Jason Deeney Chris Hughes Richard Park Denis Seiffert v Patrick Projects Pty Ltd

[2018] FWC 5636

[2018] FWC 5636

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jason Deeney
Chris Hughes
Richard Park
Denis Seiffert
v
Patrick Projects Pty Ltd
(U2014/982, U2014/983, U2014/1008, U2014/1059)

DEPUTY PRESIDENT BULL PERTH, 7 SEPTEMBER 2018

Application for dismissal of matters under s.399A, failure to attend hearing and comply with directions. Application for Commission member to refrain from hearing matter, allegation of apprehension of bias. S.596(2) Application for respondent’s solicitor to be refused leave to appear.

[1] Mr Jason Deeney, Richard Park, Christopher Hughes and Denis Seiffert (the applicants) have made applications seeking findings that their dismissals from employment by Patrick Projects Pty Ltd (the respondent) on the grounds of redundancy were unfair. The applications were all filed in the first half of 2014. The applications are currently being dealt with jointly.

[2] Mr Christopher Strauss represents the applicants. The respondent is represented by K & L Gates, having previously been granted permission under s.596 of the Fair Work Act 2009 (the Act).

[3] The applications have been subject to ongoing Commission listings and are thus part heard, the most recent listings being at 10:00am on Monday 20 and Tuesday 21 August 2018. On the morning of the Monday 20 August listing at 9:04am the applicants’ representative sent an email to my chambers stating (among other things) that on 10 July 2018, the Commission had listed an appeal filed by the applicants on another related issue for hearing at 12:00pm also on Monday 20 August. The email stated that due to the ‘double booking’ the applicants were planning to attend the Full Bench hearing and would not attend their unfair dismissal hearing until Tuesday, 21 August 2018.

[4] In response the applicants were advised by way of an email from chambers at 9:37am that the hearing at 10:00am on Monday 20 August would proceed and that the attendance of the parties was expected.

[5] At 9:54am the respondent’s representative by email advised that it reserved the right to make an application to have the matters dismissed in accordance with s.399A of the Act, on the basis that the applicants had failed to attend the hearing and had failed to comply with a direction or order of the Commission relating to the hearing. The email further advised that the respondent put the applicants on notice that it reserved all its rights to make an application for costs in accordance with s.400A of the Act because of an unreasonable act or omission of the applicants that had caused the respondent to incur costs.

[6] At 10:00am the applicants’ representative sent an email to my chambers stating it wasn’t ‘logistically possible’ for the applicants to attend the hearing due to the Full Bench appeal listing.

[7] The matter proceeded on Monday 20 August 2018, as programmed, with the respondent in attendance and no appearance for the applicants.

[8] As per the respondent’s email earlier that day, the respondent made submissions that the unfair dismissal applications should be dismissed. The substantial grounds upon which the application was made were that the applicants failed to attend the listed hearing without reasonable explanation and that a Commission direction to file a proper witness statement of Mr Daniel King by 28 June 2018 was not complied with.

[9] On the following day, Tuesday 21 August 2018, at 8:05am, the respondent’s representative advised by email that they intended to press their application for the matter to be dismissed but would not proceed with their costs application.

[10] On commencement of the hearing on 21 August 2018 at which the applicant’s representative attended, the respondent repeated their submissions on having the applications dismissed due to the applicants’ conduct in not attending the listed hearing the previous day without a reasonable explanation. The applicants’ conduct was described by the respondent as ‘arrogant’ and ‘unreasonable’.

[11] Mr Strauss opposed the dismissal application and raised a number of reasons why the applicants’ conduct by not attending the Monday hearing was not unreasonable. Mr Strauss submitted that his ‘double booking’ was the fault of the Commission that should have processes to ensure parties are not listed for more than one matter on any one day. He further sought to attribute blame to the respondent for not alerting the applicants to the double booking, stating that the respondent had set a trap for the applicants by failing to do so.

[12] Mr Strauss stated that he only became aware of the double booking on the morning of 20 August 2018, as he had not noticed that an amended listing removing the July dates (due to his unavailability) and including future September dates, also confirmed that the listed 20 and 21 August 2018 dates remained in place.

[13] Mr Strauss also referred to s.399(1) of the Act which provides that the Commission must not hold a hearing in relation to a matter unless the Commission considers it appropriate to do so taking into account the views of the parties and whether a hearing would be the most effective and efficient way to resolve the matter. Mr Strauss submitted that respondent’s application to dismiss the matters didn’t take into consideration the applicants’ views and that a hearing wasn’t the most effective or efficient way to deal with the matter.

Conclusion

[14] Section 399A of the Act provides as follows:

1) “399A Dismissing applications

(1) The FWC may, subject to subsection (2), dismiss an application for an order under Division 4 if the FWC is satisfied that the applicant has unreasonably:

(a) failed to attend a conference conducted by the FWC, or a hearing held by the FWC, in relation to the application; or
(b) failed to comply with a direction or order of the FWC relating to the application; or
(c) failed to discontinue the application after a settlement agreement has been concluded.

Note 1: For another power of the FWC to dismiss applications for orders under Division 4, see section 587.
Note 2: The FWC may make an order for costs if the applicant’s failure causes the other party to the matter to incur costs (see section 400A).
(2) The FWC may exercise its power under subsection (1) on application by the employer.
(3) This section does not limit when the FWC may dismiss an application.

Failure to comply with direction

[15] The applicants were initially directed to file any witness statements by 2 October 2017, ahead of hearing dates originally listed on 23 and 24 October 2017. In accordance with those directions, a witness statement of Mr King was filed on 2 October 2017. For reasons that are not necessary to set out here, the matters were ultimately adjourned until June 2018.

[16] At the conclusion of the hearing on 21 June 2018, Mr Strauss was directed to refile the witness statement of Mr King 1 on the basis that it should include all his evidence so he would not (as had occurred with the applicants’ evidence to date) be required to give further additional evidence in chief in the witness box. This direction was confirmed by email from my chambers the following day requiring the amended witness statement to be filed by 28 June 2018.

[17] On 28 June 2018, Mr Strauss advised the Commission by email that the amended statement would not be completed for approximately another 3 weeks. Mr King’s witness statement was received in chambers on 17 August 2018, some 7 weeks after the due date. Mr Strauss is aware of the need to comply with Commission directions having previously submitted that a failure to comply with directions was a reason why the respondent’s solicitors should not be permitted to continue their representation. 2

[18] Following the last hearing date on 21 June 2018, the applications were listed for further hearings on 27, 30 and 31 July and 20 and 21 August. On 20 July 2018 by way of email notification, the parties were advised that the July 2018 hearing dates would not proceed, but that the August 2018 hearing dates would remain and that further hearing dates in September 2018 had been programmed.

[19] I am satisfied that the applicants’ failed to attend a hearing in relation to their applications, being the listed hearing on Monday 20 August 2018. I am further satisfied that the applicants failed to comply with a direction of the Commission by not filing the witness statement of Mr King in accordance with the direction to do so by 28 June 2018.

[20] With the conditions precedent having been satisfied under s.399A of the Act the Commission is required to consider whether the actions of the applicants’ were unreasonable and, if so, whether the Commission should exercise its discretion to dismiss the applications.

[21] Dealing first with the non-compliance with the direction to file an amended witness of Mr King, an amended witness statement has now been filed and contains what purports to be an explanation for its late filing based on the grief suffered by Mr King following the passing of his mother on 7 June 2018.

[22] Mr King’s amended witness statement states that while he attended the 4 day hearing of these matters between 18 and 21 June 2018, which was after his mother’s death, he then made himself uncontactable and did not meet with Mr Strauss until 5 August 2018. While no supporting medical opinion was provided with the late filing, at the commencement of the 6 September 2018, hearing an opinion from a psychologist Mr Brian Allen dated 4 September 2018 was provided.

[23] The opinion did not assist in providing a reason for the late filing of the amended statement during the relevant period in June 2018, as he was not under Mr Allen’s care at this time having last seen Mr Allen in February 2017. The opinion appeared directed to why it could be detrimental to Mr King’s mental wellbeing if he was required to give evidence in person. Mr King was advised by the Commission that he was under no obligation to appear as a witness however he stated that he wished to do so.

[24] A Full Bench in A Ghalloub v Aon Risk Services Australia Limited 3 stated in respect to Commission directions:

“[25] Directions are often issued to facilitate the timely and expeditious determination of the application.While the utility of directions may vary depending on the nature of the proceedings, directions can play an important role in case management.If complied with they help to delineate the issues of fact and law and reduce the need for adjournments to take instructions or to gather evidence. The importance of case management is now widely recognised in the law, and directions for hearing a matter are an important aspect of case management in the Commission.In Queensland v. J.L.Holdings Pty Limited the High Court accepted the importance of case management principles but said:

“However, nothing in that case suggests that those principles might be employed, except perhaps in extreme circumstances, to shut a party out from litigating an issue which is fairly arguable. Case management is not an end in itself. It is an important and useful aid for ensuring the prompt and efficient disposal of litigation. But it ought always to be borne in mind, even in changing times, that the ultimate aim of a court is the attainment of justice and no principle of case management can be allowed to supplant that aim.””

[25] In Lenijamar Pty Ltd and Others v AGC (ADVANCES) Limited 4 Wilcox and Gummow JJ made the observation that continual non-compliance is an important factor where it imposes an unacceptable burden on the respondent. In this instance although the non-compliance has prejudiced the respondent in its preparation for the August 2018 listings, the non-compliance has now been remedied. Where a direction has subsequently been complied with it is difficult to justify dismissal of proceedings solely because of previous non-compliance. In that situation, the non-compliance becomes more of an issue should a costs application against the non-complying parties be made.

[26] It appears on the face of the amended witness statement of Mr King that it is not the applicants’ conduct that has resulted in the late filing, but the action of Mr King himself as stated in his amended witness statement. On this basis the Commission is unable to be satisfied that the applicants’ have unreasonably failed to comply with a Commission direction and thus the s.399(A) application is dismissed.

[27] However it must be noted that the failure of the applicants’ representative to request an extension of time to file the amended witness statement (other than to state it is envisaged it would be filed 3 weeks late) and to subsequently file the amended statement 7 weeks out of time without seeking leave, is discourteous in the extreme to the Commission and the respondent.

Non-attendance at 20 August 2018 hearing

[28] Mr Strauss’s attempts to foist the responsibility of the applicants’ failure to attend the listed 20 August 2018 hearing on the Commission and the respondent are without merit. The responsibility for not attending lies solely with the applicants. Confirmation of the 20 August 2018 listing was sent to the parties on 28 June 2018; the listing remained unchanged and was confirmed by the Commission on 20 July 2018. The Full Bench listing that the applicants refer to as the ‘double booking’ was not listed until 10 July 2018.

[29] A further brief written submission as to why the applications should be dismissed was received from the respondent on 31 August 2018, the respondent referred to an email sent to the chambers of VP Hatcher on 16 August, regarding the appeal listed for Monday 20 August. The correspondence notes that the appeal is listed on day 5 of this part heard matter. The 16 August email was copied to the applicants. The applicants were provided with an opportunity to respond to the respondent’s further written submissions by COB 5 September 2018. The applicants’ response while traversing numerous issues much of which was repetitive and unrelated to the applicants’ non-attendance on 20 August, made no reference to the respondent’s 16 August email.

[30] The only plausible explanation that Mr Strauss offered for the non-attendance on 20 August was that he misread the listing that issued on 20 July 2018 and only noticed on the morning of the hearing that the hearing was still listed to proceed. Accepting that the applicants’ failure to attend the hearing was the result of inadvertence by their representative, it follows that the applicants themselves have not acted unreasonably. It would be unjust to the applicants if they were penalised for their representative’s short comings. 5

[31] Ordinarily this would not save the applicants from a costs order as a result of the costs thrown away for the day by the respondent as their representatives were in attendance. However as stated above, the respondent while having made a costs application on the day of the hearing, subsequently withdrew the application.

[32] Mr Strauss’s reference to s.399(1) of the Act is misguided. The parties were asked by the Commission on 29 January 2018, for their views on whether the matter should proceed by way of a hearing or determinative conference. Both parties responded on 5 February 2018, and both requested that the matter proceed by way of a hearing.

[33] Similar to the observations made above in respect of the failure comply with a Commission direction, the applicants’ conduct in electing not to attend the 10:00am 20 August hearing to request an adjournment to later in the day (due to the 12.00pm hearing at the same location) or the following day is not acceptable.

Apprehended Bias and Rule 12(2)

[34] While the applicants submitted that they were unware until the morning of 20 August 2018 that the hearing days of 20 and 21 August were to proceed, at 8:56 am on 20 August 2018 the Commission received from the applicants’ representative Mr Strauss an email which attached written submissions dated 19 August 2018 advising of the applicants’ apprehension of bias and requesting that I refrain from further hearing the applications.

[35] The application also sought a direction from the Commission under Rule 12(2) of the Fair Work Commission Rules 2013 that the respondent be prevented from being represented by any lawyer or paid agent in appearing before the Commission, preparing any written application before the Commission, lodging any documentation with the Commission or corresponding with the Commission. No reasons were contained in the written submissions seeking this direction, which could only be issued if I did not refrain from further hearing the applications.

[36] On Tuesday 21 August 2018 Mr Strauss elaborated on his two applications. Both applications were opposed by the respondent.

[37] This is the second application by the applicants’ for the Commission as presently constituted to refrain from continuing to hear the applications. The first having been made on 23 October 2017, which was declined and that decision was upheld on appeal. 6

[38] In Isbester v Knox City Council 7, Kiefel, Bell, Keane and Nettle JJ stated:

“The question whether a fair-minded lay observer might reasonably apprehend a lack of impartiality with respect to the decision to be made is largely a factual one, albeit one which it is necessary to consider in the legal, statutory and factual contexts in which the decision is made.”

[39] A reading of the relevant authorities on bias applications are consistent in concluding that the fair-minded observer does not make snap judgments 8 and is taken to be a reasonable person.9 Further the fair minded observer is not unduly sensitive or suspicious.10 The apprehensions of the applicants are not to be attributed to the fair minded lay observer unless they can be justified objectively.11

[40] Without wishing to discount or undermine the applicants’ arguments, they appear to be a ‘grab bag’ of reasons gleaned from the proceedings on the previous hearing dates of 18 to 21 June 2018, that barely rise to a level warranting a response. No references to transcript to support the propositions put were provided by Mr Strauss. As such I can only surmise what he is actually referring to in his written submissions. Although the applicants’ may not be content with the proceedings to date, I do not accept that a fair-minded lay observer might reasonably apprehend any lack of impartiality.

[41] The issues raised by the applicants relating to the respondent’s authority to be represented by solicitors were dealt with in a decision issued on 15 June 2018. 12 The fact the decision did not accord with the applicants’ submissions at the time do not justify a subsequent bias application.

[42] As the applications have been dealt with jointly for efficiency reasons, the applicants have not been allowed to provide their evidence in the presence of any other applicant yet to provide their evidence. Once they have given their evidence the applicants are able to remain in the hearing. This is a standard practice and implemented to protect the applicants from an allegation of collusion being made.

[43] In summary I make the following observations in relation to points raised generally by the applicants in relation to apprehended bias:

• Mr Strauss has been advised on a number of occasions to ask questions of his witnesses without at the same time providing them with the answer;
• The Commission is required to know whether an applicant has engaged their representative as a paid agent;
• No determination in regards to a potential costs application has been made;
• An advocate is entitled to cross examine a witness in a forthright manner;
• Where an advocate is also a witness they should ordinarily provide their evidence prior to calling any other witnesses;
• Despite Mr Strauss stating otherwise, the Commission’s records indicate that on 28 June 2018, he requested the transcript for the 18-21 June 2018 hearing dates. It was not requested or sent to any party by the Commission as currently constituted;

• In listing suitable hearing dates the Commission may request unavailable dates of the parties. Where possible unavailable dates are accommodated, particularly where a genuine reason is advanced for the unavailability.

[44] Mr Strauss has frequently stated during these proceedings he is not a lawyer. However a lack of legal qualifications does not allow an advocate to make baseless allegations. It is reasonable to take the view that even a layperson, particularly one who has appeared before the Commission on a number of occasions as Mr Strauss has, would understand that an apprehension of bias application cannot be based on speculation. 13 To represent, as Mr Strauss has done, that the applicants apprehend that the presiding member ‘might have an interest in the matters’ is pure speculation and without any foundation.

[45] In my view, the lay observer invoked by the applicants in their submissions is far from fair minded. The application serves only to unnecessarily delay the hearing of the substantive merits of the unfair dismissal applications. The application to refrain from further hearing the applications is dismissed.

[46] As stated above the applicants also sought a direction under Rule 12(2) that the respondent be prevented from being represented by any lawyer or paid agent 14 without permission. The grounds for this application were not contained in the applicants’ written submissions. Mr Strauss’ oral submissions were directed to the appearance of Mr Fletcher and his conduct in the matters to date. Nothing stated by Mr Strauss raised any valid reason such as to cause the Commission to issue the requested directions and they are refused.

DEPUTY PRESIDENT

Appearances:

Mr Christopher Strauss for the Applicants

Mr Duncan Fletcher, Solicitor, K & L Gates, with Mr J Parkinson Solicitor for the Respondent

Hearing details:

Perth

2018

20, 21 August

 1   PN5733-41

 2   [2017] FWC 5429 at [18]

 3   PR956665

 4 (1990) 27 FCR 388 at para [37]

 5   See comments of Judge Kendall in Ryan v J-Corp Pty Ltd [2018] FCCA 2403 at [81]

 6   [2018] FWCFB 86

 7 (2015) 89 ALJR 609 at 613 [20]

 8   Johnson v Johnson (2000) 201 CLR 488 at 494 [14]

 9   Ibid at 493 at [12]

 10   Ibid at 509 at [53]

 11   Lord Rodger of Earlsferry in Helow v Home Secretary [2008] 1 WLR 2416 at 2418 [2]-[3]

 12   [2018] FWC 3514

 13   See comments of Judge Nicholls in Somerville v AFS Security 24/7 Pty Ltd & Ors [2018] FCCA 2234 at [40]

 14   The reference to a paid agent not being able to appear for the respondent was not made clear

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