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

[2017] FWC 5429

[2017] FWC 5429

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, U2017/983, U2017/1008, U2017/1059)

DEPUTY PRESIDENT BULL PERTH, 20 OCTOBER 2017

S.596(2) Application for permission to be represented by a lawyer to be revoked, whether sufficient changed circumstances, matter will continue to be dealt with more efficiently taking into account the complexity of the matter, exercise of discretion - application dismissed.

[1] On 18 May 2016 the respondent Patrick Projects Pty Ltd was granted permission to be legally represented 1 in respect of these applications; reasons for the decision were provided by the Commission on 27 June 2016.2 That decision was upheld on appeal.3 At the time, the applications also included the unfair dismissal applications of Christopher Strauss (U2014/5970) and Daniel King (U2014/7097). The applicants sought to have all applications joined, which initially occurred, although it eventuated that matters U2014/5970 and U2014/7097 were dealt with separately. Those 2 applications have now been finalised, including appeal hearings.4 The remaining 4 applications continue to be dealt with jointly and are to be dealt with in a single hearing of the Commission.5

[2] The remaining 4 applicants, Jason Deeney, Richard Park, Christopher Hughes and Denis Seiffert (the applicants) have made an application seeking the Commission revoke the permission granted to the respondent to be legally represented.

[3] The application has been dealt with by way of written submissions filed by the parties.

Applicants’ submissions

[4] The applicants have provided reasons in support of their objection to the continuing legal representation by the respondent, some of which are summarised below 6:

● Since the original decision to grant legal representation the circumstances and considerations have changed significantly.

● The original decision considered 6 applications which were intended to be heard, considered, determined and disposed of concurrently however they were not heard, determined, completed and disposed of concurrently.

● Applications U2014/7097 (King) and U2014/5970 (Strauss) applications have been completed and disposed of. The remaining applications have not been dealt with; this situation was not contemplated at the time.

● The complexity of hearing, considering and determining and disposing of 6 applications, no longer exists. The Commission need only consider whether or not the redundancies were genuine.

● The complexity in disposing of the 3 different circumstances, i.e. misconduct, serious misconduct and redundancy, does not exist now.

● The remaining applications are confined to the single question of genuine redundancy considerations.

● The reasons for granting of legal representation no longer exist as:

i. There are no longer 6 applications

ii. The basis of the applications does not vary

iii. The facts are not different.

● In hindsight, there is no evidence the discretion that SDP Drake had in her mind and applied at the time, in the end, complied with or met s.596(2) as the matters were not in fact “dealt with more efficiently, taking into account the complexity of each application, if permission to be represented by a lawyer was granted”. There is no evidence the matter has been dealt with more efficiently, following or by way of, the previous granting of permission for the respondent to be represented by a lawyer.

● The respondent was directed to file in the Commission and serve on the applicants, its submissions in reply to the Applicant's submissions that legal representation should no longer be granted to the Respondent, by no later than 5:00pm on 22 September 2017.

● The respondent did not file in the Commission and did not serve on the applicants, its submissions by no later than 5:00pm on 22 September 2017, which is evidence the Respondent's lawyers’ behaviour includes refusing to follow directions of the Commission.

● The Respondent's lawyer has repeatedly provided false and misleading submissions to the Commission. Such systemic behaviour by a lawyer in proceedings is inefficient, which the Commission should not accept.

● Mr Strauss does not fall into the description of “paid agent” under s.12 of the Act, nor is there any evidence Mr Strauss is a “paid agent”.

Respondent’s submissions

[5] The respondent contends that legal representation should continue to be granted on the grounds which include 7:

● Once leave for legal representation has been granted and, as in this case upheld on appeal, it is neither desirable nor open to the Commission to review that decision.

● The applicants are using the objection as an impermissible appeal by proxy of the original decision to grant permission for legal representation. It is evident from the applicants' submissions that they do not agree with the original decision to grant permission. This amounts to abuse of the processes of the Commission as set out in the FW Act.

● Despite the fact that single applications were made by each of the Applicants, these matters have proceeded on the basis that they will be determined within the same factual and legal matrix.

● The criteria under s.596(2) of the FW Act continue to be satisfied to warrant ongoing permission for legal representation. This is a sufficient basis to dismiss the application for revocation.

● The circumstances relating to the current and remaining applications have not changed. The materials which form the basis of their respective applications are those which existed at the time permission was initially granted. Whilst the matters involving Strauss and King have been heard and determined, permission was granted for all applications and no material change in circumstances exists to demonstrate that revocation of permission is warranted.

● This matter is complex for the following reasons:

• the applications require consideration of the threshold question of whether the Commission has jurisdiction to hear the merits of the applications as the respondent asserts that the dismissals were genuine redundancies; and



• the applicants have filed a considerable volume of materials which they assert form the evidence relating to their respective dismissals, including evidence they refer to as the "Concurrent Evidence". These materials have been filed without regard to proper demarcation as to what evidence relates to responses to the respondent's objections and what evidence relates to the respective merits of each application.

● Reference is made to the decision Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v UGL Resources Pty Limited (Project Aurora) 8 where SDP Richards noted at [23]

“It appears to me that where the Respondent (in this case) seeks to agitate a jurisdictional issue then it would follow that representation by a lawyer would be a reasonable course. Jurisdictional issues by their nature are prospectively complex in their own right, and/or else may require a degree of familiarity with court and tribunal jurisprudence or authorities.”

As noted by SDP Richards at [8]:

“Ordinarily at least, if the prescribed conditions are found to be in existence, the discretion to give permission to represent a person would be exercised in favour of the person."

● As the respondent seeks to agitate jurisdictional and legal issues, the respondent submits that ongoing legal representation would be the reasonable course.

● SDP Drake accepted that the matters were complex in granting permission. The fact the applications by Mr King and Mr Strauss have been disposed of does not make the remaining applications less complex.

● The complexity continues to exist as a result of the factual and legal background to these proceedings and the manner in which the proceedings had been conducted to date. This includes the significant amount of time it has taken for Mr Strauss to press arguments that were ultimately of little or no relevance to the outcome.

● There is significant dispute as to the facts in these proceedings and considerable differences as to what the parties regard as relevant and irrelevant evidence to which findings of fact are able to be made at each stage of the applications.

● Continuing to allow legal representation would enable the matter to be dealt with more efficiently as a legal representative will be able to present the relevant information in a concise manner. That is, it would ensure that the precise questions and matters before the Commission could be presented and the case would run more efficiently.

● In Nain v Southern Cross Care 9, Lewin C held that where there were significant disputed factual issues apparent on the face of the evidence filed prior to the hearing, the presence of lawyers who are more likely to conduct skilled cross-examination of the key witnesses would lead to greater efficiency in the conduct of the hearing and assist the Commission:

"in the evaluation of the conflicting evidence, which might otherwise become a complex and inefficient process if the parties were self represented".

● In Applicant v Respondent 10DP Sams recognised that in most cases of any complexity, the presence of lawyers acting in the case would make the matter run more efficiently, stating:

"In my experience, the prospects of a case being run more efficiently and focussed on the relevant issues to be determined, is more likely where competent legal representation is involved".

● The applications concern redundancies which occurred over 3 years ago. The Respondent ceased stevedoring operations by the end of 2015 and it has no employees. K&L Gates has been involved in the proceedings on behalf of the respondent since they were initially filed.

● Revocation of permission for K&L Gates to represent the respondent places it in a position where it must identify resources that can effectively represent it. An evaluative judgment must be based on the evidence available to the Commission and the circumstances of the particular case.

● In this regard, Bryson Gilbert & Ors v. Asciano Services Pty Ltd T/A Pacific National Bulk Rail 11, a case which involved 8 joined unfair dismissal applications in which SDP Hamberger granted permission to Asciano to be represented by lawyers is analogous to the present proceedings.

● The respondent contends that unfairness between the parties does not manifest itself where the respondent has previously been represented to date.

● The respondent notes that SDP Drake commented that she found that Mr Fletcher's involvement was of assistance during the previous proceedings 12 and that he was a model of patience throughout this lengthy and sometimes difficult hearing.13

● The respondent submits that there is a real issue as to whether Mr Strauss is a paid agent for the purposes of s.596 of the FW Act. In particular, the respondent refers to the closing submissions filed by Mr Strauss on 19 February 2017 at paragraph [7] in which he stated:

“There is perhaps what might be described as a general understanding between the Applicants that expenses arising from representation will be discussed during and after proceedings depending upon where proceedings are, go to or end up and depending upon what expenses might arise as and or when they might arise.”

This submission was made by Mr Strauss notwithstanding direct evidence he gave that he did not have an "arrangement" or an "understanding" that he would be paid some of the applicant's compensation (if any is ordered) in order to make up for the time and effort spent by Mr Strauss in the legal proceedings. 14

Consideration

[6] Section 596(2) of the FW Act is the relevant section to be applied in determining applications of this kind. It is expressed in the following terms:

“(2) FWC may grant permission for a person to be represented by a lawyer or paid agent in a matter before FWC only if:

(a) it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter; or

(b) it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or

(c) it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter.”

[7] It is noted that ss.(a), (b) and (c) of s.596 are disjunctive in that it is only necessary for the Commission to find one of the subsections is satisfied to exercise its discretion to grant permission for a person to be represented by a lawyer. 15 In deciding whether to exercise the discretion to grant permission to be represented, one of the conditions precedent in s.596(2)(a)-(c) must have been satisfied. The satisfaction of one of these conditions is not determinative but enlivens discretion about whether permission to be represented should be granted.16

[8] The Commission may revoke an earlier decision to grant or not grant one or both parties the right to be legally represented, where the requirements in s.596(2) are met during the proceedings or are no longer satisfied. 17 Grounds to do so would normally involve a change of circumstances from those in existence at the time the original determination was made and whether the change is sufficient to justify the revocation of an earlier decision pursuant to s.603 of the FW Act.

[9] The principles to be applied in applications for legal representation were considered in Warrell v Walton 18 (Warrell) and subsequently adopted by a Full Bench of this Commission in New South Wales Bar Association v McAuliffe19. In Warrell, Flick J stated:

“[24] A decision to grant or refuse "permission" for a party to be represented by "a lawyer" pursuant to section 596 cannot be properly characterised as a mere procedural decision. It is a decision which may fundamentally change the dynamics and manner in which a hearing is conducted. It is apparent from the very terms of section 596 that a party "in a matter before FWA" must normally appear on his own behalf. That normal position may only be departed from where an application for permission has been made and resolved in accordance with law, namely where only one or other of the requirements imposed by section 596(2) have been taken into account and considered. The constraints imposed by section 596(2) upon the discretionary power to grant permission reinforce the legislative intent that the granting of permission is far from a mere "formal" act to be acceded to upon the mere making of a request. Even if a request for representation is made, permission may be granted "only if" one or other of the requirements in section 596(2) is satisfied. Even if one or other of those requirements is satisfied, the satisfaction of any requirement is but the condition precedent to the subsequence exercise of the discretion conferred by section 596(2): i.e., "FWA may grant permission...". The satisfaction of any of the requirements set forth in section 596(2)(a) to (c) thus need not of itself dictate that the discretion is automatically to be exercised in favour of granting "permission.”

[10] Mason CJ in Giannarelli v Wraith 20(Giannarelli) made the following comments concerning the appearance and assistance provided by legal counsel in proceedings:

"[A] barrister's duty to the court epitomises the fact that the course of litigation depends on the exercise by counsel of an independent discretion or judgment in the conduct and management of a case in which he has an eye, not only to his client's success, but also to the speedy and efficient administration of justice. In selecting and limiting the number of witnesses to be called, in deciding what questions will be asked in cross-examination, what topics will be covered in address and what points of law will be raised, counsel exercises an independent judgment so that the time of the court is not taken up unnecessarily, notwithstanding that the client may wish to chase every rabbit down its burrow. The administration of justice in our adversarial system depends in very large measure on the faithful exercise by barristers of this independent judgment in the conduct and management of the case."

[11] A Full Bench of the Commission in E. Allen and Ors v Fluor Construction Services Pty Ltd 21, relying on the comments of Mason CJ in Giannarelli, observed in relation to legal representation:

"[48] A lawyer's duty to the Commission is paramount and supercedes a lawyer's duties to their client. A grant of permission to appear pursuant to section 596(1) of the Act is based upon a presumption that the representative to whom leave is granted will conduct themselves with probity, candour and honesty. The duty of advocates in that regard has been long recognised by the Commission”

(Footnotes omitted).

[12] The Full Bench in Priestley v Department of Parliamentary Services 22 expressed a similar view in regard to the role of legal representatives:

"[13] In our view DPS has established that representation would assist DPS to bring the best case possible. Representation by persons experienced in the relevant jurisdiction will be of undoubted assistance in this regard. We are satisfied that the particular counsel has the capacity to assist the DPS and assist the Tribunal in performing its functions."

[13] As can be adduced from the above authorities, a competent legal practitioner practicing in this jurisdiction would be expected to contribute to the proceedings being suitably focused and efficiently conducted. Despite these benefits, the ability for the Commission to allow legal representation in its proceedings is constrained by s.596 of the FW Act.

[14] In this matter, albeit when the applications totalled 6, a decision was made by SDP Drake to permit the respondent to be legally represented despite having earlier been a member of a Full Bench that did not allow the respondent legal representation. 23 In the reasons for decision the SDP, having stated that there were 6 applications and that the basis of the applications vary and the facts are different,24 concluded:

“[8] I determined that the applications would be dealt with more efficiently, taking into account the complexity of each application, if permission to be represented by a lawyer was granted.” 25

(my underline)

[15] It is noted that the decision refers to taking into account the complexity of ‘each application.’ No one application is singled out as being more or less complex that the other. It is acknowledged that the applications are now reduced to 4 and that issues are reduced in the first instance to the jurisdictional question as to whether the dismissals are ‘genuine redundancies’ for the purposes of s.389 of the FW Act, and if not found to be genuine redundancies then the claims that the dismissals were unfair under s.387 of the FW Act need to be addressed.

[16] In the sense that the complexity in each of the applications was considered, the altered circumstances in that 2 applications have been resolved to finality does not lead to the conclusion that the finding of SDP Drake is no longer valid.

[17] The applicants contend that ‘in hindsight’ there is no evidence that the matters have been dealt with more efficiently with legal representation having been granted to the respondent. This submission is at odds with the comments made by SDP Drake during the earlier proceedings, identified by the respondent in their submissions. 26

[18] The applicants submit 27 that the respondent’s lawyers have refused to follow directions of the Commission in not filing and serving on the applicants its submissions by no later than 5:00pm on 22 September 2017 as directed.28 The applicants have not identified what time the submissions were served on them; however the Commission records indicate they were filed with the Commission via email, with the applicants copied to the correspondence, on 22 September at 5:41pm. This cannot reasonably lead to a conclusion that the respondent’s lawyers have refused to follow directions of the Commission.

[19] It was further put by the applicants that the ‘respondent's lawyer has repeatedly provided false and misleading submissions to the Commission’ and such systemic behaviour by a lawyer in proceedings is inefficient. 29 These submissions raise serious allegations against the respondent’s lawyers and are not made out. It should be noted that legal practitioners act on instructions from their clients and that the evidence of witnesses is that of the witnesses not that of the legal practitioner who may have taken the witness statement.

[20] There is a jurisdictional question in the remaining applications to be considered. The respondent contends that the Commission does not have jurisdiction to hear the merits of the applications as the dismissals were genuine redundancies. Having had the benefit of receiving the parties written submissions on this question I am satisfied that there remains a degree of complexity sufficient to satisfy the Commission that the matter would be dealt with more efficiently with the previous granting of legal representation to the respondent remaining in place.

[21] Whether a party can be represented by in-house resources, including in-house lawyers for the purposes of s.596(2)(a) of the FW Act is not the relevant question, as stated by Gostencnik DP in ASC Pty Ltd v The Australian Workers’ Union and Ors 30:

“[16] In any event the question, for the purposes of granting permission for the reasons set out in section 596(2)(a) of the Act, is not whether ASC can be represented or even effectively represented by in-house resources, rather the relevant question is whether, taking into account the complexity of the matter, the grant of permission to ASC to be represented by a lawyer (in this case one experienced in advocacy and industrial law) would enable the matter to be dealt with more efficiently. The in-house capacity of ASC has a bearing on that assessment but I am satisfied that in this case the grant of permission to ASC for external legal representation will have that result.”

[22] The Commission, pursuant to s.596(2)(a) of the FW Act, is satisfied that legal representation for the respondent will continue to assist the Commission in the efficient hearing of this matter, taking into account the complexity of each of the applications.

[23] Accordingly, on the specific facts and circumstances that relate to these applications, the application to revoke the granting of legal representation to the respondent is dismissed.

[24] The respondent raised an issue as to whether the applicant’s representation by Mr Strauss amounted to him acting as a paid agent (which Mr Strauss denies) based on what they state are conflicting statements made by Mr Strauss in earlier proceedings. There is insufficient material before the Commission to find that Mr Strauss is operating as a paid agent.

DEPUTY PRESIDENT

 1   Email from the chambers of Senior Deputy President Drake dated 18 May 2016

 2   [2016] FWC 4189

 3   [2016] FWCFB 5069

 4   [2017] FWCFB 2809, [2017] FWCFB 2810

 5   SDP Drake who was dealing with all applications resigned from the Fair Work Commission on 12 April 2017

 6   Applicants’ submissions 15 September 2017 and further submissions 29 September 2017

 7   Respondent’s submissions, 22 September 2017

 8   [2012] FWA 2966

 9   [2014] FWC 4675

 10   [2014] FWC 2860 at [20]

 11   [2015] FWC 364

 12   See, for example transcript of 10 August 2016 in relation to Mr Strauss' application (U2014/5970), PN2536 and of 8 August 2017, PN 921 in relation to Mr Strauss' application.

 13   Mr Daniel King v Patrick Projects Pty Ltd [2017] FWC 1583 at [56]

 14   See transcript of 15 February 2017 in relation to Mr Strauss' application (U2014/5970), PN8717-8726

 15   AMWU and others v Qantas Airways Ltd [2017] FWC 805 at [11]

 16   CEPU & Ors v Northern SEQ at [14] [2016] FWC 4736

 17   See Emily Oratis v Melbourne Business School [2014] FWCFB 3869 at [8] and Ms Emily Oratis v Melbourne Business School Ltd T/A Melbourne Business School [2014] FWC 7994 at [27].

 18 [2013] FCA 291

 19   [2014] FWCFB 1663

 20 (1988) 165 CLR 543 at 556

 21   [2014] FWCFB 174

 22   [2011] FWAFB 5585

 23   [2016] FWC 4189

 24   Ibid at [6]

 25   Ibid at [8]

 26   Footnotes 12 and 13 above

 27   Applicants’ response submissions at 3(a)

 28   Commission Directions of 31 August 2017

 29   Applicants’ response submissions at 3(k)

 30   [2014] FWC 544

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