Michael Alkan t/a Hr Experts v The Traffic Controllers Pty Ltd
[2020] FWCFB 2969
•5 JUNE 2020
| [2020] FWCFB 2969 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
Michael Alkan t/a HR Experts
v
The Traffic Controllers Pty Ltd
(C2019/7367)
VICE PRESIDENT HATCHER | SYDNEY, 5 JUNE 2020 |
Appeal against orders to produce documents by Deputy President Cross at Sydney on 27 November 2019 in matter numbers U2019/11864 and U2019/11861.
Introduction and background
[1] Michael Alkan, an industrial relations consultant and advisor who trades as HR Experts, has lodged an appeal, for which permission to appeal is required, against an interlocutory decision made by Deputy President Cross on 27 November 2019 to issue two orders for him to produce documents pursuant to s 590(2)(c) of the Fair Work Act 2009 (FW Act) (decision). In his notice of appeal, Mr Alkan seeks that permission to appeal be granted, the appeal be upheld, and the orders for production permanently stayed.
[2] The background to this matter may be characterised as follows. Mr Matthew Priestly and Mr Truman Te Kani were formerly employees of The Traffic Controllers Pty Ltd (Traffic Controllers). Whilst employed by Traffic Controllers, Mr Priestly and Mr Te Kani became involved in a dispute with their employer. Mr Alkan appears to have given them advice in relation to this dispute. Mr Priestly and Mr Te Kani subsequently alleged that they had been dismissed by Traffic Controllers, and Mr Alkan lodged unfair dismissal applications on their behalf. The applications were allocated to the Deputy President for hearing and determination. Mr Priestly and Mr Te Kani applied for permission pursuant to s 596(2) of the FW Act for Mr Alkan to act as their representative in the proceedings in the capacity of paid agent.
[3] Traffic Controllers objected to the Commission proceeding to hear the applications on the basis that it contended that it had not dismissed Mr Priestly and Mr Te Kani. Prior to the hearing on the jurisdictional issue, which was listed before the Deputy President on 9 December 2019, Traffic Controllers applied for the orders the subject of this appeal. The two orders were made by the Deputy President on 27 November 2019, and each sought production of two categories of documents by 12:00pm on 6 December 2019 as follows:
1. Signed service agreement provided to Mr Matthew Priestly/Mr Truman Te Kani by HR Experts.
2. Email correspondence(s) between Mr Matthew Priestly/Mr Truman Te Kani and Mr Michael Alkan from HR Experts.
[4] Mr Alkan filed his appeal against the orders on 3 December 2019. His notice of appeal included an application for a stay of the orders pending the hearing and determination of the appeal. The stay application was heard by Vice President Hatcher on 6 December 2019. At the stay hearing, Mr Alkan only sought a stay in respect of the second category of documents in each order on the basis that he had nothing to produce in respect of the first category. In an ex tempore decision delivered on 6 December 2019 and published later the same day, 1 the Vice President granted the stay order sought by Mr Alkan. In the stay decision, the Vice President said:
“[9] In this case, having regard to the submissions of Mr Alkan, I am satisfied that insofar as the second category of documents in the schedule to each of the orders is concerned, he has an arguable case with reasonable prospects of success, both in relation to permission to appeal and the merits of the appeal. I consider that the appeal is seriously arguable in at least two respects. It is arguably an inappropriate exercise of the Commission’s jurisdiction pursuant to s 590(2)(c) to require a paid agent who is providing industrial relations advice and representation to an applicant to produce documents which will disclose the advice which has been given to the applicant by their representative. In this case, it is a proposition that I consider to be arguable that an analogue to the privilege which applies to dealings between a lawyer and their client should be applied in this case. The second proposition which I consider to be reasonably arguable is that the orders represent a fishing expedition, in that this is not a case where the respondent has identified a particular document which it knows exists which will assist its case. Rather it appears to me that what Traffic Controllers is doing via these orders is looking for documents which may or may not exist and which may or may not support its case, and that is arguably a fishing expedition.
[10] As to the balance of convenience, I consider the balance of convenience favours the grant of a stay. If the stay is not granted, Mr Alkan will be required to produce the documents to the Commission on 6 December 2019 (today) and if the Deputy President decides they should be disclosed to Traffic Controllers at the hearing on 9 December 2019, then that will be done at that time. Any advice contained in the correspondence will be immediately disclosed to Traffic Controllers, and any ultimate decision of a Full Bench in the appeal would not be able to reverse that situation. I also note Traffic Controllers’ very honest concession that without the documents they would still be able to sustain their case as to the jurisdictional objection.”
[5] Traffic Controllers’ jurisdictional objection was heard before the Deputy President on 9 December 2019. On 13 January 2020, the Deputy President issued a decision dismissing the applications on the basis that he found Mr Priestly and Mr Te Kani were not dismissed as required by s 385(a) of the FW Act. 2 No appeal was made against this decision.
[6] After various communications between the parties and the Commission attempting to ascertain the status of this matter, the appellant advised on 10 March 2020 that he would be proceeding with the appeal and requested that the matter be dealt with on the basis of his written submissions pursuant to s 607(1) of the FW Act, without the need for a formal hearing. The respondent consented to this course on 15 April 2020. We consider that the appeal can be adequately determined without the parties making oral submissions for consideration, and accordingly we will determine the appeal on this basis.
Appeal grounds and submissions
[7] Mr Alkan contended in his notice of appeal that permission to appeal should be granted in the public interest because, in summary, the appeal raises issues of importance and general application in respect of the circumstances in which a paid agent who is not a legal representative may be ordered to hand over documents in which “industrial strategy” is discussed and the degree of caution which needs to be exercised in ordering the production of documents of that nature from a paid agent.
[8] Mr Alkan’s notice of appeal advanced four substantive grounds of appeal:
• the material sought in the orders do not have any “adjectival relevance” to Traffic Controllers’ ‘pleadings’ in the applications before the Deputy President;
• the documents required to be produced pursuant to the orders should not be produced directly to Traffic Controllers because the usual location to which documents are produced is to the Commission’s offices, which would allow Mr Alkan to request that information of a commercially sensitive nature or material that contains personal or confidential information be redacted or removed prior to being provided to Traffic Controllers;
• the second category of the documents in the schedule to the orders does not identify documents with reasonable particularity and is so wide that it would be oppressive for them to be produced given the orders do not specify the nature, the time frame or subject matter of the correspondence; and
• the production of the documents required by the orders amounts to a fishing expedition on the basis that the production of such documents is not to support a case but to assist Traffic Controllers to discover whether there is another case or alternative theory than what was contained in the primary ‘pleadings’.
[9] Mr Alkan did not seek to supplement his notice of appeal in his written submissions save to refer to the provisions of Div 1 of Pt 3-10 of the Evidence Act 1995 (Cth) which, he submitted, should guide the Commission in the matter.
Consideration
[10] An appeal under s 604 of the FW Act is an appeal by way of rehearing and 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.
[11] This appeal is one to which s 400 of the Act applies (notwithstanding that it concerns an interlocutory decision involving the exercise of power under s 590 4). Section 400 of the Act provides:
(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.
(2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.
[12] In the Federal Court Full Court decision of Coal & Allied Mining Services Pty Ltd v Lawler and others, 5Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s 400 of the Act as “a stringent one.” The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.6
[13] A Full Bench of the Commission, in GlaxoSmithKline Australia Pty Ltd v Makin, identified some of the considerations that may attract the public interest:
“… the public interest might be attracted where a matter raises issues 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.” 7
[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.8 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.9
[15] An application for permission to appeal is not a de facto or preliminary hearing of the appeal. In determining whether permission to appeal should be granted, it is unnecessary and inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal. 10 Our task is to determine whether there is an arguable case of appealable error and an apparent public interest in hearing an appeal on the merits. However, it is still necessary to engage with the appeal grounds to consider whether they raise an arguable case of appealable error.
[16] It may be accepted that the grounds of appeal in this matter are not without merit. In this respect, we adopt what was stated in paragraph [9] of the stay decision, which we have quoted above. Additionally, the point made by Mr Alkan that the Commission should be guided by Div 1 of Pt 3-10 of the Evidence Act is well made. In particular, s 120 of the Evidence Act provides:
120 Unrepresented parties
(1) Evidence is not to be adduced if, on objection by a party who is not represented in the proceeding by a lawyer, the court finds that adducing the evidence would result in disclosure of:
(a) a confidential communication between the party and another person; or
(b) the contents of a confidential document (whether delivered or not) that was prepared, either by or at the direction or request of, the party;
for the dominant purpose of preparing for or conducting the proceeding.
[17] Section 120, in relation to court proceedings, would potentially attach legal privilege to documents of the character falling within the second category of the order the subject of this appeal. Although s 591 of the FW Act provides that the Commission is not bound by the rules of evidence, it is reasonably arguable that the Commission would have regard to the policy consideration underlying s 120 of the Evidence Act before ordering a paid agent to produce correspondence passing between the agent and the person the agent represents concerning a matter that is before the Commission.
[18] Notwithstanding this, we are not satisfied that the grant of permission to appeal is in the public interest because the appeal simply has no practical utility. As earlier explained, the orders were, in respect of the second category of documents, stayed on and from 6 December 2019. The unfair dismissal applications before the Deputy President were determined to finality without the documents ever having to be produced. There being no appeal from the dismissal of the applications, the litigation which gave rise to the orders the subject of the appeal has ended. In those circumstances, there is no prejudice or grievance on the part of Mr Alkan (or Mr Priestly and Mr Te Kani) which requires any redress. The grant of permission to appeal, even if it resulted in the appeal being upheld, could not result in any order being made which could affect any person’s legal rights. The lack of utility in an appeal is a well-established basis for the refusal of permission to appeal. 11
[19] Because we are not satisfied that the grant of permission to appeal would be in the public interest, permission to appeal must be refused in accordance with s 400(1) of the FW Act.
VICE PRESIDENT
Hearing details:
Matter determined on the papers.
Printed by authority of the Commonwealth Government Printer
<PR719982>
1 [2019] FWC 8311
2 [2020] FWC 166
3 This is so because on appeal the Commission has power to receive further evidence, pursuant to s.607(2); see Coal and Allied Operations Pty Ltd v AIRC [2000] HCA 47, 203 CLR 194, 99 IR 309 at [17] per Gleeson CJ, Gaudron and Hayne JJ
4 See Kennedy v Qantas Ground Services Pty Ltd[2018] FWCFB 4552 at [10]-[11]
5 [2011] FCAFC 54, 192 FCR 78, 207 IR 177 at [43]
6 O’Sullivan v Farrer [1989] HCA 61, 168 CLR 210 at 216 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch [2011] HCA 4, 243 CLR 506 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54, 192 FCR 78, 207 IR 177 at [44]-[46]
7 [2010] FWAFB 5343, 197 IR 266 at [27]
8 Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30]
9 Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089, 202 IR 388 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54, 192 FCR 78, 207 IR 177; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office[2014] FWCFB 1663, 241 IR 177 at [28]
10 Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
11 See e.g. KCL Industries Pty Ltd [2016] FWCFB 3048, 257 IR 266 at [8]
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