McKerlie v RateIt Australia Pty Ltd
[2020] FCA 1112
•5 August 2020
FEDERAL COURT OF AUSTRALIA
McKerlie v RateIt Australia Pty Ltd [2020] FCA 1112
File number: NSD 664 of 2020 Judge: SNADEN J Date of judgment: 5 August 2020 Catchwords: INDUSTRIAL RELATIONS – interlocutory injunction – application for relief under s 39B of the Judiciary Act 1903 (Cth) pertaining to two proceedings before the Fair Work Commission – whether Fair Work Commission should be restrained from proceeding to hear or determine those matters – whether court should determine whether member assigned to one of them is fit to hold office – whether prima facie case exists in favour of relief sought – whether balance of convenience favours injunctive relief – injunctive relief not granted
PRACTICE AND PROCEDURE – solicitors – whether first respondent’s solicitors should be restrained from continuing to act – whether order necessary in aid of administration of justice – restraint not appropriate – application for non-publication order in accordance with s37AF of the Federal Court of Australia Act 1976 (Cth) and for other, equivalent relief – whether public interest in open justice should yield to protection of party to criminal proceeding involving a sexual offence – application for order dismissed
Legislation: Fair Work Act 2009 (Cth) – pt 3-2 – ss 400, 604, 612, 626, 627, 629, 633, 634, 641, 643, 644 and 570
Federal Court of Australia Act 1976 (Cth) – pt VAA – ss 37AA, 37AE, 37AF and 37AG
Judiciary Act 1903 (Cth) – s 39B
Cases cited: Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57
Bahonko v Nurses Board of Victoria (No 3) [2007] FCA 491
Bowen v Stott [2004] WASC 94
Bullock v FFTSA (1985) 5 FCR 464
CSL Australia Pty Ltd v Minister for Infrastructure and Transport (2014) 221 FCR 165
Dealer Support Services Pty Ltd v Motor Trades Association of Australia Ltd (2014) 228 FCR 252
Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389; [2003] HCA 26
Fogerty-Young v Jason [2013] VSC 570
Geelong School Supplies Pty Ltd v Dean (2006) 237 ALR 612
Holborow v MacDonald Rudder [2002] WASC 265
Kallinicos v Hunt (2005) 64 NSWLR 561
Samsung Electronics Co. Ltd v Apple Inc. (2011) 217 FCR 238
Spincode Pty Ltd v Look Software Pty Ltd (2001) 4 VR 501
Date of hearing: 27 July 2020 Registry: New South Wales Division: Fair Work Division National Practice Area: Employment & Industrial Relations Category: Catchwords Number of paragraphs: 54 Counsel for the Applicant: The applicant appeared in person Solicitor for the First Respondent: Mr N Marouchak and Mr S Stiller of MKI Legal Solicitor for the Second Respondent: Ms P Fusitu’a of Australian Government Solicitor ORDERS
NSD 664 of 2020 BETWEEN: MR C R MCKERLIE
Applicant
AND: RATEIT AUSTRALIA PTY LTD
First Respondent
FAIR WORK COMMISSION
Second Respondent
JUDGE:
SNADEN J
DATE OF ORDER:
5 AUGUST 2020
THE COURT ORDERS THAT:
1.The application for interlocutory relief set out in the applicant’s originating application dated 16 June 2020 be dismissed.
2.Each of the applicant’s interlocutory applications dated 26 June 2020 be dismissed.
3.The applicant’s interlocutory application dated 8 July 2020 be dismissed.
4.By no later than 4:00pm on 12 August 2020, the applicant and the first respondent are to confer and, if possible, agree upon the terms of an appropriate costs order, if any, that the court might make in consequence of the orders above.
5.In the event that there is agreement pursuant to order 4 above, the applicant is to provide to the chambers of Justice Snaden a copy of the order so agreed.
6.In the absence of agreement pursuant to order 4 above:
(a)the applicant and the first respondent shall each, by no later than 4:00pm on 19 August 2020, file written submissions of no more than five pages’ length identifying the costs order or orders that they urge the court to make in consequence of the orders above (as well as any reasons why such an order or orders should be made); and
(b)in the absence of objection otherwise, the court will determine in chambers what order or orders as to costs ought to be made in consequence of the orders above.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
SNADEN J:
By an originating application dated 9 June 2020, the applicant, Mr McKerlie, applies for relief under s 39B of the Judiciary Act 1903 (Cth) pertaining to two proceedings that are currently before the second respondent, the Fair Work Commission, to each of which he is party. It is convenient to set out in full the relief to which he lays claim, namely:
1. A Writ of Prohibition prohibiting the Second Respondent from further proceeding in any manner with Fair Work Commission matters U2020/1211 McKerlie v RateIt Australia Pty Ltd and C2020/4086 McKerlie v RateIt Australia Pty Ltd.
2. A declaration that Gerard Boyce, Deputy President of the Fair Work Commission, is not a fit and proper person to hold judicial office, particularly the office of Deputy President of the Fair Work Commission.
3. An order that Fair Work Commission matter U2020/1211 McKerlie v RateIt Australia Pty Ltd be transferred to the Federal Court of Australia to be heard with other matters arising but yet to be made the subject of legal proceedings by the Applicant.
As is apparent, the relief sought pertains to two proceedings that are currently before the second respondent, the Fair Work Commission (hereafter, the “FWC”). The first, matter U2020/1211, is a proceeding that Mr McKerlie has commenced against the first respondent (hereafter, “RateIt”) under the “unfair dismissal” provisions of part 3-2 of the Fair Work Act 2009 (Cth) (hereafter, the “FW Act”). That proceeding (hereafter, the “Unfair Dismissal Proceeding”) has been allocated to (that is, for determination by) a member of the FWC, Deputy President Gerard Boyce. The significance of that circumstance will shortly become apparent.
The second, matter C2020/4086, is an appeal that Mr McKerlie has commenced under s 604 of the FW Act. That proceeding (hereafter, the “FWC Appeal”) pertains to various interlocutory decisions made by Deputy President Boyce within the confines of the Unfair Dismissal Proceeding. Amongst them were decisions that the Deputy President made to permit the RateIt (which is the respondent in the Unfair Dismissal Proceeding) to be represented by its solicitors, MKI Legal; and otherwise to refrain from taking action in respect of misconduct that Mr McKerlie has alleged against that firm (it is convenient to refer to those conclusions, hereafter and collectively, as the “Representation Decision”).
By his originating application, Mr McKerlie moves the court for interlocutory injunctive relief to restrain the FWC “…from further proceeding in any manner with [the Unfair Dismissal Proceeding] and [the FWC Appeal] pending the determination of this application.”
Separately, Mr McKerlie has filed three interlocutory applications in the present proceeding before this court. By the first—dated 26 June 2020—he seeks an order:
…that the law firm MKI Legal, its principals, servants and agents, including but not limited to [two such principals, servants or agents who needn’t here be named], be restrained from further acting in these proceedings, in [the Unfair Dismissal Proceeding] and in any other legal proceedings in which the Applicant, Colin Robert McKerlie, is a party.
By the second interlocutory application—which is also dated 26 June 2020—Mr McKerlie seeks an order that:
…the [FWC], its principals, servants and agents, including but not limited to Deputy President Gerard Boyce, be restrained from taking any further action in [the Unfair Dismissal Proceeding] and [the FWC Appeal] until further order.
As is immediately apparent, that relief is not materially different from the interlocutory relief to which Mr McKerlie’s originating application lays claim (above, [4]).
By his third and final interlocutory application, dated 8 July 2020, Mr McKerlie seeks:
A suppression order prohibiting the publication or disclosure of the identity of the Applicant, Colin Robert McKerlie, or information otherwise concerning the Applicant pursuant to section 37AG (1) (d) of the Federal Court of Australia Act 1976 in regard to these proceedings and any proceedings currently before the Fair Work Commission of Australia.
For the reasons that follow, I decline to grant any of the interlocutory relief for which Mr McKerlie has moved.
INTERLOCUTORY INJUNCTIVE RELIEF
By both his originating application and his second interlocutory application of 26 June 2020 (above, [6]), Mr McKerlie petitions the court for injunctive relief to restrain the FWC from continuing to hear his Unfair Dismissal Proceeding or his FWC Appeal. In submissions before me, Mr McKerlie referred to that relief as a “stay”. There is no uncertainty as to the nature of the relief that is sought.
This court’s power to grant interlocutory injunctive relief is not materially in doubt. The legal principles that regulate the exercise of that discretion are similarly well-settled. In order to qualify for the interlocutory injunctive relief that is sought, Mr McKerlie must demonstrate that he has a prima facie case for relief and that the balance of convenience favours the granting of an injunction: Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57, 81-84 (Gummow and Hayne JJ, with whom Gleeson CJ and Crennan J agreed).
When considering the grant of an interlocutory injunction, the issue of whether an applicant has established a prima facie case and whether the balance of convenience favours injunctive relief are related inquiries. Whether there is a prima facie case is to be considered together with the balance of convenience: Samsung Electronics Co. Ltd v Apple Inc. (2011) 217 FCR 238, 261 [67] (Dowsett, Foster and Yates JJ).
In Bullock v FFTSA (1985) 5 FCR 464, Woodward J (with whom Smithers and Sweeney JJ relevantly agreed) stated (at 472):
…an apparently strong claim may lead a court more readily to grant an injunction when the balance of convenience is fairly even. A more doubtful claim (which nevertheless raises “a serious question to be tried”) may still attract interlocutory relief if there is a marked balance of convenience in favour of it.
Mr McKerlie’s prima facie case
Mr McKerlie’s originating application seeks (or, at least, partially seeks) prerogative relief pursuant to s 39B of the Judiciary Act 1903 (Cth). That section relevantly confers upon this court jurisdiction with respect to matters in which a writ of mandamus or prohibition, or an injunction, is sought against an officer or officers of the Commonwealth.
At the heart of Mr McKerlie’s application is a complaint that he prosecutes against Deputy President Boyce of the Commission. There are multiple dimensions to that complaint but they distil as follows. Mr McKerlie asserts that the Deputy President:
(1)is either actually or apparently biased against him, such that he might not bring a fair and impartial mind to bear upon the issues to which the Unfair Dismissal Proceeding gives rise; and
(2)ought not to hold office as a deputy president of the FWC, either because:
(a)he is incompetent (a circumstance for which a body of appellate jurisprudence—that is to say, a body of decisions made in appeals from matters that the Deputy President has decided—is said, perhaps amongst other things, to demonstrate); and/or
(b)he is otherwise not fit and proper to do so (a circumstance that is said to arise in consequence of matters personal to the Deputy President, the particulars of which needn’t here be rehearsed).
Mr McKerlie has sought to prosecute that complaint on at least two fronts: first, by written notice or notices to the President of the FWC; and, second, by means of correspondence that he has sent to various members of the Commonwealth Parliament. In each, he has prosecuted a case against the Deputy President’s continued commission to serve as a member of the FWC on bases including those summarised above.
Neither campaign has generated the result for which Mr McKerlie had hoped. By correspondence dated 14 May 2020, the learned FWC President responded by observing (amongst other things) that he lacked authority to interfere with the decisions of other members, that the FWC’s members were not subject to direction from the President (or anybody else), and that Mr McKerlie could seek leave to appeal any decision with which he might find himself dissatisfied. Mr McKerlie’s local member of parliament (via a member of his staff) declined to assist and recommended that Mr McKerlie obtain legal assistance. The Federal Minister for Industrial Relations (again via the agency of his staff) also declined to assist, pointing out that the Commission is an independent statutory agency whose members were beyond his direction.
Mr McKerlie is unsatisfied with those responses. He considers that Deputy President Boyce should not retain his office within the Fair Work Commission but his attempts to initiate an outcome to address that through the usual channels—the FWC President and the Parliament—have been proverbial dead-ends. In an effort to prosecute his cause further, he has commenced the present action, which he acknowledges is “novel”. He has done so because he considers that he is duty bound as a concerned citizen to take some action to address the concerns that he has: in his words, “somebody has to do something about this guy”. Given the significance that he says attaches to its subject matter, he intends to petition the court for a direction that the matter proceed before a full court, rather than a single judge.
Mr McKerlie is particularly aggrieved about the Representation Decision. It appears that Mr McKerlie voiced some opposition to RateIt’s having the benefit of legal representation in the Unfair Dismissal Proceeding; and, in particular, representation provided by MKI Legal. It is not necessary that I should outline the bases upon which that opposition was advanced. It is sufficient to note that Mr McKerlie advanced some very serious allegations of impropriety against the first respondent’s lawyers, which he maintained warranted their exclusion from the Unfair Dismissal Proceeding. Before me, Mr McKerlie described the Representation Decision as an abuse of federal judicial power. In this court, he maintains that that decision, and a later ruling that Deputy President Boyce made to not disqualify himself from hearing the Unfair Dismissal Proceeding, are the product of bias, prejudice and malice, which this court ought to address by means of a writ of prohibition (perhaps amongst other relief).
In addition to the concerns that he has about Deputy President Boyce, Mr McKerlie has also voiced concerns more broadly about the administration of the FWC. Those concerns focus upon a ruling made by another member of the FWC, Vice President Hatcher, in the FWC Appeal. That ruling concerned an appeal that Mr McKerlie initiated against the Representation Decision (or some or all of the discrete decisions that constituted it). Mr McKerlie sought a stay in respect of that decision (or those constituent parts of it), which the learned Vice President declined to grant. Before me, Mr McKerlie suggests that that ruling was evidence of the FWC “closing ranks” around its President (and his refusal to take the action against Deputy President Boyce for which Mr McKerlie petitioned).
In order that it might, at trial and by means of prerogative relief, be minded to prohibit a statutory tribunal from determining proceedings brought before it, this court would first need to conclude that such a determination was not something that the tribunal was competent to undertake. I confess at the outset some scepticism that this court might be persuaded to accept, at trial, that the proceedings that Mr McKerlie himself has initiated in the FWC are beyond its competence to hear.
The challenge, for Mr McKerlie—both at trial and, on a prima facie case basis, presently—is (and will be) to demonstrate something that the FWC has done or proposes to do that it did not or does not have jurisdiction to do. Absent that species of administrative overreach—that is, the exercise or purported exercise of a power that isn’t possessed—Mr McKerlie will have some difficulty at trial in making a case for prerogative relief.
Under the FW Act, jurisdiction to determine both the Unfair Dismissal Proceeding and the FWC Appeal vests exclusively in the FWC. If, at trial, this court were to make an order granting relief in the nature of prohibition and, thereby, were to restrain the FWC from determining one or both of those proceedings, the effect would be that they could not thereafter be determined. How such an outcome might be in Mr McKerlie’s interests is not immediately apparent. Insofar as it (or they) contemplate relief that would serve to remove from the FWC a matter or matters in respect of which it has exclusive jurisdiction, I consider that Mr McKerlie’s cause or causes of action in this court have limited prospects of succeeding. I pause to acknowledge that, by his oral submissions before me, Mr McKerlie indicated that, notwithstanding the processes that he has filed, he did not submit that this court should order that the two FWC proceedings should be removed from the FWC.
Clearly enough, Mr McKerlie’s primary concern is that his Unfair Dismissal Proceeding has been allocated to (and, at present, will be determined by) Deputy President Boyce. It must be inferred that that allocation occurred at the direction of the FWC President: FW Act, s 612(1). Mr McKerlie must be understood to submit that that process of allocation, or the potential exercise of statutory power by the Deputy President in connection with the Unfair Dismissal Proceeding, was or is beyond the FWC’s jurisdictional competence. In other words, he submits that the FWC has exercised or will soon purport to exercise a power or powers that it doesn’t have. Prerogative relief is, he will say, appropriate to correct that actual or impending misuse of statutory power; and interlocutory injunctive relief is, he says, appropriate at this juncture to prevent it from occurring (or further occurring).
In particular, Mr McKerlie submits that Deputy President Boyce is not a person by whom the FWC can properly be constituted for the purposes of his Unfair Dismissal Proceeding. That, he says, follows from the various character flaws that Mr McKerlie attributes to the Deputy President. Those flaws conspire to render him, so Mr McKerlie contends (and will at trial contend), a person who is not fit to hold the office of FWC deputy president.
It is, to say the least, not clear to me how this court might have jurisdiction to rule upon who is or is not a person fit to hold the office of deputy president of the FWC. The holders of that office are appointed to it by written instruments executed by the Governor-General: FW Act, s 626(1). Once appointed, deputy presidents typically hold office until they resign or reach 65 years of age (whichever occurs first): FW Act, s 629(1). Absent the approval of the FWC’s president, they are prohibited from engaging in most forms of paid work outside the duties of their office: FW Act, s 633. They may not exercise any of the powers vested in the Commission unless or until they take a prescribed oath or affirmation: FW Act, s 634. Their commission may be terminated only by the Governor-General, and only in circumstances not presently suggested to exist: FW Act, ss 641, 643, 644(1).
The FW Act does not stipulate any qualifications that a person must have in order to be appointed to the office of deputy president of the Fair Work Commission. The closest it comes to doing so is in s 627(2), which provides as follows:
Deputy Presidents
(2)Before the Governor General appoints a person as a Deputy President, the Minister must be satisfied that the person:
(a) either:
(i) is or has been a Judge of a court created by the Parliament; or
(ii) has been a Judge of a court of a State or Territory; or
(b)has a high level of experience in the field of workplace relations, including a high level of experience that has been acquired:
(i) through legal practice; or
(ii)in the service of a peak council or another association representing the interests of employers or employees; or
(iii)in the service of government or an authority of government; or
(iv) in academia.
There is no suggestion presently that Mr Boyce was not appointed by written instrument executed by the Governor-General, nor that the relevant minister, prior to that appointment, was not satisfied of the matters that s 627(2) of the FW Act required that she be satisfied. Likewise, there is no suggestion that Mr Boyce has been removed from office, has performed unauthorised work outside of his duties or has not taken the prescribed oath or affirmation. It is not apparent to me how it is that the allocation of the Unfair Dismissal Proceeding to Deputy President Boyce, and/or his exercise of statutory power in connection with that proceeding might be impugned as beyond what the FW Act authorises. That is not a question that I need to determine now; it suffices to note presently that I do not rate very highly Mr McKerlie’s prospects of establishing at trial what he will need to establish in order to qualify for the relief that he seeks. That observation should not be mistaken for criticism. It reflects what Mr McKerlie quite properly acknowledged was the “novel” nature of the present action.
On the issue of the relief that might be granted upon the trial of the matter, Mr McKerlie submitted that the court has effectively unlimited jurisdiction to grant declaratory relief and that it could do so as a means of marking its disapproval of the manner in which his complaints against Deputy President Boyce have been handled. Respectfully, that submission is very unlikely to be accepted at trial. The court’s power to grant declaratory relief is (like any other form of relief) dependent upon its prior determination of a justiciable controversy in respect of which it considers that relief of that nature is appropriate. Insofar as concerns a suit brought pursuant to s 39B of the Judiciary Act 1903 (Cth), that controversy might manifest in a finding that the FWC committed jurisdictional error in some way. Typically, other relief—most obviously, writs of certiorari, prohibition or mandamus—would suffice to remedy that reality (if the court were to accept it), in which case it might be difficult to identify any utility in additionally granting declaratory relief. Either way, the point remains: Mr McKerlie first has to establish that he has a cause of action before he can submit that declaratory relief is a remedy by which that cause might appropriately be addressed. Insofar as concerns his submissions about Deputy President Boyce’s fitness to hold the office that he holds, I do not consider that Mr McKerlie’s cause is a strong one. His prospects of securing any relief, declaratory or otherwise, strike me—albeit at this preliminary stage—as weak.
In light of my conclusion concerning this court’s role in assessing whether Deputy President Boyce is or is not fit to hold the office that he holds, it is neither necessary nor prudent that I should delve into any of the reasons that Mr McKerlie advances on that front. It is, however, necessary to address Mr McKerlie’s allegations that the Deputy President has exhibited (as Mr McKerlie put it), bias, prejudice or malice towards him. Mr McKerlie’s submission before me was that Deputy President Boyce’s determinations to date in the Unfair Dismissal Proceeding—in particular, the Representation Decision (or its constituent elements) and a later decision not to disqualify himself from hearing the Unfair Dismissal Proceeding—were beyond the FWC’s jurisdictional competence on account of that bias, prejudice or malice and, thus, were open to correction by means of prerogative relief (and to interlocutory redress in the form of temporary injunctive relief).
Respectfully, those allegations against the Deputy President involved a want of particularity that make it difficult to assess, with any precision, the extent to which the Deputy President’s rulings might be open to criticism. In any event, that is not a line of inquiry upon which I consider that it is presently necessary to embark. If, as Mr McKerlie submits, the Deputy President’s rulings against him are open to the criticisms that he identifies, Mr McKerlie can avail himself of the appeal mechanisms for which the FW Act makes provision. Prerogative relief aimed at a first-instance decision of a statutory tribunal will often be declined on discretionary grounds where there exists a statutory appeal mechanism of which an applicant is yet to (or has chosen not to) avail him or herself: see Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389, 395-396 [33] (Gummow and Callinan JJ); CSL Australia Pty Ltd v Minister for Infrastructure and Transport (2014) 221 FCR 165, 212-213 [219] (Allsop CJ). Unless or until Mr McKerlie prosecutes his allegations of bias, prejudice and malice before a full bench of the FWC, the prospects of this court granting him the discretionary prerogative relief that he seeks are, in my estimation, limited.
On the whole, I do not consider that Mr McKerlie has good prospects of establishing, at trial, the cause or causes of action that he intends to pursue.
Balance of convenience
Regardless of the strength of the case that Mr McKerlie intends to pursue at trial, the balance of convenience does not strongly favour a grant of interlocutory injunctive relief. That is particularly so insofar as concerns Deputy President Boyce’s allocation to the Unfair Dismissal Proceeding.
In the event that the FWC were to make rulings in that proceeding that Mr McKerlie considered were wrong, the FW Act makes provision for statutory rights of appeal of which Mr McKerlie might seek to avail himself: FW Act, s604; see also s 400.
That said, if it transpires at trial that the Fair Work Commission (constituted by Deputy President Boyce or otherwise) is not competent to (or otherwise should not) hear Mr McKerlie’s matters, then the non-granting of interlocutory injunctive relief now will, it seem, visit at least some prejudice upon him, in that he will be put to the time and inconvenience of running a cause that he ought not be required to run. That possibility should (and does) inform the exercise of the court’s discretion to grant interlocutory injunctive relief.
Conclusions on interlocutory injunctive relief
On the evidence presently before the court, the cause or causes for which Mr McKerlie agitates strike me as ambitious. The inconvenience that Mr McKerlie will endure in the event that interlocutory injunctive relief is not granted is, with respect, not material. In combination, the apparent weaknesses of his case and the overall balance of convenience incline against an exercise of the court’s discretion to grant interlocutory injunctive relief. No such relief will be granted.
RESTRAINT OF THE RESPONDENT’S SOLICITORS
Mr McKerlie also seeks interlocutory orders to restrain the first respondent’s solicitors from continuing to act for it in “legal proceedings in which [he] is a party”. Initially, Mr McKerlie sought orders that would apply to all such proceedings, whether in this court or otherwise. Before me, he refined that request and sought only that MKI Legal be restrained from acting for the first respondent in the present proceeding.
Legal principles
The court has the power to grant relief of the kind that Mr McKerlie seeks. An order of that nature is an “exceptional one” and will not lightly be granted: Kallinicos v Hunt (2005) 64 NSWLR 561, 582-583 [76] (Brereton J); Dealer Support Services Pty Ltd v Motor Trades Association of Australia Ltd (2014) 228 FCR 252, 276 [97] (Beach J). In Bahonko v Nurses Board of Victoria (No 3) [2007] FCA 491 (“Bahonko”, Middleton J), this court recognised (at [3]) the need to be mindful that:
…sometimes applications for restraining legal practitioners may be misused or quite inappropriately pursued by a party to proceedings. In Freeman v Chicago Musical Instrument Co 689 F2d 715 (1982), the Court observed at 722:
We do not mean to infer that motions to disqualify counsel may not be legitimate, for there obviously are situations where they are both legitimate and necessary; nonetheless, such motions should be viewed with extreme caution for they can be misused as techniques of harassment.
I should make clear that there is no suggestion presently that Mr McKerlie is actuated by any improper purpose. Nonetheless, the nature of the relief that he seeks warrants appropriate caution.
In Spincode Pty Ltd v Look Software Pty Ltd (2001) 4 VR 501, Brooking JA (with whom Ormiston and Chernov JJA agreed) identified (at 521-525 [52]-[58]) the circumstances in which a court might order that a litigant’s preferred representative should cease to act in a matter. In Geelong School Supplies Pty Ltd v Dean (2006) 237 ALR 612 (“Dean”, Young J), this court (at 617 [24]) distilled his Honour’s observations into three categories, namely:
(1)where an order is necessary to prevent the misuse of confidential information;
(2)where an order is necessary to prevent a breach by a lawyer of his or her fiduciary duty not to act against a client or former client in the same matter, or in a closely-related matter; and
(3)where an order is necessary for the court to control the conduct of legal practitioners as officers of the court,
(see also Fogerty-Young v Jason [2013] VSC 570, [32] (Elliott J)).
In the present case, Mr McKerlie relies upon the third category. He maintains that an order of the kind sought is necessary in aid of the administration of justice, or that it is otherwise in the interests of justice that one be made.
The third category, by its nature, is broad; but it is at least wide enough to cover situations in which the subject matter of litigation is likely to involve an evaluation of the conduct of particular legal practitioners: Holborow v MacDonald Rudder [2002] WASC 265, [23] (Heenan J). Alternatively, it might cover situations in which a legal practitioner might feel compelled to justify or defend his or her conduct in representing a client, or where the practitioner’s credibility is at stake as a potential witness: Bowen v Stott [2004] WASC 94, [53], [55] (Hasluck J).
In Bahonko, Middleton J, speaking of the third ground that Young J described in Dean, observed (at [11]):
The crucial question is whether, on the evidence before the Court, a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice requires that the legal practitioner be restrained from acting for its client in the proceedings…
Consideration
At the heart of Mr McKerlie’s submission were allegations that he has levelled against MKI Legal in the context of the Unfair Dismissal Proceedings (or the factual background to it). It is not necessary that I should recite those allegations. It suffices to note that Mr McKerlie alleges that MKI Legal has committed various acts amounting to, at the least, professional misconduct.
I do not consider it necessary to decide one way or the other whether MKI Legal is guilty of the misconduct that Mr McKerlie attributes to it. If it is, there are other mechanisms available to Mr McKerlie to bring the firm to account. There is no suggestion, much less any evidence, that MKI Legal has acted in any way in connection with the present proceeding otherwise than in an unremarkably appropriate fashion. The fact (if it be a fact) that it might have acted otherwise in (or prior to) other proceedings—including proceedings that have an obvious link to this proceeding—does not impress me as a proper basis upon which to prefer the unusual (indeed somewhat extreme) orders that are sought. I do not consider that the interests of justice here require the relief that Mr McKerlie seeks.
It follows that I will not make any orders restraining MKI Legal from continuing to represent RateIt in this proceeding.
SUPPRESSION AND NON-PUBLICATION
Mr McKerlie also seeks orders (including under part VAA of the Federal Court of Australia Act 1976 (Cth) (hereafter the “FCA Act”)) that would:
(1)replace his name with a pseudonym on documents comprising the court’s file;
(2)prohibit, until further order, the publication of information that relates to this proceeding insofar as it might tend to identify the applicant;
(3)restrain (until further order) public access to the court’s file in this proceeding; and
(4)restrain (until further order) public access to the FWC’s files in either or both of the Unfair Dismissal Proceeding and the FWC Appeal.
Mr McKerlie did not advance any submission before me addressed to the fourth species of order. Assuming that the court has a power to restrict public access to the FWC’s records, I cannot see any basis for concluding that the present circumstances warrant that I should exercise it.
Section 37AG(1) of the FCA Act identifies the grounds upon which the court might make an order of the kind (or one of the kinds) that Mr McKerlie seeks. It provides as follows:
37AG Grounds for making an order
(1)The Court may make a suppression order or non publication order on one or more of the following grounds:
(a)the order is necessary to prevent prejudice to the proper administration of justice;
(b)the order is necessary to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security;
(c)the order is necessary to protect the safety of any person;
(d)the order is necessary to avoid causing undue distress or embarrassment to a party to or witness in a criminal proceeding involving an offence of a sexual nature (including an act of indecency).
Mr McKerlie relies upon s 37AG(1)(d). Mr McKerlie was once a party to a criminal proceeding involving an offence of a sexual nature (in that regard, he noted, I think properly, that “party” is defined by s 37AA of the FCA Act to include parties to proceedings that have concluded). An order under s 37AF of the FCA Act is necessary, he submitted, to avoid causing him undue distress or embarrassment.
In considering whether or not to make a non-publication order under s 37AF(1) of the FCA Act, the court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice: FCA Act, s 37AE. The foundational importance of the court’s processes playing out in public cannot be overstated. The making of a non-publication order is unusual and is not a step that should lightly be entertained.
The essence of Mr McKerlie’s submission was that the present proceeding would very likely attract media attention. That, he submitted, reflects the fact that there has already been some media attention concerning Deputy President Boyce (the particulars of which I need not here rehearse), and some recent media attention concerning judicial misconduct more generally. As he is unemployed and looking for work, Mr McKerlie submits that the court should protect him from the prospect of being publicly identified as the applicant in the present proceeding because that will, or is likely to or might, lead to him being publicly identified as a former party to a criminal proceeding involving a sexual offence. Such identification will, he says, have the effect of punishing him for asserting his rights under the FW Act.
Respectfully and not without some hesitation, I do not accept that the present circumstances warrant orders of the kind that Mr McKerlie seeks. The distress or embarrassment that he might endure as a result of being associated with this proceeding is, I think, outweighed by the public interest in open justice. Mr McKerlie’s past has no bearing upon the matters that he seeks to agitate in this case. The possibility that it might be brought up in the course of media reporting must, of course, be accepted; but it is, in any event, a matter of public record.
For equivalent reasons, I am not minded to restrict public access of the court’s file, nor to pseudonymise references to Mr McKerlie within the documents that constitute it.
CONCLUSION
Mr McKerlie’s applications for interlocutory relief must be dismissed. During the hearing that took place on 27 July 2020, an issue was raised as to whether the court ought to, or could, make an award of costs for or against Mr McKerlie in light of s 570(1) of the FW Act (assuming, momentarily, that that section has application presently). I will order that Mr McKerlie and the first respondent confer in respect of—and, if possible, agree upon—an appropriate order as to costs (including, if it be thought warranted, that there be no such order). In the event that no agreement can be reached, they shall each have liberty to file brief written submissions (of no more than five pages) identifying the order that they consider ought to be made and the reasons why such an order would be appropriate. Subject to either party’s identifying a reason not to, I will decide in chambers what, if any, order as to costs ought to arise out of these reasons.
I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Snaden. Associate:
Dated: 5 August 2020
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