] Fifthly, as to Mr Grabovsky’s submission that the appellant cannot afford to pay the costs ordered, no evidence of the appellant’s incapacity to pay was provided. Mere assertions from the Bar Table are not sufficient. In any event, the impecuniosity of a litigant against whom a costs order is made, is not a defence against a properly determined and regularly made costs order.

[27] It seems to me that Mr Grabovsky would be well advised to refrain from repeating serious allegations which he does not, has not and cannot substantiate. He should desist from using offensive language, like some uncouth schoolboy bully, and behave himself as a respectful representative of a serious litigant in Commission proceedings.

CONCLUSION

[28] In my opinion, there is nothing in the appellant’s grounds of appeal which identifies - let alone explains - in what respect the Commissioner fell into error in the Costs Decision. It seems abundantly plain that Mr Grabovsky’s grounds of appeal are little more than a litany of wild, unsubstantiated and offensive, outrageous allegations against Commissioner Johns, in particular, irrational and absurd allegations against the Commission generally, its Members, and procedures, and a misconceived understanding of the relevant provisions of the Act. In my view, the appellant has not identified any public interest considerations in his grounds of appeal, or in her representative’s submissions.

[29] Further, I am satisfied that the appellant has not established an arguable case, with some reasonable prospects of success. On the contrary, I consider the appellant’s prospects of success in the appeal as being, at best, remote, and more likely to be nil. It is unnecessary therefore for me to consider and determine whether the balance of convenience weighs in favour of a stay order being granted in this matter.

[30] The appellant’s application for a stay of the Commissioner’s Costs Decision and order of 11 September 2019 is dismissed. I order accordingly.

DEPUTY PRESIDENT

Appearances:

Mr I Grabovsky appeared for the appellant.

No appearance for the respondent.

Hearing details:

2019.

Sydney:

8 October.

Printed by authority of the Commonwealth Government Printer

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