Jason Deeney Christopher Hughes Richard Park Denis Seiffert v Patrick Projects Pty Ltd
[2017] FWCFB 6449
•6 DECEMBER 2017
| [2017] FWCFB 6449 |
| 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
(C2017/6399)
DEPUTY PRESIDENT GOOLEY | MELBOURNE, 6 DECEMBER 2017 |
Appeal against decision [2017] FWC 5613 of Deputy President Bull at Perth on 30 October 2017 in matter number U2014/982, U2014/983, U2014/1008, U2014/1059 – permission for representation.
[1] Mr Jason Deeney, Mr Christopher Hughes, Mr Richard Park and Mr Denis Seiffert have appealed the decision 1 of Deputy President Bull not to recuse himself from hearing their applications for an unfair dismissal remedy.
[2] Patrick Projects Pty Ltd sought permission to be represented by a lawyer at the permission to appeal hearing. The granting of leave was opposed by the Appellants.
[3] After considering the submissions the Full Bench granted permission for Patrick Projects to be represented. These are our reasons.
[4] S.596 of the Fair Work Act 2009 relevantly provides as follows:
“Representation by lawyers and paid agents
(1) Except as provided by subsection (3) or the procedural rules, a person may be represented in a matter before the FWC (including by making an application or submission to the FWC on behalf of the person) by a lawyer or paid agent only with the permission of the FWC.
(2) The FWC may grant permission for a person to be represented by a lawyer or paid agent in a matter before the 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.
Note: Circumstances in which the FWC might grant permission for a person to be represented by a lawyer or paid agent include the following:
(a) where a person is from a non-English speaking background or has difficulty reading or writing;
(b) where a small business is a party to a matter and has no specialist human resources staff while the other party is represented by an officer or employee of an industrial association or another person with experience in workplace relations advocacy.”
[5] A decision to grant permission for a party to be represented is a discretionary decision which can only be exercised if the Commission is satisfied that one of the three elements of s.596(2) exists.
[6] The Full Bench of the Commission considered the relevant principles in New South Wales Bar Association v McAuliffe 2:
“[20] The proper interpretation of this provision was the subject of consideration by the Federal Court (Flick J) in Warrell v Walton, in which the Court said:
“[24] A decision to grant or refuse “permission” for a party to be represented by “a lawyer” pursuant to s 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 s 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 s 596(2) have been taken into account and considered. The constraints imposed by s 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 s 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 s 596(2): i.e., “FWA may grant permission...”. The satisfaction of any of the requirements set forth in s 596(2)(a) to (c) thus need not of itself dictate that the discretion is automatically to be exercised in favour of granting “permission”.”(References omitted)
Patrick Projects’ submission
[7] Patrick Projects sought permission to be represented on three grounds. It submitted that the matter involved complexity due to the legal issues that need to be resolved. Further, complexity arose because of the grounds of appeal relied upon by the Appellants which included matters which have no bearing on the subject matter of the appeal. It submitted that efficiency would be achieved if Patrick Projects were able to be represented by the same lawyers who have represented it since the commencement of proceedings in 2014. Granting permission to appeal would be consistent with Full Bench authority in relation to permission to appear being granted in appeals.
[8] Further, Patrick Projects submitted that it would be unable to represent itself effectively as it has no employees and its solicitors have had carriage of this matter since 2014. Its solicitors are experienced in appeal matters and have the background to assist the Commission.
[9] It further submitted that regard should be had to fairness between the parties as the Appellants had been represented by a lay advocate throughout the proceedings.
The Appellants’ submission
[10] The Appellants opposed permission being granted. They submitted that s.596(2) has not been satisfied. They reject the submission that the matter before the Commission involves a legal test. It submits that neither s.596(2) or s.604 mentions a legal test. The Appellants submitted that the claim that the Appellants are raising irrelevant matters is not a consideration and further questioned why the Commission would need the assistance of Patrick Projects’ lawyers given they are not a neutral participant in the proceedings. The Appellants submitted that the lawyer’s past conduct is evidence that they will not contribute to the matter being dealt with more efficiently. It further submitted that the Commission had previously rejected representation.
[11] The Appellants further submitted that the number of Patrick Projects employees is irrelevant as is the level of experience of any representative. Further, they submitted that the fact that they are represented by a friend is not relevant.
Consideration
[12] We are satisfied that granting permission for Patrick Projects to be represented would enable the matter to be dealt with more efficiently having regard to the complexity of the matter.
[13] The issues raised by the Appellants involve questions of law. The decision by a member to recuse or not recuse herself or himself from hearing a matter is not merely a procedural matter.
[14] The Appellant has filed 37 pages of submissions in support of the substantive appeal and permission to appeal. The Appellants have not set out with any clarity their precise grounds of appeal. To support their claim of actual and apprehended bias the appeal canvasses the Commission’s obligations under sections 381, 398, 399, 590, 591 of the Act and the Fair Hearing Practice Note. Further, the Appellants’ appeal overlaps their appeal against the decision of Deputy President Bull not to revoke permission for Patrick Projects to be represented by a lawyer.
[15] We accept the submission of Patrick Projects that granting permission will enable the matter to be dealt with more efficiently. We do not accept the submission of the Appellants that the conduct of the lawyers in other matters would support a finding that their participation in this matter would not enable the matter to be dealt with more efficiently. We do not accept the submission that because Patrick Projects was represented by lawyers when it applied for security for costs means that the legal representatives acted improperly. Lawyers provide advice to their clients but ultimately clients instruct lawyers. That the application before Commissioner Williams was unsuccessful does not mean that the lawyers acted improperly. Further, we are not in a position to assess the role of the legal representatives in the other matter relied upon by the Appellants.
[16] We do not accept the mere fact that the lawyers are representing the interests of their clients means that Patrick Projects should not be granted permission. If that were the test then permission would never be granted. Further, the submission overlooks the professional obligations that lawyers have to the Court and Tribunals which override their duty to their clients 3. We further do not accept the submission that because other Full Benches of the Commission has refused permission for Patrick Projects to be represented in other matters means that it should be denied permission in this matter. The decision to grant or refuse permission is determined by the Full Bench based on the subject matter of the appeal and the submissions of the parties. That other Full Benches have denied permission to appear in related proceedings is not relevant to the decision to grant permission in this matter. The matters involved different issues and hence different considerations.
[17] We have further considered whether we should exercise our discretion and permit representation. We are not satisfied that granting permission for Patrick Projects to be represented by a lawyer will deny the Appellants a fair and just hearing. The Appellants in this matter are not self represented. The notice of appeal lists Mr Strauss as the Appellants’ representative. Mr Strauss has represented the Appellants in a number of appeals and represented them in the substantive matter. He is not unfamiliar with the procedures of the Commission nor with the history of these claims. We are not satisfied that the Appellants will be disadvantaged, in making out their case for permission to appeal, by the grant of permission to appear.
DEPUTY PRESIDENT
1 [2017] FWC 5613
2 [2014] FWCFB 1663
3 See r.5 Legal Professional Conduct Rules 2010 enacted pursuant to the Legal Profession Act 2008 (WA) and Giannarelli v Wraith (1988) 165 CLR 543, 556 and E. Allen and Ors v Fluor Construction Services Pty Ltd [2014] FWCFB 174
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