Michael Alkan v Australian Concert And Entertainment Security Pty Ltd
[2025] FWCFB 161
•31 JULY 2025
| [2025] FWCFB 161 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
Michael Alkan
v
Australian Concert And Entertainment Security Pty Ltd
(C2025/6311)
| DEPUTY PRESIDENT COLMAN | MELBOURNE, 31 JULY 2025 |
Appeal against decisions ([2025] FWC 1696 and [2025] FWC 1922) of Slevin DP at Sydney on 19 June 2025 and 4 July 2025 in matter number U2024/5756 – permission to appeal refused
Michael Alkan has lodged an appeal, for which permission is required, under s 604 of the Fair Work Act 2009 (Act) against two decisions of Deputy President Slevin, the first dated 19 June 2025 ([2025] FWC 1696), and the second dated 4 July 2025 ([2025] FWC 1922). The appeal was listed before us in relation to permission to appeal only. The parties consented to the Full Bench determining the application for permission to appeal without holding a hearing. We are satisfied that this matter can be adequately determined without the parties making oral submissions (see s 607(1) of the Act).
The background to this matter is summarised in a decision of Colman DP of 17 July 2025 which refused Mr Alkan’s application for a stay ([2025] FWC 2084). In his first decision, Slevin DP determined that, while representing a client in an unfair dismissal application, Mr Alkan caused the respondent, Australian Concert and Entertainment Security Pty Ltd (ACES), to incur costs because of his unreasonable acts or omissions, as contemplated by s 401(1A)(b)). The Deputy President concluded that Mr Alkan had conducted himself unreasonably in connection with a conciliation conference, including by insisting that his client would ‘bypass’ conciliation if the respondent did not make an offer prior to the conciliation, and then by failing to attend the conciliation. The Deputy President further determined that Mr Alkan had failed to provide his client with a copy of a settlement offer from the respondent, and had unreasonably failed to give adequate advice to his client about the consequences of rejecting the offer. The Deputy President also found that it was unreasonable for the applicant to discontinue his unfair dismissal application on the eve of the hearing, and that Mr Alkan had advised his client to instruct him to do so. In this regard, the Deputy President found that the matters that had led to the discontinuance involved nothing new, and ought to have been considered much earlier. The Deputy President stated that he proposed to order Mr Alkan to pay ACES’s costs in the amount of $28,952.20. After hearing further from the parties, the Deputy President issued the second decision which confirmed this course, together with an associated order.
Permission to appeal
There is no right to an appeal from the Deputy President’s decision. An appeal may only be brought with the permission of the Commission under s 604(1). Section 400 of the Act applies to this appeal, because the Deputy President’s decision was made under Part 3-2. Section 400(1) states that the Commission must not grant permission to appeal unless it is in the public interest to do so. Section 400(2) provides that an appeal on a question of fact can only be made on the ground that the decision involved a significant error of fact.
Consideration of the public interest involves a broad value judgment (Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44]). Matters that may engage the public interest include issues of importance and general application, a diversity of decisions at first instance, or where the decision manifests an injustice (GlaxoSmithKline Australia Pty Ltd v Makin (2010) 197 IR 266 (Makin) at [27]).
In deciding whether to grant permission to appeal, it is unnecessary and inappropriate to conduct a detailed examination of the appeal grounds (Trustee for the MTGI Trust v Johnston [2016] FCAFC 140 at [82]). However, it is necessary to engage with the appeal grounds to consider whether they raise an arguable case of appealable error. An appellant must ordinarily demonstrate that there is such a case in order to be granted permission to appeal, as an appeal cannot succeed in the absence of error (Coal & Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 at 204). However, the fact that a member at first instance may have made an error is not necessarily a sufficient basis to grant permission to appeal.
Grounds of appeal and the public interest
Mr Alkan’s notice of appeal advances 3 grounds of appeal upon which he elaborates in his written submissions. First, he contends that the Deputy President erred in awarding costs when no exceptional circumstances existed pursuant to s 611(1). Secondly, he submits that the Deputy President was in error in granting permission for the respondent (the costs applicant) to be represented by a barrister and a solicitor when Mr Alkan was self-represented, because this created unfairness. Thirdly, Mr Alkan contends that the Deputy President took into account irrelevant considerations and failed to take into account relevant considerations, and that his decision was affected by a reasonable apprehension of bias.
We do not consider that the first ground of appeal reveals an arguable case of error. The Deputy President’s decision was made under s 401, not s 611, and in any event s 611 makes no reference to exceptional circumstances. Mr Alkan submitted that the decision represented a ‘broadening’ of the circumstances in which costs might be awarded and made no mention of the need for caution or the presence of an overriding discretion. But there are no fixed categories of circumstances in which costs can be awarded beyond what the Act prescribes, nor do we consider it arguable that the Deputy President failed to apply the requirements of s 401, or that his discretion miscarried. Further, the assertion in the submissions that the ‘proper’ exercise of the discretion would have been to order no costs or more limited costs is a statement of an outcome preference, not a valid contention of error.
There is no arguable case of error in the second ground of appeal. The fact that one party is represented in a proceeding and the other is unrepresented does not of itself create unfairness, or indicate any error in a member’s application of s 596. Further, as noted in the stay decision, Mr Alkan is in the business of representing clients in the Commission, and it is to be expected that a person who claims to be able to represent others for a fee could also properly represent himself. Moreover, it does not appear to us that the grant of permission under s 596 created any practical unfairness.
Mr Alkan’s third ground of appeal states that the decision is affected by various categories of error but does not identify what the particular errors are said to be. The ground of appeal does not particularise which irrelevant matters were taken into account, or what relevant matters were not considered. The stay decision identified in the notice of appeal various other contentions of error (see [7] to [12]). We have reviewed each of these matters and do not consider that they present an arguable case of appealable error for the purposes of permission to appeal, for the same reasons identified in the stay decision. We now address various new contentions raised in Mr Alkan’s written submissions, some of which overlap with the foregoing matters.
Mr Alkan contended that the Deputy President’s conclusion in respect of his approach to the conciliation conference had the effect of making a voluntary process mandatory. In our view, this submission is misconceived. The Deputy President pointed out that the staff conciliation service is a well-established process in this Commission, which assists the Commission to perform its functions expeditiously and efficiently. It is open to a member to consider whether a refusal to participate, in a given proceeding, was unreasonable. It appears to us that the Deputy President’s conclusions about Mr Alkan’s conduct in connection with the conciliation were entirely open to him. We also note that a member of the Commission has power under the Act to compel attendance at conciliation conferences, including staff conciliations, and therefore the premise of Mr Alkan’s submission, that the conciliation process is entirely voluntary, is not correct.
Mr Alkan said that the Deputy President was wrong to find that he failed to provide his client with the respondent’s settlement offer on 10 July 2024, based only on the assumption that his 3-minute telephone call to the client was not long enough to explain the offer, as the offer had simply invited capitulation, and could have been conveyed in seconds. This submission is defective. First, the offer was not one of capitulation, but a proposal that the parties walk away and bear their own costs. Secondly, the Deputy President noted that Mr Alkan could not remember whether he had forwarded the offer to the client, and found that he had not done so. We see no arguable basis to challenge this finding. Thirdly, the Deputy President’s separate finding was that the 3-minute call was not sufficient to provide adequate advice, which appears to us to have been comfortably open to the Deputy President.
Mr Alkan submitted that the Deputy President erred in concluding that he had acted unreasonably in discontinuing the claim so late in the proceeding when he was simply acting on his client’s instruction, which was confirmed in an email from the client that evening. But the Deputy President’s factual findings were that Mr Alkan had advised his client to instruct him to discontinue the matter, and that Mr Alkan was the instigator of the discontinuance. Again, we see no arguable basis to impugn these factual findings on appeal.
Mr Alkan said that the Deputy President erred in concluding that the matters he discussed with his client prior to discontinuing the matter on the eve of the hearing involved nothing new, because the police bodycam footage of the critical incident was going to be made available on the morning of the hearing, and it was not unusual that a client, facing cross-examination, might reconsider his prospects when key evidence was still unknown, especially when the police had indicated that the footage would be of no assistance to his client. Mr Alkan also submitted that it appeared, based on a statement made by a witness for the respondent who had viewed the bodycam video, that his client had lied to him about his conduct.
We identify no arguable error here. That the client might be nervous about cross-examination was hardly something new, nor was the possibility that the video might be of no assistance to his case, as neither Mr Alkan nor the client had seen it. The Deputy President stated that the matters discussed between Mr Alkan and his client the night before the hearing ought to have been considered well beforehand. This conclusion was plainly open to the Deputy President. Finally, we see no reason, given the limited evidence, why the Deputy President ought to have accepted Mr Alkan’s submission that his client had lied to him. No application was made to adduce fresh evidence in the appeal under s 607(2).
Many of Mr Alkan’s contentions disagree with the Deputy President’s factual findings. But it is well established that on appeal, the findings of a member at first instance should generally stand, unless they are demonstrably wrong, glaringly improbable, or contrary to compelling inferences (see Robinson Helicopter v McDermott [2016] HCA 22, and AEU v Bendigo Kangan Institute of TAFE[2021] FWCFB 3649 at [36]-[39]). It is not arguable that the Deputy President’s findings are of such a nature.
Mr Alkan submitted that the Deputy President’s decision displayed very close scrutiny of settlement correspondence and advice. But scrutiny of such matters is common and appropriate in costs matters. Mr Alkan submitted that it was illogical and unreasonable for the Deputy President to state that his actions had hindered early settlement; that his decision was overly critical of him; and that in these and other respects the decision gave rise to a ‘reasonable apprehension of bias’, or was affected by irrelevant considerations or significant errors of fact. We do not recite these matters but record that we do not consider any of these matters to give rise to an arguable case of appealable error on the part of the Deputy President.
Mr Alkan submitted that to award the whole of the respondent’s costs in the proceeding was excessive and unreasonable, but we do not consider this to be seriously arguable, particularly when Mr Alkan offered to settle the costs claim for $20,000. Nor is it arguable that it was incumbent on the Deputy President to identify a breakdown of work undertaken by counsel for the costs applicant. It appears to us that the Deputy President’s approach to determining the amount to be paid was an orthodox one.
Mr Alkan submitted that his appeal engages the public interest because the Deputy President’s decision will have a chilling effect on ‘proper advocacy’ before the Commission. However, as noted in the stay decision, the Deputy President’s conclusion was that a representative had acted unreasonably in various respects, and that this had caused the respondent to incur costs. Such a decision could not logically be said to have a chilling effect on proper advocacy. It may remind representatives that their conduct in unfair dismissal matters must be reasonable, but this is desirable.
In our opinion the grounds of appeal do not present an arguable case that the decision of the Deputy President is affected by error. Further and in any event, we are not satisfied that it is in the public interest to grant permission to appeal. We do not consider that the decision manifests an injustice, involves issues of general application, or entails any other considerations that engage the public interest in this case. In accordance with s 400(1) of the Act, we are required to refuse permission.
Permission to appeal is refused.
DEPUTY PRESIDENT
Determined on the papers
Printed by authority of the Commonwealth Government Printer
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