King & Deeney and Orsv Patrick Projects Pty Ltd
[2018] FWCFB 5560
•28 AUGUST 2018
| [2018] FWCFB 5560 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
King & Deeney and Ors
vPatrick Projects Pty Ltd
(C2018/3241)
VICE PRESIDENT HATCHER | SYDNEY, 28 AUGUST 2018 |
Permission to appeal against decision [2018] FWC 3406 of Catanzariti VP at Sydney on 8 June 2018 in matter numbers (U2014/7097), (U2014/982), (U2014/983), (U2014/1008), (U2014/1059) and (U2014/5970)
[1] This is an edited version of the decision given on transcript at the conclusion of the hearing of this matter on 20 August 2018.
[2] This is an appeal, for which permission to appeal is required, against a decision made by Vice President Catanzariti on 8 June 2018 1 to refuse an application to “consolidate” - that is, either join or have heard together - six separate matters and have them allocated to Commissioner Johns. The six matters are unfair dismissal applications made by persons all formerly employed by Patrick Projects Pty Ltd. The matters appear to involve a substantial degree of factual commonality. However they have progressed to different stages:
(1) U2014/7097 (King) – This matter has been heard to completion. Mr King’s dismissal was found to be unfair, and he was awarded compensation. 2 Mr King appealed the decision on the basis of the remedy granted, but this appeal was unsuccessful.3 There is an outstanding costs application by Mr King. This costs application is currently being heard by Commissioner Johns.
(2) U2014/5970 (Strauss) – This matter has been heard, and Mr Strauss’ application was dismissed.4 He was then refused permission to appeal.5 There does not appear to be any further step required to be taken with respect to this matter, but Mr Strauss has foreshadowed the possibility of a future application to revoke the decision made on his application and/or an application for costs.
(3) U2014/982, 983, 1008, 1059 (Deeney, Park, Hughes and Seiffert) – These applications are currently being heard concurrently by Deputy President Bull.
[3] The appellants (who are the applicants in each of the above matters) contend that permission to appeal should be granted, and the appeal upheld, because:
• The matters had previously travelled together, and it was contrary to s 577 of the Fair Work Act 2009 to now separate them.
• The issues of fact and law in the matters are identical.
• The application to consolidate the matters was “unopposed, undefended and unanswered” by Patrick Projects, and in that circumstance there was no basis to reject it.
• Vice President Catanzariti appeared to have an “interest” in the matter.
[4] We have decided to refuse permission to appeal. We do not consider that the grant of permission to appeal would be in the public interest, or that there is any discretionary basis to grant permission. There are two reasons for this conclusion. First, the appeal is from an interlocutory procedural decision. Permission to appeal will not usually be granted in relation to such a decision. There is nothing which has been put to us which suggests that this appeal raises any issue of sufficient importance to justify the grant of permission to appeal.
[5] Second, the appeal has no merit. No error in the exercise of the procedural discretion on the part of the Vice President has been demonstrated. The four matters which are at a common stage and involve a degree of factual commonality are already being dealt with concurrently by Deputy President Bull, as is appropriate. There is no intrinsic merit in having a costs application in an otherwise completed matter (King) being dealt with together with those four matters. Nor is there any basis for a completed matter in which there is nothing outstanding to be dealt with (Strauss) to be the subject of any further listing at all. Further, there was no argument advanced to support the proposition that there was some error involved in not allocating all the matters to Commissioner Johns.
[6] The fact that Patrick Projects did not appear before the Vice President to oppose the procedural application has no significance given that the application was entirely lacking in merit. In any event, the Commission is not bound in procedural matters by the position of the parties, even if that position is by consent or not opposed.
[7] There is no basis for the proposition that there was any actual or apprehended bias on the part of the Vice President.
[8] Accordingly we order that permission to appeal is refused.
VICE PRESIDENT
Appearances:
C. Strauss on behalf of King & Deeney & Others.
Hearing details:
2018.
Sydney video-link to Perth:
20 August.
Printed by authority of the Commonwealth Government Printer
<PR700076>
1 [2018] FWC 3406
2 King v Patrick Projects Pty Ltd [2017] FWC 1583
3 King v Patrick Projects Pty Ltd [2017] FWCFB 2809
4 Strauss v Patrick Projects [2017] FWC 1574
5 Strauss v Patrick Projects Pty Ltd [2017] FWCFB 2810
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