Jason Deeney Christopher Hughes Richard Park Denis Seiffert v Patrick Projects Pty Ltd
[2017] FWCFB 6515
•11 DECEMBER 2017
[2017] FWCFB 6515
The attached document replaces the document previously issued with the above code on 11 December 2017.
On page 9 of the Decision, the citation in paragraph [43] should be [2015] FWCFB 2679.
Yota Amanatidis
Associate to Deputy President Gooley
Dated 15 December 2017.
| [2017] FWCFB 6515 |
| 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
(C2017/6204)
DEPUTY PRESIDENT GOOLEY | MELBOURNE, 11 DECEMBER 2017 |
Appeal against decision [2017] FWC 5429 of Deputy President Bull at Perth on 20 October 2017 in matter numbers U2014/0982, U2014/0983, U2014/1008 and U2014/1059 – permission to appeal refused.
[1] Four applicant employees, Mr Jason Deeney, Mr Christopher Hughes, Mr Richard Park and Mr Denis Seiffert allege the termination of their employment by Patrick Projects Pty Ltd was unfair.
[2] On 18 May 2016, Senior Deputy President Drake granted Patrick Projects permission to be represented by a lawyer. 1 That decision was appealed and the appeal was dismissed.2 At that time the matter involved two other applicant employees who also alleged unfair dismissal by Patrick Projects. The applications of those two employees were then heard and determined and the remaining four applications were allocated to Deputy President Bull.
[3] The Appellants applied to have the Commission revoke the decision to grant permission for Patrick Projects to be legally represented. 3 Submissions were filed by the Appellants and Patrick Projects in opposition to and in support of permission being granted and the Deputy President determined the matter on the papers. On 20 October 2017, Deputy President Bull dismissed that application.4
[4] The Appellants have appealed that decision. Permission to appeal the decision was listed for 29 November 2017.
[5] Patrick Projects sought permission to be represented by lawyers at the appeal hearing. Prior to the hearing it was advised that permission was not granted. We formed the view that as the matter was only listed for permission to appeal it did not involve any particular complexity that would cause us to grant permission. We note that Patrick Projects advised that it had no employees however there was no evidence that Patrick Projects would not be able to be represented if permission was not granted. We further note that the Appellants are represented albeit not by a lawyer or paid agent. However we are not satisfied that any unfairness to Patrick Projects will arise if we refuse permission for it to be represented.
Permission to appeal
[6] An appeal under s.604 of the Fair Work Act 2009 (the Act) is an appeal by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker. 5 There is no right to appeal and an appeal may only be made with the permission of the Commission.
[7] This appeal is one to which s.400 of the Act applies. Section 400 provides:
“(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.”
[8] In Coal & Allied Mining Services Pty Ltd v Lawler and Others, the Federal Court characterised the test under s.400 as ‘stringent’. 6
[9] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment 7. 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.” 8
[10] As was discussed in King and Ors v Patrick Projects Pty Ltd 9it is not clear if s.400 applies to decisions under s.59610 and for the same reasons s.603. However we will take the approach that s.400(1) applies to this appeal but also take the step of setting out the conclusion we would reach if s.400(1) does not apply.
[11] 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. 11 However, the fact that a member of the Commission at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.12
[12] An application for permission to appeal is not a de facto or preliminary hearing of the appeal. In determining whether permission to appeal should be granted, it is unnecessary and inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal. 13
[13] Grounds relied upon by the Appellants for permission to appeal:
1. There are a diversity of decisions. 14
2. There are issues of importance and general application. 15
3. The decision at first instance manifests an injustice. 16
4. The result is counter intuitive. 17
5. The legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters. 18
6. The decision failed to consider and reflect the law. 19
7. The decision is attended with sufficient doubt to warrant its reconsideration. 20
8. Substantial injustice may result if leave is refused. 21
9. The decision involves errors of the type identified in House v The King. 22
[14] The Appellants made further allegations about the conduct of this and related matters generally and alleged that the Commission had permitted legal bullying to occur. They allege that the Commission has acted outside of the legislative intent and a review is required. 23
[15] Further, the Appellants contended that it is in the public interest that the public have the confidence about approaching the Commission without having to deal with lawyers and understand legal arguments and precedents and without having to feel threatened by the Commission itself and without feeling they will not get an equal hearing. 24
[16] The Appellants called into question the Commission’s ethics. 25
Relevant statutory provisions
[17] The Appellants have couched their appeal in terms of s.596. However the decision under appeal was not a decision to grant Patrick Projects permission to be represented by a lawyer under s.596 of the Act. Permission to be represented had already been granted and an appeal against that decision had been dismissed. The Appellants had applied to Deputy President Bull for the decision to grant permission to be revoked. 26
[18] Relevantly s. 603 of the Act provides as follows:
1) The FWC may vary or revoke a decision of the FWC that is made under this Act (other than a decision referred to in subsection (3).
2) The FWC may vary or revoke a decision under this section:
a) on its own initiative; or
b) on application by:
i. a person who is affected by the decision; or
ii. if the kind of decision is prescribed by the regulations – a person prescribed by the regulations in relation to that kind of decision.
[19] The decision is not one referred to in subsection (3).
[20] It is clear that a decision to revoke a decision is a discretionary decision. Such a decision can only be challenged on appeal if it is shown that the discretion was not exercised correctly 27. It is not open to an appeal bench to substitute its view on the matters that fell for determination before the Commissioner in the absence of error of an appealable nature in the decision at first instance.
[21] As the High Court said in House v King 28:
“The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”
[22] Further the decision is an interlocutory decision. In Hutton v Sykes Australia Pty Ltd 29 the Full Bench observed as follows:
“[3] The fact that this appeal challenges an interlocutory or procedural decision is relevant to the determination of permission to appeal. Courts and tribunals have generally discouraged appeals from preliminary or procedural rulings. Permitting appeals against interlocutory or procedural rulings may prolong the proceedings overall and increase the costs to the parties. There are other reasons why appellate intervention at an early stage may be undesirable. Procedural rulings may be altered later in the case and the party complaining about a procedural decision might ultimately be successful in the substantive proceedings. In such a case any earlier appeal in relation to a preliminary or procedural issue would be rendered futile.” (references omitted)
The decision at first instance
[23] The Deputy President noted that the Commission may revoke a decision to grant permission to be represented if the requirements under s.596 (2) are no longer satisfied. He identified that this would normally require a change in circumstances from those in existence at the time the original determination was made, if that change was sufficient to justify revocation under s.603. 30
[24] The Deputy President had regard to the authorities in Warrell v Walton and New South Wales Bar Association v McAuliffe. 31 He also had regard to relevant authorities in relation to the role of legal representatives.32
[25] The Deputy President had regard 33 to the decision of Senior Deputy President Drake who granted permission for Patrick Projects to be represented when there were six matters to be heard concurrently in particular 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.”34
[26] The Appellants submitted there had been significant changes since the decision of 18 May 2016 which warranted Patrick Projects no longer being granted permission to be represented by a lawyer. 35
[27] The Deputy President acknowledged that there were now only four matters before him and that the issues to be determined were whether the dismissals were genuine redundancies for the purpose of s.389 and if not, whether the dismissals were unfair under s.387 of the Act. 36
[28] He made a finding that this did not mean the finding of Senior Deputy President Drake was no longer valid. 37
[29] He rejected the submissions of the Appellants that legal representation had not meant that the matter was being dealt with more efficiently and gave reasons. 38 He also rejected the submission that the legal representatives had repeatedly filed false and misleading submissions to the Commission which had resulted in inefficiency and gave reasons.39
[30] The Deputy President further found, independently of Senior Deputy President Drake’s decision, that the matter involved sufficient complexity that it would enable the matter to be dealt with more efficiently such as to warrant not revoking the decision to grant permission. 40
Consideration
[31] We are not persuaded that it is in the public interest for permission to appeal to be granted against an interlocutory decision of the Commission to refuse to revoke permission to be represented. We agree with the views expressed by the Full Bench in King and Ors v Patrick Projects Pty Ltd 41 that the principles articulated in [42] of that decision are a sound basis for refusing permission to appeal.42
[32] We are further not satisfied that the matter raises any issues of wider importance and/or general application which extend beyond the interests of parties. The principles in relation to s.596, to the extent they are relevant to the revocation of permission to be represented, are now well settled. Further guidance on this subject would have little utility and of no practical assistance.
[33] For the following reasons we are not satisfied that an arguable case of error had been made out. We address each of the grounds relied upon by the Appellants in support of permission to appeal.
1. Deputy President Bull made significant errors of fact.
1.1 The decision of Senior Deputy President Drake relied upon three sets of circumstances not one.
[34] We are not satisfied that there is an arguable case that Deputy President Bull misunderstood the circumstances of the matter before Senior Deputy President Drake. 43 Deputy President Bull set this out at [14]-[17] of his decision.
1.2 The decision does not reflect the Full Bench decision [2015] FWCFB 2679 44 which refused permission for the Respondent to be represented.
[35] We are not satisfied that there is an arguable case that this is an error of fact. In any event the Full Bench was considering an appeal from the decision of Commissioner Williams and refused permission for Patrick Projects to be represented at the permission to appeal hearing. The Full Bench in that matter had to determine in relation to that matter whether permission to be represented should be granted. It was required to make an assessment of the complexity of the matter before them.
[36] While it quashed the decision of Commissioner Williams to grant permission, it did not in its decision determine whether permission to be represented should be granted in the matter below. It held that Commissioner Williams had erred in having regard to the volume of materials and the existence of extraneous material when assessing the complexity of the matter. 45 They identified further errors which are not relevant to this appeal. We are not satisfied that the Deputy President had regard to these irrelevant considerations in assessing the complexity of the matters before him.
1.3 The decision did not reflect that this one circumstance of dismissal is complex or would be dealt with more efficiently if permission for a lawyer is granted.
[37] We are not satisfied that there is an arguable case that the Deputy President’s decision that the matter involved sufficient complexity that would warrant the continued permission of legal representation was an error of fact. It should be noted that this is not an appeal against the decision to grant permission under s.596 which requires a finding of complexity before a determination of whether legal representation would enable the matter to be dealt with more efficiently. 46 This is an appeal against the decision of the Deputy President not to revoke permission to be represented under s.603 of the Act. The Deputy President’s decision was discretionary. We are not satisfied that there is an arguable case that the Deputy President erred in his assessment of the complexity when deciding whether to exercise his discretion not to revoke permission.
2. The matter raises issues of general importance and application.
[38] We are not satisfied that this decision raises any issue of general importance and application which extend beyond the direct interests of the parties. The principles to be applied when the Commission revokes a decision are settled. The decision to revoke permission to be represented is based on the facts before the member at first instance. Further guidance on the subject would be of little utility and of no practical assistance.
3. There is a diversity of decisions at first instance.
[39] We are not satisfied that there is a diversity of decisions at first instance. The decisions put forward by the Appellants were dealing with applications for permission to be represented not applications for revocation of permission and hence are not on point. The Appellants were not able to point to any relevant diversity of decisions in relation to revocation of permission to be represented that would warrant intervention in this case by the Full Bench.
4. The decision at first instance manifests an injustice.
[40] We are not satisfied there is an arguable case that granting permission to Patrick Projects to be represented or in this case to refuse to revoke permission would result in an injustice to the Appellants. 47 The Act does not prohibit the participation of lawyers. Lawyers employed by the employer, registered organisations, employer organisations and/or peak councils or lawyers engaged as bargaining representatives, for example, do not require permission to be represented before the Commission. Whether lawyers are granted permission to be represented in matters or not, unfair dismissal applications involve legal issues, particularly when an objection to the application is raised. The issue of whether the dismissal of the Appellants was a genuine redundancy is a mixed question of law and fact. If that objection is dismissed then the issue of whether the dismissal was unfair and what remedy will flow from that is also a mixed question of law and fact. Many of legal issues that will need to be considered by the Deputy President have been considered in earlier Full Bench decisions. That these decisions are referred to by parties and/or the Commission member does not manifest an injustice to a self- represented or in this case a party represented by a lay advocate. The Commission has published a bench book for parties that sets out the decisions commonly referred to in these matters. Further the requirement that parties file submissions puts the other party on notice of the issues in dispute and the case law relied upon.
5. The result is counter intuitive.
[41] The Appellants ask rhetorically if permission is granted in this case in what case would permission be denied. Again we note that the decision of the Deputy President was a decision to not revoke the grant of permission. We are not satisfied that there is an arguable case that the decision is counter intuitive. The Appellants did not take us to any other matters dealing with revocation to support this submission.
6. The legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.
[42] It was submitted that the decision was inconsistent with the decision of the Full Bench in [2015] FWCFB 2679 which involved an appeal against a decision to grant permission to be represented when only one dismissal was being considered and the decision of Senior Deputy President Drake in [2016] FWC 4189.
[43] We are not satisfied that there is an arguable case that the decision is disharmonious when compared with other recent decisions. We have reached this conclusion because the decisions referred to by the Appellants do not involve applications to revoke permission and further we do not consider that it is arguable that the Full Bench in [2015] FWCFB 2679 determined that permission should not be granted if the matter before the member at first instance only involved one set of facts. The decision to grant permission to be represented is a discretionary decision based on the circumstances before the member at first instance. That Full Bench determined that the Commissioner erred when he had regard to the volume of the material rather than the complexity of the factual or legal issues before him. That is not the basis that the Deputy President determined not to revoke the decision to grant permission.
7. The decision is attended with sufficient doubt to warrant its reconsideration.
[44] We are not satisfied that there is an arguable case that the decision warrants reconsideration. The decision is an orthodox decision in which the Deputy President considered the relevant authorities and applied those principles to the matter under consideration.
8. The Commission may have exceeded its jurisdiction.
[45] The Appellants complain that the Deputy President made no reference to s.381 (objections of part 3-2 of the Act), s.578 (matters the Commission must take into account in performing functions etc.), s.590 (powers of the FWC to inform itself), s.591 (FWC not bound by the rules of evidence) and s.603 (varying or revoking the FWC’s decisions).
[46] This submission was not expanded on at the hearing. It is incumbent on the Appellants to explain how the lack of reference to these provisions in his decision means that the Commission exceeded its jurisdiction. Further, we note that the Deputy President did make reference to s.603. We are not satisfied that there is an arguable case that the Commission exceeded its jurisdiction.
9. Substantial injustice may result if leave is refused.
[47] The Appellants submit that they are at a disadvantage as they are not legally trained. Because of the presence of lawyers they submit that they will need to respond to legal arguments. The circumstances faced by the Appellants in this matter are significantly different to that considered by the Court in Walton. The Appellants have either represented themselves or been represented by Mr Strauss in matters both in the Commission and the Federal Court. We endorse the comments of the Full Bench in King and Ors v Patrick Projects Pty Ltd 48:
“The fact that the respondent will have legal representation and the appellants will not, is not a sufficient basis to demonstrate an arguable case of ‘manifest injustice’. Such representation is a common feature of proceedings in the Commission, most noticeably in unfair dismissal cases. Based on our observations during the permission to appeal hearing and our review of the appeal materials prepared by the appellants, it appears to us that the appellants will be well able to articulate their arguments and prosecute their unfair dismissal applications. From the history set out in the Appeal Book, it is obvious that the appellants are very familiar with the provisions of the Act, the Commission’s Rules and procedures, the relevant authorities of the Commission. They seem well capable of navigating the provisions of the Act and of making various applications to this Commission and the Courts in order to serve or defend their interests.”
[48] We are not satisfied that there is an arguable case that a substantial injustice may result if permission were granted.
House v The King errors
[49] For all of the above reasons, we are not satisfied that there is an arguable case that the Deputy President acted on the wrong principle. The mere fact that the four remaining matters are or may be less complex than the six matters before Deputy President Drake, does mean that they lack complexity. Further, we are not satisfied that there is an arguable case that the Deputy President took into account an irrelevant factor namely the decision of Deputy President Drake. The Appellants were seeking the Deputy President revoke that decision. He was required to make an assessment of the change in circumstances. It is difficult to see how it is arguable that the decision is irrelevant. We are further not satisfied that there is an arguable case that the Deputy President mistook that facts in relation to what was before him. We are further not satisfied that there is an arguable case that the Deputy President erred in not following the decision of the Full Bench in [2015] FWCFB 2679. As considered above, that decision was made in relation to an error by the member at first instance to have regard to the volume of material rather than its complexity. We are not satisfied that it is arguable that the Deputy President made the same error.
[50] We are further not satisfied that there is an arguable case that the decision is unreasonable or plainly unjust. The Appellants submitted that the involvement of lawyers has unnecessarily delayed the matter. It is clear that there has been significant delay in this matter. The applications were lodged in March 2014. All parties have exercised their rights under the Act which have delayed the matter. No criticism can be made of a party for exercising those rights.
[51] We note the Appellants’ grievance about the time these matters have taken. The factors that have led to the delay have been varied. However this appeal is not a vehicle for the conduct of the matter before it was assigned to the Deputy President to be reviewed. What is under consideration here is the decision of the Deputy President.
Conclusion
[52] We are not persuaded that any of the grounds relied upon by the Appellants has established either in their own right, or when considered in combination, that permission to appeal should be granted. We have also considered whether the appeal raises other factors beyond those stated above that could be said to enliven the public interest and have concluded that there are not any. We are not satisfied that the Appellants have established that the decision involved a significant error of fact. However, even if s.4001(1) does not apply to this appeal, we would still refuse permission to appeal for reasons we have stated as no public interest or discretionary grounds have been made out which would justify the grant of permission to appeal against an interlocutory decision.
[53] It follows that it is not in the public interest to grant permission to appeal. Permission is denied. An order to that effect will issue with this decision.
DEPUTY PRESIDENT
Appearances:
R. Park for the Appellants.
J. Doecke for Patrick Projects Pty Ltd.
Hearing details:
2017.
Melbourne and Perth, by video link:
29 November.
1 [2016] FWC 4189
2 [2016] FWCFB 5069
3 There was a submission on appeal that the Appellants had not sought to have the decision of the Commission to grant permission to be represented by a lawyer revoked. Rather, they were opposing permission being granted. However it is not clear how this submission is made out. In their submission to the Deputy President at first instance the Appellants acknowledged that permission had already been granted. While accepting that the Appellants made no reference to s.603 of the Act in their submissions, if there had been no application for revocation of the grant of permission to be represented then the status quo would have remained and the grant of permission to Patrick Projects to be represented by a lawyer would have continued.
4 [2017] FWC 5429
5 This is so because on appeal the Commission has power to receive further evidence, pursuant to s607(2); see Coal and Allied v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ
6 (2011) 192 FCR 78 at [43] per Buchanan J (with whose judgment Marshall and Cowdroy JJ agreed)
7 O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ; applied in Hogan v Hinch (2011) 85 ALJR 398 at [69] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44]-[46]
8 [2010] FWAFB 5343, 197 IR 266 at [27]
9 [2016] FWCFB 5069
10 Ibid at [37]-[38]
11 Wan v AIRC (2001) 116 FCR 481 at [30]
12 GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343 at [26]-[27], 197 IR 266; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089 at [28], 202 IR 388, affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28]
13 Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
14 Appellants’ submissions on appeal amended at [175]-[178] and Appellants’ outline of submissions for permission to appeal at [3]
15 Appellants’ submissions on appeal amended at [179] and Appellants’ outline of submissions for permission to appeal at [2]
16 Appellants’ submissions on appeal amended at [180]-[185] and Appellants’ outline of submissions for permission to appeal at [4]
17 Appellants’ submissions on appeal amended at [186] and Appellants’ outline of submissions for permission to appeal at [5]
18 Appellants’ submissions on appeal amended at [187]-[190 and Appellants’ outline of submissions for permission to appeal at [6]
19 Appellants’ submissions on appeal amended at [190] and Appellants’ outline of submissions for permission to appeal at [8]
20 Appellants’ outline of submissions for permission to appeal at [7]
21 Ibid at [9]
22 Ibid at [10]-[14]
23 Appellants’ submissions for appeal amended at [191]-[205]
24 Ibid at [206]- [207]
25 Ibid at [209]
26 See footnote [3]
27 House v King (1936) 55 CLR 499 at [504]-[505] per Dixon, Evatt and McTiernan JJ
28 Ibid
29 [2014] FWCFB 3384
30 [2017] FWC 5429 at [8]
31 Ibid at [9]
32 Ibid at [10]-[12]
33 Ibid at [14]
34 [2016] FWC 4189
35 Appeal Book page 458 at [12]
36 [2017] FWC 5429 at [15]
37 Ibid at [16]
38 Ibid at [17]-[18]
39 Ibid at [19]-[20]
40 Ibid at [20]
41 [2016] FWCFB 5069
42 Ibid at [43]
43 Appellants’ outline of submissions for permission to appeal at 1.1
44 The decision under appeal was from a decision of Commissioner Williams in King v Patrick Projects Pty Ltd[2015] FWC 1221
45 [2015] FWCFB 2679 at [16]
46 Ibid at [15]
47 King and Ors v Patrick Projects Pty Ltd[2016] FWCFB 5069 at [47]
48 Ibid
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