McKerlie v RateIt Australia Pty Ltd

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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…

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Details
Case
[2020] FCA 1112
Decision Date

CaseChat Overview and Summary

In McKerlie v RateIt Australia Pty Ltd, the Federal Court of Australia was presented with an application from the applicant, Mr McKerlie, seeking various forms of interlocutory relief against the first respondent, RateIt Australia Pty Ltd. The relief sought included an injunction to prevent the Fair Work Commission from hearing two proceedings related to an unfair dismissal claim, an order to restrain the first respondent's solicitors from acting in the proceedings, and non-publication orders to protect Mr McKerlie's identity. The legal issues before the Court were whether the Court should grant the interlocutory injunction, restrain the first respondent's solicitors from acting, and impose non-publication orders.

The Court held that the application for interlocutory injunctive relief should be dismissed. The Court found that while the causes for which Mr McKerlie was agitating were ambitious, the balance of convenience did not favour granting the relief sought. Furthermore, the Court held that there were no grounds to restrain the first respondent's solicitors from acting in the proceedings, as the allegations against them were not substantiated, and there were other mechanisms available to address any misconduct. Lastly, the Court dismissed the application for non-publication orders, finding that the public interest in open justice outweighed the need for protection of Mr McKerlie's identity.

The Court dismissed all interlocutory applications and ordered the parties to confer and agree on costs or file written submissions if no agreement was reached. The Court also noted that the decision on interlocutory relief did not preclude the Fair Work Commission from determining its own competence to hear the proceedings.

Orders

Orders of the court

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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)).

Ratio Decidendi

Legal Principle Established

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).