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

[2017] FWC 6106

[2017] FWC 6106

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, 20 NOVEMBER 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 – stay application.

[1] Mr Jason Deeney, Mr Denis Seiffert, Mr Richard Park and Mr Christopher Hughes allege the termination of their employment by Patrick Projects Pty Ltd was unfair.

[2] On 18 May 2016, Senior Deputy President Drake granted Patrick permission to be represented by a lawyer. 1 That decision was appealed and permission to appeal was refused.2 At that time the matter involved two other employees. These applications of those two employees were then heard and determined and the remaining four applications were allocated to Deputy President Bull.

[3] The Appellants then applied to have Deputy President Bull revoke the decision to grant permission for Patrick to be legally represented and on 20 October 2017 Deputy President Bull dismissed that application. 3

[4] The Appellants have appealed that decision and seek a stay.

[5] At the hearing of the stay application, Mr Christopher Strauss represented the Appellants and Mr Duncan Fletcher, a legal practitioner sought permission to represent Patrick. I declined to grant permission as I was not satisfied that the application for a stay involved any particular complexity.

[6] Prior to the hearing the parties had sought to resolve the issue of the stay application without the need for a hearing. The Appellants, by email on 14 November 2017, advised that the unfair dismissal applications had been adjourned indefinitely pending the outcome of the appeal. The Appellants sought the Commission’s advice as to whether the stay hearing could be discontinued without negative effect upon the Applicants. The Appellants were advised that the Commission cannot provide that advice. Patrick advised that it agreed that there is little utility in the Appellants seeking a stay because Deputy President Bull had indicated that he will not list the substantive proceeding until the appeal is determined. In reply, the Appellants sought Patrick’s consent to the stay which Patrick rejected and sought that the stay be dealt with at the same time as the appeal. Patrick consented to the adjournment of the stay application and agreed to a direction being given that the substantive matter will not be listed until after the appeal is finished.

[7] At the hearing the, Appellants submitted that it was not certain that the substantive matters would not proceed as Deputy President Bull had not issued any directions. In effect, the Appellants are seeking a stay of the proceedings below. Further, it was submitted that a stay order would clarify the position so that at no point in the appeal or in other proceedings could Deputy President Bull’s decision be used to support permission for Patrick to be represented by lawyers.

[8] It was submitted that the Appellants had a reasonable prospect of success because one of the applicants, Mr King, had successfully argued before a Full Bench that Patrick not be granted permission to be represented at the appeal hearing. 4 Another Full Bench also refused Patrick the right to be legally represented at the appeal.5 It submitted that when Senior Deputy President Drake made her decision to grant permission for Patrick to be legally represented, there were in effect three separate cases and given two have been heard and determined there is in effect only one matter before Deputy President Bull. It was submitted that he erred when he determined that the matter before him involved any complexity. The Appellants submitted that Deputy President Bull made multiple errors.

[9] It submitted that the Appellants do not know how long the appeal process will take and it submitted that there were other matters before the Commission. It submitted that a stay clarifies that the decision cannot be used.

[10] It submitted that balance of convenience favoured a stay because there was no prejudice to Patrick.

Consideration

[11] In deciding whether to issue a stay, the Commission needs to be satisfied that the party seeking the stay has made out an arguable case that has some reasonable prospect of success, in respect of both the question of permission to appeal and the substantive merits of the appeal, having regard to the additional hurdle in unfair dismissal related appeals set out in s.400 of the Act. Further consideration must be given to whether the balance of convenience favours the granting of a stay.

[12] This assessment is necessarily carried out without the benefit of hearing the party’s full argument and without the opportunity to undertake a thorough analysis of the case material.

[13] However as Vice President Hatcher further noted in CFMEU v Collinsville Coal Operations Pty Ltd: 6

“[11] However the application of those principles is necessarily subject to it being demonstrated at the outset by the applicant for a stay that there is an operative decision with ongoing or future effect capable of being stayed under s.606(1). It is not clear to me that this has been demonstrated here. For example, the CFMEU seeks as part of its stay application that the decision of the Senior Deputy President to refuse an adjournment be stayed. It is not apparent how a stay of such a decision could have any practical effect. The refusal or dismissal of an application does not usually give rise to anything capable of being stayed pending an appeal.  (References omitted)”

[14] Here the Appellants seek a stay of a decision not to revoke permission to appear. If that decision is stayed, then Patrick would still need permission to be represented by a lawyer until such time as a decision is made to revoke permission. As such, the grant of a stay will not have any practical effect. On that basis alone, balance of convenience does not favour the granting of a stay.

[15] While the Appellants are concerned that Deputy President Bull’s decision to grant permission may be used as a precedent, this is not a basis for issuing a stay. Deputy President Bull’s decision to refuse to revoke permission to appear is grounded in its own facts as are all decisions to grant permission to appear. Decisions of single members of the Commission are not binding on other members.

[16] Further, the purpose of the stay sought by the Appellants is to stay the proceedings before Deputy President Bull. However an order staying the decision cannot and will not have that effect. Whilst I note that both parties understand the Deputy President Bull had indicated that the matters before him will not proceed whilst the appeal is being determined, that is a matter entirely for him.

[17] I further note that permission to appeal is listed for 29 November 2017 and while I accept that there is no order adjourning the matter below, the parties both advised my chambers that Deputy President Bull is not intending listing the matter below until the appeal is heard and determined.

[18] It is not necessary for me to determine if the Appellants have made out an arguable case that has some reasonable prospect of success, in respect of both the question of permission to appeal and the substantive merits of the appeal, having regard to the additional hurdle in unfair dismissal related appeals set out in s.400 of the Act as a balance of convenience strongly weighs against the granting of a stay.

[19] For these reasons the application for a stay is dismissed.

DEPUTY PRESIDENT

Appearances:

C. Hughes for the Appellants.

D. Fletcher for the Respondent.

Hearing details:

2017.

Melbourne and Perth via video link:

November 17.

 1   [2016] FWC 4189

 2   [2016] FWCFB 5069

 3 [2017] FWC 5429

 4   [2015] FWCFB 2679

 5   [2016] FWCFB 5069

 6   [2014] FWC 4276

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