Kailash Lawyers Pty Ltd v Patial (No 2)
[2024] FedCFamC2G 269
•12 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kailash Lawyers Pty Ltd v Patial (No 2) [2024] FedCFamC2G 269
File number(s): SYG 969 of 2023 Judgment of: JUDGE D HUMPHREYS Date of judgment: 12 March 2024 Catchwords: FAIR WORK – Whether the Court has power to enforce an order of the Fair Work Commission – Costs sought Legislation: Fair Work Act 2009 (Cth) ss 546, 570
Federal Circuit And Family Court Of Australia (Division 2) (General Federal Law) Rules 2021 rr 30.07, 30.15
Cases cited: Mitford Investments (WA) Pty Limited (Trustee) v Adaszko [2022] FedCFamC2G 827 Division: Division 2 General Federal Law Number of paragraphs: 13 Date of last submission/s: 12 March 2024 Date of hearing: 12 March 2024 Place: Parramatta Counsel for the Applicant: In person Counsel for the Respondent: Mr Misra Solicitor for the Respondent: Kailash Lawyers ORDERS
SYG 969 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: KAILASH LAWYERS PTY LTD T/AS KAILASH LAWYERS & CONSULTANTS
Applicant
AND: PRATEEK PATIAL
Respondent
ORDER MADE BY:
JUDGE D HUMPHREYS
DATE OF ORDER:
12 MARCH 2024
THE COURT ORDERS THAT:
1.The Respondent is to pay the Applicant the sum of $36,398.05 plus GST within 14 days of today’s date.
2.The Respondent is to pay the Applicant interest on that amount as and from 1 December 2022, within 14 days of today’s date.
3.The Respondent is to pay the Applicant the sum of $7543.02 in accordance with the Costs Schedule Part 1 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) within 14 days of the date of this order.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
(As revised from the transcript)JUDGE D HUMPHREYS:
This matter is before me and was commenced by way of an application.
The orders that are sought is that the Federal Circuit Court of Australia, as it formerly was then, now the Federal Circuit and Family Court of Australia enforces the order made by Commissioner McKenna in the Fair Work Commission of Australia on 28 October 2022 whereby it was ordered that Mr Prateek Patial pay Kailash Lawyers Pty Limited, trading as Kailash Lawyers and Consultants, the amount of $36,398.05 plus GST within 21 days of the date of the order dated 28 October 2022.
The application also seeks interest. The application seeks costs pursuant to s 570 of the Fair Work Act 2009 (Cth) (“the Act”).
The respondent appears before me unrepresented.
First of all, the Court is satisfied that Commissioner McKenna has made an order dated 28 October 2022 in the amount of $36,398.05 plus GST. The Court is also satisfied noting the concession made by the respondent, that amount has not been paid. The Court is satisfied that the Court has the power to make an order in the terms sought.
The Court has taken note of the decision of this Court in the matter of Mitford Investments (WA) Pty Limited (Trustee) v Adaszko [2022] FedCFamC2G 827 (“Mitford”), which is a decision of Kendall J. Judge Kendall sets out the background and capacity of the Court to make orders, and the Court adopts his reasoning at paragraphs 24 through to paragraph 29, which indicate, in his view and, certainly, in the Court’s view that the costs order is appropriate and that, as the costs have not been paid, the Court has the power to make an order enforcing the order of Commissioner McKenna.
The respondent has made numerous submissions to the Court. To a large extent, those submissions seek to go behind the order of Commissioner McKenna. It is not for this Court to go behind the order of Commissioner McKenna. The role of the Court is to determine whether or not a costs order has been made and whether or not it has been paid. Issues relating to whether or not the order was properly made are not for this Court to determine. That matter has passed. The applicant also suggests that the application is defective by reference to Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (“the Rules”) rr 30.07 and 30.15.
In the Court’s view, the application is not defective. It sets out the final order sought, and it sets out the grounds of the application. The Court is not satisfied that r 30.07 of the Rules applies, and even if it does, the Court has the power to waive compliance with the Rules of the Court, and the Court would do so if it was satisfied that the application was defective. In the Court’s view, it is not. It sets out quite briefly the grounds of the application, which are, that Commissioner McKenna made the order, that the amount has not been paid, and then applies for the enforcement of the orders.
In the Court’s view, it is proper for the Court to make the order, and the order that the Court seeks will be in the same terms as Mitford.
In terms of interest, the Court is going to order that the applicant is to pay interest from 1 December 2022. The Court picks that date because it is slightly more than 21 days from the date of the Order of 28 October 2022. The Court does not think a week or so is going to really matter in terms of the payment of interest.
APPLICATION FOR COSTS
As a subsidiary matter in relation to the substantive proceedings, the Court has an application for costs under s 570 of the Act. Costs are not normally paid in relation to Fair Work matters, but where the actions of a party have been unreasonable, the Court may order costs where it is satisfied that is the case, pursuant to s 570(2)(b) of the Act. The circumstances in relation to the matter are that none of the matters that have been raised by the respondent go to the heart of the proceedings, and that is whether or not the order made by Commissioner McKenna should be enforced.
The respondent sought to raise a whole plethora of irrelevant and unrelated matters, including making unsubstantiated allegations against the behaviour of Mr Misra of Counsel for which he had to be cautioned against in relation to whether or not, as an officer of this Court, he may be engaging in unsatisfactory professional conduct or professional misconduct. The Court makes no findings in relation to that other than the fact that the respondent should think very, very carefully about making unsubstantiated allegations, even in Court. In the Court’s view, the matters which have been raised are totally irrelevant and has caused the applicant considerable additional work over and above the norm.
The Court has also taken into account the fact that the matter had to be adjourned from yesterday, 11 March 2024 until today, 12 March 2024 in circumstances where the respondent, at 9.38am on 11 March, said he was going to hospital. The Court has been provided with a medical certificate which indicates he did go to hospital, but no cardiac cause was found in relation to the allegation of chest pain. In the Court’s view, substantial inconvenience has been caused to both the Court and, more particularly, to the applicant and caused them to incur additional costs. In those circumstances, the Court is satisfied that the relevant requirements under s 570(2)(b) of the Act have been met.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge Humphreys. Associate:
Dated: 21 March 2024
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