Meenakshi Callychurn v Australia and New Zealand Banking Group t/a ANZ
[2015] FWCFB 5254
•15 SEPTEMBER 2015
| [2015] FWCFB 5254 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Australia and New Zealand Banking Group t/a ANZ
(C2015/4858)
VICE PRESIDENT HATCHER |
|
Permission to appeal sought against decision [[2015] FWC 4784] of Commissioner Wilson at Melbourne on 14 July 2015 in matter number U2015/7113.
Introduction
[1] On 22 July 2015 Ms Meenakshi Callychurn lodged a notice of appeal in which she sought permission to appeal and appealed a decision issued on 14 July 2015 1 by Commissioner Wilson (Decision). The Decision arose out of an unfair dismissal remedy application under s.394 of the Fair Work Act 2009 (FW Act) which Ms Callychurn had lodged in respect of her dismissal from employment with the respondent. In respect of the upcoming hearing of that matter, the respondent applied under s.596 of the FW Act for permission to be represented by lawyers. The Commissioner granted that application. Ms Callychurn contends that the Commissioner erred in so doing. This decision is concerned with whether Ms Callychurn should be granted permission to appeal against the Decision.
[2] Section 596 of the FW Act provides:
596 Representation by lawyers and paid agents
(1) Except as provided by subsection (3) or the procedural rules, a person may be represented in a matter before the FWC (including by making an application or submission to the FWC on behalf of the person) by a lawyer or paid agent only with the permission of the FWC.
(2) The FWC may grant permission for a person to be represented by a lawyer or paid agent in a matter before the FWC only if:
(a) it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter; or
(b) it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or
(c) it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter.
Note: Circumstances in which the FWC might grant permission for a person to be represented by a lawyer or paid agent include the following:
(a) where a person is from a non-English speaking background or has difficulty reading or writing;
(b) where a small business is a party to a matter and has no specialist human resources staff while the other party is represented by an officer or employee of an industrial association or another person with experience in workplace relations advocacy.
…
[3] Ms Callychurn was dismissed by the respondent for two reasons. First, the Australian Securities and Investment Commission (ASIC) had banned her from engaging in “credit activities” for a period of five years which, the respondent contended, meant that she was unable to perform the inherent requirements of her role as a Credit Assessment Officer. Second, the respondent had lost trust and confidence in Ms Callychurn because she had failed to seek approval for or declare her outside business interests (the conduct of which led to the ASIC ban) and was not forthright at disciplinary meetings concerning the matter. Ms Callychurn has applied to the Administrative Appeals Tribunal (AAT) for the ASIC ban to be overturned. A final decision from the AAT is still pending.
[4] The respondent contended before the Commissioner that the ASIC ban, the AAT proceedings and issues concerning the credibility of Ms Callychurn engaged the criterion for the grant of legal representation in s.596(2)(a). The respondent also contended that its staff solicitor lacked the experience and skills to conduct the matter in that context, that it would occasion inconvenience to require another staff member to conduct that matter, and therefore that the criterion in s.596(2)(b) was also engaged.
[5] The Commissioner determined that the criterion in s.596(2)(a) was satisfied. The Commissioner’s reasoning was as follows:
“[23] … it is unlikely that the matter would be able to proceed at this time without significant analysis of the fact and import of the ASIC ban, as well as the whole of the circumstances relating to the Respondent’s allegations about Ms Callychurn's outside business interests.
[24] Taken collectively, these are matters which involve some measure of complexity for resolution by the Commission as presently constituted. I make the point that complexity could be resolved through agreed facts between the parties about firstly the basis and import of the ASIC ban and secondly the factual circumstances of the alleged outside business interests. However there are no agreed facts put to the Commission on these matters and so it is likely, in my opinion, that they will require determination in the usual way in the merits hearing.
[25] In forming my views about the extent to which the criterion within s.596(2)(a) may have been met, I take into account what the Respondent says about the need to form views about the Applicant’s credit, as well as to make submissions about the import of the disputed matters, and that such may be assisted through a practitioner skilled in cross examination. I also take into account that the Respondent’s solicitor agrees with the proposition that, subject to the Applicants need for cross examination of the Respondent’s witnesses, a two-day hearing may not be necessary.
[26] As a result, I consider the foregoing to support a finding that the grounds set out in s.596(2)(a) of the Act has been met in this matter.”
[6] The Commissioner however rejected the respondent’s contention that the criterion in s.596(2)(b) was satisfied. He proceeded to grant permission to the respondent to be represented by lawyers on the basis of his findings in relation to s.596(2)(a).
[7] Ms Callychurn submitted that it was in the public interest for permission to be granted on the following bases:
- her appeal enlivened issues of importance and general application in relation to the interpretation of s.596(2)(a);
- the decision manifested an injustice because it allowed, contrary to the legislature’s intention, legal representation for the respondent in circumstances where its in-house lawyers could effectively represent it and where Ms Callychurn was representing herself;
- the language used in s.596(2)(b) demonstrated an intention on the part of the legislature that permission for representation was not to be granted where a party was able to represent itself effectively;
- because under s.596(1) and rule 12(1) of the Fair Work Commission Rules 2013 the respondent had the capacity to have its out-of-court work performed by external lawyers without requiring permission, this provided a basis to conclude that the respondent’s in-house lawyers could effectively conduct its in-court representation;
- her application could more appropriately be dealt with in a determinative conference under s.398;
- the legal principles applied in the Decision appear to be disharmonious with other recent decisions dealing with similar matters, including King v Patrick Projects Pty Ltd 2;
- permission could not be granted under s.596(2)(a) because an enhanced efficiency arising from legal representation, taking into account the complexity of the matter, had not been established.
Consideration
[8] An appeal under s.604 of the FW Act is an appeal by way of rehearing. The Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker. 3 There is no right to appeal and an appeal may only be made with the permission of the Commission. Subsection 604(2) requires the Commission to grant permission to appeal if satisfied that it is “in the public interest to do so”. Permission to appeal may otherwise be granted on discretionary grounds.
[9] Section 400(1) modifies s.604(2) in relation to decisions made under Part 3-2, Unfair Dismissal, of the FW Act:
(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part unless the FWC considers that it is in the public interest to do so.
[10] The effect of s.400(1) is that if the Full Bench does not consider that it is in the public interest to grant permission to appeal, it must refuse such permission. It is not available to grant permission on discretionary grounds.
[11] The Decision here was one made under s.596, which is not located in Part 3-2, but in relation to an unfair dismissal remedy application made under Part 3-2. In Asciano Services Pty Ltd v Hadfield 4, which was an appeal from a decision to refuse permission for legal representation under s.596, the Full Bench determined that it would approach the matter on the basis that s.400(1) applied, but that it would also state the conclusion it would reach if s.400(1) did not apply. In taking this approach, the Full Bench relied upon the decision of the Federal Court (Besanko J) in Australian Postal Corporation v Gorman.5In that matter, judicial review was sought of an appeal decision of a Full Bench of this Commission which quashed the decision of a single member to dismiss an unfair dismissal remedy application under s.587 (which provision is likewise not located in Part 3-2 of the FW Act). In that context, the question arose as to whether the Full Bench was required to apply s.400(1) to the appeal. Besanko J said:
“[37] ... It seems to me that the Senior Deputy President’s decision was a decision made ‘under this Part’ within subsection 400(1) and a decision ‘in relation to a matter arising under this Part’ within subsection 400(2) despite the fact that s 587 is in Part 5-1 of the Act. The Senior Deputy President’s decision was a decision to dismiss the first respondent’s application made under s 394 for a remedy for unfair dismissal. That is a decision under Chapter 3 Part 3-2 in the same way as an order for re-instatement or compensation would be a decision under that Part. Even if FWA’s general power to dismiss is contained in subsection 587(3), it is part of FWA’s powers when it makes a decision under Chapter 3 Part 3-2. The same reasoning applies if regard is had not to the order but to the ground upon which the order was made, that is, that the continued pursuit of the application is frivolous or vexatious.”
[12] We have likewise taken the approach that s.400(1) applies to Ms Callychurn’s appeal. However, we will also take the step of stating what conclusion we would reach if s.400(1) did not apply.
[13] In the Federal Court Full Court decision in Coal & Allied Mining Services Pty Ltd v Lawler and others, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s.400(1) as “a stringent one”. 6 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment7. In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of the Commission identified some of the considerations that may attract the public interest:
“... the public interest might be attracted where a matter raises issue of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.” 8
[14] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error. 9 However, the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.10
[15] The appeal here is brought against an interlocutory decision. Courts and tribunals have generally discouraged appeals against interlocutory decisions, and it will not commonly be the case that permission would be granted to appeal against an interlocutory decision under s.604 of the FW Act, whether or not s.400(1) applies. 11
[16] The granting of permission under s.596 involves a two-step process 12. The first is that there must be satisfaction that at least one of the criteria in s.596(2) is satisfied. The consideration required by this first step “involves the making of an evaluative judgment akin to the exercise of a discretion”.13 The second is that the discretion conferred by s.596(2) must be exercised in favour of the applicant for permission. Accordingly in respect of either step it will not be sufficient for an appellant to invite the Full Bench simply to substitute its own determination for that of the single member whose decision is the subject of the appeal. It is necessary to demonstrate error of the type identified in House v The King.14
[17] We are not satisfied that Ms Callychurn has demonstrated any basis upon which permission to appeal could be granted in the public interest, for the following reasons:
(1) We do not consider that the appeal raises any issue of importance and general application concerning the interpretation of 596(2)(a). The interpretation of that provision is a well-settled issue, having been dealt with in a number of Court and Commission Full Bench decisions including Warrell v Walton 15, King v Patrick Projects Pty Ltd16 and Asciano Services Pty Ltd v Hadfield17.
(2) That the result of the Decision is that the respondent will have legal representation and Ms Callychurn will not is not sufficient to demonstrate any manifest injustice. That situation often occurs in this Commission, but it does not necessarily mean that the unrepresented party is unable to have a fair hearing. If the unrepresented party suffers from any special disadvantage (as in Warrell v Walton), the position may be different, but it is clear here that Ms Callychurn is a person who will readily be able to articulate her case. Given the professional duties which all legal practitioners must discharge, there is no reason to think that any unfair advantage would be taken of the fact that Ms Callychurn is unrepresented. If any procedural unfairness arises because of the disparity in representation, or if Ms Callychurn has any difficulty in understanding any legal question which may arise, there would no doubt be an appropriate intervention from the bench. 18
(3) Section 596(2)(a) is a ground upon which permission for legal representation may be granted which is separate and independent from s.596(2)(b). Permission may be granted if s.596(2)(a) is satisfied even if s.596(2)(b) (or (c)) is not. The submission that the statutory intention was that a party could not be granted representation under s.596(2)(a) if the party was assessed as being able to represent itself effectively for the purpose of s.596(2)(b) is plainly wrong.
(4) No disharmony in the legal principles applied in the Decision as compared to other decisions, in particular King v Patrick Projects Pty Ltd, is apparent. Indeed the principles stated in King were applied by the Commissioner. 19 The fact that the outcome was different to that in King is immaterial.
(5) Ms Callychurn’s submissions otherwise merely seek to re-agitate the merits of the matter rather than identify appealable error. We consider the conclusion that was reached by the Commissioner as to the satisfaction of the s.596(2)(a) criterion was one that was reasonably open to him.
[18] Because we are not satisfied that it would be in the public interest to grant permission to appeal, permission to appeal must be refused in accordance with s.400(1). Alternatively, if s.400(1) does not apply to this appeal, we would still refuse permission to appeal for the reasons we have stated. No public interest or discretionary grounds have been made out which would justify the grant of permission to appeal.
[19] We note that Ms Callychurn has raised the issue of whether her unfair dismissal remedy application could most appropriately be dealt with in a determinative conference under s.398 (rather than in a formal hearing under s.399). That issue was not a matter dealt with in the Decision, so it is not a matter which arises for consideration in Ms Callychurn’s appeal. This is a matter which Ms Callychurn is free to agitate before the Commissioner (if she has not already done so).
[20] Permission to appeal is refused.
VICE PRESIDENT
Appearances:
M. Callychurn on her own behalf.
E. Holt of counsel with A. Lambert solicitor, for Australia and New Zealand Banking Group t/a ANZ.
Hearing details:
2015.
Melbourne:
25 August.
1 [2015] FWC 4784
2 [2015] FWCFB 2679
3 Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ
4 [2015] FWCFB 2618
5 [2011] FCA 975
6 (2011) 192 FCR 78 at [43]
7 O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennon, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54 at [44] -[46]
8 (2010) 197 IR 266 at [27]
9 Wan v AIRC [2001] FCA 1803 at [30]
10 GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343 at [26]-[27]; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler; [2011] FCAFC 54; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28]
11 See Hutton v Sykes Australia Pty Ltd [2014] FWCFB 3384 at [3] and the decisions cited there
12 Warrell v Walton [2013] FCA 291 at [24]
13 Asciano Services Pty Ltd v Hadfield[2015] FWCFB 2618 at [19]
14 (1936) 55 CLR 499 at 505
15 [2013] FCA 291
16 [2015] FWCFB 2679
17 [2015] FWCFB 2618
18 See Singh v Metro Trains Melbourne[2015] FWCFB 3502 at [16]
19 Decision at [19]
Printed by authority of the Commonwealth Government Printer
<Price code C, PR570053>
5
15
0