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

[2018] FWC 3514

[2018] FWC 3514

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jason Deeney
Richard Park
Christopher Hughes
Denis Seiffert

v
Patrick Projects Pty Ltd
(U2014/982, U2014/983, U2014/1008, U2014/1059)

DEPUTY PRESIDENT BULL SYDNEY, 15 JUNE 2018

S.589 Interim decision - Applications for adjournment of programmed hearing, revocation of decision granting permission to be represented by a lawyer. Orders sought for witness attendance.

[1] Messrs Jason Deeney, Richard Park, Christopher Hughes and Denis Seiffert (the applicants) have made applications seeking that the Fair Work Commission (the Commission) find that their terminations of employment by Patrick Projects Pty Ltd (the respondent) on the ground of redundancy, were unfair, pursuant to s.394 of the Fair Work Act 2009 (the Act). Mr Christopher Strauss appears on behalf of the applicants. He has not sought leave to appear as a paid agent in these applications. 1

[2] The applications were all filed in the first half of 2014. The applications are to be dealt with jointly, in a single hearing before the Commission.

[3] Currently before the Commission are applications from the applicants that:

•  the currently listed unfair dismissal hearing be adjourned,

•  leave for the respondent to be legally represented be revoked,

•  the respondent’s Directors be ordered to attend in person the forthcoming hearing, and

•  that submissions from the respondent’s legal representatives not be accepted by the Commission.

[4] Without traversing their previous history in depth these applications were allocated to my chambers in July 2017. Subsequently the applicants made an application before me that the leave previously granted to the respondent by another member of the Commission (prior to the matters being allocated to me) to be legally represented, be revoked. The initial decision to grant permission for the respondent to be legally represented was upheld on appeal.

[5] I was not persuaded that the leave previously given by another member to be legally represented should be revoked and a decision issued to that effect. That decision was unsuccessfully appealed by the applicants.

[6] The applications were subsequently listed for hearing on 23 and 24 October 2017 in Perth. Upon commencement of the hearing, Mr Strauss made an application for the Commission as presently constituted to refrain from further hearing the matters based on a reasonable apprehension of bias. The application was refused in the first instance and unsuccessfully appealed by the applicants.

[7] On 29 January 2018, the parties were notified that the applications would again be listed for hearing and determination. The Commission asked the parties for any unavailable dates in February and March 2018 and whether a determinative conference was sought.

[8] On 5 February 2018, both parties replied. A determinative conference was not sought by either party. The respondent indicated a range of unavailable dates in February and March. The applicants stated they were unavailable until 6 March and requested unavailable dates from the respondent in April 2018.

[9] On 6 February 2018 both parties were requested to provide unavailable dates in April 2018. The respondent indicated their unavailability on 11 April 2018 and from 18 to 30 April 2018.

[10] Mr Strauss indicated the Applicants were unavailable until after 18 April 2018 ‘due to a return from overseas’ and requested the unavailable dates in May from the respondent so they could ‘coordinate another overseas return’ and anticipated being available during most of May, ‘depending on the respondent’.

[11] On 16 February 2018, the parties were advised that the Commission intended to list the matters in May 2018 and requested they advise any unavailable dates in that month. No response to this email was received from either party. On 27 March 2018, a Notice of Listing was issued for the hearing of the applications on 22-25 May 2018 in Perth.

[12] On 3 April 2018, the respondent wrote advising they were unavailable from 21 May through to 15 June and requesting the matter be relisted to a date on or after 18 June 2018.

[13] On 9 April 2018, the parties were advised that the matter would be listed from 18 June 2018 for 4 days in Perth. On the same day Mr Strauss advised that the applicants were available between 22-25 May, and would be available throughout June and July and confirmed that they ‘anticipate’ being available from 18-22 June 2018.

[14] On 11 April 2018, an amended notice of listing issued relisting the applications for hearing and determination on 18-21 June 2018.

Application for adjournment

[15] On 8 June 2018 an application was made by the applicants to adjourn until further notice the hearing commencing on 18 June 2018.

[16] Sections 589(1) and (3) of the Act provide that the Commission may make decisions as to how, when and where a matter is to be dealt with on application. Such decisions are not required to be in writing as per s.601(a), however it is my view that it is desirable to so on this occasion.

[17] The applicants state that new issues have arisen which are essentially whether solicitors for the respondents should be granted leave to appear on behalf of the respondent in another matter before the Commission. That matter is understood to be U2014/7097 an unfair dismissal application by a Mr King who is not one of the applicants in these matters. It is also understood that matter U2014/7097 concerns a costs application by Mr King. 2 The matter is before Commissioner Johns and no final decision on the legal representation issue raised by the applicants has been made.

[18] The applicants submit that as K & L Gates, the solicitors purporting to represent the respondent in that matter, are also the solicitors in these matters, an adjournment should be granted until the issue of legal representation is fully heard and determined in matter U2014/7097.

[19] The respondent opposes the adjournment request stating that no new issues have arisen and that an adjournment would cause significant detriment and prejudice to the respondent. It further states that the costs application before Johns C has no relevance or bearing on whether these matters should proceed. The respondent submits that there is no doubt that K & L Gates has authority to appear on behalf of the respondent.

[20] The respondent contends that the applications have already been significantly delayed in their hearing with the unfair dismissal applications having been filed in 2014. The respondent says that all interlocutory and procedural matters currently before the Commission have been determined and all evidence and submissions have been filed by the respective parties.

[21] The Commission’s obligations relating to the manner in which it must perform its functions and exercise its powers are set out in ss.577 and 578 of the Act. Relevantly, the Commission must act in a manner that:

•  is fair and just;

•  is quick, informal and avoids unnecessary technicalities;

•  is open and transparent; and

•  takes into account equity, good conscience and the substantial merits of the case.

[22] The Commission is not prepared to adjourn the listed hearing to a date unknown. The parties were advised of the listing for the matter on 9 April 2018 and the adjournment application was made on 8 June 2018. The witness statements and submissions have been filed. The respondent states that it will be significantly prejudiced if the hearing is adjourned. The hearings have already been significantly delayed.

[23] The matter before Johns C has not yet been decided on the points raised by the applicants and while potentially relevant to these applications, a decision by one Commission member is not binding on how another member of the Commission determines their own matters.

[24] The applicants do not point to any real prejudice that they will suffer should the matters proceed as programmed or raise any issues of procedural fairness or natural justice.

Legal representation

[25] On 11 June 2018, the applicants sought that permission for the respondent to be legally represented by K & L Gates be revoked until the issues in relation to representation in matter U2014/7097 concerning Mr King before Johns C are fully resolved and determined. The application also seeks that K & L Gates be prevented from preparing and lodging any written application, submission or other document or corresponding with the Commission.

[26] As referred to above on 18 May 2016, the respondent was granted permission to be legally represented in respect of these applications; reasons for the decision were provided by the Commission on 27 June 2016. 3 That decision was upheld on appeal.4The applicants subsequently sought that the permission for the respondent to be legally represented be revoked. That application was refused in a decision of the Commission as presently constituted on 20 October 2017. An appeal against that decision was dismissed.

[27] The reasons for the current application are substantially those which are relied upon in the application to have the listed hearing adjourned. These appear to be that K & L Gates does not have clear authority from the respondent to appear on its behalf.

[28] K & L Gates on behalf of the respondent oppose the application, pointing out that Johns C has not determined the issue of representation, nor made any findings that would undermine the decision to grant permission to be legally represented in these matters.

[29] The application currently before the Commission does not strike at the reasons for permission having been granted or the reasons why the previous revocation application was refused. Rather the application relates to whether the proper authority was provided or able to be provided by the respondent to K & L Gates to represent it before the Commission.

[30] It should be noted that the Commission’s decision to allow the respondent to be legally represented in these applications is at large and is not attached to a particular legal firm or counsel.

[31] It is not ordinarily a matter for the Commission to go behind a legal practitioner’s assertion that they have authority and have been instructed to act on behalf of a client. Unlike a lay advocate, legal practitioners have a paramount duty when appearing in courts and tribunals to conduct themselves with probity, candour and honesty. 5 In Western Australia, where the matters were filed and are to be heard, every practitioner is an officer of the Supreme Court and bound by the Legal Profession Act 2008 (WA) and the Legal Profession Conduct Rules 2010. Legal practitioners are also guided by the Law Society of Western Australia publication Ethical & Practice Guidelines.

[32] While the Commission has the ability to revoke an earlier decision to grant a party permission to be legally represented, 6 to do so would normally involve a change of circumstances from those in existence at the time the original determination was made and involve consideration of whether the change is sufficient to justify the revocation of an earlier decision pursuant to s.603 of the Act.

[33] I am not persuaded that the application sought should be granted. The alleged change in circumstances relates to the authority of K & L Gates to appear on behalf of the respondent.

[34] K & L Gates maintain that they have been properly instructed to appear in these proceedings on behalf of the respondent and that the applicants’ submissions to the contrary are misconceived and fanciful.

[35] The submissions put by the applicants regarding the respondent’s constitution concerning ‘power of attorney’ and the ‘Circulating Resolutions of Directors’ appear to result from a misunderstanding of their meaning and are without any obvious substance.

Witness directions

[36] On 9 April 2018, the applicants sought a direction that the Directors of the respondent, Mr Raymond Neill and Mr Jeffrey Kendrew, attend the June hearing in Perth. No reasons for their attendance being required were provided by the applicants and the respondent objected to the application and provided its reasons in an email of 11 April 2018.   No order from the Commission issued.

[37] On 11 June 2018, the applicants renewed the application to have both the respondent Directors attend the hearing in person on 18-21 June 2018. On this occasion submissions accompanied the application, however for all intents and purposes they repeat much of the substance of the submissions relied on in the applications for the listed hearing to be vacated and for K & L Gates to be prevented from representing the respondent.

[38] The applicants contend that K & L Gates is unable to represent the respondent and that only the Directors can speak for and give evidence on the respondent’s behalf. .7 This submission is predicated on the basis that K & L Gates is unable to represent the respondent, which is not a finding the Commission has made in this matter. It must also be made on the basis that the 18 June 2018 hearing is to proceed which is the decision of the Commission.

[39] The respondent submits that the named Directors were not appointed to their directorship roles until in excess of two years after the employment of the applicants ceased on redundancy grounds. As such, neither Director has any knowledge nor can give evidence that can assist the Commission in determining the unfair dismissal applications, and accordingly they have not filed witness statements in the proceedings.

[40] It is put that Mr Damian Burton, the respondent’s Business Manager at the relevant time has filed a witness statement and will be in attendance at the hearing to confirm his evidence and be available for cross examination if required.

[41] The respondent also submits that both Directors reside in New South Wales and their compulsory attendance for four days in Perth would cause them undue hardship.

[42] It is clear that the named Directors can offer no personal knowledge of the circumstances surrounding the applicants’ redundancies. The only purpose of their compulsory attendance at the request of the applicants would be to enable the applicants to ask questions 8 of the Directors about the process of appointment of solicitors to represent the respondent in this matter.

[43] As stated above, the Commission accepts K & L Gates’ contention that it is properly instructed to represent the respondent and unless good reason is shown to the contrary, it is not required, nor necessary for the Commission to go behind that assertion.

[44] A Commission order requiring the Directors to attend the hearing in Perth in person would in my view be unjustifiably burdensome as the Directors reside in New South Wales. If such an order was to issue it would be amended to require the Directors to be available at the appropriate time to attend by video conference.

[45] I am not prepared to grant the order sought by the applicants for the compulsory attendance in Perth of the named Directors. Should it become clear during the proceedings that the Directors can provide relevant evidence concerning the unfair dismissal applications the applicants would be able to renew their attendance application.

Respondent’s submissions

[46] For the reasons provided above, the applicants’ proposition that the respondent’s submissions in respect to the submissions prepared and filed by K & L Gates are inadmissible on the basis they are made without proper authority is also rejected.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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 1 S.596 of the Fair Work Act 2009

 2   See decision in [2018] FWC 3406 at [10]

 3   [2016] FWC 4189

 4   [2016] FWCFB 5069

 5   E. Allen and Ors v Fluor Construction Services Pty Ltd[2014] FWCFB 174 at [48]

 6   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].

 7 A corporation is ordinarily unable to appear in a court other than with legal representation. See for example Federal Court Rules 2011, Rule 4.01, Rules of the Supreme Court 1971 (WA) Order 4 Rule 3, however under the Act, s.596 provides its own representational rules for matters in the Fair Work Commission which is not a court.

 8   A party’s witness is not ordinarily able to be cross examined by that party